Hughes v Northern Beaches Council

[2023] NSWLEC 1350

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hughes v Northern Beaches Council [2023] NSWLEC 1350

Hearing dates:

Conciliation conference on 13 June 2023

Date of orders:

06 July 2023

Decision date:

06 July 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant’s written request prepared by Four Towns Planning dated 13 June 2023 pursuant to clause 4.6 of the Manly Local Environmental Plan 2013 (MLEP 2013) to vary the floor space ratio development standard in clause 4.4(2) of the MLEP 2013 is upheld.

(2) The Applicant’s written request prepared by Four Towns Planning dated 9 May 2023 pursuant to clause 4.6 of the MLEP 2013 to vary the minimum lot size development standard in clause 69(1)(b)(ii) of the State Environmental Planning Policy (Housing) 2021 is upheld.

(3) The appeal is upheld.

(4) Development Application No. DA2022/0596 for the demolition of existing structures and the erection of a mixed use development comprising Co-Living housing containing 10 private rooms above a shop and car parking in a part basement at 29 Dobroyd Road, Balgowlah Heights is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — mixed use development in E1 Local Centre zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

Manly Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.2, 6.4, 6.12

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021

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

State Environmental Planning Policy (Housing) 2021, ss 3, 67, 68, 69, 70

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022

Texts Cited:

NSW Department of Planning, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Enda Hughes (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Sattler & Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/220377

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A triangular-shaped corner lot in Balgowlah Heights fronts Dobroyd Road and Commerce Lane on which a mixed-use development comprising retail and ‘co-living housing’ is proposed over basement parking.

2. The site has historically been identified as 29-37 Dobroyd Road, Balgowlah Heights, although its neighbour to the west is known as 31 Dobroyd Road. The existing site is currently occupied by a one-storey commercial premises.

3. On 4 May 2022, the Applicant in these proceedings lodged development application no DA2022/0596 with Northern Beaches Council (the Respondent) seeking consent for the demolition of the existing building on the site, and construction of the following:

1. Carparking for three cars, two motorcycles and ten bicycles.

2. A ground floor commercial space.

3. Ten ‘co-living’ residential units with kitchen, bathroom, storage, laundry and terrace spaces.

4. Common room and common open space

5. Landscaping, outdoor pathways and retaining walls.

4. As the Development Application (DA) was not otherwise determined, on 27 July 2022, the Applicant filed an appeal against the deemed refusal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. On 8 December 2022, the Court arranged a conciliation conference between the parties after which amended plans and other documents were prepared by the Applicant, that were the subject of a Notice of Motion for which the Court granted leave on 12 April 2023 (the amended DA).

6. The Respondent notified the amended DA for a 14 day period, ending on 3 May 2023.

7. On 17 May 2023, the Northern Beaches Local Planning Panel (the Planning Panel) considered the amended DA and determined by way of refusal, notifying the Applicant of the same on 19 May 2023.

8. The Respondent filed an Amended Statement of Facts and Contentions on 26 May 2023 in which all contentions are resolved, but for those contentions capable of resolution by the imposition of conditions of consent, or still pressed by reason of insufficient information.

9. The Applicant filed a bundle of documents on 8 June 2023 (the Applicant’s Bundle), comprising amended plans and other documents. While all the documents contained in the Applicant’s Bundle pre-date the determination of the Planning Panel, the Court is advised that these documents were not provided to the Planning Panel.

10. However, given the opportunity to consider the documents contained in the Applicants Bundle, the Respondent now advises that all contentions in this matter are resolved.

11. The matter was initially listed before me for hearing on 13-14 June 2023. However, on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 13 June 2023. I presided over the conciliation conference.

12. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 13 June 2023.

13. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

14. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

15. There are jurisdictional prerequisites contained in the provisions of the following:

1. Manly Local Environmental Plan 2013

2. State Environmental Planning Policy (Housing) 2021

3. State Environmental Planning Policy (Resilience and Hazards) 2021

4. State Environmental Planning Policy (Transport and Infrastructure) 2021

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

16. The parties explained to me during the conference as to how the requirements of the relevant Environmental Planning Instruments have been satisfied in order to allow the Court to make the agreed orders at [63]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the reasons set out in my judgment below.

17. At the time the DA was lodged, the site was located within the B1 Neighbourhood Centre zone, according to the Manly Local Environmental Plan 2013 (MLEP). However, on 26 April 2023, the commencement of the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021, and State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022 resulted in the re-zoning of the land to E1 Local Centre with additional zone objectives.

18. The objectives of the E1 zone are as follows:

•  To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

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

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To minimise conflict between land uses in the zone and adjoining zones and ensure amenity for the people who live in the local centre in relation to noise, odour, delivery of materials and use of machinery.

•  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.

•  To create urban form that relates favourably in scale and in architectural and landscape treatment to neighbouring land uses and to the natural environment.

Development standards are exceeded

19. It is commonly held that the proposed development exceeds the following development standards:

1. Floor space ratio, at cl 4.3 of the Manly Local Environmental Plan 2013

2. Minimum lot size, at s 69(1)(b) of State Environmental Planning Policy (Housing) 2021

The Floor Space Ratio standard is exceeded

20. While the Applicant’s primary submission is that the Floor Space Ratio (FSR) on the site complies with the standard of 1:1 at cl 4.4 of the MLEP, the Applicant relies upon a written request prepared by Four Towns Planning, dated 13 June 2023 (the FSR Request), responsive to the conclusion of the Northern Beaches Local Planning Panel that otherwise finds the FSR of the proposed development to be 1.0256:1.

21. The difference between the parties on the calculation of FSR lies in whether the waste store and toilet, located in the car park basement, contributes to gross floor area within terms of FSR.

22. The FSR Request considers compliance with the FSR standard unnecessary or unreasonable, pursuant to cl 4.6(3)(a) of the MLEP, because the objectives of the FSR standard are achieved notwithstanding the non-compliance.

23. The objectives of the FSR standard, at cl 4.4(1) of the MLEP, are:

(a)  to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,

(b)  to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,

(c)  to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,

(d)  to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,

(e)  to provide for the viability of Zone E1 and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres

24. In respect of the first ground advanced at [22], the FSR Request asserts:

1. The bulk and scale sought by objective (a) is achieved notwithstanding the exceedance of FSR because the bulk and scale of the development does not change whether the waste store and toilet are included as proposed or provide another use that does not contribute to FSR. Furthermore, the bulk and scale of the proposal is consistent with the bulk and scale of the adjoining development at No 31 Dobroyd Road.

2. In respect of objective (b), the proposed development reduces the site coverage from that of the existing building on the site and provides for additional landscaping within the road reserve which has the effect of retaining the important landscape features of the site.

3. In respect of objective (c), the area of deep soil planting is greater than what the existing site provides, and the integration of planter boxes complement the adjoining development at No 31 Dobroyd Road. The result is an appropriate visual relationship between new development and existing character and landscape of the area.

4. In respect of objective (d), the impact of the proposal on adjoining land at No 31 Dobroyd Road has been minimised when the shadow diagrams are considered. Those plans demonstrate a modest area of shadow is cast on a blank wall from 9am. Shadows cast on the rear of the property at No 27 Dobroyd Road are limited to a period after 1:30pm, and fall predominantly on Commerce Lane that does not otherwise impact the use or enjoyment of the lane.

5. In respect of objective (e), the provision of ground floor commercial space activates the frontage to Dobroyd Road and maintains the viability of the business zone.

25. Next the FSR Request sets out a number of environmental planning grounds it considers sufficient to justify the contravention in accordance with cl 4.6(3)(b) of the MLEP. Those grounds may be summarised as follows:

1. The proposal is consistent with the bulk and scale of the existing and desired streetscape character of the area, enhances open space and landscaping on the site, and protects the privacy and amenity of adjoining properties.

2. The area of non-compliance does not give rise to any adverse environmental impacts to the amenity of neighbouring properties, and is consistent with the desired future character of the area and with the objectives of the E1 zone.

26. Finally, the written request asserts consistency with the objectives of the zone, at [18].

27. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development in the E1 Zone.

28. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP.

29. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the FSR standard under cl 4.4 is justified.

30. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the E1 Zone, for the reasons given in the request.

31. In forming this opinion of satisfaction, I accept that the relevant zone objectives are those objectives relevant to the E1 zone, despite the relevant zone being a B1 Neighbourhood Centre zone at the time the development application was lodged with the Respondent. This is because, whilever the site was located within the B1 Neighbourhood Centre when the development application was lodged, on 26 April 2023, the commencement of the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021, and State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022 resulted in the re-zoning of the land to E1 Local Centre with additional zone objectives and the relevant savings and transitional arrangements are worded so as to save nominated environmental planning instruments that do not include the MLEP.

32. I also accept that when the architectural plans are considered, strict compliance with the FSR standard could be achieved by exposing the waste store fronting Commerce Lane. While this would have the effect of excluding the area from calculation, such an outcome would not be in the public interest.

33. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find there are no grounds on which the Court should not uphold the written request.

The minimum lot size standard is breached

34. Section 69(1)(b) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) relevantly provides:

(1)  Development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied that—

…

(b)  the minimum lot size for the co-living housing is not less than—

…

(ii)  for development on other land—800m², and

35. As the area of the existing Lot is 381.7m², the lot size required by s 69(1)(b) is not achieved, and the Applicant relies on a written request prepared by Four Towns Pty Ltd dated 9 May 2023 (Lot Size Request) in accordance with cl 4.6 of the MLEP to justify the contravention of the Minimum Lot size standard (Lot size Standard).

36. The Lot Size Request considers compliance with the Lot Size standard unnecessary or unreasonable, pursuant to cl 4.6(3)(a) of the MLEP, because the objectives of the Lot Size Standard are achieved notwithstanding the non-compliance.

37. The Lot size Request sets out grounds on which the Lot Size Standard at s 69(1)(b) of the Housing SEPP qualifies as a development standard, but also states that an objective or objectives to which cl 4.6(3)(a) of the MLEP may be directed are lacking.

38. For reasons set out in the Lot Size Request, the underlying objectives relevant to the Lot Size Standard are derived from the Principles of the Policy, at s 3 of the Housing SEPP. The principles are as follows:

(a)  enabling the development of diverse housing types, including purpose-built rental housing,

(b)  encouraging the development of housing that will meet the needs of more vulnerable members of the community, including very low to moderate income households, seniors and people with a disability,

(c)  ensuring new housing development provides residents with a reasonable level of amenity,

(d)  promoting the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services,

(e)  minimising adverse climate and environmental impacts of new housing development,

(f)  reinforcing the importance of designing housing in a way that reflects and enhances its locality,

(g)  supporting short-term rental accommodation as a home-sharing activity and contributor to local economies, while managing the social and environmental impacts from this use,

(h)  mitigating the loss of existing affordable rental housing.

39. The Lot Size Request considers the underlying objectives at s 3 of the Housing SEPP to be achieved notwithstanding the non-compliance with the Lot Size Standard at s 69 for reasons summarised as follows:

1. In respect of principle (a), the site is part of one of only two lots within the E1 Local Centre zone, is unable to be subdivided and so the proposal is for rental accommodation in the form of smaller apartments that represent a diverse form for the area.

2. In respect of principle (b), the proposal for ‘co-living’ housing in a location served by public transport, with two accessible units, is suited to housing vulnerable members of the community, and/or key workers.

3. In respect of principle (c), the amenity provided to residents includes private rooms complying with both minimum and maximum floor area requirements, individual kitchen and laundry facilities, and both indoor and outdoor communal open space in a natural environment setting.

4. In respect of principle (d), the site is located close to transport, sporting fields, open space, tennis courts and a café in the adjoining development which makes good use of existing infrastructure and services.

5. In respect of principle (e), the development is supported by a BASIX certificate that certifies compliance with water, thermal comfort and energy requirements and serves to confirm no adverse environmental impacts.

6. In respect of principle (f), the proposal complies with the height of building standard applicable to the site, and has been designed to complement the streetscape, and the materials and colours of the adjoining development at No 31 Dobroyd Road.

7. In respect of principles (g) and (h), the proposal is neither for short term rental accommodation nor proposed the removal of existing affordable housing.

40. The Lot Size Request also advances environment planning grounds it considers sufficient to justify the contravention of the Lot Size Standard, summarised as follows:

1. Permissibility of development for the purpose of co-living housing flows from the fact that shop top housing is permissible in the E1 zone, but in relation to which no such minimum lot size applies.

2. The proposal meets the other relevant standards of the Housing SEPP and provides common open space and communal living areas which proves the site is of sufficient size to comply with the requirements of the Housing SEPP.

3. Co-living housing provides affordable housing that cannot be further subdivided, within a business zone.

4. When the adjoining development at No 31 Dobroyd Road and the constraints placed on the site by Commerce Lane are considered, amalgamation of the site is not possible. In fact, the site is effectively isolated by virtue of the arrangement of lots and local roads bounding it.

5. By providing affordable housing, the proposed development is consistent with analyses undertaken in the Northern Beaches local government area identifying a need for the same, and is consistent with the objects of the EPA Act.

41. Finally, the written request asserts consistency with the objectives of the zone, at [18].

42. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the Lot Size Standard and the objectives for development in the E1 Zone.

43. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP.

44. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the Lot Size Standard under s 69(1)(b) of the Housing SEPP is justified.

45. I am satisfied under cl 4.6(4) of the MLEP that the written request has adequately addressed the matters required to be demonstrated by subcl (3), and that the proposed development will be in the public interest because it is consistent with the objectives of the Lot Size Standard and the objectives for development within the E1 Zone for the reasons given in the request.

46. In forming this opinion of satisfaction, I accept that the development is permissible in the E1 zone, is within the height standard permitted on the site, is of similar scale to the adjoining development at 31 Dobroyd Road, and is incapable of consolidation with other lots by virtue of the development and local road network that imposes constraints on the size of the lot.

47. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP, and I find there are no grounds on which the Court should not uphold the written request.

State Environmental Planning Policy (Housing) 2021

48. As stated at [40(1)], the proposal relies upon Housing SEPP for permissibility. Section 67 of the Housing SEPP provides that development for the purposes of co-living housing is permitted on land in a zone in which shop top housing is permitted.

49. Provisions relevant to the proposed development at s 68 of the Housing SEPP provide for:

1. a certain quantum of area of communal living to be provided that is achieved (s (2)(c));

2. a certain quantum of area of the site to be provided in terms of communal open space, which is provided when common open space on three levels of the proposal (s (2)(d)); and

3. a certain ratio of car parking spaces for each private room provided, that is achieved by providing three car parking spaces, including one accessible parking space.

50. Section 69 of the Housing SEPP stipulates standards for co-living housing that must be satisfied for consent to be granted. Those standards are satisfied, other than the Lot Size Standard at s (1)(b) dealt with at [34]-[47], for the following reasons:

1. Each private room has an area of between 162-25m², in accordance with s (1)(a).

2. A workspace for the manager is located in the communal living area on the first floor, in accordance with s (1)(d).

3. No part of the ground floor is used for residential purposes, in accordance with s (1)(e).

4. Those facilities required by s (1)(f) are provided in each of the individual rooms within the development.

5. The occupancy of rooms is stipulated in the Management Plan, dated March 2022, identified in the agreed Conditions of Consent at Condition 1, which is consistent with that stipulated by s (1)(g).

6. The proposal includes ten bicycles racks and two motorcycle parking spaces, which is adequate in terms of s (1)(h).

7. The proposal does not achieve the building separation distances required by the Apartment Design Guide (ADG), which is a matter for consideration at s (2)(b). However, the parties agree that adequate reasons are provided in documents contained in the Applicant’s Bundle for the departure from that required by the ADG.

8. The proposal does achieve 3 hours of solar access to the communal living area on the first floor fronting Dobroyd Road, in accordance with s (2)(c).

9. For reasons that are essentially identical to those at [46], the development is agreed by the parties to be compatible with the desirable elements of the character of the local area, in accordance with s (2)(f).

51. The proposal does not seek consent for subdivision, in accordance with s 70 of the Housing SEPP.

Manly Local Environmental Plan 2013

52. As stated at [39(6)], the proposed development complies with the height of building standard at cl 4.3 of the MLEP.

53. The proposed development seeks consent for excavation of around 3m in depth. I have considered those matters to be considered at cl 6.2(3) of the MLEP. On the basis of the following, I conclude that the matters have been adequately addressed:

1. Preliminary Landslip Rick Assessment & Preliminary Geotechnical Investigation prepared by Greywacke Geotechnics dated 11 May 2023, and the requirement imposed by the agreed conditions of consent, at Condition 43, for the requirements of the Geotechnical Report to be complied with.

2. Preliminary Site Investigation prepared by Environmental Consulting Services dated 9 June 2023, which includes recommendations in respect of excavated soil and destination of excavated material that are incorporated into the agreed conditions of consent.

3. Stormwater Drainage detail plans (Stormwater Plans) prepared by Taylor Consulting and identified at Condition 1 of the agreed conditions of consent.

54. Likewise, on the basis of the Stormwater Plans at [53(3)], that depict the size, location and other details of onsite detention of stormwater, and the landscape plans identified at Condition 1 of the agreed conditions of consent, I am satisfied the development is designed to maximise the use of water permeable surfaces, onsite retention of water and avoids any significant adverse impacts flowing from stormwater behaviour on the site, pursuant to cl 6.4 of the MLEP.

55. As the land is currently developed in an urban area with evidence of essential services in the vicinity, as proposed in the Stormwater Plans and in the agreed conditions of consent, I am satisfied that essential services nominated at cl 6.12 of the MLEP will be available when required.

State Environmental Planning Policy (Resilience and Hazards) 2021.

56. On the basis of the historical information regarding the site contained in the Preliminary Site Investigation prepared by Environmental Consulting Services dated 9 June 2023, including aerial photographs at Appendix 2 and the site investigation conducted via two boreholes, I accept the site is considered suitable for the proposed development within the terms of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, subject to certain recommendations that are incorporated into the agreed conditions of consent.

State Environmental Planning Policy (Transport and Infrastructure) 2021

57. Written notice of the proposed development has been given to Ausgrid in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021, and no objection has been received that would require consideration within terms at s (2)(b).

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

58. The application is accompanied by a BASIX certificate (Cert No. 1266566M_02, dated 17 May 2023) prepared by LC Consulting Engineers in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

Owners consent is provided

59. The existing development on the site is the subject of Strata Plan 35989. The Applicant relies on the written consent of owners obtained at an Annual General Meeting of owners held on 1 November 2021, in accordance with s 23(1) of the EPA Regulation.

Conclusion

60. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

61. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

62. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has agreed, pursuant to section 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2022/0596 to rely upon the following additional plans and documents:

Drawing No.	Dated	Prepared By
1/B Stormwater Management Plan - Roof and Upper Level	12.5.2023	Taylor Consulting
2/B Stormwater Management Plan - Ground Floor	12.5.2023	Taylor Consulting
3/B Stormwater Management Details	12.5.2023	Taylor Consulting
Erosion and Sediment Control plan	31.1.2022	Woodhouse Danks

Supporting Reports / Supporting Documentation – All recommendations and requirements contained within:
Report No. / Page No. / Section No.	Dated	Prepared By
Basix Certificate 1266566M-02	17.5.2023	LC Consulting Engineers
BCA Report M711 Rev. 3	12.5.2023	GRS Building
Access Report R2021-108	16.5.2023	Sydney Access Consultants
Arboricultural Impact Assessment V4	11.5.2023	Margot Blues
Preliminary Landslip Risk Assessment & Preliminary Geotechnical Investigation Rev 01	11.5.2023	GreyWacke
DA Acoustic Report 23180 Issue C	15.5.2023	Joel West
Preliminary Site Investigation	12.6.23	Environmental Consulting Services

2. The Applicant filed the amended development application with the Court on 13 June 2023.

Orders

63. The Court orders that:

1. The Applicant’s written request prepared by Four Towns Planning dated 13 June 2023 pursuant to clause 4.6 of the Manly Local Environmental Plan 2013 (MLEP 2013) to vary the floor space ratio development standard in clause 4.4(2) of the MLEP 2013 is upheld.

2. The Applicant’s written request prepared by Four Towns Planning dated 9 May 2023 pursuant to clause 4.6 of the MLEP 2013 to vary the minimum lot size development standard in clause 69(1)(b)(ii) of the State Environmental Planning Policy (Housing) 2021 is upheld.

3. The appeal is upheld.

4. Development Application No. DA2022/0596 for the demolition of existing structures and the erection of a mixed use development comprising co-Living housing containing 10 private rooms above a shop and car parking in a part basement at 29 Dobroyd Road, Balgowlah Heights is determined by the grant of development consent subject to the conditions in Annexure A.

T Horton

Commissioner of the Court

220377.22 Annexure A

**********

Decision last updated: 26 July 2023