Jaques Avenue Bondi Pty Limited v Waverley Council [No 2]

[2004] NSWLEC 101

Land and Environment Court

of New South Wales

CITATION:	Jaques Avenue Bondi Pty Limited v Waverley Council [No 2] [2004] NSWLEC 101
PARTIES:	Jaques Avenue Bondi Pty Limited APPLICANT Waverley Council RESPONDENT
FILE NUMBER(S):	(1)0271 of 2002
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification application Substantially the same development or not Impact on neighbour Internal amenity of added units Parking .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan No 14 .
CASES CITED:	Jaques Avenue Bondi Pty Limited v Waverley Council [No 1] [2003] NSWLEC 421; Lismor Bondi Pty Limited v Waverley Council (2003) NSW LEC - unreported; Vacik Pty Limited v Penrith City Council (1992) NSW LEC - unreported; Moto Projects No. 2 Pty Limited) v North Sydney Council (1999) 106 LGERA 298; Moy v Warringah Council [2004] NSWCCA 77; Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414; Zhang v Canterbury City Council (2001) 115 LGERA 373; Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117; .
DATES OF HEARING:	8, 9 and 10 March 2004
DATE OF JUDGMENT:	04/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Preston SC INSTRUCTED BY Pike Pike and Fenwick RESPONDENT Mr J Robson, barrister INSTRUCTED BY Staunton Beattie

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0271 of 2002

Moore C

8 April 2004

Jaques Avenue Bondi Pty Limited

Applicant

v

Waverley Council

Respondent

Introduction

1 This is an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 ("the Act") against the refusal by Waverley Council (“the council”) of an application to modify Development Consent 308/02 for the erection of a mixed commercial/residential building at 10 - 12 Jaques Avenue and 3 - 7 Lamrock Avenue, Bondi ("the site").

2 The consent for which modification is sought was granted by decision of Brown C and Moore C in Jaques Avenue Bondi Pty Limited v Waverley Council [No 1] [2003] NSWLEC 421 ("the 2003 consent").

The site

3 The site is located on the corner of Jaques Avenue and Lamrock Avenue, Bondi Beach. The land generally slopes down to the north-west, with the northern (side) boundary of the site being the lowest point in Jaques Avenue. The maximum fall across the site is ~ 2.4 m.

4 The site is rectangular with a western boundary to Jaques Avenue of 61.07 m, an eastern (rear) boundary of 61.06 m and northern and southern boundaries of 36.575 m, giving a total area of 2238 m².

5 Adjacent to the site to the north is 6 – 8 Jaques Ave for which consent was granted by Watts C and Bly C on 29 April 2003 for a mixed development over 5 levels comprising thirty two (32) units, and twenty seven (27) basement car parking spaces, basement storage and strata subdivision: see Lismor Bondi Pty Limited v Waverley Council (2003 NSW LEC - unreported)("the northern consent).

6 Development on the western side of Jaques Avenue opposite the site contains residential properties characterised by two and three-storey blocks of units as well as detached single dwellings.

7 The site is zoned General Business 3(a) pursuant to Waverley Local Environmental Plan 1996 ("the LEP"). The opposite side of Jaques Avenue is zoned Residential 2(a). The control for height is found at cl 15 of the LEP.

8 The site is located within a block that includes Campbell Parade. The buildings adjoining the rear of the site front Campbell Parade and are characterised by ground floor commercial activities with residential above.

The 2003 consent proposal and proposed modification

9 Substantial work as already been undertaken on the basis of the 2003 consent.

10 The site has been excavated over 1½ levels, with parking level Basement 1 occupying the whole site and parking level Basement 2 occupying the southern half of the site. The depth of excavation is to a maximum of 7.8 m below the footpath level of Lamrock Avenue. The parking area is to be accessed off Jaques Avenue and will accommodates 97 car spaces. This area will also contain service and plant areas, fire egress and two lift/stair cases. Significant work as also been undertaken on structural elements above these levels.

11 The 2003 consent is for two 5 storey buildings with a central courtyard running east/west from Jaques Avenue with 74 apartments and two retail tenancies. The retail floor space is situated on the Lamrock Avenue frontage with access from a walkway below street footpath level and behind a 3 m wide colonnade. The strata subdivision of the development was also approved.

12 There were to be 44 one bedroom units, 29 two-bedroom units and 1 three-bedroom unit. The development would, therefore, total 74 residences. To meet the requirements that the development being a mixed commercial/residential development, 233 m² of retail space was provided at ground level. As noted above, 97 car parking spaces were approved.

13 The present application primarily seeks to modify the configuration of a number of the proposed residential units of the fourth and fifth floors in the northern element of the development. An increase of ~ 13 m2 in the floor space of the retail tenancies will also result. The configuration which would follow from approval of the modification application would be 44 one bedroom units, 29 two-bedroom units and 1 three-bedroom unit. The total number of residences would increase to 79. No increase in the number of parking spaces is proposed.

Other planning controls

14 Also relevant are Development Control Plan No 14 – Bicycle and Car Parking ("the Parking DCP"), State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (SEPP 65) and associated documents.

The issues

15 The council filed a formal Statement of Issues in the proceedings. However, the matters which required determination can be summarised as:

• whether the application satisfies the threshold test pursuant to s 96(2)(a) of the Act;
• whether the modification application would create unacceptable parking impacts on the vicinity;
• whether the presentation of a modified development would be unacceptable as to bulk and scale when viewed from the street; and
• whether a modified development would have an unacceptable impact on the amenity of residents of 5/9 Lamrock Avenue.

The scope of the issues in the 2003 consent proceedings

16 In the proceedings which led to the 2003 consent, a range of matters were initially raised by the council in its Statement of Issues. A number of these issues were not pressed by the council during the course of those proceedings. Relevant to the present proceedings, Issue 13 (in the 2003 proceedings) dealing with traffic flows and parking overspill was amongst those issues not pressed by the council.

The evidence

17 Evidence for the council was given by:-

• Mr Andrew Smith, consultant town planner;
• Mr Martin Butler, a resident of 11 Jaques Avenue; and
• Mr Bruce Clark, a resident of 5/9 Lamrock Avenue

18 Expert evidence for the applicant was given by:

• Mr Alexander Tzannes, the project architect;
• Mr Michael Neustein, architect and urban planner;
• Dr Richard Lamb, visual and landscape consultant;
• Mr Steve King, consultant architect; and
• Mr Neustein Coady, traffic engineer

Substantially the same development?

19 Mr Robson, for the council, submitted that the present application does not satisfy the requirements of the Act which permit modification applications as it is not substantially the same as the development which was the subject of the 2003 consent. Section 96(2)(a) provides such an application can only be entertained if:

(a) it [the consent authority] is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all),

20 Stein J in Vacik Pty Limited v Penrith City Council, an unreported decision variously cited as being of the 18th or 24th February 1992, said, as to the meaning of the words substantially the same development, when dealing with the then s102 of the Act that:

Turning to the issue of s.102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion s ubstantially when used in the section means essentially or materially or having the same essence .

21 The scope of consideration of such application was described by Bignold J in Moto Projects No. 2 Pty Limited) v North Sydney Council (1999) 106 LGERA 298, at page 309, as follows:

55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development.

56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

22 From the decision in Moto, it is clear that there are two elements that require assessment. One is a quantitative element and the other is a qualitative one.

23 I accept that the quantitative difference between that which was the subject of the 2003 consent and that proposed in the present application, being the addition of 5 further residences to a total of 79, does not involve such a degree of change as to result in development which is not substantially the same.

24 To the extent that there might be one, any substantial qualitative difference between that which was the subject of the 2003 consent and that proposed in the present application, arises from the fact that the original application complied with the 15 m height limit for the site and the proposed amendments do not.

25 Although it is possible that consideration of the circumstances in which the development consent was granted, as envisaged in the passage quoted from Moto, would involve assessing the position, discussed later in this judgment, that the 2003 consent involved a building which conformed with the relevant controls whilst that proposed by the modification application would not do so, I am not sufficiently certain that this is the legally correct approach to take to embark on such an assessment in this decision and thus determine the appeal on this basis. However, had I done so, I would have concluded that the circumstances of compliance which led to the granting of the 2003 consent were not reflected for the present application and that this would warrant refusal.

26 If satisfaction of s 96(2)(a) created some presumption in favour of a modification, the fact that the present application did not comply with the 15 m height limit for the site might well create such a difference in the flavour of the application so that it ought not be regarded as substantially the same as that for which consent has been given. However, it is clear that passage over the s 96(2)(a) hurdle differs from passage over the merit assessment hurdles contained in s 79C of the Act.

27 The Court of Appeal has recently restated the proposition that s 96 is a facultative, beneficial provision and one which is to be construed and applied in a way that is favourable to those who are to benefit from the provision: see Moy v Warringah Council [2004] NSWCCA 77 per Sperling J at para 80.

28 Despite this, it is possible to have a development which is substantially the same as one for which consent has been given yet the development as modified results in a development which does not warrant consent: see Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414 per Mason P at 440.

29 Taking a such facultative and favourable approach, I am satisfied, on a very fine balance, for the purposes of satisfaction of s 96(2)(a), that the modification application would result in a development that, in fact, is substantially the same as that which was approved in the 2003 consent proceedings.

Streetscape

30 In the 2003 consent decision, the evidence given by Mr Tzannes concerning the design which approval was sought was dealt with at paragraph 25 as follows:

25. Mr Tzannes’ evidence outlined the design philosophy for the site. He stated the built form and architectural elements are derived from the circumstances of the site and reflect the intent and objectives of the development controls. As such, he sees the architecture of the proposal as appropriate to the site and an appropriate context for future development in the area. He reiterates the elements identified by Professor Webber, as suitable elements that provide articulation to the building. On the Bondi Beach DCP requirement for a corner treatment, Mr Tzannes sees the design as providing special features through different architectural elements, such as the zero set backs, the ground floor colonnade, open balconies and different detailing not found elsewhere on the building. In his opinion, this provides the necessary attention to the corner and satisfies the requirement in the Bondi Beach DCP. Mr Tzannes agrees with Professor Webber that the height and form of the proposal responds closely to the desired future character of the area as described in the Bondi Beach DCP.

31 His evidence was also dealt with at paras 46 and 47 of that judgment:

46. ………………….. Mr Tzannes’ evidence indicated that the design philosophy adopts architectural elements from the site and general area without actually replicating any specific features. In his opinion, the proposal combines both horizontal and vertical elements in a “rich and varied composition”. The rendered masonry walls provide interest through a multiplicity of elements and avoid blank unornamented surfaces and continue the detailed varied façade of the area. The roof form is also appropriate, according to Mr Tzannes, as it is articulated and has varying relationships to walls, window heads and loggias.
47. On this issue, we agree with Mr Tzannes and accept that the proposal satisfactorily integrates with the existing character of the nearby buildings. The features described by Mr Tzannes contribute to the blending of the proposal into its location without the need to rigidly adopt the examples shown in cl 4.0 of the Bondi Beach DCP. While Mr Tzannes’ comments come from an architectural perspective and the subtleties may not always be recognised by less qualified people, it could not be said that the proposal does not integrate with the existing building features in the area.

32 In the 2003 consent decision, the evidence given by Dr lamb was dealt with at para 26 as follows:

26. Dr Lamb provided evidence on the visual implications of the proposal. While he categorises the change in the visual character of the streetscape as high, he does not see this as an impact of significance in itself, as it is anticipated by the councils planning controls. Even if considered in isolation, the proposal would relate appropriately to its context, being the replacement of a derelict setting with a quality contemporary architectural project. He describes the design as being entirely appropriate for its purpose and location. While the new buildings are of contemporary appearance, the standard of design and finish is higher that other buildings in the vicinity. Overall, he considers the future character of Bondi and the streets addressed by the development would be improved to an extent that is beneficial to both.

33 Although there were concerns on behalf the council that the presentation of an amended development would somehow impact on streetscape, I do not understand that there is any significant dispute as to the accuracy of the photomontages which depict the building in its amended form. It is clear from the view, confirmed by the evidence of Messers Tzannes and Neustein and examination of the section plans tendered in evidence that, even if there were minor inaccuracies in the photomontages, all that was likely to be seen from any point in Jaques Avenue, in addition to the approved built form, would be a blade wall and an insignificant amount of the revised fifth level parapets in northern building.

34 I am satisfied that the visual impact from Jaques Avenue would be so slight as to be de minimis. Such visual impact does not warrant refusal of the application nor does it warrant being treated as a contribution to any aggregated basis for refusal.

The impact on residents of 5/9 Lamrock Avenue

35 In the 2003 consent decision, the issue of the impact of the original proposal on residents of 5/9 Lamrock Avenue was dealt with at paragraph 66 of the judgment in the following terms:

66. The loss of privacy was seen by Mr Clark as an issue. His premises are located on the opposite side of Jaques Avenue and his concerns related to the opportunity for overlooking from the balconies and terraces of the proposal into his property. His property was also visited on the site view. We accept that the erection of the proposed building will reduce the level of privacy currently enjoyed by Mr Clark however these levels of privacy are principally the result of the undeveloped nature of the site. The councils planning controls clearly envisage a higher level of development on the site and the natural consequence is a reduction in the current level of privacy enjoyed by Mr Clark. Such a position would apply even if the proposal complied with the recommended height of 12.5 m. In our view, the separation distance of some 20m between the properties is an acceptable buffer and should afford adequate privacy, although less than currently exists.

36 In the present proceedings, Mr Clark expressed his concern as to the impact he believed the amendment would have on the outlook from his lounge room window and on the view from his kitchen/dining area window.

37 It was clear from the view that there was no relevant additional impact on the outlook from the lounge room window of these premises. However, although there was some argument as to the precise delimitation of the boundaries of the cone of vision from the kitchen/dining area window of Mr Clark's premises, is clear that almost all, if not the entirety, of the additional proposed development would be viewed from this window. The window faces north and is the principal window for the kitchen and has an informal dining table and chairs in front of it.

38 There is a considerable separation from this window to the proposed westernmost of the additional units on the fifth level of northern building on the site. This unit is to be brought forward, at its southern end, toward the Jaques Avenue frontage, by a distance of ~ 4 m. It will still, however, be setback ~ 3 m from the line of the storey below.

39 If constructed pursuant to the original consent, the view from Mr Clark's kitchen/dining area window would have been across a series of terraces, at a slightly upward angle, to the rear of a number of the buildings fronting Campbell Parade. The approximate viewing height of Mr Clark's window is ~ RL 25.4 m with the balustrade on the fifth level being at RL 27.95 m and the roof parapet at RL 29.90 m.

40 At its northern end, the built form would, if amended, extend to the northern boundary of the site.

41 The separation between Mr Clark's window and the closest point on the Jaques Avenue facade of unit 5.4, within the viewing cone, is ~ 15 m and, at the northern end, the separation to the furthest point on the Jaques Avenue facade of unit 5.5 is ~ 21 m.

42 The evidence on behalf of the applicant was that there would be no impact on the solar access to this window despite Mr Clark's concerns that this might occur. Similarly, evidence given on behalf of the applicant was that, although there was a loss to the depth of view from this window, the view which was lost, being of the rear of buildings fronting Campbell Parade, was not significant. I accept this evidence that there would be no adverse solar impact and that the nature of the view which has been lost is not of significance.

43 However, it is my understanding of Mr Clark's concerns that he was also critical of the bringing forward of the bulk of the fifth level into his outlook. He did not wish to have, within the eastern quadrant of his view from this window, a view which would be to the facade of the proposed fifth level units and, hence, the quality of his outlook would be compromised.

44 It is undoubtedly the position that the nature and quality of the future view from this window has been altered, since the 2003 consent hearing, as a consequence of the granting of the northern consent. What will be left, relevantly, of the outlook from this window, taking into account the northern consent, will be a more limited view of the rear of buildings fronting Campbell Parade together with a view of the southern side of the building being constructed pursuant to the northern consent. If the amendment to the 2003 consent is permitted, this will be replaced, in this quadrant, with a view of the front portion of the southern facade of the building being constructed pursuant to the northern consent together with the entirety of the proposed fifth level units 5.5 and 5.4. The acceptability, or otherwise, of this impact on the outlook from Mr Clark's residence is dealt with in the conclusions set out later in this decision.

45 Mr Clark also expressed concern that there was the likelihood of greater noise impact from entertaining on the terraces of units 5.5 and 5.4 as these would now be located on the Jaques Avenue frontage rather than the position, as presently approved, where there would be a single but much larger outdoor terrace area set somewhat further back. Although there will be two private open space areas at this level on the Jaques Avenue frontage at a lesser separation to Mr Clark's residence, separation from the closest point of the terrace of unit 5.4 is ~ 13 m and the separation to the closest point of the terrace of unit 5.5 is ~ 16 m. Treating Mr Clark's kitchen/dining area as a living area of his dwelling, these separations are still sufficient and satisfactory. As a consequence, there would be no aural privacy basis for rejection of the proposal.

46 A similar position arises with respect to concerns that there might be unacceptable visual privacy impact from these terraces.

Internal impacts

47 In the 2003 consent decision, the issue of the internal amenity impacts of the original proposal on residents of was dealt with at paragraphs 74 et seq of the judgment in the following terms:

74. These impacts include ventilation, solar access and visual and acoustic privacy.

75. In terms of ventilation , we note neither that LEP 1996 nor the Bondi Beach DCP provides any requirements. Principle 3 of SEPP 65 however states that “appropriate built form provides internal amenity and outlook”. Principle 7 states “optimising amenity requires ………… natural ventilation”. Ventilation is also addressed in the Better Urban Living Guidelines. It has as its objective “to ensure urban housing is naturally ventilated to a high degree”. Suggestions are provided on how this can be achieved. Further guidelines are provided in the Residential Flat Design Code and Part 03, at p81, provides the following “Rules of Thumb”:

• Building depths, which support natural ventilation typically range form 10 to 18 metres.
• Sixty percent (60%) of residential units should be naturally cross ventilated.
• Twenty five percent (25%) of kitchens within a development should have access to natural ventilation.
• Developments, which seek to vary form the minimum standards, must demonstrate how natural ventilation can be satisfactorily achieved, particularly in relation to habitable rooms.

76. Mr Smith’s concerns appear to be based on the non-compliance with the 60% natural cross ventilation standard in the Residential Flat Design Code. In this regard he calculates that 59 of the 74 units do not have cross ventilation. In our understanding of his evidence no issue was taken with the building depth requirement or the access of kitchens to natural ventilation. We also note that Professor Quarry also raises concern over lack of cross ventilation and specifically to the fact that the design of the units provide for a loss of solar access if some internal doors are closed.

77. Mr King, who has particular expertise in this area, distinguishes between the concepts of cross ventilation and ventilation. While accepting Mr Smith’s calculations and conceding that cross ventilation is a desirable attribute, he does not see it in itself as being critical to the achievement of appropriate comfort or energy performance, especially in apartments. His evidence addresses the concept of air change and air velocity and the particular attributes of the proposed development. He concludes by stating the layout and detailed design is a conscientious response to the problem of providing well controlled natural ventilation and is appropriate to this climate zone.

78. On this issue, we prefer the evidence of Mr King. His evidence provides a greater depth of understanding and analysis of this issue. The Residential Flat Design Code suggests that 60% of residential units should be cross ventilated although this figure may be varied if it can be demonstrated how natural ventilation can be achieved. In our view, Mr King’s detailed evidence has satisfactorily shown that adequate ventilation (and not necessarily cross ventilation) can be achieved. While a different design may achieve a higher standard of ventilation, we are satisfied that the ventilation for the proposed design is adequate.

48 It is Mr King’s evidence, in the present proceedings, that there is no adverse solar impact on any of the already approved units if this amendment were to be approved. I do not understand that this position was contested by the council.

49 Although there were also matters raised in this appeal which related concepts of cross ventilation and ventilation, they were broadly similar to those which arose in the 2003 consent proceedings. Mr King conceded that there would be deficiencies in cross ventilation. However, it was his evidence that there was appropriate natural ventilation. In addition, in response to a question asked by me, he indicated that it would be possible and appropriate to provide for skylight ventilation for these additional proposed units in similar fashion to that which was to be provided for the top-level units on the southern block. As a consequence, I am satisfied that, for the reasons generally discussed in the portions of the 2003 consent proceedings decisions set out above, the appropriate response to any ventilation deficiency would be to require, by condition, the additional skylight ventilation to the additional fifth level units on the northern block. I am satisfied, therefore, that there is no basis for refusal of the modification application on the grounds of internal amenity.

Parking

50 In the 2003 consent decision, the issue of the impact of the original proposal on parking in the vicinity was originally raised as an issue by the council but was not pressed during the hearing. However, the matter was then the raised by a number of the resident objectors. Parking impacts were dealt with at paragraph 93 of the judgment in the following terms:

93. Traffic and parking was originally an issue in the proceedings but was withdrawn by the council. The council’s evidence, beyond that given to the Court by the residents, was by Mr Smith. In his written statement he identifies a shortfall of 19 spaces from the requirements of DCP 14. While he states that the issue of adequate carparking is relevant, no further evidence was provided. Additionally, no specialist expert traffic evidence was provided by the council. The applicant, on the other hand provided expert evidence from Mr Coady, a traffic engineer. His assessment of the parking was that the proposal would lead to an improvement in on street parking conditions in the vicinity of the site. Mr Coady was not required for cross examination and his conclusions remained unchallenged. Notwithstanding the concerns of the residents, greater weight must be given to the expert evidence and conclusions of Mr Coady. We also note that the council deleted issue 12, however, issue 13 dealing with traffic flows and parking overspill remained active. In our view it is so closely related to issue 12 that the Court must also rely on the expert evidence of Mr Coady.

51 In the present proceedings, however, the council did press the issue of non-compliance with the Parking DCP and the view that the parking impact of the proposed development, as proposed to be modified, would be unacceptable. The matter was raised in the council's formal Statement of Issues in the following terms:

8. Whether the additional dwellings are provided with the required number of parking spaces, and in the event that additional car parking is required and provided, whether the modification proposal will have a detrimental and adverse cumulative impact on the local road network and the amenity of nearby properties and the surrounding area .

52 The underground parking area for the development has already been constructed in conformity with the 2003 consent requirements for parking spaces. There was no suggestion in these proceedings that it would be possible to provide additional parking spaces for the development. As a consequence, the only portion of the council's issue which remains relevant is a question of whether the additional dwellings are provided with the required number of parking spaces.

53 However, Mr Butler, one of the resident objectors, also raised parking as an issue in his evidence. He did so in broader context of asserting that the existing development would have an unacceptable impact on parking in the vicinity and that, if the additional units were approved, this already unacceptable impact would be exacerbated. Mr Butler does not have off street parking available at his residence.

54 In his letter to the council of 16 December 2003, Mr Butler wrote, relevantly:

………………. The floor space ratio and the sheer number of units would have a detrimental impact on the other residents and the problems created by the extra traffic and parking demand would make the already overburdened street in Jaques Avenue even more difficult for residents and visitors alike. I cant see how any of the proposed modifications would improve any of these major concerns, in fact I’m convinced that they would only make them worse.

55 In these proceedings, Mr Coady, who provided a statement of evidence dealing with traffic and parking matters on behalf of the applicant, was required to give evidence.

56 It was his evidence that the appropriate reference points for calculating parking requirements should be the Australian Bureau of Census and Statistics ("ABS") data for the Waverley Local Government Area in combination with the Roads and Traffic Authority's ("RTA") guidelines. These guidelines have been developed from surveys of residential buildings in Sydney metropolitan area. The surveys were undertaken in 1993.

57 Mr Coady also conducted a parking survey on 23 and 24 August 2003 from 8 AM to 9 PM of a broader Bondi Beach area including the immediate precinct of the subject site. I consider that it is appropriate to have particular regard to the parking position in the immediate vicinity of the site rather than on a much broader basis for considering whether or not there would be unacceptable impact on residents. Mr Coady gave evidence that he considered that the appropriate comparison time periods should be during the evening hours. As the survey was conducted on a Friday and Saturday, I accept this view, although I consider that, during Saturday, daylight hours are also relevant.

58 Mr Coady also acknowledged that he had not taken any regard of the northern consent and whether or not it had any impact on parking in the Jaques Avenue and Lamrock Avenue vicinity.

59 When questioned, he agreed that it would have been possible to refine the ABS data for vehicle ownership for households within the broader Waverley Local Government Area by having regard to be relevant individual Census collector districts which were relevant to the localities of the site. He did not consider that this was necessary.

60 He also considered that conducting a parking survey in late August was sufficiently representative of parking pressures in the broader Bondi Beach precinct and in the immediate vicinity of the site. It was Mr Smith's evidence that there was likely to be significantly higher parking demand during the summer months and that, as a consequence, Mr Coady's survey was likely to significantly understate parking demand at these times.

61 By using the RTA guidelines and applying them to the proposed reconfiguration of the building with the additional dwellings, Mr Coady concluded that 73 residential and visitors spaces would be required. After also having regard to the ABS data, plus including an allowance for parking for the retail component derived from the Parking DCP, he concluded that the minimum parking requirements for the modified development proposal is 87 spaces.

62 If the provisions of the Parking DCP were applied to the 2003 consent development, from Mr Coady's calculations, there would be a requirement for 116 spaces. Applying the provisions of the Parking DCP to the proposed modified development results (after a correction conceded by Mr Coady to the retail parking requirement as a consequence of the increase in the retail floor space), there would be a requirement for 123 spaces.

63 As parking was not the subject of contested expert evidence in 2003 proceedings, I have considered whether or not it is appropriate for me to have regard to the acceptability or otherwise of the impact of the totality of the parking consequences for the Jaques Avenue and Lamrock Avenue locality. I have concluded that it would not be appropriate to do so. Hence I have only dealt with the acceptability or otherwise of the parking impact of the proposed additional units.

64 However, the 2003 consent accepted that 97 spaces were sufficient. It is therefore appropriate to set that aside and, on the basis of the Parking DCP, calculate the resultant shortfall which should be attributed to the modifications proposed. The result of such calculation is that there is a shortfall of seven spaces – being ~ 7 percent compared to that accepted for the 2003 consent hearing.

65 Critical to my consideration of this issue is how I should treat the requirements of the Parking DCP for parking on the site and/or for the additional units compared to other indices decided by Mr Coady as being relevant for calculating parking requirements.

66 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent.

67 From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, where, as is the case in this instance, there is no relevant to issue relating to compliance with the Local Environmental Plan. Thirdly, a provision so directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative. However, on one hand, the mere fact that a proposal meets the requirements of the DCP does not automatically mean that a Development Consent will be granted. On the other hand, if a proposal does not meet the DCP’s requirements, the Court is not precluded in appropriate cases from granting consent, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

68 I am not satisfied that the Parking DCP should be displaced in favour of the ABS and RTA data. First, Mr Coady did not satisfy me that the use of Waverley Local Government Area wide data was appropriate given the widely disparate nature of the demographics of residential development within this area. I am reinforced in this view by the fact that what might have the more relevant ABS data, that based on Census collector districts in vicinity of the site, was not accessed by Mr Coady and dealt with in his analysis. Second, the RTA data is based on collections for the entirety of the Sydney region and nothing was put before me by Mr Coady as to whether or not more refined information was available from this survey data – data which is, in any event, more than a decade old.

69 It is important to note, in this regard, that the onus is on the applicant to establish that the position contended for by it is the preferable one. I do not consider that the applicant has satisfied this onus. I am therefore satisfied that the parking calculation for the number of spaces required for the additional units proposed modification application should be determined by application of the Parking DCP.

70 Given that I have accepted, for the reasons dealt with above, that the Parking DCP should be regarded as the preferable basis for calculation of additional parking space requirements for the proposed modification, I turn to the issue of whether or not a shortfall of seven spaces warrants refusal of the modification application.

71 I consider that the degree of parking saturation disclosed by Mr Coady’s survey on 23 and 24 August 2003 during the evening hours of the Friday and Saturday surveyed in the vicinity of Jaques Avenue and Lamrock Avenue is, itself, unsatisfactory. It is clear from his survey figures that, in the immediate vicinity of the site, after 6 PM, parking is at or close to saturation for virtually all of the remaining period survey and that, for portion of the time in some locations, there amounts to an over saturated demand. Even taking into account the very much broader area surveyed, from 5 PM on the Friday, parking demand was 80 percent; increasing to 90 percent by 7 PM and increasing to and remaining at 95 percent from 8 PM.

72 A marginally worse picture emerges when the Saturday evening figures are considered.

73 In addition, between the hours of 8 AM and 5 PM on the Saturday surveyed, parking demand in the broader area only dropped below 80 percent during two of these hours. In the vicinity of the site, a more saturated position can be seen from figures which, broadly speaking, approaches 100 percent demand for available parking spaces in this narrower area.

74 I accept unreservedly Mr Smith's evidence that there was likely to be significantly higher parking demand during the summer months. It would seem to me to be a logical absurdity given the proximity of the site to Bondi Beach to draw any other conclusion. It follows, as a consequence, that Mr Coady's survey significantly understates parking demand at these times. The necessary further conclusion is that, during the summer months, there would be what could only be called a supersaturated parking demand in the immediate vicinity of the siteon Friday evenings and during Saturdays. It is also reasonable to assume that this would apply at times on some other days or evenings of the week.

75 This being the case, it is reasonable to conclude that a shortfall of seven parking spaces would undoubtedly exacerbate the already unsatisfactory position at times such as those covered by Mr Coady’s survey. It is also reasonable to conclude that, during the summer months, that the position would be significantly worse.

76 This is, only to a minor or possibly negligible degree, compounded by the fact that Mr Coady's analysis has had no regard to whether or not there is any additional demand for on street parking created as a result the northern consent. This, perhaps, more correctly goes to an assessment of whether or not the applicant has discharged its onus in this regard rather than to any qualitative issues arising out of the material it has presented through Mr Coady.

77 As a result of all the above, I am satisfied that the fact that there are no additional car spaces provided to accommodate parking demand from the additional dwellings means that it is inappropriate to approve the modification even when parking considerations were confined to the limited extent dealt with at (63).

Conclusions

78 It is important to see the appeal that is presently before the Court in the proper context vis-a-vis the planning instruments which govern this site. Those planning instruments – the Waverley Local Environmental Plan and the Bondi Beach Urban Design Development Control Plan – set the parameters of permissible bulk and scale for development for the site. The site is at the point of transition between the zone permitting intensive development of Campbell Parade and the residential hinterland on the western side of Jaques Avenue.

79 In the 2003 consent decision, it is clear that, as a consequence of the site being at the interface between two zones, compliance with the height control was of some importance. In this regard, the 2003 decision said:

39. The height of the proposed development was originally an issue in the proceedings but the submission of amended plans saw the proposal satisfy the 15 m height limit in LEP 1996. Consequently, this issue was deleted by the council.
…………
44. The desired future character must be inextricably related to the council’s planning controls. We note it is specifically referred to in this context within Principle 1 of SEPP 65. In our reading of the many submissions sent to the council and the oral evidence of those residents who appeared before the Court, the general impression was that the building was too tall and bulky and was inappropriate for the site. While their sentiments are undoubtedly sincere, they do not accord with the form of the building envisaged by the controls relating to height, floor space and set backs as prescribed in LEP 1996 and the Bondi Beach DCP. It is not the role of the Court to determine the appropriate planning controls for the site but to only assess the development application in accordance with those controls adopted by the council, after the procedures set out in the Environmental Planning and Assessment Act 1979 have been followed. It was also argued that the recent rezoning of the properties on the western side of Jaques Avenue gives added weight to the claims that the proposal is inconsistent with the desired future character. The rezoning effectively reduced the maximum height of buildings on the opposite side of Jaques Avenue. In our opinion, this argument must be rejected. If it were thought that the reduction in height created a conflict with the site (and presumably the other similarly zoned properties in Jaques Avenue) then the appropriate means of dealing with this would be through amendments to the controls for the site. It is our opinion that the form of the building, through its significant compliance with the council’s planning controls must represent the desired future character of the area.

80 The principle concerning development at zone interfaces was discussed by Bly C in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117. He set it out in the following terms:

25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.

81 The crucial element of the extract set out above is that contained in its concluding sentence. In this instance, the 2003 consent effectively permitted a building up to the maximum permitted height across the whole of the site. It thus achieved the full potential otherwise indicated by applicable development standards and the like. The present application seeks an indulgence from the Court to exceed the height control and to do so for what amounts to the entirety of the area of the additional dwellings space proposed for the fifth level of the northern building.

82 I am satisfied that given:

• the scale of the buildings in the differently zoned properties (as is the case with those on the western side of Jaques Avenue); and,
• the presently approved development is already at the maximum permitted by the controls (in this case the height control)

there is a requirement that any development which seeks an indulgence to exceed relevant controls must, effectively, have a zero (or at least, a de minimis) impact on any of the dwellings in the adjacent zone.

83 The impact on the quality of the outllok of the residents of 5/9 Lamrock Avenue might not result in refusal, for a compliant building, an amendment which results in a non-compliant building. However, the situation is to be treated differently, at a zone interface, for the reasons outlined above. It could not be said that the proposed amendment effectively has a zero, or at least, a de minimis impact on the quality of the outlook from 5/9 Lamrock Avenue. In the present circumstances, I am satisfied that this impact warrants refusal of the proposed non-compliant modification.

84 However, quite separately, the issue of parking impacts needs to be addressed. In this instance, the parking shortfall is ~ 7 percent.

85 It was observed on the view at Mr Butler has no offstreet parking available for his dwelling. The applicant has failed to discharge the onus on it, through the evidence of Mr Coady, to satisfy me that there would be no adverse parking impact as a consequence of approval of the modification application. To the contrary, I am satisfied that a correct analysis of the available evidence, coupled with the logical inevitability of heightened parking demand in the December/January/February period, must lead to the conclusion that the modification application would lead to an adverse impact.

86 I am satisfied, for the reasons set out above with respect to the Parking DCP, that parking impacts of the development in the form which would be resultant from approval of the modification constitutes sufficient non-compliance with the Parking DCP to warrant refusal on general s 79C of the Act grounds.

87 However, in present circumstances, the present modification application also warrants testing, on this question, in the framework discussed above concerning development at zone interfaces.

88 I am also satisfied that given:

• my findings dealt with earlier in this decision of the saturation use of street parking in the vicinity of Lamrock Avenue and Jaques Avenue during the period surveyed;
• the fact that the period surveyed is not in any way typical of what would be peak summer parking demand in the vicinity of the site;
• the fact that the additional units are not accompanied by any increase in parking spaces provided; and
• this non-provision of additional parking spaces, in itself, constitutes a breach of the Parking DCP

there is a similar requirement, for parking, that any development which seeks an indulgence to exceed relevant controls or performance measures must, effectively, have a zero (or at most a de minimis) impact on residents of any of the dwellings in the adjacent zone.

89 There is clearly an adverse impact on Mr Butler and, by necessary deduction, on any other resident in the immediate vicinity who does not have access to offstreet parking attached to their dwelling.

90 I am therefore satisfied that, even if I be wrong in rejecting the amendment application on general s 79C grounds with respect to parking, it warrants rejection on the specific basis that the parking impact does not effectively have a zero, or at least, a de minimis impact on residents of any of the dwellings in the adjacent zone.

Orders

91 Therefore, the orders of the Court are:

1. The appeal is dismissed;
2. The application pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 to modify Development Consent 308/02 (for the erection of a mixed commercial/residential building at 10 - 12 Jaques Avenue and 3 - 7 Lamrock Avenue, Bondi Beach) by the reconfiguration of levels 4 and 5 to permit the addition of a further five residences is determined by the refusal of development consent; and
3. The exhibits, other than Exhibits A, D, E and N, are returned.

Tim Moore
Commissioner of the Court