Kimberley Co Pty Ltd v Waverley Council

[2021] NSWLEC 1771

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kimberley Co Pty Ltd v Waverley Council [2021] NSWLEC 1771

Hearing dates:

7 and 8 September 2021

Date of orders:

17 December 2021

Decision date:

17 December 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Application, in the amount of $2,500 within 28 days of the date of these orders.

(2) The appeal is dismissed.

(3) The exhibits, other than 5, 8, A and D, are returned.

Catchwords:

DEVELOPMENT APPLICATION – seniors housing development – residential apartment development – environmental impacts – site size – cl 4.6 written requests – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 39

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

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 2, 3, 4, 5, 40(2), 50

State Environmental Planning Policy No 55—Remediation of Land

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

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.5, 4.6, 5.1, 6.2

Cases Cited:

Eastern Suburbs Leagues Club Ltd v Waverley Council [2019] NSWLEC 130

Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285

Issa v Burwood Council [2005] NSWCA 38

Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74

S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd t/as Planners North v Northern Regional Planning Panel (No 2) [2019] NSWLEC 199

Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

NSW Department of Planning, Industry and Environment, Apartment Design Guide

Draft State Environmental Planning Policy (Housing) 2021

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021)

Waverley Development Control Plan 2012 - Amendment No. 9

Category:

Principal judgment

Parties:

Kimberley Co Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
M Staunton (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/339560

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-388/2020 (the Application) by Waverley Council (the Respondent). The Application sought consent for demolition of the existing dwellings and ancillary structures, excavation and construction of a four-storey seniors housing development incorporating seven self-contained units over basement parking, strata subdivision, associated landscaping and two new swimming pools at the rear of the properties known as 27 and 29 Kimberley Street, Vaucluse (the site).

2. At the commencement of the hearing on 7 September 2021, and with the consent of the Respondent, the Applicant was granted leave to further amend the Development Application and to rely upon amended plans. The final amended architectural drawings were tendered as Exhibit A in these proceedings and form the subject of this appeal.

3. The key features of the amended Application continue to comprise a four-storey seniors housing development, now incorporating six self-contained units over basement parking, being a reduction from the seven units initially proposed. The various elements of the proposal include:

1. Demolition of existing structures on site consisting of two dwelling houses.

2. The retention of the large Norfolk Island Pine within the adjacent street reserve, which was previously proposed to be removed.

3. Excavation of the site for a basement car park and part of the first and second levels.

4. A basement level comprising a car lift, ten car parking spaces, including nine accessible spaces.

5. A ground level comprising a common stair, storage, plant rooms, and a three bedroom unit with in-ground swimming pool.

6. A first level comprising a common staircase and two x three bedroom units.

7. A second level comprising a common staircase and two x three bedroom units.

8. A third level comprising a common staircase and a three bedroom unit.

4. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams.

5. In lieu of the usual site view, the Court benefitted from a series of photographs tendered within the joint expert reports and the Applicant’s View Analysis (forming a component of Exhibit D) to describe the site, its context and various relationships between adjacent properties in the immediate vicinity.

6. Upon commencement of the hearing by Microsoft Teams, the Court also benefited from oral submissions made by four affected neighbours in the immediate vicinity of the site.

7. In summary, the residents expressed concerns for access and traffic congestion, waste management, bulk and scale, overshadowing, set backs, exceedance of floor space ratio (FSR), the intensification of development along a sensitive coastal strip, impacts upon views and view loss, the applicability of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors), the protection of biodiversity, landscape design, depth of excavation, site isolation and site suitability.

The site and its context

8. The site is located at 27 and 29 Kimberley Street, Vaucluse and is legally described as Lot 1 in DP 560890 and Lot 2 in DP 1056298.

9. The combined site is irregular in shape. It has a frontage to Kimberley Street of 21.365m in width, a western side boundary of 40.235m in length, an eastern side boundary of 80.390m in length and a staggered northern (rear) boundary. The site has a total area of 1,272.28sqm by survey.

10. Of particular relevance to this matter is the geometry of the two parcels of land comprising the site. Numbers 27 and 29 Kimberley Street share a similar lot width and each have parallel side boundaries, however number 29 Kimberley Street - at approximately 80m in depth - is roughly double the depth of the parcel at 27 Kimberley Street.

11. The staggered rear boundary gains further relevance to this matter when the underlying land use zones applicable to the two parcels of land are considered.

12. Number 27 Kimberley Street is situated entirely within the mapped R3 Medium Density Residential zone as set out in the Waverley Local Environmental Plan 2021 (WLEP). The forward portion of number 29 Kimberley Street is similarly mapped within the R3 Medium Density Residential zone, however a significant rearward portion of this parcel is mapped within the RE1 Public Recreation zone as set out in the WLEP.

13. The immediate vicinity of the site is characterised by a dramatic coastal edge, with steep topography and an escarpment dropping to the ocean, and with a regular, orthogonal street pattern influenced by the flatter elevated topography. The locality figures a mixed pattern of larger single detached dwellings, multi-unit development and some residential apartment buildings estimated to date from the post-war period onwards, and including a particularly prominent multi-storey residential apartment building at 33 Kimberley Street.

14. To the east, the site boundary adjoins two separate properties, one comprising a relatively recent two-, part three-storey residential dwelling at 31 Kimberley Street, and the second comprising the Diamond Bay Reserve.

15. To the west, the site boundary adjoins a single property, comprising a two-, part three-storey, multi-unit residential building at 25 Kimberley Street.

16. The site is situated on elevated topography that offers significant outlook and views to the north and northeast across the Diamond Bay Reserve, Diamond Bay and to the ocean.

The planning controls

17. The site is partly zoned R3 Medium Density Residential and partly zoned RE1 Public Recreation pursuant to the WLEP. Development for the purposes of seniors housing is permissible with consent within the R3 zone.

18. The site is located partly within a Conservation Area - Landscape pursuant to Schedule 5 - Environmental heritage - of the WLEP.

19. Further relevant planning controls are as follows:

1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55).

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

3. State Environmental Planning Policy (Coastal Management) 2018.

4. SEPP Seniors.

5. Draft State Environmental Planning Policy (Housing) 2021 (Draft Housing SEPP).

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

7. WLEP.

8. Waverley Development Control Plan 2012 - Amendment No. 9 (WDCP).

9. Apartment Design Guide (ADG).

History of the Development Application

20. The Respondent’s Further Amended Statement of Facts and Contentions, dated 7 September 2021 (forming Exhibit 8 in these proceedings), sets out the history of the Application. A concise summary follows.

21. The Application was lodged with the Respondent on 15 October 2020.

22. The Application was notified for 21 days from 19 October 2020.

23. The Respondent received 16 submissions in response to public notification, citing a range of planning issues.

24. On 18 November 2020, the Respondent’s Design Excellence Panel reviewed the Application and provided support, subject to recommended amendments to the design.

25. On 30 November 2020, the Applicant filed a Class 1 appeal against the deemed refusal of the Application.

26. On 31 May 2021, the matter was listed for a conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) before me. With the parties unable to resolve the contentions, I terminated the conciliation conference with the agreement of the parties on 11 June 2021.

27. On 5 August 2021, prior to the hearing, the Applicant was granted leave by the Court to amend the Application and rely upon amended plans.

28. The Respondent publicly notified the amended Application for 14 days from 6 August 2021. Eleven further submissions were received from affected neighbours, which generally reiterated the range of issues raised during the initial public notification.

The issues

29. The contentions set out by the Respondent can be found in the Further Amended Statement of Facts and Contentions forming Exhibit 8 in these proceedings.

30. These contentions are summarised as follows:

1. Exceedance of the height of building development standard set out at cl 4.3 of the WLEP.

2. Excessive building bulk and scale, including exceedance of the FSR development standard set out at cl 4.4 of the WLEP.

3. The unsuitability of the site given the failure to meet the minimum 1,000sqm minimum site size required by cl 40(2) of SEPP Seniors.

4. Excessive excavation.

5. Inadequate and insufficient landscaping.

6. Unacceptable impacts upon the amenity of neighbouring properties - including overshadowing and view impacts - resulting from the proposed built form, bulk and scale, and from inadequate building separation.

7. Unsatisfactory amenity for future occupants given the extent of excavation and the configuration of habitable rooms sited below natural ground level.

8. Unacceptable heritage impacts upon the Conservation Area - Landscape, which result from excessive excavation, the extent of site coverage and proposed bulk and scale.

9. Failure to meet the requirements of the Draft Housing SEPP for a 1,000sqm minimum site size and the extent of deep soil.

10. The proposal not being in the public interest.

11. Inadequate waste management and recycling facilities - able to be resolved by way of condition of consent.

12. Inadequate landscape and biodiversity - able to be resolved by way of condition of consent.

13. Public domain plans - able to be resolved by way of condition of consent.

14. Insufficient information to assess view impacts and view loss.

15. Insufficient information to assess geotechnical impacts, including excavation.

16. Insufficient information to assess potential heritage impacts upon the adjacent Conservation Area - Landscape.

17. Insufficient information to assess potential acoustic impacts.

31. The parties and their experts now agree the final amended Application - reflected in Exhibit A in these proceedings (being the architectural plans), incorporates clarifications and design changes that collectively work towards resolving a number of these contentions.

32. Additionally, the agreed draft conditions of consent forming Exhibit 7 in these proceedings work towards resolving a further series of the contentions.

33. To that end, it is agreed between the parties that the final amended Application and agreed conditions of consent resolve Contentions 5, 11, 12, 13, 14, 15, 16 and 17, and hence these are no longer pressed by the Respondent.

The evidence

34. The Court was assisted by experts in planning and urban design, who conferred to prepare a joint expert report. The experts are Mr Stuart McDonald (planner) and Mr Timothy Williams (architect and urban designer) for the Respondent, and Mr George Karavanas (planner) and Mr Michael Hay (urban designer) for the Applicant. Their joint expert report forms Exhibit 5 in these proceedings.

35. At p2 of the joint report, the experts indicate they address Contentions 1-10 as set out in the Further Amended Statement of Facts and Contentions (Exhibit 8). At pp 4-47 of the joint report, the experts further indicate there are effectively no areas of agreement in relation to Contentions 1-10, leaving each of the contentions in contest.

36. The experts commenced oral evidence with reference to Contention 7, dealing with unsatisfactory amenity for future occupants given the extent of excavation and the configuration of habitable rooms sited below natural ground level.

37. Mr Karavanas and Mr Hay noted that the final amended Application situates all proposed bedrooms and primary living spaces within Unit 1 at the ground floor along the northern frontage of the building with good outlook and amenity available above natural ground level.

38. Mr Karavanas then noted that at level one, Units 2 and 3 each situate bedrooms 1 and 2 deeper within the plan, where - after site excavation - they would not be subterranean. In this configuration, bedrooms 1 each have an oblique outlook to the north, while bedrooms 2 each have an outlook towards the respective site boundary approximately 3m away.

39. In reply, Mr Williams offered his view that the four affected bedrooms at level 1 remain “effectively subterranean”, situated low relative to natural ground level across the two side boundaries and in a manner that will result in less effective natural or cross ventilation due to the form of the subject proposal and proximity of existing neighbouring properties.

40. Mr Williams acknowledged that the proposed landscape design will mitigate and soften the constrained sense of outlook, but that on balance, the four bedrooms in this location are compromised in their capacity to achieve acceptable amenity.

41. Turning to the related question of proposed building height, bulk and scale, Mr McDonald noted that the height of building exceedance evident in the Application directly contributes to additional overshadowing and a corresponding reduction in amenity to the side window at 31 Kimberley Street.

42. When considering the objectives of the height of building development standard set out at cl 4.3(1)(a) of the WLEP, which seeks to “preserve” the environmental amenity of neighbouring properties, Mr McDonald gave his view that the additional overshadowing created by the height exceedance could not be justified since the neighbouring property’s overall amenity is not preserved, but reduced.

43. With particular reference to drawing DA402 from within Exhibit A - a photomontage depicting the Application from the north across Diamond Bay - the experts each offered a view as to the appropriateness of the relationship between the proposal and the existing context.

44. Mr McDonald gave his view that the top floor (which contributes to the height of building exceedance), is too bulky when viewed from the north, and that although the upper-most floor is set back from those below, and begins to recede, it remains too prominent.

45. Additionally, in Mr McDonald’s view, the size, form and location of the projecting balconies at levels 1, 2 and 3, which extend beyond the adjoining rear setbacks, further contribute to the unacceptable bulk and scale of the proposal.

46. In reply, Mr Karavanas noted the experts agree that the Kimberley Street presentation of the proposal is acceptable as a broadly two-storey form. From the north - in Mr Karavanas’ view - the proposal is contextually compatible despite the height of building exceedance, adopting a similar height to each of the immediate neighbours. He noted the setback upper level is less perceptible from the north, and although the balconies of concern to Mr McDonald do project forward of the prevailing building line, it is possible for the western neighbour at 25 Kimberley Street to conceivably one day add a balcony in a similar location.

47. Mr Williams noted the balconies in question within the proposal do “bulge” forward, whilst similar balconies at 31 Kimberley Street are recessed within the primary building form.

48. Mr Williams also described the upper-most level - which contributes to the height of building exceedance - as being “heavily framed” rather than recessive.

49. Mr Hay noted the general limitations of a more elevational view (as depicted in drawing DA402) and observed that the proposal was strongly articulated with a composition of strong horizontal and vertical elements. In Mr Hay’s view, the proposal is compatible with the wider context, particularly when considering the existing developments at 33 and 15A Kimberley Street, both of which sit well forward of the immediate neighbours adjacent to the subject site.

50. At pp 4-11 of the joint report, Mr McDonald, Mr Hay and Mr Karavanas each elaborate on their respective views regarding the merits, or otherwise, of the proposed exceedance of the height of building development standard. Similarly, at pp 12-19 of the joint report, Mr McDonald, Mr Williams, Mr Hay and Mr Karavanas each elaborate on their views regarding the merits, or otherwise, of the proposed exceedance of the FSR development standard.

51. Turning next to the Respondent’s Contention 3, regarding site size, Mr McDonald stated his view that the Applicant’s cl 4.6 written request (forming Exhibit H in these proceedings), seeking to vary the relevant development standard for minimum site size as set out in cl 40(2) in the SEPP Seniors, is able to be supported.

52. In forming his view, Mr McDonald noted that the extent of non-compliance with the 1,000sqm development standard for minimum site size is relatively minor, and that he was satisfied the justification provided by the Applicant adequately demonstrated that strict compliance with the site size control is unreasonable or unnecessary in the circumstances of this case, and further, that there are sufficient environmental planning grounds to justify the extent of non-compliance.

53. Turning next to the Respondent’s Contention 7, regarding the resultant amenity available to future occupants within the site as a consequence of the proposal, Mr Williams addressed the Applicant’s revised Design Verification Statement (forming Exhibit E in these proceedings), stating that the most recent revision, tendered on the second day of the hearing, did not alter his earlier oral evidence regarding the unacceptability of the four bedrooms situated close to existing ground at level 1.

54. In restating this view, Mr Williams also noted the failure of the proposal to meet the targets for side setbacks and building separation set out at 3F-1 of the ADG.

34. Elaborating on this point, Mr Williams noted that the ADG encourages building separation of 9m where 3.5m is proposed. In the context of a relationship between adjacent habitable and non-habitable rooms and where opportunities for cross viewing exist, Mr Williams expressed his concern that this was an unacceptable relationship, although he also accepted that some of these impacts could be mitigated against with translucent glazing or raised sill heights.

35. The planning experts next provided oral evidence on the Respondent’s Contention 6, related to environmental impacts upon neighbouring properties, particularly view impacts and view loss.

36. With reference to the Applicant’s view analysis, which forms a component of Exhibit D in these proceedings, Mr McDonald provided a summary of his assessment of view impacts and view loss. His oral evidence elaborates on the more detailed reasoning provided by the experts in the joint report at pp 31-42.

37. It is generally accepted between the experts that view impacts created by the proposal are limited to the existing property at 25 Kimberley Street. There are three levels at 25 Kimberley Street, which have windows addressing the side boundary with the subject property, and which will suffer from some extent of view impact or view loss.

38. Mr McDonald gave oral evidence regarding his assessment of view impacts to the upper-most level of 25 Kimberley Street. From the room (a bedroom or study) in the northeast corner of the property, Mr McDonald described the view loss - affecting one window addressing the side boundary - as “moderate” in impact and acceptable given the existence of a second north-facing window unaffected by the proposal.

39. Mr McDonald then assessed the view impacts from the next side boundary-facing window at the upper level of 25 Kimberley. This window serves a living room and Mr McDonald assessed the impact on views as “severe” and unacceptable. Elaborating, Mr McDonald indicated that the final form of the proposal doesn’t reflect the principles of view sharing, and given the underlying concerns for bulk and building height, that a more sophisticated design could achieve improved sharing of the available views.

40. Mr McDonald next assessed the third window addressing the side boundary at the upper level of 25 Kimberley Street. This window also serves the living room and Mr McDonald assessed the impact on views as “devastating” but acceptable primarily given that the extent of view impacts evident from this window are created by those portions of the Application which are more consistent with the relevant building form controls.

41. Moving to the mid-level of 25 Kimberley Street and repeating his assessment of view impacts, Mr McDonald described the view loss from the bedroom or study in the northeast - as “moderate” in impact and acceptable given the existence of a second north-facing window unaffected by the proposal.

42. Mr McDonald assessed the view impacts from the next side boundary-facing window at the mid-level of 25 Kimberley. This window serves a living room and Mr McDonald assessed the impact on views, which include a highly valued water view, as “devastating” but acceptable again primarily because the extent of view impacts evident from this window are created by those portions of the Application which are more consistent with the relevant building form controls.

43. Mr McDonald finally assessed the third window addressing the side boundary at the mid-level of 25 Kimberley Street. This window also serves the living room and Mr McDonald assessed the impact on existing views, which are quite limited, as being acceptable given the extent of view impacts evident from this window are created by those portions of the Application which are more consistent with the relevant building form controls.

44. When questioned about view loss and view impacts experienced from other properties in the vicinity, Mr McDonald stated that he was satisfied that from those other properties analysed, the proposal creates only reasonable impacts upon views. These other analysed properties include the lower level of 25 Kimberley Street, 10 Kimberley Street, 14 Kimberley Street, and units 1, 2, 3, 6, 7 and 8 at 6 Kimberley Street.

45. In summary of his oral evidence on this contention, Mr McDonald confirmed his opinion that unacceptable view loss and view impacts were limited to 25 Kimberley Street at the upper-level unit and confined to the more northerly, side boundary-facing living room window on this level.

Findings

67. I have determined that the final amended Application fails certain critical jurisdictional thresholds and for this reason may not be granted consent. My reasons are set out in the following paragraphs.

68. It is helpful to group the various live contentions in this case, and I now distill those remaining issues into a series of key planning and merit matters as follows:

1. If determined to be a relevant consideration, the adequacy or otherwise of the Applicant’s cl 4.6 written request seeking to justify a proposed variation to the height of building development standard as set out at cl 4.3 of the WLEP.

2. If determined to be a relevant consideration, the adequacy or otherwise of the Applicant’s cl 4.6 written request seeking to justify a proposed variation to the floor space ratio development standard as set out at cl 4.4 of the WLEP.

3. If determined to be a relevant consideration, the adequacy or otherwise of the Applicant’s cl 4.6 written request seeking to justify a proposed variation to the minimum site size development standard as set out at cl 40(2) of the SEPP Seniors.

4. Whether the Application meets jurisdictional and merit considerations relating to the proposed extent of excavation when assessed against cl 6.2 of the WLEP and the relevant objectives and controls set out in Part B14 of the WDCP.

5. Whether the Application should be refused as it results in unacceptable view impacts to 25 Kimberley Street. In considering these view impacts, making an assessment against the relevant objectives and controls set out in the WDCP, which seek to achieve view sharing, and including applying the planning principle established by Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).

6. Whether the Application satisfies merit considerations relating to the proposed side and rear setbacks, building separation, the achievement of adequate internal and external amenity, and the achievement of adequate visual and acoustic privacy when assessed against the relevant objectives and controls set out in the WDCP and against the relevant objectives and controls included within the ADG.

7. Whether the Application should be refused as it results in unacceptable impacts upon the visual and scenic values of the adjacent Conservation Area - Landscape.

8. Whether the Application should be refused as it fails to meet the requirements of the Draft SEPP Housing.

9. Whether the amended application is in the public interest having regard to the matters raised in residents’ submissions.

69. The key to resolving the first three of these remaining contentions, lies in determining the appropriate relationship between the WLEP (particularly its development standards for height of buildings and FSR) and the SEPP Seniors (particularly the extent of its applicability and calculation of site size).

70. The Court was directed to a number of the critical provisions within SEPP Seniors. Of particular note are the following:

1. At cl 2(2)(a) the SEPP makes clear it sets aside local planning controls in order to achieve its aims. And at cl 3(1) the SEPP makes clear that the defined term “environmental planning instrument” includes the WLEP.

2. Also at cl 3(1) it is clear that the defined term “floor space ratio” refers to a calculation including the area of the “allotment” on which the proposal is to be erected.

3. The SEPP makes clear the defined term “heritage conservation area” refers to that portion of the site zoned RE1 Public Recreation.

4. At cl 4(1)(a)(ii) the SEPP makes clear that seniors housing is permissible on the portion of the site zoned R3 Medium Density Residential. And similarly, at cl 4(6)(a), it is clear the SEPP does not apply to that portion of the site zoned RE1 Public Recreation.

5. Reinforcing the previous point, at cl 4A(1), it is also clear the SEPP does not apply to that portion of the site identified as being within a Conservation Area - Landscape, which happens also to coincide with that portion of the site zoned RE1 Public Recreation.

6. At cl 5(3) it is clear that, to the extent of any inconsistency, the SEPP will prevail over the WLEP.

7. At cl 40(2) the SEPP makes clear that minimum site size is a development standard, and the size of the site must be at least 1,000sqm in area. The parties agree this development standard is amenable to variation by way of a written cl 4.6 request under the WLEP.

8. At cl 50 the SEPP sets out a number of further standards, which cannot be used to refuse a development application. At cl 50(a) the relevant development standard for building height is 8m, and at cl 50(b) the relevant development standard for FSR is 0.5:1. Since the subject Application exceeds both these development standards, they do provide the consent authority with a basis to potentially refuse the Application.

71. As another relevant environmental planning instrument, the WLEP sets out a planning framework relevant to the Application. Development for the purposes of seniors housing and residential apartment buildings are both permissible within the R3 Medium Density Residential zone. The Application may be characterised as both. Of particular note are the following:

1. At WLEP cl 4.3 - Height of buildings - the relevant development standard is 9.5m.

2. At WLEP cl 4.4 - Floor space ratio - the relevant development standard is 0.6:1.

3. At WLEP cl 4.5(4) - Calculation of floor space ratio and site area - specific exclusions are set out, making clear the area of that portion of the site zoned RE1 Public Recreation is to be discounted from the calculation of site area for the purposes of development.

4. At WLEP cl 5.1 - Relevant acquisition authority - it is made clear that the portion of the site zoned RE1 Public Recreation is intended to be acquired by the Respondent.

72. The Court was also directed to a series of authorities relevant to the question of the applicability of SEPP Seniors and its interaction with the WLEP.

73. The first is S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd t/as Planners North v Northern Regional Planning Panel (No 2) [2019] NSWLEC 199, where at [66] and [91], Pain J accepted, in the particular circumstance of that case, that SEPP Seniors should apply to a portion of the site identified as “proximity area for coastal wetlands”.

74. The next authority is Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74, where at [39-46], Pain J resolved the various terms “lot”, “site” and “land” in the calculation of site area and hence FSR.

75. The third authority is Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285 (Hastings Point), where the question of inconsistency between environmental planning instruments, similar to those of relevance to this matter, was determined.

76. The fourth authority is Eastern Suburbs Leagues Club Ltd v Waverley Council [2019] NSWLEC 130, where at [105], Moore J accepts that Hastings Point is an appropriate decision for his consideration in the matter before him.

77. The final authority the Court was referred to is Issa v Burwood Council [2005] NSWCA 38, where at [39], Pearlman AJA determines that the term “allotment” is to adopt its ordinary meaning.

“The precise identification of an “allotment” will depend on the facts and circumstances of each case. For example the identity of the area constituting an “allotment” might be derived from delineation of a lot or lots on a plan of subdivision (which may, but need not, be registered) or it might be derived from the physical boundaries of the area in question, or it might be derived from some agreement or other document specifying the limits of the area in question."

78. In determining the first three contentions in this matter, which relate to the interaction of the SEPP Seniors and the WLEP, and from there to the appropriate calculation of site size, and then to the applicability and calculation of FSR and height of building development standards, I set out my reasons below.

Site size (SEPP Seniors)

79. In determining the appropriate site size, I accept the submissions of Mr Staunton for the Respondent. Specifically, this means that for the purposes of applying SEPP Seniors to the Application, I find the calculation of site size must exclude that portion of the site zoned RE1 Public Recreation and include only that portion of the site area zoned R3 Medium Density Residential.

80. The total site area of the two legally described lots forming the site is 1,272.28sqm. That portion of the site mapped within the R3 Medium Density Residential zone is 943.75sqm.

81. Clause 40(2) - Site size - of SEPP Seniors establishes a development standard of “at least 1,000 square metres.” On the basis I have determined the site size to be 943.75sqm, this represents a 56.25sqm shortfall, equivalent to a 5.6% variation of the development standard.

82. Pursuant to cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the SEPP Seniors’ development standard for site size (Exhibit H in these proceedings).

83. In oral evidence, Mr McDonald for the Respondent gave his view that this cl 4.6 written request “justifies the contravention of site area for the purposes of seniors development.”

84. I accept Mr McDonald’s evidence and am satisfied the written request adequately justifies the variation sought. At pp 5-10 of Exhibit H, Mr Karavanas sets out the manner by which the inferred objectives of the SEPP’s minimum site size development standard are achieved despite the non-compliance. I accept that the Application’s achievement of adequate deep soil and landscape area is critical to the success of the justification.

Floor space ratio and height of building development standards (WLEP)

85. Next, I turn to the relationship between the SEPP Seniors and the WLEP, and to the extent of any inconsistency in the application of development standards for FSR and height of building. In this, I accept Mr Staunton’s submissions for the Respondent - that there is no inconsistency in the circumstances of this case.

86. Clause 40 of the SEPP Seniors sets out a number of specific development standards, including for site frontage, site size and also for building height (in zones where residential flat buildings are not permitted). I accept these are development standards where, in the event of an inconsistency, the SEPP would set aside provisions of the WLEP - as it does for site size in this matter.

87. In a similar manner, cl 50 of the SEPP Seniors sets out a number of further development standards “…that cannot be used to refuse development consent…”. These include building height (8m) and density and scale (0.5:1 FSR).

88. In the context of this particular matter, it is common ground that the Application exceeds these two development standards, making height of building beyond 8m and FSR beyond 0.5:1 legitimate grounds for a potential refusal.

89. Rather than creating an inconsistency with the equivalent development standards for height of building and FSR within the WLEP, I find that the SEPP Seniors and the WLEP remain in harmony.

90. This has the practical effect of allowing development standards for height of building and FSR, set out at cll 4.3 and 4.4 of the WLEP, to stand. Hence, I am satisfied the Application is to be governed by a maximum height of building development standard of 9.5m and a maximum FSR development standard of 0.6:1.

91. It is agreed between the parties that both development standards are amenable to a cl 4.6 written request seeking to justify a proposed variation.

The Application - proposed variation to FSR and height of building

92. The Court heard oral evidence, which focused the experts’ disagreement regarding environmental impacts of the Application to:

1. View impacts and view loss from a number of side windows at 25 Kimberley Street attributable to the proposed bulk, scale, density and resultant FSR of the Application.

2. Some reduction in solar access to the side window and clerestory at 31 Kimberley Street attributable to that portion of the proposal which exceeds the 9.5m height of building development standard set out at cl 4.3 of the WLEP.

93. Ultimately, it is these impacts that prove to be a fatal weakness of the Application since they follow the proposed variation of the height of building and FSR development standards, and are not adequately justified by the Applicant’s separate cl 4.6 written requests.

94. Turning firstly to the cl 4.6 written request which seeks to justify the proposed departure from the development standard for FSR as set out at cl 4.4 of the WLEP. I have previously determined the site size to be 943.74sqm and the relevant FSR development standard to be 0.6:1.

95. The Applicant has prepared a cl 4.6 written request, forming part of Exhibit D in this matter. At pp 3-4 of the written request, Mr Karavanas calculates the total gross floor area of the Application to be 1,087.78sqm, and the resultant FSR therefore to be 1.15:1, a variance equivalent to 521.53sqm or 92% of the development standard.

96. I note that at pars 15-17 of the joint report (Exhibit 5) Mr McDonald sets out his reasons for assessing the proposed FSR as being excessive. These reasons were also summarised in his oral evidence and are primarily attributable to view impacts upon the neighbouring property at 25 Kimberley Street.

97. Consistent with cl 4.6(3) of the WLEP, the Applicant’s written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of this particular case, and that there are sufficient environmental planning grounds to justify the contravention.

98. Further, and following the planning principle established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), the written request adopts Webhe way 1, seeking to establish that the objectives of the development standard are achieved notwithstanding the non-compliance.

99. Clause 4.6(4) of the WLEP then requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

100. In this case, the relevant objectives of cl 4.4(1) of the WLEP are:

(a)   to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,

(b)   to provide an appropriate correlation between maximum building heights and density controls,

(c)   to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,

(d)   to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.

101. Objective (d) of cl 4.4(1) places particular emphasis on the phrase “…preserve the environmental amenity of neighbouring properties…”

102. While I accept this phrase requires environmental amenity to be considered holistically and is intended to be able to facilitate change and allow amenity trade-offs, in the circumstances of this case I can discern no trade-offs, only a net reduction in amenity for the neighbouring property at 25 Kimberley Street attributable to the additional FSR sought and the view impacts it brings with it.

103. A more skilfully sited building form, with reduced bulk and scale (even if still exceeding the FSR development standard), may have delivered a net preservation of environmental amenity.

101. For this reason, I determine that the Applicant’s cl 4.6 written request to vary the FSR development standard must fail.

102. For similar reasons, the cl 4.6 written request seeking to justify the departure from the development standard for height of building set out at cl 4.3 of the WLEP also fails.

103. I have previously determined the relevant height of building development standard to be 9.5m.

104. Pursuant to the WLEP, the Applicant has prepared a cl 4.6 written request, forming part of Exhibit D in this matter. At p 3 of the written request, Mr Karavanas calculates the maximum height of the Application to be 10.73m (but which I have determined to be 10.67m based on a close reading of Exhibit A, drawing DA201), and the resultant exceedance therefore to be equivalent to 1.17m or 12.3% of the development standard.

105. I note that at pars 1-14 of the joint report (Exhibit 5) Mr McDonald sets out his reasons for assessing the proposed height of building as being excessive. These reasons were also summarised in his oral evidence and are attributable to additional overshadowing to the neighbouring property at 31 Kimberley Street.

106. Consistent with cl 4.6(3) of the WLEP, the Applicant’s written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of this particular case, and that there are sufficient environmental planning grounds to justify the contravention.

107. Further, the written request adopts Webhe way 1, seeking to establish that the objectives of the development standard are achieved notwithstanding the non-compliance.

108. Clause 4.6(4) of the WLEP then requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

109. In this case, the relevant objectives of cl 4.3(1) of the WLEP are:

(a)   to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

(b)   to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

(d)   to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.

113. Objective (a) of cl 4.3(1) similarly places particular emphasis on the phrase "…preserve the environmental amenity of neighbouring properties…".

114. Again, while I accept this phrase requires environmental amenity to be considered holistically and is intended to be able to facilitate change and allow amenity trade-offs, in the circumstances of this case I can discern no trade-offs, only a net reduction in amenity for the neighbouring property at 31 Kimberley Street attributable to the additional height of building sought and the overshadowing it brings with it.

115. And similarly, I conclude that a more skilfully sited building form, with reduced height (even if still exceeding the height of building development standard in places), may have delivered a net preservation of environmental amenity.

116. For this reason, I determine that the Applicant's cl 4.6 written request to vary the height of building development standard must also fail.

117. Since the Application has failed at both the FSR and height of building development standards, the appeal must be dismissed before any further jurisdictional or merit considerations can be undertaken.

118. Accordingly, pursuant to s 39 of the LEC Act, I now move to dismiss the appeal.

119. The Court notes that:

1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the Development Application with the consent of the Respondent.

2. The Respondent has uploaded the amended Development Application to the NSW Planning Portal on 7 September 2021.

3. The Applicant has tendered the amended Development Application as Exhibit A with the Court on 7 September 2021.

Orders

120. The Court orders that:

1. Pursuant to s 8.15(3) of the EPA Act, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application, in the amount of $2,500 within 28 days of the date of these orders.

2. The appeal is dismissed.

3. The exhibits, other than 5, 8, A, and D, are returned.

………………………

M Pullinger

Acting Commissioner of the Court

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Decision last updated: 17 December 2021