Manning Property Development Pty Ltd v Waverley Council

[2013] NSWLEC 1233

Land and Environment Court

New South Wales

Case Title:	Manning Property Development Pty Ltd v Waverley Council
Medium Neutral Citation:	[2013] NSWLEC 1233
Hearing Date(s):	31 October, 1 November 2013
Decision Date:	11 December 2013
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1.The Appeal is upheld. 2. Development Application DA-152/2013 for the demolition of existing buildings and construction of a residential flat building at 403 and 405 Old South Head Road North Bondi is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, 5, A, E, F, H and J.
Catchwords:	DEVELOPMENT APPLICATION - Residential flat building - Non-compliance with Floor Space Ratio development standard - Vehicular access
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development State Environmental Planning Policy (Infrastructure) 2007 Waverley Local Environmental Plan 2012
Cases Cited:	Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Manning Property Development Pty Ltd (Applicant) Waverley Council (Respondent)
Representation
- Counsel:	Ms S Duggan SC (Applicant) Mr M Staunton (Respondent)
- Solicitors:	Mr V Conomos, Conomos Legal Ms C Morton, Sparke Helmore
File Number(s):	10411 of 2013

JUDGMENT

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the respondent Council of development application DA-152/2013 for demolition of existing dwellings and construction of a residential flat building containing 18 units with basement parking for 16 vehicles at 403 and 405 Old South Head Road North Bondi (the site).

2. The site is located on the eastern side of Old South Head Road on the corner of Roe Street. The site has a total area of 866.2 sq m. The Royal Sydney Golf Club is located on the western side of Old South Head Road opposite the site. The locality in the immediate vicinity of the site includes a mix of single storey and two storey free-standing dwelling houses, semi-detached dwellings, and residential flat buildings. The site is zoned R3 Medium Density Residential under the Waverley Local Environmental Plan 2012 (the LEP). The land adjoining the northern and south boundaries of the site on Old South Head Road is zoned R3 Medium Density Residential. The land to the rear of the site adjoining the eastern boundary and beyond to Roe Street is zoned R2 Low Density Residential under the LEP.

3. Existing on the site at 403 Old South Head Road is a single storey dwelling house with vehicular access to Old South Head Road. Existing on the site at 405 Old South Head Road is a two-storey dwelling house with detached garage and vehicular access to Roe Street.

4. On 28 May 2013 the Council issued a complying development certificate for the demolition of the existing dwelling and construction of a new twostorey dwelling and swimming pool at 403 Old South Head Road. In relation to 405 Old South Head Road, the Council granted development consent in 2009 for the demolition of existing structures and erection of a new 3 storey residential flat building with 6 units; and in 2012 the Court granted consent for the demolition of the existing dwelling and construction of a three storey residential flat building with an attic level comprising 8 units.

5. The proposed development across both 403 and 405 Old South Head Road provides basement parking for 15 vehicles and one visitor vehicle, with vehicular access to Roe Street; three levels plus an attic, containing a mix of one and two bedroom residential units; pedestrian entry from Roe Street; and landscaping.

Issues

1. The Council's Statement of Facts and Contentions (exhibit 1) raised contentions concerning compliance with the design principles of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65); non compliance with the floor space ratio (FSR) development standard in the LEP; non compliance with the provisions of the Waverley Development Control Plan 2012 (DCP); the public interest, namely the matters raised by the objectors in so far as those matters coincide with the Council's contentions, specifically the location of the driveway; and two matters which could be addressed by imposition of conditions, being archival recording of a WW2 bomb shelter on 405 Old South Head Road, and provision of a revised landscape plan.

2. Many of the issues in dispute were resolved during the course of the hearing through discussion between the experts and amendments to the plans. The Council's position was that the issues remaining related to three interfaces, being the interface between the R3 and R2 zones; the physical interface on the eastern boundary of the site; and the interface to the southern side of the site.

Evidence

1. The hearing commenced on site with a view. Evidence was given on site by four objectors, the owners of 1, 2, 7, and 40 Roe Street. The view included a view from 1 Roe Street, which adjoins the site, and from the driveway of 2 Roe Street on the opposite side of the road. Mr Lanarch expressed concerns for loss of visual and acoustic privacy, excessive height and bulk of the proposed development, loss of sunlight to his kitchen, living and back yard areas, the condition of the retaining wall between his property and 405 Old South Head Road, stormwater, and the proximity of the proposed driveway to his property. Mr Ford raised concerns about bulk, visual, noise privacy and overshadowing impacts of the proposed development. He and Mr Linker and Mr Phillips raised concerns about the proposed vehicular access off Roe Street, given existing traffic issues in Roe Street, and expressing the opinion that driveway access should be on Old South Head Road.

2. The written submissions received by the Council during its consideration of the application were in evidence (exhibit 2), and included concerns raised as to bulk and scale, impacts on streetscape, implications for off street parking, traffic and safety, amenity impacts including privacy, overshadowing and building separation, noise impacts, and traffic during construction. The written submissions included a report by Lyle Marshall & Associates Pty Ltd prepared on behalf of 14 families addressing issues relating to traffic, parking and the location of the driveway.

3. The applicant relied on expert evidence provided by Ms Gabrielle Morrish (urban design), Mr Anthony Betros (planning), and Mr Graham Pindar (traffic). The Council relied on expert evidence provided by Ms Alison McCabe (planning) and Mr Tim Rogers (traffic).

Consideration

Planning and urban design issues

1. Part 2 of SEPP 65 provides design quality principles, and those relevant to this appeal are Principle 3: Built form (cl 11), Principle 4: Density (cl 12), Principle 5: Resource, energy and water efficiency (cl 13), Principle7: Amenity (cl 15), Principle 8: Safety and security (cl 16), and Principle 10: Aesthetics (cl 18).

2. The aims of the LEP are provided in cl 1.2. Clause 2.3(2) requires the consent to have regard to the objectives for development of the relevant zone when determining a development application. The objectives of the R3 zone are:

   · To provide for the housing needs of the community within a medium density residential environment.

   · To provide a variety of housing types within a medium density residential environment.

   · To enable other land uses that provide facilities or services to meet the day to day needs of residents.

3. Part 4 of the LEP provides the principal development standards, including building height (cl 4.3), and FSR (cl 4.4). It was not in dispute that the proposed development complies with cl 4.3, and exceeds the FSR specified in cl 4.4.

4. The relevant provisions of the DCP are those in Part 2 Multi-Unit and Multi-Dwelling Housing. Part 2.2 Site, Scale and Frontage includes the objectives (b) "to ensure development sites have adequate street frontage to meet side setback and building requirements", and (d) "to encourage amalgamation of allotments to provide for improved design outcomes". The Controls include a requirement that an applicant proposing to exceed the FSR specified in cl 4.4 of the LEP justify that the proposed FSR is acceptable, and specifies the matters that must be addressed, which include compliance with building height and side setback controls, visual aspects, acceptability of amenity impacts on adjacent properties with regard to sunlight, visual and acoustic privacy, and that a high design quality is achieved. Part 2.3 Height provides the objectives of the maximum height provisions, and the controls provide for a maximum number of three storeys, permitting an attic level or part additional floor provided it is fully contained within the roof form and does not exceed the overall height limit. Part 2.5 Setbacks specifies at 2.5.1 that street setbacks must be consistent with the predominant building line setback along the street. Part 2.5.2 Side and Rear Setback provides for a minimum side setback of 4.5m. Part 2.6 Length and Depth of Buildings provides for a maximum length along the street at 24m, and maximum depth of 18 m. Part 2.7 Building Separation provides for building separation for internal courtyards and adjoining sites to increase in proportion to building height: for the proposed development the control is 12 m between habitable rooms and balconies, 9 m between habitable rooms and non habitable rooms, and 6m between non habitable rooms. Part 2.10 Vehicular Access and Parking provides that "(d) carpark access is to be provided from secondary streets or lanes where possible". Part 2.12 Landscaping provides for a minimum of 30% of the site area to be provided as landscaping, with 15% provided as deep soil zone. Part 2.15 Solar Access and Overshadowing provides at (c) that new development should not reduce the solar access of solar collector/s of an adjoining property to less than 2 hours per day in mid winter, and (d) that direct sunlight to north facing windows of habitable rooms and all private open space areas of adjacent dwellings should not be reduced to less than 3 hours between 9am and 3pm in mid winter. Part 2.17 Visual Privacy and Security provides as objectives to have adequate visual privacy levels for residents and neighbours; to maximise outlook and views from principal rooms and private open space without compromising visual privacy; and to ensure buildings are safe and secure for residents and visitors. Control (d) provides that above ground open spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate overlooking, which includes offset windows, recess balconies, provide louvres or screens, use vegetation as a privacy screen and incorporate planter boxes to increase visual separation. Part 2.21 Attic and Roof Design provides controls for part additional roof/flat roof attics, which include a setback of 2m from the edges of the building below, that they not exceed 50% of the floor area of the floor below, that they are connected to a unit on the level below, and that they not be used where they compromise the privacy of the residents within the development or within neighbouring buildings.

5. Ms Morrish, Mr Betros and Ms McCabe provided two joint reports (exhibits 3 and G), the latter provided after they had attended the site view and heard the evidence provided by the objectors. The experts were agreed that there are three key issues with the application, being the separation to the east (1 Roe Street) and south (399-401 Old South Head Road); the relationship and impact of the driveway with 1 Roe Street due to the zone transition; and the non-compliance with the FSR and the issues that arise at the zone transition namely potential privacy impact to 1 Roe Street, separation, size and scale of the attic level.

6. The experts disagreed as to the relevance of the existing consents in the assessment of this application, however they agreed that the presentation to Roe Street and Old South Head Road as now proposed in respect to the scale, form and setback of the proposed development to the street is appropriate having regard to the context of the site; and that it provides an improved outcome, and an improved or equivalent outcome, relative to the existing approvals for 405 and 403 Old South Head Road respectively. In particular, they agreed that the reorientation of the apartments with the balcony to the street and greater separation of the balcony to the eastern boundary is an improved privacy outcome for 1 Roe Street. Reduced overshadowing, increased setbacks and use of obscure glass provide an equivalent or improved outcome relative to the existing approval for 399-401 Old South Head Road.

7. In relation to the separation to the east, being 1 Roe Street, the experts agreed that the proposed development does not contribute to any additional overshadowing between 9am and approximately 1.30pm, equating to 4.5 hours of unaffected solar access to the existing dwelling and its rear garden, and that the only impact to solar access in the rear garden of 1 Roe Street is at 3pm for the far eastern semi. The proposed development provides additional sunlight at 2pm to two of the central windows, and results in a slight reduction in sun access to the rear window at 2pm.

8. The DCP requires at cl 2.5.2 a minimum rear setback to 1 Roe Street of 6 m. The setbacks were proposed between 8.45m to the balcony of units 7 and 12, 8.8m from units 1 and 6 windows, 10.1m at its minimum on the second floor for the window to unit 11, and to 12.8m-13.65m for the wall of the bedrooms to unit 11 on the attic floor. The experts agreed on amendments to the plans for units 6, 7 and 12 which increase the setback on that boundary to 10.1m for unit 6, and to 10.2m to the outer edge of the balcony and 12.4m to the glazing line for unit 7 and unit 12.

9. The experts agreed on retention of the Murraya on the south eastern corner of the site; a modified treatment for the side boundary fencing; and provision of louvres for east facing rooms and balconies.

10. In relation to the separation to the south, namely 399-401 Old South Head Road, the experts agreed that a 12m separation from the boundary is not required to achieve development potential for 399-401 Old South Head Road. Ms McCabe was of the opinion that a 6m separation, providing 50%of the Residential Flat Design Code separation requirement, would achieve the objectives of the controls; Ms Morrish and Mr Betros were of the opinion that the proposed 4.5m is compliant with the DCP controls, allows for generous landscaping to the side boundary and a grassed private open space for unit 4, and for access to the rear common open space as well as privacy buffering to unit 3, thus meeting the objective in relation to open space, and more than 50% of that setback is maintained as deep soil. In their second joint report, the experts agreed on requirements for splashback height windows and obscure glass and louvres to address privacy issues along the southern boundary.

11. In the second joint report the experts stated their agreement that the amendments to the plans suggested in their reports provide for reasonable levels of privacy and sunlight retention and address the outstanding matters of contention. They noted that the increased setbacks provide for improved transition to 1 Roe Street and also address matters relating to visual bulk; the recommended landscape conditions and changes to the driveway further improve the relationship between the site and 1 Roe Street; and the changes address concerns regarding separation and amenity issues raised in the contentions.

12. I accept the evidence of the planning and urban design experts, and based on that evidence I am satisfied that the development as now proposed is consistent with the design principles of SEPP 65, and meets the objectives of the R3 zone, and the objectives and controls provided in Part 2 of the DCP, in particular, the controls relating to building height, setbacks, and landscaping. With the amendments agreed to by the experts, including the reconfiguration of balconies on the eastern side and provision of louvres and other privacy screening measures, I am satisfied that the proposed development meets the objectives and controls of parts 2.15 Solar Access and Overshadowing and 2.17 Visual Privacy and Security of the DCP. I agree with the applicant that the increased setbacks, which exceed those required under the controls, the modified fencing, the retention of the Murraya and revised landscaping proposed along the eastern boundary, assist in providing an appropriate level of amenity internally for the proposed development and an appropriate protection of the amenity of the occupants of 1 Roe Street. I also agree that with the privacy treatments agreed to between the experts, and based on their agreement as to solar access and overshadowing, the impact on 399-401 Old South Head Road is acceptable, and that the interface on the southern side of the proposed development is appropriately managed.

Variation of the FSR development standard

1. Clause 4.4(2) of the LEP provides for a maximum FSR of 0.9:1. As a consequence of the amendments agreed between the planning and urban design experts during the course of the hearing, it was agreed that the FSR of the development as now proposed is 1.17:1, instead of 1.19:1.

2. The Council contended in its Statement of Facts and Contentions that as a result of the breach of the FSR control, the proposed development is excessive in bulk and scale, resulting in unacceptable amenity impacts to adjoining properties, and that the proposed development is an overdevelopment of the site contrary to the objectives (b), (c) and (d) of the development standard. The Council further contended that the noncompliance resulted in a built form not compatible with existing and future character of the area in the immediate vicinity of the site; and that the additional FSR, siting form and scale of the development results in overshadowing and privacy impacts.

3. The planning and urban design experts addressed these issues in their joint reports, and in the second joint report agreed that the amendments to the plans recommended in both reports address issues relating to visual bulk to the degree where they all support a variation of the FSR development standard. Based on that evidence, the Council's position was that the proposed development now provides appropriate transition and presentation to the adjoining properties and there would be no basis to refuse consent on this ground.

4. While the experts and the parties agreed that it was appropriate to vary the FSR development standard, cl 4.6 requires the Court to consider the matters identified in cl 4.5(3) and to be satisfied of the matters identified in cl 4.6(4) before there is power to grant development consent. Clause 4.6 provides:

   4.6 Exceptions to development standards

   (1) The objectives of this clause are as follows:

   (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
   (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

   (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
   (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

   (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
   (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

   (4) Development consent must not be granted for development that contravenes a development standard unless:

   (a) the consent authority is satisfied that:
   (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
   (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
   (b) the concurrence of the Director-General has been obtained.

   (5) In deciding whether to grant concurrence, the Director-General must consider:

   (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
   (b) the public benefit of maintaining the development standard, and
   (c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

1. The applicant has provided a written request (exhibit C) which seeks to demonstrate that strict compliance with the maximum FSR of 0.9:1 is unreasonable or unnecessary, as the proposal satisfies the relevant objectives of the FSR standard; satisfies the objectives of the R3 Medium Density Residential zone; is consistent with relevant State and Regional planning policies; provides for a better planning outcome; has sufficient environmental planning grounds to permit the variation; and is in the public interest.

2. Clause 4.4 provides the following objectives for the FSR standard:

   (1) The objectives of this clause are as follows:

   (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, scale, streetscape and existing character of the locality,
   (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.

3. The applicant's written request addresses the relevant objectives (b), (c) and (d) of cl 4.4, noting that the proposed development is compliant with the statutory overall height and DCP wall height and provides a three storey building with part level above consistent with the form of development contemplated by the R3 zoning, and is sited in a compliant or better than compliant manner on the site; the proposed bulk scale and character is consistent with the existing medium density built forms to the south along Old South Head Road, and achieves an appropriate transition between the lower scale development to the east and the medium density built forms typical along Old South Head Road; and that given compliance with wall height and overall height limits, setbacks, landscaped area including deep soil planting zones, and articulated facades, provides a built form within the limitations of a reasonable overall scale of development with a resultant appropriate FSR capable of being accommodated on the site, with a built form that preserves environmental amenity of neighbouring properties and minimises adverse impacts on amenity.

4. The written request addresses the objectives of the R3 Medium Density Residential zone, and states that the proposed development provides for an increase in residential accommodation and a variety in unit layouts and types, and that the variation of the FSR standard allows for additional housing in an appropriate manner in a suitable location, with the benefits of amalgamation of the two sites providing for an integrated design outcome which is able to achieve setbacks and landscaped areas in comparison with the former separate approvals. The written request states that the departure from the maximum FSR will not result in any unreasonable adverse environmental amenity impacts such as overshadowing, privacy impacts or significant view loss to the southern adjoining residences above that which is otherwise permissible under the existing controls; that the proposed development maintains solar access and visual and acoustic privacy; and that by providing additional housing in a convenient location without adverse or unreasonable impacts on surrounding properties, the proposal is in the public interest.

5. Having regard to the expert planning and urban design evidence considered above, I am satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3), and that the proposed development is consistent with objectives (b), (c) and (d) of the FSR standard and with the first two objectives of the R3 Medium Residential zone, being to provide for the housing needs of the community and to provide a variety of housing types. In particular, the proposed development complies with the requirements of the height limit, and provides greater setbacks and landscaped area than required under the controls; the majority of the FSR is in that part of the building facing Old South Head Road rather than the adjoining R2 zoned area; and the treatment of that part of the façade facing the R2 zoned land includes screening and setbacks that exceed the DCP requirements, resulting in an overall scale of the building that is consistent with the objectives (b), (c) and (d) of the FSR standard. The Court can exercise the power conferred by cl 4.6(4) without the concurrence of the Director-General by reason of s 39(6) of the Land and Environment Court Act 1979, however by analogy with the requirements of a variation under State Environmental Planning Policy No 1, the matters identified in cl 4.6(5) would still be relevant: Wehbe v Pittwater Council (2007) 156 LGERA 446 at [41]. There are no identified matters of significance for State or regional environmental planning; and I am satisfied that there is no identified public benefit in maintaining compliance with the standard in the context where the proposed development conforms with the building envelope controls, satisfying height, setback and landscaping requirements, and provides good internal amenity without unreasonable or adverse impacts on surrounding properties.

6. Clause 4.6(4) is satisfied and development consent can be granted, notwithstanding that the FSR exceeds the maximum provided in the development standard.

Traffic, parking and vehicular access

1. Location of the vehicular access to the proposed development from Roe Street was raised as a significant issue by the objectors. There is presently vehicular access to 403 Old South Head Road from Old South Head Road, and the preference of the objectors was that this be retained. They also raised concerns about existing traffic and parking issues on Roe Street, which is narrow, is only able to be entered from Old South Head Road, and where cars waiting to turn right into Old South Head Road already create a blockage. Mr Lanarch expressed concerns that the driveway is too close to his property and should be moved further west.

2. The development as now proposed provides a driveway 6m wide, set 2m (rather than 1.2m) away from the eastern boundary adjoining 1 Roe Street. The planning and urban design experts agreed on treatment of the side boundary fence to the front yard of 1 Roe Street including a 1m high staggered vertical slat timber fence running along the eastern side of the driveway kerb southwards to 1m south of the front building alignment of 1 Roe Street, to provide protection from headlights and vehicle noise while providing for a landscaped outlook from the front yard of 1 Roe Street.

3. The report prepared by Lyle Marshall & Associates Pty Ltd recommended that the most appropriate location for the driveway was Old South Head Road, and was critical of an earlier Traffic Report provided to the Council by Mr Chris Hallam, which supported a driveway on Roe Street.

4. In their joint report Mr Pindar and Mr Rogers address the application of cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP), which provides:

   101 Development with frontage to classified road

   (1) The objectives of this clause are:

   (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and
   (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

   (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

   (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and
   (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

   (i) the design of the vehicular access to the land, or
   (ii) the emission of smoke or dust from the development, or
   (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

   (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

5. It was not in dispute that cl 101 applies to this development. As held by Preston CJ in Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 in relation to the question required by cl 101(2)(a):

   42....The phrase "where practicable" regulates the desired outcome ("vehicular access to the land is provided by a road other than the classified road"). The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road.

6. Mr Pindar and Mr Rogers noted that the key question is whether the proposed access onto Roe Street is practicable, and concluded that the driveway is in the optimal location to avoid any queuing impacts along Roe Street (being as far away from Old South Head Road as possible) as required under AS2890.1; the driveway design also complies with the requirements of AS2890.1 in all other respects, including grades, vertical clearances, width, pedestrian visibility and sight distance along Roe Street; and on that basis, they agreed that the proposed design is practicable. I accept that evidence, and I am satisfied that vehicular access from Roe Street is practicable, thus meeting the requirements of cl 101. I note the preference expressed in the Lyle Marshall & Associates Pty Ltd report for driveway access off Old South Head Road, however that report did not address the requirements of the Infrastructure SEPP.

7. Mr Pindar and Mr Rogers also addressed the issues of parking and queuing along Roe Street, noting that Roe Street is relatively narrow and that in the event of parking occurring along both sides of the street, as is presently the situation, manoeuvrability is difficult in the event that two vehicles encounter one another at the driveway. They agreed that the design of the driveway allows two way (passing) with no reversing, subject to the prohibition of parking for a distance of about 3m west of the driveway adjacent to the site: that would be the optimal arrangement. That would require "No Parking" signage across the driveway frontage over a total length of 9m, which would result in the loss of one parking space on the southern side of Roe Street. They noted that while the loss of a parking space is not desirable, a 9m section of no parking would provide safe and efficient access to and from the site and improve safety in Roe Street for other road users by providing a de facto passing bay on Roe Street, which in their opinion would outweigh the loss of one on street parking space. They agreed that if the Council did not support this signage, that would not be fatal to the application due to the very low probability of two vehicles meeting in this precise location combined with the low probability of vehicles being parked along both sides of Roe Street in circumstances where the proposed development provides sufficient parking to meet its normal peak demands.

8. The parties agreed on a condition (condition 25) that would require the applicant to apply under s 138 of the Roads Act 1993 to construct the driveway as shown on the plan agreed by Mr Pindar and Mr Rogers including a 3m No Stopping zone immediately to the west of the driveway. The proposed condition provides that if that application is not successful, the driveway crossing is to be a minimum of 5.5m wide, with a minimum setback from the eastern boundary of the site of 2m.

9. I accept the evidence of the traffic engineering experts that the driveway design and location as now proposed complies with the requirements of AS2890.1; and the planning and urban design evidence as to the proposed treatment of the eastern boundary with 1 Roe Street to minimise visual and other impacts. I agree with the parties that the proposed condition provides both the optimal arrangement recommended by the traffic experts, while providing an alternative arrangement if the application under s 138 of the Roads Act 1993 is not approved.

Conclusion

1. As discussed above, the development as now proposed incorporates a number of modifications to setbacks, configuration of balconies, privacy screening, and landscaping, to address many of the contentions raised by the Council, and concerns expressed by the objectors. The conditions agreed between the parties include conditions reflecting the modifications agreed by the planning and urban design experts (condition 2A, and condition 32 relating to the landscaping plan), a condition limiting excavation (condition 8), a requirement for a geotechnical report before the commencement of works (condition 18), archival recording of the bomb shelter on 405 Old South Head Road (condition 26), dilapidation reports (conditions 41, 72), and stormwater management (condition 23).

2. Based on the evidence before me, I am satisfied that the proposed development is consistent with the objectives of the R3 Medium Density Residential zone under the LEP; that it is consistent with the objectives and controls under the DCP; and that the requirements of cl 4.6 of the LEP are met so that there is power to grant consent notwithstanding the non-compliance with cl 4.4 of the LEP. While not raised as an independent contention by the Council, I am satisfied that the modifications to the plans relating to the driveway as agreed between the experts both comply with the requirements of the Infrastructure SEPP and address some of the concerns raised by the objectors.

3. I am satisfied that it is appropriate to grant development consent for the development as now proposed and subject to the conditions agreed between the parties. The orders of the Court are:

   1. The appeal is upheld.
   2. Development Application DA-152/2013 for the demolition of existing buildings and construction of a residential flat building at 403 and 405 Old South Head Road North Bondi is approved subject to the conditions in Annexure A.
   3. The exhibits are returned except for exhibits 1, 5, A, E, F, H and J.

   Linda Pearson
   Commissioner of the Court