Pallas Development Management Pty Limited trading as Fortis Development Group v Woollahra Municipal Council

[2023] NSWLEC 1005

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pallas Development Management Pty Limited trading as Fortis Development Group v Woollahra Municipal Council [2023] NSWLEC 1005

Hearing dates:

6-7 September 2022

Date of orders:

10 January 2023

Decision date:

10 January 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:
(1) The appeal is dismissed.
(2) The development application DA 535/2021 for the demolition of existing buildings and the construction of a five-storey commercial development with four levels of basement parking at 19, 21, 23-25 and 27 Bay Street, Double Bay, is refused.

(3) Exhibits A, B, E, F, 1, 2, 4 and 6 are returned, and the remaining exhibits are retained.

Catchwords:

APPEAL – development application – five-storey commercial development in commercial centre – bulk and scale – contravention of height and floor space ratio development standards – adequacy of the written requests – whether sufficient environmental planning grounds – whether the requests have demonstrated compliance is unreasonable or unnecessary

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

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

Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.6, 6.1

Cases Cited:

Abrams v Council of the City of Sydney [2019] NSWLEC 1583

Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009

Gan v City of Sydney Council [2021] NSWLEC 1370

Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712

Halepa Holdings Pty Limited v Woollahra Municipal Council [2022] NSWLEC 1237

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Loftex Commercial Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1697

Pallas Development Management Pty Limited trading as Fortis Development Group v Woollahra Municipal Council [2021] NSWLEC 1585

Pallas Development Management Pty Limited trading as Fortis Development Group v Woollahra Municipal Council [2022] NSWLEC 1048

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310

SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112

Thinq Net Pty Limited v Woollahra Municipal Council [2020] NSWLEC 1063

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

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Pallas Development Management Pty Limited trading as Fortis Development Group (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
T To (Applicant)
M Staunton (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/33118

Publication restriction:

No

Judgment

1. COMMISSIONER: The local centre of Double Bay includes much of Bay Street, which runs north-south from Double Bay wharf up to New South Head Road. Five allotments which together comprise 19-27 Bay Street (the site) are on the eastern side of Bay Street, around 50m from North South Head Road. Pallas Development Management Pty Limited trading as Fortis Development Group (Pallas) lodged a development application with Woollahra Council (the Council) for the demolition of the existing buildings on the site, and the construction of a five-storey commercial development with four levels of basement parking. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The development application has been amended throughout the course of the appeal proceedings. The proposed development, in its final form, includes a commercial tenancy on the ground floor and four commercial office tenancies on levels 1-4, with four basement levels containing 75 car parking spaces, 37 bicycle parking spaces, 8 motorcycle parking spaces and areas for storage, waste and plant rooms. The proposal also includes a through-site link at the ground floor for pedestrians connecting Bay Street and Gumtree Lane at the rear and vehicular access to the basement from Gumtree Lane. The proposed development also seeks trading hours of 8am to 6pm for the commercial premises on levels 1 to 4.

3. The Council remains opposed to the grant of development consent. It contends that the proposed development is of excessive height, bulk and scale by its breach of the height of buildings and floor space ratio (FSR) development standards, and that the written requests concerning those breaches are inadequate. Similarly, the Council contends that the proposed development is of excessive height, bulk and scale as it does not comply with the applicable building envelope controls and is therefore not consistent with the desired future character as described in those controls.

4. For the reasons that are set out below, I find that neither of the written requests concerning the breach of the height and FSR development standards adequately address that there are sufficient environmental planning grounds to justify the contravention of the standards, or that compliance is unreasonable or unnecessary. On that basis, the development application must be refused.

The site and the locality

5. The site comprises five allotments, as follows:

• Lot 1 in DP 90466, known as 19 Bay Street;

• Lot 1 in DP 196796, known as 21 Bay Street;

• Lot 12 in DP 85469 and Lot 13 in DP 81623, which are together known as 23-25 Bay Street; and

• Lot 14 in DP 200891, known as 27 Bay Street.

6. The site has a combined total area of 1026.6m², and is rectangular in shape with a primary street frontage of 30.43m to Bay Street, and a secondary street frontage of 30.51m to Gumtree Lane at the rear. The site has an average depth of approximately 33.72m and a fall of around 1.59m from the south-western corner to the north-eastern corner. Two significant street trees are located within the Bay Street road reserve directly adjacent to the primary street frontage of the site.

7. The site falls within part of two defined areas within the Double Bay commercial centre, which are described within the Woollahra Development Control Plan 2015 (WDCP) as the Bay Street (south) and Gumtree Lane areas. Within those areas are a mix of retail and commercial uses in a variety of building forms, with some shop top housing. Immediately to the north there is a group of three two-storey terrace style commercial buildings, which are all identified as character buildings within the WDCP. Immediately to the south are a mix of older and contemporary two-storey commercial buildings, some of which are also identified as character buildings within the precinct, pursuant to the WDCP.

8. On the other side of Bay Street is a mix of older and contemporary buildings ranging in height from two to five storeys. This includes a five-storey building across the road comprising commercial tenancies and shop top housing, which has a three-storey street wall height with a recessive fourth storey and a further recessed upper fifth level (4-10 Bay Street), and the Bay Residences at 16-24 Bay Street, which is a five-storey building with the fourth storey stepped back in a mansard roof style form and the fifth storey further stepped back. To the east and north-east, across Gumtree Lane, is a mix of commercial buildings ranging between two and three storeys, most of which are oriented to New South Head Road.

9. On the west side of Bay Street (south) there are also a number of recent development consents, as follows:

• At 2-10 Bay Street, development consent was granted on 17 November 2021 for a five-storey development that steps down the site’s frontage as the land falls away from New South Head Road, with an additional setback of the fifth storey from Bay Street such that there is a four-storey street wall to Bay Street which also contains residential balconies. This consent was granted by the Court following an agreement by the parties: see Loftex Commercial Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1697.

• At 14 Bay Street, development consent was granted on 17 May 2022 for a five-storey development, which has the fifth storey stepped back so that it is not visible when viewed from the opposite side of Bay Street. This consent was granted by the Court following an agreement by the parties: see Halepa Holdings Pty Limited v Woollahra Municipal Council [2022] NSWLEC 1237.

• At 24 Bay Street, which is a corner site also comprising 2A Cooper Street and containing a heritage listed and character building, development consent was granted on 3 February 2022 for alterations and additions including the addition of two new levels, which has resulted in the approval of a five-storey building on the site. The fifth is storey stepped back so that it is not visible when viewed from the opposite side of Bay Street. The consent was granted by the Court: see Pallas Development Management Pty Limited trading as Fortis Development Group v Woollahra Municipal Council [2022] NSWLEC 1048.

10. An aerial photograph showing the location of the site, the location of the character buildings, and the number of storeys on buildings either existing or approved in the immediate vicinity of the site, is at Figure 1.

The expert evidence

11. Expert opinion evidence on the town planning and urban design issues was given by Dr Michael Zanardo, an architect and urban design expert engaged by the Council, Mr George Karavanas, a town planner engaged by Pallas, and Mr Rohan Dickson, an urban design expert engaged by Pallas. Their evidence was given in a joint report and in court.

12. In the course of giving their evidence in court, the experts agreed on conditions of consent, which, if imposed, would resolve the Council’s contentions with respect to the internal amenity of the commercial floors and the amenity of the through-site link.

13. However, the experts remain in disagreement with respect to the height, bulk and scale of the proposed development. Dr Zanardo opines that its height, bulk and scale is incompatible with the existing built form adjoining the site and in the immediate context along Bay Street south of Short Street. His evidence is also that, therefore, the proposed development is not consistent with the desired future character of the streetscape as expressed in the controls in the WDCP, the height development standard and the FSR development standard. On the other hand, Mr Dickson and Mr Karavanas rely on the existing built form of developments in the vicinity of the site, and recent development consents, and opine that the height, bulk and scale of the proposed development is acceptable in that context, is consistent with the objectives of the height and FSR development standards, and is consistent with the desired future character of the area.

The objector evidence

14. The development application was notified on two occasions, in December 2021 and again in April 2022 following amendment. A number of written submissions were received in response. The issues raised in the written submissions, and by objectors on-site at the commencement of the site inspection, can be summarised as follows:

• Non-compliance with the development standards for height and floor space ratio, and with the building envelope controls for the Double Bay Centre.

• Impacts caused by loss of views and loss of privacy.

• Traffic and parking impacts; and

• Loss of the village character of Double Bay.

The planning controls

15. The site is zoned B2 Local Centre pursuant to the Woollahra Local Environmental Plan 2014 (WLEP). The objectives of the zone, which are required to be considered pursuant to cl 2.3, are as follows:

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

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To attract new business and commercial opportunities.

• To provide active ground floor uses to create vibrant centres.

• To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

16. Clause 4.3(2) of the WLEP, and the Height of Buildings Map, imposes a height development standard of 14.7m on the site. The proposed development does not comply with this development standard, and has a maximum height of 18.1m.

17. Pursuant to cl 4.4 of the WLEP, the maximum FSR that applies to development on the site is 2.5:1. The proposed development does not comply with this, with an overall FSR of 3.38:1.

18. Clause 4.6 of the WLEP allows consent to be granted notwithstanding the breaches of the height and FSR development standards, subject to the provision of a written request pursuant to cl 4.6(3) and the consent authority’s satisfaction of the matters in cl 4.6(4). The terms of cl 4.6, and my consideration of the written requests concerning each breach, are set out below.

19. The site is mapped as having Class 2 Acid Sulfate Soils. As such, cl 6.1 of the WLEP applies.

20. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires that consideration be given as to whether the site is contaminated. The Preliminary Site Investigation prepared by JK Environment states that the site can be made suitable for the proposed development subject to a number of recommendations.

The built form controls in the WDCP

21. The site is located in the Double Bay Centre pursuant to Part D5 of the WDCP. At D5.3.2 key strategies are set out for the Double Bay Centre. The third of these key strategies is to “Develop the particular qualities of different parts of the centre”, which includes, at (e), to “Retain the scale of small lot development and street character of Bay Street south of Short Street.”

22. Further, the fifth strategy is to “Improve Double Bay’s built form to provide appropriate definition to the public domain”, which includes the following, at (a):

“Provide direction and certainty of outcome in relation to built form to ensure:

- a coherent street scale;

- compatibility with existing urban fabric;

- a variety of building types;

- a high level of environmental amenity.”

23. In D5.4 of Part D5, the WDCP sets out a desired future character for each street in the Double Bay Centre. The site is located in two of the areas with a defined street character.

24. The first is Bay Street (south). The desired future character, which is set out at D5.4.4, is as follows:

“a) Retain the existing modest, lot related building widths and retail frontages.

b) Provide setback areas at ground level that can be used for outdoor eating or public circulation.

c) Retain the character buildings along Bay Street.

d) Maintain the avenue of trees.”

25. The built form diagram shows buildings of four storeys in height with the first three storeys built to the street alignment with an articulation zone of 2.4m, and the fourth storey with a setback of 2.4m and an articulation zone of 3.5m. This is shown in Figure 2.

26. The second area in which the site is located is the Gumtree Lane character area. This area has the following desired future character, from D5.4.11:

“a) Retain the two storey built form and 2m setback on the west side.

b) Apply a 1m setback to the eastern side of Gumtree Lane.

c) Increase the spatial definition of the lane, and street surveillance with an articulated building addressing the lane from the central triangular site.”

27. The built form diagram shows four-storey development on the west side of Gumtree Lane, with the first two storeys with a 2m setback from the street and the upper two storeys set back 8m from the street boundary. This can be seen in Figure 3.

28. Section D5.6 of Part D5 of the WDCP sets out the development controls for the Double Bay Centre. The applicable controls, including the building envelope controls and the desired number of storeys, are expressed in the control drawings in D5.5.5-5.5.11. Control drawing D5.5.9 shows the site as having a four-storey control, and is shown at Figure 4.

29. The controls depicted in the control drawing are consistent with the development standards in the WLEP for height and FSR.

30. The proposed development does not comply with the building envelopes, setbacks, height and articulation zones depicted in the control drawing. It is five storeys in height rather than four, and presents with a four-storey street wall to Bay Street with zero setback rather than providing the 3.5m articulation zone for the first three storeys and the additional 2.4m setback of the fourth storey with a 3.5m articulation zone. Similarly, on the Gumtree Lane presentation, it does not comply with the 8m setback for the third and fourth storey, and instead has a 4m setback for the third and fourth storeys.

31. The requirement to comply with the building envelopes depicted in the control drawing is set out in various controls throughout section D5.6. This includes C1 of D5.6.3.1, which concerns building envelopes. The objectives of this control, and the related controls, are as follows:

“O1 Development should contribute to the desired future character of streetscapes with appropriate and consistent building forms.

O2 Encourage courtyards and light wells at ground and first floor level of deep blocks to allow natural lighting and ventilation.

O3 Enable the provision of through-site links and arcades.

O4 Encourage a variety of interior volumes, i.e. split levels, double height spaces and arcades.”

32. The building articulation shown on the control drawing is enforced in 5.6.3.3, at C1, which requires the “following percentages of internal and external space should be incorporated with the composition of the building to achieve high quality architectural resolution at the street or laneway frontage”. The percentages for Bay Street South are as follows:

“On levels 2-5 up to 40% of the street façade articulation zone must be occupied with either or both internal or external space.

On the ground floor up to 100% of the street façade articulation zone can be internal space.”

33. There are two objectives of the building articulation controls, the first of which is to:

“O1 Promote buildings of articulated design and massing, with building facades that contribute to the character of the street, and provide useable external spaces.”

34. The requirement to comply with the setback controls depicted in the control drawing is set out at 5.6.3.4 of the WDCP, the first two controls of which are as follows:

“C1 Building alignment must comply with the building lines shown on the Built Form Envelopes: Control Drawings, Section 5.5.5—5.5.11.

C2 Front setbacks are identified as building lines on the control drawings, Section 5.5.5—5.5.11. Front setbacks must define a coherent alignment to the public domain.”

35. The objectives of the setback controls are as follows:

“O1 Encourage consistent building lines to provide coherent streetscapes.

O2 Introduce new setbacks at street level in selected laneways to improve pedestrian amenity.

O3 Where indicated provide street setbacks to the upper level of development to permit mid-winter sunlight.”

36. The character buildings are located at 9, 11, 13, 15, 29-33, 35 and 37 Bay Street. Control C1 of 5.6.3.8 requires that:

“C1 All new developments and works to existing developments are to be designed to be compatible with the significance of listed heritage items, conservation areas and nominated character buildings.”

37. The objectives of this and other controls concerning the character buildings are as follows:

“O1 Protect and enhance heritage items and conservation areas.

O2 Encourage the sensitive adaptation or reuse of buildings that contribute to the spatial definition of the urban spaces they address.”

Previous approvals on the site

38. There are two recent development consents that apply to part of the site comprising 21, 23-25 and 27 Bay Street. These consents exclude 19 Bay Street, which now forms part of the site. Both development consents were granted by the Court.

39. The first was granted on 18 February 2020, for the demolition of existing structures and the construction of a new five-storey shop top housing development containing 15 apartments, three ground-floor level retail spaces, two rooftop gardens and car parking with vehicular access from Gumtree Lane. This development breached the height development standard but complied with the FSR development standard. In that matter, there was no contention raised concerning the acceptability of the height, bulk and scale and the experts agreed that the written request concerning the height development standard adequately addressed the requisite matters: see Thinq Net Pty Limited v Woollahra Municipal Council [2020] NSWLEC 1063 (“Thinq”) at [23].

40. The second development consent was granted on 6 October 2021, for the demolition of existing structures and the construction of a five storey commercial building over three levels of basement parking. The orders granting development consent were made as a result of an agreement between the parties reached at or after a conciliation conference, pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act): see Pallas Development Management Pty Limited trading as Fortis Development Group v Woollahra Municipal Council [2021] NSWLEC 1585. There was no contradictor concerning the merits of the development the subject of the grant of consent, nor concerning the adequacy of the written requests for breach of the height and FSR development standards, and the Commissioner’s consideration was confined to whether the decision agreed upon was “a decision that the Court can make in the proper exercise of its functions” in accordance with s 34(3) of the LEC Act.

41. In considering the prior decisions of Commissioners of the Court, in Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310, the Court of Appeal makes it clear that “in the context of adversarial proceedings in the Land and Environment Court, there is [no] place for the so-called principle of consistency in administrative decision-making” (at [95]). Instead, “the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties” (at [95]).

42. I note, however, that the form of developments approved within an area can inform the desired future character of that area (see Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (“SJD DB2”) at [63]).

The breach of the height and FSR development standard

43. The proposed development breaches both the height and the FSR development standards. The proposed building height is 18.1m, which is 3.4m in excess of the height development standard of 14.7m. The height exceedance results from the fifth storey, and the entire of the horizontal extent of the fifth storey breaches the height development standard, although the floor level of the fifth storey is within the height development standard.

44. The proposed FSR is 3.38:1, which results in a gross floor area that is 35% greater than what would be accommodated by a compliance FSR of 2.5:1. This equates to an exceedance in gross floor area of 903m². Of this, 70m² of this is in the basement for accessible end of trip facilities.

45. As a result, development consent cannot be granted except in accordance with cl 4.6(2) of the WLEP 2014. Clause 4.6 provides, at (3) and (4):

(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 Secretary has been obtained.

46. It is well established that the state of satisfaction required by cl 4.6(4)(a) mandates that the Court, in exercising the functions of the consent authority, must in fact be satisfied of the matters in cl 4.6(3), and that the state of satisfaction must be reached by reference to the cl 4.6 request. In relation to each breach of the development standards, Pallas has lodged a written request as required.

47. Clause 4.6(4)(a)(ii) requires consideration of the objectives of the zone (found above at [15]) and the objectives of the relevant development standards.

48. The objectives of the height development standard are as follows (cl 4.3(1) of the WLEP):

(a) to establish building heights that are consistent with the desired future character of the neighbourhood,

(b) to establish a transition in scale between zones to protect local amenity,

(c) to minimise the loss of solar access to existing buildings and open space,

(d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.

49. The objective of the FSR development standard is as follows (cl 4.4(1)(b) of the WLEP):

(b) for buildings in Zone B1 Neighbourhood Centre, Zone B2 Local Centre, and Zone B4 Mixed Use—to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale.

The written request concerning the height development standard

50. The written request concerning the height development standard is prepared by GSA Planning and dated September 2022.

51. In seeking to establish that compliance with the height development standard is unreasonable or unnecessary, the written request relies on the first of the tests described in Wehbe v Pittwater Council (2007) 156 LGERA 446 (“Wehbe”), that the objectives of the standard are met notwithstanding the contravention.

52. In addressing the objective to “establish building heights that are consistent with the desired future character of the neighbourhood”, the written request relies on the previous approvals on the site, as well as previous approvals by the Council on sites on the opposite side of Bay Street and in Cross Street, which breach the height development standard. It says that these approvals are “illustrations of how part four and part five storey development, such as the present proposal, are consistent with the desired future character”. The written request further states that the fifth storey will not be visible from the opposite side walk along Bay Street, and that the articulated elements are sympathetic to the nearby approved and constructed commercial buildings. The written request then addresses the remaining objectives of the standard by reference to the impacts of the proposed development.

53. The written request seeks to justify the contravention of the height development standard on grounds that it describes as environmental planning grounds that can be summarised as follows:

• Incorporating an additional commercial tenancy provides additional commercial floorspace, consistent with the zone objectives. Compliance with the height development standard would require the removal of an entire level, which would be an inefficient use of the site.

• The building will present a similar bulk and scale to its surrounds, and a four-storey development is consistent with the context.

• The proposal will not result in unacceptable environmental impacts.

• The additional height is set back from the street and is not visible when viewed from Bay Street, and forms part of a development that contains a number of design features which promote the public domain, including the activation of Gum Tree Lane and the provision of a through-site link.

• The additional height was previously approved in the grant of the earlier development consents, and the height will remain the same as a previous development that was considered acceptable.

54. The written request also outlines how the proposed development is in the public interest and meets the requirements of cl 4.6 of the WLEP.

The written request concerning the FSR development standard

55. The written request concerning the FSR development standard is also prepared by GSA Planning and is dated June 2022, and is similar in its terms to the written request concerning the height development standard.

56. In seeking to establish that compliance with the FSR development standard is unreasonable or unnecessary, the written request relies on the first of the tests described in Wehbe, that the objectives of the standard are met notwithstanding the contravention. In the same terms as the request concerning the height development standard, in addressing the objective of the FSR development standard to “ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale”, the request states that the desired future character is shaped by recent approvals in the vicinity, which all breach the FSR development standard. The request states that the proposed built form provides greater consistency in terms of articulation and envelope with that of nearby approved commercial developments in the local centre.

57. The written request seeks to justify the contravention of the FSR development standard on the following grounds, which it says are environmental planning grounds:

• The proposal responds to a recognised demand for commercial floor space and enforcing strict compliance would require the removal of one and a half levels, which would be inconsistent with the desired future character established by approvals in the area, and would be a lost opportunity to incorporate the additional commercial allotment within the design.

• The proposal will not result in unacceptable environmental impacts.

• Other surrounding approved developments also exceed the FSR development standard, and so the building will present a similar bulk and scale to the surrounds.

• The additional FSR is necessary to provide floorplates which encourage high profile tenants, which will assist in the activation of Double Bay.

• The additional FSR was previously approved in the grant of the earlier development consents, and the FSR will remain the same as a previous development that was considered acceptable.

58. In a similar manner to the written request concerning the height development standard, the written request also outlines how the proposed development is in the public interest and meets the requirements of cl 4.6 of the WLEP.

The applicant’s submissions in support of the requests

59. Pallas points out that the desired future character of the neighbourhood is a central theme in the objectives of the zone and of each of the height and FSR development standards. It relies on the decision of the Court in SJD DB2, that the desired future character is not fixed by the development standards, but that it can evolve over time. As stated by the Chief Judge, Justice Preston, at [53]:

“The desired future character for a neighbourhood or area can evolve over time, responding not only to the provisions of WLEP but also to developments carried out in accordance with development consents granted under WLEP and the EPA Act.”

60. Pallas submits that the evidence in this case is that there is a pattern of approvals for development that depart from the relevant standards for height and FSR. There are recent approvals that have been permitted to exceed the development standards for all of the western side of Bay Street opposite the site, for the two approvals on part of the subject site, and for both sides of Bay Street in the block immediately to the north of the site. Pallas submits that all of these approvals must be considered to inform the desired future character of the neighbourhood, with which the proposed development is consistent. Further, Pallas submits that the proposed development is consistent with the desired future character as described in the WDCP for each of the Bay Street (south) and Gumtree Lane precincts.

61. Pallas submits that, in circumstances where the development is consistent with the desired future character, the Court ought to conclude that the written requests establish that compliance with the development standards is unreasonable and unnecessary, and that there are sufficient environmental planning grounds to justify the breach of the height and FSR development standards, as required by cl 4.6(4)(a)(i) of the WLEP. Similarly, Pallas submits that a finding of consistency with the desired future character results in the conclusion that the proposed development will be in the public interest as it is consistent with the objectives of the standards and the objective of the zone, as required by cl 4.6(4)(a)(ii).

The Council’s position concerning the requests

62. Whilst the Council doesn’t disagree with respect to what can be considered in informing the desired future character of an area, it submits that there are some unique factors about the circumstances in the decision in SJD DB2 that mean that it is not readily applicable to the proposed development. In the development considered in the decision under appeal in SJD DB2, the Commissioner determined that the development standards had been abandoned for that block on the southern side of Cross Street (SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [94]). The Commissioner found that the additional height and FSR was justified in order to achieve consistency with the character of the developments along that southern side of Cross Street that had been previously approved by the Council. In the context of this proposed development, the Council points out that different development standards apply and this site is outside the block to which the abandonment was confined.

63. The Council’s position is that there is a different character on each side of Bay Street (south) when having regard to the approvals that have been granted, the existing buildings and the existence of the character buildings. In addition, the desired future character is also informed by the controls in the WDCP, which ‘fill in’ the character of the built form within the maximums set by the height and FSR development standards. In this context, the Council’s position is that the proposed development is not consistent with the desired future character on the eastern side of Bay Street and is not consistent with the desired future character expressed in the street wall heights for both Bay Street and Gumtree Lane.

64. The Council’s position is that consistency with the desired future character is not made out by the evidence or by the written requests, and that the written requests neither establish sufficient environmental planning grounds to justify the contraventions, nor establish that compliance is unreasonable or unnecessary. For those reasons, the Council says that there is no power to grant development consent and the development application should be refused.

65. Specifically, the Council says that the grounds outlined in the written requests do not justify the contravention of the standard, as there is no uniform streetscape for which the additional height and FSR is required to achieve consistency, and the written requests do not provide any examination of the neighbourhood and the surrounding built form. The Council says that the provision of additional commercial space is not an environmental planning ground that justifies the exceedance, as that is an argument that is available on any exceedance of gross floor area. Further, the Council submits that the argument that compliance would not be an efficient use of the site is not actually established by any supporting information in the written requests.

66. Similarly, the Council’s position is that the written request does not establish that compliance is unreasonable or unnecessary. The Council says that the written requests do not provide an analysis of the “desired future character of the neighbourhood”, which is an objective of the height development standard, or of the “desired future character of the area in terms of bulk and scale”, which is the objective of the FSR development standard. Accordingly, the Council says that the written request does not establish that the additional height and FSR achieves these objectives. Further, the Council submits that the written request on the height development standard does not establish how the objective to “minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion” has been met.

The written requests do not demonstrate sufficient environmental planning grounds

67. I am not satisfied that either of the written requests demonstrate sufficient environmental grounds to justify the contravention of each of the standards. In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [24], Preston CJ of LEC stated that the “focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds”.

68. In Gan v City of Sydney Council [2021] NSWLEC 1370, I set out three elements for consideration in determining whether I am satisfied that there are sufficient environmental planning grounds. At [84], I described those elements as follows:

“Firstly, the grounds advanced must constitute “environmental planning grounds”. Secondly, they must be tethered in some way to the breach of the development standard so as to justify, or inform, the breach. Thirdly, I must be satisfied that they are “sufficient” to justify, or inform, the aspect or element that contravenes the development standard.”

69. Further, in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 at [60], the Commissioner found that the grounds need to be “particular to the circumstances of this proposed development on [the] site”. This finding was not disturbed on appeal (see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 and Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248).

70. For each of the written requests, I am not satisfied that the grounds advanced actually justify, or inform, the breach, or that they are sufficient to justify the additional height and floor space.

The written request concerning the breach of the height development standard

71. The whole of the fifth storey extends above the height development standard, although the proposed finished floor level of that storey is within the standard. The greatest contravention is 3.4m at the louvred plant area, but this reduces to 2.59m at the maximum height of the parapet, and the remaining extent of the contravention varies due to the topography of the site. The additional height above the development standard accommodates both the fifth storey and the plant room. For the reasons expressed below, none of the grounds advanced in the written request are sufficient to justify the contravention of the height development standard.

The commercial use ground

72. The first ground relied upon in the written request is titled “commercial use”. As set out above, it refers to responding to a recognised demand for commercial floor space which is reflected in the objectives of the zone, requiring increased floor to ceiling heights and wide floor plates to attract high profile tenants. The request states that enforcing strict compliance will require the removal of an entire level, which would result in the loss of 490m² of commercial space, which is an “inefficient” use of the site.

73. Whilst the provision of additional commercial floor space is a benefit of the breach of both the height and FSR development standards, I do not accept that the provision of additional floor space for one type of planning use, of itself, constitutes an environmental planning ground. It is a benefit that can be brought about by any breach of a development standard by any commercial development in the zone, and is not particular to the circumstances of the proposed development on this site. I accept the submission of the Council that such an argument is available on any exceedance of gross floor area (and associated additional height) for a commercial development, and it is not sufficient to justify a contravention on this site.

74. Further, the additional floor to ceiling heights do not account for the entire height exceedance, and, whilst the necessity for higher floor to ceiling heights for commercial developments would constitute an environmental planning ground, it is insufficient to justify the extent of the contravention of the height development standard. The same can be said about the plant and equipment, which accounts for some additional height but it is not sufficient to justify the contravention.

75. Whilst the request states that enforcing strict compliance with the height development standard and consequent removal of 490m² of commercial space would be “an inefficient use of the site”, there is no information to support that assertion. Accordingly, based on the written request, I cannot conclude that the contravention of the height development standard leads to efficiency of the use of the site.

76. For those reasons, the “commercial use” ground is insufficient to justify the contravention of the height development standard.

The consistency ground

77. The request also advances consistency with context and desired future character as an environmental planning ground, stating that the building will present a similar bulk and scale to its surrounds, and a five-storey development is consistent with the context.

78. Achieving consistency in the streetscape is an accepted environmental planning ground (see Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 (Gejo) at [45]; Abrams v Council of the City of Sydney [2019] NSWLEC 1583 (Abrams) at [47]-[49]; and SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [90])

79. However, in the circumstances of the proposed development, this environmental planning ground is not sufficient to justify the exceedance of the height development standard. There is no five-storey building on the eastern side of Bay Street within this block with which the proposed development could be said to be consistent. The request does not provide any analysis of how the fifth storey (the additional height) is justified in order to achieve consistency in its context. The reliance, in the written request, on the height of approved buildings elsewhere in the local centre, absent an analysis of the immediate built form context of the subject site, is not sufficient to establish that the additional height is justified to achieve consistency with the context. Although there are streetscape renders elsewhere in the request, there is no accompanying information that establishes that the additional height is justified to achieve consistency in the streetscape context. If anything, the streetscape renders demonstrate that the additional height is not consistent with the Bay Street streetscape context, particularly given the two storey character buildings located immediately adjacent.

80. In the written request, this consistency ground also refers to the desired future character in brackets, and relies on the content of the written request in relation to the first objective of the development standard concerning consistency with the desired future character of the neighbourhood. Again, in the context of this site, in which there is no five-storey building on the eastern side of Bay Street within this block and where the request does not define the “neighbourhood” with which the proposed development is seeking to be consistent, I do not consider that consistency with the desired future character in the broad undefined area of the “neighbourhood” is sufficient to justify the contravention of the height development standard on this site. Whilst it is well established that the desired future character of an area can be informed by the form of the buildings approved by the Council in the area, selectively pointing to other approved buildings elsewhere in the Double Bay local centre that are five or more storeys in height (including across the road) does not actually inform why a fifth storey is justified on this site, particularly in the absence of any streetscape analysis or analysis of a defined area with which the proposal is seeking to be consistent. This is readily distinguishable from the decisions in Gejo, Abrams and SJD DB2 Pty Ltd v Woollahra Municipal Council, in which each contravention of the height development standard actually facilitated the achievement of a consistent streetscape and the desired future character of the particular built context. In the present case and in the present written request, the departure from the height development standard is not justified by such an outcome, and reliance on specifically chosen developments in some broader undefined area is not sufficient.

81. To the extent that this ground also relies on the response to the first objective of the development standard in the written request, it also relies on the additional storey not being visible from across the road. I do not accept that the lack of visibility of the additional height from a particular vantage point is sufficient to justify the exceedance of the height development standard. Indeed, the additional height will be visible from the north along Bay Street as it rises above the two-storey character buildings immediately adjacent.

82. Further, to the extent that the written request seeks to rely on the bulk and scale of the building approved to be constructed on part of the site, that development consent is not sufficient to establish that there is a consistent streetscape of five storeys, as that is a single consent and does not form part of the current context of the site. It is distinguishable from the circumstances in SJD DB2 Pty Ltd v Woollahra Municipal Council, where there had been numerous approvals of a consistent scale along that block of Cross Street.

83. For those reasons, the “Consistency with context (desired future character)” ground is inadequate to justify the contravention of the height development standard.

The environmental impacts ground

84. The avoidance of impacts is an environmental planning ground, as it promotes “good design and amenity of the built environment”, one of the objectives of the EPA Act. However, even if I was to accept that there is no impact from the additional height, the lack of impacts does not arise from the breach of the height development standard so as to justify the breach. Further, even if there was such a link, I do not accept that a lack of impact is sufficient to justify the extent of the breach of the standard. The lateral extent of the breach is for the entire fifth storey, and the vertical extent of the breach is up to 3.4m, an entire storey (in addition to the plant and equipment). The full height of the building is highly visible when viewed from the north in context with the adjoining character buildings. A lack of external impacts is not sufficient to justify such a departure from the standard.

The urban design benefits ground

85. The ground that concerns the urban design benefits focuses on the revised façade from what was previously approved, and the setback of the upper level to reduce visibility. I consider that these are benefits of the design of the development, they are not benefits that inform the breach of the height development standard so as to justify that breach.

The previous approval ground

86. The request states that “as the environmental planning grounds were previously approved, the proposed variation is considered acceptable.” The previously approved development was a different design to that proposed, and across a narrower street frontage. The differences in the approved development and the proposed development are such that reliance on the previous approval is not sufficient to justify the breach of the height development standard for the proposed development. Accordingly, there needs to be environmental planning grounds specific to the proposed development in its context that justify the breach of the height development standard.

The written request concerning the breach of the FSR development standard

87. Many of the environmental planning grounds advanced to justify the breach of the height development standard were also relied upon in the written request concerning the FSR development standard. The proposed development has a total gross floor area of 3470m², which results in a FSR of 3.38:1, which is 35% greater than the development standard of 2.5:1. That means there is an additional 903m² of floor area which is required to be justified by environmental planning grounds. Of that, 70m² of basement level is to be used for accessible end of trip facilities, which is justifies an exceedance of 70m². However, for similar reasons set out above and as expressed below, none of the grounds advanced in the written request are sufficient to justify the extent of the contravention of the FSR development standard.

The commercial use ground

88. For the same reasons as those expressed above at [72] to [76], the commercial use ground is not sufficient to justify the contravention of the FSR development standard, which is an additional 903m² of floor area. The provision of additional floor space for one type of planning use does not constitute an environmental planning ground, and it is a benefit that can be brought about by any breach of a FSR development standard, such that it does not justify that a breach is appropriate on this particular site for this particular development. Further, the argument that removing the additional floor space results in an “inefficient use of the site” is not supported by any evidence that demonstrates that the additional floor space is justified to achieve efficiency in the development of the site.

The environmental impacts ground

89. In a similar manner to what is set out above at [84], I do not accept that a lack of impact is sufficient to justify the extent of the breach of the standard, which is 903m² of floor space. Indeed, I am also not satisfied that the additional bulk caused by an additional 903m² of floor space does not have an impact. The bulk of the building is highly visible when viewed from the north on Bay Street, as it sits forward of the front building line of the adjacent character building with a large and visible wall above the character building. A lack of external impacts is not sufficient to justify the extent of the contravention of the FSR development standard, particularly where the additional bulk and scale is readily perceivable and out of character in the streetscape on the eastern side of Bay Street.

The consistency ground

90. Similar to what is set out above at [77] to [83] concerning the height development standard, the request concerning the FSR development standard does not provide any analysis of how the additional floor space above the FSR development standard is justified in order for the building to achieve consistency in its context or consistency with the desired future character. The reliance on the FSR of approved buildings elsewhere in the local centre, without any analysis of the immediate built form context or of the desired future character for that part of Bay Street, is not sufficient to establish that the additional floor space is justified to achieve consistency with the current context or desired future character. This is quite distinct from the detail in the written requests in Gejo, Abrams and SJD DB2 Pty Ltd v Woollahra Municipal Council, where the analysis of the streetscape context and the desired future character demonstrated that additional height and/or floor space was required in order to achieve an appropriate streetscape outcome.

The urban design benefits ground

91. In the same way as described above in [85], the urban design benefits ground focuses on the design of the development, which are not benefits that inform the breach of the height development standard so as to justify that breach.

The previous approval ground

92. Similar to what I have outlined above at [86], the request relies on the prior approval, and states that “as the reasons were previously considered sufficient environmental planning grounds, the proposed variation is considered acceptable”. As set out above, the previously approved development was a different design to that proposed, across a narrower street frontage. The differences are such that reliance on the previous approval is not sufficient to justify the contravention of the FSR development standard of this proposed development, which is an additional 903m² of floor area. Instead, there needs to be environmental planning grounds specific to the proposed development in its context that justify the breach of the FSR development standard.

The written requests do not establish that compliance is unreasonable or unnecessary

93. My findings above that the written requests have not adequately addressed that there are sufficient environmental planning grounds that justify contravening the development standards is a sufficient basis upon which the development application must be refused. In addition, I am not satisfied that either of the requests establish that compliance with the relevant standard is unreasonable or unnecessary.

94. As stated above, each of the written requests relies on the first of the tests described in Wehbe, that the objectives of the standard are met notwithstanding the contravention. However, the written request for the height development standard does not adequately define the “desired future character of the neighbourhood”, which is an objective of the height development standard, and the written request for the FSR development standard does not adequately define the “desired future character of the area in terms of bulk and scale”, which is the objective of the FSR development standard.

The written request concerning the breach of the height development standard

95. In addressing the objective “to establish building heights that are consistent with the desired future character of the neighbourhood”, the written request relies on the entire Double Bay local centre, and on the “eclectic mix of residential flat buildings, commercial and mixed use developments that vary between two and six storeys”. Relying on Preston CJ of LEC in SJD DB2 at [63] that the desired future character “can be shaped by… other factors, including approved development that contravenes the development standard”, the request recites 11 prior development consents (two of which are the prior approvals on the site), and states that they demonstrate an emerging higher density built form character. The request also relies on the two prior approvals for the site to establish that the desired future character must be in accordance with those two approvals.

96. The problem with defining “the neighbourhood” as the entire Double Bay local centre is that the local centre does not have a uniform desired future character. Instead, both the WDCP and the WLEP set different height and FSR development standards for different areas within the local centre. The reliance on the entire local centre is inconsistent with the WDCP, which defines different areas within the local centre and expresses the desired future character of each of those defined areas, which are focussed on each street, including different building envelope controls. The height and FSR development standards established by the WLEP are consistent with the WDCP building envelope controls, such that they vary for each of the defined areas. The written request does not provide any explanation as to why the entire local centre has been relied upon in considering “the neighbourhood”.

97. Additionally, by casting the net wide for the definition of “the neighbourhood”, the request then highlights a select number of development consents that allow height and FSR that exceed the applicable development standards (shown in Table 1 of the request). Of the 11 that are relied upon, four of them have different applicable development standards, and two of them concern the site. The remaining five are on Cross Street, within a different visual catchment to that of the site. Therefore, none of these development consents inform the desired future character for this part of the Double Bay centre.

98. Even if the entire Double Bay centre could be relied upon as “the neighbourhood”, the request fails to provide adequate analysis of its desired future character as expressed through the grant of development consents, which would necessitate considering all of the other development consents granted within the Double Bay centre. The desired future character of any defined area is not appropriately established by identifying only a select proportion of approvals within that area.

99. With respect to the two consents for the site, I do not accept that what has been approved on a single site can establish a desired future character for “the neighbourhood”.

100. The WDCP sets a clearly defined desired future character for the Bay Street south area, which is one way to understand “the desired future character of the neighbourhood” and the written request fails to establish that there is a desired future character to the contrary. There is no emerging “higher density built form character” for Bay Street south established by the request. In the joint report, Mr Dickson considers the height in storeys of buildings within the vicinity of the site, including approvals at 2-10 Bay Street and the existing built form at 24 Bay Street, which is supported by a character study at Annexure J to the joint report, but none of this analysis is contained within the written request. Given that the state of satisfaction required by cl 4.6(4)(a)(i) of the WLEP depends upon the contents of the written request, the Court is constrained by that request in considering whether the request adequately addresses the matters in cl 4.6(3), and I cannot consider that other material. As stated by Payne JA in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]:

“Properly construed, a consent authority has to be satisfied that an applicant’s written request has in fact demonstrated the matters required to be demonstrated by cl 4.6(3).” (Emphasis added.)

101. In failing to define “the desired future character of the neighbourhood”, the written request concerning the height development standard has also failed to establish that the proposed development is consistent with that character. The request therefore does not address how this first objective of the height development standard has been achieved notwithstanding the contravention. As the request relies upon achieving the objectives of the development standard in order to demonstrate that compliance with the standard is unreasonable or unnecessary, its failure to establish that the proposed development achieves one of the objectives means that the written request has not demonstrated that compliance is unreasonable or unnecessary, contrary to the requirement of cl 4.6(3)(a) of the WLEP, and I am similarly not satisfied that the request has adequately addressed that matter.

The written request concerning the breach of the FSR development standard

102. For the same reasons, I am not satisfied that the written request concerning the FSR development standard demonstrates that compliance is unreasonable or unnecessary in the circumstances of the case. The objective which the request seeks to address is “to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale”. Again, rather than defining the “area”, the written request relies on the entire Double Bay local centre, and it relies on various recently approved FSR exceedances.

103. In keeping with my observations above at [96], the problem with defining “the area” as the entire Double Bay local centre is that it is not consistent with the variation in planning controls across the centre, as both the WDCP and the WLEP set different height and FSR development standards for different areas within the local centre. The written request does not provide any explanation as to why the entire local centre has been relied upon in considering “the area”.

104. Table 1 of the request sets out the development consents relied upon to establish the “desired future character of the area in terms of bulk and scale”. They are slightly different to those relied upon in the written request concerning the height development standard by the inclusion of the development consent for 2-10 Bay Street. Nevertheless, they extend beyond the visual catchment of the site and only six of them concern sites with the same applicable FSR development standard (other than the approval for the site itself). Again, those six development consents concern sites on Cross Street, outside of the visual catchment of the site. Other than “pointing to” breaches of the FSR development standard, the written request contains no analysis of the desired built form character for Bay Street south or some other defined area, which contains a range of buildings of varying bulk and scale including character buildings. Therefore, the request does not actually establish a desired future character for an acceptably defined area in which the site is located. Its statement that there is a range of buildings with the upper level stepped back, and “subtly articulated elements at the lower levels”, is not sufficient in this regard. Further, in reference to the approvals for part of the site, I do not consider that previous approvals on a single site can inform the “desired future character of the area in terms of bulk and scale”.

105. In failing to define “the desired future character of the area in terms of bulk and scale”, the written request concerning the FSR development standard has failed to establish that the proposed development is compatible with that character. The request therefore does not address how the objective of the FSR development standard has been achieved notwithstanding the contravention. As set out above concerning the written request for the height development standard, the request concerning the FSR relies upon achieving the objective of the development standard to demonstrate that compliance with the standard is unreasonable or unnecessary. Its failure to establish that the proposed development achieves the objective means that the written request has not demonstrated that compliance is unreasonable or unnecessary.

Other matters for consideration under cl 4.6(4)

106. For the reasons set out above, I am not satisfied that the request adequately addresses either that there are sufficient environmental planning grounds to justify contravening the development standard, or that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Accordingly, I do not reach the state of satisfaction required by cl 4.6(4)(a)(i) of the WLEP, and therefore, pursuant to cl 4.6(4), I am precluded from granting development consent.

107. There is therefore no need to consider whether the proposed development will be in the public interest in accordance with cl 4.6(4)(a)(ii) of the WLEP.

The bulk and scale of the proposed development

108. The above findings on the adequacy of the two written requests prevent the grant of development consent for the proposed development. I note that, had I not so found, the appropriateness of the bulk and scale of the proposed development would have been required to be separately considered, particularly given the non-compliance with the building envelope controls in the WDCP. In circumstances where there is no consistent built form approved on the east side of Bay Street, a real question arises as to whether the proposed development meets the objective of the building envelope controls to achieve “the desired future character of streetscapes with appropriate and consistent building forms”. Further, the scale of the proposed development adjacent to the character buildings is prima facie inconsistent with the control in 5.6.3.8 of the WDCP to “be compatible with the significance of… nominated character buildings”, with the evidence of Dr Zanardo that the scale of the proposed development is “in stark contrast with its immediate neighbouring context being a row of two-storey character buildings… and the row of two-storey character buildings uphill”.

109. However, I need not contemplate these issues, given that, in the absence of the satisfaction required by cl 4.6(4)(a), development consent must not be granted for development that contravenes a development standard.

The final orders

110. Clause 4.6(4) of the WLEP provides that development consent must not be granted for development that contravenes a development standard unless the consent authority is satisfied of the matters in cl 4.6(4)(a), which includes, at (i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). As set out above, the proposed development contravenes both the height and FSR development standards. Clause 4.6(3) requires the written request to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. For the reasons expressed above, the Court, in exercising the functions of the consent authority, is not satisfied that the applicant’s written request has adequately addressed these matters. Clause 4.6(4) therefore prevents the grant of development consent, and the development application must be refused.

111. The Court orders that:

1. The appeal is dismissed.

2. The development application DA 535/2021 for the demolition of existing buildings and the construction of a five-storey commercial development with four levels of basement parking at 19, 21, 23-25 and 27 Bay Street, Double Bay, is refused.

3. Exhibits A, B, E, F, 1, 2, 4 and 6 are returned, and the remaining exhibits are retained.

J Gray

Commissioner of the Court

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Decision last updated: 10 January 2023