Reswent Pty Ltd v Waverley Council

[2021] NSWLEC 1388

Land and Environment Court

New South Wales

Medium Neutral Citation:

Reswent Pty Ltd v Waverley Council [2021] NSWLEC 1388

Hearing dates:

11-12 May 2021

Date of orders:

6 July 2021

Decision date:

06 July 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi Beach is refused.

(3) All exhibits are returned, except for A, B and 7.

Catchwords:

DEVELOPMENT APPLICATION – heritage conservation area – residential apartment development in low density residential zone – existing use – whether compliance with development standard is unreasonable or unnecessary

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.65, 4.66, 4.67, 8.7

Environmental Planning and Assessment Regulation 2000, cll 41, 42, 44, 50

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

Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6

Cases Cited:

Arbib v Waverley Council [2018] NSWLEC 1475

Bouchard v Waverley Council [2019] NSWLEC 1449

Saffioti v Kiama Municipal Council [2019] NSWLEC 57

Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117

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

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

STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495

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

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

Texts Cited:

Apartment Design Guide

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Reswent Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
M Staunton (Respondent)

Solicitors:
Jaku Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/253427

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Waverley Local Planning Panel on behalf of Waverley Council (the Respondent) of Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi Beach (the site).

2. At the commencement of the hearing, the Applicant sought leave, unopposed by the Respondent, to amend the application and rely upon amended plans and other documents that are said to arise from the joint conferencing of experts. The amendments may be summarised as follows:

• 1 x car parking space deleted in favour of storage

• Amended gradient to car park ramp

• Amended materials and finishes

• Amended view from the sun diagrams

• Written request to vary the height standard, later marked Exhibit E

• Written request to vary the floor space ratio (FSR) standard, later marked Exhibit F

3. The plans for which leave was granted were added to the architectural plans for which leave had been previously granted by the Court in February 2021, and substituted where updated revisions required, behind Tab 2 of Exhibit B.

The site and its context

4. The site is legally described as Lot 7 in DP 13236 with a frontage to Sir Thomas Mitchell Road of 18.31m and a total site area of 727m².

5. The site is currently occupied by a residential flat building known as ‘Barons Court’ with a detached laundry building and onsite car parking for two vehicles.

6. The land on the subject site falls in both directions, with a cross fall along the street frontage of around 2.3m, and a fall from the rear to the front of the site of around 1.18m.

7. The character of the area is the subject of some contention. The Amended Statement of Facts and Contentions (Exhibit 1), prepared by the Respondent, describes the area as being characterised by interwar period buildings predominantly detached one- and two- storey houses, with some residential flat buildings on the southern side of Sir Thomas Mitchell Road, and two- to three- storey residential flat buildings on the northern side.

8. The southern side of Sir Thomas Mitchell Road is located within the R2 Low Density Residential zone identified in the Waverley Local Environmental Plan 2012 (WLEP), while the opposite side is located within the R3 Medium Density Residential zone.

9. To the rear of the subject site is an area of landscape plantings known locally as ‘The Ravine’.

Public submissions

10. In accordance with its usual practice, the hearing commenced with an onsite view at which five residents provided oral submissions.

• Mr Mattock, of No 1 Ormond Street

• Mr Evangelinidis, of No 58 Sir Thomas Mitchell Road

• Ms Wallace, of No 60 Sir Thomas Mitchell Road

• Mr Holle, of No 61 Francis Street

• Ms Cossar, of No 62 Sir Thomas Mitchell Road

11. Additionally, leave was also granted for Mr Goldberg, an owner of an apartment in No 67 Francis Street to address the Court on Microsoft Teams.

12. Notes of the public submissions heard at the onsite view were taken and marked Exhibit 7. In broad terms, those submissions may be summarised as follows:

• The bulk and scale of the proposed development represents an overdevelopment of the site, and imposes an unacceptable visual impact and overshadowing on neighbouring properties.

• Such a large development, that exceeds certain planning controls, is inappropriate in a low density residential zone.

• Proposed window openings and balconies will overlook properties in the vicinity of the site, to the detriment of the existing privacy and amenity of the residents of those properties.

• Subsurface conditions are well known to be sandy, through which subsurface flow occurs downhill towards a natural watercourse, requiring greater geotechnical investigation than has been conducted by the Applicant to date.

• Loss of three trees on the site will adversely impact the amenity of properties in the vicinity that enjoy the landscape outlook of an area known as ‘the Ravine’ which acts as habitat for local wildlife.

13. In the company of the parties and experts, the Court was taken to the private open space in properties located adjacent to, or near to the subject site including:

• No 1 Ormond Street

• No’s 58, 60 and 62 Sir Thomas Mitchell Road

14. The Court was also taken to the subject site from which views of and across the side boundary were observed from existing windows in some of the apartments.

Expert evidence

15. The Court was assisted by experts who conferred in order to prepare joint expert reports in the following disciplines:

• Mr George Karavanas, for the Applicant, and Mr Joe Vescio for the Respondent conferred in the preparation of the joint town planning report marked Exhibit 5.

• Mr Oleg Sannikov, for the Applicant, and Mr Cameron Pike for the Respondent conferred in the preparation of the joint traffic report marked Exhibit 3.

• Mr James Phillips, for the Applicant and Mr Colin Brady for the Respondent conferred in the preparation of the joint heritage report marked Exhibit 4.

The issues

16. At the outset of the hearing, the parties advised that a number of issues had been resolved by the conferring of experts, and that the remaining issues in contention may be summarised as follows:

• Contention 1 – That the proposed development should be refused as it does not satisfy the Design Quality Principles for context and neighbourhood character set out in State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65).

• Contention 2 – The proposed development will result in over development of the site due to its excessive density and failure to comply with cl 4.4 of the WLEP.

• Contention 3 – The height of the proposed development is excessive when considered against cl 4.3 of the WLEP, and maximum wall height control under Section 2.1 of the Waverley Development Control Plan 2012 (WDCP).

• Contention 4 – The proposed separation distances and boundary setback are unsatisfactory when considered against design objectives of the Apartment Design Guide (ADG) and WDCP.

• Contention 6 – The proposed development fails to provide adequate landscaping.

• Contention 9 – The extent of overshadowing imposed on adjoining properties is excessive.

• Contention 10 – The application is not supported by a hydrological assessment to enable an assessment of likely environmental impacts, or a fire engineering report to satisfy the Court on matters of compliance in respect of windows located within 3m of the boundary.

The site benefits from existing use

17. As residential flat buildings are not a permitted use in the R2 zone, the Applicant relies upon the existing use of the land for that purpose.

18. It is commonly agreed between the parties that the site benefits from existing use pursuant to s 4.65 of the EPA Act, and while a residential flat building is not a permitted use in the R2 zone, the continuance of that use is permitted by operation of s 4.66(1) of the EPA Act.

19. A detailed chronology, supported by documentary evidence, is set out in written submissions prepared by the Applicant, and in Exhibit D, which satisfy me that the existing residential flat building on the subject site was subject to a building permit issued on 16 February 1927 that was substantially commenced on or around 16 February 1928, and the resulting building has been in use ever since, and so has not been abandoned.

20. However, as shown by Preston CJ in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 (Saffioti), at [67]-[68], the rights at [18] above, do not authorise any change in the existing use or other lawful use.

21. Instead, any entitlement to change an existing use is found at Pt 5 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), made under s 4.67 of the EPA Act, which permits certain regulations to be made for the enlargement or expansion or intensification of an existing use, as is the case here.

22. Subsection 4.67(3) of the EPA Act provides that an environmental planning instrument such as the WLEP may contain provisions that extend, expand or supplement such regulations, but not where those provisions derogate from such regulations.

23. To that end, cl 41 of the EPA Regulation provides, at subcl (a), that an existing use may be enlarged, expanded or intensified and, at subcl (c), may be rebuilt.

24. Clauses 42 and 44 of the EPA Regulation sets out the purposes for which development consent is required.

25. As a consequence, there is an entitlement to make, and have the consent authority consider and determine, a development application seeking consent to enlarge, expand or intensify the existing use (Saffioti at [69]).

26. According to Mr Staunton, counsel for the Respondent, the Court is now asked to consider a development application in respect of existing use for the enlargement or expansion or intensification of an existing use (s 4.66(2)(c) of the EPA Act), which exceeds development standards at cll 4.3 and 4.4 of the WLEP and so written requests are required to be prepared pursuant to cl 4.6 of the WLEP.

27. As the land is subject to an existing use, the provisions of the R2 zone, found at cl 2.3 of the WLEP, are set aside by virtue of that existing use. However, the objectives for development within the zone are engaged, according to the Respondent, by cl 4.6(4)(a)(ii) of the WLEP and about which the Court is required to form an opinion of satisfaction on the grounds that the proposed development is in the public interest because it is consistent with the objectives for development within the zone.

28. As the proposed development relies upon two written requests to justify the contravention of development standards applicable to the site, I must first consider the written requests in order to establish whether the Court’s jurisdiction to grant development consent is enlivened in accordance with cl 4.6 of the WLEP, prior to considering the merit issues in dispute.

29. In considering the Applicant’s written requests, I adopt the Court’s commonly held position that the development standards at cll 4.3 and 4.4 of the WLEP do not derogate from the incorporated provisions, notwithstanding that non-compliance with the development standards may result in development consent being refused if the written requests are not upheld.

The building height standard is exceeded

30. The Applicant relies upon two written requests prepared by GSA Planning. The written request in respect of height was marked Exhibit E. The written request in respect of FSR was marked Exhibit F.

31. Both written requests rely upon what is known as the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [42], to the effect that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

32. The written request at Exhibit E states the exceedance of the height standard by the existing residential flat building is 870mm when measured at the ridgeline. The exceedance of the proposed development is measured at 1.84m above the maximum permissible height of 8.5m, which is most evident at the north-western corner of the site where the fall of the site is pronounced due to past excavation.

33. The relevant objectives of the height standard, at cl 4.3 of the WLEP, are:

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

…

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

34. In respect of objective (a), the written request at Exhibit E states, in summary:

1. The proposal results in minor additional height at the street frontage with a three-storey development that is consistent in bulk and scale with the desired future character of the neighbourhood.

2. The overall design of the proposed development maximises the environmental amenity of neighbouring properties, by providing a similar volume to the existing envelope, and results in a lower overall height when compared to the existing built form.

3. The proposed setbacks from side boundaries are greater than existing setbacks, with no privacy impacts arising, and the proposed roof form, described as a mansard roof, is setback almost twice the distance required, resulting in only negligible overshadowing impacts, and some improvement at certain times of the day.

4. The lowered areas of the site where car parking is currently provided for in the existing development, and where access to basement parking is proposed, generates the additional building height.

5. A requirement for strict compliance with the height standard would limit any redevelopment of the site for a residential flat building to two storeys without significant benefit to neighbours of the streetscape.

35. In respect of objective (d) of the height standard, the written request at Exhibit E states, in summary:

1. The proposed development is an existing use, located within an R2 zone that is characterised by a mix of densities and varying heights.

2. The proposal replaces an existing residential flat building that has a pitched roof, with a new residential flat building that has a mansard roof. It is contextually compatible and consistent with the existing and desired future character of the locality.

36. The Respondent submits that the written request at Exhibit E fails to establish compliance with the objectives of the height in four respects:

1. Firstly, the proposal does not preserve the environmental amenity of neighbouring properties (emphasis added); and

2. Secondly, the written request seeks to import the character of the R3 zone into the R2 zone when determining the desired future character of the locality with which the height, bulk and scale of the proposal should be compatible; and

3. Thirdly, the written request does not demonstrate that the proposal positively complements and contributes to the physical definition of the street network; and

4. Finally, the written request is misdirected when asserting the implications of strict compliance with the height standard are that no benefit would accrue to neighbouring properties.

The overall height of development preserves the environmental amenity of neighbouring properties and public spaces

37. The Respondent cites the agreed overshadowing to No 1 Ormond Street and No 58 Sir Thomas Mitchell Road as evidence that the amenity of neighbouring properties is not preserved, in similar factual circumstances as in Arbib v Waverley Council [2018] NSWLEC 1475 (Arbib), and Bouchard v Waverley Council [2019] NSWLEC 1449 (Bouchard) where the impact, which was also agreed to be minor, was determined to have failed the test of preserving the amenity with the consequences being that the objectives of the standard were found not to have been achieved.

38. In the alternative, Dr Berveling, counsel for the Applicant, considers the preservation of amenity to be a question posed in general and is not limited to one aspect of amenity such as loss of solar access, as it was put by Acting Commissioner Clay in STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 at [75].

39. On p16 of the joint planning report, Mr Karavanas details his analysis of the impact on solar access to adjoining properties, including the times of the day during which an impact or improvement in solar access occurs. This analysis is also illustrated in the solar access – views from the sun drawings (drawings DA-9202 and DA-9203 and DA-9400-9403) and shadow diagrams (Exhibit B, Tab 3).

40. Unlike the circumstances set out in Arbib and Bouchard where a gain in solar access does not appear to have accompanied the loss of solar access, the shadow diagrams prepared by Cad Draft behind Tab 3 identify areas marked in yellow that are areas currently overshadowed by the existing residential flat building, but that will now receive solar gain.

41. While the net loss of solar access in Arbib and Bouchard may be explained by the nature of the application being for the addition of a new storey in those cases, in this case an existing building is proposed to be demolished, and rebuilt in a new building envelope with a different 3-dimensional built form that results in gains and losses due, in part, to different side setbacks and roof form.

42. This new built form permits solar access to adjoining properties in those parts marked yellow, and imposes new shadow in those parts marked red-brown.

43. In the case of No 1 Ormond Street, there appears a net gain in solar access when the shadow diagrams are considered between 9am and 12pm. This gain is in the vicinity of the swimming pool, where solar access may be considered desirable.

44. Sometime between 2pm and 3pm, the north-facing window to the master bedroom at No 1 Ormond Street loses the solar access it currently enjoys.

45. The experts agree that the impact on solar access at No 58 Sir Thomas Mitchell Road occurs at 9am. According to Mr Vescio, the impact falls on an area that is contiguous with the principal private open space. I note that the coloured areas denoting the gain and loss of solar access are approximately equal in size.

46. In considering the extent of solar access that is both gained and lost on adjoining properties, I find the preservation of environmental amenity in respect of solar access to neighbouring properties to be, on balance, demonstrated.

47. Separately, I record here that parties are agreed that the environmental amenity of neighbouring properties in respect of privacy and overlooking can be addressed by conditions requiring the screening of certain windows, and the rear roof terrace at Level 2.

37. That said, the Respondent considers the result of screening to windows facing the side boundary at Ground floor at Level 1 to be a consequence of inadequate side setbacks and gives rise to adverse internal amenity for future occupants.

The locality, and its desired future character, is defined

49. Next, the parties dispute the particular area to be considered when assessing the locality in which the desired future character is to be found pursuant to objective (d) of the height standard, and to which the written request should be directed.

50. Relatedly, the relevant desired future character itself is also disputed.

51. The Respondent submits that the written request is influenced by the character of the R3 zone located opposite the site, and by two residential flat buildings that are anomalous in the R2 zone, when determining the desired future character of the locality with which the height, bulk and scale of the proposal should be compatible.

52. Mr Karavanas considers both the residential flat buildings located opposite the site, within the R3 zone, and the two residential flat buildings on the same side of the street as the subject site to be relevant to the visual catchment from which character may be derived. Furthermore, the proposed street frontage of three storeys is, according to Mr Karavanas, consistent in bulk and scale with the existing and desired future character of the neighbourhood.

53. The Applicant submits that, in the absence of a desired future character statement, it is reasonable to consider both sides of the street when determining the extent of the locality, which is a term of wider application than the area identified in the WLEP as the R2 zone.

54. This is supported by the principle set out in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 (Seaside Property), at [25], that where one zone adjoins another, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone.

55. Furthermore, as development standards commonly vary within a zone, a ‘locality’ is properly considered a more expansive and inclusive term.

56. The parties are agreed that the desired future character of the low density residential R2 zone is informed by the provisions of Section C2 of the WDCP.

57. However, the provisions applicable to the development the subject of the development application are found at Section C4.5 of the WDCP which deal with Building Design and Streetscape for development subject to SEPP 65 in the following relevant terms:

“Objectives

(a) To have development of a scale and appearance in keeping with the street.

(b) To design residential development to respond to the streetscape character.

…

(e) To ensure that contributory elements of a streetscape are considered in building design.

Controls

(a) Building design is to respond to the existing streetscape character of the area.

…

(c) The colour and finish of external finishes should be sympathetic to the street and contribute to the overall appearance of the building.

…”

58. Mr Vescio accepts that in matters of materials or roof form, it may be appropriate to have regard to both sides of a street, but for matters of streetscape character, scale and land use, it is more common to adopt the streetscape on the side of a subject site.

59. Considering the proposed development in the context of the southern side of Sir Thomas Mitchell Road, Mr Vescio identifies the large curved balconies and broad extent of glazing to the street frontage as alien, and the mansard roof as incompatible with the pitched roof forms that predominate.

60. Mr Karavanas regards both the streetscape character and contributory elements to be so varied that they are difficult to detect.

61. For the reasons shown by Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD DB2 appeal), at [59], the desired future character of a locality can be evaluated by reference to matters other than only those provisions establishing the zoning, the permitted and prohibited development, and the development standards for permitted development in the zone, including the development standards themselves, but also other factors, including approved development that contravenes the development standard (SJD DB2 appeal at [63]) which change the built form and urban character that exist at any particular time (SJD DB2 appeal at [53]).

62. In this case, the subject site benefits from an existing use, as do the two residential flat buildings nearby identified in Figure 8 of the written request at Exhibit E, which are relied on in support of the argument that objective (d) of the height standard is achieved notwithstanding the non-compliance.

63. In the SJD DB2 appeal, his Honour, at [54], applied a proviso to the consideration of approved development that contravenes development standards that there should be nothing in the subject matter, scope and purpose of the controls to limit such consideration.

64. While his Honour found no such limitation implied in the SJD DB2 appeal, that is not the case here.

65. As I understand the factual circumstances in the decision the subject of the SJD DB2 appeal, SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112, two approved developments adjoining the subject site were said to demonstrate the desired future character but contravened the development standards. Both developments were approved under the same planning framework as applied in the case before the Acting Commissioner. Accordingly, there was nothing to preclude consideration of those developments that had been approved.

66. In this case, the existing developments on which the Applicant relies in Figure 8 of the written request at Exhibit E are residential flat buildings that are no longer a permitted development according to the Land Use Table at cl 2.3 of the WLEP. The planning framework was amended sometime after their consent.

67. Accordingly, while I accept that the residential flat buildings located in the R2 zone may contribute to the existing character of the area, I consider there to be serious limits on the extent to which those existing uses can be said to contribute to the desired future character.

68. As residential flat buildings are not a permitted use on the southern side of Sir Thomas Mitchell Road, it follows that the desired future character on the southern side of the street will not include residential flat buildings as a feature or element of the character with which the proposed development should be compatible in terms of its height, bulk and scale.

69. For these reasons, I do not consider the two existing residential flat buildings located on the southern side of Sir Thomas Mitchell Road to be a relevant consideration in assessing the desired future character of the locality with which the proposed development should be compatible.

70. Relatedly, I accept the Respondent’s submission that however the locality is defined, there is a distinct difference in the streetscape character and urban form on either side of Sir Thomas Mitchell Road.

71. To the northern side of the street, residential flat buildings predominate. On the southern side of the street, with the exception of the three residential flat buildings identified in Figure 8 of the written request at Exhibit E, detached dwellings of one and two storeys in height with pitched roofs predominate.

72. While I accept the Applicant’s argument that ‘locality’ is a broad term that can be determined by topography, built form or landscape setting and the like, the boundaries of a locality can also be, and commonly are, defined by a roadway. In the circumstances of this case, I place weight on the role played by Sir Thomas Mitchell Road to demarcate between zones in which the existing character clearly varies, permitted land uses differ, and in which different FSR and height standards apply.

73. By extension, I also consider the existing and desired future character on ether side of the street to be sufficiently distinct to exclude the urban form on the northern side of Sir Thomas Mitchell Road from any assessment of the desired future character on the subject site.

74. Unlike the circumstance in Seaside Property where the subject site was proposed to be rezoned by operation of a draft environmental planning instrument, there is no question that the subject site in this case is within the R2 Low Density Residential zone. Furthermore, my understanding of the principle advanced in Seaside Property, at [25], is that residents in a low density residential zone should reasonably expect development in a medium density residential zone, as is the case on the northern side of Sir Thomas Mitchell Road, to be of greater bulk and scale. It does not propound the adoption of medium density development in low density residential areas.

75. The question here, as distinct from that considered in Seaside Property, is whether the bulk and scale of the proposed residential flat building in the R2 zone, benefitting from existing use, is compatible with the desired future character of the locality.

76. Mr Karavanas believes the streetscape elevation shown in Figure 9 of the written request at Exhibit E demonstrates the positive contribution made by the proposed development to the street, while the Respondent submits that there is no demonstration of this aspect evident in the written request as required by cl 4.6(3)(a) of the WLEP.

77. In closing submissions, Dr Berveling noted there is no assistance in cl 4.6 of the WLEP as to how such demonstration should be undertaken, and absent such guidance, the Court can be satisfied that the streetscape elevation performs that role.

78. As I understand Mr Karavanas’ oral evidence, it is that the streetscape elevation in the written request demonstrates the need to exceed the height standard in order to benefit neighbouring properties in the streetscape because a lower building form would fail to provide the same transition in the sloping streetscape as that resulting from the exceedance.

79. The written request in Exhibit E asserts the proposed development replaces an existing residential flat building that has a pitched roof, with a new residential flat building that is, according to the Applicant, a two-storey form with attic-style roof that is contextually compatible.

80. Clearly, the proposed roof form is distinct from the pitched roof of the existing building, and the roof form that predominates on the southern side of Sir Thomas Mitchell Road.

81. I note here that the term ‘pitched roof’ is a generic reference to a roof with a gradient or slope. The particular form of pitched roof evident on the existing building is a hipped roof, which means, simply put, the highest ridgeline is setback from the perimeter of the roof by sloping planes.

82. This difference in roof form geometry is not immediately understood by reference to Figure 9 of the written request, as the Figure is an illustration in elevation.

83. The roof form of the proposed development is not an attic-style roof by reason of the full height glazed assembly that runs the full width of the street frontage at the upper level. The upper level glazing presents a full storey to the street, whereas the existing roof, said by the written request to have a ridgeline that is higher than that now proposed, is set well back from the perimeter of the existing building.

84. Furthermore, while the topmost RL on the roof of the proposed development may appear, in elevation, to be at an approximate midpoint between the ridgeline of No 1 Ormond Street and No 58 Sir Thomas Mitchell Road, that is not how I understand it will appear when viewed from the street.

85. Consistent with the predominant character of the southern side of the street, the roof forms of No 1 Ormond Street and No 58 Sir Thomas Mitchell Road are also hipped roofs, and so their ridgelines also recede well behind the building line fronting the street. By contrast, the proposed roof form achieves its full height at the building line fronting Sir Thomas Mitchell Road, above the cantilevered form of the Level 2 balcony.

86. In my view, such a built form supports the Respondent’s submission that the proposed roof will read as an additional storey, with the outcome being a three-storey form in what is otherwise a low-density residential locality.

87. Furthermore, a close reading of the elevation in Figure 9 also shows the RL of the Level 2 balcony to be above the level of the gutter line to the neighbouring property at No 58 Sir Thomas Mitchell Road. The proposed roof form rises above this level, and Figure 3 of Exhibit E shows the extent of the resultant exceedance.

88. In my assessment, the combination of the topmost storey being set forward on the site and the cross fall in topography results in a built form that supports Mr Vescio’s evidence at [59] that the proposed presentation to the street is inconsistent with the desired future character of the locality on the southern side of Sir Thomas Mitchell Road.

89. Additionally, it is at this location in the front setback that two large cantilevered balconies are proposed of at least 4m in depth at their widest dimension, above a ground level terrace of similar dimensions. Living, dining and kitchen functions address the terrace and balconies on each level.

90. The scale of the balconies is unlike anything evident in locality, and the height of the cantilevered Level 2 balcony is above the height of the gutterline of No 58 Sir Thomas Mitchell Road. Whereas low density residential development may be expected to have communal living spaces on one, or perhaps two levels, the medium density development proposed on the subject site encourages outdoor living functions in the front setback on all three levels.

91. While this arrangement may be acceptable, indeed desirable, in an R3 zone where residential flat buildings are a permitted form of development, and the use of generous balcony spaces for outdoor living and entertaining are anticipated, I can only conclude that the built form presenting to the street, and the nature of functions intended for it, are not compatible with the height, bulk and scale of the desired future character of low density residential development intended for the R2 zone.

92. The reliance by the Applicant on the elevation in Figure 9 to address objective (d) of the height standard also supports the submissions made by the Respondent that the written request at Exhibit E fails to demonstrate that the matters in cl 4.6(3)(a) of the WLEP have been adequately addressed in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction.

93. This is because the elevation drawing at Figure 9 is incapable of demonstrating the 3-dimensional qualities of the streetscape set out at [82]-[87] that are, in my view, otherwise only partly discernible in the aerial 3D images at Figures 3 and 4 of the written request.

94. In particular, the elevation is misleading in the suggestion it makes as to the transition between the height of the built form at No 1 Ormond Street and the height of the built form at No 58 Sir Thomas Mitchell Road.

95. The suggestion seeks to support the assertion made in the written request that the height standard must be exceeded in order to benefit neighbouring properties in the streetscape because strict compliance would fail to provide the same transition in the streetscape as that resulting from the exceedance.

96. In my view, the written request at Exhibit E does not sufficiently demonstrate that a benefit exists due to the exceedance, and does not sufficiently tether the claimed benefit arising from the exceedance, to the exceedance.

97. The written request fails to provide images or diagrams to demonstrate how the streetscape would otherwise be deprived of benefit, such as 3D views from a viewpoint taken at the street frontage, or an analysis of the roof forms described at [83]. Omission of such material precludes the Court from forming a view as to whether the proposed development provides the benefit asserted.

98. Absent further explanation, I conclude that the written request at Exhibit E does not sufficiently demonstrate that compliance with objective (d) of the height standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a) of the WLEP.

99. While this alone prevents me from forming an opinion of satisfaction in accordance with cl 4.6(4)(a)(i) of WLEP, I record here that I have also considered the environmental planning grounds advanced by the written request and conclude that those grounds are not sufficient to justify the contravention for the reasons that follow:

1. Section 5.2 of the written request at Exhibit E sets out what it considers to be sufficient environmental planning grounds to justify the contravention of the height standard, in accordance with cl 4.6(3)(b) of the WLEP. These grounds may be summarised as follows:

• The proposal is lower than the existing building, and the mansard roof form has no effect on solar access to adjoining properties as it exceeds the setbacks required by the WDCP.

• The exceedance is limited to the northern corner of the site where past excavation has lowered the topography, but from where no unreasonable visual bulk is discerned as additional height. Instead, the resultant built form is consistent with the density and character of the area when surrounding residential flat buildings are considered.

• Compatibility with the density and character is achieved by satisfying the objectives of the height standard while strict compliance would require the removal of the topmost floor, or increased excavation which would be to the detriment of future residents without a benefit to the amenity of nearby residents.

2. For the reasons summarised at [91], I find the built form and proposed functions presenting to the north-western corner of the site incompatible with the desired future character of the locality.

3. Additionally, as stated at [69], I do not consider the two residential flat buildings a relevant consideration in seeking to define the desired future character on the southern side of Sir Thomas Mitchell Road. Likewise, I do not consider the residential flat buildings in the R3 zone to be relevant either.

4. Finally, I do not accept that strict compliance with the height standard would require the removal of the top floor because the height is not exceeded by the whole of the top floor.

100. As I am unable to form the positive opinion of satisfaction that the applicant’s written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b), the Court’s power to grant consent is not enlivened and it is unnecessary for me to consider the written request at Exhibit F, or to undertake an assessment of the merits of the proposal.

Orders

101. The Court orders that:

1. The appeal is dismissed.

2. Development consent for Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi Beach is refused.

3. All exhibits are returned, except for A, B and 7.

……………………

T Horton

Commissioner of the Court

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Decision last updated: 06 July 2021