Ricola Pty Ltd v Woollahra Municipal Council

[2021] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ricola Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1047

Hearing dates:

9-10 December 2020

Date of orders:

28 January 2021

Decision date:

28 January 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The development application for the demolition of the existing building and the construction of a six-storey shop top housing development at 49-53 Bay Street, Double Bay, is refused.

(3) The exhibits are returned, except for Exhibits 2, A, E, P and K.

Catchwords:

APPEAL – development application – breach of height and floor space ratio development standards – impact of recent approvals – whether written request adequately addresses the requisite matters

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Woollahra Local Environmental Plan 2014

Cases Cited:

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

Initial Action Pty Ltd v Woollahra Municipal Council 236; LGERA 256; [2018] NSWLEC 118

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

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

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

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:

Ricola Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/404227

Publication restriction:

No

Judgment

1. COMMISSIONER: Bay Street runs from New South Head Road to the south, to Double Bay wharf in the north, and much of its length forms part of the local centre of Double Bay. The local centre contains a number of retail and food premises which are home to a vibrant community, with some residential apartments above those ground floor premises. A number of new developments are being pursued or are under construction, which will result in increased residential apartments above ground floor commercial uses. On the corner of Bay Street and Knox Lane, known as 49 and 51-53 Bay Street, Ricola Pty Ltd (“Ricola”) seeks development consent for the demolition of existing buildings and the construction of a new shop top housing development. It lodged a development application with Woollahra Municipal Council (“the Council”) on 29 January 2018. These proceedings are an appeal by Ricola, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), against the refusal of that application on 15 August 2019.

2. The proposed development is a six-storey shop top housing development that presents a four-storey south-eastern frontage to Knox Lane. It comprises two basement levels accommodating 32 car parking spaces as well as bicycle and motorcycle parking, with vehicular access from Knox Lane. The ground floor level contains one retail tenancy and ancillary building services including garbage storage facilities, and the shop top housing comprises 5 levels of residential apartments with 22 units. The proposed built form is characterised by an articulated six-storey street wall to Bay Street with a curved form at the corners, with a four-storey element presenting to Knox Lane. The four-storey element is designed to continue the four-storey street wall in the building recently approved by the Court at 20-26 Cross Street in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112.

3. The design of the proposed development has evolved over time. As a result of the joint conferencing of the experts, the design that is now proposed has significantly narrowed the issues in dispute between the parties.

4. Nevertheless, the Council remains opposed to the proposed development on the basis that it breaches both the development standards for height and floor space ratio (“FSR”). The experts agree that the proposed development is reasonably compatible with the desired future character of the neighbourhood due to the positive built form relationship with the form and scale of existing and approved buildings that are visually proximate to the site. However, they disagree on whether the proposed development minimises impacts in relation to views and visual intrusion, as required by the objectives of the height development standard, with which the development must be consistent to allow a variation to the height development standard.

5. For the reasons set out below, I am not satisfied that the written request concerning the height development standard has adequately addressed the matters required to be demonstrated. Accordingly, there is no power to grant development consent.

The site and the locality

6. The site comprises two lots, known as 49 and 51-53 Bay Street, Double Bay and legally described as Lot 1 DP211538 and Lot 1 DP85395. The site has a total area of 803.6m², with number 49 and numbers 51-53 having areas of 326.4m² and 477.2m² respectively.

7. The site is located on the eastern side of Bay Street, and to the north of Knox Lane. It is located diagonally opposite Guilfoyle Park.

8. It has a frontage of 29m to Bay Street on the west and a secondary frontage of 27m to Knox Lane on the south. It then has an eastern side boundary of 27m and northern side boundary of 30m.

9. The site is relatively level, and is highly visible from the public domain in light of its corner position. There are some street trees fronting the site on Bay Street.

10. The Double Bay local centre has a mixed character, with existing development comprising a mix of retail and commercial uses in a variety of building forms, including some with upper level residential accommodation. In addition, a number of larger scale mixed use buildings have recently been approved on nearby sites to the east in Cross Street. Specifically, the Council approved six-storey mixed use buildings at 16-18 Cross Street and 20-26 Cross Street, which have frontage to both Cross Street and Knox Lane. On 12 March 2020, the Court approved a six-storey mixed use building at 28-34 Cross Street, which is a site that similarly has frontage to both Cross Street and Knox Lane, and adjoins the site the subject of these proceedings. Each of those developments are designed with the upper levels set back and a street wall of four storeys.

11. An aerial photograph showing the location of the site, and the number of storeys on buildings in the locality, is in Figure 1.

12. As observed by Acting Commissioner Clay in SJD DB2 Pty Ltd v Woollahra Municipal Council, “there is a clear “block” of Cross Street from its intersection with Bay Street, to the point at which Knox Lane intersects with Cross Street.” However, Bay Street is a wide street and a separately defined street character under the Council’s controls.

Expert evidence

13. Expert evidence was given on urban design and town planning by Mr James Lidis, a town planner engaged by Ricola, Mr Frank Stanisic, an urban designer engaged by Ricola, and Mr Brett Newbold, an urban designer and town planner engaged by the Council.

14. Both Mr Stanisic and Mr Newbold agree that the street and laneway elevations of the proposed development are of a height and form that do not create excessive contrasts with the existing developments in the locality, and that its mass and scale does not present overwhelming or dominating backdrops to Bay Street or Guilfoyle Park. Mr Lidis, Mr Stanisic and Mr Newbold all agree that the design of the proposed development achieves reasonable compatibility with the desired character.

The Planning Framework

15. The site is zoned B2 Local Centre pursuant to the Woollahra Local Environmental Plan 2014 (“WLEP 2014”). 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. Pursuant to cl 4.3(2) of the WLEP 2014, and the Height of Buildings Map, the site is subject to a maximum height of 18.1m. The proposed development does not comply with this development standard, and has a maximum height of 21m.

17. Pursuant to cl 4.4 of the WLEP 2014, the maximum floor space ratio (“FSR”) that applies to the site is 2.5:1. However, cl 4.4A applies to 49 Bay Street and allows consent to be granted for a FSR of up to 3:1 if the consent authority is satisfied “that the development will be compatible with the desired future character of the zone in terms of building bulk and scale”. The Council raises no issue with respect to compliance with this condition, and the experts agree that the bulk and scale of the development is compatible with the desired future character.

18. Applying the two different FSR controls to the two sites, taking into account the relative proportions of the two lots, results in a total overall allowable FSR of 2.7:1. The proposed development does not comply with this, and has an overall FSR of 3.41:1.

19. Clause 4.6 of the WLEP 2014 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). Two written requests, one in respect of each breach, have been provided in support of the development application. The terms of cl 4.6, and my consideration of the matters in cl 4.6(4), are set out in detail below.

20. The site is mapped as having Class 2 Acid Sulfate Soils. As such, cl 6.1 of the WLEP 2014 applies. Consistent with the requirements of cl 6.1(3) of WLEP 2014, an acid sulfate soils management plan has been prepared for the proposed works.

21. Clause 7(1) of the State Environmental Planning Policy No 55—Remediation of Land requires that consideration be given as to whether the site is contaminated. The Preliminary Site Investigation for Contamination, prepared by Douglas Partners, states that the site can be made suitable for the proposed uses subject to a number of recommendations, which are incorporated in the agreed draft conditions of consent.

22. The site is located within the Double Bay Centre, pursuant to Part D5 of the Woollahra Development Control Plan 2015 (“WDCP 2015”). The provisions of the WDCP 2015 are set out in the discussion on the desired future character below.

The desired future character

23. Throughout the WLEP 2014, there is a common objective in the zone and in the development standards for height and FSR, for the development to be compatible with the desired future character. The desired future character can be ascertained from the applicable development standards, the controls in the WDCP 2015 and recent approvals.

From the development control plan

24. In D5.4 of Part D5, the WDCP 2015 sets out a desired future character for each street in the Double Bay Centre. At clause D 5.4.2 there are also some common street strategies, as follows:

“• Strengthen the spatial definition of streets by encouraging building to the street boundary.

• Provide continuous active retail frontage at ground floor level.

• Increase street surveillance and promote a safe environment.

• Strengthen all built form on corner sites.”

25. The site is located in three of the areas with a defined street character.

26. The first is the centre portion of Bay Street. The desired future character, which is focused on Guilfoyle Park, is set out at D5.4.5, as follows:

“a) Lot amalgamations on blocks in proximity to Guilfoyle Park.

b) Expand the public domain at street level and improve the civic character with street level building colonnades that face central Bay Street and Guilfoyle Park. Provide a built form that responds to the scale and civic importance of Guilfoyle Park.

c) Higher buildings are permitted around the park to provide appropriate definition of the space.”

27. The built form diagram shows buildings of 5 storeys in height built to the street alignment, with an articulation zone of 2.4m. The notes include the following:

“A variety of roof forms is encouraged

Build to street alignment with loggias and balconies.”

28. The second area in which the site is located is the Cross Street character area. This area has the following desired future character, from D5.4.7:

“a) Unify the street on the north side by building to the street boundary.

b) Retain street level connections to Knox Lane.

c) Allow 4 storeys on 50% of each site frontage to Knox Lane. See Control Drawings for more information.

d) Encourage arcades and courtyards on the south side that cater for outdoor eating and informal gathering.

e) Strengthen built form on corner sites.”

29. The built form diagram shows four-storey development on the south side of Cross Street, and five storeys on the north side, with the top level of each set back from the street boundary. The notes include the following:

“Set back level 4 development from the street boundary

Use the ground level articulation zone to create courtyards or outdoor rooms which activate the street edge

Continuous retail frontage”

30. The third area in which the site is located is the Knox Lane area. It has the following desired future character, pursuant to D5.4.9:

“a) Retain and enhance the varied spatial definition of Knox Lane.

b) Retain and enhance the honeycomb of arcades and courtyards which connect Knox Street to Cross Street.

c) Encourage visual and physical connections between Knox and Cross Streets using:

− arcaded and/or outdoor connections;

− north oriented courtyards; and

− arcade and courtyard creating buildings,

which may vary from the control drawings in Section 5.5.8.”

31. The built form diagram shows a four-storey building on the north side of Knox Lane, with the upper two levels recessed.

32. Section D5.6 of Part D5 of the WDCP 2015 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 D5.5.8 shows the site as having a five-storey control, and is shown at Figure 2.

33. The desired future character described for each street, and the associated controls, is consistent with the development standards in the WLEP 2014 for height and FSR.

34. The operation of the storey control, the additional FSR that is permitted for 49 Bay Street pursuant to cl 4.4A of the WLEP 2014, and the fact that the height development standard for the site is greater than that applicable to sites along Knox Lane and Cross Street, facilitates the use of additional bulk and height to achieve a design that defines the corner. The guidance with respect to corner buildings is set out at clause 5.6.3.5 of Part D5 of the WDCP 2015:

“5.6.3.5 Corner buildings

Corner buildings are highly visible and provide the opportunity for notable design solutions. Strong corner buildings can provide valuable street definition. Existing buildings within the study area that provide this definition include the buildings on the corners of Knox Street and New South Head Road, and Coopers Corner on the intersection of Bellevue Road and New South Head Road. Due to the distinctive street geometry strong corner buildings can play an important urban design role in the Double Bay Centre.

The corner lots that may be granted additional floor space are identified in clause 4.4A of Woollahra LEP 2014…”

35. The objectives with respect to corner buildings seek to encourage massing and articulation for “strong corner buildings”, and the controls seek to achieve this by requiring the massing to be distributed to enhance the corner, and the street edge to have the maximum prescribed height. The relevant objectives and controls are as follows:

“Objectives

O1 Encourage building massing and articulation that creates strong corner buildings.

O2 To outline the desired future character of corner sites where applicants seek to use an FSR of 3:1 per clause 4.4A of Woollahra LEP 2014.

Controls

C1 Consider the design of corner buildings in relation to street geometry, topography, sight lines and the design of skyline elements.

C2 Distribute building massing, such as height, to enhance the corner.

C3 Corner buildings are encouraged to achieve the maximum prescribed height along the street edge

…”

Recent approvals

36. Despite the four-storey control for the south side of Cross Street, the recent development consents described above at [10] have departed from these controls and changed the nature of the future character in the block of Cross Street from Bay Street, to where Knox Lane ends at its intersection with Cross Street.

37. As a result of those development consents, the future built form from 16 to 34 Cross Street comprises three contiguous six-storey buildings (at 16-18 Cross Street, 20-26 Cross Street and 28-34 Cross Street) designed as a four-storey street wall on both Knox Lane and Cross Street and an additional two storeys that are recessed and less visible from each of the streets.

38. In SJD DB2 Pty Ltd v Woollahra Municipal Council, which concerned the approval at 28-34 Cross Street immediately to the east of the site the subject of the proposed development, Acting Commissioner Clay considered that the desired future character of the area should take into account the form of the buildings approved by the Council. He stated, at [69]:

“The desired future character in my opinion must take into account the form of the buildings to the east which the Council approved under effectively the same controls as present. Those buildings exceed the height and floor space ratio controls. As the Applicant pointed out in submissions, this is not a case where there is an adjacent development approved and constructed many years ago which sits as an anomaly in the street. The developments under construction represent the recently expressed attitude of the Respondent to the controls and what is desired in this part of Cross Street.”

39. Further, he considered that there was an abandonment of the controls on the block of Cross Street, on the southern side (see [94]).

40. In relation to the “flow on” effect of the development at 28-34 Cross Street, the following comments were made by Acting Commissioner Clay concerning the future development of what he described as the “building to the west” (at [73]):

“There was some debate about whether the building to the west, a corner site requiring emphasis, would also need to breach the controls in order to provide a proper context for the proposal. That, it was said by the Respondent, was not orderly planning. First, it should be noted cl 4.6 of WLEP is as much a part of WLEP as the clauses with development standards. Planning is not other than orderly simply because there is reliance on cl 4.6 for an appropriate planning outcome. Second, it became clear during the evidence from Mr Frecklington that the corner building to the west can be emphasised without breaching the height control, by having a greater street wall height than the four storeys street wall height proposed for the development on the Site.”

41. The decision of Acting Commissioner Clay, and in particular his consideration of recent approvals in determining the desired future character, was confirmed on appeal: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115.

41. On 7 May 2020, the Council also granted a development consent for alterations and additions to a four-storey building at 30-36 Bay Street, including the addition of 2 storeys above. The two additional storeys are setback from the street and from the lower levels, by 3.5m.

The proposed development and consistency with the desired future character

43. The experts agree that the height and scale of the proposed development is consistent with the desired future character of the immediate locality. Mr Newbold and Mr Stanisic agree that the visual comparisons between the proposed development and surrounding buildings would be most apparent in the following locations (Ex 2 p 7):

“- Along Bay Street northwards from Cross Street, which provides a northern approach to the Double Bay centre;

- Along Knox Lane looking westwards from Goldman Lane;

- From central and eastern portions of Guilfoyle Park looking in a north-easterly direction – noting that these vantage points also capture views that would be available from Bay Street near the southern portion of Guilfoyle Avenue.”

44. Mr Newbold and Mr Stanisic agree that the height and the elevations do not create excessive contrasts with existing and approved developments, and that the non-compliant building height “would not present an abrupt or significant visual contrast when compared to nearby ‘reference’ buildings: in particular, 45A and 38 Bay Street” (Ex 2 p 10).

The breach of the development standards

45. As set out above, the proposed development does not comply with either the height or the FSR development standard.

46. The proposed building height is 21m from the ground level to the top of the plant/lift overrun, and 19.6m from the ground level to the top of the roof. This is 2.9m above the maximum building height of 18.1m, which is an exceedance of 16%.

47. The proposed FSR is 3.41:1, which is 0.71:1 greater than the overall allowable FSR permitted by cll 4.4 and 4.4A of the WLEP 2014. This is an exceedance of 26%. Having regard to the quantum of the exceedance on each of the lots that form part of the site, the proposed FSR of 3.34:1 on 53 Bay Street represents a variation to the control provided by cl 4.4 (2.5:1) of 34%, resulting in an additional 400m² of floor space. The proposed FSR of 3.52:1 on 49 Bay Street represents a variation to the controls provided by cl 4.4A (3:1) of 17%, resulting in an additional 170m² of floor space. As such, the total floor space that exceeds the permitted FSR is 570m².

48. 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.

49. In considering whether the state of satisfaction required by cl 4.6(4)(a) has been met, I summarised the relevant principles in Abrams v Council of the City of Sydney [2019] NSWLEC 1583 as follows:

“32 Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),

• The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),

• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and

• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

33 Consistent with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must “in fact” be satisfied of the above matters. The state of satisfaction that compliance is “unreasonable or unnecessary” and that there are “sufficient environmental planning grounds” to justify the contravention (the first two dot points above) must be reached only by reference to the cl 4.6 request. Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request.

34 A further precondition in cl 4.6(4), which must be satisfied before the power can be exercised to grant development consent for development that contravenes a development standard, is that the concurrence of the Secretary has been obtained.”

50. Whilst the Secretary’s concurrence can be assumed for certain development standards as a result of the written notice dated 21 February 2018 attached to the Planning Circular PS 20-002 (which does not apply in circumstances where the breach exceeds 10%), s 39(6) of the Land and Environment Court Act 1979 nevertheless gives the Court the power to grant development consent without obtaining the concurrence of the Secretary.

51. The objectives of the height development standard are as follows (cl 4.3(1) of the WLEP 2014):

(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.

52. The objective of the FSR development standard is as follows (cl 4.4(1)(b) of the WLEP 2014):

(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.

53. The parties, and the experts, disagree on whether the proposed development is consistent with objective (d) of the height development standard, “to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion”. The Council contends that the development does not minimise the impacts from disruption of views, or visual intrusion, when considered from Unit 7C at 2-22 Knox Street. This is considered below.

54. The two breaches are self-evidently related, as the additional height results in additional floor space. The focus of the dispute between the parties concerns the breach of the height development standard and whether there is consistency with objective (d) of the standard.

The written request concerning the breach of the height development standard

55. The written request concerning the breach of the height development standard is dated 18 November 2020.

56. The written request argues that compliance with the height development standard is unreasonable and unnecessary for three reasons. The first is that the objectives of the height development standard are achieved notwithstanding the non-compliance with the standard. In addressing the objective to minimise impacts from disruption of views and visual intrusion, the request carries out a view impact assessment based on the planning principle concerning view sharing in Tenacity Consulting v Waringah (2004) 134 LGERA; 23; [2004] NSWLEC 140.

57. The second reason that the request advances as to why compliance is unreasonable and unnecessary is that the underlying objective or purpose would be defeated or thwarted if compliance was required. This reason is advanced on the basis that a compliant development would have a height that is inconsistent with the approved streetscapes.

58. The third reason that the request advances as a basis that compliance is unreasonable and unnecessary is that the development standard has been abandoned and destroyed. This third reason is advanced on the basis of the reasoning of Acting Commissioner Clay in SJD DB2 Pty Ltd v Woollahra Municipal Council at [93]-[95] that the controls had been abandoned for this part of Double Bay.

59. The written request also outlines the environmental planning grounds that seek to justify the contravention of the development standard. The primary environmental planning ground relied upon is that the proposed height is compatible with the existing and approved development in the immediate context of the site, whilst also accentuating the corner relative to those developments, which achieves the intent of the Council’s controls for strong corner buildings. The other environmental planning grounds relied upon in the request relate to the lack of impacts, consistency with the desired future character, and the high architectural standard of the design.

60. The request also deals with the requirement that the proposed development must be in the public interest by its consistency with the objectives of the zone and the objectives of the standard. In relation to the latter, the request relies on its analysis that the objectives of the height development standard are achieved notwithstanding the non-compliance with the standard.

The written request concerning the breach of the FSR development standard

61. The written request concerning the breach of the FSR development standard is similarly dated 18 November 2020. It is very similar in its terms to the request concerning the breach of the height development standard.

62. The written request argues that compliance with the FSR development standard is unreasonable and unnecessary for the same three reasons as those relied upon in the request concerning the height development standard. That is, it argues that compliance is unreasonable and unnecessary because, firstly, the proposed development achieves the objective of the standard notwithstanding the non-compliance; secondly, the underlying objective would be defeated or thwarted if compliance was required; and thirdly, the standard has been abandoned or destroyed by the approvals of the Cross Street developments.

63. In similar terms to those used in the written request for the height development standard, the request concerning the FSR development standard outlines environmental planning grounds that seek to justify the breach of the standard. The primary ground relied upon, again, is that the breach of the standard allows a built form that reflects the bulk and scale of approved neighbouring developments “to provide for cohesive streetscapes while it accentuates the corner relative to those nearby developments, development in Bay Street and Guilfoyle Park” (Ex F p 14).

64. The request also addresses the requirement for the proposed development to be in the public interest as a result of its consistency with the objectives of the zone and the objectives of the standard.

The view loss impact

65. The views affected are those from Unit 7C at 2-22 Knox Street towards Sydney Harbour over the existing development with the Double Bay Centre. The hearing commenced with a site inspection, which included attending each of the rooms in Unit 7C at 2-22 Knox Street and observing the views from each room and associated balcony. The views comprise a substantial portion of the harbour channel below Taronga Park, the land and water interface along the northern shoreline, and the full extent of the ridgeline backdrop from Georges Heights to Taronga Park. There are also views toward the ridgeline of Darling Point and its urban form. To demonstrate the nature of these views, photograph of the views taken from the living/dining area (the views least affected by the development) is shown at Figure 3.

66. The views are obtained from three bedrooms and the living/dining area, as well as an outdoor terrace at the eastern end of the apartment. The views most affected by the proposed development are those from the rooms furthest to the west. There is a view loss occasioned by the approved development at 28-34 Cross Street, which will obstruct the view to the eastern portions of the channel, the ridgeline backdrop and the land and water interface. The surviving views nevertheless include views of the harbour channel, the land and water interface along the northern shoreline, and the ridgeline backdrop, as well as the Darling Point ridgeline. Mr Newbold and Mr Lidis agree that much of these surviving views will be lost as a result of the proposed development, ranging from a 60-75% view loss in the three rooms that benefit from surviving views, with a retained keyhole view of ridgetop canopy. In the three rooms furthest to the west, each of which has a balcony, a compliant building would retain views of the surviving ridgeline backdrop, although views of the channel and shorelines would be obstructed. Part of this view loss is shown in Figure 4, which are based upon photographs taken from the room furthest to the west (used as an office). I note that Figure 4 does not show the extent of the disruption of the views that are to the west of the camera’s frame, which were readily perceived in person in the site inspection, or from the balcony. Mr Newbold and Mr Lidis agree that there will be no views from the living/dining area and the outdoor terrace that will remain after the development at 28-34 Cross Street.

67. The written request acknowledges that “the degree of impact, compared with the existing situation, is severe.” However, it also states that “taking into account the effect of a complying development, it is my view that the degree of impact associated with the height variation is moderate” (Ex E p 15). It then goes on to state that this view loss is reasonable in circumstances where “the existing views are highly compromised, the remaining available view would lose its context with a complying development with respect to land-water interface and the impact is greatest to bedrooms” (Ex E p 15).

68. The evidence of Mr Lidis and Mr Newbold is also that the development of the site at 36 Cross Street (shown as 55 Bay Street in Figure 2) will result in a total loss of the surviving views from those three rooms described above.

Other evidence concerning the breach of the height development standard

69. Mr Newbold, Mr Lidis and Mr Stanisic agree that the non-compliance with the height and FSR development standard does not result in pronounced incompatibility with desired character, and that the articulation of building forms “comprising steps and indentations, contributes to suitably-coherent streetscapes by matching the forms of existing or approved multi-storey neighbours” (Ex 2 p 12). They also agree that the proposed development appropriately concentrates the mass towards the laneway corner and Bay Street, and that the heights of existing buildings along the northern portion of Bay Street “provide primary visual references for the proposed development” (Ex 2 p 9).

70. However, the experts disagreed on whether the proposed height of six storeys is necessary to achieve a prominent corner building on the site.

71. The evidence of Mr Newbold is that the prominence of a corner building can be achieved without reliance on the number of storeys. He opines that you do not need a difference in height to promote a corner building, and that a prominent corner building could be achieved in five storeys. His evidence concerning the written request is therefore that there are no apparent planning grounds that would justify the six-storey component of the proposed development, as a compliant building would equally satisfy “all matters which have some bearing upon building height” (Ex 3 p 10).

72. Mr Newbold’s evidence is also that Bay Street and Cross Street have a different context, and the ‘Cross Street spine’, which includes the approved six-storey developments, “comprises a visually discrete village centre streetscape and… recent six storey consents do not establish relevant precedents for properties which flank Bay Street and which identify the western periphery of that village” (Ex 3 p 10). In oral evidence, he expanded on this point by referring to massing models that enabled him to compare all options, and surmised that when he compared all the options there was nothing about a six-storey development that stood apart from five-storey built form in the visual context.

73. In these circumstances, and in circumstances where he opines that the proposed development does not minimise the disruption of views or the visual intrusion, Mr Newbold’s evidence is that it has not been demonstrated that compliance with the development standard for height would be unreasonable or unnecessary.

74. Mr Stanisic instead opines that the intent of control drawing 4 is that building height should follow the hierarchy of streets, and for Bay Street to have taller buildings to reflect its role as a primary street within the Double Bay centre. As such, he considers that six storeys is appropriate in that context.

75. Mr Lidis also opines that the proposed development is more consistent with the prevailing development than a five-storey development, and more consistent with the intent of the controls. His evidence is that a six-storey building is therefore better than a five-storey building, and a five-storey building would not achieve the same desired future character. His evidence was that a five-storey building would be “less consistent” with the desired future character.

The applicant’s submissions

76. Ricola makes a number of submissions in support of the bulk, scale and height of the proposed development, and submits that both of the written requests adequately establish that compliance is unreasonable and unnecessary, and set out sufficient environmental planning grounds.

77. Ricola submits that the emphasis in the WLEP 2014 is on the desired future character, which presents as a consistent theme throughout the objectives of the standards and the zone. One of the objectives of the B2 Local Centre zone is to “ensure that development is of a height and scale that achieves the desired future character of the neighbourhood”. Further, the single objective of the FSR development standard is to “ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale”, which is in the exact same terms as the precondition to cl 4.4A, which concerns the bonus FSR for the corner site. One of the objectives of the height development standard also concerns the desired future character, to “establish building heights that are consistent with the desired future character of the neighbourhood”.

76. In understanding the term “desired future character”, Ricola refers to the decision of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited, in which his Honour considered that the term can be construed as “permitting regard to be had to matters other than only the development standard” (at [63]). He found that the matters that may be taken into account are unconfined (at [54]), and can include approved development that contravenes the development standard (at [63]).

77. Ricola submits that the desired future character is reflected in both the existing approvals and the controls in the WDCP 2015, which contemplate an additional storey on the corner of Knox Lane and Bay Street. In this context, Ricola submits that the desired future character is achieved but in a moderated way, such that there is no additional storey but the breach of the height development standard is less than a full storey above the standard.

78. Ricola submits that in the circumstances where the desired future character has evolved and where the controls allow for an additional storey, returning to the control and reducing the height would result in a building lower in height than the adjacent buildings, which would not be consistent with orderly development. Ricola submits that this means that the environmental planning grounds that are set out in the written request are made out, and are sufficient to justify the breach of the height development standard.

79. In relation to objective (d), “to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion”, Ricola submits that the objective must be viewed through the lens that the desired future character has been changed by the approvals on Cross Street. That is, the question of whether the proposed development is consistent with the objective to “minimise the impacts” needs to be considered in light of a different desired future character to what is reflected in the numerical standard.

80. Further, in understanding this objective, which is to “minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion”, Ricola relies on the interpretation of this objective provided by Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited as follows:

“78 In terms, what is to be minimised under the objective in cl 4.3(1)(d) are “the impacts of new development on adjoining or nearby apartments”, not the disruption of views, loss of privacy, overshadowing or visual intrusion. True, the impacts of the new development on the adjoining or nearby apartments are to be from the disruption of views, loss of privacy, overshadowing or visual intrusion, but it is the collective impacts of the new development on adjoining or nearby properties from these various sources of impact that is to be minimised.

79 This focus of the objective frames the evaluative task required by cl 4.6(4)(a)(ii). Is this development consistent with this objective of minimising the impacts of new development on adjoining or nearby properties from these sources of impact?”

83. In light of the focus of the objective on minimising impacts from these sources of impacts, Ricola submits that, to ascertain whether there is consistency with the objective, an evaluative task is required to consider all the impacts. In the context where there are no issues concerning privacy or overshadowing, where the particular property affected is not an “adjoining” property, and where the views affected are from bedrooms and not living areas, Ricola submits that the development is consistent with this objective.

84. In relation to the breach of the FSR development standard, Ricola submits that it flows from the additional height, and that both the additional height and the FSR are required to meet the intent of the WDCP 2015 for strong corner buildings. Ricola submits that any reversal of that clear intent by returning to compliance with the standards cannot be supported.

The Council’s submissions

85. The Council submits that the written requests concerning the breach of the height and FSR development standards do not establish that compliance is unreasonable or unnecessary, or that there are sufficient environmental planning grounds to justify the contravention of the standards. Further, the Council submits that the proposed development is not consistent with the objective to “minimise the impacts of new development” as a result of the impact of the additional height on the disruption of views and visual intrusion.

86. In relation to the breach of the height development standard, the Council submits that the request does not adequately demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances.

87. In respect of the request’s argument that compliance is unreasonable or unnecessary because the proposed development achieves the objectives of the standard, the Council submits that the request does not actually address the question as to whether the proposed development minimises the impacts of new development on adjoining or nearby properties from the disruption of views and the related visual intrusion. Instead, the request considers the planning principle concerning view sharing, and considers whether the view loss is reasonable. The Council submits that the non-compliance with the height development standard exacerbates the disruption of views caused by the development, and that disruption cannot be considered to be minor or trivial. The Council submits that the result of the views being lost by the development at 28-34 Cross Street is that the surviving views will be more highly prized, and their loss ought not be discounted. The Council submits that the fact that the experts agree that the development proposes a built form that is compatible with the desire future character does not obviate the requirement to achieve all of the objectives of the height development standard, and that no lesser weight should be placed on the objective to “minimise the impacts” due an agreement that the built form is consistent with the desired future character.

88. With respect to the argument in the written request that compliance is unreasonable and unnecessary as the “underlying objective has been defeated or thwarted”, the Council submits that there is no single underlying objective of the height development standard, but there are specific multiple objectives. Further, the Council relies on the evidence of Mr Newbold that the site is not within the same contextual circumstances as the approvals on Cross Street, and the recent six-storey developments “do not establish relevant precedents for properties which flank Bay Street” (Ex 3 p 10).

89. Further, with respect to the argument in the written request that compliance is unreasonable and unnecessary as the standard has been abandoned or destroyed, the Council submits that the lack of precedent to which Mr Newbold refers makes it clear that, as Clay AC expressly found, any abandonment is confined to the block of Cross Street on its southern side and does not apply to Bay Street.

90. The Council submits that the written request concerning the height development standard does not establish sufficient environmental planning grounds to justify the contravention. The Council says that the request, instead, restates the requirement of the objective concerning consistency with the desired future character, and does not establish that a corner building needs the additional height to emphasise the corner. The Council relies on the evidence of Mr Newbold that emphasis on the corner building could be achieved with a five-storey development. The Council points out that this is the same as the evidence that was given by Mr Lidis in the hearing before Clay AC in SJD DB2 Pty Ltd v Woollahra Municipal Council. The Council submits that the other environmental planning grounds relied upon simply restate the requirements for the development and promotes its benefits, without any evidence as to why those benefits would not be achieved with a compliant development.

91. The Council also submits that the Court could not be satisfied that the development meets the requirements of cl 4.6(a)(ii) on the basis that the development is not consistent with the fourth objective of the height development standard, as a result of the impact caused by the disruption of views and visual intrusion.

92. With respect to the written request concerning the breach of the FSR development standard, the Council submits that the request does not establish sufficient environmental planning grounds to justify the breach of the standard. The Council says that the non-compliant FSR in question is represented by the upper portion of the building, comprising the sixth storey. It submits that the environmental planning grounds relied upon do not establish why that upper portion is justified, including why the additional floor space is required to emphasise the corner or achieve the desired future character.

The written request for the height development standard does not adequately address the required matters

93. For the following reasons, I am not satisfied that the written request concerning the height development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). The request has not demonstrated that compliance with the height development standard is unreasonable or unnecessary on the basis of any of the three reasons advanced. Further, although the request has advanced environmental planning grounds, those grounds are not sufficient to justify the contravention of the standard.

The written request does not demonstrate that compliance is unreasonable or unnecessary

94. Firstly, the request has not demonstrated that the proposed development achieves the objectives of the height development standard notwithstanding the non-compliance. This is the first reason advanced in the request to demonstrate that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case, and it reflects the first of the five ways of establishing that compliance is unreasonable or unnecessary, as described by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. In explaining the premise for this way, his Honour says (at [43]):

“43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

95. The relevant environmental and planning objectives for the applicable height development standard are the stated objectives in cl 4.3 of the WLEP 2014. Compliance with the height development standard is fixed as the usual means by which each of the objectives is able to be achieved. This is true of each of the objectives. That is, compliance with the standard is the usual means of achieving “building heights that are consistent with the desired future character…” (objective (a)) as well as minimising “the impacts of new development on adjoining or nearby properties…” (objective (d)).

96. In order to establish that these objectives are met notwithstanding the non-compliance, there must be some alternative means by which each of the objectives are achieved, either by design or by circumstance. The written request advances such means in relation to objective (a), by setting out what the desired future character of the neighbourhood is, and describing how the six-storey design of the proposal achieves that desired future character (see Ex E p 8). Similarly, the written request simply advances such means by describing the circumstances that result in achieving objective (e), as the proposed development and the height variation does not affect any public views from the public domain.

97. However, the request does not advance any means by which the proposed development achieves the objective to “minimise impacts of new development on adjoining or nearby properties” by reference to disruption of views or visual intrusion, and therefore does not establish that objective (d) is achieved notwithstanding the contravention. In considering objective (d), I do not accept the submission of Ricola that its intent should be narrowed in any way by a change in the desired future character brought about by recent approvals in Cross Street. I consider that objective (d) is a discrete objective that concerns amenity impacts, and the impact of the breach of the height development standard is not an impact that is anticipated merely by reason of there being a change to the desired future character of the neighbourhood. As such, to demonstrate that the objectives are met notwithstanding the non-compliance, the request needs to put forward the means by which the proposed development will “minimise impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion”. The request fails to do so, as it does not address how the proposed development will minimise impacts by reference to disruption of views or visual intrusion. Instead, its focus is on whether the view loss is reasonable, taking into account the planning principle in Tenacity Consulting v Waringah. In setting out its analysis within the scope of the planning principle, the only means advanced for minimising the impact is the “high quality of the architectural design” (Ex E p 15). This is not sufficient to describe how the development minimises impacts by reference to disruption of views or visual intrusion, and there is nothing else within that analysis that describes how the proposed development does so.

98. To establish that the objective “to minimise impacts” is achieved, it is not sufficient for the written request to justify the reasonableness of the disruption of views, loss of privacy, overshadowing, or visual intrusion in circumstances where there is an actual and measurable impact occasioned by those sources and that impact is exacerbated by the breach. There is an actual and measurable impact on the nearby property at Unit 7C at 2-22 Knox Street by the disruption of views and visual intrusion by the proposed development, which the request describes as “moderate”. That impact is one that is not anticipated by the numeric control, as the impact is greater than that of a complying development and will result in a loss of the view of the entire ridgeline (other than the keyhole view). If the development complied with the development standard, views of the vegetated ridgeline would be retained. The request has provided no means by which that actual and measurable impact is minimised by the proposed development. The request, therefore, has not established that objective (d) has been met notwithstanding the non-compliance with the development standard.

99. In reaching this conclusion concerning this aspect of the written request, I do not accept the submission of Ricola that the objective to minimise impacts is achieved by the fact that there are no issues concerning privacy or overshadowing, that the particular property is not an “adjoining” property, or that the views are from bedrooms. Objective (d) is concerned with minimising the impact by reference to disruption of views, loss of privacy, overshadowing, or visual intrusion, and is not confined to the consideration of that impact on living areas. Nor does the objective place any greater weight on adjoining neighbours.

100. Secondly, the request does not demonstrate that the objective or purpose of the height development standard would be defeated or thwarted if compliance was required. This is the second reason that the request puts forward as a basis upon which compliance is unreasonable or unnecessary. The request fails to establish this reason. The request assumes, wrongly, that the only relevant underlying objective is to achieve the future character, which is for “a coherent street scale, compatibility with the urban fabric and coherent street definition”. However, there are multiple stated objectives for the height development standard and not a single underlying objective. This includes the objective to minimise impacts, which is discussed above. Further, even if the single underlying objective was correctly assumed, the written request does not actually establish, in fact, that compliance with the development standard would thwart this underlying objective. The request contains a mere statement without any demonstrative analysis as to why a complying development could not achieve “a coherent street scale, compatibility with the urban fabric and coherent street definition”. The request has therefore not established that the underlying objective or purpose would be defeated or thwarted if compliance with the height development standard is required.

101. Thirdly, the written request for the height development standard does not establish that the development standard has been abandoned or destroyed. This is the third reason that the request puts forward as a basis upon which compliance is unreasonable or unnecessary. In seeking to establish the abandonment, the request relies on the findings of Acting Commissioner Clay in SJD DB2 Pty Ltd v Woollahra Municipal Council.

102. However, the findings of the Commissioner concerning the abandonment of the height development standard on Cross Street do not apply to the site the subject of the proposed development. The first reason that the findings do not apply to the site is that the standard referred to as being abandoned by the Commissioner is not the same standard that applies to the subject site. The development standard that is referred to by the Commissioner is a height development standard of 14.7m, in the area marked N5 on the height of buildings map. The development standard that applies to the site is a height development standard of 18.1m, in the area marked P3. A finding that one height development standard has been abandoned does not mean that another height development standard referable to another site has been abandoned. The second reason that the findings of the Commissioner concerning the abandonment do not apply to the site is because the findings are confined to the block of Cross Street, and do not extend to the corner sites that front Bay Street and Knox Lane. This is confirmed by his observations that the evidence concerning the corner site, where the proposed development is located, was that it could still comply with the applicable standard and achieve a prominent corner building design (see [73]). For these reasons, the reliance on the decision in SJD DB2 Pty Ltd v Woollahra Municipal Council in the written request is not sufficient to establish that the height development standard that applies to the site has been abandoned or destroyed, and the written request otherwise fails to establish that the standard applicable to the site has been abandoned or destroyed.

103. The request has therefore failed to demonstrate that compliance with the height development standard is unreasonable or unnecessary through the three reasons advanced. As there are no other reasons put forward in the request as to why compliance is unreasonable or unnecessary, I am not satisfied that the written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. As such, the satisfaction required by cl 4.6(4)(a)(i) of the WLEP 2014 has not been met and there is no power to grant development consent to the proposed development. This alone is a sufficient basis upon which the development application must be refused.

The written request does not demonstrate that there are sufficient environmental planning grounds to justify the

104. Additionally, I am not satisfied that the environmental planning grounds advanced in the written request are sufficient to justify the contravention of the height development standard. In discussing the requirement to demonstrate sufficient environmental planning grounds in Initial Action Pty Ltd v Woollahra Municipal Council, Preston CJ stated:

“the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. 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.”

105. I consider that the first, second and fourth grounds advanced in the written request to justify the contravention (Ex E p 20), which are similar in terms, constitute an environmental planning ground. Together, they clearly outline how the additional height responds to the height and scale of adjoining approved developments and also accentuates the corner.

106. However, this ground is not sufficient to justify the extent of the contravention of the standard. The aspect of the proposed development that contravenes the standard is not just the numerical height or the number of storeys. The extent of the breach above the height development standard can be quantified in both its lateral and vertical extent. The request fails to outline how the environmental planning ground advanced justifies both the lateral and vertical extent of the breach of the height development standard. As such, I cannot be satisfied that the request demonstrates that this is a sufficient environmental planning ground to justify the lateral and vertical extent of the contravention of the standard, which extends laterally across more than half of the site and vertically up to 2.9m above the standard.

107. The remaining grounds that are set out in the request to justify the contravention fail to provide a nexus between the stated environmental planning ground and the breach of the height development standard. That is, there is nothing that tethers the stated environmental planning ground with the contravention of the development standard. As such, none of the remaining environmental planning grounds are sufficient to justify the contravention of the height development standard.

108. For those reasons, I cannot be satisfied that the request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the height development standard and for this reason also I do not reach the state of satisfaction required by cl 4.6(4)(a)(i).

Outcome of the appeal

109. Having not reached the state of satisfaction required by cl 4.6(4)(a)(i) concerning the contravention of the height development standard, cl 4.6(4) of the WLEP 2014 makes it clear that development consent must not be granted. Accordingly, there is no power to grant development consent and the development application must be refused.

110. The Court orders that:

1. The appeal is dismissed.

2. The development application for the demolition of the existing building and the construction of a six-storey shop top housing development at 49-53 Bay Street, Double Bay, is refused.

3. The exhibits are returned, except for Exhibits 2, A, E, P and K.

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Commissioner of the Court

J Gray

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Decision last updated: 28 January 2021