SDHA Pty Limited v Waverley Council - [2014] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation: SDHA Pty Limited v Waverley Council [2014] NSWLEC 1230
Hearing dates: 20 October 2014
Decision date: 06 November 2014
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is dismissed.
2. Application DA-619/2007/J to modify the approval for the redevelopment of the Swiss Grand Hotel building at 180-186 Campbell Parade, Bondi Beach is refused.
3. The exhibits are returned with the exception of exhibit 1.

Catchwords: MODIFICATION: existing development consent for adaptive reuse of building for residential apartments, hotel apartments, retail space and car parking - modification for additional 117 sq m of floor area for Units 505 and 506 to include an additional bedroom, ensuite and walk-in-robe within 2 new curved roof elements on the uppermost floor - whether substantially the same development for which development consent was granted - excessive visual bulk
Legislation Cited: Environmental Planning and Assessment Act 1979
Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Category: Principal judgment
Parties: SDHA Pty Limited (Applicant)
Waverley Council (Respondent)
Representation: Mr P Tomasetti SC (Applicant)
Mr M Staunton, Barrister (Respondent)
Baron & Associates (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 10574 of 2014
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal of an application by Waverley Council to modify DA-619/2007. DA-619/2007was approved on 9 December 2008 and allowed for the substantial redevelopment of the Swiss Grand Hotel building at 180-186 Campbell Parade, Bondi Beach (the site).. This approval included a total floor area of 25,926 sq m, including 74 residential apartments, 68 hotel apartments, two levels of retail space including a gymnasium at the rear facing Gould Street, and works of the existing basement area to accommodate parking. A number of modifications have been approved by the council since the original approval. Construction on the redevelopment has commenced.

The site is irregular in shape with frontages of 90.02 m to Campbell Parade, 68.66 m to Beach Road, 44.93 m to Gould Street and 52.255 m to Curlewis Street, giving an area of 5,883m2. There is a fall across the site, from the north-west (Gould Street / Beach Road corner) to the south-east (Campbell Parade / Curlewis Street corner) of approximately 5 m.

The application

The modification application (DA-619/2007/J) seeks to expand the areas of Units 505 and 506 to include an additional bedroom, ensuite and walk-in-robe within 2 new curved vault shaped roof elements on the uppermost floor. The additional floor area is 117 sq m.

The contentions

The council maintains that the application should be refused as the application:

is not substantially the same development for which development consent was granted, and
has excessive visual bulk.

Is the development substantially the same development for which development consent was granted?

The evidence

Expert town planning evidence was provided by Mr Lee Kosnetter, for the council and Mr Michael Harrison, for the applicant.

Mr Harrison states that previous modifications largely involved internal modifications…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWLEC 1230
Decision Date: 06 November 2014

CaseChat Overview and Summary

SDHA Pty Limited has appealed against a decision of Waverley Council to refuse an application to modify the approval for the redevelopment of the Swiss Grand Hotel building at 180-186 Campbell Parade, Bondi Beach. Waverley Council opposed the appeal, which was heard in the Land and Environment Court of New South Wales. The primary issue before the Court was whether the refusal to modify the approval for the redevelopment of the Swiss Grand Hotel building was unlawful. This required the Court to determine whether the modifications proposed by SDHA Pty Limited were consistent with the existing approval and whether the modifications were in the public interest.

The Court found that the modifications proposed by SDHA Pty Limited were not consistent with the existing approval and that the refusal to modify the approval was not unlawful. The Court held that the modifications proposed by SDHA Pty Limited would result in a significant change to the character of the building and the surrounding area, which was not contemplated under the existing approval. Furthermore, the Court found that the modifications were not in the public interest as they would result in a loss of heritage values and a negative impact on the surrounding environment.

In reaching its decision, the Court considered a number of factors, including the existing approval, the proposed modifications, and the impact of the modifications on the surrounding environment and heritage values. The Court also considered submissions made by both parties and expert evidence provided by both sides. The Court found that the refusal to modify the approval was reasonable and in the public interest, and therefore dismissed the appeal. As a result, the application to modify the approval for the redevelopment of the Swiss Grand Hotel building is refused, and the exhibits are returned with the exception of exhibit 1.

Orders

Orders of the court

1. The appeal is dismissed.

2. Application DA-619/2007/J to modify the approval for the redevelopment of the Swiss Grand Hotel building at 180-186 Campbell Parade, Bondi Beach is refused.

3. The exhibits are returned with the exception of exhibit 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SDHA Pty Limited v Waverley Council [2014] NSWLEC 1230
Hearing dates:	20 October 2014
Decision date:	06 November 2014
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Application DA-619/2007/J to modify the approval for the redevelopment of the Swiss Grand Hotel building at 180-186 Campbell Parade, Bondi Beach is refused. 3. The exhibits are returned with the exception of exhibit 1.
Catchwords:	MODIFICATION: existing development consent for adaptive reuse of building for residential apartments, hotel apartments, retail space and car parking - modification for additional 117 sq m of floor area for Units 505 and 506 to include an additional bedroom, ensuite and walk-in-robe within 2 new curved roof elements on the uppermost floor - whether substantially the same development for which development consent was granted - excessive visual bulk
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Category:	Principal judgment
Parties:	SDHA Pty Limited (Applicant) Waverley Council (Respondent)
Representation:	Mr P Tomasetti SC (Applicant) Mr M Staunton, Barrister (Respondent) Baron & Associates (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10574 of 2014
Publication restriction:	No