Sixto Properties Pty Ltd v Waverley Council

[2019] NSWLEC 1171

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sixto Properties Pty Ltd v Waverley Council [2019] NSWLEC 1171
Hearing dates:	25 March 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) By agreement the applicant is granted leave to amend the development application and rely on the plans in Annexure ‘A’; (2) By agreement the applicant is granted leave to amend the written variation requests and rely on the documentation contained in Exhibit D; (3) The appeal is upheld; (4) Development Application DA/448/2017 for demolition and construction of an attached dual occupancy including associated landscaping and Torrens title subdivision into two lots at 25 Glasgow Avenue, Bondi Beach is approved subject to the conditions in Annexure ‘B’; (5) The exhibits are returned with the exception of Exhibits 3, B and D.
Catchwords:	DEVELOPMENT APPLICATION: new attached dual occupancies – Torrens title subdivision – variation to minimum lot size – variation to floor space ratio – planning experts agree development warrants approval – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Waverley Local Environmental Plan 2012
Cases Cited:	Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Sharp v Hunters Hill Council [2002] NSWLEC 27 Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Sixto Properties Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: J Reid (Applicant)   Solicitors: Mills Oakley (Applicant) J Ede, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/246713
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of the Applicant’s development application number: DA-448/2017. The Applicant seeks approval for: the demolition of the existing buildings; construction of an attached dual occupancy including associated landscaping; and the Torrens title subdivision of the existing lot into two lots. The development is proposed at 25 Glasgow Avenue, Bondi Beach.

2. The appeal was subject to mandatory conciliation on 25 March 2019 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with forthwith, with the consent of the parties as a hearing pursuant to s 34AA(2)(b)(ii) LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing.

3. The Applicant sought and was granted leave by the Court to rely on an amended set of architectural plans and an updated written variation request. The amendments to the development incorporate changes agreed to by the planning experts in their joint conference. The Council raised no objection to leave being granted.

4. Expert town planning evidence was provided by Ms. Alison McCabe for the Applicant and Mr Gerard Turisi for the Council. The planning experts are agreed that the amended plans resolve the issues outlined in the Councils Statement of Facts and Contentions (Ex 3) and address the issues raised by the submissions received from the public during the assessment of the application. The experts recommend the approval of the application.

5. The determination of the application by way of refusal was a decision of the Waverley Local Planning Panel pursuant to s 2.19(1)(a) of the EPA Act. Despite the agreement of the experts that the application warrants approval, the Respondent was unable to get instructions to enter into a conciliation agreement from the Waverley Local Planning Panel.

The site and locality

6. The subject site is identified as Lot 45 in DP 12561. The site is rectangular in shape with a northern frontage street frontage of 18.29m. The site has an area of 420.8m² and is generally flat.

7. The site is currently occupied by a single storey dwelling with vehicular access from Glasgow Avenue. The adjoining development on the west is a single storey semi-detached dwelling. To the east is a two storey residential dwelling. A three storey residential flat building adjoins the subject site at the rear.

8. Glasgow Avenue is characterised by a variety of residential development types including semi-detached and detached dwellings as well as residential flat developments.

Planning Controls

9. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been submitted by the applicant. In combination with the attached conditions of consent this satisfies the requirements of the instrument.

10. The site is located within the R2 Low Density Residential Zone pursuant to the Waverley Local Environmental Plan 2012 (LEP 2012). The objectives of the zone are:

•  To provide for the housing needs of the community within a low density residential environment.

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

11. The proposed development is categorised as a ‘Dual occupancy’ and is permissible with consent in the zone.

12. Pursuant to cl 2.6 of LEP 2012 subdivision requires consent.

13. At cl 4.1 the minimum lot size for the subject site is defined as 325m². The proposed development seeks consent for the subdivision of the subject site into two allotments of 210.4m². The application does not comply with the minimum lot size development standard.

14. Pursuant to cll 4.4 and 4.4A the maximum floor space ratio (FSR) for a building on the subject site is 0.64:1. The application does not comply with the FSR development standard.

15. The development application complies with the remaining development standards in Pt 4 of LEP 2012.

16. LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. The applicant relies on the satisfaction of cl 4.6 to vary both the lot size and FSR standards.

17. Consent must not be granted to development that exceeds the development standard, unless the Court has considered a request that adequately addresses the matters required to be demonstrated by cl 4.6(3) namely:

(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.

18. Further the consent authority is required to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives of the zone in which the development is proposed to be carried out (cl 4.6(4)).

19. Waverley Development Control Plan 2012 (DCP 2012) applies to the development application. Of relevance to the proceedings are the following provisions of the plan:

1. Clause 1.1 Height:

“Objectives

(a) To provide appropriate building heights for flat or pitched roof forms for lower density residential accommodation.

(b) To ensure the height and scale of development relates to the topography and street character.

(c) To ensure that the height and scale of development does not unreasonably impact on views enjoyed by neighbouring and nearby properties.

(d) To ensure the height and scale of development does not result in unreasonable overshadowing of neighbouring and nearby properties.

(e) To minimise loss of views from and overshadowing of public places.

(f) To ensure development in excavation areas does not add to the overall visual bulk of the dwelling.

...”

2. Clause 1.1.1 Flat roof dwellings

“Controls

(a) for a building with a flat roof the maximum overall building height is 7.5m above existing ground level.

...”

3. Clause 1.2 Setbacks

“Objectives

(a) To ensure the distance between buildings on adjacent properties allows adequate solar access, ventilation and privacy.

(b) To ensure the amenity of rear yards, their function as private open space and their visual and landscape contribution to the surrounding area is protected and enhanced.

(c) To accommodate flexibility in the siting of buildings where appropriate.

(d) To ensure the front and rear setbacks of buildings are consistent with surrounding buildings and do not visually detract from the streetscape.

(e) To ensure significant views and visual corridors available from the public domain and existing buildings are considered as part of the local context of any development.

(f) To ensure that buildings on corner lots are consistent with the predominant building lines of adjoining sites."

20. The development application seeks a variation to cl 1.1.1 as the maximum overall building height proposed is 8.3m above existing ground level.

21. Further the development application proposes a nil rear and side setback for a portion of the boundary length. This is a variation to the controls for rear and side setbacks in DCP 2012.

22. The provisions of s 4.15(3A)(b) of the EPA Act mandate a flexible approach to the application of the lot width performance criteria. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 at [68], s 79C(3A)(b) of the Act (as it was then) requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.

Public Submissions:

23. The development application was publically notified in accordance with the provisions of DCP 2012. As a result of the notification Council received 26 submissions from residents. An earlier amended proposal was also notified and seven submissions were received in response. The issues raised in the submission can be summarised as:

• the lot size is some 35% smaller than the standard;

• the height proposed exceeds the maximum by 30%;

• the FSR proposed exceeds the control by over 100%;

• the excessive variations should not be supported by the Council;

• the nil side setbacks are inappropriate;

• the creation of an additional driveway crossing will reduce on street parking provision;

• the inclusion of roof top terraces is inappropriate;

• the development proposed to construct over a sewer access point;

• the application places undue reliance on the residential flat building at 31 Beach Road as justification for seeking amendments to the controls;

• the surrounding area is zoned low density residential and the density of the development proposed is contrary to that intent;

• the exceedances of the Council’s controls will result in an unreasonable increase in overshadowing to the adjoining property to the east of the subject site;

• if approved the development will set a precedent for development in Glasgow Street and be destructive to its character and streetscape; and

• the information submitted by the applicant is incomplete and misleading.

Assessment of the requested variation to the Lot Size standard:

24. The Applicant seeks to vary the minimum lot size development standard at cl 4.1 of LEP 2012.

25. The objectives of the minimum lot size development standard are:

(a) to ensure that subdivisions reflect and reinforce the predominant subdivision pattern of the area,

(b) to minimise the likely impact of subdivision and development on the amenity of neighbouring properties.

26. The submitted variation request details the extent of the variation as follows:

“The proposed torrens title subdivision will result in two (2) lots (Proposed Lot A and Proposed Lot B) measuring 210.4m² in area, resulting in a shortfall of 114.6m² for each lot, equating to a 35% variation to the minimum subdivision size.”

(Ex D)

27. The onus is on the Applicant to meet the tests of cl 4.6 of LEP 2012 in seeking flexibility to the minimum lot size development standard: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (Initial Action).

28. The Applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

• that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

• that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

29. The Court, on appeal, must form a positive opinion of satisfaction that the Applicant’s written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].

Whether compliance with the development standard is unreasonable or unnecessary

30. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (Wehbe).

31. Namely, that:

1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);

2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2);

3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3);

4. that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or

5. that the zoning of the land is unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (Wehbe test 5).

32. In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).

33. In this appeal, the Applicant has utilised the Wehbe test 1, namely that the objectives of the development standard can be achieved notwithstanding the non-compliance with the development standard. Their argument is as follows:

“The first objective of the standard reads as follows:

(a) to ensure that subdivisions reflect and reinforce the predominant subdivision pattern of the area.”

The proposed subdivision will create two (2) lots of 210.4m² in area with a frontage of 9.145m to Glasgow Avenue. The proposed lots are considered to be consistent with the predominant subdivision pattern within Glasgow Avenue. The below drawing highlights in red shading the lots on Glasgow Avenue with a total area of between 200m² to 240m² . The predominant form of development fronting Glasgow Street is of semi detached housing of single and two (2) storeys. This form of development is a direct reflection of the subdivision pattern. The diagram below illustrates that the majority of lots have been subdivided. Notably, of the lots not subdivided only three (3) support a single dwelling. The remainder of lots support two (2) and three (3) storey blocks of flats or strata semi detached housing. The proposed subdivision reinforces the predominant pattern of subdivision in the street.

‘(b) to minimise the likely impact of subdivision and development on the amenity of neighbouring properties.’

The subdivision will facilitate a form of development that is consistent with that occurring in the street. Amenity impacts of the built form can be mitigated and managed through existing controls. They do not arise as a result of the subdivision. Notably, the existing street contains numerous examples of buildings on lot sizes of a similar area.”

(Ex D)

34. Further the written request argues that: “The underlying objective or purpose of the development standard would be defeated or thwarted if compliance was required. The larger lot size at 420m² in the context of this street is a subdivision that does not reinforce the predominant pattern.” (Ex D)

35. The Council makes no submission that the Applicant’s variation request does not adequately establish the matters in cl 4.6(3)(a) of the LEP 2012.

36. With the benefit of a site inspection I accept the Applicant’s reasoning that requiring compliance with the development standard is unreasonable and unnecessary in the circumstances of the subject site as the development is consistent with the objective of the standard. I am satisfied that given the subdivision pattern of Glasgow Avenue the proposed development will reflect and reinforce the predominant subdivision pattern. Further I am satisfied that the subdivision has minimised its likely impacts on the amenity of neighbouring properties within the context of the locality.

37. I find that I can be satisfied that the Applicant’s written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2012.

Are there sufficient environmental planning grounds?

38. The Applicant’s written request must adequately demonstrate that there are sufficient “environmental planning grounds” that justify the requested variation (cl 4.6(3)(b)). In Initial Action, at [24] Preston CJ observes that there are two ways in which the request must be sufficient. Firstly, “the environmental planning grounds advanced in the written request must be sufficient to justify contravening the development standard”, and secondly: “the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter.” (citations omitted)

39. In considering the Applicant’s case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248at [15].

40. The Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds:

“3.3.1 Circumstances of the Site

Existing Streetscape and Built Form

The proposed allotment size is commensurate with the predominant subdivision pattern within Glasgow Avenue and has influenced the bulk, form and scale of the existing dwellings in the immediate locality.

The proposal is therefore considered to be addressing the existing and future context of the streetscape and housing needs.

3.3.2 Context and Character

The variation to the control results in two (2) semi detached dwellings that are of consistent height, bulk and scale to neighbouring semi-detached dwellings within the locality.

The shortfall in allotment size does not result in unreasonable amenity impacts. The proposal provides for a better urban outcome, while at the same time ensuring a compatible and appropriate scale relationship to dwellings within Glasgow Avenue and the low-density pocket of Bondi.

3.3.3 Planning Outcomes

The proposal results in allotments that are more consistent with the predominant subdivision pattern and providing for a dwelling type that is commensurate with the bulk, form and scale of dwellings within the street. It is considered that the proposed variation maintains the following planning outcomes:

- The proposal delivers a compatible land use and satisfies the objectives of the R2 Low Density zone and the objectives of the minimum subdivision lot size standard;

- The non-compliance to the minimum subdivision lot size development standard facilitates the provision of infill housing that is consistent with the prevailing streetscape form and scale. This is demonstrable through the equitable distribution of floor space and design that achieves passive solar access, natural ventilation and good amenity for the future occupants of the dwellings while minimising the impact onto the amenity of neighbouring properties;

- The form and scale of the proposed buildings respond to the broader context of the site and the fine grain rhythm of modern and contemporary attached dwellings within the locality;

- A strictly compliant development would fail to maximise the housing contribution of the site in a locality where semi-detached housing is prevalent; and

- The proposed development is generally compliant with the objectives and controls, or the intent of the objectives and controls, contained in Waverley Development Control Plan (WDCP) 2012.”

(Ex D)

41. In the joint report of the planning experts it is agreed by the experts that:

“...

5. Similar approvals have been granted between 2000 and 2012 for development on similar sized lots at No. 43, 45, 10, 12, 24, 26 and 28 Glasgow Avenue.

6. While it is acknowledged that each Development Application (DA) must and is assessed on its merits, this approval record clearly demonstrates that the lot sizes proposed are of sufficient size to accommodate appropriate development.

…

10. The proposed development reflects the current and historic planning framework and appropriately responds to the particular context of Glasgow Avenue.

...”

(Ex 2)

42. The Council makes no submission that the Applicant’s variation request does not adequately establish the matters in cl 4.6(3)(b) of the LEP 2012.

43. I accept the applicant’s argument that the non-compliance will allow for the provision of infill housing that is consistent with the prevailing streetscape form and scale. This argument, along with their arguments at par [40], provide sufficient environmental planning grounds to justify contravening the development standard.

44. Collectively I accept these justify the contravention of the development standard. I find that I can be satisfied that the Applicant’s written request adequately demonstrates the matters in cl 4.6(3)(b) of LEP 2012.

Are the matters in Clause 4.6(4) satisfied?

45. As stated in Initial Action at [13], cl 4.6(4) “establishes preconditions that must be satisfied before a consent authority [or the court exercising the functions of a consent authority] can exercise the power to grant development consent” (at [14]). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent.

46. At cl 4.6(4)(a)(ii), the Court must be satisfied that the development will be in the public interest because it is consistent with the objectives of the minimum subdivision lot size development standard and the objectives of the R2 Low Density Residential zone: Initial Action at [26].

47. I have already found at [37] that the development is consistent with the objectives of the minimum subdivision lot size development standard.

48. The objectives of the R2 Low Density Residential zone are provided at [10].

49. The Applicant argues that the objectives of the zone are met on the following grounds:

“The proposal remains consistent with the objectives of the R2 Low Density Residential zone, despite the noncompliance with the minimum subdivision lot size control as demonstrated in the assessment of the objectives below:

‘To provide for the housing needs of the community within a low density residential environment.’

The proposal will increase the quantity and quality of housing stock within an area which is within close proximity to the commercial services within Bondi, public infrastructure and high amenity public spaces, including Bondi Beach within the Waverley Local Government Area (LGA). Furthermore, the site is located within 300m of multiple bus stops along Campbell Parade which provide direct services to Bondi Junction and the Sydney CBD.

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

The proposal will not inhibit the development of other permissible land uses within the R2 zone.”

(Ex D)

50. On the basis of the preceding I accept the proposed development is consistent with the objective of providing for the housing needs of the community in a low density residential environment and that it will not inhibit the achievement of the provision of other permissible land uses in the zone.

51. I am satisfied on the basis of the arguments submitted by the Applicant that 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 in the zone in which the development is proposed to be carried out. Accordingly, I find that the matters in cl 4.6(4)(a)(ii) are satisfied.

52. Finally, Initial Action notes at [29] that despite the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, the Court should consider the matters in cl 4.6(5).

53. I find that I can be satisfied that the variation sought to the development standard does not raise any matter of significance for State or regional environmental planning, and that there are no specific circumstances that establish an overriding public benefit of maintaining the development standard in this case.

54. I find that the requirements of cl 4.6 of LEP 2012 are satisfied and the requested variation to the minimum subdivision lot size should be upheld.

Assessment of the requested variation to the FSR standard:

55. The Applicant seeks to vary the FSR development standard at cl 4.4 of LEP 2012.

56. The objectives of the FSR development standard are:

(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,

(b) to provide for an appropriate correlation between maximum building heights and density controls,

(c) to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality,

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

(Ex D)

57. The submitted variation request details the extent of the variation as follows:

“The development standard permits a maximum FSR of 0.64:1 and a total gross floor area (GFA) of 269.31m² based on the site area of 420.8m².

The proposed two (2) semi detached dwellings have a maximum floor space ratio of 0.85:1 and a total GFA of 359.6m² , exceeding the maximum permissible GFA by an amount of 90.29m² , equating to a 33.52% variation from the development standard.

However, the Torrens title subdivision is proposed as part of this development, which will create individual allotments that are afforded a greater maximum permissible FSR under Clause 44A(b).

The proposed allotments resulting from the Torrens title subdivision, will measure 210.4m2 each. Allotments of this size are afforded a maximum permissible FSR of 0.87:1. Therefore, the maximum permissible GFA on each of the proposed lots is 183.05m². The proposed dwellings each have a maximum GFA of 179.8m2 which equates to FSR of 0.85:1 and therefore complies with the control.”

(Ex D)

Whether compliance with the development standard is unreasonable or unnecessary

58. The applicant relies on Wehbe test 1 (refer to [31]): namely that the objectives of the standard are achieved notwithstanding the noncompliance with the development standard.

59. The Applicant’s argument is as follows:

“ ‘(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs’

Not applicable. The development is located outside the Bondi Junction Centre

‘(b) to provide an appropriate correlation between maximum building heights and density controls’

The proposed semi detached dwellings comply with the maximum permissible building height of 8.5m that applies to the site and complies with the density controls for individual allotments, based on the site area of Proposed Lot A and Proposed Lot B, measuring 210.4m2 in area.

‘(c) to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality’

The character of the locality is varied because it is situated adjacent the Bondi Beach commercial precinct and includes single dwellings, residential flat buildings and commercial buildings of varying architectural styles and scale. The prevailing streetscape of Glasgow Avenue comprises one (1) and two (2) storey semi-detached dwellings, while at the eastern and western ends of Glasgow Avenue, part two (2) and three (3) storey residential flat buildings and part two (2) and part three (3) storey shop top housing exist. The rear of the site abuts three (3) storey residential flat buildings.

The proposed development is compatible with the form of development in the street, which is predominantly single and two (2) storey semi detached dwellings.

‘(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality’

The proposed semi detached dwellings feature a varied flat roof, modulated street elevation and large street facing balconies to promote visual interest. The building provides a high quality landscaped setting which provides for substantial amenity for the future residents. It is considered that the development will achieve a high standard of design and residential amenity with a building that is contextually appropriate for the site.

The proposed orientation of the windows and room configurations ensure that direct lines of site between habitable rooms of neighbouring dwellings is minimised. Furthermore, the setbacks are considered appropriate given the benefits of the proposed stepping of the building and central courtyard layout (deck and lawn area), which ameliorates amenity impacts of the development.

The scale, form and siting of the building proposed is consistent with that of the street and minimises impacts on adjoining development.”

(Ex D)

60. Further the written request argues that: ‘The proposed floor space ratio is a technical non-compliance based on the unsubdivided site area, as opposed to the resultant subdivided lots. The proposed individual Torrens title lots comply with the greater floor space ratio that applies to smaller lots. The proposed dwellings present a bulk and scale, compatible with the contemporary semi-detached dwellings and older California style bungalows within the street’ (Ex D).

61. The joint report of the planning experts concludes that: “The proposal results in acceptable impacts to adjoining development as demonstrated in the shadow diagrams, setbacks of building and locations of screens on bedroom windows.” Further they conclude that: “The amended setbacks now provide for improved green corridors as additional landscaping is afforded to the scheme, consistent with surrounding developments” (Ex D).

62. The Council makes no submission that the Applicant’s variation request does not adequately establish the matters in cl 4.6(3)(a) of the LEP 2012.

63. I accept the Applicant’s reasoning at [59]-[60] that compliance with the development standard is unreasonable and unnecessary in the circumstances of this application on the subject site. I accept the applicant’s argument that the objectives of the standard are achieved notwithstanding the non-compliance for the reasons stated at [59].

64. I find I can be satisfied that the Applicant’s written request adequately demonstrates the matters in cl 4.6(3)(a) of LEP 2012.

Are there sufficient environmental planning grounds?

65. The Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following basis:

“3.3.1 Circumstances of the Site

Streetscape and Built Form

The FSR results in a bulk and scale of the proposed semi detached dwelling, consistent with that of existing, older style dwellings (such as the Californian Bungalow style) and more contemporary semi-detached dwellings within the street. The proposal complies with the control when considered across the subdivided lots.

3.3.2 Context and Character

The variation to the control results in a semi detached dwelling that is of consistent height, bulk and scale to neighbouring semidetached dwellings within the locality.

The proposed FSR does not result in unreasonable amenity impacts. The proposal provides for a built form anticipated by controls for smaller lots, while at the same time ensuring compatible and appropriate scale relationship to dwellings within Glasgow Avenue and the low-density pocket of Bondi.

3.3.3 Planning Outcomes

It is considered that the proposal maintains the following planning outcomes:

- The proposal delivers a compatible land use and satisfies the objectives of the R2 Low Density zone and the objectives of the floor space ratio standards;

- The non-compliance to the FSR development standard facilitates the provision of infill housing that is consistent with the prevailing streetscape form and scale. This is demonstrable through the equitable distribution of floor space and design that achieves passive solar access, natural ventilation and good amenity for the future occupants of the dwellings while minimising the impact onto the amenity of neighbouring properties);

- The form and scale responds to the broader context of the site and the fine grain rhythm of modern and contemporary attached dwellings within the locality;

- Non-compliance with the standard does not contribute to adverse environmental impacts in terms of visual impacts, privacy or view loss; - The variation to the FSR does not increase the intensity of the development in such a way that it will give rise to significant adverse overshadowing; and

- The proposed development is generally compliant with the objectives and controls, or the intent of the objectives and controls, contained in Waverley Development Control Plan (WDCP) 2012.”

(Ex D)

66. In the joint report of the planning experts it is agreed by the experts that:

“7. The resultant floor space ratio (FSR) proposed for the two lots is consistent with that anticipated by the controls under cl 4.4A(b) of the WLEP 2012 and is reflected in the typical applications approved over the last 20 years.

…

9. The history of development in Glasgow Avenue is one of semi detached / dual occupancy development on smaller lots as well as subdivision into lots less than the minimum, with resultant FSR in the order of 0.79-0.85:1.

10. The proposed development reflects the current and historic planning framework and appropriately responds to the particular context of Glasgow Avenue.”

(Ex 2)

67. The Council makes no submission that the Applicant’s variation request does not adequately establish the matters in cl 4.6(3)(b) of the LEP 2012.

68. I accept the arguments of the Applicant at [65] are sufficient environmental planning grounds that focus on the variation itself rather than the benefits that arise from the development itself. In particular I am satisfied that the non-compliance to the FSR development standard facilitates the provision of infill housing that is consistent with the prevailing streetscape form and scale.

69. I find that I can be satisfied that the Applicant’s written request adequately demonstrates the matters in cl 4.6(3)(b) of LEP 2012.

Are the matters in Clause 4.6(4) satisfied?

70. At cl 4.6(4)(a)(ii), the Court must be satisfied that the development will be in the public interest because it is consistent with the objectives of the minimum subdivision lot size development standard and the objectives of the R2 Low Density Residential zone: Initial Action at [26].

71. I have already found at par [60] that the development is consistent with the objectives of the FSR development standard.

72. The objectives of the R2 Low Density Residential zone are provided at [10].

73. The applicant argues that the objectives of the R2 Low Density Residential zone are met on the same grounds as those detailed at [49].

74. I am satisfied on the basis of the arguments submitted by the Applicant that 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 in the zone in which the development is proposed to be carried out. Accordingly, I find that the matters in cl 4.6(4)(a)(ii) are satisfied.

75. Finally, Initial Action notes at [29] that despite the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, the Court should consider the matters in cl 4.6(5).

76. I find that I can be satisfied that the variation sought to the development standard does not raise any matter of significance for State or regional environmental planning, and that there are no specific circumstances that establish an overriding public benefit of maintaining the development standard in this case.

77. I find that the requirements of cl 4.6 of LEP 2012 are satisfied and the requested variation to the FSR standard should be upheld.

78. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am satisfied that the variation to both the minimum subdivision lot size development standard and the FSR standard are warranted and consequently there is power, subject to merit assessment, to grant consent to the development application.

Merit assessment by the Planning experts

79. The proposed development relies on a variation to Councils controls in relation to setback (cl 1.2.1 of DCP 2012) and in relation the height of developments with flat roofs (cl 1.1.1 of DCP 2012). The acceptability of these variations was assessed by the planning experts in their joint report.

80. In relation to the merits of the variation to cl 1.2.1 of DCP 2012 to allow a nil setback at rear and side boundaries for part of the development the experts agreed evidence is as follows:

“46. The amended plans have resulted in a reduction of the building at the rear, located at a nil setback to the eastern and western boundaries common with No. 23 and 27 Glasgow Avenue and the southern boundary, being the rear common boundary with No. 31 Beach Road. The overall footprint of the building has been reduced.

47. The nil boundary condition to the side generally abuts existing garages on the adjoining properties.

48. The rear of the majority of buildings on the southern side of Glasgow Avenue support garage structures to a nil setback at the rear and on side boundaries at a single storey scale.

49. The current proposal reflects this condition.

50. The building at the nil setback projects between 800mm to 1 metre past the existing structures on the adjoining sites.

51. The adjoining buildings have narrow rear yards facing south that get limited sunlight. This is further compounded by the fact that No. 23 and 25 Glasgow Avenue abut three (3) storey RFB’s having frontages to Beach Road.

52. The proposal minimises the rear yard and locates the useable space to the side and to the rear providing a northern exposure, sunlight access and a level of privacy.

53. The setback of the building to the street is consistent with the two (2) storey forms in the vicinity of the site. 54. The proposal maintains adequate light and ventilation to adjoining properties. 55. The setbacks and siting of the building as now amended is considered acceptable.

...”

(Ex 2)

81. In relation to the merits of the variation to cl 1.1.1 of DCP 2012 to allow a maximum flat roof height of 9.3m the experts agreed evidence is as follows:

“37. The height control permitted in the WLEP 2012 is 8.5 metres. The proposed development is approximately 200mm below the height control.

….

40. The maximum height for a building with a flat roof is 7.5 metres above existing ground level, pursuant to Clause 1.1.1 of the WDCP.

41. The proposed maximum height is 8.3 metres, being 800mm above the DCP control.

42. The pop-up element over the internal stairwell has now been significantly reduced and has a setback of 6.5 metres from the side boundaries, and 9.5 metres from the street setback, and falls wholly within the height control contained within the WLEP 2012.

43. The breach of the DCP height control is to the center of the building and will not be read as a strong built form element to the street or surrounding properties.

44. The height proposed responds to the scale of development in the street and does not result in unacceptable overshadowing.

45. There is no impact to adjoining properties that would warrant changes to the floor to ceiling heights.”

(Ex 2)

82. The EPA Act at s 4.15(3A) states:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

83. Having regard to the agreed evidence of the planning experts I am satisfied that it is appropriate to be flexible in applying both the setback and flat roof height control for the subject development. I am satisfied that the proposed development is a reasonable alternative solution that warrants approval.

84. In particular, in relation to the setback variation, I am satisfied that the provision of a reduced setback responds to the site specific constraints of the subject property and is a reasonable alternative solution. In relation to the flat roof variation I accept the reasoning of the experts at [81] and agree that a variation is warranted.

85. Further I am satisfied that the concerns raised by the residents have been satisfactorily addressed. This has been facilitated both by the applicant making amendments to the proposed development and through the imposition of conditions on the consent. In particular I note that the amended plans have provided additional privacy screening and that the consent conditions detail further obscure glazing and fence heights to ensure the retention of adequate privacy for future residents and adjoining properties. I note that the amended plans are now in compliance with Councils development controls in relation to open space and deep soil landscaping.

86. I concur with the conclusion of the experts that: “Matters raised in the original submission where required have been addressed in the amended plans. The amended proposal results in minimal impacts and is considered to be in the public interest” (Ex 2).

87. Based on the agreed expert planning evidence before me, I am satisfied that the amended proposal warrants approval. As required by s 4.15 of the EPA Act, I have considered all of the evidence against the statutory framework including the objectors’ oral and written concerns. I am satisfied that any relevant contentions have been satisfactorily addressed in the amended design and the conditions of consent.

Conditions

88. The remaining dispute between the parties concerned the nature of the conditions of consent. In particular whether certain conditions were required to be satisfied prior to the issue of a Construction Certificate or whether they could be dissected into a group of conditions to be satisfied prior to the ‘Commencement of works’. There was no dispute as to the terms of the affected conditions of consent.

89. The Applicant seeks the introduction of this additional section in the consent conditions so that the demolition of the existing buildings on site can be undertaken prior to obtaining a Construction Certificate.

90. The Council argues that these amendments should not be allowed by the Court on the following grounds:

“The applicant has included demolition as part of the subject DA. If the applicant didn’t want it as part of the approval then it should have been excluded from the DA. This change results in a complete rework of the conditions which are in accordance with the Council’s standard template conditions and there is no justifiable reason to depart from the standard conditions. Allowing such a departure creates a precedent issue for the Council. If the applicant is permitted to vary the conditions in this manner it is open to every other applicant to seek similar amendments.”

(Online Court communication 2 April 2019)

91. The contested conditions include the following requirements:

• Payment of the a security deposit

• Payment of a tree bond

• Provisions in relation to site hoarding

• Requirement for the submission and approval of a Site Waste and Recycling Management Plan.

• Implementation of the erosion, sediment and pollution controls on site

• Requirement for the submission and approval of a Construction Vehicle and Pedestrian Plan of Management.

92. A consent authority, or the Court exercising the functions of the consent authority, may determine a development application for development by granting consent, either unconditionally or subject to conditions, or refusing consent to the application: s 4.16(1) of the EPA Act.

93. Section 6.3 of the EPA Act states:

(1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity:

(a) building work,

(b) subdivision work,

(c) the occupation or use of a building (including a change of use),

(d) the subdivision of land,

(e) any other activity to which this Part applies.

(2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity.

(3) A certificate under this Part is not required for the carrying out of exempt development.

(4) This section does not apply to a compliance certificate.

94. The EPA Act provides at s 6.6 mandatory requirements that must be met before building work can commence. Building work is defined at s 6.1 as: “building work means any physical activity involved in the erection of a building”.

95. During the conciliation phase, to which the parties have given their consent for me to have regard to, it was asserted by the applicant that the demolition works for which consent is sought do not require a Construction Certificate. I have no legal submissions in this regard.

96. By application of the findings in Sharp v Hunters Hill Council [2002] NSWLEC 27 at [58]-[59] it could be argued that demolition of a building is not a matter that falls within the ambit of a construction certificate as it is not ‘building work’ as defined at s 6.1. This is supported by the decision of Pain J in Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83 at [75] which concludes that the then s 81A of the EPA Act, now s 6.6: Requirements before building work commences, does not require a construction certificate for preparatory work such as demolition.

97. I am satisfied that the conditions relevant to the demolition stage have been identified (refer to [91]).

98. I am not persuaded by the Council’s submissions that it there is a substantive reason not to make the amendment’s sought by the Applicant. In light of the preceding I am satisfied it is appropriate to group these conditions under a section in the consent titled: Compliance Prior to Commencement of any work (including demolition). These amendments are reflected in Annexure A.

Orders

99. The Court orders that:

1. By agreement the applicant is granted leave to amend the development application and rely on the plans in Annexure ‘A’;

2. By agreement the applicant is granted leave to amend the written variation requests and rely on the documentation contained in Exhibit D;

3. The appeal is upheld;

4. Development Application DA/448/2017 for demolition and construction of an attached dual occupancy including associated landscaping and Torrens title subdivision into two lots at 25 Glasgow Avenue, Bondi Beach is approved subject to the conditions in Annexure ‘B’;

5. The exhibits are returned with the exception of Exhibits 3, B and D.

…………….

D M Dickson

Commissioner of the Court

Annexure A

Annexure B

Decision last updated: 16 April 2019