STM 123 No. 7 Pty Ltd v Waverley Council

[2020] NSWLEC 1495

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

15 September 2020

Date of orders:

26 October 2020

Decision date:

26 October 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) Appeal dismissed.

(2) Development application No. DA 85/2020 to construct an additional level to the approved four-storey shop-top housing development at lots 20 and 21 in Deposited Plan 5953 known as 2-4 Jaques Avenue, Bondi Beach is refused.

(3) Exhibits other than exhibits A, B, and 1 be returned.

Catchwords:

DEVELOPMENT APPLICATION – additional level to approved four-storey shop-top housing development – exceedance of height control – clause 4.6 – whether objectives of height control met – whether sufficient planning grounds – character

Legislation Cited:

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

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

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248

GJD Property Pty Ltd v Waverley Council [2017] NSWLEC 1125

Grundy v Waverley Council [2016] NSWLEC 1526

Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

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

STM 123 No. 7 Pty Ltd as a Trustee for the STM No. 7 Trust v Waverley Council [2016] NSWLEC 1313

Valen Properties ATF Valen Properties Trust v Hurstville City Council [2015] NSWLEC 1045

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

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

Category:

Principal judgment

Parties:

STM 123 No. 7 Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
A Galasso SC (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/138246

Publication restriction:

No

Judgment

Introduction

1. This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal of a development application No. DA 85/2020 (development application) to construct an additional level to the approved four-storey shop-top housing development at lots 20 and 21 in Deposited Plan 5953 known as 2-4 Jaques Avenue, Bondi Beach (site).

2. The four-storey shop-top housing development was approved by the Court on 22 July 2016 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) (STM 123 No. 7 Pty Ltd as a Trustee for the STM No. 7 Trust v Waverley Council [2016] NSWLEC 1313) (development consent).

3. The additional level results in the breach of the height control in the Waverley Local Environmental Plan 2012 (WLEP 2012) and the Applicant relies on an objection pursuant to cl 4.6 of WLEP 2012. The Council says that the objection is not well founded and that therefore there is no power to grant the development application, that the design does not exhibit design excellence and has unsatisfactory amenity impacts.

4. For the reasons which follow, I have determined that the cl 4.6 objection is not well founded and that the appeal should be dismissed.

The site and surrounds

5. The site is located on the eastern side of Jaques Avenue between Hall Street and Lamrock Avenue, but towards the Hall Street end.

6. The site currently contains two three-storey buildings which are proposed to be demolished as part of the development approved under the development consent. When the two lots are consolidated, the site, regular in shape, will have an area of 892 sqm, with a frontage to Jaques Avenue of 24m and a depth of 36.5m.

7. The site is located in close proximity to the commercial centre of Bondi Beach with surrounding development comprising shop-top housing, commercial development and residential flat buildings.

8. The site is adjoined to the south by a residential flat building (6-8 Jaques Avenue). Immediately to the north is a battle-axe access driveway servicing 10-14 Hall Street. Adjacent to that driveway further north is a part four part two storey mixed use building at 16-18 Hall Street but which is on the corner of Hall Street and Jaques Avenue. The rear boundary of the site (to the east) adjoins 96 Campbell Parade and 102-106 Campbell Parade, three to four-storey mixed use buildings.

9. Jaques Avenue defines the edge of the Bondi Beach mixed use precinct and is characterised by residential flat buildings, particularly on the eastern side.

The planning controls

10. The site is zoned B4 – Mixed Use pursuant to WLEP 2012. Shop-top housing is permitted in the zone.

11. The mixed use zone includes the eastern side of Jaques Avenue and much of both sides of Hall Street to the north and Campbell Parade to the east. The western side of Jaques Avenue is zoned R3 Medium Density Residential.

12. Clause 2.3 of WLEP 2012 requires the Court, in exercising the powers of the consent authority to have regard to the objectives of the zone. The objectives of the B4 zone are:

• To provide a mixture of compatible land uses;

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling;

• To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core.

13. Clause 4.3 of WLEP 2012 provides that a building is not to exceed the maximum height shown on the Height of Buildings Map. The maximum height for the subject site is 15m.

14. The objectives of the height control are relevant to the objection pursuant to cl 4.6, and cl 4.3 provides:

(1)  The objectives of this clause are as follows—

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

(b)  to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

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

15. It is only objectives (a) and (d) which are relevant in this case as the site is not in the Bondi Junction Centre.

16. Clause 4.6 of WLEP 2012 is in the standard form and is dealt with below.

17. Clause 6.9 Design Excellence applies to the site because it is identified on the Key Sites Map and the proposal involves a building height in excess of 15m. The relevant provisions are:

(3)  Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(4)  In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c)  whether the development detrimentally impacts on view corridors,

(d)  how the development addresses the following matters—

(i)  the suitability of the land for development,

(ii)  existing and proposed uses and use mix,

(iii)  heritage issues and streetscape constraints,

(iv)  the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  bulk, massing and modulation of buildings,

(vi)  street frontage heights,

(vii)  environmental impacts such as overshadowing, wind and reflectivity,

(viii)  the achievement of the principles of ecologically sustainable development,

(ix)  pedestrian, cycle, vehicular and service access, circulation and requirements,

(x)  the impact on, and any proposed improvements to, the public domain,

(xi)  the quality and integration of landscape design.

18. Waverley Development Control Plan 2012 (WDCP) applies to the site. It is unnecessary to set out all of the potentially relevant provisions, but attention should be drawn to the Site Specific Provisions in Section E. The Bondi Beachfront Area is an area the subject of such provisions (Section E2). The Beachfront Area itself is broken down into five Character Areas.

19. The site falls within Character Area C – Campbell Parade Centre – pursuant to cl 2.2 of Section E2 of the WDCP. Clause 2.2.3 of the WDCP provides for a statement of the existing character, Desired Future Character Objectives and Controls. Relevantly cl 2.2.3 provides:

“Desired Future Character Objectives

(d) To ensure new development and major renovations are consistent with the existing character of the area

Controls

(b) Height and Bulk

(i) A maximum of 4 storeys is permitted except for buildings fronting Curlewis Street, Beach Road or the western side of Gould Street where a maximum of 3 storeys is permitted.

(ii) A maximum external wall height of 12.5m is permitted except for buildings fronting Curlewis Street, Beach Road or the western side of Gould Street where a maximum of 10m is permitted.

(iii) An attic level or part additional floor may be permitted.

(c) Setbacks

(i) Buildings within the B4 – Mixed Use zone are to be built to the street edge with no setbacks.

(ii) Buildings are to be built to the side boundaries for a minimum of 10m from the front street wall

(iii) Where a building is to be extended by the construction of additional floors, the new section is to be setback from the existing façade line by a minimum distance of 3m.

(iv) Attic levels or part additional floors must be setback minimum 3 metres from the street wall.”

20. The Apartment Design Guide (ADG) applies to the development pursuant to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development. Its only relevance is to the Applicant’s case that the present proposal meets the ADG criterion in relation to overshadowing of or solar access to adjacent residential development. There was no disagreement as to that fact, but disagreement as to the relevance of that fact in determining the objection made pursuant to cl 4.6 of WLEP 2012.

The proposal

21. The consent provides for a five-storey residential flat building with the fifth storey setback about 4m, so that there is a street wall height of four storeys. There is an exceedance of the height control of 300mm (the thickness of the roof slab) together with about an additional 1m for the lift overrun.

22. The development application proposes the construction of a two-bedroom apartment of some 93.6 sqm, on a sixth floor, accessible by stairs from the immediately lower level. That is, the occupants of the proposed sixth floor would take the lift to the fifth floor and then climb stairs to the sixth floor. In the absence of a lift to the sixth floor there is no lift overrun above the roof of that floor which would have had the potential to exacerbate the height non-compliance.

23. At the frontage to Jaques Avenue the setback to the planter is a little over 5m and to the roof about 6m. A condition proposed by the planners means a reduction in the size of the balcony to the north of the apartment so that the length of the western wall of the planter is reduced by 1m as is the roof above. That is, the setback from Jaques Avenue is unchanged, but the uppermost part of the building fronting Jaques Avenue is about 13m rather than 14m in length. The floor plan of the sixth floor is below:

24. The height of the proposal is 18.57m, 3.57m above the height control of 15m. Effectively the whole of the proposed sixth floor is above 15m. It is best understood by reference to the section below:

The apartment is shaded yellow, within the red “cloud” and the height control is shown by a dashed blue line.

25. The proposal complies with the Floor Space Ratio (FSR) control in cl 4.4 of WLEP 2012.

26. The proposal is in breach of the development standard for height and accordingly consent cannot be granted except in accordance with cl 4.6(2) of the WLEP 2012. 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.

27. In order 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)).

(Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action))

28. The Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 (RebelMH)). 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.

29. 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.

30. 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. The Secretary's concurrence can be assumed as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003 (Initial Action at [28]).

31. 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; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

• the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

• the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

• the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

• the development standard has been abandoned by the Council;

• the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

32. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

33. In this case, the Applicant says that the objectives of the standard are met notwithstanding the non-compliance, and accordingly the application of the standard is unreasonable or unnecessary.

34. The cl 4.6 objection (objection) was prepared by the planner retained by the Applicant Ms J Askin who also gave expert evidence. In the objection, Ms Askin says the objectives of the control are met (in summary) by:

• the proposal preserves the environmental amenity of neighbouring properties, public spaces and sharing of views;

• solar access, outlook and views from surrounding residents is (sic) preserved;

• the upper level is set back to minimise its presentation and ability to be perceived;

• no overlooking and acoustic impacts;

• sharing of views is preserved;

• the proposed height, scale and massing will be compatible with surrounding development and the desired future character;

• the scale and massing fits within the streetscape;

• the additional storey is not prominent and contributes to a modulation of the roof form providing a positive contribution to the streetscape;

• the proposal will present as a lightweight upper level element above the streetwall which will provide visual interest.

35. The environmental planning grounds seeking to justify the breach in the objection are in summary:

• the breach promotes the orderly and economic development of land, being in a desirable and accessible location, and allowing the maximisation of floor space whilst sitting comfortable in its context and preserving environmental amenity of adjoining properties;

• the proposal reflects the planned level of intensity having regard to the FSR control;

• it provides visual interest and variability in the eclectic collection of roofscapes in the vicinity;

• it promotes good design and amenity of the built environment (Object (g) of EP&A Act) by exceptional amenity for occupants and preserving privacy and solar access for neighbouring sites;

• maximises the FSR in a high quality and well resolved design which responds to the surrounds and local context;

• distribution of floor space to the upper level allows for maximum density (FSR) within a highly desirable location and facilitates the generous setbacks at lower levels which provide for increased amenity for the residents of adjoining properties and the subject site.

36. The objection relies on substantially the same material to argue that the proposal is in the public interest.

37. I have set out the substance of the objection because the Court is confined to the objection itself in order to be satisfied that compliance with the standard is unreasonable or unnecessary (cl 4.6(3)(a) and cl 4.6(4)(a)(i) of WLEP 2012) and that there are sufficient environmental planning grounds to justify contravening the standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i) of WLEP 2012).

The issues

38. The issues were focussed on the cl 4.6 objection and are distilled to be:

• whether the proposal is compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space (Objective (d) of cl 4.3 of WLEP 2012);

• whether having regard to the overshadowing of the neighbour to the south, the proposal preserves the environmental amenity of neighbouring properties (Objective (a) of cl 4.3 of WLEP 2012);

• whether there are sufficient planning grounds to justify the height exceedance.

Evidence

39. The Council notified the development application in accordance with Part A3 of WDCP. Seven submissions were made objecting to the proposal, raising a number of matters largely reflecting the Council’s contentions. No objector gave oral evidence but a statement from Mr D Perks from Campbell Parade concerned about view loss was tendered.

40. The hearing commenced on site, and in the presence of the advocates for the parties and their respective planners I inspected the site, Jaques Avenue and the surrounding area, including Hall Street and Gould Street. The hearing then proceeded by audio visual means in accordance with the Court’s COVID-19 Pandemic Policy July 2020.

41. The Applicant retained Ms Askin to give expert planning evidence and the Council retained Mr G Turrisi, also a qualified and experienced planner. The planners provided a joint report and gave oral evidence.

42. The experts agreed that the proposal does not result in a loss of visual or acoustic privacy and that it will not affect views from adjoining properties. Ms Askin and Mr Turrisi also agreed that there is compliance with the FSR control and that a reduced separation between the proposal and 2a Jaques Avenue is acceptable.

43. In relation to the height exceedance, Ms Askin maintains that the height non-compliance is justified by the cl 4.6 objection she prepared. She accepted in cross-examination that the roof element of the proposal visible from Jaques Avenue is not an element seen in any other part of Jaques Avenue. In the joint report she said there will not be an adverse impact in terms of visual bulk and scale because the width of the visible element is only about 40% of the total width of the building, the upper level is recessed and will not be dominant.

44. She said that any consequent impact on amenity by additional overshadowing to the neighbour to the south is acceptable because those residences will still achieve more than the minimum solar access prescribed by the ADG and WDCP 2012. Ms Askin agrees that there is additional overshadowing from about 8.30 am on the winter solstice but it is not quantifiable, and in any event less than an hour.

45. Mr Turrisi says that the additional height is contrary to the desired future character and that there are no sufficient environmental planning grounds to justify the contravention. Further, he says, maximising the FSR is not a justification for the height exceedance as the controls are maximum controls, there is a relationship between height and FSR and that one control does not prevail over the other. He describes the development on Jaques Avenue on the same side as the site as very strong 4-5 storey appearance and that the extra storey will be plain to see and will be seen as a sixth storey. He says the character on Hall Street is different to Jaques Avenue.

46. Mr Turrisi says that there is a loss of up to an hour of direct sunlight to two adjacent dwellings from about 8.30 am on the winter solstice. He says that constitutes a loss of amenity which is inconsistent with objective (a) of the height control to preserve environmental amenity.

47. For effectively the same reasons the experts differ on whether the proposal achieves design excellence.

Submissions

Compatibility (Height objective (d))

48. The Applicant submits that the test for compatibility is expressed in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 and said that it is appropriate to ask the four questions posed in Valen Properties v Hurstville City Council [2015] NSWLEC 1045 at [64]:

1. what is/are the existing and desired future characters?;

2. are there any physical impacts?;

3. are there any visual impacts?;

4. is the proposal therefore capable of existing in harmony (although not the same)?.

49. The Applicant then referred to a decision of the Court in GJD Property Pty Ltd v Waverley Council [2017] NSWLEC 1125 (GJD) concerning a nearby property 10-14 Hall Street (north of the subject site). In GJD the Court approved a non-compliant upper floor partly on the basis of its limited visibility.

50. Relying on matters put by the Applicant in that case and assumed to be adopted by the Commissioner, together with the cl 4.6 objection and the observations made during the site inspection, the Applicant says that the character of the area is eclectic and not uniform, and “there is no issue at all” that the proposal is capable of existing in harmony. The Applicant adds that notwithstanding the visibility of the upper level, it is not jarring or out of character. The Applicant says also that there are no physical or visual impacts. The Applicant did not suggest that there would be any further development in Jaques Avenue, other than the subject site, so that which exists in Jaques Avenue represents both the existing and desired future character.

51. The Council submitted that the inspection of the site and surrounds demonstrated the consistent hard edge of the development on Jaques Avenue and that the sixth floor, like a “pop up” will erode that consistency. Further, that the sixth floor is easily perceptible on Jaques Avenue and is out of character.

52. It was submitted that GJD is not binding and was a decision before the decisions in Initial Action and RebelMH which changed or clarified the proper approach to cl 6.4 objections. In any event it was submitted that the context of Hall Street is different to Jaques Avenue and the upper level on the Hall Street Property is not visible in the same way the proposal will be visible in Jaques Avenue.

Preserve environmental amenity (Height objective (a))

53. The Applicant submitted that the approach to the understanding of the words “preserve the environmental amenity” does not take such a narrow view that any impact at all means that amenity is not preserved citing Brown C in Grundy v Waverley Council [2016] NSWLEC 1526 (Grundy) at [41] to [49]. The impact it is said is of additional overshadowing to two bedrooms in different apartments in 6-8 Jaques Street for a period of about 15 minutes from 9 am. Those windows, it was submitted, received solar access from about 9.15 am until 3pm. The impact was not simply minor but indiscernible, it was submitted.

54. Further the Applicant says that compliance with solar access requirements in the ADG and the WDCP demonstrate that amenity is preserved. In addition, it was submitted that the notion of amenity is not confined to solar access alone and that any impact must be considered in the context of the overall available amenity of the affected apartments.

55. The Council submitted that the question of preservation of amenity is a “stand alone” provision and it is not measured by reference to standards in the ADG or WDCP. The test is to simply determine whether or not the amenity is preserved, that is, the amenity is maintained.

56. The Council says that two adjacent apartments are affected and that the loss of amenity is not so small as to be indiscernible.

Environmental planning grounds

57. The Applicant relies on the environmental planning grounds in the cl 4.6 objection. It also points to the acceptance of similar grounds by the Court in GDJ as indicative that the grounds in this case are both stronger and sufficient.

58. The Applicant says that the concept of sufficiency of environmental planning grounds means that there is a balancing and that matters will have difference weight in different circumstances and that a relatively minor breach without real amenity impacts will not necessarily require weighty and strong environmental planning grounds. Here it is said there is that lighter standard given the absence of any real amenity impacts, and that the realisation of permissible floor space to reflect the planned level of intensity strongly weights in favour of the proposal.

59. The Council submits that none of the matters claimed to be environmental planning grounds are in fact environmental planning grounds. The Council says that the identification of a consequence of the breach is not an environmental ground and reminds the Court that as stated in Initial Action the focus is to be on the element of the proposal which contravenes the standard. Here it is said the grounds do not focus on the element which contravenes.

60. The Council referred to Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15] to submit that in that case “pointing to the benefits of additional housing and employment opportunities delivered by the development was not sufficient to constitute sufficient environmental planning grounds”.

61. Further, reflecting the evidence of Mr Turrisi, the Council submitted that there cannot be a ranking of one control over another, such that FSR prevails over height. They are both maximum controls and it is not a justification for breaching one standard (height) to say that the maximum allowable under another standard (FSR) is achieved.

Consideration

Compatibility (Height objective (d))

62. This issue is founded on the Applicant’s assertion that compliance with the height standard is unreasonable and unnecessary because the proposal meets the objectives of the standard in any event (the first way described in Wehbe). The Court must be satisfied that the cl 4.6 objection itself so demonstrates as well as being itself satisfied.

63. In my opinion the proposal is not compatible with the height, bulk and scale of the desired future character of the locality.

64. First it should be said that there are difficulties in applying a finding in an earlier but somewhat similar case to this case, or any case, under consideration. The Court makes an evidence-based decision – it makes its determination based on the material before it, the issues between the parties and the submissions made. Whilst earlier cases can assist with understanding a principle or the proper approach to be taken to an issue, it is rare that a decision made on its merits in an earlier case can assist in the merit determination of a later case. (See Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310; at [95] – [96].)

65. I do not accept that the Court’s decision in GJD assists in the determination of this case. It is true that it was decided before Initial Action and RebelMH. Those cases have been important in explaining and refining the proper approach to the assessment of a cl 4.6 objection. One could only speculate as to whether the same decision would be made in GJD today with the assistance of those authorities.

66. In any event, the facts in GJD are distinguishable from the present facts. Whilst in GJD the site is proximate to the present site, it addresses a different street and is in a more complex and varied array of built form than the present site. The additional level of the Hall Street building, which was viewed by the Court at the commencement of the hearing, is perceived in a much different context to the present proposal. The built context is much more varied than in Jaques Street, and Hall Street is a more intense commercial environment than Jaques Street.

67. Jaques Street presents as a cohesive streetscape. I agree with Mr Turrisi that development in the vicinity of the site does present as a strong 4-5 storey built form. There is no issue that the proposed upper level will be visible from the other side of Jaques Street for much of its length, the question then is whether having regard to that level of visibility, is the proposal in harmony with the desired future character.

68. Ms Askin very fairly and properly conceded that the roof element of the proposal which is visible is not an element seen in any part of Jaques Avenue. She did however say it is recessive and does not dominate. In my opinion however it is not a question of whether or not it is recessive, or whether or not it dominates, but whether it is compatible or in harmony with the desired future character, which here is reflected by the existing development.

69. I do not regard the proposal as compatible. It is an element which is plainly visible for a relatively large part of Jaques Avenue, within an otherwise cohesive built form context. That is, as Ms Askin agreed, it is an element which otherwise would not be seen in the street. That is not enough in itself to be objectionable, but here it is both clearly visible and reflective of a sixth storey which is out of character in Jaques Avenue.

70. Putting to one side the decision in GJD, in my opinion it is not appropriate to consider the broader context of Hall Street to determine compatibility for this site. The proposal will not be seen in the context of Hall Street development, other than the rear of some buildings fronting Hall Street. The clear context of the site is the cohesive development in Jaques Street itself. I do not regard the area as “eclectic” for the purposes of this assessment, because I do not consider it appropriate to determine compatibility having regard to the Hall Street built form.

71. I do not accept that providing the additional level which produces “a modulation of the roof form” provides a positive contribution to the streetscape. It is the so-called modulation which is out of character. It does not create harmony in built form to increase the roof height on this site which is adjacent to, and adjoining, development which is otherwise cohesive and consistent in its roof forms and heights.

72. Similarly creating “visual interest” is not an objective of compatibility, and in this case is antipathetic to that objective.

73. It follows then that I am not satisfied that the proposal is compatible with the height, bulk and scale of the desired future character of the locality, that is, I am not satisfied that the cl 4.6 objection has demonstrated that compliance with the development standard is unreasonable or unnecessary because it does not meet Objective (d) of cl 4.3, the height development standard.

74. That is sufficient to dispose of the matter, because a pre-condition of the jurisdiction to grant consent has not been satisfied. In fairness to the parties I will deal briefly with the other main issues.

Preserve environmental amenity (Height objective (a))

75. I agree with the Applicant that Objective (a) is concerned with the question of amenity in general, and not limited to one aspect of amenity such as loss of solar access. It is a question of fact and degree as to whether a certain impact on one aspect of amenity is such that the overall amenity of an affected property is or is not preserved.

76. In my view the Council is correct to submit that when asking whether amenity is preserved, whether or not a standard in the ADG or a development control plan is still met is not determinative of the question of compliance with the objective. That is, the commencing yardstick for the preservation of amenity is the level of amenity enjoyed at present, applying the words of the objective in WLEP 2012, not a standard derived from the ADG or WDCP. The objective does not direct itself to the preservation of the amenity which would be enjoyed if there is compliance with other controls.

77. A proper reading of Grundy does not lead to a different conclusion. In that case the Commissioner was not dealing with the question of impacts from the non-complying elements of a proposal. His observations at [41] to [49] were to the effect that it is not reasonable to expect the preservation of amenity where there is a compliant development. The Commissioner did not seek to propound a principle that when considering the impacts of the non-compliant element of a proposal, some level diminution of amenity is consistent with the objective.

78. In this situation there is a loss of solar access to two bedrooms in different apartments from about 8.30am for somewhere between 15 minutes and an hour according to the experts. On my reading of the solar access plans, the loss appears to be between 30 and 45 minutes. In effect, in mid winter the sun will reach those bedroom windows 30 to 45 minutes later than would otherwise be the case.

79. The loss of the solar access is not insignificant. The fact that solar access is available for a significant period thereafter is relevant but not determinative. One may well conclude that early morning sun into a bedroom is more important than sun to a bedroom for the rest of the day. And the later arrival of the sun to the window is a real impact.

80. The matter is finely balanced. A problem is that there is little information about the general amenity of the affected apartments, the level of solar access otherwise enjoyed in the morning, their size and layout and so on. Accordingly, I take at face value there is a loss of morning sun to two bedrooms each in a different apartment, which given the time of day and the use of the bedrooms is a loss which is noticeable. In the absence of more information about the other aspects of amenity I am driven to the conclusion that the amenity of the two affected apartments is not preserved.

81. It follows then that I am not satisfied that the proposal preserves the environmental amenity of neighbouring properties. That is, I am not satisfied that the cl 4.6 objection has demonstrated that compliance with the development standard is unreasonable or unnecessary because it does not meet Objective (a) of cl 4.3 WLEP 2012, the height development standard.

Environmental planning grounds

82. It is common ground that the cl 4.6 objection must provide sufficient environmental planning grounds to justify the contravention. The focus is on the aspect or element of the development that contravenes the standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds (Initial action at [24]). The grounds advanced in the objection must justify the contravention, not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

83. The Council’s submission is that none of the grounds relied upon in the cl 4.6 objection are truly environmental planning grounds.

84. There is no definition of “environmental planning grounds” and it is probably a phrase which defies definition, in that it simply means what is says. To define it would be to potentially add a gloss to it, or to direct attention away from its proper meaning. Also, given the breadth of the notion of the “environment” it is not helpful to confine the meaning by defining it in any particular way.

85. I will deal with each of the claimed grounds as they are summarised in [35] above.

86. “The breach promotes the orderly and economic development of land, being in a desirable and accessible location, and allowing the maximisation of floor space whilst sitting comfortable in its context and preserving environmental amenity of adjoining properties.”
    In my view this promotes the development as a whole and does not address the breach. It is not a sufficient environmental ground.

87. “The proposal reflects the planned level of intensity having regard to the FSR control.”
    I agree with the Council’s submission that maximising one control at the expense of another is not of itself an environmental planning ground, and in this case in any event not a sufficient one.

88. “It provides visual interest and variability in the eclectic collection of roofscapes in the vicinity.”
    It is possible that the particular design of the element of a building which exceeds the height control can be an environmental planning ground. In this case, however, for the reasons already identified, this design is not a sufficient environmental planning ground, including that there is not an eclectic collection of roofscapes and it is not necessary to exceed the height control to provide visual interest. This is not a sufficient planning ground.

82. “It promotes good design and amenity of the built environment (Object (g) of the EP&A Act) by exceptional amenity for occupants and preserving privacy and solar access for neighbouring sites.”
    This may be an outcome of the proposal, but it is not a justification for the breach. This is not a sufficient environmental planning ground.

83. “Maximises the FSR in a high quality and well resolved design which responds to the surrounds and local context.”
    For the same reasons set out in [87] above and the Council submission recorded at [61].

84. “Distribution of floor space to the upper level allows for maximum density (FSR) within a highly desirable location and facilitates the generous setbacks at lower levels which provide for increased amenity for the residents of adjoining properties and the subject site.”
    It is often successfully argued that floor space redistribution can improve amenity for a development and its neighbours in the particular circumstances justifying a breach of a height control. In this case there is in fact no such “distribution to the upper levels”. The consent provides for the construction of a five storey building – this proposal is for an additional level – there is no distribution of floor space as a consequence of this development application, only an increase in floor space in breach of the height control.
    This is not a sufficient environmental planning ground.

Conclusion

92. For the foregoing reasons, the objection pursuant to cl 4.6 of WLEP 2012 is not sustained because I am not satisfied that the written request has demonstrated that compliance with the development standard is unreasonable or unnecessary. I am also not satisfied that the written request has demonstrated sufficient environmental planning grounds to justify contravening the development standard.

93. Accordingly I make the following orders:

1. Appeal dismissed.

2. Development application No. DA 85/2020 to construct an additional level to the approved four-storey shop-top housing development at lots 20 and 21 in Deposited Plan 5953 known as 2-4 Jaques Avenue, Bondi Beach is refused.

3. Exhibits other than exhibits A, B, and 1 be returned.

……………………….

P Clay

Commissioner of the Court

Amendments

26 October 2020 - Correction to cover sheet.

Deletion of word "not" in [73].

Decision last updated: 26 October 2020