Taylor Developments Group Pty Ltd v Waverley Council

[2019] NSWLEC 200

Land and Environment Court

New South Wales

Medium Neutral Citation:	Taylor Developments Group Pty Ltd v Waverley Council [2019] NSWLEC 200
Hearing dates:	17, 18 and 19 December 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Class 1
Before:	Duggan J
Decision:	See paragraph 55
Catchwords:	APPEAL – development application – mixed use development – breach of height development standards – heritage item – amenity – public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Taylor Developments Group Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Mr To (Applicant) Mr C McEwen SC (Respondent)   Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/387887
Publication restriction:	No

Judgment

1. Taylor Developments Pty Ltd (the Applicant) seeks development consent for the partial demolition of an existing building and construction of a four-storey mixed use building containing two basement levels of car parking and associated facilities, ground level retail, and 10 residential units over three levels (the DA) on the land at 20-24 Hall Street, Bondi NSW (the Site) within the local government area of Waverley Council (the Council).

2. The Applicant has appealed the refusal on 28 November 2019 of the Waverley Local Planning Panel of the DA.

3. The Hearing of the Appeal commenced with a visit to the Site where oral evidence was given by a number of individuals opposed to the development. I deal with that evidence below. The site visit also permitted an inspection of both the immediately adjoining properties and the broader town centre locality in which the Site is situated.

4. Since the commencement of the Appeal the DA was amended with leave of the Court on 6 August 2019. Since the commencement of the hearing, as a consequence of the evidence of the expert witnesses, the resident objectors, and after a view of the Site, the DA has also been amended to take into account some of the concerns raised by the Council in the Appeal as set out in the Amended Statement of Facts and Contentions dated 29 October 2019 (the Contentions). Leave was sought to rely on the Amended Plans and associated documents on the third day of the hearing. Leave was granted and the DA was amended on 20 December 2019 (the Amendments to the DA). As a consequence of the Amendments to the DA the contentions raised by the Council have been resolved to an extent such that the Council, subject to the imposition of conditions, no longer submits that the DA should be refused.

5. Notwithstanding the Amendment to the DA, the Court, as consent authority, is required to be satisfied that the DA is worthy of approval having regard to the relevant considerations set out in s 4.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act). Accordingly, I will consider the contentions that were in dispute at the hearing.

The Site and locality

6. The Site is located on the western corner of Hall Street and Jaques Avenue, Bondi. The Site is identified as Lot 2 in DP 329116, and is of a rectangular shape with 24.38m of frontage facing Hall Street, and 34.13m facing Jaques Avenue. The Site has an area of 770m2 and shares boundaries on the south-western side with 1 Jaques Avenue, and a north-western boundary with 26 Hall Street.

7. Situated on the land is an existing single storey building known as the Bondi Beach Post Office (the Post Office).

The planning framework

8. The land is zoned B4 Mixed Use pursuant to the Waverley LEP. The DA is a use permissible with development consent in that zone. The Site is adjoined along its south boundary in Jaques Avenue by land zoned R3.

9. Clause 4.3 of the Waverley LEP contains a development standard for height. The Site is located in an area with a designated height of 13m. The building does not meet that Height Standard in that the proposed maximum height of the building is 13.91m.

10. The non-compliance with the Height Standard is largely comprised of: a section of roof; and mechanical services including lift overrun and ducts. The extent of the non-compliance was identified in a plan as.

11. The Applicant has lodged a cl 4.6 Objection to the Height Control (the 4.6 Objection) (Exhibit K). The DA complies with the other development standards in Waverley LEP.

12. The existing Post Office is identified as an item of the environmental heritage in Waverley LEP and accordingly the provisions of Clause 5.10 apply. The Site is not within a heritage conservation area, the relevant provisions of that clause as they apply to this DA are:

5.10   Heritage conservation

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

(a)   to conserve the environmental heritage of Waverley,

(b)   to conserve the heritage significance of heritage items …, including associated fabric, settings and views,

(c)   to conserve archaeological sites,

(d)   to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2)   Requirement for consent Development consent is required for any of the following—

(a)   demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i)   a heritage item,

…

(b)   altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

…

(e)   erecting a building on land—

(i)   on which a heritage item is located … or

…

(4)   Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item …consider the effect of the proposed development on the heritage significance of the item …concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5)   Heritage assessment The consent authority may, before granting consent to any development—

(a)   on land on which a heritage item is located, or

…or

(c)   on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item … concerned.

(6)   Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

13. In addition to the provisions of the Waverley LEP the Council has also adopted the Waverley Development Control Plan 2012, of which Amendment 5 of that Plan is relevant to the determination of this DA (the DCP). The DCP makes both general and specific provision for the control of development in its area and of relevance to the determination of the contentions for this DA are:

1. Part B9 - Heritage;

2. Part C2 - Multi Unit and Multi dwelling Housing;

1. 2.5 - Setbacks;

2. 2.7- Building Separation;

3. 1.13 - Landscaping;

4. 2.16 - Solar;

3. Part E - Site Specific Development;

1. E3 - Local Village Centres- Hall Street Town Centre;

2. 3.2 - Generic Controls for Public Domain interface; Built Form and Annexure E3-3 as it relates to four storey development without a rear lane.

14. The DA is also subject to the provisions of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65) and the Apartment Design Guide (ADG). Of particular concern to this DA were the provisions of the ADG that related to building separation at 2F and solar access at 4A.

4.6 Objection to Height Standard

15. As observed above the Waverley LEP contains a development standard relating to height in cl 4.3 of Waverly LEP (the Height Standard).

16. Having regard to the Amendments to the DA and the Amended 4.6 Objection at Exhibit K the Council now does not make submissions that the 4.6 Objection to the Height Standard should not be upheld. It is a precondition to the Court having the relevant jurisdiction to determine the matter on the remaining issues in contention between the parties, that I determine whether the objection should be upheld. For the reasons that follow, I am satisfied that the variation sought to the Height Standard in the Amended 4.6 Objection should be upheld.

17. The written objection identifies that compliance with the standard is unreasonable and unnecessary as the objectives of the standard are otherwise met. In summary the 4.6 Objection identified the following factors that indicate that the relevant objectives of the Height Standard are achieved notwithstanding the non-compliances:

Objective (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.

• The building height at the street edges is predominately compliant with the Height Standard. The non-compliant elements are towards the middle of the Site and comprise ducts, the lift overrun and other roof elements.

• There will be no unreasonable impacts on views.

• Overshadowing - the modelled shadow impacts of the non-compliant elements will not impact on the public domain or public spaces. On neighbouring properties the non-compliant sections will not cast additional shadow.

• Noise - the mechanical plant that in part exceeds the Height Standard will be conditioned to ensure there is no unacceptable noise impacts on the neighbouring properties or public spaces. All plant that needs not be located on the roof has been located in the basement plant room.

Objective (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.

• The Site is located within the “Hall Street Town Centre” as identified in the DCP. The DCP prescribes that this area is to be a four storey centre.

• The retention of the heritage façade of the post office building prevents the proposed building from presenting as a nil setback to the street as is anticipated in the DCP. Further, to provide appropriate floor to ceiling heights (taking into account the existing floor level to the ground floor set by the heritage item) together with a lift core means that the specified four storeys cannot be accommodated entirely within the Height Standard.

• The existing character of the street is mixed and varied with the typical existing built form ranging from two-four storeys. The proposed building being largely consistent with the Height Standard with non-compliances being well setback from the street frontage means that they will not be visible from adjacent public spaces and will not contribute to the bulk and scale of the building.

• The perceptible height will be consistent with the desired future character of the locality.

• The proposal provides a building that is compatible with the height, bulk and scale of the desired future character of the locality and will complement the street network and the public space.

18. It was submitted that the overall development is therefore consistent with the relevant objectives of the Height Standard.

19. The 4.6 Objection also suggests that there are sufficient environmental planning grounds to justify the non-compliance which I summarise as:

1. The majority of the building mass is below the Height Standard. The non-compliant elements do not add significantly to the bulk of the building with the greatest areas of non- compliance being set back from the building edge to limit the capacity to perceive the additional height;

2. The breaches are primarily servicing elements that need to be placed on the roof for functionality;

3. The adaptive re-use of the Post Office building at ground level fixes the levels at ground, including the 3.3m floor to ceiling height at ground level which, due to heritage considerations, cannot be modified;

4. The number of storeys and the bulk and scale of the built form is consistent with the streetscape and desired future character of the area;

5. There are limited impacts on public spaces and adjoining private development as a consequence of the non-compliances with respect to noise, views, privacy and overshadowing.

20. Having regard to the matters raised in the written request (summarised above) pursuant to the requirements of cl 4.6(4)(a)(i) I find that the Applicant’s written objection has adequately addressed the matters required to be demonstrated by subclause (3), namely that:

1. Compliance with the standard is unreasonable or unnecessary in the circumstances of the case; and

2. That there are sufficient environmental planning grounds to justify contravening the development standard.

21. I have had regard to the Applicant’s cl 4.6 Objection (Exhibit K) where it outlines the consistency with the relevant objectives of the development standard that I have summarised at [17]-[19] above and the consistency with the relevant zone objectives contained at page 22 of Exhibit K. I agree with those submissions and adopt that reasoning. On that basis, I also find that the development will be in the public interest because it is consistent with the relevant objectives of the particular standard which are:

4.3   Height of buildings

(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,

…

(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.

22. And for the objectives of the zone in which the development is proposed to be carried out, namely the B4 Zone that provides:

1. To provide a mixture of compatible land uses;

2. 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;

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

Heritage

23. The existing building is the former Bondi Beach Post Office. Australia Post sold the land and does not intend to operate a post office from the Site.

24. The Building is an item of the environmental heritage as listed in Waverley LEP, Schedule 5. The Building is not within a heritage conservation area. As such, the provisions of cl 5.10 of Waverley LEP, as outlined above, are a relevant consideration in the determination of the DA.

25. Specialist expert heritage evidence was adduced in the proceedings from Mr Phillips for the Council and Mr Davies for the Applicant.

26. The heritage significance of the Bondi Beach Post Office has been agreed between the heritage experts as (Exhibit B folio 211):

The following statement of significance updated on 30 October 1999 for the Bondi Beach Post Office is available from the NSW State Heritage Inventory.

Fine local example of an Inter-War Stripped Classical style public building. Associated with the development of Bondi as a popular surfing beach, and the suburbanisation of the area. Intact period buildings are now rare for this locality. Important streetscape contribution on its corner site. Local significance.

The following statement of significance as listed for the Bondi Beach Post Office is available from the Commonwealth Heritage List.

Bondi Beach Post Office, constructed in 1922 to a design by EH Henderson of the Commonwealth Department of Works and Railways, and subsequently extended, is of local historical significance. The building is associated with a period of local growth and development, in the interwar period, when Bondi Beach became a popular beach resort and attraction for families and recreational swimmers. As Bondi grew in popularity, so did the development and suburbanisation of the area. The interwar heritage character of the building, reflecting an important period of development in the local context, and the prominent comer location, enhance this aspect of significance (Criteria A Processes).

The post office and telegraph office (possibly originally with residential quarters) was designed by E H Henderson under George Oakshott's aegis as State head of the Commonwealth Public Works Office, in the Colonial/Georgian Revival Style. Typologically, the building's original planning has been impacted by works. These works, which include changes to the exterior such as the enclosure of the former comer porch and other additions, have also impacted to some- extent on the building's presentation. Stylistically and architecturally, however, Bondi Beach is significant as one of a small group of compact, domestically scaled brick post offices in New South Wales designed by Henderson. It also reflects and develops several design signatures worked out by architects Murdoch and Mackennal in other states. The building is also one of four still operating as a post office designed between 1923 and 1926 that adopt a columned comer entry in a tight domestic cottage-form, and were a genre distinct to New South Wales. More formally, it is a companion design of the pyramidal or oblong hipped-roofed post offices designed for small suburban and regional settings between 1920 and 1930, which again had their main airing in New South Wales, but were tried out in other states as well (Criterion D Characteristic Values).

Aesthetically, Bondi Beach Post Office, located on the comer of Hall Street and Jaques Avenue, displays some landmark qualities in this context. The building has an assured comer presentation, makes a contribution to the local/immediate streetscape heritage character, and accordingly demonstrates aesthetic value at a local level (Criterion E Aesthetic Characteristics).

The curtilage includes the title block/ allotment of the property.

The significant components of Bondi Beach Post Office include the main postal building and its comer presentation, and the 1934 addition to Hall Street.

27. The Council also tendered a copy of the Inventory Sheet for the Post Office that formed part of its consideration in the determination to list the Post Office (Exhibit 6). The statement of significance in the inventory sheet largely coincides with the statements outlined above.

28. The experts agree that the previous use of the building as a post office is no longer an available use and therefore a change in use is appropriate in a heritage context.

29. By this development application the Heritage Impact Statement describes the proposal in the following terms:

Alterations and additions are proposed to be undertaken to the existing Bondi Post Office at 20-24 Hall Street, Bondi. This would involve major demolition to the existing single storey building where the interior, all additions and the existing roof will be removed. It is noted that the existing heritage significant façade including the c.1922 windows at Hall Street and Jacques (sic) Avenue will be retained.

As part of the proposal, two basement levels will be introduced to accommodate car parking areas and associated car lifts, storage areas, plant rooms, a pump room, retail waste disposal, switchboard room and pedestrian access to these levels. The existing ground level will be subdivided to house the repurposed retail space, access to the residential area and vehicular entry to the car lift. Three additional levels will be constructed on top of the existing building which will provide a total of ten residential units with five three- bedroom units and five two-bedroom units. In order to activate the corner site with outdoor seating the removal of two trees and planters, the mail boxes, sign and payphone are proposed.

(Exhibit B at folio 194).

30. In effect, the entire building save for the 1920’s component of the Jaques Avenue façade wall and the façade wall on the Hall Street frontage will be demolished.

31. The Heritage experts agree that the proposed demolition of the interiors and existing additions as proposed and the treatment of the retained fabric in accordance with the agreed proposed Schedule of Conservation Works at Exhibit N is acceptable in heritage terms. The dispute between the heritage consultants turned on whether it was necessary to incorporate a part of the existing roof form into the design so as to ensure that there was not an unacceptable diminution of the heritage significance of the item.

32. As a consequence of the Amendments to the DA the Applicant has incorporated a reflection of the roof form as it relates primarily to the 1920’s section of the Post Office. This, in effect, reflects a retention of the roof junctions and pitch as it intersects with the retained sections of façade. Evidence was provided from both experts that this was a satisfactory resolution of the desire to reflect the roof form such that, in their opinion, the heritage significance of the building as proposed with the Amendments to the DA satisfied the requirements of cl 5.10 and was worthy of approval.

33. In addition further details of the materials and finished of the Post Office façade, the eave detail at the intersection between the Post Office façade and the new building was provided. Further updated Schedule of Heritage Works in Exhibit N was also provided to reflect the Amended DA and the agreed treatment for the conservation of the heritage significance of the heritage fabric. A suite of agreed conditions was also considered by the Heritage Consultants and were supported by the Heritage Consultants. The conditions were crafted to ensure the heritage works reflected the agreement and were in fact carried out.

34. The Applicant also provided expert evidence from a structural engineer, Mr Pratt (Exhibit D) that identified the means by which the construction of DA would be undertaken such that there is confidence that the heritage façade will be adequately protected and retained as proposed. This evidence was not disputed by the Council and I accept it.

35. I accept the evidence of the expert Heritage Consultants. They have carefully and in detail identified the Heritage Significance of the item and addressed the retention of the elements that contribute to that significance. They have ensured through the Amendments to the DA and the Schedule of Heritage Works that the development will have a satisfactory impact on the heritage item and that the proposed new works will compliment and work with the retained item. Subject to the imposition of the heritage conditions agreed by the experts I do not consider that the impact on the heritage significance of the item would warrant refusal of the DA.

Town Planning/Urban Design considerations

36. Expert Town Planning evidence was given by Mr Vescio for the Council and Ms Francis for the Applicant. Expert Urban Design evidence was given by Mr R Dickson for the Applicant. The evidence consisted of a joint report (Exhibit 4) and oral evidence on site and in Court.

37. Apart from the non-compliance with the Height Standard and the heritage issues dealt with above, it was contended by the Council that the development should be refused due to:

1. The overbearing impact of the bulk of the building due to non-compliance with the DCP requirement to set the 4th level back;

2. Amenity impacts on 1 Jaques Avenue from: overshadowing of the living room windows on the northern elevation; and the perception of bulk;

3. Non-compliance with the DCP and ADG setback requirements to the commercial building at Westpac are unacceptable as the setbacks may compromise the future redevelopment of that site for a mixed use development.

Overbearing impact of the bulk of the building due to the non-compliance with the DCP requirement to set the 4th level 3m back from the face of the building

38. The Council contended that the Hall Street Town Centre requirements anticipated a 4 level form of development, comprising a nil street boundary setbacks for the first 3 levels with a setback of 3m at the 4th level, to provide a perception at street level of a three level street wall and recessed level above. I accept that this form of development reflects the existing form of new development that has been undertaken in Hall Street Town Centre. I do note that such development is largely mid-block development.

39. However, the DCP also allows for particular site specific considerations to prevail where the proposal would still reflect the desired future character of the area. In this case, I consider that there are compelling reasons that relate only to this site that warrant a design that does not reflect the upper level setback as contended for by Council. These features are:

1. The Site has a heritage item that is (at least in part) being incorporated into the redesign such that the setbacks of the existing building dictate the setbacks at ground level. To accommodate the retention of the heritage item the nil setback to the street at ground and upper two levels is not desirable. Therefore the building will maintain the existing 3m setback from the street frontage. This has the consequence of there being a (albeit minor), reduction in the perception of the bulk of the building from the adjacent road and pedestrian walkways. It is also desirable, for heritage reasons, that any new component of the building reinforce the setback determined by the heritage building by continuing that setback to the upper levels of the new section of building;

2. The Site is a corner site and to reflect the original heritage ambitions of the Post Office it needs to address and reinforce the corner position. The capacity to achieve this is diminished if the upper floor is recessed;

3. The Site immediately across Jaques Avenue from the subject site is within the higher building height control of 15m. That building is built with a nil setback to both its street frontages and is of a solid form that dominates the immediate and distant views of the Jaques Avenue - Hall Street intersection. The proposed design must compete with this development to express the corner feature that the heritage significance warrants. The design achieves this notwithstanding that it largely complies with the lower Height Standard of 13m, through its design feature of the vertical elements with the 4th level horizontal cap. To require the 4th floor to be recessed would unsatisfactorily diminish the contribution to the corner that the design has managed to achieve whilst still largely complying with the Height Standard;

4. The interface between the two height areas is moderated by the transition that the design has achieved;

5. The design has ensured that the visible components of the 4th level are largely void (being balconies behind the façade treatment) such that the perception of the 4th floor has been moderated.

40. It is these features that are peculiar to this particular site that warrant the variation to the upper floor setback advocated by the Council. I determine that the desired future character of the Hall Street Town Centre as identified in the DCP will not be diminished by the design adopted to meet the particular circumstances of this case.

Amenity impacts on 1 Jaques Avenue

41. 1 Jaques Avenue has its side boundary abutting what is referred to as the rear (southern) boundary of the Site.

42. The residential flat building at 1 Jaques Avenue is three storeys with the primary outlook of the apartments to the Jaques Street frontage and to the rear (generally east-west). The north facing wall of that building (that is parallel to the common boundary with the Site) is largely blank with the exception of small windows to the living room, bathroom and bedroom of each of the apartments.

43. The DA has, in large part, been designed to protect the solar access to the living room windows of these apartments such that they retain the 2 hours solar access at midwinter as is required by the ADG. The exception is that the middle level living room window of the apartment at the Jaques Avenue frontage only received 1.15 hours of solar access on the relevant day. During the course of evidence it became apparent that if the second floor of the DA (Unit 2.01) was modified to reflect a floor plan similar to that of the apartment immediately above it on level three, the window in question would receive 2 hours solar access. The amendment to the DA would require the deletion of the second bathroom and a minor reduction to the floor space of one of the two bedrooms of Unit 2.01. I accept the evidence of Mr Vescio that such a modification to the DA was a small and not unreasonable imposition to achieve the ADG compliance to the living room window.

44. The Applicant agreed to amend the DA to reflect this change and the Amendments to the DA now reflect that position. I am therefore satisfied that on the basis of the impact on solar access to the property at 1 Jaques Avenue that the impact is acceptable.

45. It was also suggested that the separation between the two buildings was unacceptable due to the visual impact of proximity of the DA southern wall to the apartments at 1 Jaques Avenue. The development at 1 Jaques Avenue does not comply with the ADG or DCP requirements for building separation. It provides a 1.5m setback to the boundary that is not landscaped. This proximity is, in part, why that development has limited outlook to the Site. Whilst I considered it necessary to accommodate the solar access requirements of that building I do not consider that the impact on the outlook warrants further changes to the DA. I particularly consider that the relationship between the two buildings is acceptable with the Amendments to the DA that reduce the wall length at level two and the introduction of an elevated planter along the south common boundary at level one that will provide a landscaped outlook. The landscaped outlook is one that 1 Jaques Avenue does not provide on its own land. I do not consider that the building separation warrants refusal of the DA or further modifications.

26-28 Hall Street (Westpac Building) redevelopment potential

46. 26-28 Hall Street, Bondi is presently occupied by the Westpac Bank building. This land has a development potential for mixed uses like the Site. The concern raised by the Council is that the 2m non-compliance with the setback to the boundary reflected in the south western corner of the Site will compromise the capacity of that land to achieve its potential. The concern related primarily to the capacity of that development to be undertaken without compromising the achievement of solar performance to the DA building.

47. The DA, as lodged, was ADG solar compliant in that 70% of the apartments obtained 2 hours solar access. The risk was that the balcony to Unit 1.01 would be overshadowed by any building on the Westpac land rendering it non-compliant. However, with the deletion of the bathroom to Unit 2.01 an opportunity arises to provide a compliant balcony in the area formerly occupied by the bathroom that would render that apartment solar compliant such that 80% of the apartments would receive the prescribed ADG solar access. With this amendment the capacity of the Westpac site to be redeveloped without unacceptably reducing the total solar performance of the Site was significantly improved. The flexibility provided by the Amendment to the DA is such that I determine that it is unnecessary for a further increase to the setback at the south western end of the Site.

Public Submissions

48. I have read and considered the written submissions made by the large number individuals and community groups in opposition to the DA on each occasion it was notified. All of those submissions indicated a concern about the loss of the “local post office” and its role as a community space with planting, shade and trees. This concern was reinforced in the oral evidence that was provided on site by:

1. Paul Paech;

2. Lea Ferris;

3. Lenore Kulakauskas on behalf the Bondi Beach Precinct;

4. Rosanna Iacono on behalf of Bondi Business Women and The Growth Activists;

5. Ian Aldridge on behalf of the Bondi & Districts Chamber of Commerce.

49. The role that the Post Office use played in the Bondi community for the last 100 years was appreciated. However, the decision to remove the post office use from the Post Office building is a decision that was made by the then owner and operator, Australia Post. Neither the Council, nor the Court on appeal, has any power to require the post office use to continue on the Site. The refusal of the present DA would not compel its return. The DA must be determined in accordance with the relevant considerations in s 4.15 of the EP&A Act, which does not permit a consideration of whether the past owner should have made the decision it did to cease the use.

50. The Post Office building can continue to provide some of the benefits identified by the community, such as seating beneath the street trees and a place for respite that does not require the purchase or consumption of commercial items. The retention of the planter boxes at the Jaques Avenue frontage will remain available for public use as they are located on public land. The utility of these spaces will be improved by the removal of the other adjoining uses such as the public phone and post boxes that constrained the use of these areas. Further, the Council has required the improvement of the public domain through conditions requiring the replacement of the paving in the public domain and into the private domain to the building face. A further condition will require the Applicant to provide some seating with the benefit of street tree shading in the Hall Street road reserve, if the Council wishes it to do so. This is public land and it will be a matter for Council to determine if this is an appropriate amenity to be provided to the public, if so, it will be installed at the cost of the Applicant.

51. There were two oral submissions made on site that related to the impact on individual properties. These objectors submitted that subject to the specific impact being addressed they were not fundamentally opposed to appropriate development of adjoining sites. Their objections were considered and balanced.

52. The occupiers of 1 Jaques Avenue made submissions, through Mr Moody, that the DA should be amended to address the interface of the two properties particularly with respect to overshadowing and outlook. For the reasons I have addressed above the Amendments to the DA have appropriately responded to the concerns raised by the occupants of these apartments.

53. Mr Findlay spoke on behalf of his family who occupy the property to the rear of 1 Jaques Avenue located at 15 Consett Street, Bondi. I attended at this property to hear his evidence. The concerns raised related primarily to overlooking of the rear yard and windows of the living, kitchen and bathroom windows and noise. The town planning experts have considered the privacy and noise issues and have agreed that both due to the distance separation from the DA to this property and the DA design the impacts are acceptable in this suburban context. I accept this assessment.

Conditions

54. The conditions that are appropriate to be imposed in the event of an approval have been agreed by the parties in Exhibit 7. These conditions reflect the matters identified above as the Amendments to the DA and provide for an appropriate form of development on this site. I consider it appropriate to impose the conditions in the form agreed between the parties.

Conclusion and orders

55. For the reasons outlined above, I determine that the DA now proposed, subject to the conditions, now agreed, is worthy of approval. Accordingly, the Court Orders that:

1. Leave be granted to the Applicant to amend the development application as reflected in the Architectural Drawings in Exhibit R;

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is ordered to pay the Respondents costs thrown away as a consequence of the amendment referred to in Order 1 as agreed or assessed;

3. The Appeal is upheld;

4. The variation to the development standard for height in cl 4.3 of the Waverley Local Environmental Plan, 2012 made pursuant to cl 4.6 of that LEP is upheld;

5. Development consent is granted for part demolition of the existing building; retention of part of the existing building and the construction a four storey mixed use building containing two basement level car parks, ground level retail, and three levels of residential comprising 10 residential units on the land at 20-24 Hall Street, Bondi NSW subject to the conditions in Exhibit 7 and annexed to these orders as Annexure A;

6. The exhibits except exhibits K, R and 7 are returned.

Annexure A (509 KB, pdf)

**********

Decision last updated: 20 December 2019