Winim Developments Pty Limited v North Sydney Council

Case •

[2024] NSWLEC 1045

•

13 February 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: WINIM Developments PTY Limited v North Sydney Council [2024] NSWLEC 1045
Hearing dates: 29 January 2024
Date of orders: 13 February 2024
Decision date: 13 February 2024
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The Applicant’s written request, pursuant to clause 4.6 of the North Sydney Local Environmental Plan 2013, seeking to vary the development standard for height as set out in clause 4.3 of the North Sydney Local Environmental Plan 2013, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. 230/22 for partial demolition of existing structures, tree removal and the construction of a four-storey residential flat building with basement parking for 15 car parking space and nine bicycle spaces at 112-114 Wycombe Road, Neutral Bay, legally known as Lots 1-4 in Sp 41508, subject to conditions of consent attached in Annexure A.

(4) All exhibits are returned except for Exhibits A, B, C, 4 and 8.

Catchwords:

DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R4 High Density Residential zone – public submissions are considered – orders by consent

Legislation Cited:

Architects Act 2003

Conveyancing Act 1919, ss 88A, 88B, 88E

Land and Environment Court Act 1979, s 39

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38, Dictionary

North Sydney Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 5.10, 6.10, 6.12, Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 10.9, 10.10, Chp 2, Chp 10

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cl 28, 30, Sch 1

Texts Cited:

North Sydney Development Control Plan 2013

Apartment Design Guide

Category:Principal judgment
Parties: WINIM Developments Pty Limited (Applicant)
North Sydney Council (Respondent)
Representation:

Counsel:
L Cone (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2022/378217
Publication restriction: Nil

Judgment

  1. COMMISSIONER: A residential flat building is proposed on a site located on the western side of Wycombe Road in Neutral Bay.

  2. The site is currently occupied by a two-storey building that was originally constructed as a pair of semi-detached dwellings in the early 1900’s, and converted sometime in the 1990’s into a residential flat building.

  3. Development Application DA230/22 (the original DA), lodged with North Sydney Council (the Respondent) on 8 August 2022, proposes the partial demolition of the existing residential flat building, and the construction of nine apartments over a basement carparking.

  4. The Respondent publicly notified the original DA between 17 August 2022 and 21 October 2022, in response to which forty-three public submissions were received.

  5. As the original DA was not otherwise determined, the Applicant in these proceedings, WINIM Developments Pty Limited, filed an appeal in Class 1 of the Court’s jurisdiction on 15 December 2022 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  6. On 17 August 2023, the Court, exercising the functions of the Respondent under s 39 of the Land and Environment Court Act 1979, approved the Applicant amending the DA.

  7. On 23 November 2023, the Respondent notified residents in the area that amended plans had been prepared (Ex 3, folio 424), and later extended the notification period to expire on 20 December 2023 (Ex 3, folio 423).

  8. On 5 December 2023, the Court again exercised like powers to approve the Applicant further amending the DA. The key changes between the amendments at [6], and those for which leave was granted on 5 December 2023 are described by the Applicant’s architect, Rothelowman, (Ex B, Tab 2) as follows:

Adjustments to the overall massing of the rear extension, including window arrangements and roof design to be sympathetic to the Federation and Victorian period character of the areas.

Amendments include:

- Increased setbcks to the north, south and west with the top storey setback further from the existing roof ridgeline to the east.

- Pitched roof design.

- Material adjustments to be responsive to the existing building.

- Glazing arrangements amended to be more aligned to the federation style and proportions.

Configuration to the basement car park layout and driveway design in response to the adjusted setbacks and the retention for the existing stormwater pipe.

The driveway design is amended to the north to be increase [sic] the landscape and communal areas.

  1. The Court directed the Respondent to file an Amended Statement of Facts and Contentions (ASOFAC) by 19 December 2023.

  2. The ASOFAC filed with the Court on 15 December 2023 (Ex 1) identified that all contentions were resolved, or capable of resolution subject to the imposition of conditions of consent.

  3. On 17 January 2024, the Applicant filed proposed orders, by consent of the parties in the proceedings, that the appeal be upheld.

  4. In circumstances where parties seek orders of the Court by consent, the Court requires the Respondent to demonstrate reasonable notice has been given to objectors of the proposed orders, the date of the hearing and an opportunity for objectors to be heard.

  5. The proceedings commenced with an onsite view at which the Respondent stated such notice had been provided in accordance with the Court’s practice, that was later verified by copies of email and letter correspondence in both Ex 3 and Ex 7.

  6. The Court heard oral submissions from four residents who summarised concerns held by themselves or on behalf of others. Oral submissions generally reflect those written submissions contained in the bundle at Ex 3, and may be summarised broadly as follows:

  1. The height is exceeded

  2. Overshadowing and privacy impacts

  3. Construction traffic

  4. Incompatibility with the desired character

  5. Stormwater provision

  6. Tree removal

  7. View loss

  1. Public submissions made in response to the proposed development are contained in the Respondent’s bundle marked Ex 3. Two further written submissions dated 14 December 2023 and 19 January 2024, prepared on behalf of residents at 27 Barry Street, were also tendered (Ex 4). I note the submission dated 14 December 2023 is also found in the Ex 3 (folios 476-482).

The site and its context

  1. The site is legally described as Lot 1-4 in SP 41508, and is otherwise known as 112-114 Wycombe Road, Neutral Bay.

  2. The site has an area of 1,056m2, with a frontage to Wycombe Road of 23.89m, side boundaries of 42.78m, to the north, and 45.42m to the south, and a rear boundary that fronts a laneway.

  3. The laneway is known as Barry Lane. It provides vehicular access to a garage and carports to the rear of the site, and intersects with Yeo Street to the north.

  4. The site is located within the R4 High Density Residential zone, according to the North Sydney Local Environmental Plan 2013 (NSLEP), in which residential flat buildings are permitted with consent where consistent with the objectives of development in the zone.

  5. The objectives of the R4 zone are:

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

•  To provide a variety of housing types within a high density residential environment.

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

•  To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

•  To ensure that a reasonably high level of residential amenity is achieved and maintained.

  1. The site is also located within the Cremorne Heritage Conservation Area (Cremorne HCA), and is in the vicinity of a number of items listed in Schedule 5 of the NSLEP for their heritage significance.

Expert evidence

  1. The Court was assisted by experts in the disciplines of town planning and urban design and in built heritage who conferred in the preparation of joint expert reports.

  2. The experts in town planning and urban design are:

  1. On behalf of the Respondent; Mr Damon Kenny (planning);

  2. On behalf of the Applicant; Mr Jeff Mead (planning), and Mr Geoff Bonus (urban design).

  1. A joint expert report prepared by the planning and urban design experts was filed with the Court on 1 November 2023 (Ex 6), in which the experts reached agreement on all contentions relevant to the discipline.

  2. The experts in built heritage are:

  1. On behalf of the Respondent: Ms Lucinda Varney, and

  2. On behalf of the Applicant: Mr Graham Brooks.

  1. A joint expert report prepared by the heritage experts was filed with the Court on 1 November 2023 (Ex 5), in which the experts agree on all heritage contentions, subject to the preparation of drawings that are evident in the architectural plans at Ex B, Tab 1.

The height is exceeded

  1. The proposed development exceeds the height of building standard of 12m, shown on the relevant map at cl 4.3(2) of the NSLEP.

  2. Clause 4.6(2) of the NSLEP permits the grant of consent even though a development may contravene a development standard.

  3. That said, cll 4.6(3) and (4) constrain the grant of consent in the following ways:

(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 that—

(a)   compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   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 Planning Secretary has been obtained.

  1. A written request to vary the height standard prepared by Planning Ingenuity dated 12 October 2023 (Ex B, Tab 4) states the proposal has a maximum height of 14m when measured at the highest point of the roof, 13.8m to the top of the lift overrun, and 13m to the top of the dormer windows.

  2. In general terms, public submissions object to the height exceedance because it results in an unreasonably large building design that adversely impacts existing views, privacy and solar access and so represents over-development.

  3. The written request asserts that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case for reasons summarised as follows:

  1. The development is consistent with the objectives of the R4 zone, and the height standard.

  2. No additional significant adverse impacts arise from the exceedance.

  3. The development is consistent with surrounding approvals for residential flat buildings.

  4. Important planning goals are achieved by the approval of the variation.

  1. The relevant objectives of the height standard are:

(a)  to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b)  to promote the retention and, if appropriate, sharing of existing views,

(c)  to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d)  to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e)  to ensure compatibility between development, particularly at zone boundaries,

(f)  to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,

…

  1. In respect of objective (a), the written request states the development is designed in response to the cross fall on the site of 2.85m, while matching the ground floor level of that portion of the existing building to be retained on the site.

  2. In respect of objective (b), the written request states the development will not result in any significant view loss when the built form resulting from the exceedance is compared with a building that complies with the height standard. This is because the rear portion that exceeds the height standard obstructs only those views that are already obstructed today by virtue of an existing ridgeline the runs laterally across the site. To this end, the written request cites the View Impact Assessment prepared by Bonus + Associates (Ex A, Tab 8).

  3. In respect of objective (c), the written request states the development has been designed to protect the solar gain of properties to the south of the site such as 108-110 Wycombe Road. While north-facing windows to Unit 10, 108-110 Wycombe Road, are affected by overshadowing from the exceedance, and by non-compliant setbacks to this boundary, such an impact would result from a building with complying height given these windows are on the lowest level. Unit 10 will receive 2 hours of solar access in mid winter, while Unit 12 on the level above, will receive 3 hours of solar access in mid winter.

  4. In respect of objective (d), the written request states the visual privacy of surrounding properties has been considered by limiting the location of living areas and balconies to the front and rear. Openings in that portion of the proposal that exceeds the height standard are setback, and do not align with windows or balconies to habitable rooms of adjoining properties. Acoustic privacy is also addressed by adopting the recommendations contained in the acoustic report that accompanies the amended DA.

  5. In respect of objective (e), the written request states that compatibility with adjoining development is achieved by:

  1. proposing a four-storey residential flat building between two four-storey residential flat buildings to the north and south of the site, in an R4 zone in which high density residential development is permitted;

  2. retaining the front façade of the existing built form, and sandstone foundation wall, so that the development is compatible with heritage items in the vicinity of the site;

  1. In respect of objective (f), the written request considers the proposal to be of appropriate scale and density given the height standard of 12m anticipates four-storey development with which the proposal would comply but for the sloping topography and the decision to retain the ground floor level of the existing building that is above the natural ground surface of the site. When viewed from Wycombe Road, the setback of the rear portion of the development that exceeds the height standard is not visible. Strict compliance would require the removal of the uppermost storey which would be inconsistent with the desired character of four-storey development. Alternatively, demolition of all the existing built form on the site would permit a greater intensity of development than that currently proposed which further supports the assertion the development proposed is appropriate in its scale and density.

Public submissions on whether the objectives are achieved

  1. The written submissions prepared on behalf of the residents of 27 Barry Street assert that the exceedance results in the loss of views from units to the east. Images prepared by Bonus + Associates in support of the proposal titled ‘View 3’ are re-produced in the submission dated 14 December 2023 as evidence of the unacceptable loss of views.

  2. While View 3 may, on first reading, appear to obstruct views from 27 Barry Street to Mosman to the east, I accept the argument advanced in the written request that neither the exceedance of the height standard, nor the reduced side setbacks from that desired by the North Sydney Development Control Plan 2013 (NSDCP), shown on architectural section TP03.04 (Ex B, Tab 1), are the source of that obstruction. View 3 includes an overlay of the existing built form, and that of the proposed. Projecting the 45 degree plane that extends upwards from the side boundaries, depicted in Figure B-1.3 of the NSDCP, towards the viewpoint shown in View 3, it is clear, in my assessment that the proposed development will not obstruct any views that would otherwise be lost by a complying envelope, or the ridgeline on the existing dwelling, beyond that of some portion of sky.

  3. The submission prepared by Lucas Stapleton Johnson on behalf of the residents of 108-110 Wycombe Road dated 21 December 2023 (inserted into Ex 3, folios 502-507) (LSJ Submission) asserts the exceedance will result in overshadowing of north-facing living spaces, contrary to objective (c) of the height standard, and will overlook the private open space to the rear of 108-110 Wycombe Road, contrary to objective (d) of the height standard.

  4. At the commencement of the hearing, the Applicant tendered new architectural drawings titled Elevational Shadow Diagrams (TP04.22 and TP04.23), re-produced below. The drawings depict shadows cast by the existing built form, a hypothetical complying development and the proposed development.

  1. The Court sought oral evidence from Mr Kenny and Mr Bonus on the new drawings that may be summarised as follows:

  1. Unit 10: the living room window is overshadowed by both the existing and proposed development, with additional shadow evident to the bedroom window at all times of the day in mid winter, but by no more than would be imposed by a built form complying with the envelope desired by the NSDCP.

  2. Unit 12: a minor increase in overshadowing to living room window at 9am from the shadow cast by the existing development, a removal of overshadowing at 12 noon, and an increase in overshadowing that removes sunlight from the window at 3pm, but by no more than would be imposed by a built form complying with the envelope desired by the NSDCP. Likewise, an increase in overshadowing to the bedroom will occur at 12 noon and 3pm.

  3. Unit 14: unaffected by overshadowing at 9am and 12 noon to all windows. However, minor overshadowing results from the proposed development to the living and bedroom windows.

  4. I note there are also varying impacts on a high level window to the kitchen of each unit that range from the removal of overshadowing to the kitchen of Unit 10 at 12 noon to increased and total overshadowing from either a built form complying with the envelope desired by the NSDCP or the proposed development.

  1. The result of this assessment of the experts supports the assertion made in the written request at [36].

  2. As to whether the exceedance results in the overlooking from the proposal to the private open space of 108 Wycombe Road, I note the green space that is the object of the concern might be more appropriately described as communal open space and is located at the north west corner of the site. This area is in the shadow of three mature trees, identified in the Arboricultural Impact Assessment Report (Arborist Report) prepared by Blues Bros Arboriculture dated 11 October 2023 (Ex B, Tab 5) in which Tree 10, 15 and 16 – all of which are located on the land of 108-110 Wycombe Road - are to be retained.

  3. One of the pertinent conclusions of the Arborist Report is as follows:

“The Arborist supports the proposed development from an Arboricultural perspective noting recent changes in architectural plans (namely the basement access ramp). These changes will all but eliminate encroachment of TPZ areas for trees located on adjoining land.” (p 10)

  1. On the basis of the onsite view, and the conclusion of the Arborist Report, I consider the location and canopy size of these three trees will continue to provide total screening to the green space that serves to afford privacy.

  2. The LSJ Submission also sets out numerous grounds on which the proposal fails to conform to the desired character of the area as set out in the character statement of the Cremorne Conservation Area at Section 6.3 of the NSDCP, contrary to objective (f) of the height standard. These grounds include:

  1. The proposal includes elements identified at Section 6.3.7 of the NSDCP (P1) as uncharacteristic of the area, such as over-scaled additions: dormers and skylights to front roof slopes, loss of original detail, modern infill development and residential flat buildings. The scale of the rear addition, retention of the front dormer window, and loss of chimneys to the existing development at the rear lane all represent aspects of the proposal that will have a substantial negative impact on the historical character of the locality.

  2. Section 13.6 of the NSDCP seeks the removal of previous unsympathetic alterations, and the improvement of neutral items by the reinstatement of missing details where appropriate.

  3. The Heritage Impact Statement (HIS) does not justify the means taken to improve the existing item so that it contributes to the character of the Cremorne HCA. This is because no attempt has been made to do so.

  4. Instead, the HIS seeks to justify the increase in bulk, height and form by comparing it favourably to the scale of the neighbouring residential flat buildings to the north and south despite the neighbouring properties being considered uncharacteristic items in the Cremorne HCA by the NSDCP. As such, it is inconsistent with Section 13.6.6 of the NSDCP Infill development in conservation areas, and with Section 13.8 Demolition given such a small portion of the front and side external walls of the existing built form are to be retained.

  5. The HIS fails to consider the impact of the proposal on Barry Lane, or of the proposal on heritage items in the vicinity of the site, in accordance with Section 13.4 of the NSDCP.

  1. The character statement for the Cremorne Conservation Area at Section 6.3 of the NSDCP is in the following terms:

6.3.1 History

The Cremorne Conservation Area was contained within the Alfred Thrupp grant of 1815, which was subsequently acquired by Daniel Cooper. The Coopers did little to improve the property but commenced leasing land around 1850.

From the 1870s, with Military Road constructed and the ferry services available on the Harbour, demand for residential land boomed. This area was promoted as highly desirable and included large blocks of land on which expensive mansions were built.

Freehold land was available from the 1890s and such development continued until the early twentieth century. The Neutral Bay Land Company, who employed architects such as Walter Liberty Vernon and William Wardell to prepare house designs, developed an area of Wycombe and Shell Cove Roads north of Harriette Street, which features substantial, architecturally distinguished housing of the 1890s.

6.3.2 Description

The Cremorne Conservation Area is located on the sloping ground above Shell Cove and extends to Spofforth Street the east to the boundary of the LGA.

The landform slopes to the harbour with an irregular pattern of streets that follow the contours and slopes. The subdivision pattern varies with irregular lots that follow the topography.

The Conservation Area is characterised by a mix of small, medium and substantial late Victorian and Federation era dwelling houses with two and three storey, Inter-war residential flat buildings. Buildings are generally set in established gardens.

6.3.3 Statement of Significance

The Cremorne Conservation Area is significant:

(a) as a consistent late 19th/early 20th Century residential area with a mix of Victorian, Federation one and two storey housing, mixed with Inter-war residential flat buildings,

(b) as a largely intact early 20th Century suburb retaining much of the urban detail and fabric seen in gardens, fencing, street formations, use of sandstone, sandstone kerbing, natural rock faces, wide streets and compatible plantings, all of which are a response to the topography of the area.

6.3.4 Significant elements

Topography

P1 Sloping site falling to Shell Cove.

Subdivision

P2 Irregular lots following the street pattern and topography.

Streetscape

P3 Split roads. Double rail timber fences. Street reservation planting.

Views

P4 Bertha Road lookout (19), Guthrie Avenue lookout (20), Boyle Street (Hunts and Cremorne Point lookouts - 21, 22).

P5 Views from Lower Murdoch Street, Glade Avenue, Reed Street, Burroway Street, Wycombe and Shell Cove Road intersection, Barry Street and Wycombe Road intersection.

6.3.5 Characteristic buildings

P1 Single and two storey detached late Victorian, Federation and Edwardian dwelling houses. Inter war residential flat buildings.

6.3.6 Characteristic built elements

Siting

P1 To the middle of the lot with gardens to the front and rear.

Form, massing and scale

P2 Two storey terraces. Single and two storey detached dwellings. Reduced scale to the rear. Low, multi-storey residential flat buildings.

Roofs

P3 Pitched, hipped and gables roofs pitched between 30 and 45 degrees with skillion roofs to rear. Brick and rendered chimneys. Parapets to flat roof residential flat buildings.

Materials

P4 Walls: Face and rendered brick on sandstone foundations; dark brick to Inter-war residential flat buildings.

P5 Roofs: Slate; terracotta tile and corrugated metal to the rear; flat roofs to residential flat buildings.

P6 Timber verandahsand Federation and Arts and Crafts detailing.

Windows and doors

P7 Consistent with building period and style. Timber.

Fences

P8 Low scale 900-1200 mm height; sandstone walls; metal palisade; timber pickets.

Car accommodation

P9 Set back from the main building line.

6.3.7 Uncharacteristic elements

P1 Over-scaled additions; dormers and skylights to front roof slopes; roof terraces; carports and garages to the street; paved hardstand areas within front setbacks high solid fences to the street; rendering and painting of face brick; loss of original detail; modern infill development and residential flat buildings.

  1. I note the LSJ Submission is at odds with the agreed position of the heritage experts set out in Ex 5. As I understand it, the experts agree that the proposal retains the key characteristics of the original two-storey Federation building as it presents to Wycombe Road, including the sandstone retaining wall to the Wycombe Road footpath, sandstone foundation wall, soft landscaped garden setting, external face brick walls and tiled roofing that is the subject of discussion in the joint report where, at para 18, the experts agree the substitution of existing roof tiles with unglazed Marseilles profile terracotta tiles resolves contentions as to the form, massing and scale as set out in Section 13.6.2 of the NSDCP and improve the outcome to an item that otherwise makes a neutral contribution to the Cremorne HCA.

  2. The Addendum Heritage Impact Assessment prepared by GBA Heritage, dated 11 August 2023 (Ex A, Tab 12), with which there is no disagreement, concludes the proposed development will have no adverse impact on the heritage significance of the heritage items in the vicinity, or the Cremorne HCA.

  3. Accordingly, on the basis of the agreed position of the experts, and the reasons set out in the written request, I am satisfied the written request has demonstrated that it is unreasonable or unnecessary to comply with the height standard for the reason that the objectives of the height standard at [33] are achieved notwithstanding the exceedance.

  4. Next the written request advances the following environmental planning grounds it considers sufficient to justify the contravention of the height standard:

  1. The development presents a complying built form to Wycombe Road, with the exceedance limited to the rear and middle of the site where the exceedance will not be apparent when viewed from Wycombe Road, but will instead appear smaller than its immediate neighbours. The exceedance then reduces at the rear of the site fronting Barry Lane where it will present as a generally complying built form.

  2. The exceedance is due, in part, to the retention of the existing sandstone foundation wall that sits 1-2m above the natural ground surface and which establishes the datum for the development to the rear and so contributes to the exceedance.

  3. The uppermost level that exceeds the height standard is generally contained within a pitched roof form that is setback further from side boundaries than the existing built form. The result is the exceedance will not be visually obtrusive when viewed from the public domain, and where elements such as the lift overrun are wholly obscured from the public domain.

  4. To the extent the exceedance is visible, the character of the proposal is not at odds with the eclectic architectural character of the locality.

  5. There are social benefits to providing additional housing within a highly sought after locality.

  6. There is an absence of significant material impacts on the amenity and environmental values of surrounding properties attributed to the exceedance

  7. The proposed development meets the objectives of the height standard, the objectives of the R4 zone, and the aims of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65).

  1. I accept the environmental planning grounds advanced in the written request and am satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard. In particular, the exceedance occurs towards the middle of the site when neighbouring properties to the north and south are considered. The statement made in the written request that, as a result, the proposal will appear smaller than its immediate neighbours is supported, in my assessment, by the perspectives contained on Drawing TP02.01, re-produced below.

  1. Likewise, I accept that the retention of the sandstone foundation wall to the existing building is desirable for the contribution it makes to the heritage values of the Cremorne HCA. However, its retention also unquestionably contributes to the height exceedance. The degree of contribution made by the retention of it is evident in Section 3 on Drawing TP03.02, re-produced below.

  1. Section 3, as re-produced above, also supports the statement made in the written request that the exceedance presenting to Barry Lane is limited to a portion of the apex or ridgeline of the roof.

  2. The written request sets out reasons the proposal also achieves the objectives of the R4 zone at [20], as follows:

  1. Firstly, the proposal seeks consent for nine apartments, with a mix of two- and three-bedroom units in an area zoned for high density residential development.

  2. Secondly, the unit mix includes one unit identified as ‘liveable’, and two units identified to be ‘adaptable’, nominated in Condition C41 to be Unit 6 and 8, which provides some degree of variety.

  3. Thirdly, while the development does not propose facilities or services beyond those of a residential purpose, the proposal is not antipathetic to such an objective.

  4. Fourthly, the proposal does not compromise the amenity of surrounding development, or the natural or cultural heritage of the area.

  5. Fifthly, the proposal is for high quality residential amenity for future residents when private open space, ventilation, unit size and solar access is considered.

  1. Public submissions argue the proposal fails to satisfy the objectives of the zone, and that the written request is not well founded.

  2. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the NSLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R4 zone.

  3. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the NSLEP.

  4. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height standard under cl 4.3 is justified.

  5. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R4 Zone, for the reasons given in the request. I have considered those public submissions that object to the reasons set out in the written request however, for reasons set out above, I prefer the evidence of the experts which is supported by documents prepared by, or on behalf of, the Applicant.

  6. In forming the opinion of satisfaction required of me, I accept that the retention of the built fabric of the existing building fronting Wycombe Road is the preferred outcome of the heritage experts. This includes the retention of the sandstone foundation wall, which in turn, establishes a datum that elevates the development to a ground floor level of RL 79.440 AHD. This, together with existing openings that are to be retained, sets certain levels within the development that, notwithstanding those levels, complies with the height standard for that half of the development fronting Wycombe Road. As such, the retention of the original building fabric contributes to the exceedance. I consider this to be a sufficient environmental planning ground.

  7. Likewise, I accept that the bulk and scale of the adjoining properties to the north and south establish a scale with which the proposal is compatible, without imposing unreasonable overshadowing or privacy impacts on neighbouring properties.

  8. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the NSLEP and I find no grounds on which the Court should not uphold the written request.

Other jurisdictional considerations of the NSLEP

  1. In considering the jurisdictional considerations required of the Court in this matter, the Applicant prepared a document titled ‘Parties Joint Jurisdictional Statement’ (Ex C).

  2. There is no floor space ratio standard that applies to the site by virtue of cl 4.4 of the NSLEP.

  3. As the site is located in the Cremorne HCA, and is in the vicinity of heritage items, cl 5.10 of the NSLEP applies. For the reasons at [51]-[52], I consider the proposed development to have no detrimental effect on the heritage significance of the Cremorne HCA or the heritage items in the vicinity. Agreed conditions of consent assist in detailing the scope and nature of work to be undertaken on the site including, but not limited to:

  1. Condition A3: demolition is limited to that documented on the approved plans.

  2. Condition C11: repointing of the sandstone front boundary retaining wall to use traditional lime mortar by a qualified stonemason.

  3. Condition C14: front gates to Wycombe Road to be Federation style and in timber or open palisade.

  1. Excavation is proposed for the carpark basement, which includes earthworks in the vicinity of the existing building fabric that is to be retained. A Geotechnical Investigation Report prepared by Crozier dated July 2023 concludes the following:

  1. Groundwater is unlikely to be encountered, although seepage may be anticipated below 3m excavation depth. Negligible impact is expected on the local hydrogeology, and acid sulfate soils are not expected to be impacted.

  2. Where excavation is proposed in the vicinity of the existing built fabric, underpinning is required to below excavation levels.

  3. Where safe batters are not achieved, piling may be necessary and should be founded on bedrock.

  4. A vibration limit of 5mm/s should be set at the founding level for neighbouring structures and 8mm/s for site structures for all excavation work.

  1. The proposal includes a new stormwater pipe and pits to the north of the site so as to avoid drainage works in the vicinity of Trees 10, 15 and 16 on adjoining land. Council Drainage Diversion Plans prepared by Erbas (Stormwater Plans) (Ex A, Tab 6) document the size and location of the new stormwater pipe, pits, and points of connection to existing Council infrastructure.

  2. The site is located within the Sydney Harbour Catchment, which is the relevant waterway for the purposes of considering cl 6.10(3)(g). The proposal includes onsite detention (OSD) of stormwater that is depicted on the architectural drawings and described in a letter prepared by Erbas dated 31 January 2024 as having the same characteristics as that proposed in the Stormwater Management Report dated 11 July 2022. I accept the OSD proposed to be an appropriate measure to avoid, minimise or mitigate the impact of the development, consistent with cl 6.10(3)(h).

  3. I have considered those matters required to be considered at cl 6.10(3) of the NSLEP. On the basis of the documents at [70]-[71], I conclude the earthworks for which consent is required will not have a detrimental impact on environmental functions and process, neighbouring uses, cultural or heritage items or features of the surrounding land.

  4. In reaching this conclusion, I have considered public submissions that express concern at the potential for damage to properties in the vicinity of the site. I note the agreed conditions of consent require:

  1. a Construction Management Program to the satisfaction of the Council that includes, at condition C1(f) the proposed method of support to any excavation adjacent to adjoining properties or the road reserve, to be designed and certified by an appropriately qualified and practising structural engineer.

  2. Dilapidation reports to all neighbouring structures, prepared by a consulting structural or geotechnical engineer (Condition C3); a photographic survey and dilapidation report of adjoining properties, both internally and externally (Condition C4).

  3. Structural adequacy of adjoining properties to be assessed and prepared by an appropriately qualified and practising structural engineer (Condition C6), and provision of shoring to adjoining properties to be certified by an engineer where required (Condition C5).

  1. Clause 6.12 of the NSLEP precludes the grant of consent in circumstances that do not apply to this site by virtue of the adjoining residential flat buildings at 108-110 Wycombe Road, and 116 Wycombe Road.

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

  1. Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires that the application be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of s 29(2) of the EPA Regulation, which include attestations similar in nature to the requirements of cl 28(2)(b) and (c) of the State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65).

  2. I am satisfied that the statement prepared by the architect Mr Ben Pomroy (Arch Reg No 7918) dated 21 July 2022 (ExA, Tab 3), and an updated statement by the same author, dated 31 January 2024 addresses the design quality principles at Schedule 1 of SEPP 65, and explains how the development addresses the objectives of Parts 3 and 4 of the ADG.

  1. Clause 28 of SEPP 65 requires the consent authority, or the Court on appeal, to consider the design quality principles in the following ways:

…

(2)  In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration)—

(a)  the advice (if any) obtained from the design review panel, and

(b)  the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

…

  1. Clause 30 also requires the design quality principles and the objectives of the Apartment Design Guide, to be considered prior to the grant of consent, as follows:

…

(2)  Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to—

(a)  the design quality principles, and

(b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

…

  1. Clause 28(2)(a) requires the Court to consider the advice of a design review panel. The Design Excellence Panel (DEP) (Ex 2, folios 84-86) is a design review panel constituted by the Minister and so the advice provided by it is to be taken into consideration. That said, the written advice of the DEP is responsive to the original DA, and not the amended DA now before the Court.

  2. Subsequent to consideration of the proposal by the DEP, the driveway has been relocated, consistent with advice of the DEP in response to Principle 6.

  3. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of the architect’s statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider whether the land is contaminated and requires remediation.

  2. On the basis of the detailed historical chronology of land use and occupation of the site contained in Section 2.0 of the HIS, I accept that the land is suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Building sustainability Index: BASIX) 2004

  1. The application is accompanied by a BASIX certificate (Cert No. 1322216M_04, dated 22 November 2023) prepared by Greenview Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and s 27 of the EPA Regulation.

  2. While not assisted by submissions on the subject, the Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. As stated at [46], the amended DA is accompanied by an Arborist Report that assesses trees on the site, and confirms the retention of Trees 10, 15 and 16 on the adjoining land.

  2. On the basis of the Arborist Report, and the replacement landscape depicted in the Landscape plans prepared by LandFX Landscape Architecture (Ex B, Tab 3), I consider the aims of Chapter 2 of the Biodiversity SEPP to be achieved.

  3. The site is also identified to be within the Sydney Harbour Catchment area, pursuant to Chapter 10 of the Biodiversity SEPP. I note here that Chapter 10 of the Biodiversity SEPP was repealed by State Environmental Planning Policy Amendment (Water Catchments) 2022. However, the relevant savings provision serves to save the application of Chapter 10 of the Biodiversity SEPP.

  4. Section 10.10 of the Biodiversity SEPP sets out twelve planning principles that must be considered and, where possible, achieved (s 10.9(2)). I have considered the planning principles relevant to the development the subject of the development application and conclude that the development application demonstrates appropriate conformity with the planning principles. In arriving at this conclusion, I note the following:

  1. The architectural plans specify geotextile inlet filters to all new stormwater pits which I accept serves to protect the hydrological process on which the health of the catchment depends.

  2. Existing sandstone features on the site are to be retained and restored, which are a part of the catchment’s scenic values and visual qualities.

Water quality and run-off are matters addressed in the development the subject of the development application, and in agreed conditions of consent at Conditions C24 and C25 among others. I accept that the combination of these will prevent the risk of increased flooding and conserve water.

Public submissions are considered

  1. I will now consider those matters raised in public submissions that are not otherwise addressed in the decision above.

Construction traffic in Barry Lane

  1. Several public submissions express concern at the use of Barry Lane for both construction-related traffic movements, and vehicular traffic generated by future residents.

  2. The Construction Traffic Management Plan prepared by MLA Transport Planning dated 12 December 2022 (Ex A, Tab 18) proposes use of Barry Lane for early phase such as demolition and excavation, after which a construction works zone is proposed on Wycombe Road. Traffic control measures are proposed to manage the works zone, assist pedestrians and the like.

  3. The Traffic Impact Assessment prepared by Traffix Traffic and Transport Planners dated August 2023 (Ex A, Tab 13) assesses the parking rates in accordance with Part B10 of the NSDCP, concluding that parking for 15 vehicles is required.

  4. The existing development is said to generate 2 vehicle trips per hour in both the AM and PM peak periods. The proposed development is assessed to generate 5 vehicle trips during the same peak periods, expressed as an additional vehicle trip every 20 minutes during the peak period.

  5. Swept path diagrams are provided at Appendix C and show a vehicle is able to execute an inward and outward movement between Barry Lane and the car park ramp, and within the car park basement itself.

  6. Waste collection is to occur along Barry Lane, as is the case today.

  7. A number of the submitters prefer Wycombe Road as a point of vehicular access into the site. There are three reasons this is not desirable. They are:

  1. Firstly, the heritage experts agree the sandstone retaining wall to Wycombe Road is a contributory element in the Cremorne HCA and should be retained without interruption by a vehicular crossing or opening. As it was put to me onsite by Ms Varley, vehicle access is not a feature of the Wycombe Road streetscape north of the site where the concentration of heritage items are to be found.

  2. Secondly, it is probable that a vehicular crossing on Wycombe Road would require the removal of one of the three street trees that are shown to be retained.

  3. Thirdly, as the site is located in close proximity to the intersection of Wycombe Road and Bennett Street, I understand the location of a vehicle entry in this location is considered poor road design.

Stormwater provision

  1. As stated at [71], the proposal includes redirection of stormwater from Barry Lane to Wycombe Road via new pipework and pits to the north of the site.

  2. Public submissions cited at [15], and at folios 121-122 express concern at the capacity of stormwater drainage in Barry Lane given a recent history of flooding. The Stormwater Plans cited at [71] identifies existing pits that are to remain, existing pipework that is to be retained and prepared for connection to the proposed new drainage, and the new pipework and pits.

  3. Furthermore, Condition C20 of the agreed conditions of consent require certain drainage infrastructure to be carried out in the public domain, at the Applicant’s expense, including:

  1. Connection to Council infrastructure on Wycombe Road.

  2. Construction of grated gully pits and new in-ground drainage in Barry Lane.

  1. Additionally, Condition 24 requires a site drainage management plan. Condition 25 requires onsite Stormwater detention that is depicted on the architectural plans.

  2. Finally, Condition G10 of the agreed conditions of consent requires a restriction as to user, and positive covenant in favour of the Respondent under ss 88B and 88E of the Conveyancing Act 1919 in respect of the stormwater drainage, on site detention and the like.

  3. Condition G11 requires the drainage easement that varies in width from 1m to 2.5m in favour of the Respondent under s 88A of the Conveyancing Act 1919.

Conclusion

  1. At the conclusion of the hearing, the Court identified annotations on architectural plans that identified the location of the OSD, but did not depict the precise extent of the OSD. So as to be certain of the development the subject of the development application, the Court directed that the architectural plans be corrected to depict the OSD in the location so annotated, and to provide a statement by Erbas, the author of the Council Drainage Diversion plans at [71], verifying the capacity of the OSD.

  2. As the development the subject of the development application, as amended, was described in architectural plans contained in Ex A, and Ex B, including those new elevations described at [], the Court also directed that a consolidated set of architectural plans be filed, and correctly listed in the agreed Conditions of consent.

  3. On 5 February 2024, the Applicant filed a bundle of documents with the Court, with the consent of the Respondent. The bundle contained:

  1. Updated Conditions of Consent

  2. Letter from Erbas in respect of Stormwater Management Report dated 31 January 2024.

  3. Consolidated architectural plans.

  4. Statement of changes prepared by Rothelowman dated 31 January 2024

  5. SEPP 65 Statement prepared by Rothelowman dated 31 January 2024.

  1. For completeness, the changes described at [107(4)] are as follows:

Change

Drawing Ref

Reason

OSD and rainwater tanks noted on plan

TP01.02-03

The On-Site Detention (OSD) and Rainwater Tank (RWT) are located and shown on the architectural drawings. Co-ordination with the civil engineer and landscape architect to ensure alignment with invert levels and ground cover and planting for landscaping.

TP03.01-02

Section updated with tank locations, noting size and allowances for landscaping cover over.

TP04.05

The Landscape Area Diagram has been updated to reflect the placement of tanks, ensuring compatibility with the landscape design. The tank location and design allow for ground over and lawn over the tank with screen planting to the southern boundary.

Landscape area remains at 419.7m2 (39.1%).

TP04.06

Deep Soil Area has been modified for tank placements. The area calculation has been adjusted to exclude the tank area, resulting in a reduction from 378.7m2 (35.8%) to 359.6m2 (34%). It is important to note that this reduction does not compromise compliance with the SEPP 65 deep soil requirements of 7% dedicated to deep soil zones, each with a dimensional area of 6m.

  1. In Court Communication received on 3 February 2024, the Respondent provided its Respondent consent to the Applicant relying on the plans and documents contained in the Bundle later filed with the Court on 5 February 2024.

  2. For completeness, I consider the documents listed in [107] to be corrections to the documents prepared in support of the amended DA, but for those changes described at [108] that have the effect of reducing the area of deep soil as a result of the development. To that extent, the Court, exercising the powers and functions of North Sydney Council, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021, approves the amending of the amended DA, and notes the documents to which the amendment relate are incorporated into the updated Conditions of Consent at [107(1)].

  3. I have considered the public submissions in respect of the proposal and find the proposed development deserving of the grant of consent in accordance with s 4.16 of the EPA Act, and subject to conditions of consent pursuant to s 4.17 of the EPA Act.

Orders

  1. The Court orders that:

  1. The Applicant’s written request, pursuant to clause 4.6 of the North Sydney Local Environmental Plan 2013, seeking to vary the development standard for height as set out in clause 4.3 of the North Sydney Local Environmental Plan 2013, is upheld.

  2. The appeal is upheld.

  3. Development consent is granted to development application no. 230/22 for partial demolition of existing structures, tree removal and the construction of a four-storey residential flat building with basement parking for 15 car parking space and nine bicycle spaces at 112-114 Wycombe Road, Neutral Bay, legally known as Lots 1-4 in Sp 41508, subject to conditions of consent attached in Annexure A.

  4. All exhibits are returned except for Exhibits A, B, C, 4 and 8.

T Horton

Commissioner of the Court

**********

Annexure A 

Amendments

16 February 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), the address at [112(3)], and on the cover sheet of the judgment, is corrected to read as follows:


112-114 Wycombe Road, Neutral Bay.

Decision last updated: 16 February 2024

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