Land and Environment Court New South Wales Medium Neutral Citation: Hall Street A Pty Ltd v Waverley Council [2020] NSWLEC 1235 Hearing dates: 21 May 2020 Date of orders: 22 June 2020 Decision date: 22 June 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The Applicant is granted leave to amend the application to rely on amended architectural drawings and a conservation schedule as listed in condition A.1 of the conditions of consent at Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The appeal is upheld. (4) Development Application No. 391/2018 for the partial demolition of existing buildings, the retention, refurbishment and change of use of a building listed as a local heritage item and construction of a shop top housing development containing 17 units, 2 retail spaces and basement parking over two levels, at 43-45 Hall Street, Bondi, is approved, subject to the conditions of consent at Annexure A. (5) The exhibits, other than Exhibits 1, A and H, are returned. Catchwords: DEVELOPMENT APPLICATION – retention and adaptive reuse of a cottage identified as a local heritage item and construction of a shop top housing development – existing use – contravention of the height of buildings development standard – design excellence – building separation and setbacks – solar access – privacy Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Waverley Development Control Plan 2012 Category: Principal judgment Parties: Hall Street A Pty Ltd (First Applicant) Hall Street B Pty Ltd (Second Applicant) Hall Street C Pty Ltd (Third Applicant) Waverley Council (Respondent) Representation: Counsel: A Galasso SC with A Hemmings (Applicants) M Staunton (Respondent) Solicitors: Baron + Associates (Applicants) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/103351 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 391/2018 for the partial demolition of existing buildings, retention and refurbishment of a residential building listed as local heritage item and construction of a shop top housing development containing 17 units, 2 retail spaces and basement parking over two levels (the proposal), at 43-45 Hall Street, Bondi (the site) by Waverley Council (the Council). 2. The appeal was subject to conciliation on 18 September 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 11 October 2019, pursuant to s 34(4) of the LEC Act. 3. Following the Court's policy, "COVID-19 Further Restrictions" announced on 24 March 2020 and published on the Court's website, the proceedings were listed for an audio-visual hearing on 21 May 2020 pursuant to s 34C of the LEC Act. Because of the Court's policy, I did not visit the site, however a video (Ex K) and photographs (Ex L) of the site and its context were admitted into evidence. 4. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application to rely on amended architectural plans (Ex A) and a conservation schedule (Ex B), subject to the applicant paying the Council's costs thrown away as a result of the amended application, as agreed or assessed, pursuant to s 8.15(3) of the EPA Act. Issues 1. Several of the Council's contentions were resolved to the Council's satisfaction by the amended architectural plans (Ex A) and conservation schedule (Ex B), following the joint conferencing and agreement of the experts on changes to the proposal and additional information. 2. The Council's remaining contentions can be summarised as: * The proposal should be refused due to its excessive height and failure to comply with the height of buildings development standard set out in cl 4.3 of the Waverley Local Environmental Plan 2012 (LEP 2012), resulting in a building that is inappropriate in its bulk and scale and as a consequence causes unacceptable adverse impacts on the streetscape and the amenity of neighbouring properties. The proposal is inconsistent with objectives (a) and (d) of cl 4.3(1), as the proposed height does not preserve the amenity of neighbouring properties due to adverse impacts in relation to visual bulk and scale, overshadowing and visual and acoustic privacy; and the proposal results in unacceptable impacts on the streetscape and the desired future character of the locality. The cl 4.6 written request to vary the height of buildings development standard does not demonstrate that the proposed development is consistent with the objectives that underpin both the zoning and the development standard. * The proposal should be refused due to its excessive bulk and scale and failure to achieve the design quality principles for built form and scale set out in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). The design does not achieve an appropriate built form for the site as the proposed bulk and scale will have an unreasonable adverse impact on the amenity of adjoining and neighbouring properties. * The proposal should be refused because it has an unacceptable impact on the streetscape. The proposal does not satisfy the design quality principles for aesthetics set out in SEPP 65 and is not consistent with the design criteria set out in the Apartment Design Guide (ADG). The proposal does not exhibit design excellence in accordance with cl 6.9 of LEP 2012 and does not satisfy the relevant controls of Waverley Development Control Plan 2012 (DCP 2012). * The proposal should be refused as the separation distances from adjoining properties and proposed side and rear setbacks are unsatisfactory and will result in unreasonable impacts on the adjoining properties. * The proposal should be refused because it will result in unsatisfactory external impacts in terms of solar/overshadowing. * The proposal should be refused because it will not provide a reasonable level of visual and acoustic privacy for future residents and neighbouring properties. * The deep soil area and landscaping at the rear of the site will result in amenity impacts on the Lower Ground Floor apartments because they will receive insufficient solar access. 1. The applicant raised an issue regarding two conditions of consent (Ex 6), as follows: "A.2 (3) The front balconies are to be amended by provision of full height external side walls as a straight prolongation of the external side elevations of Units 101, 201 and the plans are to be notated accordingly prior to a Construction Certificate. (4) The front balconies of Units 101, 201 and 301 are to be redesigned to appear as inset balconies with balustrading having a solid appearance and the plans are to be notated accordingly prior to issue of a Construction Certificate." 1. The applicant is willing to amend the architectural drawings to reflect the changes sought by these two conditions and therefore the issue raised is not determinative. The applicant submitted that the changes sought erode the design integrity of the proposal and should not be imposed because the design of the street elevation is responsive to the context, particularly the setback of the building to the west, at 49 Hall Street. The only purpose of these two conditions, according to the applicant's submission, is to force the building envelope to conform to the typical built form for four-storey buildings in DCP 2012 at Annexure E3-3. The site and its context 1. The site is on the north-eastern side of Hall Street, Bondi, between O'Brien Street and Gould Street. The site is an amalgamation of two allotments and shares a rear boundary with 77 and 79 Roscoe Street. 2. The site has an area of 1166sqm and a frontage to Hall Street of 24.38m. 43 Hall Street contains a two-storey residential building behind a later single storey retail addition. 45 Hall Street contains a residential flat building. The site falls to the rear. The proposal 1. The proposal is to demolish the residential flat building and the later retail addition to the residential building and to retain and refurbish the residential building and construct a shop top housing development, consisting of the following: * Two levels of basement parking, accessed via a ramp from Hall Street; * Lower Ground Level: one x 3 bed apartment, one x 2 bed apartment and one x 1 bed apartment, 143sqm retail tenancy, 98sqm retail/commercial tenancy in the former residential building; * Ground Level: residential lobby, two x 3 bed apartments and one x 1 bed apartment, 88sqm retail tenancy fronting Hall Street and 98sqm retail/commercial tenancy in the former residential building; * Level 1: three x 3 bed apartments and one studio apartment; * Level 2: three x 3 bed apartments and one studio apartment; and * Level 3: one x 3 bed apartment and two x 2 bed apartments. Planning framework 1. SEPP 65 applies to the proposal at cl 4(1). The aims and objectives of SEPP 65 include to improve the design quality of residential apartment development to ensure that development contributes to the sustainable development of NSW by being a long-term asset to its neighbourhood and by achieving the urban planning policies for its regional and local contexts; and by maximising amenity, safety and security for the benefit of its occupants and their wider community. 2. The Council submitted that the design quality principles for context and neighbourhood character, built form and scale, sustainability, landscape, amenity and safety and aesthetics in Schedule 1 of SEPP 65 are relevant to the determination of this appeal. 3. The ADG is to be considered in the assessment of the proposal at cl 29(2)(c) of SEPP 65. The Council submitted that the relevant objectives, design criteria and design guidance in the ADG are 3D Communal and public open space, 3E Deep soil zones, 3F Visual privacy, 3G Pedestrian access and entries and 4H Acoustic privacy. 4. The site is zoned B4 Mixed Use and the proposal relies on its existing use (Div 4.11 of the EPA Act), which was uncontroversial in the proceedings. The applicant submitted that the proposed use might also have relied on the conservation incentives under cl 5.10(10) of LEP 2012. 5. The objectives of the B4 zone, to which regard must be had, are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core. 1. The height of buildings development standard for the site is 13m (cl 4.3 and Height of Buildings Map - Sheet HOB_004 of LEP 2012). The properties to the rear of the site have a height of buildings development standard of 12.5m. The proposal has a maximum height at the lift overrun of 17.05m. 2. The floor space ratio (FSR) development standard for the site is 2:1 (cl 4.4 and Floor Space Ratio Map – Sheet FSR_004 of LEP 2012). The proposal complies with the FSR development standard. 3. 43 Hall Street is identified as a local heritage item (Federation style sandstone cottage Item 115, Schedule 5, LEP 2012). The consent authority must, before granting consent under cl 5.10 of LEP 2012 in respect of a heritage item, consider the effect of the proposed development on the heritage significance of the item. 4. The site is identified as a key site (cl 6.9(2) and Key Sites Map - Sheet KYS_004 of LEP 2012). The objectives of cl 6.9, at subcl (1), is to deliver the highest standard of sustainable architectural and urban design. Development consent must not be granted to development to which cl 6.9 applies unless the consent authority considers that the development exhibits design excellence, at subcl (3). In considering whether the development exhibits design excellence, the consent authority must have regard to the following relevant matters, at subcl (4): (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (d) how the development addresses the following matters— (i) the suitability of the land for development, … (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, 1. Part B9 Heritage of DCP 2012 applies to all land identified under Schedule 5 of LEP 2012. Part C2 of DCP 2012 applies to new shop top housing. 2. Part E3 Local village centres of DCP 2012 includes at 3.1.7 Hall Street Town Centre. The objectives for built form at 3.2.3 include to ensure new buildings are of an appropriate scale and design quality to achieve the desired future character of each of the centres, to ensure development conserves and enhances buildings and locations of historic character, to ensure that buildings provide high quality internal environments for the occupants and users of the building, in the case of development next to buildings of historic character, to promote a complementary scale and form that enhances the character of the centre and to ensure good solar access and amenity to the public domain within the individual centres. The objectives for building façade articulation at 3.2.4 include to ensure that buildings are designed and detailed to provide a strong street address, enhance the streetscape and achieve the desired future character of the relevant centre and to reinforce the prevailing street pattern and rectilinear building forms as well as predominantly vertical proportions of bays, openings and windows. The objectives for buildings of historic character at 3.2.5 include to protect and maintain the historical identity of each of the individual local centres, to protect individual buildings that are considered to be of historic character, to encourage the ongoing and adaptive reuse of buildings of historic character and to allow for new development in the individual centres that complements the character and scale of buildings of historic character. 3. Annexure E3-3 of DCP 2012 applies to the Hall Street Centre and includes typical built form for four storey Local Village Centres, as follows: Four (4) storey street interface details and internal dimensions Four (4) storey rear setback details without rear laneway Expert evidence 1. The applicant relied on the expert evidence of George Karavanas (planning) and Rohan Dickson (urban design). The Council relied on the expert planning evidence of Joseph Vescio. Contravention of the height of buildings development standard 1. The proposal has a maximum height of 17.05m at the lift overrun. The height above existing ground level ranges between 13.68m at the street frontage and 15.9m at the rear. The height of buildings development standard for the site is 13m. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by GSA Planning and dated May 2020 (Ex H). 3. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: "(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard." 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; and 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unnecessary because the gross floor space permitted under the FSR development standard of 2:1 is compliant and has been distributed on the site so as to retain the cottage on the site identified as a local heritage item; and the underlying objective or purpose of the standard would be defeated or thwarted if compliance was required and therefore compliance is unreasonable because enforcing strict compliance with the development standard would provide an undesirable heritage outcome by relocating the upper level gross floor area above the heritage item. 3. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 4. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that the applicant has demonstrated that compliance with the height of buildings development standard is unreasonable or unnecessary because the relevant objectives of the development standard are achieved notwithstanding non-compliance with the standard. I am satisfied that justifying the aspect of the development that contravenes the development standard as an alternative configuration of the building envelope on the site (based on the permissible gross floor area) in order to retain and preserve the significance of the local heritage item can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23] because it promotes the economic use and development of the land and the sustainable management of built heritage. I am satisfied that the environmental planning ground is sufficient justification for the volume of the proposed development that is above the height of buildings development standard. 5. I do not accept the applicant's reasoning that the underlying objective or purpose of the development standard would be defeated or thwarted if compliance was required, so that compliance is unreasonable. The applicant's reasoning using the third Wehbe way has prioritised achieving the maximum complying gross floor area in the development over retaining the heritage item and there is no justification for this approach. Had it not been possible to arrange the compliant gross floor area on the site in the form of a building envelope that retains the heritage item and adequately responds to the individual opportunities and constraints of this site, the development would not be able to realise all of the gross floor area under the FSR development standard without adequately justifying the demolition of the heritage item. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I accept the agreement of the parties that the relevant objectives of the height of buildings development standard are: "(a) to establish the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces… (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 spaces." 1. I accept the applicant's submission that the preservation of the environmental amenity enjoyed by the neighbouring properties is a goal of the development standard itself and is not a threshold test to be applied to the aspect or element of the development that contravenes the development standard. To interpret the objective as specifically applying to the aspect of the development that contravenes the development standard would impose a requirement that any breach of the development standard must have a neutral or beneficial effect relative to a compliant development so as to achieve the "preservation of environmental amenity" for a neighbouring property. One difficulty with such an interpretation is that there are often numerous compositions for a compliant building envelope which each have different amenity impacts on various neighbouring properties and so which one should be the basis for the neutral or beneficial effect test of the aspect of the development that contravenes a development standard? 2. A very minor increase in the overshadowing of the upper storey of the street front façade of the retail building at 38 Hall Street at 9am on the winter solstice (Ex A, dwg AO475 Rev D), which leaves the upper storey of street front façade in full sunlight by 10am, is not, contrary to the evidence of the Council's expert, lead to a conclusion that the proposal is inconsistent with objective (a) of the development standard. The minor additional overshadowing by the proposal of the upper storey street front façade of 38 Hall Street, just above the awning at 9am on the winter solstice, does not unreasonably impinge on the amenity of that property because the upper storey street façade remains in full sunlight for the rest of the day. 3. I am satisfied that the proposal is consistent with the zone objectives, because it integrates retail, commercial and residential uses on the site and the heritage item is to be changed to a commercial use. 4. For the reasons set out below, I am satisfied that the proposal is consistent with the relevant objectives of the development standard because the proposal achieves a high standard of architectural design that is responsive to the unique opportunities and constraints of its site and context. Consideration Design excellence 1. I accept the agreement of the parties that the proposal does not detrimentally impact on view corridors. 2. I accept the agreement of the planning and urban design experts that this section of Hall Street is predominantly three storeys, but does contain some elements of four-storey forms with a similar height as the proposal, including the four-storey podium of the Adina development to the north-west of the site. Based on the height of buildings development standard and the diagram A in Annexure E3-3 of DCP 2012 (reproduced at [23]), the desired future character of the Hall Street Town Centre is a street wall of three storeys with a parapet and a fourth storey over setback from the street façade. I do not agree with the evidence of the Council's planning expert that "a recessive setback upper level is a fundamental flaw" of the proposal. He later acknowledges in his evidence that the "upper level is setback" (Ex 3, p 9). I accept the evidence of the Council's planning expert that the front portion of the proposal is consistent with the existing and desired future Hall Street context (Ex 3, pp 11 and 13). 3. I am satisfied that the proposal on the north-western side of the site fronting Hall Street is consistent with the desired future character of the Hall Street Town Centre, while being responsive to its immediate context, by providing a three-storey street wall in the form of the balconies and a fourth storey setback from the street wall. The setback of the street-front façade appropriately responds to the existing setback of its immediate neighbour at 49 Hall Street. The alignment of the street wall is created by the cantilevered balconies. In this way, the design of the proposal has considered and responded to the generic diagram A in DCP 2012 as well as the built form in the immediate context of the site. 4. I accept Mr Dickson's evidence that the proposal provides a transition to the south-east development by wrapping behind the heritage item. The context analysis of horizontal expression provided by the architect (Ex A, Dwg A0022 Rev C) demonstrates that the proposal fits neatly into the street wall elevation of Hall Street. 5. I am satisfied that the proposal, as documented in the application, exhibits a high standard of architectural design, materials and detailing appropriate to a shop top housing development and the heritage item. I am satisfied that the form and external appearance of the proposal will improve the quality and amenity of the public domain. Setbacks and amenity impacts 1. I accept Mr Dickson's evidence that the proposal achieves the objectives of the ADG for building separation and that the proposal will achieve a reasonable level of visual and acoustic privacy for the future occupants and neighbouring residents, consistent with the established character of the Hall Street Town Centre which is a vibrant and popular urban centre. The proposal includes a step back in the built form on the fourth storey at the rear, consistent with the stepping sought by the DCP control, and the inclusion of privacy screens and increased deep soil landscaped areas will assist with providing a transition in scale from the medium density residential development to the rear of the site. 2. I am satisfied that the applicant has adequately demonstrated that the adjoining property to the south-east can be redeveloped with a building envelope that maximises the development potential of that property and achieves a reasonable level of solar access for an adjoining development in an urban context with the benefit of borrowed amenity above and overlooking the heritage item (Ex 3, Annexure C). Landscaping at the rear of the site 1. The rear of the site has an ideal orientation to the north-east. I am satisfied that the orientation of most apartments within the proposal to the north-east achieves a high level of amenity in terms of solar access, including for those apartments on the Lower Ground Floor. The two larger apartments on the Lower Ground Floor benefit from two orientations. The landscaping at the rear of the site will enhance the privacy and sense of separation from surrounding development. Disputed conditions 1. I accept the applicant's submission that the two conditions sought to be imposed on any consent, quoted above at [7], are intended to force the proposal be consistent with the diagrammatic section "A" in DCP 2012 reproduced at [23]. The proposal aligns the street façade of the portion of the development on 45 Hall Street with the neighbouring building's street façade at 49 Hall Street and locates balconies on each level projecting from the street façade, instead of locating the street façade on the property boundary as shown in the diagrammatic section "A". The purpose of the conditions is to locate the street façade on the boundary with recessed balconies behind the façade. 2. The changes envisaged by the conditions are a consequence of the slavish application of the diagrammatic section "A" in DCP 2012 labelled merely as "typical" built forms for four storey centres. The proposal successfully achieves the intent of the diagrammatic section "A" by extending the development to the street boundary and reinforcing the established street wall on 45 Hall Street, which is then appropriately broken to reveal the refurbished heritage item as a stand-alone building setback from the street wall. This is an urban design cue used throughout the ages to signal and defer to a symbolic place. 3. The high standard of the design of the proposal would be undermined and compromised by the changes envisaged in the conditions, because the expression of the cantilevered balconies on the southern and eastern façades of the residential component of the proposed development would be confused by the extension of the walls to the street boundary and the curved corners of the balconies would be lost. The curve of the ground floor corner of the retail tenancy and the echo of this curve in the balconies over is an important feature of the design because it draws one into the site and reveals the heritage item as the focus of the break in the street wall. The curve of the corner is a deferential gesture to the heritage item, and it is lost by the changes to the proposal sought in the conditions. 4. The conditions quoted at [7] are deleted in the conditions of consent at Annexure A. Conclusion 1. I am satisfied that the applicant's written request seeking to justify the contravention of the height of buildings development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2012; that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the numerical standard, and that there are sufficient environmental planning grounds to justify contravening the development standard. I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. 2. The parties agreed that the principle contention is the height of the proposal. I accept the applicant's justification that the development does not seek more floor space than what has been conceptually lost by the presence of the heritage item and that the maximum gross floor space can be achieved on this site as a consequence of the amalgamation of two properties and the careful arrangement of the building envelope so as to appropriately respond to and reveal the heritage item and respond to its urban context in a way that does not cause unreasonable amenity impacts on adjoining development and is consistent with the desired future character for the Hall Street Town Centre. 3. I have considered the effect of the proposed development on the heritage significance of the item pursuant to cl 5.10(4) of LEP 2012 and I am satisfied that the proposed development will enhance and reveal the identified significance of the original Federation sandstone cottage on the site. I am confident that the relationship between the heritage item and the new building will be a positive one because the new building provides a responsive and respectful backdrop to the original sandstone cottage. 4. I have considered the matters regarding design excellence pursuant to cl 6.9(4) of LEP 2012 and I am satisfied that the development as documented in the application achieves a high standard of architectural design, materials and detailing appropriate to its context. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend the application to rely on amended architectural drawings and a conservation schedule as listed in condition A.1 of the conditions of consent at Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is upheld. 4. Development Application No. 391/2018 for the partial demolition of existing buildings, the retention, refurbishment and change of use of an building listed as a local heritage item and construction of a shop top housing development containing 17 units, 2 retail spaces and basement parking over two levels, at 43-45 Hall Street, Bondi, is approved, subject to the conditions of consent at Annexure A. 5. The exhibits, other than Exhibits 1, A and H, are returned. ______________________ Susan O'Neill Commissioner of the Court Annexure A (307969, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2020