Land and Environment Court New South Wales Medium Neutral Citation: Bondi Finance Pty Ltd v Waverley Council [2021] NSWLEC 1096 Hearing dates: Conciliation conference on 11 February 2021 Date of orders: 25 February 2021 Decision date: 25 February 2021 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) Leave is granted for the Applicant to rely on the amended plans and documents referred to in Condition 1 in Part A of Appendix B of the conditions of consent annexed and marked "A". (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $30,000 within 28 days of these orders. These costs include the costs order made against the Applicant on 27 November 2020. (3) The Applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012, prepared by LK Planning and dated 8 December 2020, seeking to justify the contravention of the height of buildings development standard in clause 4.3 of the WLEP is upheld. (4) The appeal is upheld. (5) Development Application DA-323/2019 (as amended pursuant to Order (1) above) for partial demolition of existing structures and the construction of a new five-storey shop-top housing development with basement parking at 124-126 Campbell Parade, Bondi Beach NSW, is determined by the grant of deferred commencement consent subject to matters and conditions in accordance with Annexure "A". Catchwords: DEVELOPMENT APPLICATION – shop-top housing development – Bondi Beach Conservation Area – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Bondi Finance Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: C Novak (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Baron + Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/396427 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Waverley Council (the Respondent) of Development Application No. DA-323/2019 for demolition works and construction of a new five storey shop top housing development with basement parking at 124-126 Campbell Parade, Bondi Beach (the site). 2. More specifically, the proposed development includes: 1. Demolition of all existing structures on the site except for the Campbell Parade façade of the existing building on part of the site known as 124 Campbell Parade that are proposed to be retained and substantially altered; 2. Excavation for one level of basement accessed via a car lift from Gould Lane (at rear), providing parking for 13 vehicles (including one adaptable space) and 10 residential bicycle spaces, and; 3. Construction of a five-storey building comprising: 1. Two (2) retail tenancies at the ground floor with one fronting Campbell Parade; and another fronting Hall Street with storage for four retail bicycles spaces, and; 2. Ten (10) residential apartments above, four of which are dual level, including; 1. Three (3) x one bedroom apartments; 2. Three (3) x two bedroom apartments; and 3. Four (4) x three bedroom apartments. 1. The matter was initially listed before me for hearing on 11-12 February 2021. However, on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 11 February 2021. I presided over the conciliation conference. 2. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 8 February 2021. 3. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 5. There are jurisdictional prerequisites contained in the provisions of the following: 1. Waverley Local Environmental Plan 2012 (WLEP) 2. State Environmental Planning Policy No 55—Remediation of Land, 3. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX) 1. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [35]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the reasons set out in my judgment below. 2. The site is located within the B4 Mixed Use zone of the WLEP, in which shop-top housing development is permitted with consent. The objectives of the B4 zone are as follows: • 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 at cl 4.3 of the WLEP identifies a maximum height of 15m applies to the site. The proposed development exceeds the height standard by a maximum of 1.44m and the Applicant relies upon a written request prepared by LK Planning dated 8 December 2020 in accordance with cl 4.6 of the WLEP to justify the contravention. 2. Clause 4.6 of the WLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.3 of the WLEP. However, that power is subject to conditions. 3. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action"), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: 1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and 2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), 1. The written request states that strict compliance with the development standard is unreasonable or unnecessary as the objectives of the height standard are achieved, notwithstanding the non-compliance. The objectives at cl 4.3 are in the following terms: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, (b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth, (c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land, (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space. 1. In respect of objective (a), the visual bulk, overshadowing privacy and views of neighbouring properties is preserved to the same degree as a compliant envelope. Where privacy impacts on adjoining properties fronting Gould Lane are identified, the proposed development provides only slotted windows, unaffected by the height exceedance. Finally, when viewed from beyond the site, the roof and lift overrun which are responsible for the exceedance are largely concealed from view due to the topography and setback of the elements from a street wall that is 15m in height. 2. In respect of objective (b) and (c), the written request identifies, and I accept, that these objectives are not applicable. 3. In respect of objective (d), the proposed development substantially complies with the desired future character of the area which anticipates a 15m high street wall of five storeys in height beyond which an area of plant and equipment is commonly seen in the area. The written request identifies certain properties that are the subject of similar exceedance, and with which the proposed development is a contextual fit. 4. Next the written request sets out environmental planning grounds it considers to be sufficient to justify contravening the development standard, including: 1. A lack of any view loss or loss of privacy, or overshadowing to neighbouring buildings or from the public domain beyond that which would be expected of a compliant envelope. 2. An increase in quality and amenity of residential accommodation in the neighbourhood, and improvement to the streetscape and the public spaces they define. 3. The exceedance of the lift overrun results from the provision of universal access to the five-storey development, which is the predominant scale of development in the immediate area, evident in five properties at, or around, the corner of Campbell Parade and Hall Street, and consistent with the objectives of the B4 zone. 4. The height allows the incorporation of a retained and restored heritage façade to 124 Campbell Parade. 1. I am satisfied that the written request adequately addresses those matters at cl 4.6(4)(a)(i), and is supported by photographs and illustrations of the proposed development in context with surrounding properties that are relied upon for context. 2. I am also satisfied that the proposed development is in the public interest because of its consistency with the objectives of the height standard, for the reasons set out at [14]-[16], and with the zone objectives at [9]. In forming this opinion of satisfaction, I note that the proposal for shop top housing provides a mixture of retail and residential accommodation in the B4 zone, and I have been assisted by 3-dimensional modelling that demonstrates particular consideration given to those elements that exceed the height standard in the block formed by Campbell Parade, Hall Street and Gould Street. 3. Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, notwithstanding the Court's 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 the WLEP (Initial Action at [29]). 4. Having considered those matters at cl 4.6(5) of the WLEP, and the Secretary's Planning Circular PS 20-002, issued 5 May 2020, I do not believe there to be any reason that the written request should not be upheld. Other considerations 1. The proposed development has a floor space ratio (FSR) of 3:1, which complies with the FSR standard at cl 4.4 of the WLEP in relation to which I note advice from Lote Consulting Fire Engineering dated 29 January 2021 as to a performance solution to ensure the service corridor is for the exclusive use of Fire and Rescue NSW, and not as a path of access for occupants of the building. 2. The site is within the Bondi Beach Conservation Area, and the Bondi Beach and Park Landscape Conservation Area which are identified in Schedule 5, Part 2 of the WLEP for their local heritage significance. 3. Additionally, the existing building on the site known as 124 Campbell Parade is identified in Schedule 5, Part 1 as an item of local heritage significance. 4. As such, the provisions of cl 5.10(4) requires that the effect of the proposed development on the heritage significance of the item or area concerned be considered. I have considered the effect of the proposed development on the heritage item at 124 Campbell Parade, and the relevant conservation areas and I am satisfied that no adverse impact will result. In arriving at this conclusion I have considered the Heritage Impact Statement prepared by Urbis dated 31 July 2020. 5. The site is within an area identified as class 5 Acid Sulfate Soils and so the provisions of cl 6.1 of the WLEP applies to the site. That said, while works are proposed on class 5 land that is within 500m of class 4 land, that class 4 land is not below 5m Australian Height Datum (AHD), and the watertable is not to be lowered to below 1m. 6. The proposed development includes excavation, and cl 6.2 of the WLEP requires that earthworks be considered prior to the grant of consent. On the basis of the geotechnical report prepared by JK Geotechnics dated 3 September 2019, the Heritage Impact Statement at [25], and the written request that I uphold at [21], I am satisfied that the matters at cl 6.2(3) have been addressed. 7. Clause 6.9 of the WLEP requires that proposals of 15m or more in height for sites shown on the Key Sites Map must exhibit design excellence. On the basis of Table 2 at pp 25-27 of the Statement of Environmental Effects prepared by LK Planning dated 30 September 2019, the 'SEPP 65 Design statement' prepared by Nicholas Bandounas, and the agreement of the parties, I am satisfied that the proposed development exhibits design excellence. 8. On the basis of the Preliminary Site Assessment report prepared by Ramboll, dated September 2019, and of Detailed Site Investigations documented in the immediate vicinity for like development, I have considered whether the land is contaminated in accordance with cl 7 of the State Environmental Planning Policy No 55—Remediation of Land. I am satisfied that the site is unlikely to be contaminated but that, in the alternative, the site can be made suitable for the purpose for which the development is proposed to be carried out on the basis of the conditions of consent. 9. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (Regulation) requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and I am satisfied that the 'SEPP 65 design statement' completed by the architect Mr Nicholas Bandounas (Arch Reg No 8499) dated 18 September 2019 is in a complying form. 10. 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. 11. Finally, I am satisfied that the application is accompanied by a BASIX certificate prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and Regulation, and I note conditions of consent provide for update of the BASIX certificate at the appropriate time. 12. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 13. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 14. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. Leave is granted for the Applicant to rely on the amended plans and documents referred to in Condition 1 in Part A of Appendix B of the conditions of consent annexed and marked "A". 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $30,000 within 28 days of these orders. These costs include the costs order made against the Applicant on 27 November 2020. 3. The Applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012, prepared by LK Planning and dated 8 December 2020, seeking to justify the contravention of the height of buildings development standard in clause 4.3 of the WLEP is upheld. 4. The appeal is upheld. 5. Development Application DA-323/2019 (as amended pursuant to Order (1) above) for partial demolition of existing structures and the construction of a new five-storey shop-top housing development with basement parking at 124-126 Campbell Parade, Bondi Beach NSW, is determined by the grant of deferred commencement consent subject to matters and conditions in accordance with Annexure "A". …………………… T Horton Commissioner of the Court Annexure A (445647, pdf) Plans (15077020, 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: 25 February 2021