Land and Environment Court New South Wales Medium Neutral Citation: Admark Investments Pty Ltd v Waverley Council [2022] NSWLEC 1249 Hearing dates: Conciliation conference on 9 May 2022 Date of orders: 16 May 2022 Decision date: 16 May 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 6/2021 for alterations and additions to an existing building and use as a retail tenancy on the ground level and a boarding house, at 148 Curlewis Street, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A. (3) The Applicant is to pay those costs of the Respondent thrown away as a result of the amended application, on 22 March 2022 and 9 May 2022, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $60,000 as agreed between the parties. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing building – use for retail tenancy at ground level and a boarding house – conciliation conference – amended application – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, cl 3 of Sch 6 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, Div 3, cll 29. 30, 30A State Environmental Planning Policy (Housing) 2021, Sch 2, cl 2 Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.9, Sch 5 Category: Principal judgment Parties: Admark Investments Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) H Irish (Respondent) Solicitors: Mills Oakley (Applicant) Waverley Council (Respondent) File Number(s): 2021/282972 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 deemed refusal of Development Application No. 6/2021 for alterations and additions to an existing building and use as a retail tenancy at ground level and a boarding house (the amended proposal), at 148 Curlewis Street, Bondi Beach (the site), by Waverley Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 May 2022. I presided over the conciliation conference. 3. 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. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 4. There are preconditions to the exercise of power to grant development consent for the amended proposal. The application is amended 1. The application was amended on 22 March 2022. 2. The Council agreed to the amendment of the application under cl 55 of the Environmental Planning and Assessment Regulation 2000 on 7 May 2022 and the amended application was lodged on the NSW planning portal and filed with the Court on 10 May 2022. The amended application consists of the following documents: 1. the inclusion of architectural drawings in replacement of corresponding earlier drawings as follows: Drawing No. Issue Title Date 0532-DA100 E Title page 6 May 2022 0532-DA101 E Site Analysis Plan' 6 May 2022 0532-DA102 E Demolition plans 6 May 2022 0532-DA103 E Demolition Elevations 6 May 2022 0532-DA104 E Site plan 6 May 2022 0532-DA105 H Proposed Floor Plans – Basement to Level 01 6 May 2022 0532-DA106 H Proposed Floor Plans – Level 02 to Roof 6 May 2022 0532-DA107 F Proposed elevations 6 May 2022 0532-DA108 G Proposed sections AA & BB 6 May 2022 0532-DA109 G Schedule of External Finishes & Material Elevations 6 May 2022 0532-DA110 F 3D Perspectives 6 May 2022 0532-DA111 F GFA Diagrams & Development Data 6 May 2022 0532-DA112 F Shadow Diagram – June 21 9am 6 May 2022 0532-DA113 F Shadow Diagram – June 21 12pm 6 May 2022 0532-DA114 F Shadow Diagram – June 21 3pm 6 May 2022 0532-DA115 G Sun Eye Views (9am-10am) 6 May 2022 0532-DA116 D Sun Eye Views (11am-12pm) 6 May 2022 0532-DA117 D Sun Eye Views (1pm-3pm) 6 May 2022 0532-DA118 F Height Plane Diagram 6 May 2022 0532-DA119 C Detail Sun Eye Views (10am-12pm) 6 May 2022 0532-DA120 C Detail Sun Eye Views (1pm-3pm) 6 May 2022 0532-SK200 B Proposed Section CC 6 May 2022 0532-SK214 C Detail Section AA 6 May 2022 1. the inclusion of stormwater drawings in replacement of corresponding earlier drawing as follows: Drawing No. Issue Title Date 2019027 H01 5 Hydraulic Details 28 April 2022 2019027 H02 5 Hydraulic Details 28 April 2022 2019027 H03 5 Hydraulic Details 28 April 2022 2019027 H04 5 Hydraulic Details 28 April 2022 1. the inclusion of Waverley Council Development Application – Stormwater On-site Detention Check List prepared by ANA Civil Pty Ltd; and 2. the inclusion of Stormwater calculations prepared by ANA Civil Pty Ltd. 1. The amended proposal includes the following: * Basement: accessed via car lift, 5 parking spaces (including van loading space), parking for 6 motorcycles; parking for 6 bicycles; garbage rooms. * Ground floor: retail tenancy accessed from Curlewis Street and Gould Street; lobby and garbage holding room. * First floor: 9 boarding room; and the building envelope is setback from the boundaries in the eastern corner. * Second floor: 9 boarding rooms. * Third floor: 5 boarding rooms; one caretaker room; a common room opening onto a terrace; and the building envelope is further setback from the boundaries in the eastern corner. 1. The top of the parapet is RL 31.21, the top of the lift overrun is RL 31.91; the top of the plant and equipment enclosed area is RL 32.01 and the flat roof level is RL 30.91. The site and its context 1. The site is on the eastern corner of Curlewis Street and Gould Street. The site has an area of 427.26m2. The site has a frontage of 12.19m to Curlewis Street and 35.12m to Gould Street. 2. The site is occupied by a 3 storey mixed use building accommodating retail/commercial uses at ground level and residential accommodation on the first and second levels. There are garages for 2 cars accessed from Gould Street. The roof over the garages functions as terraces for the residential accommodation. The existing building was constructed in 1922 as an Inter-War flat building and is known as "Penhale Court". Planning framework 1. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application because the application was lodged with the Council on 11 January 2021. The Class 1 application was filed with the Court on 5 October 2021 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021). 2. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) does not apply to the application because the application was made, but not yet determined, before the commencement of SEPP Housing on 26 November 2021 (Sch 2, cl 2 of SEPP Housing). 3. Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the proposal. Clauses 30 and 30A of SEPP ARH is in the following terms: 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following— (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 1. Clause 29(1)(a) of SEPP ARH further provides that a consent authority must not refuse consent to a development to which Div 3 of SEPP ARH applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio (FSR) are not more than the existing maximum FSR for any form of residential accommodation permitted on the land. The maximum FSR development standard for the site is 3:1 under cl 4.4 of Waverley Local Environmental Plan 2012 (LEP 2012) and the proposal has a FSR of 2.9:1. 2. The site is zoned B4 Mixed Use pursuant to the LEP 2012 and the proposal is permissible with consent. The objectives of the 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. Clause 6.9 Design Excellence of LEP 2012 does not apply to the amended proposal because the maximum height of the amended proposal is less than 15m (cl 6.9(2)(b) of LEP 2012). 2. The site is within the Bondi Beach Conservation Area (Sch 5 of LEP 2012). The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the area (cl 5.10(4) of LEP 2012). The statement of significance for the Bondi Beach Conservation Area is as follows (NSW State Heritage Inventory Form): "It is understood that the area was occupied by the Gadigal people. The name Bondi is based on an Aboriginal name (Boondi Aboriginal Name) and means 'noise made by the sea waves breaking on the beach'. A registered Aboriginal place located at Bondi Beach, an open campsite and burial site, is still a place of significance today. The area retains significance as an area that evolved in response to the usage of the beach as a place of recreation. The involvement of Waverley Council to support and enhance the use of the area as a recreational and cultural precinct is important, for example through the construction of the Bondi Pavilion and improvements to the park in 1929, adaptive reuse of the Pavilion as the Waverley Community Centre in 1977, and preparation of the Bondi Park, Beach and Pavilion Plan of Management in 1913. The beach as a place of public recreation is also supported through the establishment of swim and surf clubs in the early 20th Century." Public submissions 1. One resident objector gave his evidence on the terrace of his apartment to the south-east of the site, which overlooks the site and has expansive views of the locality across the site. He was concerned that any consent granted should include conditions preventing solar panels and services being located on the roof of the amended proposal to the north-west of his terrace. The Council's statement of reasons 1. The Council's reasons for its preparedness to reach agreement with the applicant pursuant to s 34(3) of the LEC Act include the following, namely, that the development application has been amended: 1. to comply with the FSR development standard of 3:1 under cl 4.4 of the LEP 2012; and 2. to comply with the building height development standard of 15m under cl 4.3 of the LEP 2012, and 3. to amend the architectural and urban design of the proposal so that it achieves the objective of cl 6.9 of LEP 2012 having regard to the matters in cl 6.9(4) and the location of the development in a heritage conservation area, and 4. following amendments to remove the previously proposed 4th floor, to provide that the development has adequate regard to: 1. the existing development and reasonable redevelopment of the neighbouring site at 68 Gould Street, Bondi Beach in terms of separation, setbacks, amenity and urban form, and 2. the matters raised in public submissions, including in particular those by the resident objector. Consideration 1. The amended proposal complies with the standards for boarding houses under cl 30 of SEPP ARH, as follows: * At least one communal living room will be provided in the amended proposal. * No boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres. * No boarding room will be occupied by more than 2 adult lodgers. * Adequate bathroom and kitchen facilities will be available within the proposed development for the use of each lodger. * A boarding room will be provided for a boarding house manager. * No part of the ground floor of the boarding house that fronts a street is to be used for residential purposes. * At least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. 1. I am satisfied that the amended proposal is compatible with the local character of the area, pursuant to cl 30A of SEPP ARH, because the scale and built form of the amended proposal is consistent with the scale of development in the vicinity of the site, and the proposal retains the existing building on the site. 2. No contention was raised regarding the impact of the proposal on the heritage significance of the heritage conservation area. I am satisfied that the amended proposal will not impact on the identified heritage significance of the Bondi Beach Conservation Area. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 9 May 2022, and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The Court notes: 1. That Waverley Council as the relevant consent authority agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the applicant amending Development Application No. 6/2021. 2. That the amended application was lodged on the NSW planning portal on 9 May 2022. 3. That the applicant filed the amended development application with the Court on 9 May 2022. 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 6/2021 for alterations and additions to an existing building and use as a retail tenancy on the ground level and a boarding house, at 148 Curlewis Street, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A. 3. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, on 22 March 2022 and 9 May 2022, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $60,000 as agreed between the parties. ____________ Susan O'Neill Commissioner of the Court (Annexure A) (508453, 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: 16 May 2022