Land and Environment Court New South Wales Medium Neutral Citation: Ocean Crown Family Pty Ltd v Waverley Council [2022] NSWLEC 1687 Hearing dates: Conciliation conference held 28 October and 16 November 2022, final agreement filed 16 November 2022 Date of orders: 09 December 2022 Decision date: 09 December 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-169/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $13,400 within 28 days of these orders. (3) The Applicant's written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA-169/2022 for the demolition of an existing two-storey brick building and one-storey brick shop, removal of existing trees in front yard and removal of boundary fencing, and construction of a four-storey shop-top housing development containing five units and two shops on the ground floor, with two levels of basement parking, at 150-152 Glenayr Avenue, Bondi, subject to the conditions contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – shop-top housing development – cl 4.6 written request – height of buildings – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, cll 29, 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012, cll 4.3, 4.6, 6.1, 6.3, 6.9 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) NSW Department of Planning, Apartment Design Guide (2015) Category: Principal judgment Parties: Ocean Crown Family Pty Ltd (First Applicant) P&G Bondi Pty Ltd Waverley Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) M Staunton (Respondent) Solicitors: Baron and Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/182690 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-169/2022 (the DA) by Waverley Council (the Respondent). The DA sought consent for the demolition of all structures and construction of a four-storey shop-top housing development containing two retail spaces and five apartments with basement parking, at 150-152 Glenayr Avenue, Bondi Beach (the site). 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 28 October and 16 November 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, at the request of the partiers, the matter commenced with a site view before resuming in person. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Of particular note, the DA has been amended during the conciliation conference so as to resolve the contentions initially raised by the Respondent, which related to issues of exceedance of the relevant height of building development standard, exceedance of the relevant floor space ratio (FSR) development standard, inappropriate building and streetscape character, excessive bulk and scale, and visual privacy and overshadowing impacts, amongst other contentions. 6. The design amendments include changes to reduce the bulk and scale at the rear of the building, accompanied by a resultant reduction in the FSR, improved privacy measures mitigating against cross viewing between neighbouring dwellings, and a revised awning form that is compatible with the desired future character of the area. Additionally, further justification has been prepared to support the proposed building height exceedance, which is now sought to be resolved by the provision of a written request to vary the relevant height of building development standard. 7. 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 amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The original DA was publicly notified from 3 May 2022 for 21 days. Two submissions were received by the Respondent, which raised concerns including excessive building bulk, scale and height, character, privacy impacts, overshadowing, and inadequate side setbacks. 11. The parties agree that the amended DA satisfactorily resolves the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 12. The parties agree, and I am satisfied, that the Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument. The site is zoned B4 Mixed Use, and the proposed development - characterised as shop-top housing - is permissible with consent. 13. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.3, Height of buildings, which establishes a height of building standard of 13m for the site. 14. In such an instance, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 15. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required 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 particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 16. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 17. As required by cl 4.6 of the WLEP, the Applicant has provided a written request (prepared by GSA Planning and dated November 2022) seeking to vary the height of buildings development standard. 18. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard for the following reasons: 1. The amended DA exceeds the 13m height of building standard. The development proposes a maximum height of 13.64m above existing ground level, which is 0.64m greater than the standard, or a variation of approximately 5%. 2. Of note, the extent of the building height exceedance is limited to two relatively modest portions of the rear of the upper-most roof level of the proposed building and arises as a consequence of the site topography that falls away from Glenayr Avenue. 3. The objectives of the WLEP Zone B4 Mixed Use land use zone include providing for a mixture of compatible land uses and 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. I am satisfied the amended DA meets these objectives. 4. The objectives of cl 4.3 of the WLEP include to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces, 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. I am satisfied the amended DA meets these objectives. 5. The amended DA resolves the Respondent's contentions, and in particular the rear boundary interface of the building has been revised to now better mitigate against cross viewing and privacy concerns and thereby reduce the perceived scale of the proposal across the site boundaries. 6. The area of height exceedance is not visible from the primary street frontage along Glenayr Avenue and results in a cohesive form and overall building composition. I am satisfied the variation to the height of building development standard brings with it no material environmental impacts, a reduction in privacy or unreasonable overshadowing. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to maximum building height and I uphold the written request. 2. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP, Acid sulfate soils, the site is mapped within a Class 5 Acid Sulfate Soils area. However, the DA involves earthworks which are unlikely to lower the water table at Class 1-4 land within 500m of the subject site below 5m Australian Height Datum. Accordingly, the parties agree, and I am satisfied, that an Acid Sulfate Soils Management Plan is not required. 3. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the WLEP, Earthworks, the Applicant has provided a Geotechnical Report. Agreed conditions of consent reflecting the report's recommendations are imposed to mitigate against any potential impacts of earthworks. 4. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the WLEP, Design excellence, the amended DA has been designed in a manner that achieves a high standard of architectural design, materials and detailing appropriate to the building type and its location. Further, the proposed building form and its external appearance will improve the quality and amenity of the public domain. 5. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for purposes not associated with contamination. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards. 6. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX certificate (dated 6 November 2022) has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate. 7. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, Bureau SRH Architecture and its nominated architect Mr Simon Hanson (NSW registered architect 6739), has prepared a Design Verification Statement fulfilling the requirements of cl 29 of the EPA Reg, confirming that the DA achieves the Design Quality Principles set out in SEPP 65, and stating how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved. 8. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 9. The Court notes that: 1. Pursuant to cl 37 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended DA-169/2022 with the agreement of the Respondent. 2. The Applicant has filed the amended DA with the Court on 16 November 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA-169/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $13,400 within 28 days of these orders. 3. The Applicant's written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld. 4. The appeal is upheld. 5. Consent is granted to Development Application DA-169/2022 for the demolition of an existing two-storey brick building and one-storey brick shop, removal of existing trees in front yard and removal of boundary fencing, and construction of a four-storey shop-top housing development containing five units and two shops on the ground floor, with two levels of basement parking, at 150-152 Glenayr Avenue, Bondi, subject to the conditions contained at Annexure A. M Pullinger Acting Commissioner of the Court ********** Annexure A Architectural Plans 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: 09 December 2022