Land and Environment Court New South Wales Medium Neutral Citation: DD55 Pty Ltd v Waverley Council [2025] NSWLEC 1041 Hearing dates: 5-6 December 2024 Date of orders: 28 January 2025 Decision date: 28 January 2025 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application No. DA-187/2024 for earthworks comprising both excavation and fill, a new two-storey dwelling over a basement, driveway, landscaping and stormwater infrastructure at 31 Gaerloch Avenue, Tamarama, is determined by the grant of consent, subject to conditions of consent at Annexure A. (3) All Exhibits are returned, except for Exhibits A, B, C, E and 7. Catchwords: DEVELOPMENT APPLICATION: dwelling house development in Coastal environment area and Coastal Use Area – whether aboriginal cultural heritage, practices and places are adversely impacted - aboriginal archaeological investigation - whether impacts on Coastal Environment Area have been minimised – whether impacts on Coastal Use Area have been minimised Legislation Cited: Coastal Management Act 2016 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, ss 34, 34AA National Parks and Wildlife Act 1974, ss 5, 86, 90 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 Waverley Local Environmental Plan 2012, cll 5.10, 6.1, 6.2, 6.9, 6.15 Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465 Georges River Council v Eskander [2024] NSWLEC 98 Texts Cited: Guide to investigating, assessing, and reporting on Aboriginal Cultural Heritage in NSW, published by the Office of Environment and Heritage 2011 Code of Practice for the Investigation of Aboriginal Objects in New South Wales, published by the Department of Environment, Climate Change and Water 2010 Waverley Development Control Plan 2022 Guide to Investigating, Assessing and Reporting on Aboriginal cultural heritage in NSW, published by the NSW Office of Environment and Heritage NSW Coastal Design Guidelines, October 2023 Category: Principal judgment Parties: DD55 Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) M Seymour SC (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2024/219364 Publication restriction: Nil Judgment 1. COMMISSIONER: To the north-east of Sydney's Tamarama beach is a prominent headland known to some as the home of the Tamarama Surf Life Saving Club, and to others as a feature along the Bondi to Bronte coastal walk. 2. At the most eastern tip of the headland, known as Tamarama Point, is a parcel of land known as 31 Gaerloch Avenue on which stood, until recently, a brick dwelling known as 'Lang Syne'. 3. That dwelling was demolished under a complying development certificate in January 2024 and a development application was lodged for a new dwelling on the site with landscape and associated earthworks. 4. Development application No. DA-187/2024 (the DA) seeks consent for earthworks comprising both excavation and fill, a new two-storey dwelling over a basement, driveway, landscaping and stormwater infrastructure. 5. The DA was lodged by the applicant in these proceedings, DD55 Pty Ltd (DD55) with Waverley Council (the Council) on 2 May 2024. 6. As the DA was not otherwise determined, DD55 filed an appeal in accordance with s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court's jurisdiction on 14 June 2024. 7. The appeal was listed for mandatory conciliation on 5 December 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference. 8. The proceedings commenced with an onsite view at which the Court, in the company of legal representatives, the owner of the subject site, and experts retained by the parties heard public submissions from two residents. The Court was taken to various vantage points along Gaerloch Avenue, including a first floor terrace at No 5 Gaerloch Avenue, and to locations along the Bondi to Bronte Coastal Walk (the Coastal Walk). 9. The conciliation resumed at Court. However, as the parties were unable to reach in-principle agreement as to the matters in contention, I terminated the conciliation and proceeded forthwith to hearing pursuant to s 34AA(2)(b)(i) of the LEC Act. In doing so, the parties consented to discussions that had occurred during the conciliation to be admitted in the proceedings in accordance with s 34(12) of the LEC Act. 10. At the commencement of the hearing, DD55 sought leave, unopposed, to rely on amended plans and other documents that had the effect of amending the DA from that originally lodged. 11. The Court granted the leave sought, and the Council, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), approved the amending of the development application by DD55 by the following amended plans and other documents: 1. Amended architectural plans, marked Exhibit A. 2. Amended landscape plans, marked Exhibit B. 3. Amended stormwater plans, Marked Exhibit C. 4. Amended Geotechnical investigation report, marked Exhibit D. 1. The proposal can be briefly described as a one and two-storey built form arranged radially around a central court, described as a 'solarium court', topped by flat roof forms that are either roof gardens or paved roof terrace. Ten stone-clad organic forms punctuate this largely radial plan. 2. These forms are described by the architect, Mr Luigi Rosselli, as 'cocoons' due to their rounded pod-like shapes that rise at intervals around the perimeter and at the entry to the radial plan. 3. The relevance of these cocoon structures to the consideration of this matter is that the Council and its experts regard the vertical form of the cocoon structures to be domineering when viewed from the coastal walk and contribute to overshadowing of this important public space. 4. The coastal walk is a well-known foreshore path that meanders along clifftops, beachfronts, headlands and other topography along the eastern most extent of Sydney. At points, it is also the site of cemeteries, sculptures, parks and other public places. 5. Art, artefacts and evidence of occupation also suggest this elevated foreshore area was used by the aboriginal people from time immemorial. 6. This foreshore is also recognised in environmental planning instruments as a Coastal Environment Area and Coastal Use Area (collectively, the Coastal Area). 7. The Council contends that the impact of the development will be adverse to an area identified as Coastal Area in terms set out in State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). 8. In particular, s 2.10 of the Resilience and Hazards SEPP provides, relevantly: 2.10 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following— (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that— (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. Relatedly, s 2.11 of the Resilience and Hazards SEPP provides: 2.11 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority— (a) has considered whether the proposed development is likely to cause an adverse impact on the following— (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that— (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. 1. The Council contends that impacts arise from the proposed earthworks, the siting of the building and its height, bulk and scale - all of which are unacceptable for the imposition placed on coastal environmental values and natural coastal processes, native vegetation, fauna and relevant habitat, undeveloped headlands and rock platforms, existing public open spaces along the foreshore for members of the public. 2. Additionally, those same impacts extend to overshadowing and loss of views, visual amenity and scenic qualities of coastal headlands, and heritage in terms of cultural and built heritage. 3. In particular, the Council contends that the earthworks proposed on the site has the potential to adversely impact aboriginal cultural heritage, practices and places. 4. While the contentions in this matter are pleaded separately and individually, I consider many of them fall under the umbrella of whether the impacts on the Coastal Area are acceptable. Impacts on the Coastal Area are considered Extent of earthworks 1. The proposed earthworks comprise both excavation and fill on the site. The excavation is required for a basement that accommodates parking for two vehicles, a gym, storage areas, and spaces nominated for plant and equipment. A swimming pool and small courtyard to the gym also require excavation. 2. A portion of the excavated spoil is then proposed to be reused on the site as fill. 3. The extent of excavation and fill is shown on architectural plan DA24 (Exhibit A): 1. Proposed excavation volume: 1,028m3 2. Volume of fill using excavated material: 408m3 3. Nett total of excavation volume, less volume use on site for fill: 620m3 1. The Council contends the volume of earth proposed to be excavated is excessive given a maximum of 270m3 is prescribed in Part B13 of the Waverley Development Control Plan 2022 (WDCP), and the spoil to be used as fill has the effect of raising the existing ground level, contrary to control (k), Part B13 of the WDCP. 2. Part B13 of the WDCP sets out objectives and controls in respect of Excavation in the following terms: Objectives (a) To set maximum acceptable extents of excavation which achieve the following objectives. (b) To minimise the impact of excavation on the natural environment, neighbouring properties, and streetscape. (c) To ensure the physical environment is preserved and enhanced through minimal site disturbance and the geotechnical stability of landfill and excavations. (d) To minimise cut and fill on sloping sites. (e) To encourage good quality internal environments including natural light and ventilation. (f) To prevent use of subterranean spaces as habitable rooms. (g) To prevent development exceeding the maximum car parking controls. (h) To ensure excavation does not adversely impact land stabilisation, ground water flows and vegetation. (i) To minimise structural risks to adjoining structures. Controls (a) Excavation for basements will not be supported for dwelling house, attached dwelling, dual occupancy or semi-detached dwelling development, unless Council is satisfied that there is no alternative location on the site to accommodate parking and storage, the development satisfies the objectives of Part B13, and the basement: (i) Has a maximum floor to ceiling height of 2.1m, except where the entry requires higher to meet Australian Standards, (ii) Does not exceed one floor, (iii) Will not contain any habitable rooms unless the room is at grade with external natural ground level along at least one side (refer to Figure 24), and (iv) Has an area no greater than the area required to accommodate: • A maximum of 1 car parking space for dwellings with 1-2 bedrooms, or a maximum of 2 car parking spaces for dwellings with 3 or more bedrooms; • Waste storage for 3 x 140L bins per dwelling; • A plant room complying with control (b) of this part; • A maximum of 8 cubic metres of storage per dwelling; and • Minimum access requirements to the car parking and storage areas. (b) The maximum area permitted for a plant room in any development is the minimum required to meet Australian Standards, accommodate typical dimensions of equipment required and the associated circulation space to access the equipment for maintenance. DA plans should show the approximate location and size of equipment within the plant room. (c) Excavation should not add to the visual bulk and scale of the building. (d) Excavation should not result in the loss of naturally occurring sandstone. Where sandstone or natural rock are to be removed, opportunities for reuse on site should be considered (such as for front fencing or landscaping). (e) Avoid cutting into the natural stone wall of a street. (f) Avoid and minimise excavation where possible. (g) Minimise the inclination of any resulting sloping landscaping. (h) Existing natural features including trees and sandstone walls should be retained and incorporated as landscape features on the site in order to maintain the natural character of the landscape. (i) Step retaining walls in response to the natural landform to avoid creating monolithic structures, particularly where visible from the neighbouring dwellings and the public domain. (j) For sites with significant slopes a split-level building design is to be used to minimise excavation and backfilling. (k) Fill is not to be used to raise the ground level. (l) Excavation for garaging within sandstone walls facing the street must be minimised to preserve as much of the original wall as possible. (m) Development should accommodate stormwater detention tanks and storage systems within the excavated area. (n) Excavation is not permitted within 900mm of side boundaries and shall only occur within the building footprint, except where access to a basement car park is required. (o) Basement car parking is to be located fully below natural ground level. Where this cannot be achieved due to topographic constraints, a maximum protrusion above ground of 1.2m is permissible (refer to Figure 25). (p) Where excavation is proposed for development which is subject to Part C2 of this DCP, it is not to occur within a 1.5m setback from side boundaries and shall only occur within the building footprint except where access to a basement car park is required. Excavation will need to be setback greater where required to comply with Part C2, 2.3.2 Side and Rear Setbacks control (d). (q) All below-ground structures that are located below the groundwater table are to be fully tanked. These types of structures must not collect and dispose of subsoil/seepage to kerb and gutter. 1. Relatedly, the Council contends that when the matters for consideration at cl 6.2(3) of the Waverley Local Environmental Plan 2012 (WLEP) are also considered, the extent of earthworks proposed is unsatisfactory because of the likely disruption and detrimental effect on drainage patterns and soils stability (subcl (a)), the effect on adjoining properties (subcl (d)), the likelihood of disturbing relics (subcl (f)), the proximity to, and potential adverse impacts on any waterways or environmentally sensitive area (subcl (g)), and because the Court cannot be satisfied that appropriate measures have been taken to avoid, minimise or mitigate the impacts of the development (subcl (h)). 2. It is the evidence of the Council's planning expert, Ms Jo Zancanaro, that the proposed earthworks involve fill of up to 2m on the site. As a result, floor levels are raised beyond natural ground level which contributes to the overshadowing of the Coastal Walk. 3. Ms Zancanaro's concerns, and those of Council's urban design expert, Mr Tim Williams, require consideration of inter-dependent aspects of siting and setbacks, visual impact and views and the like. I will consider these aspects in more detail at [87]-[142] of this decision. 4. A further contention that arises from the proposed earthworks is the potential for excavation to adversely impact aboriginal cultural heritage, practices and places. I will deal with this first as the matter is raised by the Council as a pre-condition to enlivening the Court's power to grant development consent. This is because s 2.10(2)(a) of the Resilience Hazards SEPP precludes the grant of consent unless the Court is satisfied that the development is designed, sited and will be managed to avoid an adverse impact on, among other aspects, aboriginal cultural heritage, practices and places. The Council contends such an opinion of satisfaction cannot be formed. Neither can an opinion be formed that impacts may be reasonably avoided (subs (2)(b)), or minimised (subs (2)(c)) given that an aboriginal artefact has been found on the site. 5. That artefact is described as a unique stone tool known as a tula adze, or tula, which has its origins in arid zones of Australia, and known to be used from the late Holocene period onwards for woodworking, plant-processing or bone working, or for butchery. 6. The Draft Archaeological Test Excavation Report, prepared on behalf of DD55 by Artefact, dated 3 December 2024 (Archaeological Report) (Exhibit G) states that while tulas are widespread across Australia, they are rare in eastern NSW, with no other record in Sydney. Furthermore, predictive modelling speculates that if the sand below the study area is intact, material evidence of aboriginal occupation such as engravings or grinding grooves may be present. 7. I note an example of such an engraving is contained at Figure 1 of the Heritage Impact Assessment Report prepared by Mr Zoltan Kovacs (Exhibit E, Tab 5), heritage expert for DD55. The engraving is of a stingray, and is located on the next headland to the north, known as McKenzie Point. 8. The Archaeological Report records that a test excavation was carried out on the site between 21-25 October 2024, comprising five pits, in locations shown on Figure 15 of the Archaeological Report. The tula was identified in Test Pit 400. 1. Furthermore, the Archaeological Report also records that while a search of the Aboriginal Heritage Information Management System (AHIMS) did not identify any registered sites within the subject site, 31 sites are registered in the broader area, concentrated along the coastline. 2. The Archaeological Report describes the historical association between the Aboriginal people and the coast, and its radical change over time as sea levels rose to flood the river valley that is now Sydney Harbour. 3. More recent use of the land is also recorded. In the late 19th century, a 'Royal Aquarium and Pleasure Grounds' occupied areas around Tamarama Beach, until destroyed by fire in 1891. Resurrected as an Amusement Park, the development became known as "Wonderland City' from 1906-1911. At the time, it was the largest amusement park in the southern hemisphere. Relevantly, an ice-skating rink may have occupied the site, in whole or part, along with pavilions. 4. The land was later subdivided and residential structures built in the 1920's. 5. The Archaeological Report cites the Geotechnical investigation Report prepared by Crozier Geotechnical Consultants dated 22 October 2024 (Geotechnical Report) (Exhibit D) which found that disturbed fill occupies the site to a depth of 1.2m and likely comprises remnants of earlier structures described above. 6. While geotechnical analysis suggests the site contains a layer of natural sand that is deepest in the northwest of the site, becoming more shallow under a deeper layer of fill towards the east of the site, the archaeological excavation undertaken in October indicates otherwise. It found that sandy deposits appear to predominate in the southern part of the site. However, this too is qualified by speculation that underlying sandstone is so friable as to be easily crushed to give the impression of sand when augered. (p56) 7. The Council submits that the underlying soil conditions are likely to support the discovery of more Aboriginal objects. 8. The Archaeological Report arrives at a similar conclusion (p 31), applying the designation PAD01 to the entirety of the site, and noting that an identifier in the Aboriginal Heritage Information Management System (AHIMS) is pending. 9. As a result of finding the Aboriginal object, a further designation of Tamarama Point AS01 now also applies to the site to acknowledge the potential for a cluster, or scatter, of artefacts or objects. 10. The import of this evidence is disputed by the parties. The Council's primary submission is that the level of investigation undertaken on the site to date is insufficient for the Court to form the required opinion of satisfaction that the development is designed, sited and will be managed to avoid an adverse impact on aboriginal cultural heritage. 11. By contrast, DD55 submits that far from uncertainty, the test excavation provides a level of knowledge as to the likelihood of further objects being found, and for which there is a legislative regime that should permit further investigation on the site to be undertaken as part of the consent for the development, subject to appropriate conditions of consent. That regime is set out in summary below. 12. Section 86 of the National Parks and Wildlife Act 1974 (NPW Act) contains offence provisions in respect of the harming or desecration of Aboriginal objects. 13. Harm is defined at s 5 of the NPW Act in the following terms: harm an object or place includes any act or omission that— (a) destroys, defaces or damages the object or place, or (b) in relation to an object—moves the object from the land on which it had been situated, or (c) is specified by the regulations, or (d) causes or permits the object or place to be harmed in a manner referred to in paragraph (a), (b) or (c), but does not include any act or omission that— (e) desecrates the object or place, or (f) is trivial or negligible, or (g) is excluded from this definition by the regulations. 1. That said, it is a defence against prosecution if the harm or desecration of an aboriginal object is authorised by an Aboriginal heritage Impact Permit (AHIP), issued pursuant to s 90 of the NPW Act. Such an AHIP may be issued in relation to a specified aboriginal object, or specified types or classes of objects, places or land, either with conditions or unconditionally. 2. An application for an AHIP is required to be supported by an Aboriginal Cultural Heritage Report (ACHAR). In email correspondence from August 2024 (Exhibit 8), Artefact confirms it has been engaged to prepare an ACHAR in accordance with the Guide to investigating, assessing, and reporting on Aboriginal Cultural Heritage in NSW, published by the Office of Environment and Heritage 2011. In reply, the Council nominates stakeholders it considers relevant to consult with in the preparation of an ACHAR (Exhibit 9). 3. The Council also submits that earlier guidance taken from resources such as 'Better Placed: Connecting with Country', published by the NSW Government Architect (Exhibit 2, Tab 19) provides the basis for a more holistic approach to site and place through consultation, even where a project's scale is modest, that is not evident in the proposal. 4. Finally, the Council argues that absent a more complete investigation of the site, the site's significance is undetermined and development must be refused, for reasons that are not dissimilar to the Court's decision in Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465 (Darkinjung). 5. In that case, the Court considered the degree of analysis undertaken on the site to determine archaeological significance, and the weight to be given to predictive modelling, observing at [229], that predictive models may range from simple to complex. 6. Likewise, the council submits it would be inappropriate for the Court to form an opinion of satisfaction that is dependent upon success under another legislative regime, such as the grant of an AHIP under s 90 of the NPW Act as proffered by DD55 (Georges River Council v Eskander [2024] NSWLEC 98, at [60] (Eskander)). 7. In the alternative, should the Court be minded to grant consent, the Council submits the Court may grant partial consent, pursuant to s 4.16(4) of the EPA Act, for that part of the development requiring excavation so that development consent is granted for those earthworks necessary to undertake the investigation required on the site. 8. DD55 submits that Section 12.0 of the Archaeological Report provides the Court with appropriate measures to mitigate against the loss of the site values by an archaeological salvage program to be developed in consultation with those stakeholders identified at [52], that is likely to involve the removal of earth under archaeological supervision. 9. The competing position of the parties is reflected in competing provisions in without prejudice conditions of consent. In the event the Court is minded to grant development consent, the Council submits that it is appropriate for commencement of any consent to be deferred until and unless the Council is satisfied sufficient investigation to identify the significance of the site has been undertaken, or that an AHIP has been issued. 10. DD55 submit that, for those reasons at [52], sufficient investigation has been undertaken and that consent should not be deferred, but rather terms similar to those proposed by Council can be an operational condition. 11. In Darkinjung, the Court found there to be credible evidence that extensive areas of a sand quarry may contain rock engravings within an area considered important for its stories of mythological beings moving through the landscape. Any new engravings had the potential to add to information and deepen the story of the area (at [283]). 12. The Court found test excavation would have been prudent (at [294]) in an area with poor ground visibility and with a high density of known sites (at [300]). Here, test excavation has been undertaken. 13. Next, unlike the vast landscape context in Darkinjung, depicted in the figure at [121] of that decision, the subject site is clear of vegetation, and limited to an area of 1105.1m2. 14. In Darkinjung, the site was commonly held to be very significant to Aboriginal people (at [137]), was situated in an area rich in Aboriginal sites (at [140]), and part of an extensive cultural landscape (at [141]), in part, because it was part of very important route and a place of significant associations (at [142]). 15. A site identified in Darkinjung as a 'Women's Site' was particularly significant, being associated with creation stories of the travel of ancestral heroes (at [156]). 16. By contrast, it is not suggested that the significance of the subject site rises to the level agreed in Darkinjung. At most, the Council cites the predictive modelling contained the Archaeological Report that evidence of engravings or grinding grooves may be found on sandstone surfaces buried beneath the site. This is not to diminish the significance of the tula found on the site, or of the potential for more objects or engravings or grinding grooves to be found that may reveal more about occupation of the coastline before the arrival of Europeans. However, Council's submission is premised on significance being derived from the potential for artefacts or other evidence to be found on the site. 17. While the scale and character of the site in Darkinjung and the subject site, and their significance, vary, it seems to me that the question shared between the matters here is firstly whether the likely occurrence of further subsurface finds has been effectively predicted, and secondly, whether the proposal avoids, minimises or mitigates an adverse impact on potential subsurface finds. 18. Once these questions have been addressed, it would seem the Court must next answer the question put by the parties in closing submissions; when should any further investigation occur? 19. In this case, predictive modelling asserts a probability of further objects present on the site. That prediction is a product of eight testable statements on pp 33-34 that are in the form of factual assumptions about characteristics of the site. The predictive modelling does not purport to be informed or calibrated to the footprint of the development on the site, nor the degree or proportion of the site that is proposed to be disturbed or undisturbed by the footprint shown, and that for which excavation is required. 20. The Archaeological Report considers the proposed works to extend across the entire site. It may for this reason the impact assessment at Table 13 (p 61) characteries the degree of harm is likely to be total. However, it is not correct to characterise the development as disturbing the entirety of the site. 21. While the extent of excavation is expressed at [27], these calculations do not assist in determining the proportion of the site that is proposed to be disturbed or undisturbed as the calculations seek to address the limit on excavation sought by Part B13 of the WDCP. The calculation is expressed in m3, much of which is disturbed fill. 22. When the area of the site to be disturbed by excavation is understood by reference to those areas shown on the GFA/FSR calculations DA20, it would appear an area of around 350m2 is proposed to be excavated, on a site area of 1105.1m2. A conclusion to draw from this is that more than two thirds of the site is proposed to remain unexcavated, and remain undisturbed. 23. Furthermore, the setback of the excavation for the development is at its greatest to the south of the site where the Archaeological Report surmises the deepest deposits of sandy soil lie, and to the north west where the Geotechnical Report believes the sandy deposits are more likely. In stating this to be the case, I acknowledge excavation for the driveway ramp is within the north western quadrant of the site, as is the unexcavated area of the solarium court. 24. While I accept the submission made by the Council that a state of satisfaction cannot be formed that an impact is avoided where the presence of further artefacts on the site is predicted, I am of the view that DD55 has taken the following steps to design, site and manage the impact of the development so that the likelihood of an impact is minimised: 1. Firstly, the site has been the subject of an Archaeological Survey Report, prepared by Artefact Heritage and Environment (Artefact) in accordance with the Code of Practice for the Investigation of Aboriginal Objects in New South Wales, published by the Department of Environment, Climate Change and Water 2010 (First Archaeological Report). 2. Secondly, test excavation has occurred on the site, consistent with recommendations contained in the First Archaeological Report. 3. Thirdly, the proposed excavation is concentrated in areas other than those locations where testing suggests sandy soil is most likely to be present. 4. Fourthly, by locating a proportion of the development on the site of the former dwelling and garage that have since been removed from the site, and where soil has been disturbed in the past. 5. Fifthly, by proposing fill, and not excavation, to the eastern portion of the site for a distance of around 5m from the boundary that has the effect of leaving that portion of the site largely undisturbed. 1. Turning to the question of when any further investigation of the site should occur, I have considered the parallel drawn by the Council with the circumstances in Eskander. 2. I consider the circumstances in Eskander distinct as in that case the requirement for an easement was undisputed given the real factual necessity of physically connecting infrastructure about which arrangements were required to be made. The matter was not a mere prospect or potential, as is the case here. Neither is the consideration of written evidence or 'adequate arrangements' applicable in this case as it was in Eskander. 3. Instead, the test required of the Court is the test summarised in [19]-[20], requiring an opinion of satisfaction that: (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. That said, what Eskander may have in common with the circumstances of this case is the prospect that a subsequent approval, on which DD55 relies in the form of an AHIP, may not be granted (Eskander at [53], citing Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake)). 2. However, as I understand the regime for the protection of aboriginal cultural heritage, an AHIP is required in anticipation of an object being found and where harm in terms set out at [50] is not, or may not be, avoided. Such a process is set out in the Guide to Investigating, Assessing and Reporting on Aboriginal cultural heritage in NSW, published by the NSW Office of Environment and Heritage (Exhibit 9, p 4). 3. For those reasons at [74], it is not certain that an object or objects will be found and so it is not a real factual necessity that the development the subject of the development application would at any time rely upon a subsequent or separate approval. Whereas development in Palm Lake relied upon services for which a separate approval was required, a circumstance dealt with by deferred commencement condition, such an approval in this case is not more than a prospect for the reasons I have given. 4. For reasons that I will explain further, such circumstances do not therefore necessitate the deferment of commencement, should the Court be minded to grant development consent. 5. It is appropriate here to note the parties agree that the earthworks are not likely to disturb relics, which is a matter to be considered by cl 6.2(3)(f) of the WLEP, because the definition of 'relic' in the Dictionary of the WLEP excludes Aboriginal settlement. 6. That said, the Geotechnical Report states that as the proposal is for excavation of more than 2m in depth, and is at or near cliff faces, the site is identified as a 'Geotechnical Risk Lot' by the relevant Part of the WDCP. 7. The Geotechnical Report records the findings from eight auger boreholes dug in November 2023 to a depth of between 0.55m-2.5m, followed by a further four boreholes drilled to a depth of between 4m-4.8m in February 2024. (p 5) 8. The Geotechnical Report concludes that the sea cliffs show no signs of likely instability or erosion within the next 100-year timeframe, that excavation can be undertaken at steep to vertical slopes, which I understand is likely to minimise over-excavation, and that the proposed works can be carried out within the exiting site conditions with negligible impact to the site and neighbouring structures. (p 23) 9. Having found that the proposed earthworks are not of themselves a reason for refusal, I return to the concerns held by Ms Zancanaro and Mr Williams at [32]. Siting and setbacks 1. The proposed dwelling adopts Gaerloch Avenue as the primary frontage to the property and relies on the setbacks of existing dwellings at 25, 27 and 29 Gaerloch Avenue to the west of the site that DD55 relies on to establish a predominant front building line said to be "nil or limited" (SEE, p 30). 2. Likewise, the rear setback of the proposal is said by DD55 to adopt the rear setback of those same properties, and varies from 10-16m from the southern boundary. 3. Side setbacks are identified as those to the site's east and west. To the west, the basement, ground floor and first floor are set back 1m from the boundary shared with 29 Gaerloch Avenue. To the east, setbacks vary. While a small courtyard is excavated to the boundary adjoining the basement gym, the ground floor plan at DA05 shows built form above ground is dimensioned as close as 1.9m from the south east boundary, to one of the Cocoon structures. The Library is setback slightly greater than 3.05m and the ground floor dining room is set back around 4.8m from the south eastern boundary. 4. The written evidence of the planning expert for DD55, Mr Anthony Betros, filed on the basis of plans superseded by the architectural plans at [11(1)], is that the setback of the first floor from the eastern boundary is between 4-7.8m. 5. Ms Zancanaro notes, correctly in my view, that regardless of those setbacks nominated by DD55, the cocoon structures observe their own setbacks quite apart from those of the primary built form. For example, I note the architectural plans show a setback of 470mm proposed from the Gaerloch Avenue frontage to the closest cocoon. However, built form associated with the Library on the ground floor, and the sitting area on the first floor, are clearly set back in the order of 3m from the Gaerloch Avenue boundary. 6. According to Ms Zancanaro the location and orientation of the solarium court to this front setback essentially divorces the presentation of the proposed development from that of the dwellings to the west, such that the front setback of the proposal should adopt some other setback to Gaerloch Avenue, such as the stepped setbacks evident in the former dwelling on the site and its detached garage, which are the appropriate cues for the proposal given the special shape and unique prominence of the site. 7. A consequence of the siting and setbacks of the proposed dwelling is a degree of overshadowing and visual bulk imposed on the Coastal Walk that could otherwise be avoided or diminished. Impacts on public spaces 1. It is commonly held that the Coastal walk is a significant attraction for tourists visiting Sydney. 2. According to the Council, the visual bulk and scale, and degree of overshadowing are unacceptable for such a prominent public walkway, and is inconsistent with relevant provisions of the Resilience and Hazards SEPP, Coastal Management Act 2016, and guidelines published by the Department of Planning and Environment, such as NSW Coastal Design Guidelines 2023 (Coastal Guidelines) that encourage an holistic place-based approach that upholds coastal environmental values. 3. According to Ms Zancanaro, both the overshadowing and visual bulk are a result of the interplay between siting and setbacks, and height of the proposal. In respect of height, there are two primary aspects of concern. Firstly, that the cocoon structures breach the wall height of 7.5m permitted under the WDCP, and secondly the extent of overshadowing that results on the Coastal Walk and headland. 4. Ms Zancanaro identifies three of the ten cocoon structures that appear to breach the wall height provision in the WDCP. All three are located to the north-east or east of the site. The cocoon structure that encloses the stair and lift rises some 8.5m above the existing natural ground line and is highly visible to those using the Coastal Walk. 5. The wall height controls, at Part C1.1 of the WDCP, provide relevantly: Controls (a) For a building with a pitched roof the maximum wall height is 7m above existing ground level (refer to Figures 4 and 5), except as determined in Control (b) below. (b) For a building with a flat roof, the maximum wall height is 7.5m above existing ground level. … 1. DD55 submits that the exceedance of the wall height control could be easily overcome by truncating the rounded cocoon form and capping with a pitched roof with an eaves overhang. Such a conventional approach would comply with the control at Part C1.1(a) of the WDCP, permitting a wall height of 7m and a roof form above that matches the height of the cocoon structure. In essence, the effect of the proposal is no different from that sought by the wall height control, except that the rounded top of the cocoon structures does not draw the same attention as a roof would, given the shadow cast by an eaves overhang. 2. The objectives of the wall height control are as follows: (a) To provide appropriate building heights for flat or pitched roof forms for lower density residential accommodation. (b) To ensure the height and scale of development relates to the topography and street character. (c) To ensure the height and scale of development does not unreasonably impact on views enjoyed by neighbouring and nearby properties. (d) To ensure that the height and scale of development does not result in unreasonable overshadowing of neighbouring and nearby properties. (e) To minimise loss of views from, and overshadowing of, public places. (f) To ensure development in excavation areas does not add to the overall visual bulk of the dwelling. 1. The issues to which the objectives relate are similar to those considered by the town planning and urban design experts in terms of street character and topography (objective (b)), views and visual impact (objectives (c), (e) and (f)), and overshadowing of public places (objective (d)). For reasons that will become clear, I find the proposal achieves the objectives of the wall height provisions at Part C1 of the WDCP, and so consider it appropriate to apply the provisions flexibly, in accordance with s 4.15(3A)(b) of the EPA Act. Street character and topography 1. The Council contends that the proposal is inconsistent with the objectives for development in the R2 Low Density Residential zone that seek, in part, to ensure the dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time. 2. While Mr Paul Walter, urban design expert for DD55, describes the local character as an area of striking natural beauty, he characterises the area's streetscapes as eclectic and nondistinct. Houses in the immediate vicinity of the site are closely set rectilinear forms, with glazed elevations to maximise views. Garage roller doors dominate the Gaerloch Avenue streetscape and there is a near-total absence of trees. 3. The natural character of the headland is also described by Mr Walter to include sandstone cliffs and boulders that tend to break off in rough blocks that become boulders, smoothed and rounded through weathering. The vegetation also creates distinct shapes; some are smooth wind-profiled, such as coastal banksia and bitu bush while other species are dome-shaped, like Norfolk Island Hibiscus, and others are distinctively vertical such as Norfolk and Cook Island Pines. 4. In response to this context, Mr Walter believes the proposal delivers on the site's unique potential to enhance the character of the area. Noting that whereas most lots are embedded in an urban block, this site is situated on a bluff. It has a landscape setting on three sides and only one neighbour. The design adopts more conventional orthogonal forms where it engages the neighbour at 27 and 29 Gaerloch Avenue, but then transitions into a predominantly organic form towards the bluff. 5. Mr Walter reproduces a southern elevation, inserted below, in support of his view. 1. Mr Williams expresses concern at the upright, columnar nature of the cocoon structures, which stand in contrast to the stratified layering of the sandstone foreshore. 2. I note here that the Court was asked to observe a cocoon structure under construction on the site during the onsite view, identified as exempt development. The construction comprises a formed mesh formwork, over-sprayed with a cementitious layer, on which a waterproof membrane is applied, prior to layers of sandstone, brick, terracotta roof tile and slate being laid according to an undulating template hand drawn on the cementitious surface by the architect, Mr Luigi Roselli. 3. The cladding materials are largely recycled from the original dwelling, with some additional terracotta roof tiles acquired to make up the required quantity. 4. The urban design experts agree that the depiction of the cocoon structures in the photomontages is not accurate. From the view of the prototype being constructed on the site, the mix of stone, brick, terracotta tile and slate lends a darker tone to the forms, and is more organic than the ordered coursing indicated on the photomontages, and I note also varies from what appears a 'rounded riverstone' pattern on elevations and sections. Instead, the result is an organic and undulating layering of earthy tones. 5. It seems to me that Council's experts give particular prominence to maintaining the existing streetscape character of Gaerloch avenue, at the expense of considering the degree to which the proposal may enhance those aspects of character over time, which is an aspect of the zone objectives with which the Council contends the proposal is at odds. 6. In his written evidence, Mr Williams notes that "the proposal is a marked departure from the existing" by virtue of the organic non-rectilinear form that contrasts with the orthogonal cubic forms of buildings in the neighbourhood. Ms Zancanaro observes the solarium court effectively divorces the proposal from the existing streetscape and so prefers setbacks adopted from existing development, and those derived from the dwelling formerly on the site. 7. Next, to the extent Mr Williams provides his opinion on the existing landscape context, I give greater weight to the evidence of Mr Dangar as to the prospects for growth of Cook Pines, which Mr Williams acknowledges are a feature of the coastline to the north and south of the site. 8. Unlike the properties in the area that comprise the existing streetscape, described accurately by Mr Walter at [103] in my view, any development on a site such as this is seen almost 'in the round'. To extrude or replicate the highly rectilinear forms evident in the vicinity of the site could only result, in my view, in a jarring disjunction between the built form on the site and the landscape character that is such a defining character of this site. 9. Mr Williams agrees that a form other than that already existing in the neighbourhood could enhance the character of the area. Indeed, Mr Williams accepts that a sculptural form is appropriate and a welcome change from the "boxy oversized residential forms" found in the area. 10. I accept the simple logic advanced by Mr Walter at [105], supported by the elevation at [106], that the proposal effectively adopts two characters; one urbanised and rectilinear where it adjoins character of the same to the west on Gaerloch avenue and the other a more free-form organic and landscape-centred expression where the site associates more with the landscape features of the headland. As such, I see no contradiction between the proposal and the objectives for development in the R2 Low Density Residential zone that are, for completeness, as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling. • To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time. • To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability. • To promote development that incorporates planning and design measures that reduce the urban heat island effect. • To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping. Views and visual impact 1. A concern shared by Council's experts is the visual impact that results from what they regard as an inadequate setback of built form from the eastern boundary. 2. Mr Walter identifies two similarly situated buildings north of the site, albeit in an adjoining R3 medium density residential zone. The first is 25 Kenneth Street which is located on a sloping site on the south side of Mackenzies Point, with a three-storey vertical presentation to the coastal walkway, and a five-storey interface with Marks Park. The second is 68 Fletcher Street which also presents vertical walls of three and four storeys to the coastal walkway. 3. The proposal does not rise to the scale of either of these precedents, however Mr Williams describes the presentation of the development to the Coastal Walk as 'menacing', and Ms Zancanaro considers the built form to 'loom over' the public domain. 4. Quite simply, Mz Zancanaro believes a greater setback is required to the Coastal Walk. 5. It is not only the built form that is said to impose itself. The Council also contends that the landscape species selected contribute to view loss because the Cook Pines nominated on the landscape plans can grow to a mature height of 60m. 6. A single report prepared by Mr William Dangar of Dangar Barin Smith (Exhibit F) describes the landscape design intent and the tree species selected, including the Cook Pines that are said to be strategically positioned around the site. 7. Mr Dangar's own report is supported by an arborists report at Appendix 1, prepared by Mr Ross Jackson of Jacksons Nature Works dated 14 November 2024. 8. The Arborists Report concludes, at p 4, the likely height of a Cook Pine, when exposed to strong salt laden winds, is a height of 6-12m, and a width or canopy spread of 6m in diameter. The upper limit of this range is adopted from advice published by Waverley Council. 9. Of some interest is Mr Jackson's observation that Cook Pines are often mistaken for Norfolk Pines – a misconception from which photomontages prepared in support of the DA are not immune. 10. Mr Jackson's observation accords with that of Mr Dangar, at par 4.2 of his expert report, which states a difference between the two pine species is that the Cook Pine displays a more narrow form at maturity. 11. In my view, Council's experts do not adequately consider the highly varied setback of the proposal from the north or east of the site but instead place significant weight on somewhat isolated points where the cocoon structures are located. The site plan at DA07, re-produced below, illustrates the degree of variation in setback. 1. This degree of variation, when understood with the landscape design comprising low level and high level plantings depicted on Landscape plans convinces me that the proposal is not a form that can be reasonably described as looming menacingly over the Coastal Walk, even when the fall in topography to the north east is taken into account. 2. Mr Williams re-produces an excerpt of the architectural Section AA, with sightlines from the Coastal Walk marked, and a suggested footprint alignment that he considers acceptable, re-produced below. 1. Aligning the proposal to that recommended by Mr Williams would, it is said, result in development that sits more comfortably in the landscape and maintain a sense of separation between the Coastal Walk and the development. 2. Mr Williams does not provide a rationale to the location of the suggested alignment. No dimension is provided, nor is the alignment transposed on to a plan to understand the relationship of the suggested alignment to the eastern boundary that deviates around the headland. As such, however welcoming is such a suggestion, I find it ultimately unhelpful. 3. In my view, Section AA adequately describes the deeper setback of the primary built form from the eastern boundary, and the stepped form that is produced in combination with the cocoon structures. 4. Turning to the question of views and view loss, the Court was taken to the property at 5 Gaerloch Avenue where the owner identified southerly views across the site to Bronte beach and the Bronte Bogey Hole and Baths beyond that would be obstructed or lost by the development. 5. View sharing is an important principle that features at Part C1.7 of the WDCP, wherein the objectives and controls are: (a) To minimise the impact on existing views and vistas enjoyed from existing residential development and from the public domain. (b) To encourage view sharing as a means of ensuring equitable access to views from private dwellings (c) To maintain views from public places of landmark or iconic features. Controls (a) Existing views and vistas available from the public domain, including but not limited to ocean, harbour, beach, city and parks views are to be maintained where possible by the design of buildings. (b) Existing views of landmark or iconic features from the public domain (such as Sydney Harbour, Opera House, Harbour Bridge, Bondi Beach) are to be maintained and where possible, enhanced. In some circumstances, complying with maximum development controls may not be achievable if an iconic view is impeded. (c) Lower density residential accommodation is to be designed and sited so as to enable a sharing of views with surrounding dwellings particularly from habitable rooms and decks. (d) Where views are enjoyed by a neighbouring property across a proposed terrace, balcony or deck, it is accepted that privacy is of lesser value than the retention of views and it may not be appropriate to erect a privacy screen. 1. In the case of those views currently enjoyed by the residents at 5 Gaerloch Avenue, the degree of loss is, in my view, negligible given the extent of land water interface that the property will continue to enjoy at both the lower and upper levels of the building on the site. A significant portion of the headland, its rock platform and water interface will remain visible from this location. It is also negligible when the full expanse of view is understood from this site, ranging from the headland known as Marks Park to the north, the vast expanse of the Pacific Ocean and its horizon, and to the Waverley Cemetery south of Bronte. Finally, any fair assessment of the proposal would conclude that the obstruction of views does not arise because of non-compliance with the height control or any other standard found within an environmental planning instrument. I have dealt with the setback to the east which, even if setback further than that proposed, would have little to no effect on the degree of view loss. 2. In fact, when the scenic qualities of the coast and headland are considered, I am satisfied the visual bulk and scale is reasonable, having regard to the following characteristics of the development: 1. The proposal exceeds the control at Part C1.9(b) requiring 40% of the site to be open space, with 53.5% open space provided. 2. The landscaped area depicted on DA22 shows the proposal also exceeds the control at Part C1.9(c) of the WDCP of 20% to provide 27.1% of the site as areas of deep soil. 3. While the proposal does not depict compliance with controls at Part C1.9(g) and (h) in respect of landscape area and open space in the front setback, the Landscape Plans show generous planting at low and high levels across virtually the entirety of the front setback – albeit varied in depth due to the organic geometry of the built form proposed to Gaerloch Avenue. 1. I also note that the owner of 27-29 Gaerloch Avenue stated that concerns expressed earlier in respect of view loss had been addressed through discussion with the owner of the subject site to their satisfaction, and depicted in photomontages in the architectural drawings at DA16. Overshadowing 1. According to Ms Zancanaro's reading of the shadow diagrams at DA26-DA28 of the architectural plans, new shadow is cast by the proposal on both neighbouring properties, and on the public domain. In particular, new shadow falls in mid winter on the Tamarama Surf Life Saving Club, 27-29 Gaerloch Avenue, and on the Coastal Walk and sandstone platform. 2. Mr Betros' reading is that the Coastal Walk is not overshadowed before noon in mid winter, and for only two hours thereafter. More specifically, a length of 12m is overshadowed at noon, 22m at 1pm and 22m at 2pm. The result is considered minor or negligible at any time of the year, and does not adversely affect walkers, joggers or those who choose to sit or lie on the sandstone clifftop areas. The adjoining Tamarama Surf Life Saving Club (TSLSC) is responsible for greater degree of overshadowing to the coastal walkway and to Tamarama beach below. 3. Mr Betros considers the distribution of floor space, which is the bulk casting the shadow, to be reasonable given the greater value that could otherwise be gained from a larger floor plan at the first floor where the more panoramic views are obtained, but which would result in greater bulk and scale. Instead, the first floor component of the proposal constitutes only 28% of the gross floor area of the proposal, otherwise expressed as 14% of the site area. 4. Furthermore, the bulk at the first floor level has been deliberately divided into two forms; a larger form to the east containing a primary bedroom and associated spaces, and a western form containing a guest suite. The two forms are separated by a rooftop terrace that avoids bulk altogether and permits solar access to the coastal walkway, and cliff top areas to the south. The effect of this gap is shown in a sketch said to be prepared by Mr Roselli at Figure 4 of the joint expert report, re-produced below. Urban design and design excellence 1. While the urban design experts engage in discussion on design excellence, I understand from the Council that the discussion does not flow from the provision so titled at cl 6.9 of the WLEP, but because of the terms at Part B11.1 of the WDCP which adopts provisions similar to those commonly incorporated into local environmental plans. 2. The Council identifies Part B11.1, Control (e)(iii) as relevant, which deals with heritage issues and streetscape constraints. However, for completeness, the terms of Part B11.1 are as follows: Controls (a) Development is to achieve a high standard of architectural design, materials and detailing appropriate to the building type and location. (b) The form and external appearance of development is to improve the quality and amenity of the public domain. (c) Development is to consider and retain view corridors. Development will not be supported where detrimental impacts upon views and vistas is imposed, particularly those views from the public domain. (d) Development must not have a detrimental effect upon the amenity of public plazas and public open spaces. (e) Development must consider the following: (i) The suitability of the land for development; (ii) Existing and proposed uses and use mix; (iii) Heritage issues and streetscape constraints; (iv) The relationship of the development to 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; (vi) Street frontage heights; (vii) Environmental impacts such as sustainable design, overshadowing, wind and reflectivity; (viii) The achievement of the principles of ecologically sustainable development; (ix) Pedestrian, cycle, vehicular and service access, circulation requirements; and (x) The impact on, and any proposed improvements to, the public domain. 1. Ms Zancanaro's written evidence is that the proposal is contrary to the controls at (b) and (d) of Part B11.1. That is, the proposed development does not improve the quality and amenity of the public domain, but instead has a detrimental effect upon the amenity of public plazas and public open spaces. 2. The following summarises my reasons as to why I consider the proposal contributes to the architectural and overall urban design quality of Waverley, represents variety in architectural design and character, includes key components of good urban design and exemplifies a site specific design response, consistent with the objectives for design excellence at Part B11.1. Whether the proposed development is acceptable in the Coastal Area 1. While I acknowledge the constraints placed on excavation by the WDCP, I find no grounds on which to conclude that earthworks might contradict the objectives of Part B13 of the WDCP. In such a highly prominent site, the excavation proposed minimises the impact on the natural environment, neighbouring properties and streetscape by effectively redistributing floor space into a basement level for spaces such as a gym, and where a portion of that excavation is for rainwater storage and geothermal plant equipment. That excavation is substantially within the footprint of levels above, and while not always a convincing argument, in the circumstances of this case, I consider the excavation to be deserving as it does not add to the overall visual bulk of the building on such a prominent headland. 2. When the architectural plans are read carefully, and the expert evidence is considered, it is my conclusion that the floor level is not elevated as a consequence of the proposed earthworks. Instead of the fill determining the floor level, it would appear from section drawings prepared by the architect, and landscape drawings prepared by Dangar Barin Smith (Exhibit B, DA02) that the fill located adjacent to the eastern boundary is an area designed to be at the level of the ground floor, and to act as a planter at the same level, planted with species growing to a height of around 200mm. As such, the ground floor does not appear to be determined by the degree of fill. Rather, the fill is responsive to the floor level proposed. One measure of its reasonableness is that it does not result in a bulk that exceeds the height permitted on the site, and does not result in overlooking of any private property adjoining the site. 3. The visual bulk and scale is a function, in this context, of height, setbacks and what might be described as articulation. The focus on the setback of cocoon structures by the Council, over that of the built form as a whole, ignores the high degree of variation in presentation proposed. Such a variation in setback, materials and height help to avoid a monolithic, bulky or uniform presentation – all aspects that might otherwise contribute to bulk and scale if not handled in the manner proposed. While not the subject of submissions, it is relevant to note that a portion of the ground floor plan is an open breezeway, above which sits a portion of paved roof terrace. As such, portions of the built form are not more than covered open space likely to be read as such when viewed from a distance, such as that view depicted on architectural drawing DA18.2, re-produced below. 1. I find the wall height acceptable because those objectives as to topography and character, views and visual impact, and overshadowing are, in my view, acceptable, and because the non-conformance can be avoided by adopting a more conventional built form without bringing with it a reduction in height; either perceived or otherwise. As such, no purpose is served by requiring strict compliance with the wall height control when the receding form of the upper level of the cocoon structures effectively achieves a similar result to that assumed by a conventional pitched roof reaching the same height. 2. In terms of landscape character, I do not understand the cocoon structures or any other part of the proposal to be intended to mimic the headland or coastline geology or forms, but merely complement the unique setting by proposing naturalistic forms that are concentrated to the eastern portion of the site where the landscape context predominates over the built form context to the west. 3. Having had the benefit of seeing a prototype of a cocoon structure at the onsite view, it is, in my view, unarguable that the cocoon structures present a natural, unpainted material palette that is entirely suited to the environment in which they are proposed. I do not understand them to seek to mimic the sedimentary deposition of sandstone, nor do I understand there to be a basis for holding the proposal accountable to such a test. That those materials are recycled from the dwelling formerly on the site achieves, in my view, the principles of ecologically sustainable development well beyond mere compliance with the provisions State Environmental Planning Policy (Sustainable Buildings) 2022, and is an aspect of the design excellence sought by Part B11.1 of the WDCP. 4. Neither do I understand the visual amenity and scenic qualities of the coast and its headlands (s 2.11(1)(a)(iii)) of the Resilience and Hazards SEPP) to be achieved only by the adoption of sandstone as a material or the horizontal deposition of sediments in the natural rock of the headlands to be essential to avoiding, minimising or mitigating impact of development on the area. 5. The arrangement of materials comprising the cocoon cladding undulate, varying in material, colour and finish, and are likely to support the growth of lichen, moss and other flora on their southern faces, and to be somewhat bleached over time to east and north-facing slopes where exposure to sun, wind and salt-laden air can be expected to be concentrated. 6. Between the cocoon structures, the materials and form of the proposed dwelling recede, with overhangs that accommodate landscape planting such that the presentation to the Coastal Walk is substantially defined by materials of stone, brick, slate and landscape planting – all of which are likely, over time, to visually fuse with the landscape qualities of the headland, and enhance the landscape character of the area, being an aspect of the objectives for development in the R2 zone. 7. I also accept the Cook Pines are an essential element in a landscape approach that takes its cues from characteristics evident on the coastline at a scale that is far beyond the confines of the site and the sparse examples in Gaerloch Avenue. As such, I consider the landscape design to be holistic place-based approach that upholds coastal environmental values (s 2.10(1)(b) of the Resilience and Hazards SEPP). 8. While the proposal overshadows the Coastal Walk and the sandstone platform to the south east of the site, the extent of shadow cast is moderate and I am satisfied that steps have been taken to design the proposal to minimise the impact of overshadowing on public open space and the public domain by separating the built form at the upper level so that afternoon sunlight is permitted to the public domain beyond (subs ss 2.10(1)(e) and 2.11(1)(a)(ii) of the Resilience and Hazards SEPP). 9. Furthermore, when those aspects of visual amenity and heritage are considered, I am satisfied that the proposed development is designed to avoid adverse impacts of a kind at s 2.11 (1)(a)(i), (iii) and (v) of the Resilience and Hazards SEPP. 10. In respect of heritage, I have dealt with aboriginal cultural heritage earlier in this judgment. In terms of European built heritage, I note the site is not identified as an item of heritage significance, and is not located within a heritage conservation area. However, the site adjoins the Tamarama Beach, Park and Marine Drive Landscape conservation Area to the south (Tamarama HCA), and the Gaerloch Reserve Landscape conservation Area to the north. 11. I have considered the evidence of heritage experts, Mr Zoltan Kovacs on behalf of DD55, and Mr Colin Brady on behalf of the Council who conferred in the preparation of a joint expert report on aspects of heritage filed on 7 November 2024 (Exhibit 3). In short, Mr Brady considers the design confronting and overwhelming to the Coastal Walk, in part due to the cocoon structures being, as he describes them "redolent of granite headlands rather than the inherent qualities of Sydney's eastern coastline…". 12. For those reasons set out earlier, just as I do not find the proposal 'menacing', neither do I find grounds for it to be 'confronting'. Instead, I consider the proposal highly responsive to its context, and in no way detrimental to the heritage significance of those conservation areas in the vicinity of the site at [158], as understood in terms set out at cl 5.10 of the WLEP. 13. In considering whether the proposed development is likely to cause an adverse impact on the integrity and resilience of surface and groundwater (s 2.10(1)(a)), and natural coastal processes (subs (1)(b)), I note Council's internal referral to Stormwater Design and Flooding (Infrastructure Services) (Exhibit 2, Tab 7) supports an exemption from providing on site detention. That said, the proposed development includes provision for the collection and reuse of rainwater depicted on the Stormwater Plans (SW-200 Rev 0), fitted with first flush diverters. The source of this runoff is also documented on the Stormwater Plans, noting the development proposes a greater extent of deep soil that that required by the control at Part C1.9(c) of the WDCP. As such, I am satisfied that the proposal is designed to maximise the use of water permeable surfaced on the land, includes on-site stormwater retention and so avoids significant adverse impact of stormwater runoff on adjoining properties, adjoining bushland and the like, in accordance with cl 6.15 of the WLEP. 14. Furthermore, when the Geotechnical Report is read in conjunction with Stormwater Plans and Landscape Plans, I accept the earthworks are unlikely to disrupt or have a detrimental effect on the drainage patterns or soil stability of the site or the locality around it, and to have no adverse impact on the likely future use or redevelopment of the land. The Geotechnical Report summarises laboratory testing of core samples taken from the site, and speculates on the potential for subsurface defects in rock that may require stabilizing (p 13). 15. I have considered those matters at cl 6.2(3) of the WLEP, and conclude the earthworks are acceptable. In doing so, I consider the reasons at [74] to lend weight to the opinion of satisfaction I have already expressed in answer to ss 2.10(2) and s 2.11(1)(b) of the Resilience and Hazards SEPP, and to be likewise a basis for satisfaction that the proposed development is not likely to cause increased risk of coastal hazards on the subject site or other land, in accordance with s 2.12 of the Resilience and Hazards SEPP. 16. Relatedly, while the land is identified on the relevant Acid Sulfate Soils map at cl 6.1(2) of the WLEP as being 'Class 5' acid sulfate soils within 500m of another class, I also accept the reasons set out on p 15 of the Geotechnical Report that support a conclusion that an Acid Sulfate Soils Management is not required. 17. The application is accompanied by a BASIX certificate (Cert No. 1743075S_02 dated 5 December 2024) prepared by Taylor Smith Consulting in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022. 18. An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP. 19. The Court must not consent to the carrying out of development on land unless it has considered whether the land is contaminated, in accordance with s 4.6 of the Resilience and Hazards SEPP. The Statement of Environmental Effects prepared by ABC Planning (Exhibit E, Tab 3) asserts the site has been in residential use since its original subdivision, and relies on an aerial image from 1943 to this effect. This assertion is clearly at odds with the evidence from the Archaeological Report at [40], and with the Heritage Impact Assessment cited at [36] which both record past non-residential uses that pre-date the subdivision. However, the proposal is not for a change of use and is not land that answers the description at s 4.6(4) of the Resilience and Hazards SEPP. On the basis of the demolition referred to at [3], and the evident making good of the site subsequently, I accept the site is unlikely to be contaminated. Public submissions 1. The development application was publicly notified by the Council between 13-27 May 2024, in response to which five submissions were received. Two of the submissions support the proposal, and three were not supportive. 2. I have considered two of those submissions received at [133]-[137], and regard the remainder of issues found within public submissions to be addressed in the decision above. 3. For the reasons set out above, I find the proposed development is deserving of the grant of consent, subject to conditions of consent that are contested between the parties. Conditions of consent 1. At the close of the hearing, the Court directed parties to confer on without prejudice conditions of consent. The parties complied with the Court's direction, and filed conditions of consent on 9 December 2024. 2. The Court is asked to determine two matters in dispute between the parties: 1. Firstly, as stated at [81], I consider it appropriate that further aboriginal archaeological investigations be undertaken as part of the operational consent, as provided for by the conditions preferred by DD55. As such, the condition proposed by DD55 at Condition 2A is adopted. 2. Secondly, having regard to the likely height of Cook Pines at maturity, and the lack of view loss likely to result from their height and placement, the substitution of plant selections proposed by the Council at Condition 2(a) is deleted. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development application No. DA-187/2024 for earthworks comprising both excavation and fill, a new two-storey dwelling over a basement, driveway, landscaping and stormwater infrastructure at 31 Gaerloch Avenue, Tamarama, is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All Exhibits are returned, except for Exhibits A, B, C, E and 7. T Horton Commissioner of the Court Annexure A ********** 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: 28 January 2025