Land and Environment Court of New South Wales CITATION : Fuller Associates v Waverley Council [2007] NSWLEC 845 APPLICANT Peter Fuller Associates Architects Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10912 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- existing use rights - demolition of the existing structures and construction of a five level mixed use development - height, bulk, scale - design LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 CASES CITED: Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 DATES OF HEARING: 06/12/07 EX TEMPORE JUDGMENT DATE : 6 December 2007 APPLICANT Mr M Craig QC SOLICITORS Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, barrister SOLICITORS Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 6 December 2007 10912 of 2007 Peter Fuller Associates Architects Pty Limited v Waverley Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of Development Application No 017/03 that involves the demolition of the existing structures on site and the construction of a five level (including basement level for parking) mixed use development comprising ground level, retail and three upper levels containing 9 residential apartments at 57-59 Beach Road Bondi Beach (the site). The site 2 The site is made up of two separate lots, being Lot 29 in DP 8193 and Lots 1–4 in Strata Plan 11170. It is rectangular in shape and has a street frontage to Beach Road and Glenayr Avenue of 27.43 m and 19.05 m respectively. The northern boundary is 27.43 m and the eastern boundary is 19.02 m. The site has an area of 521.72 sq m. 3 The topography of the site is relatively flat but with a slight fall across the site from east to west. The site currently contains 2 x 2 storey brick residential flat buildings. Neither site currently contains off street car parking and there is no significant landscaping on either property. Development in the surrounding locality comprises a range of uses including single dwelling houses, residential flat buildings, commercial uses and a hotel. Relevant planning controls 4 The site straddles two zones; being Residential 2(a) (57 Beach Road) and Business Neighbourhood 3(c) (59 Beach Road) pursuant to Waverley Local Environmental Plan 1996 (LEP 1996). 5 Both sites contain residential flat buildings that are prohibited under the LEP zoning controls therefore site therefore benefits from existing use rights pursuant to s 108(3) of the Environmental Planning and Assessment Act 1979. Under these provisions any environmental planning instrument that derogates from the existing use rights provisions have no force or effect. In effect, the controls contained within the council planning controls cannot strictly be used to assess the application. 6 Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 provides principles that should be used in assessing development applications where existing use rights apply. The relevant principle states: 1. How do the bulk and scale as expressed by height, floor space ratio and setbacks of the proposal relate to what is permissible on surrounding sites? (While planning controls such as height, floor space ratio and setbacks do not apply to sites with existing use rights, they have relevance to the assessment of applications on such sites. This is because the controls applied to surrounding sites indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered with the proposed development). The evidence 7 The proposed development has evolved since being lodged with the council on 14 January 2003. The most recent version was the subject of a joint report from Mr Tony Moody and Mr Nigel Dickson for the applicant and Mr William Gaune for the council. The report addressed the planning aspects of the proposal, taking into consideration the existing use rights that apply to the site. There was agreement between all experts on the issues associated with the glazing of facades, car parking and loading, internal goods service corridor, recycling and waste storage area, residential access to external open space and the appearance of the northern and eastern walls. There was initial disagreement between Mr Moody and Mr Dickson with Mr Gaune on the height, bulk and scale of the proposal, however with the preparation of further amended plans that increased the setback to the fourth level at the Glenayr Avenue frontage, Mr Gaune's concerns were satisfactorily addressed. 8 With the benefit of the site view and taking into consideration the existing use rights that apply to the site and the principles in Fodor, I accept the conclusions reached by Mr Moody, Mr Dickson and Mr Gaune that the proposed development is acceptable in terms of bulk, scale and height in its context. I note that the council's internal Design Review Panel also supported the suitability of the design. Impact on existing street tree 9 The potential impact of a development on an existing tree was addressed by arborists, Mr Hilliard, for the council and Mr Ford, for the applicant. There was general agreement that the tree added to the streetscape of the area and should be retained where possible. Mr Ford did, however, suggest that the life of the tree was limited and any impact on the tree was likely to be caused by the severing of any substantive roots by the construction of the basement car park that required excavation at the property boundary. To address this concern, an exploratory trench was dug at the location of the proposed car park excavation. No found substantive roots were found in the exploratory trench. On this basis Mr Ford concluded that there was unlikely to be any damage to the existing street tree. 10 Mr Hilliard adopted a more theoretical approach notwithstanding the exploratory trench prepared by Mr Ford. He advocated a 1 m setback from the proposed location of the basement car park on the boundary. 11 In balancing the two approaches, I prefer Mr Ford's conclusions based on his exploratory trenching. I accept his evidence that it is unlikely that any substantive roots would be found below the 1.2 m depth of the trench. Consequently, no additional setback is necessary. Resident concerns 12 While the issues raised by the council were addressed through additional conditions and amended plans, a number of further issues were raised. The following persons provided evidence on site: o Mr Robert Smith of 3/55 Beach Road, o Mrs Nezvall of 51 Beach Road, o Ms Lyn Anderson of 3/58 Beach Road, o Mr Graham Wiffen of 1/44 Beach Road, o Mr Jurriaan Plesman of 5/46 Beach Road and o Ms Anne Stuetz of 47 Beach Road. o Mr Mark Delaney, the manager of the Beach Hotel also provided evidence. The design 13 A significant and recurring issue raised by the residents related to the use and design of the proposed shop at the corner of Beach Road and Glenayr Avenue. The design provided for the main frontage to be to Glenayr Avenue but with limited access and potential use of the footpath area opposite the entry in Beach Road. The concerns related to the extension of the commercial activities from Glenayr Avenue into Beach Road. 14 While the potential exists for the commercial activities associated with the site to extend into Beach Road, I am satisfied that even if this does occur it is only limited to a small area near the corner and not necessarily near the main residential part of Beach Road. I accept that the design appropriately addresses the important corner element of the proposal and as such should be accepted. I note that the use of the shop and the footpath area needs further approval by the council. In my view, the concerns of the local residents are more appropriately addressed at this time when the particular characteristics of any future use are known. The Beach Hotel 15 Mr Delaney's concerns relate to the potential objections from residential occupants of the proposed dwellings to the operation of the hotel. He suggested that additional acoustic treatment should be provided to the proposed dwellings to address potential noise impacts. 16 On Mr Delaney's concerns, I am not satisfied that this is appropriate or necessary. The existing buildings on the site are residential and this is not substantially changed through the redevelopment of the site. Importantly, the controls for noise on nearby residential receptors should not change with the redevelopment of the site. Conditions in dispute Condition 23 17 This condition provides that one unit for adaptable housing be provided. As Part J, cl 3.1 of Waverley Development Control Plan 2006 does not require an adaptable unit for a development that has 9 units, condition 23 can be deleted. Advisory Note 18 The advisory note requires the reporting of any Aboriginal objects, artefacts or places found during excavation to the council. As other legislation proscribes the reporting of those matters identified in the Advisory Note it serves no purpose and can be deleted. Orders 19 The Orders of the Court are: 1. The appeal is upheld. 2. DA 017/03 for the demolition of two existing buildings and the construction of a mixed use development at 57-59 Beach Road Bondi Beach is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit A. ___________________ G T Brown Commissioner of the Court 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.