Legacy Property Pty Ltd v Waverley Council [2014] NSWLEC 1150

Land and Environment Court New South Wales

Medium Neutral Citation: Legacy Property Pty Ltd v Waverley Council [2014] NSWLEC 1150 Hearing dates: 30 June, 1, 2 July 2014 Decision date: 29 July 2014 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is upheld. 2. Development application DA539/2013 for the demolition of existing structures at 253 and 255 Oxford Street Bondi Junction and the construction of a mixed use development including residential units, retail space and basement car parking including landscaping and associated works, is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, 5 and A. Catchwords: DEVELOPMENT APPLICATION - Mixed use development - Height - Number of storeys - Overshadowing - Impact on views Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Legacy Property Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Mr C McEwen SC (Applicant) Mr M Staunton (Respondent) Mr A Whealy, Gadens (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10195 of 2014

Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of a development application (DA 539/2013) for the demolition of existing structures at 253 and 255 Oxford Street Bondi Junction (the site) and the construction of a mixed use development consisting of 101 residential units, retail space and basement car parking for 90 car spaces including landscaping and associated works. 2The site is located on the southern side of Oxford Street between Bondi Road and Adelaide Street/Hollywood Avenue, approximately 250m from the Bondi Junction bus and rail interchange. The site has a primary frontage to Oxford Street and a secondary rear frontage to Pine Lane. The site has a fall from the rear down to the front of the site of approximately 5.07m. 3In June 2013 the Sydney East Joint Regional Planning Panel (JRPP) granted consent to development application DA 386/2012 which proposed a mixed use development containing retail space, 94 units and 82 car parking spaces (the JRPP Approved Development). The JRPP Approved Development is under the 60m height limit imposed under Waverley Local Environmental Plan 2012 (the LEP) and is 19 storeys. A Construction Certificate has been issued and works have commenced. 4The development application the subject of this appeal (DA 539/2013) sought consent for development that was proposed as the same development as previously approved under DA 386/2012, modifications to that development that had been the subject of an undetermined application under s 96 of the Act, and two additional storeys of residential accommodation and associated additional parking. 5The Class 1 Appeal was lodged on 31 March 2014. On 12 June 2014 the JRPP refused consent. 6During the course of the proceedings the applicant was given leave to amend the application to rely on amended plans, and ordered to pay costs under s 97B of the Act as agreed or assessed. In summary, the amendments delete the proposed top two storeys, relocate the communal open space to the roof of the proposed building, relocate the rooftop plant and equipment, increase the area of retail tenancy on the ground floor, and add units to levels 4 and 5, where the communal open space was formerly provided. The north eastern part of the building, the lift overrun, and certain plant on the roof, would exceed the 60m height limit.