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. Issues 7In its Statement of Facts and Contentions (exhibit 1) the Council contended that consent should be refused because the proposed development did not comply with the maximum height limit of 60m provided under cl 4.3 of the LEP and the maximum number of storeys permitted (16 storeys) under cl 1.11 of Part E1 of the Waverley Development Control Plan 2012 (the DCP). The Council contended that the breach in the height control would result in unsatisfactory amenity impacts particularly overshadowing of additional properties and a nearby park, and view loss from adjoining properties; the contravention of the storey control in the DCP would result in insufficient floor to ceiling heights at the lower levels of the building, and a breach of the 60m height control, resulting in amenity impacts to adjoining properties and a nearby park by way of overshadowing and view loss. The Council also contended that the architectural resolution, character and design did not comply with principle 10 of State Environmental Planning Policy No 65 -Design Quality of Residential Flat Buildings (SEPP 65) and cll 1.13 and 1.14 of Part E1 of the DCP; the proposed development has car parking above street level contrary to cl 1.25.4 of Part E1 of the DCP; and that consent should be refused having regard to the matters contained in submissions received by the Council to the extent consistent with the specified contentions. Further matters were identified in the contentions as being able to be resolved by conditions, including privacy measures to reduce scope for overlooking, and further information on proposed materials and colours and finishes. 8Following amendment of the plans, the Council's position now is that the issues relating to the building height and impacts on the amenity of neighbouring development through view loss and overshadowing, which were its primary concern, have been resolved, and that the proposed development is now consistent with the objectives of the controls and the zone and that there are no environmental planning grounds for refusal. The Council is now satisfied that the matters identified in the Statement of Facts and Contentions as relating to a lack of information on environmental site assessment, excavation, architectural resolution, and details of proposed materials, colours and finishes, design of the façade, and glazed elements, are now resolved or addressed in the Conditions. Planning Controls 9The site is zoned B4 - Mixed Use under the LEP. The objectives the zone are: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core. 10Clause 4.3 of the LEP provides a maximum height limit of 60m. The applicant has provided a written statement under cl 4.6 of the LEP to justify the variation for that part of the proposed building that exceeds the height limit. 11Clause 4.4 provides the maximum floor space ratio (FSR) is 6:1. The proposed building exceeds the gross floor area (GFA) allowable to achieve that FSR. Clause 4.4B provides: 4.4B Incentives for providing affordable rental housing (1) The objective of this clause is to increase the supply of affordable rental housing for very low, low and moderate income earning households by providing incentives for the development of new affordable rental housing. (2) This clause applies to development for the purposes of residential flat buildings, or a mixed use development that contains shop top housing, if: (a) the development is on land identified as "Area 1" on the Floor Space Ratio Map, and (b) the development comprises at least one dwelling that is to be used for the purposes of affordable housing. (3) Despite clause 4.4, development consent may be granted for development to which this clause applies that has a gross floor area of no more than: (a) the maximum gross floor area that would be permitted for development on that land calculated by using the maximum floor space ratio shown on the Floor Space Ratio Map for that land, plus (b) an additional area of 15% of that maximum gross floor area (the affordable housing incentive). (4) Development consent must not be granted for development to which this clause applies unless conditions are attached to that consent to the effect that: (a) at least 50% of the area of the affordable housing incentive for the development will be allocated to one or more dwellings providing affordable housing in the development, and (b) for at least 3 years from the date of the issue of the occupation certificate for the development: (i) the dwelling or dwellings will be available for rent as affordable housing, and (ii) all such accommodation will be managed by a registered community housing provider, and (c) a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, that will ensure that the requirements in paragraph (b) are met. (5) Subclause (4) does not apply to development on land owned by a public authority or to a development application made by, or on behalf of, a public authority or a registered community housing provider. (6) For the purposes of the definition of affordable housing in the Act in its application to this clause, a household is taken to be a very low income household, low income household or moderate income household if the household: (a) has a gross income that is less than 120 per cent of the median household income for the time being for the Sydney Statistical Division (according to the Australian Bureau of Statistics) and pays no more than 30 per cent of that gross income in rent, or (b) is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme. Note. The Act defines affordable housing to mean housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument. Evidence 12The hearing commenced on site with a view. Evidence was given on site by the owners of units 106 and 103, 2A Hollywood Ave. The view included a view from those units. The "Oscar" building at 2A Hollywood Avenue, is to the south of the proposed development and also accesses Pine Lane. Both units 106 and 103 face north, and the owners' concerns as expressed on site related to privacy and overlooking, and the impact on the views to the north presently available. 13The view included the locality of the proposed development, in particular 4-12 Waverley Street, 15-19 Waverley Crescent, Fingleton Reserve, and Eora Park. 14Submissions made to the Council in response to the notification of the development application are in evidence (exhibit 2). Those submissions, which include a submission made on behalf of the owners of the strata plans of the Oscar Building, 251 Oxford Street (Harley Place), and 257 Oxford Street (Harbourview), raise concerns as to the height and bulk of the proposed development, impacts on privacy and views, overshadowing, and traffic, and compliance with the planning controls. 15Expert evidence was provided on behalf of the applicant by Mr Nigel Dickson (urban designer) and Mr Michael Gheorghiu (planner) and on behalf of the Council by Mr Stuart McDonald (planner). The joint conferencing process included involvement of the Council's 3D modelling expert, Ms Julia Wilson. 16The planning and urban design experts provided a joint report (exhibit 3). The joint report noted that during the conferencing process Mr McDonald and Mr Dickson had raised the question whether some or possibly even the equivalent amount of floor space being sought as two additional levels could be accommodated elsewhere in the proposal; one of the options raised was to remove two levels to achieve a complying scheme. The experts continued their discussion during the course of the hearing, resulting in the amendments to the plans. Mr McDonald, Mr Dickson and Mr Gheorghiu gave oral evidence addressing the amended plans. 17The owner of unit 103, 2A Hollywood Avenue, provided written comments on the amended plans (exhibit 4). Consideration 18The proposed development includes 100 residential units on levels 4 to 20; car parking on three basement levels and level 2 accessed from Pine Lane; retail space on the Oxford Street level with a through site link between Oxford Street and Pine Lane; and common open space on the roof accessed from a lift accessible to all floors of the building. The unit mix is 6 studio apartments, 57 one-bedroom, 29 two-bedroom, and 8 three and four-bedroom. The top two storeys originally proposed in DA 539/2013 have been deleted. The common open space was previously located in the void on levels 4 and 5; those levels have been reconfigured and now each provide two affordable housing units. Four additional affordable housing units are provided on levels 19 and 20. The communal open space is located on the northern side of the roof, with plant and equipment on the southern side. As a result of the reduction by two storeys and use of the levels 4 and 5 void for units there is an adjustment in the level of the roof. The amended plans provide for a maximum roof slab at RL 147.16 at the northern side; and maximum height for plant at RL 147.46. The building exceeds the 60m height limit along its northern, Oxford Street, side, and is within the height limit on its southern side facing Pine Lane. 19In their joint report (exhibit 3) the experts discussed the architectural software models used by the applicant and by the Council to model overshadowing and view loss impacts of the proposed development. They agreed that the Council's model is a suitable model to understand shadows on buildings in Bondi Junction, and that the models are similar. On vertical surfaces on buildings, the Council's model is flat and does not register articulation of the building and horizontal steps within the elevations. It is based on aerial photography and includes built shadows, which are visible and can be distinguished between the overlaid overshadowing generated by the model. The Council's modelling includes both existing development, and approved but not yet constructed development, including 241 Oxford Street (on the western side of Hollywood Avenue), and 570 Oxford Street (the Lindsay Bennelong development). In oral evidence the experts noted that details of the amended plans had been provided by Mr Dickson and modelled in the Council's modelling software, and images were provided based on the modelling. 20The joint report (exhibit 3) considered overshadowing on the Stanford building at 4-12 Waverley Street, buildings A and B of 2A Hollywood Avenue, 15-19 Waverley Crescent, and 42-48 Waverley Street, against the provisions of the Residential Flat Design Code (RFDC), which states that living rooms and private open spaces for at least 70 percent of apartments in a development should receive a minimum of three hours of direct sunlight between 9am and 3pm in mid winter, and that in dense urban areas a minimum of two hours may be acceptable. The cl 4.6 variation prepared for the amended plans (exhibit C), provides modelling of shadows of the development as now proposed in comparison with the development as approved in DA 386/2012. The experts agreed in oral evidence that the development as now proposed provides negligible additional overshadowing above that of the development approved in DA386/2012 which complied with the 60m height limit, when considered in the context of the existing and approved development, particularly the approval for 241 Oxford Street. 21The joint report (exhibit 3) addressed view impacts of the proposed development, and included images of existing views from units 103 and 106, 2A Hollywood Avenue together with images modelled on the Council's software which include approved but not yet constructed development. The experts agreed on the key views, which include iconic views of the CBD, the Opera House, Harbour Bridge, to North Sydney, the Heads, and Manly. The experts agreed on the view loss from units 103 and 106, which included some obstruction of views of the harbour and land interface, noting that the development as then proposed would extrude up, while maintaining iconic views to the City, North Sydney, the Harbour Bridge, the Opera House, Clark Island and the eastern suburbs. Additional modelling was undertaken based on the amended plans, producing images showing view impact of the approved development and impact of the development as now proposed. In oral evidence the experts agreed, based on those images, that other than for the lift overrun the roof would be fully blended in to the Lindsay Bennelong development, that there would be a marginal loss of sky view, and that any view loss of the sky, water and land interface would be marginal. Mr McDonald's evidence was that there would be some impact on the foreground, but not more broadly to the horizon, and that the non-compliance with the height limit at the northern part of the building, while visible, would not of itself contribute to any interruption of the horizon or the land/water interface. The experts agreed that in order to minimise interference with views plant and equipment on the roof should be limited to RL 147.46. 22The additional comments from the owner of unit 103 responding to the amended plans were that the use of the common open space area on the roof should be restricted by hours of use, no amplified sound and no visual entertainment; there should be no overlooking of the Oscar building; and further attempts should be made to internalise the plant within the core of the building or the basement. 23The applicant seeks a variation to the maximum building height limit for that part of the proposed development that exceeds 60m, under cl 4.6 of the LEP: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence. 24The applicant has provided a written request that seeks to justify the contravention (exhibit C), stating that compliance with the development standard is unreasonable or unnecessary and there are sufficient environmental planning grounds to justify the contravention, on the basis that the proposal does not generate additional environmental impacts in the form of overshadowing and view loss, in particular given the negligible increase in overshadowing to 4-12 Waverley Street, and the obstruction of views from building A of the Oscar building by the approved Lindsay Bennelong development; that the provision of communal open space on the roof provides a suitably functional space for future residents; and that the proposed development provides a public benefit through the inclusion of additional affordable housing units on the lower levels of the building. I am satisfied that the written request has adequately addressed the matters required by cl 4.6(3). 25The objectives of the development standard in cl 4.3 of the LEP are: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties, (b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth, (c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land, (d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space. 26I accept the expert evidence. Based on that evidence, I am satisfied that the proposed development provides only a marginal increase in overshadowing of neighbouring properties when considered in the context of existing and approved development in the locality and does not significantly obstruct or impact on existing key iconic views beyond that in the approved development for the site which entirely complies with the 60m height limit; that it provides retail and residential development consistent with the surrounding development, and that it is consistent in height with surrounding development, and is thereby consistent with the relevant objectives (a), (b) and (d) in cl 4.3(1) of the LEP, and the objectives of the B4 Mixed Use zone. The proposed common open space on the roof is screened from the Oscar development by the intervening plant and equipment which is itself screened, with height restrictions imposed on the plans and restrictions on use imposed under the proposed Conditions in order to maintain the amenity of neighbouring properties. 27The Court can exercise the power conferred by cl 4.6(4) without the concurrence of the Director-General by reason of s 39(6) of the Land and Environment Court Act 1979, however by analogy with the requirements of a variation under State Environmental Planning Policy No 1, the matters identified in cl 4.6(5) would still be relevant. There are no identified matters of significance for State or regional environmental planning; and I am satisfied that there is no identified public benefit in maintaining compliance with the standard in the context where that part of the building closest to the immediately affected neighbouring property complies with the height limit, and where the proposed development is consistent with other commercial and residential development in the locality, and does not give rise to unreasonable or adverse impacts on surrounding properties. 28Clause 4.6(4) is satisfied and development consent can be granted, notwithstanding that the northern side of the proposed building exceeds the maximum height provided in the development standard. 29The gross floor area (GFA) of the development as now proposed is 7,871sqm, 845sqm in excess of the 7,026sqm permitted for the applicable FSR of 6:1 under cl 4.4 of the LEP. That represents 12 percent of GFA. The plans now provide for 8 units to be allocated as affordable housing (units 4.02, 4.03, 5.02, 5.03, 19.03, 19.05, 20.04 and 20.05). The total of affordable housing floor space provided in the plans is 427sqm, which is 50.53 percent of the area of the affordable housing incentive area of 845sqm. Proposed condition 5 includes the requirements satisfying cl 4.4B(4). The proposed development complies with cl 4.4B to enable approval of the additional GFA, and I am satisfied that it is appropriate to do so in the context where eight affordable housing units are provided and the exceedance in GFA does not impact on immediately adjoining or neighbouring properties. 30Section 1.11 of Part E1 of the DCP specifies for the site a maximum of 16 storeys with a 6 storey block edge form and 10 storey tower over. The Council accepts that given the difference in levels between Oxford Street and Pine Lane the proposed building has been designed to fit the streetscape. The experts agreed that the number of storeys as identified in the DCP is not the key issue in relation to assessment of environmental impact arising from the development. The objectives for the number of storeys controls in section 1.11 of Part E1 are: (a) To ensure buildings create a human scale to the street. (b) To encourage development and redevelopment potential. (c) To reduce the incidence of high winds at street level. (d) To provide a transitional scale between commercial and residential. (e) To strengthen the Town Centre form with consistent heights along streets. 31I accept the agreed evidence of the experts that the departure from the numerical control is justified for the proposed development. I note in the consideration of objective (c), which was a matter raised by objectors, that a report submitted with the development application satisfied the Council staff providing the assessment for the JRPP (exhibit 2, tab 21) that wind conditions associated with the proposed development would not cause any adverse wind effects to the local surrounding areas and the measured wind conditions for the trafficable outdoor areas within and around the site would satisfy the relevant criteria for comfort and safety. 32The proposed development provides the maximum 90 car spaces permitted under the DCP, and the 12 retail and visitor bike racks required under the DCP. Section 1.25.4 of Part E1 of the DCP states that car parking is "generally to be located under street level". The RMS requirement that no vehicular access be provided from Oxford Street means that access can only be achieved from Pine Lane. I accept the agreed expert evidence that the level of car parking as it relates to Oxford Street is a result of the slope of the site, and that the car parking spaces at the lower levels have already been approved in DA 386/2012. 33I accept the agreed expert evidence that the proposed development demonstrates a high quality architectural resolution and that all relevant architectural plans have been provided. Final amended plans incorporating all the additional information and changes agreed by the experts have now been provided, and are identified in condition 1 of the proposed Conditions of Consent. Conclusion 34I accept the position now adopted by the Council that its primary concern for overshadowing and view loss generated by the proposed exceedance of the height limit has now been addressed in the amendments to the plans which provide for a development that is, other than on its northern side, below the maximum height limit provided in the LEP, and that the application under cl 4.6 of the LEP for an exception to the development standard can properly be approved. I am satisfied that subject to the proposed Conditions, which include conditions for management of use of the roof top communal open space so as to avoid amenity impacts for neighbouring developments, it is appropriate that consent be granted. 35The orders of the Court are: (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. Linda Pearson 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: 29 July 2014