Land and Environment Court New South Wales Medium Neutral Citation: DA Number 7 Pty Ltd v Waverley Council [2020] NSWLEC 1039 Hearing dates: 28-29 November 2019 Date of orders: 24 January 2020 Decision date: 24 January 2020 Jurisdiction: Class 1 Before: Morris AC Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application DA-135/2018 for the demolition of an existing three storey residential flat building and the construction of a new four storey residential flat building (RFB) containing five units with basement car parking on land known as 154 Ramsgate Avenue, North Bondi is refused consent. (3) The exhibits, other than Exhibits A and 1, are returned. Catchwords: DEVELOPMENT APPLICATION – residential flat building – height – bulk – scale – views Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012 Cases Cited: Bouchard v Waverley Council [2019] NSWLEC 1449 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Waverley Development Control Plan 2012 (Amendment No. 5) Category: Principal judgment Parties: DA Number 7 Pty Ltd (First Applicant) RA Number 7 Pty Ltd (Second Applicant) Waverley Council (Respondent) Representation: Counsel: A Galasso SC (Applicants) M Staunton (Respondent) Solicitors: Project Lawyers (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/268143 Publication restriction: No Judgment 1. COMMISSIONER: This application is lodged pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against Waverley Council's deemed refusal of Development Application DA-135/2018. 2. The application now before the Court seeks consent for the demolition of an existing three-storey residential flat building and the construction of a new four-storey residential flat building (RFB) containing five units with basement car parking on land known as 154 Ramsgate Avenue, North Bondi. 3. The primary contentions in the case go to the height, bulk and scale of the proposed building and its impact particularly in terms of amenity and views. The site and its context 1. The site is legally described as Lot 1, Section 10 in DP786. It has a dual frontage of 12.19m to both Ramsgate Avenue and Brighton Boulevarde and an area of approximately 477.5m². It is generally rectangular in shape with a 7.1m fall from east to west. The unmade section of Bay Street runs along the northern side of the site. This area is developed as a landscaped local park area with pedestrian path that links Ramsgate Avenue to Brighton Boulevarde. 2. A three-storey RFB containing 6 dwellings stands on the site and would be demolished to allow redevelopment of the land. That building has a maximum height of 12.11m and Floor space ratio (FSR) of 0.79:1. 3. Another three-storey RFB adjoins the site to its immediate south with the locality comprising a mix of older style three storey walk up RFBs, multi-unit housing and dwellings. The proposal 1. The applicant was granted leave to rely on amended plans during the hearing and a final consolidated set of those plans was filed with the Court on 5 December 2019. Those plans provide for excavation of the site to facilitate construction of a basement carpark accessed off Ramsgate Avenue. That basement area would be setback 2.19m from the front boundary and contain parking for nine vehicles at grade with a tenth space in a carstacker further excavated into the site. 2. The residential flat building would be constructed over four levels above the basement. The ground floor level would be substantially below existing ground levels due to the extent of excavation proposed. It contains a three bedroom unit at the western end and the lower portion of a two level, 3 bedroom unit at the eastern end, two of its bedrooms being on this lower level. Level 1 would provide the main pedestrian access to the building off the footpath in the unmade section of Bay Street, the upper living area and main bedroom to the two storey unit and a 2 bedroom unit fronting Ramsgate Avenue. 3. The third storey would contain another two bedroom unit fronting Ramsgate Avenue and the three bedrooms of a two level apartment, the living areas of which occupy the entire fourth storey. 4. The building is setback 1.95m from the southern site boundary, 2.2m to the unmade section of Bay Street and 6.0 from Brighton Boulevarde. 5. Private open space in the form of balconies is provided to all the western and top level units with the lower level two storey unit enjoying a courtyard area excavated into the eastern portion of the site between the proposed building and Brighton Boulevarde. 6. An offer by the Applicant to enter into a Voluntary Planning Agreement was withdrawn and the application amended to reflect that change. The Council, despite having been aware of the offer since lodgement of the original application on 23 February 2018, had not adopted any resolution in regard to that offer. The planning controls 1. The site is zoned R3 Medium Density Residential under the provisions of Waverley Local Environmental Plan 2012 (LEP). Demolition of the existing buildings requires consent under the provisions of cl 2.7 and the proposed development is not prohibited in the R3 zone. 2. Clause 2.3 of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Part 4 of the LEP contains Principal development standards with cl 4.3 Height of buildings and 4.4 FSR relevant to the determination of the application. 2. Clause 4.3 prescribes a maximum building height of 9.5m and cl 4.4 prescribes a maximum FSR of 0.6:1. The proposed development does not comply with that development standard and the Applicant relies on the provisions of cl 4.6 and seeks to vary that standard. 3. Clause 5.10(c) of the LEP applies to Heritage conservation and, because the site is in the vicinity of a heritage item (144 Brighton Boulevarde), the consent authority may require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item. The Council did not raise any heritage contentions and I do not consider it necessary for such a document to be prepared in the circumstances of this case. 4. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development and the associated Apartment Design Guide (ADG) applies to the proposal. 5. Waverley Development Control Plan 2012 (Amendment No. 5) (DCP) applies with Parts A, B, C and E particularly relevant to assessment of the application. Specific precinct controls apply to the Bondi Beachfront area and, pursuant to those provisions, the site is located within the Ramsgate Avenue East character area. The controls in Part E2 take precedence over other controls in the DCP where a conflict occurs. 6. The Desired Future Character Objectives are: "(a) To maintain the residential character of the area and support a diversity of residential accommodation, with some shops at ground level opposite Biddigal Reserve. (b) To encourage development to address the street on the low-side of Ramsgate Avenue East. (c) To encourage built form with a vertical expression, constructed primarily of masonry with a consistent street wall height and attic levels setback from the street with balconies. (d) To discourage uncovered car parking and carports within the front setback. (e) To ensure that balconies and bay windows on side boundaries maintain visual and acoustic privacy between buildings. (f) To encourage balconies and operable screens that are integrated into the overall design of the building and that are constructed of materials appropriate to the exposed site conditions. (g) To maintain existing building setbacks. (h) To maintain and enhance existing view corridors." 1. Built form controls relevant to the contentions are: * Developments are to retain the residential character of the area; * A maximum of 3 storeys is permitted for buildings fronting Ramsgate Avenue and Brighton Boulevard however additional storeys are permitted where topography permits; * Buildings are to have a minimum front setback equal to the average setback of the adjoining two houses on each side and 3m for properties fronting Ramsgate Avenue East; * Buildings are to provide rear setbacks for floors above street level to provide balconies. 1. The remaining controls relevant to the proposal are contained in Part C2 of the DCP. The site is also located in the Ben Buckler Special Character Area. the Desired Future character (DFC) Objective of that area are: "(a) To maintain the headland character of Ben Buckler through the landscaping of the front gardens and appropriate planting of verges. (b) To maintain the rhythm of buildings frontages to the street. (c) To ensure side setbacks allow glimpses of the beach or ocean. (d) To respect the existing building character of boxy proportioned buildings, architectural elements and range of materials and finishes. (e) To encourage view sharing." 1. The Controls are: "(a) Planting should utilise minimum maintenance species growing to no more than 1m in height at maturity. The appearance and species selection should be compatible with the adjoining gardens. Growth must not encroach upon the footpath or obstruct pedestrian access. (b) Side setbacks are to be clear of obstructions to allow views between buildings to the beach. (c) Sites adjacent to laneways and pedestrian connections may be able to achieve increased site coverage with a reduced deep soil requirement. Where deep soil requirements are not met, this area is to be replaced with landscaped open space above ground level. (d) Communal landscaped gardens are required within the front setback to contribute to the public domain. (e) The private open space is permitted to encroach 2.5m into the communal landscaped front setback provided that the front setback is a minimum of 6m from the street boundary. (f) Rendered and painted finish is appropriate in this area. (g) Allow balconies to be provided over existing car courts for existing buildings on battle-axed blocks along Ramsgate Avenue. (h) Roof terraces are discouraged due to the greater potential impacts in higher density areas." 1. Excavation controls are in Part 2.4 and, where excavation is proposed 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. 2. 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. Excavation should not add to the visual bulk and scale of the building. 3. Part 2.16 of the DCP applies to Solar Access and Overshadowing. The following controls are relevant to the contentions: "(a) Living rooms & private open spaces for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9:00am and 3:00pm on June 21. (i) Developments which seek to vary the minimum standards must demonstrate how site constraints and orientation prohibit the achievement of these standards. (ii) Excavation for the purposes of subterranean apartments, which do not receive the required minimum access to sunlight, is not acceptable. (b) New development should not reduce the solar access of solar collector/s of an adjoining property to less than two hours per day in mid winter except solar hot water and photovoltaic panels to which full solar access must be maintained. (c) Direct sunlight to north facing windows of habitable rooms and all private open space areas of adjacent dwellings should not be reduced to less than 3 hours between 9.00am and 3.00pm on June 21. (d) The numerical guidelines will be applied with the NSW Land and Environment Court Planning principle for sunlight (in accordance with the case of The Benevolent Society vs. Waverley (2010) NSWLEC 1082 in mind, where relevant: (i) The ease with which sunlight access can be protected is inversely proportional to the density of development. At higher densities sunlight is harder to protect and the claim to retain it is not as strong. (ii) The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. (iii) Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. (iv) For a window, door or glass wall to be assessed as being in sunlight, regard should be had not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. (v) For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. (vi) Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. (vii) In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development." 1. Part 2.17 applies to Views and View Sharing with the following objectives: "(a) To ensure that views are shared, providing equitable access to views from dwellings. (b) To protect and enhance views from streets and other public spaces. (c) To ensure that the desire for view does not conflict with privacy." 1. Relevant controls are: "(a) New development should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities for views from the development itself (refer to Figures 25 and 26). (b) Provide articulation, and minimise the bulk and scale of roof forms on the low side of streets allowing views to the landscape beyond. (c) Design the landscape to allow for views between buildings, particularly on the low side of streets. (d) Where the property is adjacent a Council park or reserve, private landscaping should be sympathetic to and complement the public domain landscaping in order to soften the public-private interface. (e) Existing significant public views and vistas available from the public domain, including but not limited to ocean, city and parks views are to be maintained where possible by the design of buildings. (g) Measures to be used to facilitate view sharing include buildings setbacks, gaps between buildings, floor heights, roof forms and use of open materials and balustrades on balconies and decks." The issues 1. The contentions in the case are detailed in the Council's Amended Statement of Facts and Contentions, Exhibit1 and are as follows: 1. The proposed development fails to comply with the maximum FSR and is excessive in terms of bulk and scale. This results in unacceptable adverse impacts on the neighbouring properties and locality. 2. The proposed development is excessive in height and fails to comply with the maximum height of building development standard. 3. Inadequate setbacks, primarily to Brighton Boulevarde. 4. Resolved through submission of amended plans and details. 5. The proposed development results in unreasonable and unnecessary overshadowing. 6. The proposed development results in unreasonable amenity impacts on future residents of the proposal. 7. The proposal will result in unreasonable impacts upon views and will not result in reasonable view sharing with neighbouring properties. 8. The development incorporates excessive excavation which results in poor amenity for the lower level eastern unit. 9. The development is not in the public interest and will establish an undesirable precedent in the immediate locality. The evidence 1. The hearing commenced on site with evidence heard from a number of objectors to the application. Their primary concern related to the impact of the building on views and the precedent that may result if approval was granted to a building that exceeded the building height and FSR development standards. 2. The view was assisted through the erection of height poles and spot markers that identified the proposed building height, setbacks and articulation. The view included observation of the site from with a number of the objectors' properties in the company of the parties and those owners. 3. Expert planning evidence was heard from Mr A Rowan for the applicant and Mr G Turrisi for the Council. They agree that: * based on a visual assessment, all of the immediate surrounding RFBs in the Ramsgate Avenue East precinct appear to exceed the FSR control; * The front portion of the development as it will present to Ramsgate Ave is lower in height than the existing building; * The upper storey setbacks to Bay Street are generally within the envelope of the existing roof; * The development is lower in height that the existing building; * The development provides the requirement for landscaped area and deep soil planning as required by the DCP and ADG; * The controls contemplate 4 storey development where the topography permits; * The desired form of development for the precinct is to encourage built form with a vertical expression…. with a consistent street wall height and attic levels setback from the street with balconies; Mr Rowan says the development satisfies this objective whereas Mr Turrisi says it also needs to be considered in the context of the FSR control under the LEP; * The rear portion of the Ground Floor Level is below existing ground level. Mr Turrisi ways it will have limited visibility from various points along Ramsgate Avenue or Brighton Boulevard and will be visible to a person walking along Bay Street through the proposed boundary fence. Mr Rowan says it will not be visible; * In relation to No 146 Brighton Boulevard, there is to the upper levels no evident impact upon existing views from that property. Mr Turrisi says to the lower level, there are minor view losses whereas Mr Rowan says there is a net improvement of views with the very minor impacts to a very expansive panoramic view, outweighed by improvements to the quality of views that will be achieved; * There is only a single location in the public domain on the section of Bay Street east of Brighton Boulevard, where the development would have an effect upon a view to a portion of existing ocean views. That location is on the footway on the northern side of the road. At that location the proposed development will provide for additional views to water and the land water interface along the southern side of Bondi Beach. From all other locations in the section of Bay Street east of Brighton Boulevard there is either no change to views to the ocean, or there is an increase in the views to the water and/or land/water interface of Bondi Beach arising from the development; * After inspecting the property they describe as No 4 Bay Street during the site view, they agree that the proposal will have no impact on views from either of the dwellings on that site; * The extent of the non-compliance with building height is between 0.38m and 0.62m and is limited to the central section of the building at the western end of Apartment 5; * All existing 3 storey building (with pitched roofs) and 4 storey buildings on Ramsgate Avenue and Brighton Boulevard in the precinct exceed the 9.5m height development standard; * The existing building is greater in height than the proposed development for its entire length; * Only the central section of the building exceeds the 9.5m height development standard. This length of building in excess of the standard is about 4.4m long; * The rear portion of the building is below the permitted development standard being only about 7.31m; * The ground floor level accommodation of Apartment 2 comprises a basement; * A portion of the central section of the building (about 1.6m long) comprises 4 storeys, the eastern and western portions of the building are 3 storeys; * The storey height controls for the precinct in the DCP envisages 3 storeys and maybe an attic/part additional floor. That form of development could not be achieved within the 9.5m height control; * There is increased solar access to the north facing living room windows of the western most upper storey of No 156 Ramsgate Avenue to the south; * The step to the upper level will improve some view corridors from surrounding properties; * The prevailing character of older stock within the locality is of narrow buildings closer than 3m to their side boundaries. No 158-160 has side setbacks of 3m and is compliant with the DCP control; * The ground floor level extends beyond the side setbacks of the existing building. The eastern portion of this level would be visible along Bay Street. There is no impact upon the neighbouring property to the south as a consequence of the non-compliance at ground level with the side setback controls as it retains the existing setback; * The storeys above ground level retain the existing side setbacks. There are no additional impacts arising from the non-compliance with the side setback controls. Mr Turrisi says that is until one gets to the upper level which impacts solar access and view loss. Mr Rowan disagrees; * There are no privacy concerns arising between the proposed levels of the development and neighbouring No 156 Ramsgate Avenue; * All of the upper floor windows to the units on the north-facing elevations of No 156 currently receive winter sunlight throughout the day, i.e. for 6 hours between 9am and 3pm. There is a reduction in solar access to lower parts of the window. Most of the affected windows are to common areas, bathrooms or kitchens. There is a net increase of winter sunlight provided to the living room windows of the western-most apartment on this level, with additional sunlight in the afternoon, and a lesser reduction in the morning in winter; * The ground floor level component of Apartment 2 does not include living areas, there are two bedrooms, a study/media space and a bathroom. The courtyard areas on either side of the level are not enclosed, i.e. are external, located within the side setback areas. The southern courtyard has a width of about 1.8m from the glass line to the inside face of the boundary retaining wall and the northern courtyard 2m width. The courtyard areas on this level are secondary to the private open space on the upper level and are the primary source of light and ventilation to this level. This accommodation is derived from void space provided above the basement level car park and existing ground level, being a space required to be excavated for construction of the carpark; * The upper floor of Apartment 5 includes a bulkhead of 300-700mm width which provides a floor to ceiling height of 2.1m, located mainly over the circulation space to this unit alongside the northern windows. The remaining portion of that apartment has a floor to ceiling height of 2.6m being less than the 2.7m minimum height required under the ADG. 1. In relation to the first contention, bulk and scale, there is not agreement as to whether the character of the area is determined by the 0.6:1 FSR development standard; whether the floor space below existing street level, the extension of the built form towards Brighton Boulevarde and the fourth storey will result in a built form that is inappropriate for the Ramsgate Avenue East DFC; whether a change to the existing view to the ocean from a portion of Bay Street is unreasonable irrespective of the provision of any additional views to the ocean and land/water interface of Bondi Beach and whether the development satisfies the aim of cl 2(3)(b) of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65), to achieve better built form and aesthetics of building and of the streetscapes and the public spaces they define. 2. Mr Rowan says the character of the area is well established, with most RFBs in the area (including that on the subject land) having the original forms of development in the locality. Many of those building have been subject of construction which indicates the Council has consistently granted development consent for RFB development proximate to the site where the buildings exceed the FSR control, consistent with the objective of the FSR development standard which seeks to ensure that buildings are compatible with the bulk, scale, streetscape and DFC of the locality. The FSR provision of 0.6:1 does not reflect the prevailing scale and form of existing RFB development in the area, and as envisaged to be retained in the built form controls for the precinct. 3. The DCP provisions for the precinct affirm the DFC and the proposal conforms with those provisions irrespective of the floor space figure. The controls envisage a scale of development evidenced by surrounding development demonstrating the application of the FSR development standard has been long abandoned or not required in order to achieve the DFC of the precinct. 4. Whilst the development is not dependent upon the envelope of the existing building, it is appropriate that the proposal has considered its existence for comparative purposes. The existing building forms part of the existing character of the area, and reflects the form of building envisaged in the built form controls for the precinct under the DCP. Thus, a similar scale of development as is proposed is more likely to be appropriate in the area than a development that is not. There is no justifiable basis in terms of environmental impact that indicates the form and scale of the development is inappropriate for the locality. 5. The eastern elevation of the development will present to Brighton Boulevard as a 2 storey building. The lower storey will be screened from view from the road due to the fall in the land. There is no 2 storey building height control to Brighton Boulevarde. The DCP anticipates 3-4 storeys and the existing RFBs on the eastern side of Brighton Boulevarde directly opposite the site are all 4 storeys. The development is compatible with that character. 6. The side walls of the development will appear lower than the existing building due to the upper storey setbacks commencing at a lower height than the existing side walls in the closed section of Bay Street and, from within the side setback area of 156 Ramsgate Ave to the south. In particular, the setback of the upper floor on the northern side of the building facing Bay Street will provide views of the water/land interface of Bondi Beach from within the public domain and also from private property. 7. There is not a minimum lot requirement and the development does no isolate any site from redevelopment, given that No 156 is already occupied by an existing RFB in excess of the permitted height and floor space provisions of the LEP. 8. Mr Turrisi says the proposal does not meet the DFC of the locality as the degree of breach is in the order of 96%, having a FSR of 1.178:1. The Court notes the applicant says the FSR is 1.169:1. He says the proposal conflicts with the objectives of the FSR and whilst he acknowledges the existing building breaches the FSR development standard, that building has a FSR of 0.79:1, including a breach of the height development standard. 9. The DFC is not informed by the existing building envelope and surrounds but rather the applicable controls being the FSR and building height development standards and those objectives in the LEP and the built forms in the DCP that determine the character. Mr Turrisi says alterations or upgrades of the existing built form would be considered different to a new building, simply by the fact that the existing built form does not form part of the objective of the LEP control. That is, it does not set out to preserve the existing character but rather set a future character. 10. The proposal has a larger building footprint compared to the existing building and the additional floor area is provided by excessive excavation which adds additional visual bulk and amenity concerns to those future residents. The bulk of the built form will be read along Brighton Boulevard as three storeys, whilst development on the western side of that street has a predominate height of 2 storeys, thereby the proposal provides additional bulk to the streetscape. 11. Because this is an application to demolish an existing building and erect a new one, there is no constraint as to why the proposal cannot comply with the controls nor any environmental planning ground that would support a variation under cl 4.6 of the LEP. Lot size and width also determines whether one can achieve an appropriate FSR on the site as setbacks and the like can have an influence. The 12.19m site width is a constraint in this regard. 12. Mr Turrisi says the LEP and DCP controls reinforce the DFC rather than the existing buildings in the area and the proposal fails to meet those controls. 13. In relation to the height of the proposed building the experts, whilst agreeing that the variation is minor, disagree on the impacts of the proposal on views. 14. Mr Rowan says the prevailing character of RFB development in the locality is 3-4 storeys on both Ramsgate Avenue and Brighton Boulevarde as envisaged by Part E of the DCP. In any event, the height of the development will appear lower than, or equal to, Nos 152 and 156 Ramsgate Avenue as it presents to both street frontages given that it is lower than the ridge height of the existing building and the western portion of the building is lower overall. The breach of the height standard is only minor in the centre of the building being a maximum height of 9.98m – 10.12m. 15. Mr Turrisi says the building height control under the LEP is 9.5m which equates to 3 storeys and, excluding the basement car park level, the proposal is 4 storeys in height. Both adjoining building No 152 and 156 Ramsgate Avenue are 3 storeys, plus a pitched roof, similar to the existing building on the site. He acknowledges the proposal has a numerical reduction in height compared to the existing building however says that building has a pitched roof and thus the maximum height runs along the ridge with the walls along the side boundaries being at a lower height. This proposal provides a flat roof with the side boundary walls, to the upper level, being stepped from the side boundaries. 16. Mr Turrisi says that although the step to the upper level will improve some view corridors from surrounding properties, there are still areas, be it minor, created by the upper level that remove views. The biggest impact is created by the additional built form towards Brighton Boulevard. A new building should be compatible with the height, bulk and scale of the DFC and it is the height control, together with the FSR control that determine this compatibility. He cites No 158-160 Ramsgate Avenue which is two storeys to Brighton Boulevard and three to Ramsgate Avenue and says it aligns with the outcomes of the controls including compliant setbacks. 17. The reduced floor to ceiling height for the living areas to the upper floor breach the ADG controls, varying from 2.1m to 2.6m, a product of squeezing development on the site. The DCP reinforces the height controls and states that a fourth storey may be permitted. It is not an automatic right and it does not preclude the need to comply with the RSR control. All the controls determine the DFC. 18. Contention 3 addresses setbacks and separation. 19. Mr Rowan says that maintaining the existing side setbacks is desirable regarding the existing character of the area, the rear setback is fully compliant with Part C of the DCP, being consistent with the predominant building line and, applying Part E, No 158-160 is one of the two adjoining buildings located south of the subject site, it being closer to Brighton Boulevard than the existing building and No 156 Bay St is on the other side of the land. The rear setback of No 158-160 is the same as the proposed and thus compliant. The proposal provides more than twice the level of deep soil landscaping required by the ADG and the design, location and levels of balconies addressed overlooking. 20. Mr Turrisi says that no regard to existing setbacks should be given as the building will be demolished. Inadequate details of treatment of kitchen windows and balconies along the southern boundary are provided. The built form towards Brighton Boulevard is forward of the existing building yet still relies on the non-compliant setbacks. This element results in additional overshadowing to the south, as well as view loss. 21. In regard to solar access Mr Rowan says there is no overshadowing to habitable windows or open space cast by elements of the development about the 9.5m height control. The setbacks at the upper level of the development facing south and No 156 are greater than currently exists. Whilst there are minor differences to winter sunlight there is an overall improvement to the amenity of the building. 22. Mr Turrisi says that because of the non-compliance with the building height and FSR controls, which work together, any increase in overshadowing onto the adjoining property is unreasonable and unnecessary. He acknowledges the adjoining development will receive solar access through its western and eastern elevations to the living rooms and, as a single issue, can be considered a minor impact, however the additional overshadowing is created by other no-compliant aspects of the proposal against various planning controls and therefore there is no justification to diminish solar access. 23. The amenity of two apartments, No 2, the lower level, eastern apartment and the upper living areas to No 5 are not agreed. 24. Mr Rowan says that despite the non-compliance with the minimum ceiling height to Apartment 6 the amenity is acceptable as it satisfies objective 4C-1 of the ADG. He cites the following reasons: * The accommodation on this level has no neighbour apartment, such that there are windows on all 4 elevation of the living areas therein; * The footprint area of the accommodation is about 17m in length, being a width of about 5m for the dining area, and 6 x 4.3m for the main living area, thus being generous in proportion for a single dwelling; * The numerous windows provide an expansive outlook, options for natural ventilation and extensive daylight access; * The variation of 100mm to the main living area will not be discernible and is above the window head and will not restrict either daylight nor natural ventilation; and * The bulkhead, at a lower height, is above the window head and will not restrict either daylight or natural ventilation. 1. He says the height of 2.1m is for a small section which forms part of the upper level circulation. 2. Mr Turrisi says the floor to ceiling height conflicts with the ADG requirement and is simply created due to the applicant trying to minimise the height breach and is a reflection of the breach to the FSR control. He says that spatial planning of units plays an important role from an amenity perspective and having a low ceiling in the area of circulation is not appropriate. 3. Unit 2 is a two level unit at the lowest apartment level and is constructed in the area above that excavated for the basement car parking area. The lower level of that apartment comprises two bedrooms, bathroom and open study/media area. 4. Mr Rowan says the lower level is a secondary space in the main except for the bedrooms. The bedrooms are provided with full height and width doors to the external courtyard maximising daylight. He says the available light to those bedrooms would be similar to rooms in a dwelling house that adjoins a two storey dwelling house as in that circumstance, a wall of similar height to the excavation would be located around 1.8m from the windows with a fence intervening the setback. A slightly greater setback from the retaining wall is available to the bedroom windows with landscaping softening the appearance of the retaining walls. 5. Mr Turrisi says the amount of excavation has resulted in floor area being sunken into the site. Unit 2 relies on a lightwell/courtyard as its primary light, contrary to ADG requirements which state that light wells should not be used as the primary air source to habitable rooms. He says the design is not appropriate from an amenity perspective and has not taken into account the topography of the site. 6. The experts addressed view impacts as part of their consideration of the FSR contention discussed above. Mr Rowan says any impacts are minor and acceptable and will actually result in an improvement to existing views from No 146 Brighton Boulevard with the reduction in building height to the front of the site. Thus, there is no necessity for further reductions. 7. Mr Turrisi says the proposal does remove views, be it minor and is a direct result in the applicant seeking variations to the FSR and height controls amongst others. He sees no planning justification to remove any available views given the breaches to the FSR and Height controls contained in the LEP. Although the design in part improves view corridors, due to an alternative building form on site, it does remove views along Bay Street, towards the land/sea interface of Bondi Beach. Because that change is the result of a breach in FSR, the impact is unreasonable with a compliant building in terms of FSR and height not creating these impacts. 8. The contention relating to excavation goes to the extent of excavation and in particular the failure to maintain a 1.5m setback to the boundaries of the site and the additional visual bulk and scale to the development generated by the creation of floor area within a subterranean environment. The proposal is to excavate to both side boundaries and 6m from the rear boundary with Brighton Boulevarde. 9. Mr Rowan says the geotechnical report does not raise concerns with the excavations, or risk of impact upon neighbouring properties and observes the site is primarily sandstone, minimising the risk of instability. He says that visual bulk is not a matter relevant to excavation however states the ground floor level of Apartment 2 does not add to the height of the building. The rising roadway and footway adjacent screen this element of the development in any event. As agreed, the floor space arises from void space created with the excavation of the land for the basement car park and the provision of accommodation in the void space created does not reduce the level of excavation required for the basement car park. 10. Mr Turrisi says the amount of excavation results in additional visual bulk and scale due to the provision of additional floor space within a subterranean environment. The building, due to this excavation, will read as 4 storeys given partly to the palisade fence which will allow views into the site from the immediate public domain. It is another example of a non-compliance with a control that demonstrates the applicant is providing far too much floor space on this site. 11. The extent of excavation to the boundary is contrary to the DCP provisions that require a 1.5m setback with basement car parks to be contained within the building footprint. Given the narrowness of the site and the provision of the basement, he says nothing would prevent the backfilling of the side setbacks to meet the purpose of the control. The 4.6 objections 1. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted. The Applicant relies on these provisions as the proposed development does not meet the development standards for building height and FSR. Two written requests have been prepared by Mr Rowan for the Applicant. 2. Clause 4.6 is in the following form: 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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary 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 Secretary before granting concurrence… 1. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and the fourth, that 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. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required. 2. Preston CJ has provided guidance on the application of clause 4.6, most recently in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action). A number of preconditions are identified, the first, in cl 4.6(4)(a), is that the consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii). 3. These two matters are summarised at [15] and [23] of that decision as follows: "15. The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters. As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act." 1. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) Preston CJ sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are: "(1) the objectives of the development standard are achieved notwithstanding non-compliance with the standard; (2) the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary; (3) the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; (4) the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consent departing from the standard; (5) the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land." 1. The written requests consider all of the provisions. Height of Buildings 1. The objectives of the development standard are: "(a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, (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 desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space." 1. In his written request, (Exhibit G) Mr Rowan considers the first test in Wehbe and says that objectives (a) and (d) are relevant to the application and are achieved. The development will preserve the environmental amenity of neighbouring properties and public space (in the Bay Street road reserve to the north-east). The development retains an acceptable level of solar access to the living rooms and open spaces of No 156 Ramsgate Avenue. There are increased opportunities for winter sunlight for facing windows in No 156, particularly with the setting back of the upper storey awning overhang. In addition, the wall height of the development facing No 156 is still lower in height than that as existing, reducing the bulk of the development. 2. He has undertaken a comprehensive view analysis and concludes that all properties and public domain locations that have a view to the ocean and/or beach, will still have views to those localities. The development will have a neutral to beneficial effect upon No 146 Brighton Boulevarde, the main accommodation will not be subject to impact. There will be a minor increase to existing views from all levels which represents an appropriate approach towards view sharing for that property. Mr Rowan says that this demonstrates that the environmental amenity of that property is preserved with no evident impact upon its available views. 3. Whilst view loss is not discernible, there are increased opportunities to provide improved views with the lowered roof below that as existing. The scale of development that would result from a compliant development would not be typical of the DFC. The proposed height of building remains generally with the envelope of the existing. 4. Mr Rowan then considers the compatibility of the proposal with the height, bulk and scale of the DFC as described in the DCP for the Ben Buckler Special Character Area concluding the buildings are compatible with the height, bulk and scale of the DFC because the character provisions include consideration of those matters. No assessment was made against the Ramsgate Avenue East character area DFC, those controls in Part E2 taking precedence over other controls in the DCP where a conflict occurs. 5. In relation to the second test in Wehbe, Mr Rowan says the proposal will be lower in height than that as existing. The majority, if not all of the neighbouring buildings in the Special Character Area (SCA) appear to exceed the 9.5m standard. The scale of development that would result from a compliant development would not be typical of the DFC of the SCA. The proposed height of building remains generally within the envelope of that as existing, with bulk placed partially below ground, and generally within the envelope of the existing roof form. 6. The third way is also addressed with Mr Rowan saying the existing building has a height greater than permitted under clause 4.3 and the resultant development that would arise if compliance were required would result in a development that did not satisfy the DFC objectives of the Ben Buckler SCA. 7. Whilst not arguing the development standard has been abandoned, Mr Rowan says that the majority, if not all of the neighbouring buildings in the SCA appear to exceed the permitted 9.5m, which primarily result from the character of development being achieved under provisions that existed prior to the commencement of the LEP. Development since that time in the character area has responded to the DFC objectives, achieving a scale of development that generally is approved in excess of the standard. 8. Mr Rowan does not argue the fifth test is applicable and says the R3 zoning is appropriate. 9. The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 10. The written request concludes there are sufficient environmental planning grounds for the development to contravene the development standard. The development is generally incorporated within the envelope of the existing building, with an additional height 0.47m above that as proposed. The existing building has a hipped roof. The subject development proposes excavation below the footprint of the existing building envelope to accommodate additional floor space; and also to introduce a further storey generally with the rear volume envelope of the existing hipped roof. There is a reduction in building mass at the front of the development with those portions of the envelope being allocated to terrace outdoor open space for each apartment (where currently there is none for the existing building). 11. Likewise, the characteristic form of development in the SCA comprises development of a scale comparable to that as existing. thus, the proposed height of built form generally within the roof envelope does not offend that desired character. The development proposes the redistribution of built form within the site. 12. The proposed amenity of the development is considered to be of a high standard. Each of the dwellings within the development is of an appropriate size, with outdoor space directly accessible from the living area; and with adequate winter sunlight. Adequate provision is made for car, motorbike and cycle parking within the development. 13. The development will satisfy the objects of the EP& A Act. In particular, it will promote the orderly and economic use and development of land by achieving a development satisfying the DFC of the locality without adverse impact upon neighbouring land or the locality. 14. The development promotes the delivery and maintenance of affordable housing through the identified provision of contributions for the provision/maintenance of affordable housing through payment of funds to offset the demolition of the existing building. 15. Compared to the existing building, and the apartments therein, the development promotes good design and amenity of the built environment, being of a contemporary nature with a high standard accommodation and adding to the diversity of housing stock within the locality. 16. The development will satisfy the aims of the LEP. In particular, the development will: provide and therefore promote, additional residential development, assisting the Council to meet its local housing targets under the District Plan; represent a form of development that reflects the density of existing development in the locality and changing housing types to meet modern housing needs. Floor space ratio 1. The second written request addresses the exceedance of the FSR development standard. The maximum permitted under cl 4.4 is 0.6:1 and, according to the differing position of the parties, the proposed FSR is either 1.16:1 or 1.178:1. 2. The objectives of the FSR development standard are: (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. 1. The objectives are similar to those for the height of building development standard however do not require consideration of view loss/sharing. 2. The written request follows similar considerations to those matters raised in the request relating to height of buildings including an assessment against the DFC provisions for the Ben Buckler SCA and also relies on the same view assessment, drawing similar conclusions that the objectives are met. Given the responses to those issues are similar, I do not intend to repeat the matters raised. 3. Suffice to say the conclusion reached by Mr Rowan is that compliance with the development standard is unreasonable and unnecessary as the objectives of the standard are met. 4. Mr Rowan, having regard to the second test in Wehbe, says the existing building has a FSR of 0.79:1, greater than permitted under cl 4.4. The resultant development that would arise if compliance were required would result in a development that did not satisfy the objectives of the Ben Buckler SCA. The proposed FSR remains generally within the envelope of that as existing, with additional floor space achieved partially below ground, and within the envelope of the existing roof form. 5. Identical findings are made in regard to the fourth test, that is that the majority of buildings appear to exceed the permitted 0.6:1 FSR so as to achieve the former planning controls with development since that time responding to the DFC objectives, achieving a scale of development that generally is approved in excess of the standard. 6. Again, having regard to the fifth test, there is no suggestion that the R3 zoning is inappropriate. 7. The environmental planning grounds given again similar to those advanced in relation to the building height development standard and argue the development is generally incorporated within the envelope of the existing building, which has an existing density of 0.79:1 FSR and a hipped roof. The subject development proposes excavation below the footprint of the existing building envelope to accommodate additional floor space; and also to introduce a further storey generally with the volume envelope of the existing hipped roof. The excavation proposed at the rear of the site arises from the provision of a lower level basement for parking. The floor space below ground at the rear is situated over the basement car park, and is below the existing building envelope, thus creating a void area between existing ground level and the top of the basement car park. There is a reduction in building mass at the front of the development, with those portions of the envelope being allocated to terrace outdoor open space for each apartment. 8. Likewise, the characteristic form of development in the SCA comprises development of a scale comparable to that as existing. Thus, the placement of floor space within the roof envelope does not offend the desired character. The development proposes the redistribution of built form within the site. 9. The remainder of the request follows that detailed at [87-01] above. Conclusion and findings 1. For consent to the granted firstly, I must be satisfied that the Applicant's written requests seeking to justify the contravention of the development standards has adequately addressed the matters required to be demonstrated by cl 4.6(3). 2. I am not satisfied that this has occurred. The written requests, rather than focussing on that element of the development that exceeds those development standards, relies on a comparison with the existing building. I do not consider that this can satisfactorily demonstrate that sufficient environmental planning grounds exist but rather, the request should consider the objectives of the control and how those objectives are achieved taking into account the design of the new building without high reliance and regard to the existing building. Whilst I accept that the existing building forms part of the character of the area, the proposal adds considerable bulk and scale to that building and the impacts of the proposed development do not preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. 3. That is because, particularly through the maintenance of the existing setbacks, the solar access enjoyed by the adjoining property to the south is not preserved. I accept that there will be some improvement to parts of the building but there is also loss of access to sunlight. This issue has been considered by the Court on a number of occasions and I follow O'Neill C in Bouchard v Waverley Council [2019] NSWLEC 1449 where at [48] she states: "48. The absence of amenity impacts, or the minimisation of amenity impacts (depending on the wording of the objective) is one way of demonstrating consistency with an objective related to preserving or minimising amenity impacts or environmental harm (Initial Action at [58] and Randwick City Council v Micaul Holdings Pty Ltd (2016 225 LGERA 94; [2016] NSWLEC 7 at [34]). I am not satisfied, however, that the proposal has in fact achieved the preservation of the environmental amenity of neighbouring properties because the proposal results in minor amenity impacts. Although these minor impacts may not have been determinative in a merits assessment of the proposal had it complied with the development standards, they demonstrate that the non-compliant aspect of the proposal has not achieved the threshold set by the objectives for a breach of the development standard." 1. The fact that much of the additional floor space is below ground does not in this case justify variation to the FSR development standard. The additional building bulk will be discernible in the streetscape and is not compatible with the bulk, scale, streetscape and desired future character of the locality. Those controls envisage a much smaller building with increased setbacks, retained amenity to adjoining properties and an appropriate correlation between maximum building heights and density controls. The proposal does not demonstrate that these considerations have been achieved or that there are any environmental planning grounds that justify variation to the development standards. 2. The applicant's justification that the proposal is generally incorporated within the envelope of the existing building, a building that already exceeds the development standards, is not a justification to exceed those standards. I do not accept that the scale of the building will be comparable to that existing. It will be considerably larger and the additional bulk will be obvious, particularly when viewed from Ramsgate Avenue. It is that bulk in particular that leads to loss of amenity to adjoining properties. 3. The extent of excavation of the site is not compatible with the character of the area. That character is of buildings that step down the site reflecting the topography. The Council's controls reinforce that pattern through limiting excavation and discouraging subterranean apartments. 4. The focus of both written requests is only on the character statement for the Ben Buckler SCA. No consideration of the Ramsgate East SCA has been given nor, specific reference to the controls in the DCP that also inform that character. It is clear from the evidence that the existing building is not consistent with that DFC and the request does not justify variation to the development standards by having regard to those provisions. 5. The remaining arguments of environmental planning grounds, being the development provides a high standard of amenity, the dwellings are of an appropriate size, the outdoor space is directly accessible from living area and have adequate winter sun, and adequate provision is made for parking are not reasons that justify the contravention of development standards but would be expected in any new building designed to meet the planning controls and provisions of SEPP 65 and the ADG. This merely promotes the design of the development. It is a justification that could be applied to any new building within the precinct and it does not explain why the non-compliance with the height of buildings and FSR development standards is warranted. 6. For these reasons, I am not satisfied that the written request has adequately addressed whether there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the application must fail. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA-135/2018 for the demolition of an existing three storey residential flat building and the construction of a new four-storey residential flat building (RFB) containing five units with basement car parking on land known as 154 Ramsgate Avenue, North Bondi is refused consent. 3. The exhibits, other than Exhibits A and 1, are returned. ……………………. S Morris Acting 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. Decision last updated: 24 January 2020