Double Bay Residents’ Association Inc
P.O. Box 1684, Double Bay NSW 1360
Tel: 0413 888 685 Email: dbrassoc@gmail.com


The General Manager,
Woollahra Municipal Council,
PO Box 61,
Double Bay NSW 1360
16 March 2018

Dear Sir,

DA 33/2018/1     21-27 Bay Street, Double Bay

We have examined the drawings and reports filed in support of the above 6 storey mixed development.

Our Association and its members oppose the grant of consent to this DA. If approved it would create a gross overdevelopment in breach of Council’s LEP 2014 development standards and the fine-grained set of controls in its DCP 2015. It would be out of keeping with the scale of development in Bay Street (South) and the adjoining run of DCP-identified character buildings to the immediate north.

The principal grounds on which we say this DA should be refused are (following the sequence of s 79C):

1(a) Excessive height;

1(b) The clause 4.6 objection to compliance with the LEP’s height standard must be dismissed;

2(a) Excessive bulk/FSR;

2(b) The clause 4.6 objection to compliance with the LEP’s FSR standard must be dismissed;

3       Breaches of the storey, envelope, setback and other controls in the Woollahra DCP 2015;

4       Breaches of SEPP 65 and the Apartment Design Guide;

5       Overshadowing impacts;

6      A traffic issue;

7       Failure to comply with the mandatory requirements of cl 6.1 of the Woollahra LEP (Acid

         Sulphate Soils Management Plan) and cl 7 of SEPP 55 (Contamination);

We shall deal with each of these in the sections below.

1 (a)  Excessive height

Under clause 4.3 of the Woollahra LEP and its accompanying Height Map the maximum permitted height is 14.7m for this site. Measured in accordance with the LEP (from average existing ground level of approx. RL 4.42 as per DA 2400(A) to the top of the building at RL 27.3) we make the height of the building 22.8m or 56% in excess of the maximum height allowable. (We note the developer’s consultant claims a slightly lower height of “around 21.6m” ( SEE 6.1.5) but even if that were correct it would still be a staggering 47% over the standard.)

Being some 8 metres in excess of the maximum height allowed it follows that the consent authority has no power to approve it absent a successful objection under clause 4.6 of the LEP.

 

1(b) The clause 4.6 objection to compliance with the LEP’s Height standard must be dismissed

The recent Land & Environment Court decision in Four2Five P/L v Ashfield Council (2015) NSWLEC 90 has established that on a cl 4.6 objection the applicant has to prove that:

  • Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (the old SEPP 1 test to which Wehbe is applicable);

and in addition that

  • There are sufficient environmental planning grounds to justify contravening the development standard; and
  • 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 (cl.4.1(4)(a)(ii)).

The developer’s consultant has chosen to mount its case partly and briefly on the argument dealing with (a) above that the LEP’s height standard has been abandoned. He refers to two consents granted in Cross Street. With respect exceptions granted to those two sites, against staff advice, do not amount to an abandonment when there are of the order of a hundred properties in the Centre the subject of that height standard. Two swallows do not a summer make.

It also refers quite incorrectly to a planning proposal for Kiaora Lane and Cross Street carpark. As far as we know there are no planning proposals for Kiaora Lane which has for its main part, the Woolworths building and carpark a much lower maximum height of 13m, and neither is there one for the Cross Street carpark. In any event a separate planning proposal could not amount to an abandonment of the Centre’s height standard.

Similarly irrelevant to this issue is the Double Bay Economic Feasibility Study. The consent authority should know that that study was met by a wave of hostility culminating in this Association presenting to Council a petition signed by 410 Double Bay residents and some 70 residents of surrounding suburbs opposing any increases in the LEP height and bulk controls. The community consultation subsequently promised by Council has yet to take place.

Another irrelevance repeatedly raised in the Applicant’s cl 4.6 objection and elsewhere is the claim that anything less than 6 storeys would not be economic. Not only is there no evidence to support this tired old argument of every developer pleading to be allowed an over-development, but it is not a stated issue either under the objectives of the height standard in the Woollahra LEP nor more broadly under s 79C. We note that the successful development of the Bayside Apartments opposite in Bay Street was achieved a few years ago complying with the then slightly lower height standard.

Does the development achieve the objectives of the height standard notwithstanding the non-compliance?

We say it fails a number of those objectives and any one failure is fatal to the application.

“(a) to establish building heights that are consistent with the desired future character of the neighbourhood.”

The “desired future character of the neighbourhood” is exclusively set out in the cognate DCP’s statement of that desired future character – and it is impermissible for the developer to try and bring in irrelevancies such as other consents granted and the Double Bay Economic Feasibility Study.

The “desired future character” of Bay Street South is set out at D5.4.4 in the DCP. The development is at odds with it in almost every respect – with the retention of the “existing modest, lot related building widths and retail frontage (“(a)”); it does not “provide setbacks at ground level that can be used  for outdoor eating or public circulation” (“(b)”) or match with the character buildings to the immediate north (successively no 29-33, 35 and 37 Bay Street) which are to be “retained”(“(c)”). Its height and setbacks are totally inconsistent with the 4 storey structure shown in Fig 15. A particular discordance is in its negligible setback from the Bay Street boundary compared to the generous setbacks provided by adjoining buildings including the identified “character buildings”.

D 5.4.11 sets out the “desired future character” of Gumtree Lane. The development completely fails to comply with that stated character:

“Retain the two storey built form and 2m setback on the west side.”

This development provides five storeys on Gumtree Lane and nil setback. The proposal is hopelessly inconsistent with the built form diagram forming part of the “desired future character” in 5.4.11.

“(b) to establish a transition in scale between zones to protect local amenity.”

It should be borne in mind that in the whole of Bay Street from its southern end to the northern end of the Centre there are only two buildings exceeding four storeys in height with two storeys the prevailing height on this side of Bay Street. The Cosmopolitan Apartments are said to be six storeys which, whilst literally true, is misleading because two of the upper floors are parking floors of barely 2m in height whilst the residential floors have limited ceiling heights of 2.1 to 2.3m. In height the building is five storeys. The other building is The Chancellor (38, Bay Street), which presents as four storeys since the top/fifth floor is so deeply set back that it can hardly be seen from the opposite sides of either Bay Street or Cross Street.

 The surrounding residential zones along New South Head Road, Cooper Street, and Henrietta Street have a three storey height limit under the LEP and the prevailing height of development is 2/3 storey.

The point is that this property being located on the western edge of the Centre it is all the more important that it observes the transitionary principle. In flagrant disregard of this objective 6 storeys are proposed.  They will appear, if built, utterly discordant with Bay Street and particularly the 2 storey neighbours on the same side of the street including the “character buildings” 29-33, 35 and 37 Bay Street to the immediate north. The building will present as a 6 storey structure totally out of keeping with its setting.

“(c) to minimize the loss of solar access to existing buildings and open space.”

The shadow diagrams provided are notable only for their paucity – only providing for 9am, noon and 3pm. What they show is that from the four buildings to the south on the eastern side of Bay St to approximately half way across the carriageway is overshadowed in the morning. By noon Gumtree Lane is wholly overshadowed with shadows extending to buildings on the eastern side of the lane. By 3pm the overshadowing extends to put those buildings wholly in shadow. Patently it fails to achieve the objective of the standard.

In contrast a building complying with the height standard would achieve this objective.

“(d) to minimize the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion.”

The addition of the extra two upper floors affect four categories of properties. Firstly, it will affect easterly district views from the properties opposite across Bay St such as the 4 storey 4-10 Bay St and 18 Bay St. Secondly, it will affect the reasonable anticipation on their redevelopment that the run of properties to the south on the same side of Bay St would have, since the ground level slowly rises to New South Head Rd, of harbour views across the top of 4 storeys only on this site. Thirdly, it will block NE harbour views from near neighbours such as Overthorpe and Bibaringa on the uphill, southern side of New South Head Road. Fourthly, it will block NE harbour views from a host of properties located on the ampitheatre formed by the slopes of Edgecliff and Woollahra.

Likewise the impermissible upper two floors will affect the privacy of neighbouring properties in Bay St (both sides) and Gumtree Lane (both sides). Absent these two floors the invasion of privacy would be much less.

As to overshadowing we repeat our comments under (c) above.

As to visual intrusion these upper two floors will be visually intrusive to neighbours on both sides of Bay St and Gumtree Lane, such intrusiveness being worsened by the limited setback whereas a complying building would achieve the aim of minimizing such intrusiveness.

Accordingly, the non-complying height fails to achieve the objective (d) of the standard.

It follows that the non-complying height having failed each of objectives (a), (b), (c) and (d) of the height standard the objection to compliance with that standard must be rejected.

There are no sufficient environmental planning grounds to justify contravention of the height standard – cl 4.6 (3)(b). The only matter prayed in aid is the same alleged and unproven lack of economic viability. That is not an environmental planning ground (see Four2Five supra).

As it is inconsistent with the objectives of the height standard in the ways identified above and with the objective of the B2 zone which requires compatibility with the amenity of the surrounding residential area it similarly fails cl 4.6 (4)(a)(ii).

 

2(a)   Excessive bulk/FSR

Under clause 4.4 of the Woollahra LEP the maximum FSR allowed is 2.5:1.

We note that the FSR as asserted by the Applicant is 3.6:1 or 44% in excess of the FSR standard’s maximum.

We will have to defer to Council’s staff on the issue of correct calculation of the building area and FSR.

It follows that, absent a successful written objection to compliance with the FSR standard under cl 4.6 the consent authority has no power to consent to the application. For reasons which follow we say that the cl 4.6 objection must be dismissed.

 

2(b)  The clause 4.6 objection to compliance with the LEP’s FSR standard must be dismissed

Before addressing the particular heads of consideration under cl 4.6 we would point to two features of this proposal which contribute to its apparent bulk. The first we have dealt with and that is the fact that its 5th and 6th storeys breach the height standard and ipso facto contribute to the bulk and FSR. However the other element which hugely contributes to the apparent bulk of the building is its lack of the setbacks required by the fine-grained envelope and setback controls in the DCP. By use of two substantial inner lightwells the facades of the building are pushed out towards both Bay St and Gumtree Lane, greatly increasing the apparent bulk.

As for the applicant’s somewhat token attempt to argue that the FSR standard has been abandoned, we repeat what we said in answer to the same claim in relation to the height standard. (See p2 above)

Is the objective of the FSR standard achieved notwithstanding the non-compliance?

The objective is:

“ to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale”.

We set out in detail the desired future character of both Bay St South and Gumtree Lane when dealing with the first objective of the height standard – see under “(a)” on page 3 above. We repeat what we said there. The proposal is seriously incompatible in bulk with the character of Bay St South  set out in the DCP as there quoted, and outrageously incompatible with the DCP’s statement of the desired future character of Gumtree Lane. Where a four storey building is indicated, they provide six. Where two storeys is indicated they provide a mix of five and six. Where substantial setbacks are required they are not provided. In bulk terms a building less in harmony with its neighbours on the east side of Bay St is hard to imagine. Most particularly is it discordant with the DCP “character buildings” of 29, 33 and 35-37 Bay Street which the DCP seeks be retained.

Accordingly, the applicant fails to satisfy the test under cl 4.6(3)(a) of proving that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case since it does not fulfil the objective of the standard as explained above. Under cl 4.3 (3)(b) (which under Four2Five is anyway an additional, not alternative, requirement) there are no sufficient planning grounds to justify the contravention since the accommodation provided could be provided in any complying development of other sites in the street (see Four2Five at para 7 quoting para 60 of the Commissioner’s judgment below).

 

3   Breaches of the storey, envelope, setback and other controls in the Woollahra DCP

In short we note the following breaches of the Woollahra DCP 2015:

  • It grossly breaches the 4 storey (14.7m) maximum in the built form envelopes – see

       D5.4.4, 5.4.11, 5.5.4, 5.6.3.1/5.6.3.2 and 5.5.9;

  • The eastern half of the development, instead of being restricted to 2 storeys on Gumtree Lane with a set back from the Lane of 6m  to the third and fourth levels, has the first four upper levels with nil setback to the Lane and the top floor with only a 3m setback from the Lane. It is a gross breach of D5.4.11, 5.5.4 and 5.5.9.
  • In breach of D5.4.4 and 5.5.9 there is a total failure to set back the third and fourth levels of the building fronting Bay Street by the mandatory 3.5m. They are not set back at all.
  • In breach of D5.4.11 and D5.5.9, the first two upper floors are not set back from Gumtree Lane by the required 2m. Instead they are not set back at all. The two floors above those two floors are not set back by the required 6m – they also are not set back at all. The fifth and sixth levels are of course not comprehended by the setback controls being rendered impermissible by the height and envelope controls (see above).
  • In breach of D5.6.3.8 Control C1 the proposal is not compatible in any way with the immediately adjoining listed “character buildings” being 29-33, 35 and 37 Bay Street. These are fine two storey terrace buildings which add so much to the character and appeal of Bay Street. This 6 storey proposal with its lack of setback will appear totally incongruous alongside these properties with their generous setbacks and two storey height.
  • With dire consequences for future privacy (visual and acoustic), visual oppressiveness and overshadowing it fails to provide the minimum separations across Gumtree Lane under D5.6.5. This is also dealt with below as a breach of the ADG.
  • The failure to comply with the control drawings identified above in section D5.5 and the consequent overshadowing caused is also a breach of D5.6.6.1 Control C2.

The Applicant’s plans treat the DCP with its coherent fine grain controls with contempt.

4   Breaches of SEPP 65 and the Apartment Design Guide (“ADG”)

We have not attempted an exhaustive assessment of the proposed development’s compliance with the ADG. We do however raise the following issues which greatly concern us, stating first in italics the applicable ADG design criteria and then the perceived non-compliance. It should be remembered that this is a state-wide guide applying to the humblest apartment block in Liverpool or Campbelltown:

  • Communal open space is provided having a minimum area of 25% of the site area – 3D1 design criteria 1. It would appear to us that there is no communal open space provided since access to the two lightwells at first upper floor level is shown as “Maintenance Access Only”. Indeed, if this space were intended as communal open space, at 84m2 it would be far less than the minimum required and trigger other non-compliances with the ADG.
  • Deep soil zones to be provided to a minimum of 7% of the site area – 3E1 DC1. It is unclear whether the bases to the two lightwells are “deep soil zones”.
  • Minimum separation distances to the rear boundary for habitable rooms and balconies -3F1 DC1:

       Up to 4 storeys          6m

5 to 8 storeys             9m

The attempt of the Applicant’s consultant to rewrite this standard as if it read to the centre line of Gumtree Lane is to be deplored. The dimension is expressly to the “boundary” and here the non-compliances are appalling. There is no setback on the Lane at all to the first four upper residential floors and a puny 3m to the top level where, as with the level below, the ADG requires 9m. The applicant seeks to excuse this on the basis of the limited number of windows on the far side of the Lane. However, the ADG should be applied because of course the properties opposite may be redeveloped and the privacy of apartments in such redevelopment compromised by these severe non-compliances.

  • Communal open space and common areas should be separated from windows to apartments, particularly habitable room windows – 3F2 DC1. We refer again to the light wells at first floor level and above. This would appear to be a common area and has the unfortunate consequence that habitable rooms on each side of the space look into each other. Although planting is shown to the area the Land and Environment Court has often commented on the limitations of landscaping when it comes to privacy protection.
  • Separation distances – habitable room to habitable room – F2. We repeat comments made in the last bullet point about habitable rooms looking into one another across this slender space.
  • Natural ventilation -All habitable rooms are naturally ventilated – 4B1, 4B2 and DG. Clearly, as is conceded, Apartments 104, 204 and 304 are not cross ventilated. However, we would query whether most of the rest of the apartments are really naturally cross ventilated as required by these provisions. Objective 4B-1 provides that: “Light wells are not the primary air source for habitable ventilation”. Whilst it might be argued that these many units have street fronting windows as their “primary” air source, we would point out that so many of these units have habitable rooms having the light well as their primary source with only indirect and lengthy distances to street or lane fronting windows.
  • Sustainability issues 4V1 and 4V2. Contrary to these ADG objectives we can find no provision for the collection, storage and re-use of rainwater on site nor any treatment before it is discharged to receiving waters.

 

5    Overshadowing issues

We repeat what have said about these issues under the italicised sub-heading for objective (c) of the height standard on page 4 above.

 

6    A traffic issue

We note there are to be 38 car parking spaces provided (24 residential, 5 visitor and 8 retail with a car wash bay).

There are to be 331m2 of retail space, with 23 apartments on the floors above ground floor (3 x 1 bedroom, 10 x 2 bedroom and 10 x 3 bedroom).

We do have a real concern about adding this volume of traffic at the entrance to Gumtree Lane, which is opposite the intersection of Manning Road and New South Head Road. Particularly since the opening of the Woolworths carpark in the Kiaora Lane complex with its access off Manning Road via Patterson Street, we have observed that at this point of NSH Road there are very often more cars waiting at the intersection to turn right into Manning Road than can fit into the right turn bay. The result of this is that cars are halted in the adjoining lane waiting to get into that right turn bay. Cars are going at speed down the hill and because of the phenomenon we have just described are forced to swerve into the left lane on NSH Road in order to avoid the said cars temporarily blocking the right-hand lane. Out of p.m. peak hour times are little better than other hours of the day because although the queue might not be so long to turn right there are still cars in the centre lane stopped to get into the right turn lane and there are cars parked in the available left lane a few metres past the Gumtree Lane intersection.

The prospect of adding 38 vehicles trying to turn left at this dangerous point fills us with concern. Whilst we recognize that the redevelopment should provide off-street parking, this is yet another reason why the developer should be required to comply with height and FSR standards and the setback and other controls we have addressed earlier. Less accommodation will mean less cars generated. In that dangerous existing traffic situation the less cars slowing at that point to turn left into Gumtree Lane the better.

 

7   Failure to comply with the mandatory requirements of cl 6.1 of the Woollahra LEP (Acid Sulphate Soils Management Plan) and cl 7 of SEPP 55 (Contamination)

 

This site is within Class 2 of land affected by cl 6.1 of the Woollahra LEP (Acid Sulphate Soils). Consent thereunder is required for any works involving excavation below natural ground surface.

Cl.6.1(3) of the LEP provides that:

“Development consent must not be granted under this clause for the carrying out of works unless an acid sulphate soils management plan has been prepared for the proposed works in accordance with the Acid Sulphate Soils Manual and has been provided to the consent authority.”

We have studied the Geotechnical report by JK filed with the application as per Council’s website but that report does not even discuss the presence (or possible presence) of acid sulphate soils (“ASS”) within the site, let alone provide an acid sulphate soils management plan as required by clause 6.1(3).

The only reference we can find is in 6.1.5 of the SEE where it is stated with reference to ASS: ”The Preliminary Site Investigation will be undertaken and consider this issue”.

Likewise, the JK report does not discuss the issue of possible contamination of the soil within the meaning of SEPP 55.

Cl 7 of SEPP 55 is in not dissimilar terms to cl 6.1. It provides:

“Contamination and remediation to be considered in determining development application

  • A consent authority must not consent to the carrying out of any development on land unless:
  • It has considered whether the land is contaminated and
  • If the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose which development is proposed to be carried out, and
  • If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

  

  • Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.”

At the time of debate over the earlier DA’s for 16-18 and 20-26 Cross St, this Association obtained and supplied to Council the advice of Peter McEwen SC (copy annexed as annexure “A”). His advice was to the effect that Council could not leave the need for an acid sulphate soils management plan (and the equivalent contaminated soils report under cl 7 of SEPP 55) to be dealt with by some sort of deferred commencement condition. The Applicant is effectively asking the consent authority to deal with the matter in this impermissible way by its suggestion in the SEE that this will be looked at in some future investigation. Mr McEwen goes on to say that without the requisite management plan and report any purported consent granted would be invalid.

When this silk’s advice was tendered to Council the Council sought advice from Lindsay Taylor, solicitor, who in substance agreed with Mr McEwen’s advice.

Accordingly, assuming that all the Applicant’s documents are as appearing on Council’s DA tracking website, we say that the requisite plan and consideration has not been provided by the Applicant and the consent authority has no power to approve this DA.

 

Conclusion

This Association accordingly urges the consent authority to refuse this Application. We would ask to be given reasonable advance notice of the meeting of the consent authority at which the DA will be considered and the opportunity to address such meeting. We would also ask for the courtesy of an early supply of Council’s staff report.

 

DOUBLE BAY RESIDENTS ASSOCIATION INC

Per Malcolm Young, Vice President.