310-330 Oxford Street, Bondi Junction - Modification for two additional storeys to approved mixed commercial/residential development. Report dated 2 July 2010 from the Development and Building Unit. Recommendation: That the application be deferred in accordance with the conditions contained in this report. Referred DCC given the number of objections received.

Section 96 Assessment Report

Development Application No. DA-598/2008 Address 310-330 Oxford Street, Bondi Junction Section 96 Lodgement Date 2 October 2009 Proposal

Modification for two additional storeys to approved mixed commercial/residential development.

Approved Development

Demolition of existing buildings and erect 10 storey mixed development.

Zoning and relevant controls

Waverley Woollahra Joint Local Environmental Plan 1991 – Bondi Junction Commercial Centre

Waverley Local Environmental Plan (Bondi Junction Centre) 2010

Waverley Development Control Plan 2010 Owner Treesol Holdings Pty Ltd Applicant Elia Lies Submissions Six (6)

Issues

Floor space and height controls and integrity of new LEP controls

Recommendation DEFERRAL

Site Map

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1. PREAMBLE

1.1 The Site and its Locality The subject site is located on the northern side of Oxford Street, between Vernon Street and Leswell Street with Hegarty Lane on the rear boundary. The site has a frontage to Oxford Street and Hegarty Lane of 54.5m and side boundaries depth of approximately 39m with a total site area of 1911sqm. The site has a fall of approximately 5m from the street frontage to the rear. The rear of the site (Hegarty Lane) comprise of inconsistent building forms with some structures fronting the lane whilst other properties have open rear yards. Existing development on the site comprise a mix of one and two storey, terrace style buildings of varying styles, appearance and age. Most of the existing buildings have been altered over time. The site forms part of the Bondi Junction city centre and is approximately 200m from the focus of the centre, namely the railway station and pedestrian mall. The locality is characterised by retail and commercial buildings of varying height. To the west are similar terrace style buildings. Beyond this are two mixed use buildings of 7 and 9 storeys. To the east is an 8 storey mixed use building with retailing at the Oxford Street frontage. To the south of the site is large podium/tower development and to the north (across Hegarty Lane) are three 8 to 10 storey commercial buildings.

1.2 Details of Approved Development DA-598/2008 Deferred Commencement Consent granted on 1 July 2009 Part demolition of existing buildings (retain street facades) and construction of a 10 storey mixed development of 66 residential units, retail/commercial units and basement car parking. On 30 November 2009, the applicant was issued a letter indicating that the Deferred Commencement Consent conditions had been satsified. DA-598/2008 – Section 96 Approved on 21 June 2010 Modification to delete north/west corner on levels 1 & 2, delete western terrace on level 2 & other changes. The approved development comprises demolition of existing buildings (retain Oxford Street facades) and construction of a 10 storey mixed development of 66 residential units, retail/commercial units and car parking including an affordable housing contribution.

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1.3 Proposed Section 96 Modifications

The application has been lodged as a Section 96 (2) application and provides for the following modifications to the approved development: - Two additional floors on the approved mixed development; 20 x additional apartments will be included on the two floors; Details of the landscaped roof terrace as required by original DA consent; 15 x additional car spaces integrated into the existing approved footprint of the building. Note: The Statement of Environmental Effects indicates an additional 20 x apartments. Upon reviewing the plans of the two proposed levels it appears that there are 16 x apartments.

2. ASSESSMENT The following matters are to be considered in the assessment of this development application under Sections 79C and 96 of the Environmental Planning and Assessment Act 1979.

2.1 Section 96 Considerations Section 96 (2) applications - the modification(s) if approved are substantially the same development as the original consent and satisfy the provisions of Section 96. Section 79C (1)(a) Planning Instruments. The modification was lodged on 2 October 2009 when the applicable plan for the site was the Waverley Woollahra Joint Local Environmental Plan 1991 – Bondi Junction Commercial Centre (JLEP 1991). The modification was submitted in anticipation for the then incoming Waverley Local Environmental Plan (Bondi Junction Centre) 2010 (WLEP 2010). WLEP 2010 was gazetted by the Department of Planning on 7 June 2010, at which point assessment of the application commenced. In this instance, assessment of the application must be made under JLEP1991 with due consideration and weight being given to WLEP2010. An assessment under both instruments is contained below.

2.1.1 Waverley Woollahra Joint Local Environmental Plan 1991 – Bondi Junction Commercial Centre (JLEP)

The site is zoned 3 (a2) Business General under the JLEP 1991. The proposed mixed-use retail, commercial and residential building is permissible under this zoning. The site is situated in the commercial zone in Bondi Junction. Clause 12 – Zone Objectives Objectives of the zone are as follows:

1 to establish a core business zone which provides for a wide range of retail and commercial uses, ancillary light industrial uses, entertainment, social and recreational uses and residential development mixed with those uses;

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2 to provide the opportunity for major redevelopment to occur in the core area in

order to control the overall physical form of the centre and minimize impact on adjoining residential areas;

3 to limit the amount of residential redevelopment and encourage employment

generating uses in the interests of maintaining a strong retail and commercial core and promoting a more efficient use of the public transport infrastructure; and

4 to promote the retail function and vitality of the centre by supporting the retention

and establishment of shops and other shopper oriented uses on ground floor frontages an certain streets.

The additional floors proposed are considered to be inconsistent with the above aims. Clause 14 – Floor Space Ratios The variation to the floor space ratio (FSR) of 3:1 was originally approved under DA-598/2008 through a SEPP 1 objection. As this application is for a modification of consent, no SEPP 1 objection is required. The proposed 2 x additional levels will result in a non-compliant FSR of 5.4:1, representing a non-compliance of 180% with the control. The extent of this non-compliance is not considered to be appropriate or acceptable in this instance. The proposed increase in FSR is not considered to be appropriate as it exacerbates a number of impacts particularly upon properties to the south. The FSR is recommended to be reduced through modification to the building.

2.1.2 Waverley Local Environmental Plan (Bondi Junction Centre) 2010

This plan was a draft at time of lodgement of the application. Clause 1.2 - Aims

(1) This Plan aims to make local environmental planning provisions for land in the Bondi Junction Centre in accordance with the relevant standard environmental planning instrument under section 33A of the Act.

(2) The particular aims of this Plan are as follows:

(a) to maintain and reinforce Bondi Junction as a primary commercial and cultural

centre in Sydney’s eastern suburbs, (b) to promote a range of commercial, retail, residential, tourist, entertainment,

cultural and community uses to service the local and wider community and achieve a vibrant and active centre during the day and evening,

(c) to promote mixed use development on the edge of Zone B3 Commercial Core to ensure an appropriate transition between commercial and residential development,

(d) to consolidate land zoned for retail and commercial development in Bondi Junction,

(e) to protect and conserve the cultural heritage of Bondi Junction Centre.

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(f) to achieve a high level of physical integration between land use and transport that facilitates sustainable forms to and from the Bondi Junction Centre by means other than by private car,

(g) to improve built form and building design in Bondi Junction Centre, appropriate to a major centre.

The zone applicable to the subject site is Zone B4 – Mixed Use. The Objectives of this particular 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 buildings surrounding Zone B3 Commercial Core.

To provide for commercial and residential uses within new mixed use developments that are compatible with surrounding development and do not compromise the amenity of surrounding residential areas.

It is considered that the proposed development generally satisfies the Aims and Objectives

and the Specific Aims and Objectives of Waverley Local Environmental Plan (Bondi Junction Centre) 2010 which relate to the establishment and activation of a Bondi Junction Town Square Precinct under which an extension to the public domain will be facilitated. The proposed modification generally encourages the activation of development which is considered to be consistent with the objectives for the Bondi Junction Town Square precinct. Compliance with Relevant Clauses under s.96 modification

Waverley Local Environmental Plan (Bondi Junction Centre) 2010

Control WLEP 2010 Proposed Compliance

Zoning B4 – Mixed Use Retail / commercial / residential building

Yes

Floor Space Ratio

5:1 5.4:1 No

Height 38 m

38m >38m (various elements ranging in height over the control)

Yes (main building) No (lift overruns & stair access to roof terrace)

Heritage Conservation

304-330 Oxford Street nominated as Items and identified as ‘façade group only’.

Retention and restoration of all Oxford Street facades

Yes

The table above illustrates non-compliances with the LEP development standards for floor space ratio (FSR) and height. The non-compliances are further discussed below.

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Floor Space Ratio The modification provides two additional storeys on the approved mixed development. Clause 4.6 of the LEP provides flexibility in the application of development standards; however, as this is a modification this clause does not apply. The applicant asserts in the Statement of Environmental Effects that the non-compliance with the development standard is considered acceptable predominantly on the grounds of the provision of affordable housing within the building. Under the original development consent (DA 598/2008), a Voluntary Planning Agreement (VPA) was settled through the provision of a 1 x bedroom unit with capped rent for a period of 5 years. This has been finalised and signed by the applicant. In this modification, the proposed FSR is 5.4:1 (based on the applicant’s calculations) with the non-compliant portion being 0.4:1, represents approximately 764.4m² or 8% over the development standard in the LEP. This non-compliance cannot be supported given the justification given by the applicant and the associated amenity impacts upon the living spaces of properties to the south, eg view loss (see later discussion). Height The proposed 2 x additional storeys generally comply with the development standard for height; however, the lift overruns and stair access to the roof terrace extend 1 to 2.5 m beyond the permissible height limit. The details for the stair access and lift overruns are clearly outlined on the floor plans but have been dotted onto the elevations. In this instance, any non-compliance with the height control within the Bondi Junction Centre is not considered to be acceptable particularly taking into consideration the aesthetic of the proposed building when viewed from a variety of vantage points and the amenity impacts upon surrounding properties, particularly those located to the south. Any unnecessary protrusion above and beyond the permissible height limit is unacceptable and should be modified to limit the impact of the development. Architectural roof features In relation to the height non-compliance above, the LEP further contains objectives and controls which aim to encourage the “creation of an interesting and aesthetically pleasing skyline”. In this instance, objective (d) aims to “encourage plant and lift over runs to be placed in the basement”. The modification includes the construction of lift overruns on top of the roof in contravention with this objective. It is considered appropriate to relocate these lift overruns within the envelope of the building to improves its aesthetics and limit the amount of overshadowing by these elements upon surrounding properties.

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2.1.3 Waverley Development Control Plan 2010

Part F1 – Bondi Junction Centre

The following assessment relates only to the parts of Waverley DCP 2010 affected by the proposed modification:

COMPLIANCE CHECK

Control Standard Proposed Compliance

Heritage Facade Original façade elements above awning level such as windows, parapets, balconies and ornamental detailing should be retained

Retail facades of Nos. 310-330 retained and restored.

Yes

Separation Minimum separation distance between uses (above level 5)

Generally buildings are orientated to the front and rear boundaries

Comply with side

setbacks Residential to

residential – 24m Residential to

commercial – 18m

Additional storeys are orientated to the front and rear boundaries

Additional storeys

reflect identical setbacks to approved building

At least 30m At least 20m

Yes Yes Yes Yes

Number of storeys 10 storeys 12 No Skyline Development should

reinforce the built form, i.e. not exceed the height of the main four buildings.

Development will not exceed height of the main four buildings

Yes

Roofline (Motor and plant rooms)

Designed as an integral part of the building;

Rooms screened

Lift overruns are positioned on the roof

No

Green Star Rating Green star rating of 4.5

A Certificate issued in accordance with BASIX has been supplied by the applicant

Yes

The table above indicates non-compliances with the DCP standards for number of storeys, green star rating and roofline. These non-compliances will be further discussed below.

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Number of storeys The proposed modification results in an additional level over and above what is permitted under the DCP. As the additional FSR is not support it is considered appropriate to view amended plans prior to making further comment on the number of storeys. Roofline (motor and plant rooms) As previously discussed the lift overruns are positioned on the roof and are recommended to be enclosed within the building envelope. Solar Access Shadow Diagrams have been submitted indicating that there will be additional shadow cast predominantly across properties to the south of the site as a result of the two additional storeys. In this instance, any shadow cast as a result of a non-compliant building is not considered reasonable or acceptable. The building is non-compliant with FSR and height controls under both the WWLEP 1991 and the recently gazetted WLEP (Bondi Junction Centre) 2010. As previously outlined, a reduction in the FSR and height controls is considered appropriate as it will bring the building into compliance and any related impacts in this case would be considered expected and acceptable. The application is recommended for deferral.

2.2.4 Waverley Development Control Plan 2010 – Part I1 – Land Use and Transport Car Parking Provision The applicant asserts that there are 20 additional units on the top two floors. Based on the plans submitted to Council there appears to be only 16. This discrepancy impacts upon the rates for residential parking and therefore a full assessment cannot be undertaken until an accurate figure is determined.

2.3 Other Matters Views The proposed additional storeys will impact on views predominantly to the north including district and partial harbour views of properties directly to the south of the site (at Units at No. 8 Spring Street, Bondi Junction). These views are obtained from both living rooms and bedrooms. It is important to note that the objectors to the proposed modification are positioned on the fifth and sixth floor of the residential flat building at No. 8 Spring Street, Bondi Junction. The additional two storeys are positioned on the eleventh and twelfth floor and therefore any view loss impact will result from the already approved ten storey building. As previously indicated in this report, the proposed additional storeys are compliant with Council’s recently gazetted Waverley LEP (Bondi Junction Centre) 2010 which allows a height limit of 38 metres. It should be noted that further to the north along Grafton Street a height limit of 60 metres has been adopted under Council’s Bondi Junction Centre LEP which would impact upon views should these sites be redeveloped.

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The view impacts of the proposal are considered reasonable, particularly within a major centre and in light of the recently gazetted Waverley LEP (Bondi Junction Centre) 2010.

3. REFERRALS Internal The previous development application was submitted with the proposed two additional storeys. Internal referrals were prepared based on this proposal. The comments from each respective Department are included below. Technical Services Raised no objection, subject to the imposition of standard conditions. Environmental Issues An Energy Performance Statement has been provided indicating compliance with the provisions of the DCP and satisfies the compliance requirements of the ABGR Scheme. Environmental Health Raised no objection, subject to the imposition of specific conditions. Fire & Building Code of Australia Compliance The Senior Building Surveyor – Fire Safety advise that no objection is raised to the proposal subject to the imposition of specific conditions. Tree Management Officer Council’s Tree Management Officer raised no objection, subject to specific conditions. Housing The application was internally referred to Council’s Strategic Planner – Housing who noted that the current arrangement with affordable housing established under the original consent is satisfactory. This contribution was offered by the applicant and agreed to by Council, but mixed used buildings in Bondi Junction are not within Council’s Affordable Housing Policy. A further contribution is not sought.

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4. PUBLIC SUBMISSION

The modification was advertised for 30 days in accordance with Waverley Development Control Plan 2006, Part C3 – Advertised and Notified Development. Six (6) submissions were received. One (1) of these submissions is an enquiry. The issues raised in the submissions are summarised and discussed below.

Property Location Summary of Objections

508/8 Spring Street, Bondi Junction

South of the site Solar Access

Overshadowing

607/8 Spring Street, Bondi Junction

South of the site Loss of privacy

Floor Space Ratio

Solar Access

Traffic Generation

Loss of Property Value

View Loss

Construction Noise

608/8 Spring Street, Bondi Junction

South of the site As above

Public Interest

Bondi Beach Precinct NA Overshadowing

Loss of views for properties to the west

Traffic Generation – Hergarty Lane

Bulk

Wind Tunnel

Bondi Junction Urban Design Initiative (BUDI)

NA Pedestrian Safety

Car Spaces

Bike Facilities

Public Domain

Overshadowing

Creative Design

Green Star Rating

Traffic Generation

Wind Tunnel / Study

Lift Overrun

Raptis NA Enquiry regarding two additional floors

Issue: Privacy Comment – The proposed additional storeys generally reflect the same building envelope as the approved development. The building complies with the required separation from buildings

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and setbacks from all boundaries. In this instance, the proposed additional storeys are considered to be acceptable from a privacy perspective as the mixed development is a Issue: Floor Space Ratio Comment – The issues relating to Floor Space Ratio have been addressed in Section 2.2.1 & 2.2.2 of this report. Issue: Solar Access Comment – The issues relating to Solar Access have been addressed in Section 2.2.3 of this report. Issue: Traffic Comment – This cannot be commented on at this time given the discrepancy in total additional units and subsequently the rate of parking provision / additional traffic generation. Issue: Property Value Comment – The proposed works may result in a nominal decrease in property value, however these impacts are considered reasonable subject to modification of the proposal to comply with the recently gazetted LEP standards for FSR and height. Issue: View Loss Comment – The issues relating to View Loss have been addressed in Section 2.2.1 of this report. Issue: Wind Tunnel Comment – Numerous studies have been undertaken within Bondi Junction to inform the preparation of the Waverley LEP (Bondi Junction Centre) 2010. It is considered onerous for the applicant to undertake a study of this nature particularly noting that the proposed development generally complies with the development standards and controls relevant to the site. Issue: Pedestrian Safety Comment – This cannot be commented on at this time given the discrepancy in total additional units and subsequently the rate of parking provision / additional traffic generation. Issue: Car Parking Comment – This cannot be commented on at this time given the discrepancy in total additional units and subsequently the rate of parking provision / additional traffic generation. Issue: Bike Facilities Comment – The mixed development provides bicycle storage and shower facilities on the loading and storage level. A total of 9 racks allow an accommodation of 95 resident bicycles. Based on this ratio of racks to the total number of bicycles, there are approximately 53 commercial / retail bicycles and 37 visitor bicycles that can be accommodated within the

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building. In addition to this, there are 2 x showers for bicycle riders directly adjoining these rooms. This provision of bicycles facilities is considered to be acceptable. Issue: Public Domain Comment – No modifications are proposed for the public domain under this application. Issue: Green Star Rating Comment – The issues relating to Green Star Ratings have been addressed in Section 2.2.3 of this report.

Issue: Construction Noise Comment – The proposed development will be constructed in accordance with the standard construction hours permitted which a condition of consent under the original approval. Section 79C (1)(e) - The public interest. The proposal has been designed to minimise significant adverse negative impacts onto neighbouring properties. The application generally satisfies this section of the Act having regard to the above analysis of the submissions, however, non-compliance with a number of key development standards in Bondi Junction Centre is considered unacceptable. The modification is not considered to be in the public interest.

5. DEVELOPMENT AND BUILDING UNIT (DBU) REVIEW The applicant was advised that this application would not be dealt with until the new LEP for Bondi Junction was made and that a variation to its new standards was unlikely to be supported. The old floor space ratio control of 3:1 has been up-graded to 5:1 and at the same time the definition of floor space has changed, whereby floor space is counted from the internal face of the wall, whereas previously it was the outer face. Just this change in definition provides a 10% increase in floor space to developers. Given the extent of up-grading of the floor space control, the DBU is not willing to support variations to both height and floor space standards when no real planning argument for these non-compliances has been provided. The building is approximately a floor higher than it should be under the new LEP and the argument put forward about affordable housing by the applicant has no planning justification. The DBU has never sought an affordable housing contribution for this development for the reason that the Council’s Affordable Housing policy does not apply to mixed-developments. The DBU notes that the existing building is 1 to 2.5 m over the height limit and this non-compliance is also not supported. The current scheme has various adverse bulk and scale impacts (eg view loss) and seeks to break the core controls of the LEP; this Section 96 is not supported.

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Nevertheless, some additions to the approved building are reasonable but these additions must fit within the new floor space and height control for the site. Also, given the objectives of the new Mixed Use Zone and the provisions of this plan, this addition should be one additional floor only on the approved building and any additional height redistributed within floor to ceiling heights of other levels. Plant and lift over-run areas also need to be better integrated into the building envelope. The plans provided with this application also need to be complete, the set considered in this application were ambiguous in some respects. The application is recommended for deferral.

6. RECOMMENDATION That the Section 96 modification dated 2 October 2009 to Development Application No. 598/2008 at 310-330 Oxford Street, Bondi Junction for demolition of existing buildings and construction of a 10 storey mixed development be deferred by Council, subject to the following conditions:- MATTERS FOR DEFERRAL The application is deferred until the following matters are satisfied: 1) At least one (1) level of the building is to be deleted from the proposed Section 96

application and the amended building is to comply with the height and floor space controls of Waverley Local Environmental Plan (Bondi Junction Centre) 2010, as follows:-

a) The height of the mixed development is to be reduced to comply with the 38m height

limit. Also, all plant, lift overruns and stair access to the roof terrace are to be enclosed within the building envelope. In this regard plant areas need to be integrated into the building envelope and under the height limit.

b) The applicant is to submit plans indicating areas to be included and excluded from the

floor space ratio calculations in accordance with the Waverley Local Environmental Plan (Bondi Junction Centre) 2010 ‘gross floor area’ definition. These calculations are to be certified by a Surveyor or suitably qualified person.

2) Full and complete plans of the development are to be provided and the number of

additional units is to be reviewed by the applicant. 3) The amended plans are to reflect the modifications to the western facing terrace and

frosted glazing as approved under the Section 96 application approved on the 21 June 2010 for DA-598/2008/B and works required as part of the deferred commencement consent.

4) The basement car park is to be modified to provide for compliance with Council’s car

parking provisions

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Should the Council approve the application, the following conditions are to apply:

A. Amended/Deleted Conditions 1. APPROVED DEVELOPMENT

The development must be in accordance with: (a) Architectural Plans, Job No 777, DA 01 – DA 25, Revision C, tables and documentation

prepared by Brian Meyerson Architects, dated 21 April 2009, and received by Council on date 27 April 2009;

(b) As amended by Architectural Plans, Job No 777, DA 07 – DA 10 and DA 19, Revision F,

tables and documentation prepared by Brian Meyerson Architects, dated 8 March 2010, and received by Council on date 8 March 2010;

(c) As amended by Architectural Plans, Job Nos. 777, Drawing Nos. DA01E-DA10E, DA12E-

DA25E, tables and documentation prepared by Brian Meyerson Architects, dated 8 December 2009 and received by Council on 9 December 2009;

(d) Landscape Plan Job No 08-121S, Drawing No LA 01, Revision B and documentation

prepared by Taylor Brammer Landscape Architects Pty Ltd, dated 15 May 2009 and received by Council on 15 May 2009;

(e) The recommendations made in the Environmental Site Assessment (report No.E977.1

BC) dated 14 May 2009 and prepared by Environmental Investigations; (f) Schedule of external finishes and colours received by Council on 17 October 2008; and (g) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance

with the SWRMP Checklist of Part G1, Waverley DCP 2006. Except where amended by the following conditions of consent;

B. New Conditions

2. GENERAL MODIFICATIONS The proposal shall be amended as follows: (a) The proposed lift overruns are to be enclosed within the building envelope. (b) Door openings providing access to lobbies shall be provided to Unit Nos. 43 & 86. The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. J:\HOME\PES\reports\South Team\Philip Bull\DCC2010\July\310-330 Oxford.doc

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