ABC Planning v Randwick City Council

[2008] NSWLEC 1211

Land and Environment Court

of New South Wales

CITATION:	ABC Planning v Randwick City Council [2008] NSWLEC 1211
PARTIES:	Applicant: ABC Planning Pty Ltd Respondent: Randwick City Council
FILE NUMBER(S):	10070 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- front setback
DATES OF HEARING:	29 May 2008
DATE OF JUDGMENT:	3 June 2008
LEGAL REPRESENTATIVES:	Applicant: Mr C McEwen, SC and Mr M Staunton, barrister instructed by Mr V Conomos, solicitor of Pike Pike & Fenwick Mr P Rigg, solicitor of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

3 June 2008

10070 of 2008 ABC Planning Pty Ltd v Randwick City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Randwick City Council (the council) of a development application to demolish the existing buildings and to construct a four-storey multi-unit housing development on lot B DP 100389 and lot 1 DP 959305, known as 161-163 Arden Street, and lots 3 and 4 Sec 4 DP 3684, being lots 1-8 in SP 7640 and known as 112-114 Beach Street, Coogee.

The site

2 The site consists of a single lot (frontage 12.2m) facing Beach Street and a double lot (frontage 23.5m) facing Arden Street. The side boundary of the amalgamated lots, stretching between the two streets, is about 100m. The total area is 1,433m2. The site slopes steeply towards the south and Coogee Beach.

3 The site accommodates three existing apartment buildings, which are proposed to be demolished. On the allotment facing Beach Street there is a 2007 development consent for a four-storey apartment building. The Floor Space Ratio (FSR) of the approved building is 1.34:1. The maximum permissible FSR for the Beach Street site is 0.65:1. The character of the locality is high-density residential with some shops.

The proposal

4 The applicant proposes to demolish the existing buildings on the site and to erect two new apartment blocks with common landscaped areas and parking. The Beach Street building is similar to that approved in 2007. The Arden Street building is four-storeys high; however, part of it is underground and appears three storeys to the street.

5 The applicant lodged the development application in November 2007. The proposal was amended and re-notified. The council received ten objections to the last notification.

Relevant planning controls and policies

6 Randwick Local Environmental Plan 1998 zones the site 2C, a zone that allows multi-unit housing at a FSR of 0.65:1 on the Beach Street site and 0.9:1 on the Arden Street site. Development Control Plan – Multi-unit Housing (the DCP) establishes planning controls, including those for setbacks.

Matters in contention

7 In its Statement of Contentions the council listed nine matters in contention, including density and parking. However, by the time the matter came to hearing, the traffic experts had come to agreement and only one issue separated the planning experts. That issue was the front setback of the building on the Arden Street site.

The objectors’ concerns

8 The Court heard the evidence of nine objectors during the site visit:

· Mr Robert Thorburn, owner of 3/110 Beach Street,

· Mr Vinod Sanjani of 15/120 Beach Street,

· Ms Vicky Mayer of 3/23 Arcadia Street,

· Mr Michael Stephens of 3/23 Arcadia Street,

· Dr John Buchanan of 83 Beach Street,

· Mr Allan Pittman of 1/23 Arcadia Street,

· Ms Sandra Sullivan of 5/159 Arden Street,

· Ms Pelagia Kambis of 165 Arden Street and

· Ms Margaret Smith of 1/292 Arden Street.

9 The objectors’ concerns were:

· Bulk and height: the proposal is in breach of the maximum FSR, the Beach Street building has increased in height and would therefore affect views.

· Parking: too many cars enter from Beach Street although the total parking provision is inadequate, in particular for visitors, and stackers are undesirable.

· Excavation: fear of structural damage from excavation of the site.

10 As regards the concern about height, it was common ground between the parties that the height and FSR of the Beach Street building has remained the same as was approved in 2007. The FSR of the Arden Street building is 0.97:1, which is above the maximum permissible of 0.9:1. The applicant lodged an Objection under State Environmental Planning Policy 1 (SEPP 1). The council accepted that the Objection was well founded.

11 As regards the concerns about parking, the traffic experts (Mr Lyall Marshall for the council and Mr M Lee for the applicant) prepared a joint report in which they agreed that the parking provision is adequate and the stackers are acceptable. I note that the existing buildings on the site do not provide parking. The experts also agreed on the vehicular entrance being from Beach Street, which is a cul-de-sac.

12 The conditions of consent include safeguards against structural damage to neighbours.

Should the Arden Street setback be increased?

13 The DCP establishes two performance requirements for front setbacks:

· The front setback is determined by the existing and desired character of the streetscape.

· The setback is to be consistent with the setback of adjoining development or the dominant setback along the street.

14 The proposal’s setback to Arden Street is 2.9m. The council’s planning expert, Mr Stuart McDonald, a planner with Randwick Council, sought to have the front setback increased by 1m, to 3.9m. The difference should be taken out of the depth of the building, as reducing the rear setback was not acceptable. Mr McDonald argued that the existing average front setback on the eastern side of Arden Street between Arcadia and Bream Streets was 3.9m. The desired setback was 4m as evidenced by the recent approval for the redevelopment of 155-157 Arden Street. In cross-examination he agreed that for the ground floors of the existing buildings, the average front setback was 3.6m, rather than 3.9m. (Both calculations leave out the small setback of the building at the corner of Arden and Arcadia Streets, because that building faces Arcadia Street.)

15 The applicant’s experts, Mr Nigel Dickson, an architect planner, and Mr Anthony Betros, a town planner, took issue. Their reasons were:

· The proposed building adopted existing setbacks in Arden Street.

· A large proportion of the proposed building was recessed.

· The separation between buildings (ie the side setback) is increased from the existing.

· The topography makes it hard for the setback to be perceived.

· Setting the proposed building back a further metre would make internal planning difficult.

16 It seems to me that the experts are arguing about a very small additional setback that would be perceptible, if at all, only to the most sensitive and observant of passers-by. If the average ground floor setback in this section of the eastern side of Arden Street is 3.6m, then Mr McDonald’s requirement for a 1m additional setback should be reduced to 700mm. To achieve this, the applicant would have to re-plan the apartments, taking off 700mm from a bedroom and a living room, both of which are relatively small. Despite the difficulties this causes the applicant, the Court would require the increase in setback if it were persuaded that there is public benefit in the requirement. However, given the proposal’s wide side setbacks, the recessed nature of the façade, the steep topography of the street and the lack of a uniform setback in Arden Street, in my opinion there would be little public benefit in requiring the building to set back either a further 700mm or 1m.

17 I turn to the DCP’s performance requirement for consistency with adjoining buildings. A line between the northern and southern neighbours, Nos 159 and 165 cuts about half a metre off the proposed building. The arguments in the above paragraph 17 apply.

18 The appeal is therefore upheld and the application approved with its existing front setback to Arden Street.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing buildings and to construct a four-storey multi-unit housing development on lot B DP 100389 and lot 1 DP 959305 (known as 161-163 Arden Street) and lots 3 and 4 Sec 4 DP 3684 being lots 1-8 in SP 7640 (known as 112-114 Beach Street, Coogee) is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits may be returned except Exhibits 7, A and B.

___________________
Dr John Roseth
Senior Commissioner