Ashmor Holdings Pty Ltd v Randwick City Council

[2022] NSWLEC 1692

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ashmor Holdings Pty Ltd v Randwick City Council [2022] NSWLEC 1692

Hearing dates:

Hearing on 3 and 4 August 2022

Date of orders:

13 December 2022

Decision date:

13 December 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) The Applicant is granted leave to rely on amended plans (privacy screen detail), landscape plans and photomontages as set out in Condition 1 of Annexure ‘A’.

(2) The written request under clause 4.6 of the Randwick Local Environmental Plan 2013 seeking to vary the building height standard is upheld.

(3) The appeal is upheld.

(4) Development Application DA 757/2021 for alterations and additions to an approved shop-top housing development to provide a new communal roof terrace at 1 Adams Avenue, Malabar (Site) is approved, subject to the conditions in Annexure ‘A’.

(5) All Exhibits are returned with the exception of Exhibits A and 2.

Catchwords:

Development Consent: proposed new roof terrace – alterations and additions to approved shop top housing development – breach of height standard – residential amenity

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021

Randwick Local Environmental Plan 2012 cll 4.3, 4.6

Cases Cited:

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:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Ashmor Holdings Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
R White (Applicant)
S Berverling (Respondent)

Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s):

2022/36887

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Randwick City Council (Council) of development application DA 757/2021 (the DA) seeking consent for alterations and additions to an approved shop-top housing development to provide a new communal roof terrace at 1 Adams Avenue, Malabar (the Site).

Site and Setting

2. I rely on the Amended Statement of Facts and Contentions (Exhibit 1) for much of the factual material below.

3. The Site is known as 1 Adams Avenue, Malabar and is legally described as Lot 49 SEC 12 in DP 244782 and has a total area of 198.5 m². The Site is generally rectangular in shape with an angled front and rear boundary at the corner of the street frontages. It has three street frontages, to the north (Rubie Lane), to the south (Adams Avenue) and to the west (Nix Avenue). Vehicular access to the Site is via Nix Avenue and pedestrian access is from Nix Avenue and Adams Avenue.

4. The Site is currently occupied by a two-storey mixed use building constructed in 1968 with the ground floor comprising a commercial premises and courtyard and the first floor compromising a three-bedroom dwelling.

5. The Site is zoned B1 Neighbourhood Centre under Randwick Local Environmental Plan 2012 (RLEP) and sits within a block of four properties as part of an isolated pocket of B1 zoned land. The other three properties within this block have all been converted into three-storey residential flat buildings with no commercial component, prior to the introduction of RLEP which commenced on 15 February 2013.

6. The adjoining site to the east at 3 Adams Avenue is a three-storey residential flat building with a rooftop terrace. To the north is a single storey dwelling house at 15 Zion Avenue and adjacent to the west are a variety of single and two-storey dwelling houses, zoned R2 Low-Density Residential.

7. Malabar headlands and the Tasman Sea are located to the far east of the site, with Malabar Beach located approximately 2km to the north of the site. The Site and the adjacent residential flat building at 3 Adams Avenue, achieve some water views.

Background and Proposed Development

8. DA 814/2018 was originally granted by Randwick City Council on 15 February 2019 for alterations and additions to the existing building on the Site, including changes to the existing ground floor commercial premises, changes to the existing first floor dwelling, addition of a second floor to accommodate a second dwelling, rooftop terrace, ground floor car parking and courtyard, new detached first floor commercial premises, strata subdivision and associated site works.

9. DA 2/2021 was subsequently granted on 14 October 2021 to amend DA 814/2018 including a communal rooftop terrace and associated works.

10. Conditions 2(a) and (b) of the above two development consents required the amendment of the approved plans and documents to delete the communal rooftop terrace and all associated structures. They also specify that the maximum height of the building to not exceed RL 47.10 AHD.

11. The proposed development before the Court relates to the deemed refusal of DA 757/2021 (the DA) for alterations and additions to an approved shop-top housing development to provide a new communal rooftop terrace. DA 757/2021 is the third development application for the Site. The DA was lodged with the Council on 6 December 2021. It was subsequently notified by the Respondent between 17 January and 1 February 2022 and six (6) submissions were received objecting to the proposal.

12. On 8 February 2022, the Applicant filed the Class 1 proceedings against the Respondent’s deemed refusal of the DA. A s 34 conciliation conference under the Land and Environment Court Act 1979 was held on 4 May 2022 and was subsequently terminated.

13. A Notice of Motion was subsequently heard and granted by the Court on 5 July 2022, where the Applicant sought leave to lodge amended plans prepared by CK Design dated 15 June 2022 (up to Revision J), in response to the Respondent’s Statement of Facts and Contentions (SOFAC) filed with the Court on 3 March 2022 (Exhibit C, Tab 2). Leave was also sought and granted by the Court to rely on amended Landscape Plans prepared by Paul Scrivenar Landscape dated 13 June 2022 (Exhibit C, Tab 3), an amended Clause 4.6 Variation Request prepared by ABC Planning dated June 2022 (Exhibit C, Tab 1) and an acoustic report prepared by Pulse White Noise dated 13 June 2022 (Exhibit C, Tab 4).

14. The amended architectural plans, in broad terms included:

• Reduction in the north awning to align with the neighbour’s awning at 3 Adams Avenue

• Deletion of a void area

• Relocation of the BBQ

• Deletion of the AC enclosure

15. In summary, the DA before the Court is for a rooftop terrace with its floor level being RL 46.65 and the top of its roof being RL 48.83. An awning and pergola are proposed on the terrace, together with landscaped planter boxes around the edge of the roof terrace. Access to the rooftop terrace is proposed via a stairway.

Proceedings

16. The hearing commenced with a view on site, attended by me along with the solicitors and town planning experts for both parties. Oral submissions from two objectors were heard on-site from the resident of 3/3 Adams Avenue, Malabar and from the resident of 10B Nix Avenue Malabar. The owner of 3/3 Adams Avenue invited the Court and the parties to view his site. A copy of the submissions received by the Respondent during public exhibition of the DA were also provided to the Court (Exhibit 2) and a petition from local residents (Exhibit 5).

17. The key concerns of the resident objectors can be summarised as follows:

• Visual privacy and overlooking;

• Acoustic privacy and noise impacts from use of communal rooftop terrace;

• Concern regarding the excessive height of the development;

• Visual impact from excessive height and bulk;

• Incompatible with surrounding low-density residential area;

• Overdevelopment of the site;

• Adverse streetscape impacts;

• Concern regarding future rooftop structures;

• Undesirable precedent;

• Anti-social behaviour from use of rooftop terrace;

• Safety and security concerns regarding the neighbouring rooftop terrace at 3 Adams Avenue;

• Reliance on landscaping and planter boxes to provide privacy, which are not permanent.

The Evidence

18. In preparing for the hearing, the experts, Mr Anthony Betros, planner for the Applicant and Ms Angela Manahan, planner for the Council, conferred and prepared a “Joint Report of Planning Experts” (Joint Expert Report) dated July 2022 (Exhibit 3). The Joint Expert Report relied upon the following documents:

• Amended plans prepared by CK Design, up to Revision J, dated June 15, 2022 (Exhibit C, Tab 2)

• Amended landscape plans, prepared by Paul Scrivener, dated June 13, 2022 (Exhibit C, Tab 3)

• Clause 4.6 variation request relating to clause 4.3 height of buildings, prepared by ABC Planning Pty Ltd, dated June 2022 (updated with the latest montages) (Exhibit C, Tab 1)

• Acoustic Report, prepared by PWNA, dated May 2022 (Exhibit C, Tab 4)

19. The experts agreed on the following matters:

• The facts presented in the Amended Statement of Facts and Contentions filed by the Respondent on 13 July (Exhibit 1).

• That the imposition of conditions on the use of the roof terrace would suitably address part of Contention 5 (acoustic impacts). These conditions would include restricting the hours of use of the roof terrace from 7am – 10pm, prohibiting the use of amplified music on the roof terrace and any external lighting to the roof terrace must be designed and located to minimise light spill beyond the property boundary.

• That the installation of 1.6m high privacy screening above the planter box along the eastern side of the terrace would mitigate overlooking the adjoining property at 3 Adams Avenue. This screening could be in the form of 600mm high fixed translucent glazing atop the 1-metre-high planters, which would create a 1.6m high screen.

• It was agreed that the provision of the privacy screening above the planter box along the eastern side of the terrace would be sufficient as a safety barrier to prevent persons from entering the adjoining roof terrace at 3 Adams Avenue.

• That the proposed development will not result in any unreasonable impacts upon solar access to surrounding properties which would address Contention 6 (overshadowing).

20. The planning experts, Mr Betros and Ms Manahan, were available to provide oral evidence at the hearing.

21. A number of documents were tendered in evidence, of which the following were of particular relevance to my consideration of this matter:

1. The Joint Expert Report (Exhibit 3), and the Amended Statement of Facts and Contentions (Exhibit 1).

2. The Amended Plans, filed on 24 June 2022, for which leave was sought and provided, prepared by CK Design and dated 15 June 2022 and amended Landscape Plans prepared by Paul Scrivener Landscape Architects and dated 13 June 2022 (Exhibit C Tabs 2 and 3);

3. Further Amended Plans (privacy screen detail) and landscape plans (Exhibit I) and photomontages (Exhibit F) for which leave was sought and provided.

4. Council’s Bundle of Documents (Exhibit 2) that included the RLEP, Randwick Comprehensive Development Control Plan 2013 (RDCP) and the public submissions.

5. Various documents lodged as part of the Class 1 Application, including the Statement of Environmental Effects prepared by ABC Planning, dated December 2021 (Exhibit A).

6. The Acoustic Report prepared by Pulse White Noise dated 13 June 2022 (Exhibit C Tab 4).

7. The amended Clause 4.6 variation request prepared by ABC Planning dated June 2022 (Exhibit C Tab 1).

8. The agreed draft conditions of consent, filed with the Court on 12 August 2022.

The Planning Controls

22. The site and immediately surrounding properties are zoned B1 Neighbourhood Centre under the RLEP. The proposal is permissible with consent.

23. The objectives of the B1 Zone are:

• To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

• To enable residential development that is well-integrated with, and supports the primary business function of, the zone.

• To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones.

24. The maximum permissible height of buildings for the Site is 9.5m under cl 4.3(2) of RLEP. The existing building approved under DA 814/2018 exceeds the height control by up to 833mm at the south-west corner of the Site. It was agreed between the town planning experts that the height of the proposed roof terrace and structure is 11.745m above ground level, being 2.245m or 23.63% over the 9.5m height limit.

25. The Randwick Comprehensive Development Control Plan 2013 (RDCP) also applies to the proposed development.

26. Clause 4.2 (vii) of Section 2 of RDCP states that terraces, decks or trafficable outdoor spaces on the roof may be considered if:

– There are no direct sightlines to the habitable room windows and private and communal open space of the adjoining residences.

– The size and location of terrace or deck will not result in unreasonable noise impacts on the adjoining residences.

– Any stairway and associated roof do not detract from the architectural character of the building, and are positioned to minimise direct and oblique views      from the street.

– Any shading devices, privacy screens and planters do not adversely increase the visual bulk of the building

27. In addition, clause 4.2 (viii) states that:

– the provision of landscape planting on the roof (that is, “green roof”) is encouraged. Any green roof must be designed by a qualified landscape architect or designer with details shown on a landscape plan.

The Issues 

28. A number of the contentions listed in Exhibit 1 were no longer pressed by Council following the amended plans (Exhibit C Tab 2) and landscape plans (Exhibit C Tab 3 and Exhibit I), submission of an acoustic report (Exhibit C Tab 4) and the outcome of joint expert conferencing (Exhibit 3). The experts agreed that subject to appropriate conditions, Contention 5 – Privacy Impacts and part of Contention 4 – Acoustic Impacts can be resolved. They also agreed that the proposed development will not result in any unreasonable impacts upon solar access to surrounding properties and as such Contention 6 was not pressed.

29. The major contested topics related to the height breach and the resultant bulk and scale of the development, its privacy impacts on the amenity of neighbours and the adequacy of the cl 4.6 of RLEP request, which is a matter relating to jurisdiction. It is therefore necessary for the Court to make its own findings in regard to that question.

30. Objectors also raised the height breach of the proposed development, and the consequent amenity impacts on them, predominantly loss of privacy and potential noise impacts from the use of the communal roof terrace and security issues with the adjoining roof terrace at 3 Adams Avenue. The issue of public interest is also dealt with below.

Height, Bulk and Scale and Desired Future Character

31. There is a fundamental contention raised by the Respondent that the proposal is not compatible with the desired future character for the locality and its built form (height, bulk and scale) would adversely affect the visual amenity of neighbours.

32. Turning to the issue of visual impact and desired future character, Ms Manahan was of the view that the proposed stairs and roof cover shall be highly visible from the street and adversely attribute to the overall bulk and scale of the proposed development, particularly as viewed from the low-density residential area of Nix Avenue. It was also Ms Manahan’s view that the proposed roof terrace shall be readily apparent as viewed from the street and detract from the architectural character of the building and be dominant in the skyline.

33. Ms Manahan’s main concerns were that the proposed building height is excessive and the height, bulk and scale of the development exceeds that anticipated by the applicable planning controls, resulting in a development that is inconsistent with the desired future character of the area and will adversely impact on neighbouring properties with regards to visual amenity and privacy.

34. Mr Betros provided evidence that the roof terrace and associated structures and landscaping represent a well-designed and integrated structure that contributes to the presentation and amenity of the approved mixed-use building on the Site.

35. From a visual amenity, bulk and scale and desired future character perspective, Mr Betros noted that the property directly to the east, 3 Adams Avenue has a similar roof terrace and awning structure, which matches the height of the proposed development. Mr Betros considered that the existing awning at 3 Adams Avenue establishes the character of the area and the proposed roof terrace and associated structures fit in with this existing character. Mr Betros also noted the proposed roof terrace will be subject to various conditions of consent which will mitigate any potential impacts on neighbours to a greater extent than the existing roof terrace at 3 Adams Avenue, which has no limits (conditions) on usage, landscaping or visual privacy impacts.

36. Mr Betros also noted that that proposed roof terrace, which is responsible for the height variation, positively contributes to the amenity of the approved development, as it provides an alternative open space area to the approved balconies on the lower levels of the building and will encourage social interaction amongst residents of the building and a greater degree of solar access, outlook and views than the approved balconies.

37. Having viewed the site and the surrounding area, I prefer and accept Mr Betros’s evidence regarding visual amenity, height, bulk and scale and desired future character. The proposed development is integrated into the design of the approved mixed-use development and supports the primary business function of the zone. Further, it matches the other three-storey residential flat buildings in the B1 Neighbourhood Centre Zone in terms of height, bulk and scale and in my opinion, will sit comfortably in its B1 Neighbourhood Centre context.

Amenity Impacts

38. In terms of amenity impacts on neighbouring properties, it was agreed by the experts in their joint report (Exhibit 3) that the proposal will not result in overshadowing impacts or view loss and that any potential acoustic impacts can be mitigated by conditions on the use of the roof terrace. It was also agreed that the proposed privacy screening would be sufficient as a safety and security barrier to prevent persons entering the adjoining roof terrace at 3 Adams Avenue. I concur with this assessment.

39. Whilst Ms Manahan agreed that the proposed landscaping in the planter boxes minimised any privacy impacts from 3 Adams Avenue and the dwellings in Nix Avenue, she was of the view that the planter boxes added to the bulk and scale of the development which was unacceptable. She was therefore of the opinion that the landscaping and planter boxes are not a suitable solution to resolve privacy impacts.

40. Mr Betros’s evidence was that the proposed roof terrace will have minimal impact on neighbouring properties with regard to visual bulk, overshadowing, noise, privacy and view loss. Mr Betros noted that the Site has three street frontages and is therefore physically separated from the low-density residential properties to the north, west and south, which minimises any potential privacy impact of the proposed roof terrace on these properties. He was also of the opinion that the proposed landscaping and planter boxes provided appropriate screening to mitigate any privacy/visual amenity/security impacts on the directly adjoining development to the east at 3 Adams Avenue.

41. Regarding the issue of potential amenity impacts, I prefer and accept the evidence of Mr Betros for the following reasons:

• the Site is a corner allotment and physically separated by three roads from the low-density residential area, and the generous separation distances will minimise the potential for overlooking of these dwelling houses to the north, south and west;

• the proposed planting and planter boxes around the perimeter of the roof terrace, results in the trafficable parts of the roof terrace being recessed behind the landscaped planters, which will limit the ability for any person using the roof terrace to stand at the edge of the terrace, thus minimising any potential overlooking of the dwelling houses to the north, west and south;

• the proposed planter boxes, translucent screen and landscaping proposed along the eastern edge of the roof terrace will minimise any overlooking of the adjacent terrace at 3 Adams Avenue (refer to planter box detail in Exhibit I). The screen will also mitigate any potential security issue to the adjoining roof terrace at 3 Adams Avenue.

• in terms of visual amenity, the low-rise nature of the planter boxes, awning and pergola means they do not significantly increase the bulk of the building when viewed from the public domain or adjoining residential area. In addition, the proposed landscaping will soften the appearance of the rooftop structures, consistent with Part C2 clause 4.2 (viii) of the RDCP which encourages green roofs.

• the frequency of use of the proposed terrace would be limited by the fact it is only accessible by stair from the apartments below and the residential units all have their own balconies which are directly accessible from their living areas.

• the proposed conditions on the use of the rooftop terrace will, in my view, and as agreed by the experts. mitigate any acoustic impacts on the neighbouring residential properties.

Adequacy of the cl 4.6 Variation Request

Building height contravention

42. The experts agree that the proposal would have a maximum height of 11.745m as measured from existing ground level. On the Respondent’s calculation the proposed exceedance of the height control is 2.245m above the building height control of 9.5m at cl 4.3 of RLEP. The applicant is seeking an exception for the contravention of development standards under cl 4.6(2) of the RLEP. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5);

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.

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 subcl (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,

43. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) of RLEP to enliven the permissive power under cl 4.6(2) of RLEP to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (‘Initial Action’) at [14]).

44. The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3) of RLEP. The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

45. The Applicant has created an opportunity for the application of cl 4.6(2) by submission of a written request seeking to justify the contravention. The written request was prepared by ABC Planning, in June 2022 with updated montages added in July 2022 (Exhibit B).

Whether compliance unreasonable or unnecessary

46. Mindful of cl 4.6(3)(a) of RLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ’s finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first “Wehbe way”, seeking to show how, otherwise, the development achieves the objectives of cl 4.1 of RLEP.

47. I reproduce the list of objectives of cl 4.3 below:

1. to ensure that the size and scale of development is compatible with the desired future character of the locality,

2. to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,

3. to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and view.

48. The written request successfully demonstrates that objective (a) is achieved by pointing out that, in this case, the 9.5m height control which allows for a three-storey built form, which is consistent with that proposed, matches the adjoining buildings within the B1 Neighbourhood Centre Zone and is consistent with the desired future character of the locality. The only elements of the built form which are beyond the 9.5m height limit are restricted to the lightweight stairwell and pergola elements that serve the roof terrace. These structures are recessed from the perimeter of the built form below and are consistent in height to the structures on the existing rooftop of the building to the east at 3 Adams Avenue. The height of the proposed development provides for a cohesive and compatible built form outcome with this directly adjoining building, consistent with objective (a).

49. The proposed development is not located in a conservation area, is not near any heritage items and is not heritage listed. I agree with the written request that objective (b) is not relevant to this proposal.

50. In terms of objective (c), the written request works through the topics of visual bulk, loss of privacy, acoustic impacts, overshadowing and view loss, adequately demonstrating that there is no adverse impact in terms of each. It notes that the proposed height of the development matches the adjoining building to the east and will not appear out of scale or dominant when viewed from any neighbouring property to the east, to the south across Adams Avenue, to the west across Nix Avenue or to the north across Rubie Lane. In terms of visual impact, it also notes that the proposed built form will be perceived from the public domain and neighbouring properties, as compatible with the immediately surrounding B1 zoned properties in Adams Avenue, to the east of the subject site. The request further states that the corner location of the site, fronting three roads, ensures that the proposed additional height will not generate any undue shadow impacts to any primary living or private open space areas to surrounding properties.

51. In terms of view impacts, the written request states that the proposed height retains views to the west towards the Blue Mountains, across the subject site from the neighbouring properties to the east and that the primary ocean, land-water interface and CBD views are retained, noting that such views are to the east, north-east and north of the Site and the adjoining terrace at 3 Adams Avenue.

52. In relation to privacy, the written request notes that given the Site is adjoined on three sides, there are substantial separation distances to the surrounding dwelling houses to the south, west and north, which minimises any potential for overlooking. The request notes that the recessed nature of the roof terrace and the proposal to provide landscaped planter boxes around its perimeter will further reduce any potential privacy impacts to the north, south, west or east. It notes that the proposed roof terrace at 24.5m² in area, is significantly smaller than the existing roof terrace at 3 Adams Avenue of 47 m² and that the continuous deep planters along the common boundary with 3 Adams Avenue will provide effective screening between the respective properties. Amended landscape plans, submitted by the Applicant during the course of the hearing, and detailing the proposed planter boxes and translucent privacy screen along the eastern edge of the roof terrace (Exhibit I), demonstrates to my satisfaction how the privacy on the roof terrace of 3 Adams Avenue will be satisfactorily preserved.

53. In terms of acoustic impacts, both experts agreed that they can be addressed by the imposition of the following conditions:

• The use of the roof terrace shall be restricted from 7am to 10pm only;

• The use of amplified music is prohibited from the roof terrace at all times; and

• External lighting to the roof terrace area must be designed and located so as to minimise light spill beyond the property boundary or cause a public nuisance.

54. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

55. The written request also argues a series of environmental planning grounds as justifying the contravention. The most notable for me was the fact the proposed height is compatible with the other B1 Neighbourhood Centre zoned buildings in Adams Avenue and the fact that there is virtually no adverse impact on neighbouring properties, as a consequence, subject to the imposition of conditions related to the use of the roof terrace. These are sufficient environmental planning grounds to justify the contravention in this instance.

56. Together, the above findings mean the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of RLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.

Public interest

57. I now turn to the test at cl 4.6(4)(a)(ii) of RLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B1 zone.

58. I agree with and rely on the written request’s demonstration that the proposed development is consistent with the objectives of the applicable building height standard.

59. The zone objectives are reproduced at para [23].

60. The proposed development would, by definition, provide for a small scale, mixed-use development, with ground floor commercial premises and two floors of residential development that will support the primary business function of the zone consistent with the first zone objective (a).

61. The design and scale of the proposed development is consistent with the neighbouring B1 zoned buildings to the east and the residential floors are well integrated with the commercial component, consistent with objective (b).

62. The issues relating to the impact of the development and the residential amenity issues have been considered in the body of the judgement and the proposal is seen to be consistent with the third zone objective (c).

63. On the basis of the above I find the development consistent with the B1 zone objectives.

64. Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard, and the objectives for development within the B1 Neighbourhood Centre Zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of RLEP are met in regard to the height of buildings contravention.

Conclusion – building height contravention

65. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of RLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.

66. The states of satisfaction required by cl 4.6 of RLEP have been reached and there is power to grant development consent to the proposed development notwithstanding the breach of the building height standard.

Other statutory instruments

67. In regard to State Environmental Planning Policy (Resilience and Hazards) 2021, I note and accept the agreed evidence that the land has been used for residential purposes for an extended timeframe and is not considered to be at risk of contamination. No further consideration is required in this instance, particularly as the proposed roof terrace does not result in any excavation.

68. In regard to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), I note that an updated BASIX certificate was filed with the Court on 11 August 2022, at the Court’s direction and has been accepted by the Respondent, in accordance with the requirements of the BASIX SEPP.

Conclusion

69. On the basis of the above consideration, the proposal warrants support, subject to appropriate conditions.

Orders

70. The Court orders that:

1. The Applicant is granted leave to rely on amended (privacy screen detail), landscape plans and photomontages as set out in Condition 1 of Annexure ‘A’.

2. The written request under clause 4.6 of the Randwick Local Environmental Plan 2013 seeking to vary the building height standard is upheld.

3. The appeal is upheld.

4. Development Application DA 757/2021 for alterations and additions to an approved shop-top housing development to provide a new communal roof terrace at 1 Adams Avenue, Malabar (Site) is approved, subject to the conditions in Annexure ‘A’.

5. All Exhibits are returned with the exception of Exhibits A and 2.

……………….

L Sheridan

Acting Commissioner of the Court

Annexure A (275832, pdf)

**********

Decision last updated: 13 December 2022