Bana Pty Ltd v Randwick City Council

[2017] NSWLEC 1205

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bana Pty Ltd v Randwick City Council [2017] NSWLEC 1205
Hearing dates:	13 March 2017
Date of orders:	13 March 2017
Decision date:	13 March 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. DA/311/2016 for the demolition of all existing improvements and the construction of a residential flat building at 194-196 Carrington Road, Randwick is approved subject to the conditions in Annexure A. 3. The exhibits can be returned with the exception of exhibits 1, B and C.
Catchwords:	DEVELOPMENT APPLICATION: demolition of the existing dwelling, construction of a three-storey residential flat building – amended plans address all concerns of council – resident concerns remain
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 2012.
Category:	Principal judgment
Parties:	Bana Pty Ltd (Applicant) Randwick City Council .(Respondent)
Representation:	Counsel: Ms H Irish, barrister (Applicant) Mr S Patterson, solicitor.(Respondent)     Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/240376
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal relates to council's deemed refusal of Development Application No. DA/311/2016 for the property at 194‑196 Carrington Road, Randwick. The development application seeks consent for the demolition of the existing dwelling, construction of a three-storey residential flat building containing 12 dwellings, basement car parking for 15 vehicles, landscaping and associated works.

2. The site is Lot 10, Sec 4 in DP678. It is generally rectangular with a western side boundary of 20.115 metres and northern side boundary of 46.48 metres, a southern side boundary of 46.48 metres, an eastern side Carrington Road boundary of 20.115 metres giving a total area of 929.5 square metres.

3. Topographically the site falls approximately 1 metre from the western rear end of the allotment towards Carrington Road. The site is presently occupied by a single storey dwelling-house and ancillary garage structure. The site landscaping includes a number of trees on the northern boundary and within the centre of the site. The surrounding area is characterised by a mixture of low to medium density residential development consisting of single two‑storey dwelling‑houses and up to four-storey walk-up residential flat buildings.

4. The site is within Zone R3 Medium Density Residential under Randwick Local Environmental Plan 2012. The proposed development is permissible with consent in this zone. Randwick Development Control Plan 2012 (DCP 2012) applies to the application.

5. The council maintained that the proposed development should be refused on the basis of:

1. unreasonable impact on the streetscape;

2. excessive height;

3. excessive floor space ratio;

4. overdevelopment;

5. inadequate setbacks;

6. poor visual privacy; and

7. inadequate car parking.

6. On 21 December 2016 the Registrar of the Court granted leave for the applicant to rely on amended plans. Consequently, the council accepted that the amended plans addressed all the contentions raised by the council earlier in their statement of facts and contentions.

7. During the hearing, a joint report was tendered by Mr Kerry Kyriacou for the council and Mr Anthony Betros for the applicant. This report identified the changes in the amended plans and the reasons that the amended plans had overcome the previous concerns raised by the council. Consequently, no issues remained between the council and the applicant.

8. Mr Richard Smart, an adjoining resident, spoke on behalf of himself and a number of adjoining and nearby residents. While accepting that the amended plans addressed some of his concerns, Mr Smart said that a number of concerns still remained. These included:

1. loss of privacy;

2. noise impacts;

3. inadequate parking;

4. loss of two mature trees;

5. excavation;

6. asbestos removal; and

7. length of time for construction.

9. With an understanding of the amended plans and having previously visited the site, I am satisfied that the concerns raised by Mr Smart do not support the further amendment or refusal of the application for the following reasons. First, any potential loss of privacy is adequately addressed through the orientation of the primary living and balcony areas to the front and rear of the proposed buildings. When this is combined with additional screening and compliant side and largely compliant rear setbacks, then I accept that adequate privacy is provided. Mr Smart's suggestion that the balconies should be fully enclosed cannot be justified in this case.

10. Second and on the concern over noise; there is no reason why additional noise should be generated that could not reasonably be expected in a R3 zoned residential area.

11. Third, parking satisfies the council's requirement in DCP 2012 so it cannot be reasonably argued as a reason to refuse the application.

12. Fourth, excavation is satisfactorily addressed in conditions 36, 47 and 48, asbestos removal in condition 46, and any tree removal by condition 66. I note a new landscaping plan is required by condition 43.

13. In coming to the conclusion to grant consent, I note that the amended plans satisfy the council's requirements for height and front and side setbacks. The variation to the rear setback is some 72 millimetres and I agree with the experts that this variation is acceptable. The 0.75 to 1 FSR requirement is not satisfied by the proposed development, it having an FSR of 0.87 to 1 however I have reviewed the cl 4.6 written request to vary the development standard and I agree with the planning experts that this variation can be supported in this case.

14. There being no reason why consent should not be granted, the orders of the Court are:

1. The appeal is upheld.

2. DA/311/2016 for the demolition of all existing improvements and the construction of a residential flat building at 194-196 Carrington Road, Randwick is approved subject to the conditions in Annexure A.

3. The exhibits can be returned with the exception of exhibits 1, B and C.

____________

G Brown

Commissioner of the Court

240376.16 Brown (C) (190 KB, pdf)

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Decision last updated: 26 April 2017