Barua No. 4 Pty Ltd v Randwick City Council

[2021] NSWLEC 1156

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barua No. 4 Pty Ltd v Randwick City Council [2021] NSWLEC 1156

Hearing dates:

22 March 2021

Date of orders:

30 March 2021

Decision date:

30 March 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the application and rely upon amended plans marked Exhibit A, subject to the Applicant paying the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $2,000.

(2) The Applicant’s written request prepared in accordance with cl 4.6 of the Randwick Local Environmental Plan 2012 is upheld.

(3)   The appeal is upheld.

(4)   Development consent is granted to Development Application DA/676/2019 seeking consent for demolition of existing structures, construction of part-three and part-four storey residential flat building with 7 dwellings (6 x 3 bedrooms and 1 x 2 bedrooms) and 18 carparking spaces over two basement levels at 31 and 33 Melrose Parade, Clovelly, subject to conditions of consent at Annexure ‘A’.

(5)   All exhibits are returned, except for exhibits A, B, H and K.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development – view loss – Foreshore Scenic Protection Area

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Randwick Local Environmental Plan 2012

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

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Apartment Design Guide

Practice Note - Class 1 Development Appeals

Category:

Principal judgment

Parties:

Barua No. 4 Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/57318

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Randwick City Council (the Respondent) of Development Application DA/676/2019 seeking consent for demolition of existing structures, construction of part-three and part-four storey residential flat building with 7 dwellings (6 x 3 bedrooms and 1 x 2 bedrooms) and 18 carparking spaces over two basement levels at 31 and 33 Melrose Parade, Clovelly (the site).

2. On 4 February 2021, the Applicant was granted leave to amend the application and rely upon amended plans which the parties agree had the effect of resolving a number of contentions.

3. At the outset of the hearing, the Applicant sought to further amend the application and rely upon amended plans, unopposed by the Respondent, that are said to flow from the conferring of town planning experts in the matter.

4. The Applicant was granted leave, subject to costs thrown away pursuant to s 8.15(3) of the EPA Act, and the amended plans were marked Exhibit A.

5. Following further discussion between the planning experts at the conclusion of the first day of the hearing, the parties reached agreement on proposed draft without prejudice conditions of consent marked Exhibit 4.

6. Finally, amended plans were then prepared by the Applicant on the second day of the hearing that incorporate the agreement of the experts in respect of window openings and glazing treatment, privacy screening and amendments to balconies, marked Exhibit K.

7. As a consequence of the amended plans at Exhibit K, and the agreed conditions of consent at Exhibit 4, the parties prepared a joint jurisdictional note (Exhibit J) and submit that it is open to the Court to grant development consent.

8. In circumstances where the Respondent agrees to the grant of development consent, the Court is nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent.

9. I am also required to consider the evidence and submissions of the objectors. The Practice Note - Class 1 Development Appeals sets out the procedural requirements at paragraph 95:

“At the hearing, the parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

1. the content of the proposed orders (including the proposed conditions of consent);

2. the date of the hearing by the Court to consider making the proposed consent orders; and

3. the opportunity for any such person to be heard,

4. or that, in the circumstances of the case, notification is not necessary.”

10. For the reasons set out in my judgment below, I have determined that it is appropriate to grant development consent. A residential flat building is permissible in the zone, the proposal complies with the height of buildings development standard, and with the design objectives found in the Apartment Design Guide (ADG).

11. I have also found that although the proposed development will result in view loss to certain apartments at No. 29 Melrose Parade, the impact is largely unavoidable given the topography of the land, and orientation of the views in relation to the subject site and the property at No. 29 Melrose Parade.

12. That said, the proposed development exceeds the floor space ratio (FSR) permitted on the site by operation of cl 4.4 of the Randwick Local Environmental Plan 2012 (RLEP) and so I intend to address the written request on which the Applicant relies before I set out my reasons as to the other issues in this matter.

The site and its context

13. The site comprises two individual lots known as Nos 31 and 33 Melrose Parade, Clovelly that are legally described at Lot 2 and Lot 3 in DP 72145. Each lot is currently occupied by a single storey detached dwelling.

14. Together, the Lots present a width of 26.215m to the Melrose Parade frontage which is the northern boundary of the site, and a depth of 36.455m as measured along the eastern boundary resulting in a total site area of 956.4m².

15. The site has a significant cross fall from west to east of around 4.2m measured along the Melrose Parade frontage, as well as a fall from Melrose Parade to the rear of the site.

16. The adjoining property to the east of the site is a two-storey semi-detached dwelling at No. 35 Melrose Parade.

17. The adjoining property to the west of the site is a four-storey residential flat building at No. 29 Melrose Parade with ground floor carparking that is accessed by a driveway from Melrose Parade.

18. To the rear of the site, along the southern boundary, is a two-storey residential flat building at No. 1 Thorpe Street.

19. The site, and its immediate locality, enjoys desirable views looking eastwards towards the northern headland at Clovelly beach, and south to Wedding cake Island and to Coogee beyond, over Gordons Bay.

20. A number of existing residents object to the loss, in whole or in part, of these views. Accordingly, the proceedings commenced with an onsite view.

21. Due to the number and nature of the resident objections to the proposal, the Court was taken to certain apartments in No. 29 Melrose Parade from which the views were observed to the north, east and south.

22. Prior to the commencement of the onsite view, the Applicant had erected height poles denoting the relative level of the proposed parapet, the location of which is set out in a plan of levels and detail prepared by Cibar Surveying Pty Ltd dated 19 March 2021 and marked Exhibit E.

23. In the company of the legal representatives and experts, I attended apartment Nos 2, 4, 5 and 6.

24. Mr Alan Hoppe’s oral submission was heard from within apartment No. 2, and may be summarised as follows:

• The site poles erected on the site are not correct as they do not accurately indicate the southern extent of the building that will impact Mr Hoppe's apartment.

• Mr Hoppe will experience loss of significant views to the water, and natural daylight, including from a number of locations in the apartment.

• The proposal will gain an uninterrupted view of the coast at the expense of existing residents such as himself.

25. Dr Roncolato, who is the owner of apartment No. 4 provided an oral submission via Microsoft Teams at the commencement of the hearing which summarised objections contained in his written submissions, including submissions in support prepared by Arnold Planning and GMU Consulting (Exhibit 2, folios 717-747 and 784-800), and emphasized the following:

• Dr Roncolato purchased the apartment around 10 years ago, due in large part to the views of the headland that are iconic and would be lost due to the impact of the proposed development.

• The written request seeking to justify the contravention of the FSR standard is not well founded, as it is not consistent with the objectives of the standard and should follow certain decisions of the Court.

• A more skilful design would not remove, but would effectively share, the views otherwise lost to the proposed development.

The FSR development standard is exceeded

26. It is commonly held by the parties that the proposed development exceeds the FSR standard of 0.9:1 identified on the Floor Space Ratio Map at cl 4.4(2) of the RLEP. The FSR resulting from the proposed development is expressed as 1.23:1.

27. The Applicant relies upon a written request prepared in accordance with cl 4.6 of the RLEP by ABC Planning dated March 2021 found at Appendix 3 of the joint expert report marked Exhibit 3.

28. I note here that the experts agree that the contravention of the FSR standard is justified. However, cl 4.6 of the RLEP requires that a consent authority, or the Court on appeal, consider a written request and secondly, be satisfied in respect of those matters set out at cl 4.6(4)(a) of the RLEP.

29. Mr Hemmings SC, counsel for the Applicant, submits that consideration of a request that seeks to justify the contravention of the FSR development standard requires an approach that varies from that in which a particular element or component of the proposed development may be said to be the origin of the departure from the standard.

30. In this case, the FSR cannot be identified as a particular element or component of the building although an aspect of the exceedance is acknowledged to derive from the provision of car parking in excess of the car parking rates contained in Table 1 at Section 3.2, Part B7 of the Randwick Development Control Plan 2013 (RDCP).

31. I note here that the experts agree that while additional gross floor area accrues from the provision of car parking in excess of the RDCP, as the area is below ground and so not visible, the additional area does not generate adverse impacts in terms of visual bulk or amenity and that there is a benefit to the site and the local area from the excess parking accessed from one kerb crossing and driveway in place of two as would result absent site amalgamation.

32. The written request relies on a number of grounds that are particular to the proposed development and to the site which it asserts are reasons that compliance with the development standard is unreasonable or unnecessary as required by cl 4.6(3) of the RLEP.

33. Firstly, the proposed development, when an FSR of 1.1:1 is considered, results in an FSR of 59.5% of the building envelope which complies with the ADG’s guidance that FSR should be no greater than 70% of the building envelope.

34. Secondly, the written request advances the proposition that floor space generating the contravention is as a result of the Applicant’s decision to amalgamate the lots identified in [13].

35. Absent amalgamation, if the two lots were developed independently, each would require separate lift and fire stairs cores which are excluded from FSR calculations but contribute to bulk and scale. As a result of amalgamation, only one lift and stair core is required which generates greater gross floor area.

36. Likewise, if developed independently, the area between the built forms on two sites would be external space formed by a setback of 2m from side boundaries which is less desirable as it is more likely to generate adverse impacts, including greater view loss, on adjoining properties than the 4m minimum setbacks evident in the proposed development on the amalgamated sites. The extent of this area is illustrated in Figure 4 of the written request.

37. Furthermore, the distribution of floor area on an amalgamated site enables setbacks that are greater than 4m in the north-west and south-west corner of the development which, combined with a wall height that is lower than the allowable height of 12m, provides for the retention of views from adjoining apartments at No. 29 Melrose Parade.

38. Additionally, the distribution of FSR on the site permits the adjoining property at No. 1 Thorpe Street to retain solar access.

39. Finally, the contravention of the FSR standard does not preclude the provision of deep soil landscaping and landscaped area which is in excess of that required by the RDCP and which is, in turn, greater than the numerical requirements contained in the ADG.

40. The written request also seeks to directly address the objectives of the FSR standard, at cl 4.4 of the RLEP, which are in the following terms:

(a)  to ensure that the size and scale of development is compatible with the desired future character of the locality,

(b)  to ensure that buildings are well articulated and respond to environmental and energy needs,

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

(d)  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 views.

41. The written request states that the objectives of the FSR standard are achieved as follows:

1. In respect of objective (a), the size and scale of the proposed development wholly complies with the wall height control in the RDCP, and height of buildings standard at cl 4.3 the RLEP and exceeds the front, side and rear setbacks required to provide a form that is consistent with the desired future character of the area.

2. In respect of objective (b), the built form is stepped vertically in section, and uses a mix of colours, materials and finishes so as to be well-articulated, and responds to the environmental and energy needs by ensuring natural cross ventilation and orientation so that 5 of the 7 apartments achieve 2 hours of direct solar access in living and private open space areas on 21 June.

3. As the site is not a heritage item, nor located within a heritage conservation area, objective (c) is not applicable.

4. In respect of objective (d), no adverse impact is generated by bulk or scale on streetscape from the contravention, nor do adverse privacy impacts arise on adjoining properties given the primary orientation of apartments to the north and south of the site and provision of privacy screens. Overshadowing impacts have been minimised, as have the impacts of view loss through compliant height and modulation of the built form to retain views where possible.

42. Next, for reasons that are virtually identical to those set out at [33]-[39], the written request considers there to be sufficient environmental planning grounds to justify the contravention of the FSR standard. The result is a built form that will present to Melrose Parade as a 3-storey form and be perceived from the public domain as one-storey below the residential flat building at No. 29 Melrose Parade.

43. I am satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(4)(a)(i) of the RLEP. In particular, I accept that the proposed development is, notwithstanding the contravention of the FSR standard, entirely consistent with the controls that give shape to the desired future character of the area. The reason for this consistency, in part, derives from the amalgamation of the site.

44. In arriving at this state of satisfaction, I accept that the Court does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b) of the RLEP, but only indirectly form such an opinion and on the basis that the Applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b) of the RLEP (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [25]).

45. That said, I note here that the FSR as expressed at [33] is at odds with the FSR as agreed by the parties at [26]. Expressing the corrected FSR as a percentage of the building envelope would still appear to lie within the guidance of the ADG as the threshold of 70% of the building envelope applicable to the amalgamated site is 1.87:1.

46. The written request also sets out grounds on which the proposed development is consistent with the objectives of the R3 Medium Density Residential zone set out in the Land Use Table at cl 2.3 of the RLEP.

47. The objectives of the R3 zone are in the following terms:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

•  To protect the amenity of residents.

•  To encourage housing affordability.

•  To enable small-scale business uses in existing commercial buildings.

48. The written request asserts that the proposed development is consistent with the relevant objectives of the zone by providing a part-three, part-four storey residential flat building that is consistent and compatible with the area’s existing and desired future character by increasing the amount of 2- and 3-bedroom apartments.

49. I accept that the proposed development is consistent with the objectives of the FSR standard, and with the objectives of the R3 zone. I am also satisfied that the proposed development is in the pubic interest because of that consistency.

50. In arriving at my opinion of satisfaction, I have considered the following:

1. Firstly, I accept that the amalgamation of the lots at Nos 31 and 33 Melrose Parade provides a basis for the distribution of gross floor area on the site in a manner that provides for the retention of some views, even to those apartments at No. 29 Melrose Parade that are at a lower level. In particular, I note the setback to the north-west and south-west of the site that allows distant, diagonal views to be retained. In the case of the south-western setback, those views are to water and to significant natural features such as Wedding Cake Island.

2. Secondly, I note Dr Roncolato is of the view that the wording of objective (d) contains no qualifying text that would, if present, suggest some latitude in the degree of impact on the amenity of adjoining and neighbouring land. Absent this text, the objective, in Dr Roncolato’s mind, accommodates no latitude and any impact on the amenity of neighbouring land causes the application to fail. However, it is my view that the adverse impact imposed upon those apartments at No.29 Melrose Parade is as a result of a complying height that is unrelated to the contravention of the FSR standard.

1. The views that are lost are over a side boundary, as a result of an envelope that is well within the wall height control at Section 4.4, Part C2 of the RDCP, the setback controls at Section 3.4, Part C2 of the RDCP and even more demonstrably is within the overall height of building control of 12m at cl 4.3 of the RLEP. Furthermore, the proposal includes a flat, not a pitched, roof so as to further accommodate the retention of views and amenity of neighbours. In these ways, I consider the proposed development to have taken into account the protection of the amenity of existing residents at No. 29 Melrose Parade, balanced with the controls applicable to the site.

2. I also note the agreement of the experts on p6 of the joint expert report to the effect that the proposed development as it is now amended by the architectural plans at Exhibit K to have “reasonably minimised the extent of view loss by providing for a modest building height which is a storey below that permitted by the 10.5m wall height and 12m overall building height”.

51. I have also considered the matters in subcll 4.6(5)(a), (b) and (c) of the RLEP as to whether any matter of significance for State or regional environmental planning is raised, and the public benefit of maintaining the standard. I conclude that in the circumstances of this case, and for the reasons outlined above, that the standard can be contravened because the proposed development is consistent with development anticipated by the controls, including the contravention for which cl 4.6 of the RLEP is capable of varying.

52. For the reasons set out above, I am satisfied that the written request prepared in relation to cl 4.4 of the RLEP and in accordance with cl 4.6 of the RLEP should be upheld.

53. However, there are a number of matters of which the Court must be satisfied before granting development consent.

54. At cl 6.2(3) of the RLEP, there are matters to be considered in respect of earthworks. On the basis of the geotechnical investigation (Exhibit A, tab 12) prepared by EI Australia dated 5 September 2019, and the proposed conditions of consent, I am satisfied that the earthworks associated with the development the subject of the development application will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

55. At cl 6.4 of the RLEP, the Court must be satisfied of certain matters set out at subcl (3) in respect of stormwater management. While I note stormwater plans appear at Exhibit A, tab 6, the conditions of consent are express as to the drawings and details required of the Applicant.

56. I also consider the extent of permeable surfaces indicated in the landscape plans (Exhibit C) and I am satisfied that the relevant matters at cl 6.4(3) are addressed.

57. As the site is identified in the Foreshore Scenic Protection Area Map at cl 6.7(2) of the RLEP, the Court must be satisfied that the proposed development is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas, and that it contributes to the scenic quality of the coastal foreshore.

58. I note the agreement of the planning experts at par 54 of the joint report that the built form will be acceptable when viewed from the foreshore, and will be viewed against a backdrop of existing residential flat buildings. I accept the agreed position of the experts, which is assisted by Figures 7 & 8 in the joint report. I also note, and I accept, the statement made in the Statement of Environmental Effects (Exhibit A, tab 9, p32) that the visual impact is minimised by the choice of colours and finishes. For these reasons, I am satisfied that the proposed development complies with the provisions of cl 6.7(3) of the RLEP.

59. Relatedly, and for similar reasons, I am also satisfied that the proposed development is designed, sited and will be managed to avoid an adverse impact of a kind set out at cl 14(1)(a) of the State Environmental Planning Policy (Coastal Management) 2018. In particular I note the vertical stepping of the built form in section, combined with the side and front setbacks appropriately deal with the views from public places in Melrose Parade to the foreshore beyond.

60. Clause 7(1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) prohibits the grant of development unless the consent authority, or the Court on appeal, has considered certain matters. I am satisfied, on the basis of the explanation provided, supported by the aerial photograph, at p21 of the Statement of Environmental Effects, that there is no evidence of contaminating uses on the site.

61. As the application is for residential apartment development, the provisions of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply. Clause 28(2) requires the Court to take into consideration the following:

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide

62. Advice obtained from the Design Excellence Panel, dated February 2020 is at Exhibit 2, tab 9. The parties agree that the design was amended subsequent to this advice. The summary and recommendations appear at folio 483. Among the recommendations is for the top floor of the proposal to be amended so as to comply “with the Council’s setback controls with a resultant reduction to view impacts.”

63. The View Impact studies at Exhibit H show the outline of the ‘previous envelope’ and ‘current envelope’ which identifies a reduction in the top floor. The parties agree that Drawings DA-500, DA-530 and DA-532 and DA-533 do not show the further reduction incorporated into the Exhibit K plans that have the effect of reducing the view impact to certain apartments at No. 29 Melrose Parade.

64. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to subcll 28(2)(b) and (c). I am satisfied that the statement provided by Conrad Johnston (Reg No.8270), dated 18 March 2021 (Exhibit D) is in a complying form, and is supported by diagrams and illustrations that aid the explanation sought by cl 50(1AB)(b)(ii) of the EPA Regulation, and my consideration of those matters at [60].

65. The application is also accompanied by a BASIX certificate (Certificate No. 1174162M_02, dated 22 March 2021) prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Public submissions

66. In this case, it is clear that a significant concern of existing residents at No. 29 Melrose Parade and No. 1 Thorpe Street is the loss of natural daylight resulting from the extent of built form proposed, and the impact on views likely to flow from this.

67. I have already considered the solar access to No.1 Thorpe Street, and I note here the property is disadvantaged by its location at a lower position in the local topography, which is also south of the subject site.

68. In further considering the question of views, I note that the Respondent Council sets out its expectations for view sharing at Section 5.5, Part C2 of the RDCP and explains view sharing in the following way:

“Many residences and public places in Randwick City enjoy views to the ocean, coastline, parks and distant skyline of Sydney CBD and Bondi Junction. Some elements are recognised as prominent natural landforms (such as Wedding Cake Island) or significant man-made artefacts, and carry scenic and iconic values.

The concept of view sharing concerns with the equitable distribution of views between developments and neighbouring dwellings and the public domain. View sharing control aims to achieve a balance between facilitating quality development and preserving an equitable amount of views for the surrounding properties as far as is practicable and reasonable.

View sharing does not prescribe the total retention of all significant views and vistas. In established inner metropolitan areas like Randwick City, developments would inevitably cause varying degree of view loss. The intent of the DCP is to ensure developments are sensitively and skilfully designed, so that a reasonable level of views is retained for the surrounding areas.”

69. Dr Roncolato also invokes the planning principle set out in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).

70. Adopting the four-step test in Tenacity, I accept that a number of the views affected are significant, and include views of the open ocean and horizon, headlands and the land water interface.

71. Those views are obtained from living areas that are located in the middle of the floor plan at each level of the residential flat building at No. 29 Melrose Parade. Those views have also been enjoyed partly due to the ‘under-developed’ nature of built form at Nos 31 and 33 Melrose Parade.

72. The area is zoned R3 Medium Density Residential, with a building height of 12m. Considering this fact in isolation, a built form is anticipated on this site that could have the effect of removing a greater area of view than that proposed.

73. The impact is to all apartments, but particularly so to apartment Nos 1-4 which are on the levels below apartments 5 and 6. The views directly east to the water are particularly affected.

74. Views to the north and south, including views to water, are retained by virtue of the staggered, or stepped setbacks to the north west and south west of the site. Likewise, the proposed development steps vertically in section, with setbacks increased at the top floor. This has the effect of ameliorating the impact on views through what I conclude is skilful design that reasonably maintain existing view corridors to significant elements (Control (i)), adopts a balanced approach to privacy protection and view sharing (Control (v)), and demonstrates steps taken to mitigate potential view loss impacts (Control (vi)).

75. While a number of the residents will undoubtedly be adversely impacted by the proposed development, the impact is generated by a built form that is anticipated by the controls, including the FSR which, while in excess of that stipulated in cl 4.3 of the RLEP, is justified by operation of cl 4.6 of the RLEP.

76. Accordingly, I have determined to grant development consent to the proposed development.

Orders

77. The Court orders that:

1. The Applicant is granted leave to amend the application and rely upon amended plans marked Exhibit A, subject to the Applicant paying the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $2,000.

2. The Applicant’s written request prepared in accordance with cl 4.6 of the Randwick Local Environmental Plan 2012 is upheld.

3. The appeal is upheld.

4. Development consent is granted to Development Application DA/676/2019 seeking consent for demolition of existing structures, construction of part three and part four storey residential flat building with 7 dwellings (6 x 3 bedrooms and 1 x 2 bedrooms) and 18 carparking spaces over two basement levels at 31 and 33 Melrose Parade, Clovelly, subject to conditions of consent at Annexure ‘A’.

5. All exhibits are returned, except for exhibits A, B, H and K.

……………………

T Horton

Commissioner of the Court

Annexure A (399832, pdf)

Plans (37511190, pdf)

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Decision last updated: 30 March 2021