Fran Development Pty Ltd v Randwick City Council

Case •

[2025] NSWLEC 1213

•

08 April 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Fran Development Pty Ltd v Randwick City Council [2025] NSWLEC 1213
Hearing dates: 5 and 6 March 2025
Date of orders: 08 April 2025
Decision date: 08 April 2025
Jurisdiction:Class 1
Before: Thorpe AC
Decision:

The Court orders:

(1) The written requests seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Randwick Local Environmental Plan 2012, prepared by SJB Planning and dated 2 December 2024, are upheld.

(2) The appeal is upheld.

(3) Development Application No DA/131/2024, as amended, for construction of a 2-storey dwelling house and 2 x 2-storey semi-detached dwellings, Torrens title subdivision, and associated ancillary earthworks and landscaping works at 45-51W Burnie Street, Clovelly on land legally described as Lot 4 in DP 6512 and Lot 2 in DP 606041, also known as 45-51W Burnie Street, Clovelly, is determined by the grant of consent subject to the conditions at Annexure A.

(4) The following exhibits are returned: F, H, J, 5.

Catchwords:

DEVELOPMENT APPEAL – residential development – flood impacts – weight to be given to zone objectives – bulk and scale – contravention of height development standard – adequacy of the written request

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 8.7

Environmental Planning and Assessment Regulation 2021 ss 23, 27

Randwick Local Environmental Plan 2012 cll 4.3, 4.6, 5.21, 6.2, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Cases Cited:

BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Clovelly Montessori Academy Pty Ltd v Randwick City Council [2020] NSWLEC 1051

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Texts Cited:

Randwick Development Control Plan 2023

Category:Principal judgment
Parties: Fran Development Pty Ltd ACN 672589356 (Applicant)
Randwick City Council (Respondent)
Representation:

Counsel:
A Pickles SC (Applicant)
T Robertson SC (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/145426
Publication restriction: No

JUDGMENT

  1. COMMISSIONER: Fran Development Pty Ltd (Fran Development) appeals under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council (Council) of development application no DA/131/2024 (DA) for subdivision and construction of three dwellings at 45-51W Burnie Street, Clovelly, legally described as Lot 4 in DP 6512 and Lot 2 in DP 606041 (site).

  2. Burnie Street is a flood hotspot. The site has been vacant since 1953, when the dwellings at 51 Burnie Street were demolished. The site is on the lower side of the street and, as the first gap after an unbroken row of shop top housing, has been operating as an informal floodway and storage area. Yet it remains zoned for residential development.

  3. For the reasons outlined below, I have concluded that the DA should be determined by the grant of development consent, subject to conditions.

Issues

  1. The contentions that remain in dispute may be summarised as follows:

  • Whether the development meets the requirements of the flood planning controls in cl 5.21 of Randwick Local Environmental Plan 2012 (RLEP).

  • Whether the applicant's requested variations to the height development standard are well founded and worthy of support.

  • Whether the proposed earthworks are consistent with cl 6.2 of RLEP.

  • Whether the built form and design is acceptable, given non-compliances with controls for lot frontages, deep soil, landscaping, side setbacks, compatibility with the character of the locality and streetscape, and visual privacy.

Site and setting

  1. For this and the following descriptive sections I rely on Council’s amended statement of facts and contentions (SOFAC) (Ex 7) and the Statement of Environmental Effects (SEE) (Ex A, tab 2).

  2. The site has an area of 1,052m2 and a frontage of 26.24m to Burnie Street. The rear of the site is approximately 3.3m lower than the frontage to Burnie Street. A Sydney Water sewerage pipe runs from the southwest to the northeast of the site, at a depth of 11-12AHD (10m or more below natural ground level). The site is otherwise vacant.

  3. The Metropolitan Water Sewerage and Drainage Board (now Sydney Water) acquired the site in 1952 and in 1953 demolished what appears to have been a duplex at 51 Burnie Street (Ex E, tab 10). Prior to selling the site, in 2015 Sydney Water undertook remediation works involving excavation to depths of up to 1.5m. The site was not backfilled to natural ground level and now slopes down towards the centre.

  4. The site sits between a row of shop top housing to the west along Burnie Street, and pairs of semi-detached dwellings to the east. The locality includes semi-detached dwellings, residential flat buildings and residential dwellings.

Figure 1. Site, as shown in Nearmap, October 2023 (Ex A, tab 2, p 5).

  1. An application for development consent for the construction of a childcare centre on the site was refused by this Court in 2020 (Clovelly Montessori Academy Pty Ltd v Randwick City Council [2020] NSWLEC 1051 (Clovelly Montessori)). That case was decided primarily on the basis that the proposed development involved a breach of the height standard which was not adequately justified under cl 4.6 of RLEP. Flooding was also considered, with the Court finding insufficient evidence to be satisfied that the relevant requirements of RLEP were met. Smithson C said that the proposed flood mitigation works were excessive and “would not normally be associated with low density residential development but are specifically required to support the proposed use” at [238].

Background and the proposal

  1. The DA was lodged on 28 February 2024. Fran Development commenced proceedings on 18 April 2024. On 13 December 2024, the Court granted leave to amend the DA.

  2. The DA and the amended DA were notified by Council, attracting five and seven submissions respectively. These raised issues including:

  1. Non-compliant building height and FSR.

  2. Privacy impacts.

  3. Non-compliances with RDCP including setbacks, deep soil, frontage width, streetscape compatibility, bulk and scale.

  4. Flooding concerns.

  5. Land subsidence and asbestos concerns.

  6. Tree removal concerns.

  7. Construction impacts.

  8. Concerns about boundary encroachment, survey and geotechnical information provided.

  1. These issues were generally consistent with Council’s original contentions. By the time of the hearing, some were no longer pressed. As outlined in Council’s amended SOFAC (Ex 7), contentions regarding FSR, site contamination and tree removal were resolved subject to the imposition of conditions of consent. Concerns about setbacks and visual privacy were addressed in part.

  2. The DA, as amended, proposes:

  • Construction of three two-storey dwellings, one freestanding and two semi-detached. Each includes four bedrooms and a swimming pool.

  • Subdivision of the two existing lots to create three new Torrens Title lots with the following areas:

  1. Lot 2 (free standing dwelling) = 350.6m2 (currently 426m2)

  2. Lot 4A (semi-detached dwelling) = 338.4m2

  3. Lot 4B (semi-detached dwelling) = 363.8m2 (combined proposed total of Lots 4A and 4B is 702.2m2, currently 627m2).

  • The proposal involves nominated landscaping and earthworks.

Relevant planning controls

  1. The site is zoned R2 Low Density Residential under RLEP. The DA is permissible with consent.

  2. The site is subject to a height control of 9.5m and a floor space ratio (FSR) control of 0.6:1 under cll 4.3 and 4.4 of RLEP.

  3. Clause 5.21 applies because the site is within the flood planning area. Clause 5.21 provides:

(1) The objectives of this clause are as follows—

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5) In this clause—

Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.

flood planning area has the same meaning as it has in the Flood Risk Management Manual.

Flood Risk Management Manual means the Flood Risk Management Manual, ISBN 978-1-923076-17-4, published by the NSW Government in June 2023.

Proceedings

  1. Proceedings commenced with a view of the site and locality. The Court heard from five submitters and undertook views of the site from within adjoining properties to the east and north of the site. The parties provided an agreed summary of the lay evidence (Ex 10).

  2. Much of the lay evidence was similar to that provided in written submissions. Additionally, an adjoining landowner raised concerns about the delay in developing the site. They said that the failure to backfill the site after excavation was causing subsidence on their property.

  3. The applicant relied on the expert evidence of Anthony Mancone (engineering) and Scott Barwick (planning). Council relied on the expert evidence of Owen de Jong (engineering) and Paul Grech (planning).

  4. The experts prepared joint expert reports (Engineering JER, Ex 3 and Planning JER, Ex 4) and gave oral evidence. Mr Grech provided an addendum to the Planning JER (Ex 9).

  5. Below I address the issues in dispute, noting that these involve jurisdictional findings. I then address the remaining jurisdictional preconditions to the grant of consent under the relevant environmental planning instruments.

Flood planning

Expert evidence

  1. The experts agree that:

  1. All reasonable measures to minimise risk to life and property associated with the use of the land have been included within the DA, such that objective (a) of cl 5.21(1) of RLEP is achieved. These measures include:

  1. Habitable floor levels higher than the probable maximum flood (PMF) level.

  2. Structures being designed, constructed and certified to be able to withstand the forces of flood water from a PMF event.

  3. A shelter in place strategy for occupants as the building provides a safe place to remain during a flood event.

  1. Evacuation is not possible due to high flood hazards on Burnie Street which are considered unsafe for vehicles and people. The capacity of existing evacuation routes is already exceeded.

  2. The proposed development is not expected to adversely affect or cause erosion, siltation, destruction of riparian vegetation or reduction in river bank stability.

  3. Pre and post development mapping shows impacts on the driveway of the easternmost dwelling proposed in the DA, and nearby within the road reserve on Burnie Street. While there was some disagreement as to the depth of this increase, the experts agree that it is in the order of 100-200mm and that Burnie Street is already functioning as a floodway. No other properties are affected.

  4. The controls in subcll 5.21(2)(d) and (e) are met, and the control in subcl (c) is partially met.

  1. Mr Mancone’s opinion is that the remaining objectives in cl 5.21(1) and controls in subcl (2) are met, and the matters for consideration in subcl (3), including consideration of climate change, have been adequately addressed.

  2. Mr de Jong is of the opinion that residual risks remain due to the site being affected by a high hazard floodway. In evidence, Mr de Jong explained that these risks relate primarily to children playing in the garden in the second peak of a dual peak flood event and to the inability of emergency services to access the property (e.g. for someone having a heart attack or for a house fire) during a flood. Mr Mancone is of the opinion that dual peak flood events will not occur at this location.

  3. Mr de Jong is also of the opinion that the post-development depth increase on Burnie Street means that adverse impacts on flood behaviour are not entirely avoided. Mr de Jong’s preference is that there be no habitable development on the site, and that rezoning be considered.

The applicant’s submissions

  1. Fran Development submits that the requirements of cl 5.21 are met. The experts agree that all reasonable measures to minimise risk to life and property associated with the use of the land have been included in the DA.

  2. The experts agree that the only impact beyond the site is a small increase in water elevation on Burnie Street. The flood maps show water of the same and greater depths and velocities up and across the road (Ex G, p 52). There is no evidence of any downstream impact or impacts on other properties. The controls in subcl (2)(a) and (b) are satisfied. The reference to “other development and properties” should be read in context to exclude the road reserve, given roads are referred to separately throughout RLEP.

  3. The experts agree that the property is suitable for safe occupation and that evacuation is not possible. Accordingly, subcl (2)(c) is satisfied.

  4. The long history of zoning the site for residential development needs to be given weight in determining the DA for residential development.

The respondent’s submissions

  1. Council submits that this site has functioned as a drainage reserve since Sydney Water owned it. Historically, development on the site has ignored flood risks. The Flood Risk Management Manual now requires a different approach.

  2. The control in cl 5.21(2)(b) is not met. The road reserve is property vested in council under s 145 of the Roads Act 1993. RLEP is an instrument made under the EPA Act, which defines development to include roads. “Adverse” is not qualified so it doesn’t matter that the increase in flood depth is modest.

  3. The control in subcl (2)(c) is not met. The risk associated with children playing in the garden during the second peak of a dual peak storm is one among a penumbra of others, such that the site is not suitable for shelter in place. Risk exposure is increased by bringing additional people into the area.

Findings

  1. I accept the applicant’s submissions that the requirements of cl 5.21 are met.

  2. I accept that the R2 zoning of the site should be given weight in this determination. This is consistent with the decision in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral). Citing McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399, Preston CJ said in Goldcoral at [25]-[26]:

“This long history of zoning the Iron Gates land for residential purposes and continuing to identify the land as an Urban Growth Area to meet the demand for residential development at Evans Head needs to be given weight in determining the development application for the subdivision of the land for residential purposes. In BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP Properties) at [117]-[118], McClellan CJ said:

“In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

McClellan CJ did qualify this statement of general principle where the zoning was imposed many years ago and may no longer reflect contemporary standards, saying at [119]:

“However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.”

This qualification is not applicable to the Iron Gates land. The appropriateness of the zoning of the land for residential purposes has been re-assessed continuously since 1983 when the land was first zoned for residential purposes by Richmond River Local Environmental Plan No 3. As I have earlier recorded, the residential zoning of the land was affirmed in 1992 by the Richmond River Local Environmental Plan 1992 and in 2012 by RVLEP. The land continues to be identified as an urban growth area to meet the demand for residential land: in 2016, by the NSW Government’s North Coast Regional Plan 2036; in 2020, by the Council’s Local Strategic Planning Statement: Beyond 20-20 Vision; in 2021, by the NSW Government’s North Coast Regional Plan 2041; and in 2023, by the Council’s Richmond Valley Growth Management Strategy. These continuing re-assessments of the suitability of the land for development for residential purposes have had regard to contemporary standards and the capability of the land to be developed for those purposes in an environmentally acceptable manner.”

  1. The qualification in BGP Properties is also inapplicable to this site, which has consistently been zoned for residential development. Like the proposal in Goldcoral, this DA can be seen to be environmentally acceptable and able to be approved subject to conditions.

  1. The experts agree that all reasonable measures to minimise risk to life and property associated with the use of the land have been included in the DA, and that the development would not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

  2. Unlike the childcare centre proposed in Clovelly Montessori, this DA is for residential dwellings and the flood mitigation works proposed have been designed for that purpose.

  3. I accept that “other development and properties” should be read in context such that the likely impacts of the DA on the road reserve are not included. I accept that the controls in subcll (2)(a) and (b) are satisfied, given the very modest increase in flood elevation on Burnie Street and the absence of downstream impacts.

  4. I am satisfied that the DA provides for safe occupation, and that evacuation is not appropriate at this site. The requirements of cl 5.21 are met.

Contravention of height development standard

  1. The proposal does not comply with the 9.5m height of buildings development standard applying to the land under cl 4.3 of RLEP. At its highest point, the proposed development would be approximately 10.9m (semi-detached dwellings), exceeding the development standard by 1.4m (14.7%). The freestanding dwelling would be 10.7m, exceeding the development standard by 1.2m (12.6%).

The written requests

  1. The applicant has submitted written requests under cl 4.6(3) of RLEP seeking to justify the contravention of the development standard. The latest requests, addressing the amended proposal, were prepared by SJB Planning and dated 2 December 2024 (Ex B, tab 5A (semi-detached dwellings) and 5B (freestanding dwelling)). The two requests are very similar.

  2. The written requests seek to justify the contravention of the height development standard by demonstrating that compliance is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard. As to the first matter, the requests contend that compliance with the height development standard is unreasonable or unnecessary because the objectives are achieved notwithstanding the noncompliance. The objectives of the height control are (cl 4.3):

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

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

(c) 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.

  1. With regard to objective (a), the requests note that the three dwellings present RLs of 31.7m to the Burnie Street frontage. At the front building alignment this complies with the height standard. The proposed heights provide a transition between development to the west (street parapet height of RL 35.32m), stepping down to the development to the east (top roof RL of 30.92m and street gutter level of RL 26.90m). The DA is compatible with the existing and intended future character of the locality as informed by the planning controls.

  2. The requests contend that objective (b) is achieved because the DA is not incompatible with the scale and character of the heritage item at 298 Clovelly Road, known as “Warrah Flats”. Warrah Flats is on an elevated position compared to the site and is separated from it by the Burnie Street/Clovelly Road reserve.

  3. The requests contend that objective (c) is achieved because the DA is of a compatible visual bulk and scale. The height non-compliance does not contribute to loss of visual or acoustic privacy or views. The DA is supported by solar impact and view analysis which shows that numerical non-compliance does not contribute to nor result in adverse impacts.

  4. As to the second matter required to be demonstrated, the request contends that there are sufficient environment planning grounds to justify contravening the development standard. The remediation of the site by Sydney Water resulted in the ground level (existing) for this development being significantly below the ground level for adjoining properties. If the DA was measured against pre-rehabilitation levels, it would be compliant as shown in Figure 2. Had the remediation been undertaken as part of this DA, the height would be compliant. The non-compliance arises from the sequencing of development.

  5. Given that the primary objective of the standard is to ensure that the scale of buildings is compatible with the locality, strict numerical compliance is not required because it does not lead to an improved relationship with or reduced environmental impact on adjoining properties.

Figure 2. Extract of sheet DA.303 Rev G – Height plane to interpolated ground level (Ex C).

Expert evidence

  1. The experts agree that the prior excavation and partially completed rehabilitation of the site resulted in a lower ground level, and that this potentially justifies the non-compliance with the height control.

  2. Mr Grech is of the opinion that the objectives of the height development standard are not fully achieved because the setbacks are inadequate. Mr Grech says that the minimum setback should be determined by reference to the current lot size, not the proposed lot size.

  3. Mr Barwick says that the setback requirement should be determined by reference to the proposed lot size. This is consistent with the diagram supporting the control at Section 3.3.2 of Randwick Development Control Plan (RDCP) (Ex 1, tab 17, folio 415, Figure 7).

  4. In assessing compatibility with the locality, Mr Grech is of the opinion that the streetscape should not be prioritised over the wider locality. The streetscape was developed prior to the current planning controls, which provide for greater setbacks between buildings and wider lot frontages.

  5. Mr Barwick’s opinion is that the priority for compatibility is the immediate visual catchment. The height of the DA provides an appropriate transition between shop top housing to the west and semi-detached dwellings to the east. The DA is consistent with the rhythm of the existing setbacks in the locality, including nil setbacks to the west.

Findings

  1. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3). I accept that the DA proposes an appropriate transition between existing development on either side. I accept that it is compatible with the streetscape and, in turn, the locality.

  2. I find that the proposed development would be in the public interest because it is consistent with the objectives of the height development standard and the relevant objectives for development within the R2 Zone. The objectives of the zone are:

• To provide for the housing needs of the community within a low 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.

  1. The proposed development would increase the supply of housing in the area. It has been designed to achieve consistency with the streetscape and to avoid impacts on the amenity of residents. The DA is consistent with the zone objectives.

Earthworks

  1. Council contends that the DA should be refused because the proposed development results in excessive and unnecessary earthworks in contravention of cl 6.2 of RLEP, and that the proposed earthworks are inconsistent with the earthworks requirements in RDCP.

  2. Fran Development contends that the earthworks are appropriate given the significant excavation previously undertaken at the site. This is supported by Mr Mancone’s evidence and by the report on proposed backfilling of the site prepared by Douglas Partners (Ex B, tab 10), which concludes on p 10:

“The proposal to backfill the current ground conditions to the pre-existing, natural surface levels is considered to be valid and important for the proposed site development and also for the stability of adjacent properties and infrastructure.”

  1. During the hearing, Council raised additional concerns regarding the lack of a construction plan, acoustic and vibration reports. Council acknowledged that these materials were not previously requested, despite specific contentions regarding additional information requirements.

  2. Fran Development submits that this information can be provided prior to the issue of a construction certificate. Mr Mancone’s opinion is that there are multiple ways in which construction could be undertaken to avoid detrimental impacts on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

  3. I have considered the matters required in cl 6.2(3) and I am satisfied that the earthworks proposed are acceptable. The requirements of cl 6.2 are met.

Built form and design

  1. Council raises non-compliances with controls in RDCP relating to lot frontages, deep soil, landscaping, side setbacks, fencing, compatibility with the character of the locality and streetscape, and visual privacy. I note that the requirements of development control plans are not statutory requirements (EPA Act, s 3.42(1)) and that flexibility is required in their application.

  2. Given I am satisfied that the DA is compatible with the streetscape and the locality and that the setbacks are acceptable, it follows that I am not persuaded that these are reasons for the DA to be refused.

  3. During the hearing, the experts reached agreement on measures which could improve the DA in relation to deep soil, landscaping, fencing, privacy and compatibility with the locality. These include:

  • Deleting the proposed “portal” elements above the pedestrian entries to comply with fencing requirements (condition 2(b)),

  • Reducing the depth of the pool coping to reduce the potential for overlooking (condition 2(c)),

  • For the semi-detached dwellings, deleting the proposed spa pools and reducing the pool deck areas to comply with landscaping and deep soil requirements (condition 2(f)),

  • Varying the façade materials to visually break down the scale of the buildings (condition 5).

  1. That leaves frontage widths. The applicant submits that the frontage widths are consistent with the streetscape and the locality, including the nil front and side setbacks to the west, and that there are no unacceptable privacy impacts resulting from the non-compliance.

  2. Subject to the changes proposed at [72], I am satisfied that the proposed built form and design are acceptable.

Other jurisdictional preconditions to the grant of consent

  1. Before turning to the merit issue of whether development consent ought to be granted for the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the determination of the development application by the grant of consent have been met.

  2. Owners’ consent has been provided in accordance with s 23(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

  3. In accordance with s 27 of the EPA Regulation, a BASIX certificate has been submitted.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Consideration has been given as to whether the subject site is contaminated as required by s 4.6. The Remediation Validation Report prepared by WSP (April 2015) considers the site suitable for low density residential use with garden-accessible soils. The requirements of s 4.6 are met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. Chapter 2 of this SEPP addresses vegetation in non-rural areas. Its objectives are to protect the biodiversity values of trees and other vegetation in non-rural areas and to preserve the amenity of non-rural areas through the preservation of trees and other vegetation.

  2. As shown in the Landscape Plan, the DA proposes to remove one tree on the site and two street trees, and to plant seven trees on the site (Ex B, tab 3). Fran Development has agreed to contribute financially to planting trees in the public domain (condition 18). I am satisfied that the proposed development would protect biodiversity values and enhance amenity by introducing more trees and vegetation.

Randwick Local Environmental Plan 2012

  1. Clause 6.4 seeks to minimise the impacts of stormwater and to improve water quality runoff. I am satisfied that the development has been designed to achieve the matters specified in cl 6.4(3).

  2. I am satisfied that the essential services required under cl 6.10 are available.

Merits of the proposed development

  1. On the matter of merit, the proposal is consistent with the planning controls and has no unacceptable environmental consequences. The DA will improve the streetscape and contribute to works in the public domain. It will also provide increased housing supply, while minimising impacts. The proposal is in the public interest.

Conclusion

  1. For the reasons outlined above, I am satisfied that the proposal warrants the grant of consent in accordance with the agreed conditions.

Orders

  1. The Court orders:

  1. The written requests seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Randwick Local Environmental Plan 2012, prepared by SJB Planning and dated 2 December 2024, are upheld.

  2. The appeal is upheld.

  3. Development Application No DA/131/2024, as amended, for construction of a 2-storey dwelling house and 2 x 2-storey semi-detached dwellings, Torrens title subdivision, and associated ancillary earthworks and landscaping works at 45-51W Burnie Street, Clovelly on land legally described as Lot 4 in DP 6512 and Lot 2 in DP 606041, also known as 45-51W Burnie Street, Clovelly, is determined by the grant of consent subject to the conditions at Annexure A.

  4. The following exhibits are returned: F, H, J, 5.

A Thorpe

Acting Commissioner of the Court

Annexure A (431216, pdf)

**********

Decision last updated: 08 April 2025

Most Recent Citation
Cases Citing This Decision

1

McCarthy v Shoalhaven City Council [2025] NSWLEC 1643