Hurst v Randwick City Council - [2025] NSWLEC 1628

Land and Environment Court

New South Wales

Medium Neutral Citation: Hurst v Randwick City Council [2025] NSWLEC 1628
Hearing dates: 23 and 24 April 2025. Final submissions received 7 May 2025.
Date of orders: 02 September 2025
Decision date: 02 September 2025
Jurisdiction: Class 1
Before: Porter C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development application number DA/544/2024, as amended, for the demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, in ground swimming pool, water feature, car parking and associated works at 242 Oberon Street, Coogee is determined by the grant of development consent subject to the conditions at Annexure A.
(3) All Exhibits are returned except Exhibits 1, 4, A and B.

Catchwords:
DEVELOPMENT APPEAL – new dwelling house – building envelope – setbacks – storeys – floor space ratio – variation to development standard – written request

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 3.43, 4.15, 8.7
Land and Environment Court Act 1979 (NSW),
ss 34AA, 39
Environmental Planning and Assessment Regulation 2021 (NSW), ss 35B, 38
Randwick Local Environmental Plan 2012, cll 2.3 4.4, 4.5, 4.6, 4.7, 6.2, 6.7, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:
Appel v Randwick City Council [2024] NSWLEC 1652
Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Veloshin v Randwick Council [2007] NSWLEC 428
Wehbe v Pittwater Council [2007] NSWLEC 827
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
Randwick Development Control Plan 2013

Category: Principal judgment
Parties: Scott Hurst (First Applicant)
Dana Kedzier (Second Applicant)
Randwick City Council (Respondent)
Representation: Counsel:
A Pickles SC (Applicants)
C Novak (Respondent)
Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s): 2024/408959
Publication restriction: Nil

JUDGMENT

COMMISSIONER: These proceedings are about whether a proposed dwelling is excessively large and adversely impacts on the adjoining neighbours.
The Applicants, Scott Hurst and Dana Kedzeir, (Hurst) have appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Randwick City Council’s (Council) actual refusal of development application DA/544/2024 (DA). The DA seeks development consent for demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, swimming pool, water feature and ancillary works.
The appeal is a Class 1 residential appeal. In accordance with s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), the proceedings commenced as a conciliation conference. An agreement could not be reached between the parties that would resolve the issues, and the conciliation conference was terminated. In accordance with s 34AA(2)(b), the hearing commenced immediately.
For the reasons set out, I find that development consent should be granted to the amended DA.

Amended Application

During the course of the hearing, the Applicant sought leave to amend the DA on several occasions. Council neither opposed nor consented to the changes. On the basis that the changes were minor, responsive to the contentions and could be dealt with by the respective experts during the hearing, the Court granted leave pursuant to s 39 of the LEC Act and s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg).
In summary, the key amendments comprised:

Changes to the proposed parking arrangements to include a parking turntable and associated changes.

Decreased deep soil in the front setback, offset within the rear setback with associated garden changes.

Amendments to confirm the retention of existing retaining walls.

Changes to the setbacks, planters, windows and bins.

Inclusion of a privacy screen.

Reduction of the terrace / pool RL to ensure that the pool fence does not exceed the height limit and other changes to the pool fence.

At the end of the hearing, I directed the parties to:

As proposed by Hurst, amend the section plan to remove the mistaken reference to any works to the adjoining retaining wall.

Provide an amended BASIX Certificate for the amended development.

Provide agreed conditions of consent, and submissions on any conditions in dispute.

The parties provided the above information on 5 May 2025 and 9 May 2025. The conditions received 9 May 2025 are substituted for Ex 3. The amended section plan is added to Ex A and the BASIX Certificate and associated documents are substituted in Ex B tabs 9 and 10.
On 24 July 2025 I sent an enquiry to the parties about inclusion of the Geotechnical Report in the conditions of consent. Hurst responded on 25 July 2025 with no objection. The Court sent a further self-executing communication on 29 July 2025, that if Council did not respond by 1 August 2025, that it would be assumed there was no objection to its inclusion. A response was not received and it is taken that there is no objection from Council.

Site description and locality

The subject site is known as 242 Oberon Street, Coogee and legally described as Lot C in DP 958173 (site). The site has an area of 312.15m² and frontage of 11.645m, rear boundary of 13.41m and depth of 36.757m. The site has a steep fall of approximately 6m from the rear of the site and contains dense vegetation along the reserve. An existing driveway sprawls across the frontage and further along Council’s verge in front of the adjoining Blenheim Park.
The site is currently improved by a now prohibited residential flat building, proposed to be demolished.
The site is zoned R2 Low Density Residential under the Randwick Local Environmental Plan 2012 (RLEP). On the opposite side of Oberon Street, the zoning is R3 Medium Density Residential, which permits a range of residential types including residential flat buildings, seniors living housing and multi dwelling housing.
The locality is a mix of dwellings and residential flat buildings, all situated on a steeply sloping topography up from the foreshore area (including Trenerry Reserve) and ranging in height between one to four storeys. The site is located at a high point (but not the highest point) on Oberon Street and lower than some dwellings south of the site on Dundas Street. A number of objectors reside along Dundas Street. Directly west of the site is Blenheim Park.
The hearing commenced on site. The parties drew the Court’s attention to the foreshore area, sloping topography, size of nearby dwellings and areas considered to be impacted by the proposal.

Issues

The following contentions are said by Council in its Statement of Facts and Contentions (Ex 1) (SOFAC) to warrant refusal of the application:

Contention 1 – Inconsistency with zone objectives.

Contention 2 – Excessive floor space ratio (FSR).

Contention 3 – Breach to the maximum RLEP building height (confirmed in oral submissions to be resolved).

Contention 4 – Breach to the Randwick Development Control Plan 2013 (RDCP) building height.

Contention 5 – Desired future character.

Contention 6 – Foreshore scenic protection area.

Contention 7 – Earthworks and excessive excavation.

Contention 8 – View sharing and view impacts to neighbouring properties.

Contention 9 - Side setbacks.

Contention 10 – Deep soil permeable surfaces.

Contention 11 – Private open space.

Contention 12 – Terraces.

Contention 13 – Building design.

Contention 14 – Visual privacy.

Contention 15 – Swimming pool.

Contention 16 – Solar access.

Contention 17 – Insufficient information regarding view loss analysis, vehicle manoeuvrability, lift dimension inconsistencies, retention of sandstone wall between the properties along the western boundary, inconsistency between the Arborist Report and plans about removal or retention of tree T9 (with no objections to its removal) and planting schedule details.

Expert Evidence

In accordance with its usual practice, the Court granted leave for expert evidence from town planning experts. Written and oral evidence was heard from Anthony Betros for Hurst and Thomas Awford for Council

Is the proposed development inconsistent with the zone objectives

Council pressed contention 1, that the proposed development is inconsistent with the relevant objectives of the R2 Low Density Residential zone. The contention details that the proposal is inconsistent with the desired future character as the scale of the dwelling is excessive against what is anticipated for the area. The contention sets out that the proposal does not contribute to the scenic qualities of the foreshore area and does not protect the amenity of residents relating to amenity, visual privacy, solar access, overshadowing and viewing sharing.
The relevant objectives of the R2 Low Density Residential zone are set out below:

Zone R2   Low Density Residential
1   Objectives of zone
•  To provide for the housing needs of the community within a low density residential environment.
…
•  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 encourage housing affordability.

The proposed dwelling house is permitted with consent. The existing residential flat building is now prohibited development.

Evidence and submissions

Both planners agreed that the replacement of a prohibited use with a permissible use is consistent with the intent of the zone. It was agreed that there is an existing degree of overlooking from the existing apartments to the neighbouring properties.
It was agreed that the revised shadow diagrams demonstrated that the RDCP’s solar access controls for neighbouring properties were complied with. It was agreed that the increased eastern setback and planter levels along the top level private open space have mitigated visual privacy concerns and other rooms could be mitigated through fixed privacy screens.
Mr Awford for Council gave evidence that the proposed development is inconsistent with the zone objectives for the following reasons:

Any existing use redevelopment would be assessed on its merit and is not relevant.

The proposed dwelling is four storeys which would all be visible from the street and not obscured by the vegetation.

The development does not contribute to the desired future character due to the non-compliance with floor space ratio, setbacks, and storeys sought by the RDCP, which allow between two and three storeys.

The proposed dwelling is significantly larger than the existing residential flat building with greater impacts to the streetscape and neighbouring properties. The elevated nature of the site increases its scale in the streetscape.

The excessive bulk will be overbearing and present privacy impacts to 6 Dundas Street, result in additional overshadowing and will impact views of Coogee Beach from 10 Dundas and 3/12 Dundas Street. The height and scale of the proposed development is excessive against 6 Dundas Street.

The proposed planter boxes provide articulation but add bulk and contribute to the side setback breaches.

Mr Betros for Hurst gave evidence that the proposal is consistent with the relevant objectives of the zone as:

The replacement of a prohibited use (the existing residential flat building) with a permissible dwelling house is consistent with the intent of the zoning.

The proposed dwelling house is likely to generate less of an impact to surrounding properties through a reduction of living areas and private open spaces areas.

The proposed three storey dwelling is largely screened by vegetation on Council’s verge and compatible with the adjoining three storey dwelling at 6 Dundas Street and RLEP height limit of 9.5m.

The proposal protects the amenity of surrounding residents and most view impacts are limited to non-habitable car parking areas. Most properties obtain their water views from either living, balcony or roof terrace areas that are unaffected by the amended DA.

Adjoining properties are primarily orientated to the north and east, not west towards the subject property, which minimises impacts to those properties from the proposed built form. The upper level is recessed by 6.5m at the front and 1.25m from the east with planting, reducing perceived building bulk.

All surrounding properties retain three hours of solar access. Proposed living areas and terraces have been designed to mitigate privacy impacts through a recessed built form, planters and the placement of windows.

The site could be redeveloped for a residential flat building under existing use rights.

Ms Novak for Council submits that consideration of the zone objectives is a fundamental element or focal point in determination of the application. The proposed development is inconsistent with the desired future character of the area (including the foreshore scenic protection area) and fails protect the amenity of the area (objectives three and four).
Mr Pickles SC for Hurst submits that zone objectives do not need to be satisfied. They are a matter for consideration. The proposed development is not antithetical to the relevant objectives, in that it provides housing in a low density environment in that the development removes a residential flat building and proposes a dwelling as sought by the zoning.

Findings

Clause 2.3 of the RLEP requires that I have regard to the objectives of the zone. To have regard to or consider a provision requires an active intellectual process of the stated planning control: Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [98] to [100]. There should generally be an assumption that a permissible form of development is consistent with the relevant objectives of the zone, subject to its environmental impacts: BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [116] to [119]. I accept that if a proposed development is antipathetic to a relevant objective, that this could be a reason to refuse an application on its merits.
I accept the evidence of Mr Betros and submissions of Mr Pickles SC and find that the amended DA is not inconsistent or antipathetic to the objectives of the zone.
Firstly, I accept that the amended DA provides for the housing needs in a low density residential environment. It is a dwelling house, one of the lowest density forms of the residential development. In addition, the proposal removes a non-conforming higher density development, through demolition of the residential flat building.
For the same reasons as set out under the ‘FSR’ contention, I accept that the proposal is not antipathetic to the existing streetscape or the desired future character. The proposal results in the removal of a non-conforming residential land use to one sought by the suite of planning controls. In terms of its elements, I accept that the dwelling is similar in scale to dwellings in the streetscape and that the current planning controls will not create a different character than what exists in parts of the R2 zoned streetscape.
For the reasons set out in response to the amenity related contentions, I find that the amenity of the residents is sufficiently protected and the proposal is not antipathetic to this objective.
There were no concerns raised about housing affordability. To the extent that it is relevant, in having regard to this objective, there is no evidence that the proposed development is antipathetic to this objective.

Is the breach to FSR acceptable?

Council pressed contention 2 that the breach to cl 4.4A exceptions to FSR has not been satisfied by the application and written request. Council submits that the proposed FSR is 0.94:1, a 25% departure from the maximum of 0.75:1. There is also a dispute about the calculation of floor space ratio. Hurst submits that the proposed FSR is 0.888:1.
The relevant parts of cl 4.4 and cl 4.4A of the RLEP are set out below:

4.4 Floor space ratio
(1) The objectives of this clause are as follows—
(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.
(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
…
4.4A Exceptions to floor space ratio—Zones R2 and R3
(1) This clause applies to land in the following zones—
(a) Zone R2 Low Density Residential,
…
(3) For a building on a lot created before the commencement of Randwick Local Environmental Plan 2012 (Amendment No 9), the maximum floor space ratio for the building used for the purposes specified in the table to this subclause is the ratio determined in accordance with the table.
…

Land Use	Zone	Lot size	Maximum floor space ratio
Dwelling houses	Zone R2	>300m² and ≤450m²	0.75:1

The proposed development is subject to the current version of cl 4.6 of the RLEP. There are distinct changes between the previous version of cl 4.6. The current provision is set out below:

4.6   Exceptions to development standards
(1) The objectives of this clause are as follows—
(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—
(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances, and
(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.
Note—
The Environmental Planning and Assessment Regulation 2021 requires a development application for development that proposes to contravene a development standard to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).
(4) The consent authority must keep a record of its assessment carried out under subclause (3).

Evidence

Council submits that the proposal is inconsistent with objectives (a) and (d) of cl 4.4 FSR and that the amended DA has not demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify the contravention.

It is noted that the contentions raised that the development is not in the public interest, however the applicable version of cl 4.6 no longer references the public interest.
Mr Awford relies on his evidence in response to other contentions that the impacts on neighbouring dwellings from the significant departure from the standard are inconsistent with the objectives for FSR.
In relation to the calculations, Mr Awford’s evidence (Ex 6) is that:

All parts of the stairway are included as gross floor area (GFA) as they are not common vertical circulation.

Inclusion of a small part of the garage area not used for vehicle parking, manoeuvring or access.

Mr Betros relies on the amended updated Clause 4.6 to Clause 4.4 of Randwick LEP 2012 prepared by ABC Planning Pty Ltd dated April 2025 (written request) and the Statement of Facts and Contentions in Reply (SOFAC IR) to demonstrate that the variation is acceptable. Mr Betro’s evidence is that the proposed FSR is 0.888:1, representing a variation of 0.138:1 or 43.14m².
Addressing cl 4.6(3)(a), the written request argues that compliance with the development standard is unreasonable or unnecessary in the circumstances as:

The recessed nature and topography of the site, as well as dense vegetation, obscures the proposed three storey built form from Oberon Street and the park.

The uppermost level of the dwelling has been substantially recessed, reducing the visibility of this level from the parking and public domain and ensuring there are no adverse visual bulk impacts to adjoining neighbours from the FSR variation.

The built form and its FSR variation are consistent with the three to four storey development in the area.

The immediate context includes adjoining 6 Dundas Street, a three storey dwelling with a lengthy built form and FSR of approximately 1:1, which faces prominently to Dundas Street and Oberon Street. The proposed built form and the FSR variation will be subservient to the bulk and scale of 6 Dundas Street.

The FSR variation is contained within a compliant building height and appropriate setbacks with dense vegetation.

The proposed building articulation and existing and proposed vegetation reduces the bulk of the FSR variation.

There are no amenity impacts from the FSR variation:

All adjoining dwellings will receive more than the required three hours solar access on June 21 to their north facing windows and private open space areas.

6 Dundas Street will be virtually unaffected by the proposal, as are 8 and 10 Dundas Street who back onto the rear of the site.

The additional FSR does not generate any unreasonable privacy impacts. The primary aspect is to the front of the site, to capture water views. The primary living areas of the proposed development are located on the upper level, substantially recessed and supplemented by planters to mitigate downward privacy impacts.

There is a degree of mutual overlooking in order to capture the expansive coastal views, where privacy is secondary to achieving views.

The written request also seeks to demonstrate that the variation is unnecessary or unreasonable through the commonly utilised decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) at [42] to [43]. The written request argues that the variation achieves the objectives of the FSR development standard, to demonstrate that compliance is therefore unnecessary or unreasonable:

FSR objective

Written request

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

The FSR variation will be compatible with the desired future character of the locality and will not be out of context with the height, bulk and scale of adjoining properties to the east. The built form of 6 Dundas Street has a greater visual bulk given its extended built form over three levels with minimal landscaping in the foreground. In contrast, the proposed development is narrower and substantially screened by vegetation with a recessive third storey at the upper level.

The site is located opposite the R3 Medium Density Residential zone which contains residential flat buildings of a 3-4 storey built form. The variation will not be inconsistent with the built form of the surrounding context.

Compliance with the building height development standard confirms that the built form and FSR variation will be compatible with the desired future character.

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

The built form is highly articulated on all facades and is fragmented and stepped. The articulation breaks down the visual bulk and allows for abundant sunlight, daylight, and ventilation, which reduces reliance on heating, lighting and cooling. The variation does not generate any inconsistency with this objective.

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

The proposed dwelling is not in a heritage 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.

The additional FSR is not responsible for any adverse or unreasonable amenity impacts to neighbouring properties, noting that only two properties to the east and one property to the south adjoin the site. Such properties will continue to receive more than the required solar access under the DCP, while views will be retained. Privacy will be improved compared to the current interrelationship. The proposed FSR will minimise adverse environmental impacts notwithstanding the FSR variation.

Addressing cl 4.6(3)(b), the written request argues that there are sufficient environmental planning grounds to justify the contravention of the development standard, summarised below.

The site area is 312.5m². If the size was 12.5m² less or the depth was 1.06m less, than no FSR would apply. The FSR standard is a blunt transition not a sliding scale and the variation is reasonable in these circumstances.

The proposed development will be less than the immediately adjoining dwelling at 6 Dundas Street, with an FSR of 1:1.

There is a proposed reduction in intensity of development on the site. The removal of the existing non-conforming residential flat building, with three apartments, is a higher intensity development accommodating three living areas and private open areas for different occupants. The proposed dwelling has the same number of bedrooms but for one family. The additional FSR above the development standard will be of less intensity than the existing use.

There are particular circumstances of the site that constitute sufficient environmental planning grounds for the variation. These include the recessed nature of the site from the Oberon Street frontage that is obscured by established vegetation along the street frontage. The vegetation and discreet roadway access creates a limited perception of the subject property and the associated built form from the public domain. The built form and variation are screened or out of view, presenting a more modest built form than development to the east that present a prominent bulk and scale. The presence of 3-4 residential flat buildings in the R3 zone opposite the site create a larger built form presence in the context of the subject property. The dense screening of vegetation to the west and within the steeply sloping section of Blenheim Park also screens the perception from the west and southwest. These circumstances are atypical when compared to the bulk and scale of other properties in the locality and are distinct circumstances.

The site is steeply sloping with a significant portion of the site being either excavated or located below ground level or retaining walls of adjoining sites. The visible component of the built form presents as a compliant FSR.

The absence of adverse view loss, overshadowing and privacy impacts to adjoining neighbours in a coastal location. The additional floor space can be accommodated without generating any adverse views impacts. Primary living areas of affected adjoining dwellings are all unaffected by the variation. Rear yards and private open spaces will receive more than the required three hours of solar access between 8am to 4pm on June 21.

In relation to the calculations, Mr Betros’ evidence is that the GFA has been properly calculated in accordance with the architectural plans (Ex A). The proposed FSR is 0.88:1

Submissions

Mr Pickles SC submits that the size of the site, at 312.15m² is very close to the control where an FSR control would not apply (cl 4.4A(4)). The desired future character is set not just by the planning controls but also existing development. Mr Pickles SC submitted that the orientation and topography of the site meant that locating the open space at the rear would lead to overshadowing. The location at the front and upper level will maximise solar access.
Ms Novak submitted that the Court could not be satisfied that the proposed departure would not result in adverse amenity impacts. Further, that the application had not demonstrated that a better outcome had been achieved than if the development complied with the development standard of 0.75:1.
Overall, in relation to FSR as well as the central issue about the height, bulk and scale of the dwelling, Ms Novak submits that Council’s controls seek to establish a new desired future character. The planning controls operate harmoniously to create a building envelope for development (see: PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 at [48]). The variations to FSR, height (DCP) and setbacks are not consistent with that character and the impacts caused are not reasonably expected (Veloshin v Randwick Council [2007] NSWLE 428 onwards from [32]).

Findings on FSR/GFA calculations

Part of the stairway should be excluded from GFA calculations consistent with the RLEP dictionary GFA definition (j), as stairs are inherently part floor, part void. Common approaches such as a ‘hit and miss’ calculation where one floor is counted and the next is not, or an approximate calculation of 50% of the stairway area on each level are consistent with the RLEP dictionary definition. The architectural plans demonstrate a ‘hit and miss’ calculation, which I find is correct.
I accept that a small part of the garage area identified by Mr Awford are technically included in GFA, in the location towards the side entryway. Parts of the garage directly adjoining the turning circle should be excluded as they form part of access to the car parking area shown as the turntable (exclusion (g) of the GFA definition). Based on measurements from the architectural plans, I would put the additional GFA at approximately 2m² above Mr Betros’ calculations. This has no consequence to my findings on the acceptability of the FSR variation.

Findings of the FSR variation

Beyond the evidence and submissions that the departure had not demonstrated that it would not adversely impact the amenity of adjoining neighbours, it was not specifically stated how Hurst’s application to vary cl 4.4A had not met the thresholds set out in cl 4.6(3). I have taken the evidence and submissions to be criticisms by Council of both cl 4.6(3)(a) and (b).
The variation sought is a precondition to the grant of consent. I accept that Hurst has demonstrated that the proposed variation to the FSR development standard is acceptable pursuant cl 4.6(3) for the following reasons.
In considering the variation, I do not need to be satisfied that the non-compliant development is a better outcome than a compliant one: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) at [88] to [90].
The written request incorrectly imports the previous version of cl 4.6, though there is no consequence to this as the relevant matters are addressed. The new version of cl 4.6 commenced 1 November 2023, and the DA was lodged to Council on 27 June 2024.
In forming the requisite state of satisfaction required by the current cl 4.6 development and consideration of the caselaw referred to by the parties, the following has also been considered:

A ‘document’ for a variation which relies on cl 4.6 still needs to be provided with a DA (s 35B(1) of the EPA Reg). That ‘document’ needs to set out the grounds on which the applicant seeks to demonstrate certain matters, which are identical to those set out in cl 4.6(3) of the RLEP. The submitted written request addresses these provisions.

Whilst such a ‘document’ must accompany a DA and address the relevant provisions, there is no longer an express requirement for a consent authority to be satisfied that the ‘document’ or a ‘written request’ itself satisfies cl 4.6(3). The wording of cl 4.6(3) is that ‘the applicant has demonstrated’ that compliance with the development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contravention of the development standard.

On that basis, in determining if the consent authority, or the Court on appeal, is satisfied that the applicant has demonstrated that cl 4.6(3) has been satisfied, it is open to the Court to consider the written request and the other evidence in the proceedings.

Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

As previously detailed, Hurst argues that compliance with the development standard is unreasonable or unnecessary in these circumstances as the variation achieves the objectives of the development standard. Though identification of the exact location of an FSR variation is not as straight forward as other breaches (i.e. height or subdivision size) and a risk to the Applicant if they do not identify the area of the breach (Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [84]-[87], [92]), it is open to find that built form variations to other controls assist in identifying the variation. Here, I have considered that the variation primarily manifests as the third storey (though the third storey as a breach is disputed) and minor variations to the setbacks.
I accept that Hurst has demonstrated that the variation achieves the objectives of the development standard in order to demonstrated that compliance is unreasonable and unnecessary (utilising Wehbe) for the following reasons.
I accept that the variation is compatible with the desired future character of the locality on the basis of the existing dwellings, 3-4 storey residential flat buildings on the northern side of the street and development allowed under the current planning controls. I give less weight to the residential flat buildings (both current and future built forms) as the zone increases in density and the anticipated scale unsurprisingly increases. However, they do exist in the same streetscape. I find that the proposed scale of this three storey dwelling and specifically its variation, is entirely compatible in terms of height, width and density, with the scale of residential flat buildings allowed and currently present in the streetscape.
Of more importance is the desired character sought by the relevant planning controls and present within the streetscape for development in the same zoning. In addition to the suite of applicable planning controls, the current dwellings in the streetscape form part of the desired future character, particularly given its R2 low density zoning (see: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [53]-[60]).
I find that the variation is compatible with the desired future character sought by the RLEP and RDCP. I accept that the dwelling is three storeys and complies with the RLEP height limit. The RDCP permits dwellings up to three storeys. The dwelling is generally compliant with the side setbacks and compliant with the front and rear setbacks, and the setback required for the third storey is unworkable (for reasons I set out at [101]-[104]). Substantial vegetation will be retained at the front of the site. These are key planning controls that inform the built form character in this locality and I find that the proposed variation is compatible with the planning controls for the reasons stated in the written request and evidence given by Mr Betros.
In considering the compatibility with existing dwellings in the locality, the scale of the dwellings are quite large, as viewed on site with the parties. The adjoining site at 6 Dundas is large is height and width. Sitting beyond but above a grassed road reserve and part retaining wall on one frontage, the dwelling is observed as being two to three storeys above the verge. Due to the sloping topography of the locality, the height of 6 Dundas as viewed from Oberon Street is consistent with the height of the opposite existing residential flat buildings on Oberon Street. The dwelling maintains this scale and sprawls across the entire corner site. Other dwelling houses towards the foreshore are two and three storey, with many of the new dwellings reflecting a three storey scale with a recessive but readable third storey. I therefore find that the variation sought is entirely compatible with existing dwelling house development in the locality. Whilst the topography of the site relevantly adds to the scale of the dwelling and specifically the variation, making it noticeably taller than its downslope neighbours, it is still compatible with the scale of two to three storey dwellings in the locality and consistent with the stepping down of dwellings that occurs down to the foreshore area. The recessive nature of the third storey is an essential component of finding that the variation is compatible with the desired future character.
As set out in the written request, I find that the variation is well articulated through the recessive upper level and stepping along the side setbacks. The additional floor space still allows for a response to environmental and energy needs, including adequate access to sunlight, daylight and ventilation to reduce reliance on artificial methods.
The site is not located near a heritage item or heritage conservation area and therefore, the variation cannot be incompatible with this objective.
Finally, I find that the additional floor space would not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views for some of the reasons given in the written request. Some arguments related to the entire development, which are not relevant to this consideration. There are no adverse impacts on view loss for the reasons I detail at [149]-[154]. In relation to the variation, view loss impacts are to areas where views cannot be reasonably maintained over side boundaries, or are caused by other parts of the building or are lost from car parking spaces. A negligible loss of views from the variation can be attributed to 10 and 3/12 Dundas Street, however the minor loss of these views from the variation are not adverse impacts. The majority of the dwellings also obtain views from other aspects of their dwelling, except for one where the view is obtained over a side boundary.
In terms of visual bulk and privacy, 6, 8 and 10 Dundas Street are the most impacted given their location to the side and rear of the site, however there are no adverse impacts as:

6 Dundas Street will visually view the variation from their elevated private open space and some internal rooms. However, the variation will not adversely impact on their visual bulk or privacy amenity, as their dwelling has been designed to capture views to the north and east. The areas to the west of the dwelling are partly covered and setback from their rear boundary. The variation is setback from 6 Dundas Street and windows have been suitably screened (to the extent relevant to the variation and not the building as a whole). Any reduction in privacy or visual bulk is a result of topography, a desire from the properties to capture water views and for each site to receive reasonable amenity, not from the proposed variation.

8 Dundas Street will not be adversely affected by the variation, with only a small portion of the variation containing windows and those will be fitted with privacy screens. I also find that the variation will not cause adverse visual bulk impacts, given the separation between the properties and small extent of the built form length and height of the variation that would be perceived partly behind the rear of 8 Dundas.

10 Dundas Street will not be adversely affected from the variation. There are no windows associated with the variation to the rear and therefore no privacy impacts. Given the topography of the locality and higher location of 10 Dundas Street, there are no adverse visual bulk impacts.

In terms of overshadowing, I accept the agreed evidence of the planners and find that all adjoining and neighbouring properties will not be adversely affected. I accept that the requisite amount of solar access required by the RDCP has been maintained, notwithstanding the variation.
On this basis, I am satisfied that Hurst has demonstrated that compliance with the development standard is unreasonable and unnecessary in these circumstances (cl 4.6(3)(a)).

Are there sufficient environmental planning grounds?

The Chief Judge detailed what environmental planning grounds might be in Initial Action at [23]-[24], noting that the wording reflected the applicable version of cl 4.6 at that time:

As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act.
The environmental planning grounds relied on in the written request under cl 4.6 must be “sufficient”. There are two respects in which the written request needs to be “sufficient”. First, the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].

I accept that there are sufficient environmental planning grounds on the basis of several points argued in the written request and summarised at [51], being points 3-6. For clarity, I do not accept the other points summarised at [51] as being sufficient environmental planning grounds.
I find that the site has particular circumstances that are distinctly relevant to justify the FSR variation. The site, located between a park and large dwelling house, has a sloping topography that presents unique challenges and opportunities to respond to its adjoining neighbours, who are also located on sloping sites. Some of these are located higher and some lower than the site, which presents challenges to the site’s amenity. The site benefits from extensive, established vegetation across its frontage and along the park boundary that will be primarily retained. From these aspects, the variation will barely be perceptible from the public domain. I have already addressed the lack of adverse visual impacts to adjoining dwellings. From the east towards the foreshore, the variation will be somewhat visible but as previously found, entirely compatible with the character of the area. The topography and design of the variation responds to these particular circumstances of the site and its context.
The variation promotes the good design of the dwelling through increased amenity for occupants to their private open space and living areas, which will achieve quality outlook. I accept the submissions of Mr Pickles SC, in that the living areas and adjoining private open space would have diminished amenity if they had been located on lower levels (noting the POS does not contribute to FSR but is required to be co-located with living areas under the RDCP). Instead, these spaces capture high quality water views and sunlight. Notwithstanding its size and the higher quality amenity afforded to the future residents, the variation does not come at a cost to its neighbours and does not result in any unreasonable or adverse amenity impacts to adjoining properties.
For these reasons, I find that Hurst has demonstrated sufficient environmental planning grounds to justify the contravention of the development standard. The variation is consistent with the objective at s 1.3(g) of the EPA Act, in that it promotes good design and amenity of the built environment.
I am therefore satisfied that Hurst has demonstrated that there are sufficient environmental planning grounds to justify the contravention of the development standard (cl 4.6(3)(b)).

Is the breach to the building height acceptable?

Contention 3 about the RLEP building height was not pressed and agreed by the parties to be compliant, which I accept.
Council pressed contention 4 that the RDCP building height and its objectives have not been met.
Part C1, Section 3.2 building height of the RDCP states:

Explanation
Building height is a major factor affecting the visual presence of a development and the degree of overshadowing of neighbouring property.
In Randwick City, dwelling houses, semi-detached dwellings and dual occupancies are typically one-to-two storeys, with an additional storey occurring on sloping sites. The maximum building height control is stipulated in the RLEP Height of Buildings Map (HoB), which varies across different residential zones.
The maximum building height under the Randwick LEP Height of Building Map is 9.5m for low density housing, and is measured from ground level (existing) to the topmost point of a building.
Objectives
• To limit the bulk, scale and visual impact of buildings as viewed from the street and from neighbouring dwellings
• To ensure low density residential development maintains a two-storey height and street frontage
• To position any habitable space above the first floor level within the roof of the dwelling
• To ensure development height does not cause unreasonable impacts upon the neighbouring dwellings in terms of overshadowing, view loss, privacy and visual amenity
• To ensure the form and massing of development is respectful of site topography.
Controls
i) Any habitable space located above the first floor level must be integrated into the building roof form and roofline
ii) The minimum floor-to-ceiling height for living areas, such as living/lounge, dining and bedrooms, is 2.7m
iii) The minimum floor-to-floor height for building stories, excluding those above the first floor level within the building roofline, is 3.1m
iv) An alternative design that varies from the two-storey height and street frontage in the Zone R2 may be acceptable having regard to the following considerations:
- Site topography
- Site orientation
- Allotment configuration
- Flooding requirements
- Allotment dimensions
- Potential impacts on the visual amenity, solar access, privacy and views of the adjoining properties.

I would note that despite various lines being indicated on the architectural plans as potentially indicating existing ground levels, the evidence given to the Court was that the blue dotted line depicted existing ground level, not the red dotted outline of a building. This appeared consistent with the areas of the site shown at the site viewing.

Evidence

Mr Awford’s evidence is that the proposed dwelling is four storeys. All levels would be visible from the street and not obscured by the vegetation on the Council verge. The height of the proposed dwelling is exacerbated by the site’s elevated position and adjoining park. The dwelling is not consistent with the RDCP intent to allow dwellings one to two storeys, with an additional storey on sloping sites, as depicted in Figure 9 of control 4.1 of the RDCP.
The dwelling is not in keeping with development in the R2 zone and is approximately 3.7m above the existing building and 5.1m above 6 Dundas Street. The existing vegetation cannot be relied on to screen the proposal.
Mr Awford says that the fourth storey adds excessive visual bulk that is not recessed to a point where it cannot be perceived from the street and neighbouring dwellings. The amenity of surrounding residents will be impacted. 6 Dundas Street will be impacted from excessive visual bulk to its private open space and the proposal is larger in scale that 6 Dundas Street. 10 and 3/12 Dundas Street will lose views of Coogee Beach. Additional overshadowing will occur to 6, 8 and 10 Dundas Street from the non-compliant floor space, though it accepts that the controls for solar access for neighbouring properties are met. The scale of residential flat buildings in the adjoining zone should not be compared to the R2 zone.
Mr Awford agrees that the increased eastern setback and planter box width to the private open space area has mitigated visual privacy impacts. Visual privacy impacts from the first floor bedroom and balcony and the ground floor music room can be mitigated through fixed privacy screening.
Mr Betros’ evidence is that the dwelling is three storeys and presents as three storeys to Oberon Street. He says that the RDCP contemplates three storey dwellings on sloping sites, which this is, and that the 9.5m height limit facilitates three storey dwellings. The dwelling is less than the 9.5m RLEP height limit, screened by existing vegetation, highly articulated and steps with the sloping topography of the street. The dwelling is consistent with other three storey dwellings in the vicinity and will be subservient to existing and proposed four storey built forms allowed in the opposite R3 zone.
Mr Betros says that there are no unreasonable or adverse amenity impacts relating to privacy, overshadowing or view impacts. The proposal is smaller in scale than the adjoining dwelling at 6 Dundas Street due to its setbacks and screening from existing vegetation. 6 Dundas Street has a prominent and greater presence in the streetscape, with an approximate FSR of 1:1 and significantly less landscaped area.
The dwelling and adjoining dwellings will all receive the required amount of solar access under the controls. The extent of mutual visual and acoustic privacy impacts are more common in areas looking to capture views, as is the case here. 6 Dundas Street has multiple elevated windows and balconies that view into the subject site. The proposed dwelling includes privacy measures.
Mr Betros says that adjoining dwellings along the east are mostly orientated east and south-east to capture water views. The proposed dwelling is to the west of them. The proposed dwelling is highly articulated with planters and the upper level has been recessed. There are no adverse visual bulk impacts to neighbouring sites.

Submissions

Ms Novak submits that control 3.2 of the RDCP provides further provisions for the height of development within the overall height limit of 9.5m. The proposed dwelling does not comply with the controls to integrate habitable space within the roof form and roofline above the first floor and does not achieve a one to two storey dwelling. The RDCP contemplates that an additional storey may be possible on sloping sites, but is constrained by that additional storey being within the roof of the dwelling. The lowest level that has been described as a basement is located on existing ground level and is in fact the ground floor. Therefore, the development fails to achieve each of the relevant objectives in s 3.2 of the RDCP.
Mr Pickles SC submits that is agreed that the RLEP height limit is complied with. It was evident at the site view that Oberon Street is a steeply sloping street and there was a preponderance of three storey dwellings facing the street. The site is orientated north-south, and it is appropriate to place the living areas of the built form to the north to capture solar access. It is therefore acceptable in the context to have a three storey presentation to the street. The proposed carparking arrangement with two levels of habitable floor areas above is consistent with the adjoining site at 6 Dundas Street. Further, the narrow allotment dimensions mean that the development can’t spread across a wider site to achieve a lower height. It is necessary from the topography and site dimensions to step the building up the slope.

Findings

I firstly find that the proposed development is three storeys in height across the entire development. I accept that part of the ‘basement’ towards the front of the dwelling is the ground floor, as it sits close to the existing ground level. However, I accept Mr Betro’s evidence that the rear half of the dwelling underneath the dining and living areas is located on a lower floor level properly characterised as a basement, as it is below existing ground level as shown on the architectural plans.
I prefer Mr Betros’ evidence and find that the building steps in a manner that maintains a three storey building height. An essential part of that finding is the uncovered nature of the private open space area on the top storey, which does not present as a storey.
In interpreting control 3.2 building height of the RDCP, I accept Hurst’s argument that the controls allow for a three storey development. Controls within a section of a DCP do not necessarily directly relate or build on each other. I accept that controls (i) and (iii) in control 3.2 regarding habitable space above the first floor seek to limit floor space to roof structures to encourage the desired one to two storey dwelling height sought in the objectives and building height explanation. For dwellings not located on sloping sites, these controls allow floor space to be within a roof form, thereby still presenting as the desired two storey dwelling.
However, I find that control (iv) within control 3.2 operates as an exception to controls (i) and (iii). It starts with:

‘An alternative design that varies from the two-storey height and street frontage in the Zone R2 may be acceptable having regard to the following considerations…’

In my view, the control operates separately from (i) and (iii) to allow three storey dwellings, with consideration of certain stipulated circumstances. This is consistent with the explanation of the building height control:

‘In Randwick City, dwelling houses, semi-detached dwellings and dual occupancies are typically one-to-two storeys, with an additional storey occurring on sloping sites.’

As evident from the site view and accepting the evidence of the planners, the site has a significantly sloping topography. I accept the evidence of Mr Betros and find that the location of the third storey and use for living areas and private open space allows for increased amenity to the future residents. The allotment dimensions and configuration, being narrow and orientated north/south, allows for much better amenity than a ground floor, overshadowed open space area. As discussed elsewhere in this judgment, there are no resultant unreasonable impacts on visual amenity, solar access, privacy and views of the adjoining properties. Accordingly, I find that the proposed alternative design to vary the two storey height and street frontage is acceptable having regard to the circumstances of the site.

Side Setbacks

Council pressed contention 9 that the proposed side setbacks warrant refusal of the application. The proposed development does not maintain a two storey street frontage or adequate separation between buildings. The dwelling is said to be excessive in bulk and scale, causing visual impacts, overshadowing and visual privacy impacts.
The side setback controls in the RDCP are not straightforward, and are based on a formula:

3.3.2. Side setbacks
Controls
i) New buildings and alterations and additions must comply with the following minimum side setbacks based on the primary frontage width:

There are no diagrams for the site, which falls into the 9m to less than 12m frontage width control. However, the following diagrams are shown in the RDCP for other frontages:

Evidence

Mr Awford says that the non-compliant side setbacks towards the front of the building occur before the site starts to slope, but acknowledges that topography is partially a factor for the non-compliance. He says that Hurst has not demonstrated that the additional storey that breaches the side setback controls does not create amenity impacts including visual bulk, streetscape, views, shadowing and privacy impacts.
In response to the existing side setback conditions, Mr Awford says that the proposed side setback is only an additional 0.25m and holds no value because of the overall worse side setback condition from the non-compliance and the impacts on neighbouring properties and the street.
Mr Awford’s evidence is that the side setback control is to be read with the diagram in Figure 7. The diagram, setbacks and other building height and design controls reinforce the RDCP’s intention for any third storey to be contained within the roof form.
Mr Betros’ evidence is that the lower levels comply with the control. The upper level meets the objectives of the setback control without any adverse impacts in visual bulk, streetscape, views, overshadowing and privacy. The proposed setbacks are further back than the existing residential flat building and the control is inconsistent with the RLEP height limit. Mr Betros says that the side setback constitutes a de facto height limit, which would be inconsistent with s 3.43(5) of the EPA Act which stipulates that a provision of a DCP has no effect where it is inconsistent or incompatible with an environmental planning instrument.

Submissions

Ms Novak submits that Mr Awford’s side setback calculations are correct, which is consistent with the diagrams supporting the side setback controls in the table. Council says that there are exclusions of the control for third storey elements and the objectives of the control seek a two storey building. The controls set a building envelope for development to occur within, not fill (see: PDE). When read with the FSR variation, the height, bulk and scale of the proposal is inconsistent with the desired future character. Ms Novak submits that the controls of a DCP are not inconsistent if they operate to confine the intensity of development permitted by a LEP.
Mr Pickles SC submits that the amended DA broadly complies with the side setbacks for the first 7m, with a minor non-compliance from the planter boxes and part of the music room if Council’s interpretation of the side setback control is accepted. Mr Pickles SC submits that the side setback control should be interpreted as it is written, which was found by Pullinger C in Appel v Randwick City Council [2024] NSWLEC 1652 (Appel) to be unworkable. The same situation as Appel applies here, where the side setback for the building over 7m in height is also unworkable.

Findings

Considering the formula as described in the table of control 3.3.2 of the RDCP, on the basis of the site’s frontage of 11.645m, the parties agree that the side setback controls are complied with for the part of the building below 4.5m.

The text of the control and the diagram differ on the application of the side setback above 7m. There is no reference in the text of the control to any tapering for the part of the building above 7m. The only indicator is a dotted blue line on Figure 7 that shows a tapering of a roof form for a two storey, pitched roof dwelling. The note in the general setbacks explanation states that setbacks are measured perpendicular. I accept Mr Pickles’ submissions that the control requires a 6.5m side setback on both sides. This is a plain reading of the words and calculation of the control formula. On a site with a frontage of 11.645m, the total required side setbacks of 13m would not allow any building over 7m. On this basis, this part of the side setback control is more than controlling the intensity within a building envelope, but is inconsistent with the RLEP height development standard. It therefore should not apply. I agree with the decision in Appel and find that the side setback as applicable to the dwelling over 7m is unworkable as the required side setbacks would exceed the total frontage of the site.
In addition, I am satisfied that the variations to the side setback controls, including the minor protrusions below the 7m height in the side setback, meet the objectives of the control for the following reasons:

The RDCP anticipates three storey dwellings. I accept Mr Betros’ evidence and Mr Pickles submissions that the RLEP height control of 9.5m clearly anticipates three storey dwellings. Whilst this diverges from the objective for two storey dwellings, there is conflict between three storeys anticipated in the RLEP, in the RDCP, and this objective. I place more weight on the development standard and also on the existing three storey dwellings in the streetscape.

The proposed side setbacks and overall massing of the dwelling are generally consistent with the established rhythm of setbacks of the other two to three storey dwellings along Oberon Street and importantly, those dwellings towards the foreshore area.

For reasons I have articulated throughout, there is adequate building separation between adjoining dwellings to maintain visual and acoustic privacy as well as solar access. I also accept the evidence that some mutual privacy impacts are contextually appropriate as properties seek to obtain water views.

As I detail in the landscaping contention, there is adequate deep soil planting and private open space provided.

As I detail in the view sharing contention, adequate views are retained from neighbouring dwellings and the public domain.

For these reasons, the proposed side setback variations are acceptable in this context.

Is the dwelling’s design inconsistent with the desired future character?

Council pressed contentions 5 and 13 that the proposed development is not compatible with the desired future character of the local area, that it is excessive in bulk and scale and that these result in impacts on neighbouring properties.
There are various relevant objectives and controls in the RLEP and RDCP referring to desired future character, which are dealt with elsewhere in this judgment.
Control 4.1 building design of the RDCP states:

Objectives
• To ensure the form, scale, massing and proportions of dwellings recognise and adapt to the characteristics of a site in terms of topography, configuration, orientation and surrounding natural and built context
• To ensure building facades are articulated to complement or enhance the existing streetscape and neighbourhood character
• To encourage contemporary and innovative designs that contribute to neighbourhood character in new and transitional residential areas.
Controls
i) A dwelling’s overall built form must respect and follow the natural topography of the site. On sloping sites, the building mass must be modelled or stepped in response to the prevailing slope of the land and avoid concentrating the structural bulk on the uphill or downhill side of the allotment
ii) When arranging the built form on the site, avoid the creation of ‘wedding cake’ or ‘pyramid’ type buildings which due to their visual dominance are generally unsympathetic in their relationship to the natural landform
iii) Articulate the external facades of the dwelling to reduce the apparent mass and to present a human scale to adjoining properties, public areas and from key vantage points. This may be achieved by design measures such as: - Window openings - Balconies or terraces - Entry porches - Staggered wall planes - A combination of materials and finishes - Decorative architectural elements.
iv) Divide side elevations into sections, bays or modules of not more than 12m length, separated by measures, such as recesses or side courtyards, in order to avoid massive or unrelieved walls
v) Articulate all street elevations for development on corner allotments
…
vii) Balconies, terraces and decks must be of a size and configuration that are appropriate to the proportions of the building without excessively increasing its visual bulk
viii) Master bedrooms must have a minimum area of 10m2 and other bedrooms 9m2, both with a minimum dimension of 3m (excluding wardrobe space).

Evidence

The planners relied on their evidence provided in response to the other contentions.

Findings

These contentions are substantially a summary of other contentions raised and I have considered all of the evidence of the planners in evaluating the particulars. Whilst it was contended that the planning controls set a new desired future character for the street, the primary development that would be impacted by that is the subject site, as it currently contains a prohibited residential flat building. Other existing development on the R2 zoned properties in the locality are primarily two to three storey dwellings. The planning controls, to the extent that it contains changes, would not substantially alter the existing character. For the reasons set out throughout this judgment, I find that the dwelling is not inconsistent with the future character.
In relation to control 4.1 building design of the RDCP, I accept the evidence of Mr Betros and find that the control is met. The proposed dwelling does step down the sloping site in a manner envisaged by most of the planning controls and not in a ‘wedding cake’ or ‘pyramid’ style form. The three storey form follows the topography and does not centralise bulk at the top or downhill section of the site. The built form is articulated along the façade and softened by landscaping and planter boxes.

Are there impacts to the foreshore scenic protection area?

Council pressed contention 6 that the proposed dwelling would result in adverse impacts to the visual amenity and scenic qualities of the foreshore and coastline. On this basis, cl 6.7 of the RLEP and B10 of the RDCP have not been met.
Council clarified in submissions that the site is not mapped as being within the coastal use area under State Environmental Planning Policy (Resilience and Hazards) 2021, and particulars (f)-(g) are not pressed.
Clause 6.7 foreshore scenic protection area states:

(1) The objectives of this clause are as follows—
(a) to recognise, protect and enhance the natural, visual and environmental qualities of the scenic areas of the coastline,
(b) to protect and improve visually prominent areas adjoining the coastal foreshore,
(c) to protect significant public views to and from the coast,
(d) to ensure development in these areas is appropriate for the location and does not detract from the scenic qualities of the coast.
(2) This clause applies to land identified as “Foreshore scenic protection area” on the Foreshore Scenic Protection Area Map.
(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development—
(a) 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
(b) contributes to the scenic quality of the coastal foreshore.

Part B10 Foreshore Scenic Protection Area of the RDCP contains a number of controls and objectives that are relevant to the consideration of this contention. Council submits that the location of the infinity pool with glass fencing is contrary to the controls.

Evidence

Mr Awford’s evidence is that the vegetation does not screen the visual amenity impacts to the street and that the swimming pool will be perceived from the public domain. As viewed from Trennery Reserve, the proposal will cover a portion of the vegetation and natural interface on Blenheim Park.
In response to the Court’s questions at the site viewing, Mr Awford fairly conceded that views of the dwelling would be limited.
Mr Betros’s evidence is that the built form will not be readily evident from any foreshore or coastal location against the backdrop of other dwellings upslope from the foreshore area. The elevated swimming pool will be largely unseen from the public domain.

Findings

Given the evidence, it is unclear why this contention was pressed. It appears that the height, bulk and scale contentions raised throughout the SOFAC, have carried through into this contention. There is a difference between a development being seen and a development having impacts on the foreshore area in the way described in the SOFAC.
It was clear on site and from standing on an area of the foreshore area, that there are no impacts to the foreshore area and associated public domain areas. The dwelling will be somewhat perceived from the foreshore area. That visual presence will be a dwelling and roof amongst other dwellings and roofs. I accept and adopt Mr Betros’ evidence. There are no impacts to the scenic qualities of the foreshore area in any of the ways that cl 6.7 of the RLEP or B10 of the RDCP are concerned with. To the extent that the pool coping and fencing were raised as concerns, I am satisfied that the pool, its coping and fencing are designed to minimise views of them from the public domain.
I am satisfied that the development meets the provisions of cl 6.7 and will have no visual impacts on the coastline, views to and from the coast, any foreshore reserves, open space and public areas. To the extent that it is applicable given the lack of visual presence of the proposed dwelling, the proposed development contributes to the scenic quality of the coast foreshore by not detracting from it and blending within its surrounding built environment. I have considered the controls of B10 and none are offended by the proposed development for the same reasons, being lack of visibility and no visual impacts.

Terrace, private open space area and swimming pool variations

Council pressed contentions 11, 12 and 15 in that the private open space, terrace controls and swimming pool controls of the RDCP have not been met. These areas should be located on ground level and to the rear of the site, which would also reduce the bulk and scale of the dwelling and reduce privacy impacts.
The relevant parts of the RDCP states:

Section 2.7 private open space
Objectives
• To ensure an adequate level of private open space is provided for dwellings to enable passive recreational activities by residents.
• To ensure private open space is designed for useability, solar access, privacy and accessibility.
• To ensure semi detached dwelling and dual occupancy development provides a suitable level of functional private open space for each dwelling that offers high amenity for residents.
Controls
i) Provide at least one (1) contiguous area of private open space satisfying the following dimensions based on site area:
>300m² – 6m x 6m
ii) The contiguous private open space must satisfy the following criteria:
- Be situated at ground level
- Does not include any open space on podiums or roofs
- Be adjacent to and directly accessible from the living or dining room of the dwelling
- Oriented and configured to maximise solar access
- Located to the rear of the allotment behind the dwelling where possible
- Has minimal change in gradient
- Includes landscaped areas, terraces, decks, paved surfaces and the like.
4.4. Roof terraces and balconies
Objectives
• To ensure trafficable roof spaces (e.g. balconies or terraces) are integrated with the overall built form and architectural expression of the dwelling and maintain privacy in relation to neighbouring dwellings
• To minimise the amenity impacts of trafficable roof spaces on surrounding properties
• To ensure that trafficable roof spaces allow for view sharing so that equitable access to views are provided from private property
• To ensure trafficable roof spaces are not the primary private open space
• To ensure roof terraces are not uncharacteristic of the area.
Controls
i) A roof terrace must not be provided on the uppermost or main roof of the building (including the principal dwelling and any outbuilding)
ii) For stepped buildings on sloping sites, a terrace may be provided on the roof other than the uppermost roof above the storeys below, provided the terrace complies with the following controls: - Suitably located to prevent direct views to neighbouring habitable windows and private open spaces - The size is to be subservient to the roof form within which it is located - It is designed as a secondary private open space and does not to include entertainment facilities such as kitchens, BBQs or similar - Designed to provide for view sharing, including minimising associated structures and roof top elements - It is to be uncovered and all elements of roof terraces shall comply with the maximum building height control
iii) Roof terraces above garages may only be provided on sloping sites, where the garages are located on the downhill side of the sites fronting the street, and are to comply with the controls outlined above item ii).
Section 7.5 Swimming Pool
Controls
i) Locate swimming and spa pools and associated structures: a. behind the alignment of the front building facade b. to minimise damage to the root system of trees proposed or required to be retained on the subject site and on adjoining properties c. to minimise potential noise impacts on the adjoining dwellings.
ii) The pool coping height must relate to the topography of the site. On sloping allotments, the high side of the site must be excavated, so that the pool structure does not protrude more than 1m above the existing ground level on the lower side.
iii) Where pool coping height is above natural ground level, the pool should be located to avoid pool boundary fencing exceeding 2.2m from existing ground level when viewed from adjoining properties.
iv) Where pool coping height is above natural ground level and has the potential to create privacy impacts on adjoining properties, appropriate screening or planting extending along the full length of the pool shall be provided to address overlooking. Screen planting must ensure consistency with the Swimming Pools Act 1992 in relation to ‘nonclimbable zones’.
v) Despite subclause iv), this requirement may not apply where there is a need to retain existing view corridors from adjoining and nearby properties.
vi) Position any decking away from the side and rear boundaries to minimise adverse privacy impacts on the neighbours.
vii) Locate the pool pump and filter away from the neighbouring dwellings. The equipment must be contained within an acoustically treated enclosure that limits noise transmission.

Evidence

Acknowledging that the DA underwent amendments since the contentions were written, the planning experts agreed that there were no remaining visual privacy concerns from the upper level including the swimming pool, terrace and living areas, subject to conditions of consent for privacy screens.
Mr Awford’s evidence is that the elevated terrace does not meet the definition of private open space (POS). Rooftop POS areas are discouraged because of the significant acoustic privacy impacts. The proposed dwelling is inconsistent with the RDCP as it is four storeys and therefore provides a roof terrace, discouraged by the RDCP. The proposed privacy measures, including planters, increase the bulk of the dwelling.
Mr Awford says that the swimming pool contributes to the bulk of the dwelling. The example provided of the upper element pool is located to the rear of the dwelling. Not all sites are suitable for a pool.
Mr Betros’ evidence is that the roof POS responds to the site conditions to provide a high quality north facing POS, directly accessible from the primary living area. The POS is isolated from neighbouring properties and will capture water views. An alternate location on the ground floor would have limited sunlight and be closer to adjoining properties. There are no visual or acoustic impacts from the area and other dwellings in the area provide primary balconies or POS in their front setbacks.
Mr Betros says that the swimming pool should be considered on its merits. The siting of the pool does not generate any adverse impacts on the streetscape, visual or acoustic privacy, the public domain or surrounding properties. There are examples of upper element pools in the area.

Findings

The proposal seeks variations to controls 2.7, 4.4 and 7.5 of the RDCP. I accept the evidence of Mr Betros and find that the proposed variations that result in a primary POS with swimming pool on the upper storey meets the objectives of each of the controls for the following reasons.
Control 2.7 is not complied with, as the controls seek to locate a 6m x 6m primary POS space on the ground floor, not on podiums or roofs, located to the rear of the site and incorporating landscaping.
The roof terrace is generally consistent with the controls of 4.4 of the RDCP but not for primary POS areas. Controls 4.4(ii) and (iii) allow stepped buildings on sloping sites to contain a roof terrace, so long as it is not located at the uppermost or main roof and other controls. I find that the proposed terrace is not located on the main or uppermost roof. The terrace is designed in a manner that is shown as ‘acceptable’ in Figure 12 of the RDCP, generally above the garage area and directly adjoining the living, dining and kitchen areas. The terrace complies with the controls in 4.4(ii) except for the requirement to be a secondary POS.
A garden area has been proposed in the rear setback, but is below the minimum 6m x 6m dimensions. Notwithstanding, the main POS is the rooftop POS.
With consideration of the objectives of controls 2.7 and 4.4, in the circumstances of this site, there are conflicts between the objectives to ensure that POS is provided at the ground floor, that trafficable roof spaces are not the primary POS area and for POS areas to receive adequate amenity.
I accept the evidence of Mr Betros and submissions of Mr Pickles SC that the location and orientation of this site means that a ground floor POS would result in a POS with poor amenity. A ground floor POS would be located below most of the southern Dundas Street properties. The rear of the site faces south, and a rear POS would receive very little sunlight and due to the topography, poor outlook. The proposed roof POS captures solar access, water views and adjoins the main living areas.
There are no unreasonable privacy, solar access or view sharing impacts to adjoining neighbours from the roof POS. Large upper element balconies and roof terraces are characteristic in the area, in order to capture water views. The proposal also provides adequate landscaping, as detailed at [173].
In considering the acoustic privacy issues raised about the roof POS, I am satisfied that the roof terrace primarily adjoins the elevated POS of 6 Dundas (albeit, at a higher height). The use of the POS by a family is consistent with terraces and large balconies already existing in the streetscape. There are no requirements for an acoustic report and I accept that the acoustic impacts will be consistent with those anticipated in a residential area.

Whilst some of the controls and objectives seek to locate the primary POS on the ground floor, the result on this site would be an undesirable, overshadowed primary POS area that would not provide adequate amenity for the residents. In the circumstances of this site, this objective conflicts with the other objectives seeking amenity and functionality. For these reasons, I accept that the proposed variations for the roof terrace meet all the relevant objectives and are acceptable.
In relation to control 7.5, the location of the swimming pool on the roof POS is inconsistent with the control to minimise pool structures protruding more than 1m above ground level. There are no relevant objectives for control 7.5. I have previously found that the location of the pool is not inconsistent with the character of the area. I accept that there are no visual or acoustic impacts from the pool, which is located towards the public park and away from 6 Dundas Street. The pool and its associated fencing do not breach the height limit. I find that the proposed location in an area that captures solar access, adjoins the POS and living areas and lacks amenity impacts to adjoining residents is acceptable.

View Loss

Council pressed contention 8 that the proposed development would result in adverse view impacts to neighbouring properties, particularly through non-compliant elements including FSR and building height (RDCP). The RDCP contains the following view sharing controls and also refers to the Court’s planning principle for view loss in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity). The RDCP controls are the focal point for consideration of this contention.
RDCP Section 5.6 view sharing states:

Objectives
• To acknowledge the value of views to significant scenic elements, such as ocean, bays, coastlines, watercourses, bushland and parks, as well as recognised icons, such as city skylines, landmark buildings / structures and special natural features
• To protect and enhance views from the public domain, including streets, parks and reserves to significant scenic elements and recognised icons
• To ensure development is sensitively and skilfully designed to maintain a reasonable amount of views from the development, neighbouring dwellings and the public domain.
Controls
i) The location and design of dwellings and outbuildings must reasonably maintain existing view corridors or vistas from the neighbouring dwellings, streets and public open space areas
ii) In assessing potential view loss impacts on the neighbouring dwellings, retaining existing views from the living areas (such as living room, dining room, lounge and kitchen) should be given a priority over those obtained from the bedrooms and non-habitable rooms
iii) Where a design causes conflicts between retaining views for the public domain and private properties, priority must be given to view retention for the public domain
iv) The design of fences and selection of plant species must minimise obstruction of views from the neighbouring dwellings and the public domain
v) Design of proposals must demonstrate a balanced approach to privacy protection and view sharing and avoid the creation of long and massive blade walls or screens that obstruct views from the neighbouring dwellings and the public domain
vi) Development applications must clearly demonstrate and explain measures adopted to mitigate potential view loss impacts.

The planning principle of Tenacity states:

25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.
26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

The properties that will be affected by the proposed development are:

10 Dundas Street.

3/12 Dundas Street.

14 Dundas Street.

Evidence

The planners agree that there will be no view loss impacts to 6 and 8 Dundas Street.
Mr Betros’ evidence is that 10 Dundas Street retains water views to the east but lose water views from the elevated concrete hardstand at the rear of the property. 8 and 10 Dundas Street maintain expansive water views from elevated balconies or roof terraces.
Mr Betros says that 12 Dundas Street retains water views to the east. The rear unit of 12 Dundas Street contains a north facing kitchen and private open space. Views from these areas, obtained over a side boundary, will be partially retained. The impacts to these spaces are from compliant aspects of the proposed development and mostly obstructed by existing vegetation at 8 Dundas Street.
Mr Betros’ evidence is that there will be no view loss to the gym at 14 Dundas Street, as it is orientated east and above the roof of the proposed dwelling.
Mr Awford’s evidence is that 10 Dundas Street obtains ocean views from their living, balcony and roof terrace area and include views of the coastline and ocean that are unaffected by the proposed dwelling. Views from the parking area and the rear yard will be impacted. Whilst the impact of these views is not considered severe, with consideration of the principles in Tenacity, the non-compliant aspects of the proposal result in unacceptable and avoidable view impacts.
Mr Awford says that the proposal results in partial view loss impacts to the main private open space area and kitchen area of 3/12 Dundas Street. These are the only views obtained by this dwelling. These are created by non-compliant elements from the proposal and impact a high use location.
Mr Awford says that partial view loss to Grant Reserve may occur to the gym at 14 Dundas Street. Views of Coogee Beach are unlikely to be disturbed. The main living areas are unaffected by the proposed development.

Findings

I accept the evidence of Mr Betros and with the benefit of the site viewing, find that the view impacts are consistent with the view sharing controls of the RDCP for the following reasons.
I firstly accept the agreed evidence of the planners that views from 6 and 8 Dundas Street remain unaffected, given their location and orientation.
In considering all of the views lost from the car spaces, these are not views to be protected. I acknowledge that residents congregate in these areas for special events, to socialise or to appreciate the iconic views of Coogee Beach and the reserves, however it is unreasonable to protect views obtained from car parking spaces. There are no controls that seek to maintain view sharing from car parking spaces. I find that any view loss from the car parking spaces is reasonable.
10 Dundas Street benefits from expansive water views from rooms and living areas facing east. To the extent that views are lost from the rear yard, which from the site view and evidence would be a negligible amount, I find that these partial lost views from a valuable POS area are significantly offset by the other expansive water views obtained from the east facing balcony and rooms. I accept that the small amount of views lost are consistent with the view sharing controls of the RDCP.
The most impacted dwelling is 3/12 Dundas Street. The proposed development will partially impact the main POS and kitchen, which includes views of iconic Coogee Beach. Control 5.6(ii) of the RDCP prioritises living areas and kitchens as important areas to be retained, which are the identified impacted areas for this property. I accept Mr Betros’ evidence that a small portion of views that capture Coogee Beach and its interface will be lost, however the majority of the existing water views and headland view will be retained. I accept that the views lost are primarily not from the non-compliant parts of the proposed dwelling. Further, more views are currently lost from the existing vegetation at 8 Dundas Street. In considering the competing interests of maintaining views to main living areas (being the POS and the kitchen) over a side boundary, I find that the small amount of view loss, albeit to an iconic view, are acceptable and consistent with the view sharing controls of control 5.6 of the RDCP. I note that pruning of vegetation at 8 Dundas Street would open up more views to these affected areas.
To the extent that it was contended that views of the reserve may be lost to the gym at 14 Dundas Street, I accept the agreed evidence that there will be no loss of water views. The room is a gym, which is not a room prioritised for view sharing retention by the RDCP and still obtains expansive water views. For these reasons, any loss of views from this room of the reserve are reasonable, irrespective of the view loss being from the non-compliant aspect of the proposal.

Amenity impacts

Council presses contentions 14 and 16 that there are adverse amenity impacts to adjoining dwellings in relation to visual privacy and solar access. The amendments made to the DA and further information provided during joint expert reporting addressed many of the particulars of these contentions.
The following planning controls in the RDCP are relevant:

5.1 Solar access and overshadowing
Objectives
• To ensure new dwellings and alterations and additions are sited and designed to maximise solar access to the dwelling living areas and private open space
• To ensure development retains reasonable levels of solar access to neighbouring dwellings and their private open space
• To provide adequate ambient daylight to dwellings and minimise the need for artificial lighting.
5.3 Visual privacy
Objective
• To ensure that development minimises overlooking or cross-viewing of neighbouring dwellings to maintain reasonable levels of privacy.
Controls
i) All habitable room windows must be located to minimise any direct viewing of existing habitable room windows in adjacent dwellings by one or more of the following design measures: - Offsetting or staggering windows away from those of the adjacent building - Setting the window sills at a minimum of 1.6m above finished floor level - Installing fixed and translucent glazing up to a minimum of 1.6m above finished floor level - Installing fixed privacy screens outside the windows in question - Creating a recessed courtyard on the side elevations of a building measuring not less than 3m x 2m in size, with windows opening towards the courtyard in lieu of the common boundary.
ii) The windows of living areas must be oriented away from the windows of adjacent dwellings wherever possible. In this respect, they may be oriented to: - The front or rear of the allotment - A side courtyard.
iii) Focus upper floor balconies to the street or rear garden of the site. Any elevated balconies, or balcony returns on the side façade, must have a narrow width to minimise privacy impacts on the adjoining properties
iv) Balconies, decks, and terraces on steeply sloping sites must minimise overlooking through careful positioning and orientation
v) Where a balcony, deck or terrace is likely to overlook the Private Open Space or windows of the adjacent dwellings, privacy screens must be installed in positions suitable to mitigate the loss of privacy. The use of privacy screens should be a secondary mitigation device where overlooking is primarily mitigated through positioning and orientation. Privacy screens must be permanently fixed and have a minimum height of not less than 1.6m, as measured from the finished floor level. Privacy screens must achieve a minimum of 70% opaqueness and may be constructed with: - Translucent or obscured glazing - Fixed timber or metal slats mounted horizontally or vertically - Fixed vertical louvres with the individual blades oriented away from the private open space or windows of the adjacent dwellings.
vi) Screen planting and planter boxes may be used as a supplementary device for reinforcing privacy protection. However, they must not be used as the sole privacy protection measure vii) For sloping sites, any ground floor decks, or terraces must step down in accordance with the landform, and avoid expansive areas of elevated outdoor recreation space.

Evidence

Except as discussed elsewhere, the planners agree that the privacy and solar access requirements have been met.

Findings

Discussed further below under ‘conditions’, I have accepted Council’s preferred conditions for 1.6m privacy screens along disputed aspects along the eastern elevation to the roof POS, music room and bedroom. I have accepted these on the basis that it is consistent with the RDCP and does not cause an intrusion into the side setback. Other privacy measures include the planter boxes and increased setbacks on the top storey that will minimise visual privacy impacts. Accordingly, privacy conditions along the eastern boundary towards 6 and 8 Dundas Street are consistent with the controls of the RDCP. To the extent raised by the written objections from neighbours to the rear, I find that the building separation sufficiently minimises privacy impacts from the low trafficable bedrooms, and that the upper storey does not contain a window facing the rear. The rear stairway will not cause unreasonable privacy impacts given its transient nature.
Turning to solar access and control 5.1 of the RDCP, the planners agree that the minimum solar access requirements for adjoining properties are met, being three hours on 21 June. Pursuant to s 4.15(3A) of the EPA Act, I am not able to impose more onerous requirements. I accept the evidence that the proposal complies with these controls and is therefore acceptable.

Earthworks and deep soil

Council pressed contentions 7 and 10 that there is excessive and unnecessary excavation and that inadequate deep soil has been proposed.
Clause 6.2 of the RLEP provides controls in relation to earthworks. The proposal seeks to vary control 4.7 earthworks of the RDCP, which states:

Objectives
• To maintain or minimise change to the natural ground levels, streetscape, and natural environment
• To ensure excavation and backfilling of a site does not result in unreasonable structural, visual, overshadowing and privacy impacts on the adjoining dwellings
• To provide usable private open space for dwellings with adequate gradient
• To ensure earthworks do not result in adverse stormwater impacts on adjoining properties
• To ensure earthworks do not impact upon the ability to achieve deep soil permeability surface areas and canopy tree planting
• To prevent the use of subterranean spaces as habitable areas.
Controls
i) Any excavation and backfilling within the building footprint must be limited to a maximum 1m at any point on the allotment, unless it is demonstrated that the site gradient is too steep to reasonably construct a dwelling within this extent of site modification. Refer to Figure 16. These requirements do not apply to swimming or spa pool structures
ii) The outer edge of any excavation, piling or sub-surface walls must be setback a minimum of 900mm from the side and rear boundaries
iii) Any excavation undertaken to create subterranean spaces must not be used as habitable space
iv) Retaining walls are to be stepped in response to the natural landform to avoid creating monolithic structures, particularly where visible from the neighbouring dwellings and the public domain
v) Where it is necessary to construct retaining walls at less than 900mm from the side or rear boundary due to site conditions, retaining walls must be stepped to follow the topography of the land. Each stepping must not exceed a maximum height of 2.2m, as measured from the ground level (existing). In this case, the retaining walls may be incorporated as part of the boundary fence
vi) For sites that slope upwards to the rear with the dwelling elevated above street level, the surface area of any blank retaining walls fronting the street must be minimised. Use a combination of materials to create articulation, and/or incorporate landscaping to visually soften the wall structures
vii) Any cut and fill outside the building footprint (for the purposes of creating useable private open space) must take the form of terracing following the natural landform, in order to minimise the height or depth of earthworks at any point on the site. The appropriate extent of site modification will be assessed on a merit basis
viii) For sites with a significant slope, adopt a split-level design for dwellings to minimise excavation and backfilling, and design dwellings to minimise the height and extent of any exposed undercroft areas.

Control 2.5. deep soil permeable surfaces of the RDCP states:

Objectives
• To retain and provide planting area for canopy trees and general vegetation to contribute to the overall tree canopy cover of the LGA and to the establishment of landscaped corridors across the locality
• To assist with stormwater infiltration and reduction of overland flow
• To improve climate resilience of the site.
Controls
i) New development, or alterations and additions that change the existing site coverage by more than 10%, must provide the minimum area of deep soil permeable surfaces as specified in the table below:
>301 to 450 sqm - 35% of the site area
ii) Deep soil permeable surfaces must have a width of not less than 900mm
iii) Deep soil permeable surfaces should be located to support the retention of existing significant trees on site or those on adjoining sites
iv) A minimum of 25% of the front setback area of a property must comprise deep soil permeable surfaces.

Evidence

Mr Awford’s evidence is that the RDCP provides controls for sloping sites and limits excavation of them to 1m. The proposal significantly breaches the requirements, seeking excavation depths between 2.8m to 3.1m. The excavation contributes to the overshadowing of the rear space.

Mr Awford maintained that deep soil was deficient, at 32.7%. He provided evidence about how he undertook the calculations.
Mr Betros’ evidence is that the extent of excavation is not unusual for developments on sloping sites. The excavated areas are recessed from the site boundary sought by the RDCP excavation requirements. The geotechnical report outlines the construction methodology. Any other excavation matters are generally addressed by standard conditions of consent.
A supplementary report addressing cl 6.2 was tendered during the hearing.
In relation to deep soil, Mr Betros maintained that the requirements were met and that he relied on the calculations provided on the landscape plan.
It is noted that conditions of consent have been included in relation to landscaping and species selection.

Findings

Whilst it was contented that cl 6.2 of the RLEP was not met, there was no evidence adduced about how the proposal did not comply with these provisions. The evidence related to control 4.7 of the RDCP. On the basis of the supplementary report addressing cl 6.2, the Geotechnical Report and stormwater plans, I accept that cl 6.2 has been met.
I accept that the variation to control 4.7 earthworks meets the objectives of the control for the following reasons.
I accept and adopt the reasons given by Mr Betros that the additional excavation is acceptable as it is consistent with the site’s topography, generally stays within the building envelope, is not the cause of the lack of ground floor POS and provides adequate stormwater drainage and landscaping. There is no evidence of potential impacts to adjoining neighbours from the excavation and the excavated areas have not been used to provide subterranean spaces. I therefore find that the variation to the earthworks control is acceptable and meets the objectives of the control.
In relation to deep soil, the evidence was not able to identify the discrepancy between the 35% calculated by Hurst and the 32.7% calculated by Council.
I prefer the evidence of Mr Awford that the deep soil does not comply, as he personally undertook the assessment of the calculations. However, for the following reasons, I find that the minor variation is acceptable and meets the objectives of the controls. The minor variation of 2.3%, which I accept was not an intentional variation, still provides deep soil planting along the front setback, majority of the side setbacks and half of the rear setback. The site viewing revealed extensive existing vegetation at the front of the site and the site benefits from its location adjoining a park, which also provides trees near the boundary. Through the conditions of consent, appropriate tree selection will be provided. There is no evidence that the deep soil areas do not provide adequate stormwater measures or impact the climate resilience of the site. Accordingly, I accept that the proposed deep soil meets the objectives of control 2.5.

Insufficient information

To the extent that Council pressed any of the insufficient information particulars, I find that these have been addressed through the amended DA and conditions of consent.
To the extent raised in oral submissions, I am also satisfied on the basis of the amended architectural plans, turntable information (Ex F) and existing driveway that cl 6.10 of the RLEP is met. All other services are currently provided or will be provided for.
I also note that the amended plans clarified that no works were proposed to the retaining wall between the subject site and 6 Dundas Street.

Community submissions

The DA was notified by Council for 14 days from 3 July 2024. The amended DA did not agitate re-notification.
The hearing commenced on site and the Court heard oral objections from several adjoining residents and benefitted from understanding the concerns raised from the respective properties. The issues raised are summarised below and have been substantially addressed by the contentions raised by Council, which I have found do not warrant refusal of the DA:

Excessive FSR, height, setbacks and design (bulk and scale).

Visual bulk.

View loss.

Overshadowing.

Privacy impacts.

Of the remaining concerns, I have considered them and find that none warrant refusal of the amended DA. Some are addressed below:

Excavation, construction methodology and property damage concerns are addressed in the Geotechnical Report and conditions of consent.

Impacts from the proposed tree removal have been adequately addressed in the Arboriculture Impact Assessment prepared by Australis Tree Management and through conditions of consent. Council raised no objections to the proposed tree removal (Ex 2 Tab 4), subject to conditions of consent and a planting schedule for the proposed species.

Conditions

Two conditions remained in contention between the parties.
The proposed privacy measures along the eastern elevation were disputed. I accept Council’s conditions on the basis that it is consistent with the RDCP, provides reasonable privacy to the adjoining dwelling, maintains desirable water views and does not encroach into the side setback.
The second condition related to maintenance of landscaping to maintain view corridors from 8-12 Dundas Street. The dispute was whether the condition should include the words ‘where possible’. I accept Hurst’s argument that each view is different and the words ‘where possible’ should be included on this basis. The intention of the condition is to ensure that the different types of views obtained from these properties are not impeded by landscaping on the subject site and that regular pruning is to occur in order to maintain each property’s respective views.

Jurisdiction

Outside of the contended issues, there are no other identified barriers to the grant of consent. I am satisfied that the requisite preconditions have been met on the basis of the Statement of Environmental Effects prepared by ABC Planning, information accompanying the amended DA and assessment report prepared by Council.

Conclusion

For the reasons detailed above, there are no contentions that warrant refusal of the amended DA. I therefore find that development consent should be granted, subject to conditions.

Orders

The Court orders that:

The appeal is upheld.

Development application number DA/544/2024, as amended, for the demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, in ground swimming pool, water feature, car parking and associated works at 242 Oberon Street, Coogee, is determined by the grant of development consent subject to the conditions at Annexure A.

All exhibits are returned except exhibits 1, 4, A and B.

S Porter

Commissioner of the Court

Annexure A (328 KB, pdf)

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Decision last updated: 02 September 2025

Medium Neutral Citation:	Hurst v Randwick City Council [2025] NSWLEC 1628
Hearing dates:	23 and 24 April 2025. Final submissions received 7 May 2025.
Date of orders:	02 September 2025
Decision date:	02 September 2025
Jurisdiction:	Class 1
Before:	Porter C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development application number DA/544/2024, as amended, for the demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, in ground swimming pool, water feature, car parking and associated works at 242 Oberon Street, Coogee is determined by the grant of development consent subject to the conditions at Annexure A. (3) All Exhibits are returned except Exhibits 1, 4, A and B.
Catchwords:	DEVELOPMENT APPEAL – new dwelling house – building envelope – setbacks – storeys – floor space ratio – variation to development standard – written request
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 3.43, 4.15, 8.7 Land and Environment Court Act 1979 (NSW), ss 34AA, 39 Environmental Planning and Assessment Regulation 2021 (NSW), ss 35B, 38 Randwick Local Environmental Plan 2012, cll 2.3 4.4, 4.5, 4.6, 4.7, 6.2, 6.7, 6.10 State Environmental Planning Policy (Resilience and Hazards) 2021
Cases Cited:	Appel v Randwick City Council [2024] NSWLEC 1652 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Veloshin v Randwick Council [2007] NSWLEC 428 Wehbe v Pittwater Council [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Scott Hurst (First Applicant) Dana Kedzier (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicants) C Novak (Respondent) Solicitors: Mills Oakley (Applicant) Randwick City Council (Respondent)
File Number(s):	2024/408959
Publication restriction:	Nil

FSR objective	Written request
(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,	The FSR variation will be compatible with the desired future character of the locality and will not be out of context with the height, bulk and scale of adjoining properties to the east. The built form of 6 Dundas Street has a greater visual bulk given its extended built form over three levels with minimal landscaping in the foreground. In contrast, the proposed development is narrower and substantially screened by vegetation with a recessive third storey at the upper level. The site is located opposite the R3 Medium Density Residential zone which contains residential flat buildings of a 3-4 storey built form. The variation will not be inconsistent with the built form of the surrounding context. Compliance with the building height development standard confirms that the built form and FSR variation will be compatible with the desired future character.
(b) to ensure that buildings are well articulated and respond to environmental and energy needs,	The built form is highly articulated on all facades and is fragmented and stepped. The articulation breaks down the visual bulk and allows for abundant sunlight, daylight, and ventilation, which reduces reliance on heating, lighting and cooling. The variation does not generate any inconsistency with this objective.
(c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,	The proposed dwelling is not in a heritage 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.	The additional FSR is not responsible for any adverse or unreasonable amenity impacts to neighbouring properties, noting that only two properties to the east and one property to the south adjoin the site. Such properties will continue to receive more than the required solar access under the DCP, while views will be retained. Privacy will be improved compared to the current interrelationship. The proposed FSR will minimise adverse environmental impacts notwithstanding the FSR variation.