Ideal Rockpool Pty Ltd v Randwick City Council

[2017] NSWLEC 1751

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ideal Rockpool Pty Ltd v Randwick City Council [2017] NSWLEC 1751
Hearing dates:	6 December 2017
Date of orders:	04 January 2018
Decision date:	04 January 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See orders at par 22
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures and the construction of a four‑storey residential flat building; consent orders; resident objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 2012. State Environmental Planning Policy No.65
Texts Cited:	Practice Note Class 1 Development Appeals
Category:	Principal judgment
Parties:	Ideal Rockpool Pty Ltd (Applicant) Randwick City Council.(Respondent)
Representation:	Counsel: Mr S Nash (Applicant)   Solicitors: Mills Oakley (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/124269
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 8162016 for the demolition of existing structures and the construction of a four‑storey residential flat building containing 4 x 3 bedroom apartments, basement car parking for eight vehicles, a swimming pool at ground level, rooftop terrace and associated works at 90 to 92 Marine Parade, Maroubra (the site).

2. The site comprises lot 30 in DP6127.  It is a rectangular‑shaped allotment and is located at the intersection of Marine Parade and The Corso at Maroubra. The site has a street frontage of 13.41 m to Marine Parade and a street frontage of 36.575 m to The Corso, giving a total site area of 490.5 sqm.  The site is currently occupied by a single‑storey commercial premises with a semi‑detached dwelling at the rear.  The site has a fall of approximately, 2 m from the rear to the street frontage along Marine Parade and a fall of, approximately, 700 mm from the south‑west to the north‑east side of the site.

3. The immediate locality is characterised by a mixture of low‑density residential developments to the west and medium‑density residential developments along Marine Parade frontage to the north and south.  Generally, these developments vary between single and four‑storeys in height.  The surrounding area comprises a mixture of buildings with no typical form of development being predominant.  The area includes a mix of older housing stock of single and two‑storeys with a traditional older‑style three and four‑storey residential flat buildings. Located on the eastern corner of the intersection of The Corso and Marine Parade is Jack Vanny Reserve and public recreation area.  On the east side of Marine Parade opposite the site is the heritage listed Mahon Pool, which is of local heritage significance.  To the south of The Corso opposite the site is the pool café that is referred to in the New South Wales Heritage Office listing of Mahon Pool.  The council raised no issues in relation to any heritage items or buildings nearby.

4. The site is within Zone R3 Medium‑Density Residential under the provisions of Randwick Local Environmental Plan 2012 (LEP 2012). The proposal is characterised as a residential flat building and is permissible with consent in this zone. Clause 2.3(2) provides that regard must be given to the R3 zone objectives although no issues were raised in relation to this sub clause. Clause 4.3 provides for a maximum height of 12 m and cl 4.4 provides for a maximum floor space ratio of 0.9:1. It was agreed that the proposed development satisfies both development standards.

5. Randwick Development Control Plan 2013 (DCP 2013) applies, particularly pt C2 Medium Density Residential.

6. State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development also applies.

7. The council filed a Statement of Facts and Contentions that identified the following reasons why the application should be refused:

1.  Excessive building height;

2.  Excessive external wall height;

3.  View loss;

4.  Inadequate solar access; and

5.  Inadequate deep soil landscaping.

8. Prior to the hearing, the applicant provided amended plans to address the matters raised by the council.  A joint report was prepared by Mr Benjamin Black for the applicant and Mr Anthony Betros for the council on the amended plans.  The joint report addressed the matters identified in the Statement of Facts and Contentions and concluded, in each case, that the amendments satisfactorily addressed those matters previously in dispute.  The council sought that the appeal be addressed through consent orders.  In this regard, the Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides at [99]:

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

(i) The content of the proposed orders, including the proposed conditions of consent;

(ii) The date of the hearing by the Courts who consider making the proposed consent orders;

(iii) The opportunity for any such person to be heard or that in the circumstances of the case notification is not necessary.

9. In summary, the Practice Note requires:

1.  Evidence to show that approval is lawful and appropriate, including

whether any statutory provisions have been complied with;

2.  Whether any objection has been properly taken into account; and

3.  Whether reasonable notice has been given to all persons who objected to the proposal the date of the hearing and the opportunity to be heard.

10. On those matters required to be addressed by the Practice Note, I firstly accept that the joint report of Mr Black and Mr Betros provides sufficient evidence to show that approval is lawful and appropriate in the circumstances.

11. Second, a number of residents provided evidence on the site inspection and raised similar issues to that raised by the council and the additional following concerns:

1.  Disturbance during construction;

2.  Additional traffic and parking;

3.  Unacceptable bulk and scale;

4.  Excavation impacts; and

5.  Loss of sunlight.

12. There was agreement that the amended application satisfied LEP 2012 development standards in relation to maximum height and FSR.  The maximum wall height of 10.5 metres was exceeded in the south‑west corner of the building however it was accepted that the departure was not significant and did not result in any additional impacts.  On this basis, I accept that height, FSR and wall height are acceptable.  While a number of residents maintain that the height, bulk and form of the building was excessive, it is not a reason that can be supported given the compliance with the development standards that control height, bulk and form.

13. View loss was a consistent concern of the local residents and the Court had the benefit of a site inspection of two properties.  Montages were provided as part of the joint report and superimposed the form of the building on the view from the balcony of 67 The Corso.  The expert report made the following comments in relation to potential view loss:

"Contention is resolved by building on flat comparison between a potentially compliant building envelope and the proposed amended builtform.  The proposed builtform will have less view loss impacts than the potential compliant building envelope due to substantial rear setback which is double that required by the DCP.  The effect of the substantial rear setback and the reduced overall height is considered to reasonably preserve views of the headland and ocean when viewed from the neighbours' property to the south‑west.  This outcome will improve views from other properties addressed to the south‑eastern side of The Corso and the property on the southern side of the corner of Marine Parade and The Corso."

14. With the benefit of the inspection of the property and accepting that some existing views will be lost, I concur with the conclusions of the experts on this matter.

15. An inspection of the property at 77 Torrington Road was also undertaken and an estimation of the effect of the proposed development made on views from this property.  Again, while views will be lost, an even lower building than that currently complying building, would remove similar views from this property.  The view is consistent with what would be expected under the current planning controls for the site under LEP 2012 and DCP 2013. 

16. The owner of the adjoining café expressed concern over the potential loss of trade during the construction phase of the proposed development.  He proposed additional conditions on the construction which were set out in his letter of objection to the council and was available to the Court.

17. Like the council, I accept that these conditions are excessive and should not be included in the conditions of approval.  I am satisfied that sufficient protection is available in Condition 27 - dilapidation report, Condition 28 -Construction, noise and vibration management plan, Condition 29 - Construction site management plan, Condition 30 - Demolition works plan and Condition 31 - Construction management plan.

18. As I understand from the council documents in exhibit 4 and in relation to the concerns expressed by some residents regarding overshadowing, these impacts are not inconsistent with the requirements contained in DCP 2013.

19. Third, there was no suggestion that the reasonable notice had not been given to all persons who objected to the proposal and the time and date of the consent order hearing. 

20. As the Court was not in a position to issue orders given that an updated BASIX certificate is required, the Court directs the applicant to file and serve an amended BASIX Certificate that addresses the amended plans and following which orders will be made in accordance with the consent orders in exhibit 6, in chambers.

21. The amended BASIX Certificate was provided and the orders of the Court are:

22. By consent of the parties, the Court order that:

1. The Applicant is given leave to amend the development application and rely on the following amended plans:

Plan	Drawn by	Dated
A-2.03 (Revision H)	MKD Architects	29/09/2017
A-3.01 (Revision H)	MKD Architects	29/09/2017
A-3.02 (Revision H)	MKD Architects	29/09/2017
A-3.03 (Revision H)	MKD Architects	29/09/2017
A-3.04 (Revision H)	MKD Architects	29/09/2017
A-3.05 (Revision H)	MKD Architects	29/09/2017
A-3.06 (Revision H)	MKD Architects	29/09/2017
A-3.07 (Revision H)	MKD Architects	29/09/2017
A-3.08 (Revision A)	MKD Architects	29/09/2017
A-4.01 (Revision H)	MKD Architects	29/09/2017
A-4.02 (Revision H)	MKD Architects	29/09/2017
A-4.03 (Revision H)	MKD Architects	29/09/2017
A-4.04 (Revision H)	MKD Architects	29/09/2017
A-4.10 (Revision H)	MKD Architects	29/09/2017
A-4.11 (Revision G)	MKD Architects	29/09/2017
A-5.01 (Revision H)	MKD Architects	29/09/2017
A-5.02 (Revision H)	MKD Architects	29/09/2017
A-5.03 (Revision H)	MKD Architects	29/09/2017
A-5.04 (Revision H)	MKD Architects	29/09/2017
A-6.01 (Revision B)	MKD Architects	29/09/2017
A-6.02 (Revision A)	MKD Architects	29/09/2017

2. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application, as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. DA/816/2016 for the demolition of existing structures, construction of 4 storey residential flat building containing 4 dwellings, basement car parking for 8 vehicles with access from The Corso, swimming pool at ground level, roof top terrace and associated works on the land at 90-92 Marine Parade, Maroubra (Lot 30 in DP 6127) is approved subject to the conditions in Annexure “A”.

5. The exhibits are returned with the exception of exhibits D and 1.

_______________

G Brown

Commissioner of the Court

Annexure A (C)

Decision last updated: 04 January 2018