Kavaluro Pty Ltd v Randwick City Council

[2019] NSWLEC 1615

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kavaluro Pty Ltd v Randwick City Council [2019] NSWLEC 1615
Hearing dates:	7-8 November 2019
Date of orders:	12 December 2019
Decision date:	12 December 2019
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The orders of the Court are: (1)   The appeal is dismissed. (2)   Development application DA/281/2018 for demolition of existing buildings and construction of a new building comprising a consulting room, 31 boarding rooms across the four levels, a boarding house manager’s room and associated communal and service areas. parking and loading areas at 47 Botany Street, Randwick is refused consent. (3)   The exhibits, other than Exhibits A, E and 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION – Boarding house with consulting room – parking – traffic – access
Legislation Cited:	Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Infrastructure) 2007
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Kavaluro Pty Ltd v Randwick City Council
Representation:	Counsel: T To (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Bartier Perry (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/282284
Publication restriction:	No

Judgment

1. COMMISSIONER: Kavaluro Pty Ltd lodged Development Application DA/281/2018 with Randwick City Council (the Council) on 22 May 2018 seeking consent to demolish existing structures and construct a 5 storey boarding house with basement carparking. The development originally proposed 41 boarding rooms, a manager’s room with private open space, communal living room and associated open space, a consulting room and neighbourhood shop.

2. The Council had not determined the application within the prescribed period and the applicant is appealing its deemed refusal.

3. Following a conciliation conference before another Commissioner of this Court, the applicant sought leave to rely on amended plans. Further leave was sought and granted for further amended plans on 22 October 2019 following joint conferencing.

4. The applicant made further amendments to the plans prior to and during the hearing and was granted leave to rely on those plans Exhibit E.

The site and its context

5. The site is known as No. 47 Botany Street, Randwick and is located on the corner of High Street. It is legally described as Lot 2 in DP 978775 and has frontage of 12.805m to Botany Street and 36.465m to High Street with a site area of approximately 467m2.

6. It is regular in shape with a 1.5m fall from west to east. A single storey building is currently erected on the site. It and the associated hardstand in the rear of the site would be demolished to allow redevelopment of the land. All trees on the site would be removed.

7. Immediately adjoining the site are four storey brick and tile residential flat buildings. There are two such buildings between the site and Blenheim Street to the north and a number to the east fronting High Street. The latter have dual frontage to both High and Blenheim Streets.

8. One and two storey residential development occurs along the western side of Botany Street with the site on the southern side of High Street subject to major demolition works with future expansion of the Prince of Wales Hospital planned.

9. A seven to eight storey recently constructed building associated with the University of NSW is located diagonally opposite the site.

10. The tracks for the Light Rail network currently under construction run along High Street opposite the site. These tracks have the effect of eliminating on street parking lanes along the road with a single trafficable lane adjacent to the kerbside and the rail tracks in the centre of the roadway.

The proposal

11. The plans now before the Court propose the construction of a five storey building over basement carpark.

12. The basement consists of a main level below ground accessed via a traction lift from an at grade hardstand area proposed to the eastern end of the site which is accessed off High Street. That area would be accessed from an entry driveway to be constructed on an angle to the west of the existing light rail power pole. Egress would be via a separate layback to the east of that pole, in the approximate location of the existing crossing but widened so as to join up with the layback that services the adjacent residential flat building.

13. The main basement level would accommodate parking for 9 bicycles, 8 motor cycles, a garbage room, bulky waste store, loading/unloading bay, a turntable to facilitate car access to a vertical vehicle lift and a waiting bay where cars would stand while waiting for the turntable and lift. A car stacker would accommodate all of the parking required for the site apart from one accessible space within the entry basement level. A total of 18 cars can be accommodated within the stacker. A second waiting bay is provided within the hardstand area for cars awaiting access to the traction lift. That space is located between the entry and exit driveways and in the path of travel for vehicles entering the site.

14. The ground floor would comprise an area delineated as a consulting room. It is intended for use for some form of medical use however, at this time the precise use has not been determined and the applicant is seeking a condition of consent that requires submission of a further development application for use of the area.

15. A boarding house would be constructed in the four upper storeys of the building. It would contain 31 boarding rooms across the four levels, a boarding house manager’s room and communal living room on the upper floor and a communal study area on the first floor. Laundries would be provided on levels 1, 2 and 3. A rooftop terrace area would be provided adjacent to the upper level communal living area and the manager would have access to an area of private open space in the form of a balcony.

The planning controls

16. The site is zoned R3 Medium Density Residential under the provisions of Randwick Local Environmental Plan 2012 (LEP). Boarding houses are permissible with consent under the provisions of this plan. The provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) Division 3 - Boarding Houses also apply to the application. Further, State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) allows development for the purpose of health services facilities in R3 zones pursuant to the provisions of Division 10 of that policy.

17. Part 4 of the LEP contains Principal Development Standards with cl 4.3 Building Height relevant to determination of the application. A maximum building height of 15m applies to the site. The proposed building in part exceeds that height and the applicant has submitted a written request seeking consent to the development despite non-compliance with the development standard.

18. Randwick Development Control Plan 2013 (DCP) applies to the development with Parts A, B, C and E particularly relevant to the application.

19. The Design provisions of Part B1 of the DCP have the following objectives:

“• To ensure that high quality urban design is a fundamental consideration for all development.

• To identify key components of urban design to be considered and addressed in development proposals.”

20. Transport, Traffic, Parking and Access is dealt with in Part B7. The objectives of those controls are:

“• To promote sustainable transport options for development, particularly along transport corridors, in commercial centres and strategic/key sites.

• To manage the provision of car parking within the broader transport network.

• To support integrated transport and land use options which can demonstrate shared and effective car parking provision with car share facilities, motorbikes/scooters, bikes and links to public transport.

• To ensure car parking facilities, service and delivery areas and access are designed to enhance streetscape character and protect pedestrian amenity and safety.”

21. Table 1 sets out parking rates for particular development forms. The table adopts the parking provision required under SEPPARH for boarding houses. Medical centres require on space for every 25m2 of Gross Floor Area (GFA). Section 3.2 Vehicle Parking Rates includes a number of controls of which (iv) requires that developments minimise the use of mechanical parking devices (car stackers or turntables) particularly on difficult (e.g. constrained access) sites and where queuing may result or safety is jeopardised.

22. The site is within the area to which Part E2 - Randwick Education and Health Specialised Centre of the DCP applies, specifically within Block 2: Blenheim Street/High Street. Planning and Design Principles that apply to High Street are:

“i) Reinforce High Street as the Centre’s major spine, linking health, education, residential and commercial centre activities via a pleasant and walkable streets and public spaces.

ii) Characterise clusters by buildings with active ground level uses oriented towards the street.

iii) Encourage permeable streets with short block lengths

iv) Design buildings to create a strong, vibrant edge to High Street, with clustered related uses to encourage walking, and connected public spaces to promote interaction.”

23. The General objectives for the High Street area are:

“•To facilitate commercial space that is suitable for health services facilities within the Centre.

• To facilitate residential uses including affordable housing to reflect the needs of key workers and students within the Centre.

•To provide building forms and layouts that are capable of adapting to both residential and health service facilities above ground floor.

•To provide active street frontages to streets at ground floor.

•To Increase pedestrian permeability and amenity where possible.

•To minimise vehicular crossings on primary street frontages, including High Street, Botany Street and Belmore Road.”

24. The controls are:

“i) Buildings are to have a minimum floor to ceiling height of:

- 3.3m on the ground floor

- 2.7m on the first floor

in order to provide suitable ceiling heights to suit health and medical related uses.

ii) Provide an active ground floor setback zone, free of columns, balustrades and other visual barriers to the primary street front.

iii) If three bedroom units are provided, units should be capable of being converted into a dual key apartment (i.e. two bedroom + studio).

iv) The design of the first floor and above is to be flexible with multiple configurations possible that enable residential or health service uses.

v) Locate car parking below ground under the building footprint.”

25. Section 2.3 provides specific controls for Block 2. The DCP describes the block as long and rectangular in shape, bounded by High Street to the south, Blenheim Street to the north, Botany Street to the west and Clara Street to the east. Most lots extend from High Street to Blenheim Street and contain four storey residential flat buildings with ground floor garages. The remaining single storey detached dwellings comprise health uses. Most residential flat buildings are strata-titled, with a few lots remaining in single ownership.

26. The objectives of the controls are:

“ • To create a strong built edge to High Street and Botany Street.

• To encourage through-site pedestrian connections between High Street and Blenheim Street.

• To provide articulation to the built edge along High Street and Blenheim Street.

• To manage stepping of built form with the topography.

• To provide active street frontages to High Street and Botany Street at ground floor.”

27. A block plan envisages consolidation of the site with two allotments to the immediate north. Those lots each contain three storey residential flat building over at grade garages. The design of the development does not seek to follow the Building Envelope Plan envisaged in this section of the DCP. The Council did not press compliance with that control.

28. In regard to building height, the controls recognise the 15m development standard under the LEP. The building envelope illustrations show 4 storeys, excluding the roof envelope and structure. Any habitable roof space provided above the maximum building envelope must be setback an additional 4 metres from the building envelope along High Street and Botany Street.

29. The controls anticipate ground floor areas to be used for health services facilities with residential or additional health services on the upper floors. The controls call for vehicular access to parking to be provided from Blenheim Street with all parking located in a basement level, under the building footprint.

30. Setbacks to the ground floors are required to be 6m to High Street and 3m to Botany Street with the upper floors setback 3m and 0m respectively.

The contentions

31. A number of contentions were resolved through the joint conferencing process and are reflected in the amended plans. Those issues remaining are whether the design of the proposed development is compatible with the character of the local area; whether the carparking and servicing needs of the development can be satisfactorily accommodated on the site; whether the height of the building is acceptable, particularly in terms of the design of the upper floor; whether the development is consistent with the objectives of the R3 Zone and whether the design of the development has regard to the Building Envelope Controls in the DCP. Other contentions are capable of resolution through agreed conditions of consent.

The evidence

32. Expert evidence was heard from Mr J Mead (planning) and Mr K Jones (urban design) for the applicant and Mr W Jones (planning) for the Council.

33. These experts agree that the proposed development now reflected in the plans before the Court is consistent and compatible with the character of the local area. They say the amended plans have addressed outstanding character concerns as follow:

1. The upper level to the western part of the building is contained within a pitched form which has reduced the bulk of the upper level and responds to the DCP provisions which encourage a fifth level to be set within a roof form. The eastern part of the building that is not within the roof is acceptable because it is setback from High Street;

2. The northern side is improved by the inclusion of a setback to the eastern part of the building, through change in materials and inclusion of a pitched form to the upper level of the stair;

3. They agree that the envisaged DCP envelope is not suitable due to the inability of the site to be amalgamated with the two properties to the north. The proposed envelope is an appropriate urban design response to the site being developed in isolation and will enable future development of sites to the north and east in an appropriate manner;

4. The proposal is contextually appropriate noting particularly the form of development to the south-west and that earmarked for the site to the south, each of which are of greater height and density than the proposal;

5. The proposal is not of excessive height. Five level development is envisaged for the site and in the locality. The DCP requires the fifth level to be within a roof form. The amended proposal balances this requirement in a manner that will be compatible with the character of the locality;

6. With the proposed amendments, the physical impacts of the development on surrounding properties are considered to be acceptable.

34. In regard to parking, the experts say this is a matter for the traffic experts.

35. In terms of building height, the experts agree that the amended plans address the outstanding concerns in relation to height. The upper level of the western part of the building has been incorporated in a pitched roof form, as has been the upper level of the fire stair. The fifth level of the eastern part of the building is set back further from High Street than the western part to provide a transition from the corner element to the east. These changes reduce bulk and scale and subsequently will not result in adverse amenity impacts upon surrounding properties and is in accordance with the desired future character of the area. They agree the size and scale of the development is acceptable.

36. All experts agree that whilst that part of the fifth storey that is not contained within the roof form (the southern face of the manager’s room and communal room) could be contained within a roof form the same as the remainder of the upper level, that this would be a poor urban design outcome and would result in an inferior outcome. They agree that this portion of the building should be lighter and have less emphasis than the corner which should be the dominant element.

37. They also agree that whilst the development does not meet the numerical setback requirements established under the DCP, they agree that the Council’s proposed condition to setback the south-western corner would be a bad urban design outcome as it would not emphasise the corner consistent with the objective of having a strong built edge to the corner of High and Botany Streets.

38. It is common ground that the proposed development will be consistent with the R3 Zone objectives, the provisions of SEPPARH are met and the provision of two communal living rooms of suitable size provide good amenity and a choice of communal space.

39. It is also agreed that the plans will provide an adequate level of amenity to future residents and, subject to limitations on the hours that delivery and waste collection vehicles service the site, the amenity of adjoining properties will be appropriate.

40. Expert traffic evidence was provided by Mr T Wheatley for the applicant and Mr C McLaren for the Council.

41. The council had referred the original application to Roads and Maritime Services (RMS) in accordance with the requirements of Schedule 3 of SEPP Infrastructure due to the proximity of the site to the signalised intersection with High and Botany Streets. The RMS had not considered the most recent amendments to the plan, in particular the revised vehicle access and egress arrangements or the extent of excavation required for the stacker within the basement. RMS has advised it raises no objection to the proposed development provided its conditions are included in the determination of the application. One of those conditions reads as follows:

“4. All demolition and construction vehicles are to be contained wholly within the site (or High Street) as a construction zone will not be permitted on Botany Road.”

42. Transport for NSW (TfNSW) was also consulted in relation to the application due to the proximity of the site to the Sydney Light Rail Project. That system will run along High Street parallel to the site’s southern boundary and, as stated above reduces the vehicle traffic lanes to one lane in each direction along High Street. That lane is adjacent to the kerb and the rail lines run along the centre of the roadway. TfNSW has also recommended conditions that should be attached to any consent issued. These include the following:

“Construction vehicles shall not use High Street as a haulage route or construction work zone or Botany Street as a construction work zone, without prior approval of the Sydney Coordination Office within TfNSW and RMS.”

43. If the requirements of both authorities were imposed, it would not be possible to establish a construction work zone in either High or Botany Street.

44. As the referral to TfNSW was made prior to preparation of those plans now before the Court, it also recommended the following condition:

“The applicant shall undertake a swept path analysis to show that the largest size vehicle (B99 vehicle) accessing the site would be able to enter and exit the driveway without encroaching on the Sydney Light Rail corridor along High Street.”

45. The applicant prepared amended plans following joint conferencing of the experts to address that condition and also the issues raised by the Council’s expert. Those plans form Exhibit F.

45. The traffic experts do not agree whether the SEPPARH parking requirements have been provided within the proposed basement and car stacker. Mr McLaren says that 18 spaces are required for the boarding house as one space should be provided for the manager in addition to the 15.5 spaces required under SEPPARH. It is noted that this standard is one that, if met, cannot be used to refuse consent. Mr Wheatly says the 17 spaces are adequate for the needs of the boarding house.

46. They do not agree that the parking required for the consulting rooms has been met. Mr McLaren says that the DCP requires five spaces and only two are required. Mr Wheatley says only 2 spaces are required as the area would only be a single medical consulting room and refers to the DCP requirement for health consulting rooms. The Court notes that the proposed floor space would not satisfy that definition and accordingly regard must be had to the controls for medical centres, that is one space per 25m2 of GFA.

47. There is significant disagreement on whether the proposed traffic arrangements for cars, delivery vehicles and waste collection vehicles can be made. Mr McLaren is highly critical of the methodology used in the queuing analysis, the number of mechanical devices required to access a carparking space, the configuration of the driveway entry, the lack of clearance overhangs for the internal turntable and a number of manoeuvres within the basement level that are required to access the loading bay and car lift. He concludes that these issues result in an unsatisfactory parking and traffic outcome and are likely to lead to vehicles queuing on High Street whilst awaiting access to the site. He is also critical of the proposal to reverse waste collection vehicles across the proposed widened driveway in High Street due to lack of pedestrian sight lines.

48. It is appropriate to understand the proposed access arrangements for cars, delivery vehicles and waste collection vehicles as these are the controversial elements of the design.

49. Waste collection vehicles would have to utilise the driveway and footpath area to perform a reverse manoeuvre to enter the site to ensure that the collection vehicle does not encroach onto the Light Rail corridor. The largest vehicle that can achieve the manoeuvre required is a Small Rigid Truck (SRT) and accordingly a private contractor would be required as the Council does not operate such a small vehicle for its waste collection.

50. Mr McLaren says the proposed reverse manoeuvre is unsafe for pedestrians and cyclists who use High Street. Mr Wheatley says that with the use of mirrors mounted within the property, reverse cameras, “squawkers” (audible alarms) and having the boarding house manager trained in traffic control to assist in controlling traffic and pedestrians in the vicinity of the site, a driver could satisfactorily perform the required movement with safety. Up to three waste collection vehicles would visit the site each week, one for waste, one for recycling and one for medical waste if the use of the consulting room generated this type of waste. The unorthodox reverse movement ensures that a waste collection vehicle does not encroach the Light Rail Corridor.

51. Cars, courier and delivery vehicles will all utilise the proposed angled driveway crossover to be constructed to the west of the Light Rail power stanchion in High Street. It is common ground that the configuration and angle of this crossing does not meet the Council’s design standards and that the angled orientation is not a standard means of constructing driveways. The reason for the angle is to allow vehicles to enter the site from the only traffic lane along High Street without the need to enter onto the Light Rail Corridor as required by TfNSW.

52. On entering the site, a driver is faced with a set of lights which indicate that it is possible to access the basement area or, if red, that the vehicle needs to remain in the waiting bay. Occupants of the building could use a remote control to open the door to enter a proposed traction lift. Those persons without a remote would be required to exit their vehicle and press a proposed push button to be installed adjacent to that doorway. All drivers would then enter the traction lift to gain access to the upper basement level. On this level, they can either utilise the accessible parking space if they meet the requirements for its use, access the proposed loading bay or stop their vehicle on a turntable so that their vehicle can be turned to facilitate access to another lift which forms part of the mechanical car stacker. The applicant proposes use of a system known as Flurparker 590. Use of that system requires another remote control that can be activated from within a car or use of a control point to be installed adjacent to the western fire stair.

53. Once a car enters the Flurparker, it descends into the stacker and is positioned within one of the 18 spaces. Priority is given to vehicles entering the site to reduce the potential for queuing.

54. The plans provide waiting bays to accommodate vehicles in the event that the traction lift, turntable or Flurparker is being utilised.

55. In all, a total of four different mechanical devices are proposed, the lights, the traction lift, the turntable and the Flurparker car stacker. In the event that either the turntable or Flurparker is not operational, only the loading bay and accessible parking space could be utilised. In the event of failure of the traction lift, no onsite parking can be provided other than parking on the at grade hardstand area.

56. Mr Wheatley has prepared an analysis of the delays that occur if a vehicles/vehicles already using the system as proposed and another vehicle enters the site. That analysis is included in Exhibit D.

57. The analysis concludes that if there are no vehicles in the system, a car can enter the lift in 8 seconds however, if one car follows another, 96 seconds would elapse until access is obtained. The worst case scenario would be 281 seconds and would occur if there were 2 cars already in the system attempting to leave the parking bay. That is the time that it would take for a vehicle leaving the site from the Flurparker and delay vehicles entering by 162 seconds as they are able to enter the basement before the exiting vehicle has been fully retrieved from the Flurparker.

58. The total time for leaving the site from the lift is 88 seconds. Mr Wheatley’s queuing analysis for exit for three cars in the PM peak shows the probability of one car in the system exiting the Flurparker and the lift is 17.9% and the probability of one car in the system exiting the lift is 6.8%. Therefore, 6.8% of 88 seconds was added to the average arrival time and 11.2% (17.9% -6.8%) of 162 seconds was added to the average arrival time. That analysis concluded for entry using the lift only for four cars in the PM peak reveals the 98th percentile queue of cars needing to use the lift to enter the basement is one car only. The calculations include motorcycles in the total traffic generation and are not additional trips.

59. The experts differed as to the appropriate input for the queueing analysis. Mr Wheatley says that applying his calculations would see vehicles obstructing High Street 9 times in 1000 entries during peak. That equates to approximately once per month. Mr McLaren says that the peak generation would be considerably higher than suggested by Mr Wheatley and that a vehicle would be likely to queue onto High Street every day.

60. It is agreed that the amended basement level car park generally complies with the requirements of AS 2890.1 (2004) and AS 2890.6 (2009). It is common ground that the design of the access arrangements within the development in terms of clearances required under AS2890 are not met for vehicles using the turntable. Mr McLaren says that this is unsatisfactory, particularly as users of the system will not be familiar with the tolerances and may not be able to park precisely on the turntable thereby having a high chance of damage to their vehicle and/or building structure. Mr Wheatley says that further modification of the building can ensure access to the Flurparker complies and that with the installation of an infra-red beam and mirrors together with training of users who may be required to sign something to acknowledge they have been trained, the variation from the standard would be appropriate.

The 4.6 objection

62. The development standard for building height is not met in that part of the eastern section of the building exceeds the 15m development standard.

63. The applicant relies on a written request prepared by Mr Mead and contained in Exhibit 4. For consent to be granted, the Court must be satisfied that the request adequately demonstrates the matters in cl 4.6 have been satisfactorily addressed and the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

64. Mr Mead says that the proposed development is consistent with the development standard and zone objectives; there are no additional significant adverse impacts arising from the proposed non-compliance and important planning goals are achieved by the approval of the variation. His reasons for saying the size and scale of development is compatible with the desired future character of the locality are:

• The massing of the proposed building is concentrated to the south-western corner of the site to create a strong corner element to the intersection with Botany and High Streets. The height breach provides an appropriate response to the scale of the UNSW buildings on the diagonally opposite corner and is consistent with the comments provided by the Design Review Panel;

• The subject site is a corner allotment with no need for through site links;

• The proposed building has been designed to distribute the building mass anticipated for Level 4 under Chapter E2 of the DCP in a manner that provides significant levels of vertical and horizontal articulation to High Street through varied setbacks, materiality and colours. The provision of a mansard style roof design for Level 4 provides a balance between addressing the corner and providing articulation and variation in built form;

• The proposed development manages the topography of the locality by providing basement level car parking with a medical consulting room and entrance to the boarding house at grade on Botany Street. The significant slope of 1.5m from Botany Street to the eastern boundary would preclude the development from providing a ground floor level that follows the topography from Botany Street and wrapping around to High Street as envisaged by Chapter E2 of the DCP. To provide a functional floor plate at ground level that also provides equitable access necessitates an increased height for the central and rear modules of the building.

• Whilst not directly related to the height breach, the proposal will include a 118sqm medical consulting room to provide an active frontage to Botany Street and High Street. The provision of vehicular entrance and a secondary pedestrian entrance surrounded by landscaping to High Street will be a significant visual improvement on the existing situation which provides high fences and a lack of articulation or activation.

65. The written request then goes to compatibility and the desired future character (DFC) of the area assessing the proposal against the controls in the DCP and concludes the size and scale of the proposed development is compatible with the DFC as set by the building envelope controls and the context of surrounding buildings within the visual catchment of the site.

66. In terms of the objectives of the development standard in regard to amenity considerations, Mr Mead relies on his conclusions in terms of visual bulk and scale. He notes the DCP contemplates redevelopment of the block bounded by Botany, Blenheim, Clara and High Street and says the proposed development represents the emerging scale of development that is compatible with the DFC. In terms of overshadowing, the siting of the proposed development on the north-eastern corner of the intersection of Botany and High Streets will ensure the majority of shadow cast by the proposed development will be over the public domain. The extent of the non-compliance creates no significant levels of additional overshadowing to adjoining properties when compared to a compliant building.

67. In terms of views and privacy, the area of non-compliance will not result in any significant additional view loss compared with a compliant building.

68. Mr Mead also addressed each of the zone objectives and concludes the proposed development is consistent with those objectives in that it will result in the development of a boarding house in a highly accessible area.

69. His request states that there are no unreasonable impacts that will result from the proposed variation to the maximum building height and as such, there is no public benefit in maintaining strict compliance with the development standard. Whilst the proposed building height exceeds the maximum permitted on the site by a maximum of 1.2m (8%), the proposed development is consistent with the objectives of the development standard and the objectives for development in the R3 zone and therefore in the public interest.

70. Mr Mead also considers whether there are sufficient environmental planning grounds to justify contravening the development standard. He lists 16 reasons. (Exhibit 4, annexure C, pp 7-9). He links these reasons to the Council controls, the objectives of the zone, the disconnect between the development standard and the building envelope controls in the DCP amongst others.

Conclusion and findings

71. For consent to be granted, the jurisdictional test in cl 4.6 of the LEP must be passed. Having regard to the written objection, I am satisfied that it justifies contravention of the development standards by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard. That is because I am satisfied that the request demonstrates the development is consistent with the objectives of the standard itself and the zone objectives.

72. Clause 4.6 of the LEP is in the following terms:

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 for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

73. Whilst the Council supports variation of the standard in accordance with the written request, it is the Court that must be satisfied the appropriate steps have been followed.

74. Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 states at [15]:

“The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters.”

75. Further guidance on the proper application of cl 4.6(3)(a) and (b) is provided at [25] where his Honour states:

“The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant’s written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant’s written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38].”

76. Having regard to the matters raised in Mr Mead’s written request, I have formed the positive opinion of satisfaction that he has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b).

77. The provisions of cl 4.6(4)(a)(ii) requires the Court to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the building height development standard which is contravened in this case and that the objectives for development for the R3 zone.

78. The objectives of the development standard for height of buildings are:

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

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

(c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

79. Having regard to the evidence, the site view and the Council’s planning controls, I am satisfied that these objectives are met. The LEP and DCP, particularly the controls contained in Part E2 of the DCP, establish what the DFC will be. Whilst I agree with Mr Seton’s submission that the whole of the upper storey of the upper level will not be within a roof, and that strict compliance with numerical setbacks is not achieved, I am satisfied that the intent of the controls are met. Accordingly, I conclude that the size and scale of development is compatible with the DFC envisaged for the Randwick Education and Health Specialised Centre.

80. The site is not within a conservation area or near a heritage item and therefore the provisions of subclause (b) have no work to do.

79. The location of the property on the north-eastern corner of High and Botany Streets ensures that overshadowing is minimised and the shadow that will be cast is thrown across the land where total demolition of all buildings is occurring to allow further expansion of the Prince of Wales Hospital. There are no current consents for redevelopment of that portion of the site to allow assessment of the privacy, overshadowing and view impacts however, due to the separation of the site and the likely future use of the ground floor areas, I am satisfied that any future impacts would be satisfactory. The residential flat buildings immediately adjoining the site would not be adversely impacted by the additional building height proposed in terms of visual bulk, loss of privacy, overshadowing and views.

80. The objectives of the R3 zone are:

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

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

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

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

• To protect the amenity of residents.

• To encourage housing affordability.

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

83. Satisfaction that these objectives are met is required. I am satisfied that the proposed boarding house would provide for the housing needs of the community within a medium density residential environment because the density of the development is greater than the current residential density but cannot be considered to be high density. The proximity of the site to both the UNSW and hospital lends itself to the provision of medium density residential accommodation that would cater for staff or students of those facilities or the broader local government area. The majority of housing in proximity to the site are residential flat buildings with low density cottages to the west. For that reason, the proposal would provide a different form of housing.

84. The inclusion of consulting rooms within the ground floor provides a facility that would meet the day to day needs of residents of not only the boarding house but adjacent residents.

85. The site is in a precinct that is undergoing transition as demonstrated by the major demolition works being undertaken opposite. The DFC envisages five storey developments and whilst the suggested building envelope consolidating the site with the two adjacent residential flat buildings to the north has not been achieved, I am satisfied that the DFC envisaged in the LEP and DCP will be met.

86. The design of the building has regard to the amenity of future residents and conditions of consent agreed between the parties in relation to windows would address any potential privacy impacts to residents of the adjoining flat buildings. The additional height of up to 1.2m as proposed does not exacerbate any amenity impacts.

87. A boarding house would be a form of affordable housing and therefore that objective is achieved. The final objective of utilising existing commercial buildings is not relevant to this case.

88. For these reasons, I am satisfied that the development will be in the public interest because it is consistent with the objectives of the development standard and the R3 zone and therefore, it would be appropriate to vary the building height development standard in the circumstances of the case.

89. Having regard to the merits of the application, I adopt the agreed position of the planning experts and conclude that the design of the development is appropriate for the site and is not inconsistent with the planning controls that apply to the site or the DFC envisaged for the Randwick Education and Health Specialised Centre and will be compatible with the character of the area.

90. That is because the building height is appropriate to the location of the site, the design of the building and focus of the bulk to the corner is appropriate and the setbacks are satisfactory having regard to the width of the property. Whilst the entire upper floor is not contained within a roof, I accept the agreed position of the planning experts that such a change to the design of the building would lead to a poor urban design outcome.

91. Similarly, I agree that in the circumstances of the case that it would not be appropriate to provide increased setbacks to the south western elements of the building at the upper level as this would further diminish the architectural expression of the building and not enhance the appearance or achieve any of the objectives of the planning controls.

92. I do not consider that adequate arrangement has been made for vehicle access to the site or that the proposed means of accessing the parking stacker is acceptable.

93. The hearing was adjourned to allow the traffic experts time to prepare additional details to address the concerns the council had raised in its Statement of Facts and Contentions, Exhibit 1. Mr Wheatley prepared those diagrams at such a late stage that it was not possible to demonstrate that full compliance with the relevant Australian Standards could be achieved. In addition, the configuration of the proposed driveway access to the site is not appropriate nor is a requirement for waste collection vehicles to reverse in the manner proposed across the driveway area that also forms part of the footpath area. It was apparent from the site view that the footpath area is utilised and the proximity of the site to both the hospital and university are factors that will ensure pedestrian use of the footpath along High Street. For that reason, I cannot be satisfied that the design of the development will result in safe manoeuvres and therefore is likely to have adverse impacts to both traffic and pedestrian movements along that roadway.

94. The queuing analysis was also done late and while I consider that it is likely the inputs to that analysis will lie somewhere between the two extremes put by the experts, I cannot be satisfied that there will not be queuing of vehicles awaiting entry to the car parking area. The construction of the Light Rail network in High Street introduces additional conflicts to motorists, pedestrians, cyclists and motor cyclists and accordingly, it is not appropriate to provide further impediments to the safe and efficient movement of vehicles and persons along that road. The proximity of the driveway to the signalised intersection will further exacerbate any adverse impacts.

95. While I accept the use of mechanical devices is appropriate for constrained sites, I also accept the council’s controls that seek to minimise the use of such devices where queuing may result and safety is jeopardised. As the whole of the parking to be provided necessitates use of the mechanical devices outline above, with a total of four separate devices (excluding other suggestions raised by the traffic experts during cross examination such as laser beams and squawkers), I am not satisfied that the design of the parking spaces and access thereto is appropriate in the circumstances of the case.

96. The other unsatisfactory aspect of the parking design is the failure to provide the necessary clearances required under the relevant Australian Standards for vehicles using those devices. As the occupancy of the development will change on a regular basis and the consulting room would bring visitors to the site unfamiliar with the method of using the systems, it is likely that the minimal tolerances provided will either slow down the use of the system, further exacerbating the queuing times or not be used by persons who attend the site on a more regular basis. As the design of the building did not have regard to the Standard but rather Mr Wheatley was asked to prepare swept path diagrams after the plans were prepared, I cannot accept that it would be appropriate to defer this matter to the Construction Certificate stage. I accept Mr McLaren’s evidence that the use of all of the devices is “tight” and also note that a number of the swept paths are prepared using a combination of B85 and B99 vehicles rather than two B99 vehicles.

97. Where a site is so constrained, the planning and design should incorporate the swept path analysis earlier than later in the process. Unfortunately this did not occur and I am not satisfied that the proposal as put will function adequately or appropriately.

98. For these reasons, I find that the design of the proposed parking, servicing and loading areas for the development is unsatisfactory and this cannot be addressed through conditions of consent or application of the “amber light” approach. The constraints of the site are such the access and parking should be primary drivers of the design of these areas rather than left to the end of the process.

99. In relation to the number of parking spaces provided, there are adequate spaces available for use of the boarding house and, subject to a development application which provides further details of the future use of the consulting rooms, there may also be sufficient space available to accommodate the needs of that occupancy. I note the site is very well serviced by public transport and is within walking distance of the university and hospital and accordingly, it is highly likely that not all residents of the boarding house would own a car. For that reason, it is likely the provided parking in numerical terms would be sufficient.

100. In view of my findings in regard to the unsatisfactory arrangements that have been made for access to parking, servicing and loading, the site is not suitable for the proposed development and the application should be refused.

101. At the conclusion of the hearing, there were a number of conditions that remained in dispute. Whilst consent will not be granted, I make comment in relation to those issues as it may assist in addressing any future development application for the site.

102. I have addressed the issue of whether the upper floor in the south-western corner of the building should be setback above and found that this would not be necessary. Accordingly, the amendment in condition 2a is not required. Similarly, I have found the configuration of the proposed access driveways is not satisfactory and therefore driveways should comply with the council’s standards so condition 2k would be relevant.

103. The amended scheme does alter servicing requirements, particularly in relation to waste collection and this would affect the acoustic environment. This is not a matter that would be left to conditions; it should be assessed as part of the considerations. (Draft condition 4).

104. The application proposes extensive excavation that was not considered by the RMS or TfNSW during the initial referrals as the plans were amended after these authorities provided comment. It would be prudent to consult with these authorities prior to any approval being granted for excavation so close to major infrastructure. (Condition 16).

105. The site is very constrained given its proximity to the traffic signalised intersection and the light rail corridor. Botany Street is the only location that a construction zone could occur and this would require liaison with the RMS to ensure the intersection would not fail during construction. (Condition 121).

106. The orders of the Court are:

1. The appeal is dismissed.

2. Development application DA/281/2018 for demolition of existing buildings and construction of a new building comprising a consulting room, 31 boarding rooms across the four levels, a boarding house manager’s room and associated communal and service areas. parking and loading areas at 47 Botany Street, Randwick is refused consent.

3. The exhibits, other than Exhibits A, E and 1, are returned.

…………………….

Sue Morris

Acting Commissioner of the Court

**********

Decision last updated: 12 December 2019