MKD Architects Pty Ltd v Randwick City Council

[2022] NSWLEC 1112

Land and Environment Court

New South Wales

Medium Neutral Citation:

MKD Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1112

Hearing dates:

1-2 February 2022

Date of orders:

08 March 2022

Decision date:

08 March 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2013 seeking to vary the development standard for height of buildings contained in clause 4.3 thereof, as prepared by BMA Urban, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to DA/523/2020 seeking development consent for demolition of existing structures and construction of a four storey residential flat building with basement car parking, landscaping and associated works at 5 Baden Street Coogee, subject to conditions of consent at Annexure ‘A’.

(4) Exhibits are returned with the exception of Exhibits 2, A, C and E.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – building envelope – building height contravention – external wall height – side boundary setback – visual impact – foreshore scenic protection area – excavation implications – mobility parking space impact and response

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cll 50, 98E

Randwick Local Environmental Plan 2012 cll 4.1, 4.3, 4.4, 4.6, 6.7

State Environmental Planning Policy No 55—Remediation of Land cll 7, 30

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 30, 6A

Cases Cited:

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

Stockland development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Tomasic v Port Stephens Council [2021] NSWLEC 56

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Apartment Design Guide

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021)

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

MKD Architects Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
M Astill (Respondent)

Solicitors:
Hunt and Hunt Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2021/138610

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Randwick Local Planning Panel of Development Application No. DA/523/2020 (DA) seeking development consent for a residential flat building and associated works at 5 Baden Street, Coogee (site).

Proposed development

2. The DA, with modifications incorporated into amending plans, seeks consent for demolition of existing structures on the site, and the construction of a four-storey residential flat building comprising six apartments, with basement parking, landscaping, and vehicle access off Baden Street. The ground floor and first floor would each have two x two-bedroom units. The second and third floors would each accommodate a single three-bedroom unit. There would be lift access and lobby areas to each level.

Site and setting

3. I rely on the Amended Statement of Environmental Effects (Ex 2) filed by the Respondent (Randwick Council, henceforth referenced as Council) and the Applicant’s Reply Statement (Ex A) for the descriptive material which follows.

4. The site is legally described as Lot 3 DP 8843, and is rectangular in shape. It has an area of 591.8m² with a street frontage of 14.935m and a depth of 39.625m. The site slopes from north to the south (ie from the rear towards the Baden Street frontage) falling about 2.5m in total.

5. The site currently accommodates an older style three storey residential flat building which is strata subdivided into 5 lots. There is a detached brick garage and shed towards the rear.

6. Development surrounding the site is predominately medium density residential. While the built form varies in terms of scale and form; it predominately comprises older housing stock. The properties to the immediate east of the site (7 Baden Street) and west (3 Baden Street), are occupied by three storey residential flat buildings. To the north of the site are 101 Beach Street, and 33 Arcadia Street, both also accommodating three storey residential flat buildings.

7. Baden Street is a short street off Beach Street with a dead end to the east. It provides 90-degree kerbside public parking on both sides. To the south, across Baden Street, is Dunningham Reserve with Coogee Beach immediately adjoining to the south.

The approach to proceedings

8. Proceedings were conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy (December 2021). A site inspection was undertaken with certain safety precautions, and I took the opportunity to hear oral submissions from objectors (each of whom were residents of the apartments to the immediate east of the site at 7 Baden Street). Proceedings then moved to a “virtual” courtroom arrangement under the Microsoft Teams platform.

Planning framework    

9. The site and the immediate surrounds north of Baden Street are zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (RLEP). The proposal is permissible with consent.

10. The objectives of the R3 zone are as follows:

• 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...

11. The maximum permissible height of buildings for the site is 12 m under cl 4.3(2) of RLEP. There is a contravention of this control which relates to the lift overrun. The maximum permissible floor space ratio (FSR) for a building on the site is 0.9:1 under cl 4.4(2) of RLEP, with which the proposal complies.

12. The site falls within a Foreshore Scenic Protection Area (FSPA) under cl 6.7 of RLEP, which brings certain considerations.

13. Randwick Comprehensive Development Control Plan 2013 (RDCP) also applies and is considered relevantly below.

14. The provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) apply to the proposed development and in turn the Apartment Design Guide (ADG) also applies. Relevant matters are considered below.

15. The experts in this matter were B Moroz for the Applicant, and S Faridy for Council, each having expertise in urban planning; and R Nettle for the Applicant, and C McLaren for Council each having expertise in traffic and parking related matters. C Salim, the project’s design architect also provided oral evidence.

Issues

16. A number of the contentions listed in Ex 2 were no longer pressed by Council following amending plans and the outcome of joint expert conferencing. There is one major contested topic. It relates to the proposed building envelope and its implications. There are some other matters I need to attend to in the judgement. The first is in regard to parking, a topic resolved to the satisfaction of the relevant experts following amendments to the application agreed by the parties, but there are some points I need to make in regard to it. Objectors raised concerns in regard to the building envelope as well, but there were other concerns raised in objections which I will attend to also. Finally, there are some matters relating to jurisdiction. In particular, the proposal would contravene RLEP’s building height control in relation to the proposed lift overrun, the planning experts agree that this breach is acceptable (Ex 3 par (4.4)). Nevertheless, it is necessary for the Court to make its own findings in regard to this question.

Building envelope and its implications

17. There is a fundamental contention that the proposal is not compatible with the desired future character for the locality. Its built form would adversely affect the amenity of neighbours and would have wider adverse visual impact given the site’s designation as located within a FSPA. Council, both in submissions and through the direct evidence of Mr Faridy, argue two significant policy contraventions on the part of the application.

Side setback

18. First is that the application inappropriately adopts the side setback numerical standard contained in RDCP (cl 3.4.2 (i)). This control indicates a minimum side setback of 2.5m for the site, with which the proposal complies. Council’s submission is that the application inappropriately disregards the further provisions at cl 3.4.2(ii). The relevant provision immediately follows the establishment of numerical side setback controls, and indicates that RFBs should:

“Incorporate additional side setbacks to the building over and above the above minimum standards, in order to:

- Create articulations to the building facades.

- Reserve open space areas and provide opportunities for landscaping.

- Provide building separation.

- Improve visual amenity and outlook from the development and adjoining residences.

- Provide visual and acoustic privacy for the development and the adjoining residences.

- Ensure solar access and natural ventilation for the development and the adjoining residences.”

19. Council also refers to cl 6A of SEPP 65, which provides relevantly as follows:

(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following—

(a)  visual privacy,

(b)  solar and daylight access,

(c)  common circulation and spaces,

(d)  apartment size and layout,

(e)  ceiling heights,

(f)  private open space and balconies,

(g)  natural ventilation,

(h)  storage.

(2)  If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.

20. It is not Council’s submission that cl 6A of SEPP 65 renders the RDCP numerical standard as having no effect. The submission is that the provisions of the ADG can be interpreted as a way of addressing the “further provisions” of cl 3.4.2(ii) of RDCP (see [18]).

External wall height

21. The second significant contravention, according to Council, is in regard to external wall height. RDCP (cl 4.4) provides that where a site is subject to a 12m building height limit under RLEP (such as in this case), a maximum external wall height of 10.5m applies. Council contends the actual external wall height breaches this RDCP control by about 1.5m. I understood that Council saw the application as ignoring this RDCP control and relying on RLEPs building height standard, and inappropriately so.

Further policy particulars

22. The RDCP’s setback provisions include the following “explanation” which assists in the appreciation of the objectives behind the control (cl 3.4):

“…Side and rear setbacks are devised to ensure an adequate level of building separation, and to provide for access, landscaping, privacy and natural lighting and ventilation for both the new development and the adjoining properties.”

23. The wall height control sits within Part 4 of RDCP. The nominated explanation and objectives of this part are as follows:

“Explanation

The treatment and detailing of building facades has a significant impact on the apparent scale and proportion of developments and contribution to the streetscape. A skilful facade design requires the appropriate disposition of building elements, textures, materials and colours, which reflect the function, internal layout and structure of a development.

Objective ·

To ensure building facades are articulated to complement and enhance the streetscape and neighbourhood character. ·

To encourage contemporary and innovative design to establish a preferred neighbourhood character in new and transitional residential areas.”

24. There is then a particular explanation provided at cl 4.4 of RDCP in regard to external wall heights, which provides relevantly as follows:

“In addition to the RLEP maximum building height, which sets out the absolute height of the development including roof and all plant equipment, the following wall height and ceiling height controls supplement the LEP to ensure that development provides for a suitable number of storeys and encourages interesting roof forms suitable to the streetscape.”

25. On turning to the ADG, I note that Mr Faridy relies on the design criteria contained in Part 3F of the ADG as something of a benchmark, but for application fitting the local context. The design criteria under Objective 3F-1 of the ADG would require a side boundary setback of 6m between habitable rooms and balconies and 3m between non-habitable rooms. Mr Faridy was at pains to point out that he wasn’t suggesting a requirement for 6m side building setbacks to either side of this parcel (given the lot width of 15m). The point was more, that the adoption of a 2.5m side setback was insufficient on a reasonable reading of the policy position.

Evidence and consideration

Evaluation framework

26. It is agreed that the proposal contravenes the RDCP wall height control by about 1.5m. There is a dispute as to whether the proposal contravenes the side setback control. Council argues that the 2.5m nominated numerical standard (RDCP cl 3.4.2(i)). must be seen as a limited (or “blunt”) control which is augmented by the more performance-based provisions at cl 3.4.2(ii) (see [18]). The common question arises as to what weight goes to the DCP and what implications might be read into any contraventions.

27. Council usefully took me to the findings of Preston CJ in Tomasic v Port Stephens Council [2021] NSWLEC 56 (Tomasic), where such questions were considered at [34]-[36]. Reference was made therein to the well-known findings of Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang) that in determining a development application, development control plans need to be taken into consideration, as a “fundamental element” in, or a “focal point” of the decision-making process (Zhang [75], [77]). The finding that a “directly pertinent” development control plan provision was entitled to “significant weight” but “was not, of course, determinative” (Zhang [75]) was also referenced. Justice Preston, in the summary provided in Tomasic, also referenced the three factors relating to the weight to be applied to development control plans as found in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 (Stockland) at [87], concerned with: extent of preparatory consultation, consistency of application and whether proof-testing over time has demonstrated inappropriateness of a development control plan provision. Finally, Justice Preston highlighted the fact that “there may be alternative solutions to achieve the objects of development control plan provisions” (Tomasic [36]), while directly referencing the provisions of s 4.15(3A) of the EPA Act, provisions which were not in play at the time of the handing down of Zhang or Stockland (see [78]).

28. In this case, there is no evidence to suggest other than RDCP accommodates the factors highlighted in Stockland, and that it is reasonable to see RDCP as a fundamental element in, or a focal point of the decision-making process. When Zhang introduces the notion of “directly pertinent” development control plan provisions, and their weight, I do turn to the side setback and wall height controls raised by Council. But, mindful of s 4.15(3A) of the EPA Act I also need to see if the “solutions” proposed in the application, achieve the objectives behind the relevant controls. For this task, it seems useful to group the objectives behind the Council controls which are in play. There seem to be five, at times overlapping, topics:

1. Visual presentation (façade materials and design including articulation, building separation, roof form)

2. Providing space for landscaping

3. Achieving visual and acoustic privacy

4. Other amenity concerns (solar access, natural ventilation, natural light, view loss), and

5. Other utility concerns (provide for access and services).

29. I will now turn to the evidence on these topics.

Consideration of the evidence

30. First, I can note that no concerns have been raised in regard to site landscaping or pathways and utility services (topics (2) and (5) above). These topics are satisfactorily addressed with the plans as proposed.

31. The amenity concerns listed at topic (4) above (ie solar access, natural ventilation, natural light, view loss) were not contested by Council during the proceedings. Among the objector concerns were matters associated with solar access and natural light. During the proceedings I was able to ask some questions of the experts in regard to these topics. A shadow analysis was provided by the Applicant (Ex F) which was used as a tool for the examination. The evidence, in essence, demonstrated that the proposal would have a very similar outcome, in terms of overshadowing, compared to a compliant building envelope. I see the proposal as satisfactory in regard to potential overshadowing, and natural light availability to neighbours, in this setting of some vulnerability. Internally, the proposal would comply with solar access (Ex 3 par (5.7)) and natural ventilation requirements (see Design Verification Statement (DVS) at Tab 14 to Ex E p 13, and floor plans at Ex C).

32. The topic of visual and acoustic privacy was examined closely in Court (topic (3) above). There was an opportunity to gain an appreciation of living areas, as occupied, in the neighbouring property to the east (7 Baden Street) during the hearing of oral submissions at the site inspection. The concern was whether future occupants might be able to view into neighbouring windows at 7 Baden Street, especially from the side terraces at proposed Levels 1-3 (the side walls are otherwise generally blank or have high sill windows). Certain modifications were agreed in regard to privacy screens which are now included in amending plans. There would be an angled view into the two front windows but the closest viewline was about 12m, which satisfied the experts mindful of the local setting. That is to acknowledge the competing claims for privacy and views in areas of high visual amenity. Moreover, I am satisfied in regard to visual and acoustic privacy with the amending plans.

33. This essentially, leaves the topic of the visual presentation. This would include the amenity consideration of visual massing, as perceived by immediate neighbours, along with the more general visual presentation of the building, including acknowledgement of its location within a FSPA.

34. Mr Faridy was concerned about the visual appearance of the building. The nominated concerns were in regard to the presence of the top floor or, more correctly, that the top floor be changed to become habitable roof space, and that the side setbacks be increased to at least 3m (Ex 3 par (1.22)).

35. Mr Moroz thought the proposal satisfactory on visual appearance grounds (Ex 3 par (2.2))

“The perceptible volume of the development as observed from public areas along the coastline will not be interpreted as a jarring contribution to the scenic quality of the setting nor are any natural, visual and or environmental qualities of the coastline likely to be unreasonably impacted by the proposed development.”

36. In regard to matters associated with the visual presentation of the building, I also had the opportunity to hear from the design architect (C Salim Registered Architect 7498 (source Ex E Tab 14)). The starting point here was the report prepared by Council’s Design Excellence Panel (Panel) (Ex 1 p 187). I queried Mr Salim on responses to the suggestions made by the Panel. Mr Salim lucidly took me through the changes which had been incorporated into the proposal in response to these suggestions.

36. Firstly, I note that the visual massing of a building would always appear less to the neighbours were a building to be setback further from those neighbouring boundaries. Mr Faridy suggests that “at least” a 3m side setback be adopted, rather than the proposed 2.5m (Ex 3 par (1.22)). I do not hold him to the 3m figure, because I think what is behind it is that a step beyond the 2.5m setback control at cl 3.4.2(i) of RDCP is required for the provisions at cl 3.4.2(ii) to be accommodated (see [17]).

37. In this instance I am satisfied that the provisions at cl 3.4.2(ii) are satisfied with the proposal. There is clearly considerable articulation in the building facades, including with the major building entry treatment, curvilinear wall presentation, and upper level increases to boundary setbacks (side and front). There are considerable landscape areas, including some in elevated areas. I have already covered how the building deals with the neighbour amenity concerns. It is clear that the building would offer high amenity for future occupants.

38. I would now turn to the visual presentation of the proposal more generally. Of particular note here is the site’s FSPA designation, and the fact that popular public walkways to the south would be exposed to this building as a new visual element. In general, I agree with Mr Moroz on this point (see [35]). My first comment here is that the building height (including its wall height) would not be a particularly noticeable feature, as perceived by one without special sensitivities, in this street of some mixture, in regard to building height, the experts agree that the wider surrounds are occupied principally by 3-4 storey residential flat buildings with some taller buildings (Ex 3 par (1.8) and (1.17)). Moreover, it seems to me that the proposal presents as a good architectural example, if visual presentation is the point of emphasis. Here I rely in part on the commentary of the Panel, supplemented by the advice of Mr Salim.

39. The proposal is satisfactory in regard to questions relating to the building envelope.

Parking

41. There had initially been some disagreement between the traffic experts in regard to the vehicle access arrangements for the proposal. The principal point was that Mr McLaren believed there was a need for an on-site waiting bay on the site near the driveway’s connection point with Baden Street, and Mr Nettle did not think it necessary. There was room for this waiting bay, and Council agreed that the dedication of this area on site for this purpose did not raise any new concerns. The Applicant’s amending plans which have been agreed to by Council (as an amendment only and without prejudicing its position against the proposal in any event) include the provision of the vehicle waiting bay.

42. An implication of the change was that the driveway would widen along the line of its intersection with Baden Street. This meant that a single parking space (perpendicular rather than parallel to the kerb) would be lost in Baden Street. This parking space is currently marked as a mobility parking space (i.e. for use by people with a disability related to mobility). Council did not raise a concern with this implication for two reasons: (1) it was clear that the proposal would provide for a considerable parking credit when compared with the status quo (the subject proposal complies with parking requirements whereas the existing development on site accommodates five residences with minimal on-site parking), and (2), Condition 14(c) would provide for the replacement of the existing mobility parking space with another. The relevant condition is reproduced below.

“An application be submitted to Council's Traffic Committee for the conversion of the parking space directly to the east of the existing disabled car space on Baden Street directly in front of 5 Baden Street to a disabled space with the driveway of 5 Baden Street to be used as a shared zone as indicated in the approved plans. Applicant/developer to carry out works once approved by Council.”

43. There are considerable societal ambitions in regard to ensuring people with a disability (including those with mobility difficulties) do not have opportunity constrained unfairly or unreasonably. The provision of mobility parking spaces is an aspect of these ambitions. The condition as proposed, is limited to making submissions to Council’s Traffic Committee. That is to say, it is a matter for the Traffic Committee to make a determination on the replacement mobility parking space. In this instance, ultimately, I am satisfied with the approach suggested. It seems reasonable to me to rely on the Traffic Committee for the task put to it (whether it chooses the suggested location or another – perhaps based on understood demand – for a replacement mobility parking space). The Court would certainly encourage the replacement of the mobility parking space, in recognition of the clear credit position for local parking provision which would come about as a consequence of the proposal.

Other objector concerns

44. The key concern raised by objectors making oral submissions was in regard to the risk of damage to the property at 7 Baden Street. Mention was made of the relative age of the building on that site, and that the proposed basement parking on the subject site would be the first instance of this kind of excavation in Baden Street.

45. I note the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provides relevant prescribed conditions at 98E:

98E   Condition relating to shoring and adequacy of adjoining property (1)  For the purposes of section 4.17(11) of the Act, it is a prescribed condition of development consent that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the development consent must, at the person’s own expense—

(a)  protect and support the building, structure or work from possible damage from the excavation, and

(b)  where necessary, underpin the building, structure or work to prevent any such damage.

46. I also note that a proposed condition (Condition 33) requires dilapidation reports to be prepared prior to the issue of construction certificates. It is notable that there is some disagreement among the parties on the wording of the relevant condition. In abbreviated form, Council’s preference is as follows:

“A dilapidation report (incorporating photographs of relevant buildings) must be obtained from a Professional Engineer, detailing the current condition and status of all of the buildings and structures located upon all of the properties adjoining the subject site and any other property or public land which may be affected by the works, to the satisfaction of the Principal Certifier.”

47. The Applicant’s preference is as follows:

“A dilapidation report (incorporating photographs of relevant buildings) must be obtained from a Professional Engineer, detailing the current condition and status of 3 & 7 Baden Street, and any other adjacent properties as required to satisfy the Professional Engineer.”

48. Noting the prescribed conditions at 98E of the EPA Regulation sits in the background in any event, I have some sympathy for the Applicant’s argument that it may be clear to a qualified professional engineer that given the location of the excavation, there may be no need for dilapidation reports to be prepared for properties other than 3 and 7 Baden Street. However, the Applicant’s condition does not quite establish the appropriate performance test, which is indicated in the Council’s condition. I also concur that a responsible professional engineer is best placed to make this decision. My preferred condition 33 is as follows:

“A dilapidation report (incorporating photographs of relevant buildings) must be obtained from a Professional Engineer, detailing the current condition and status of 3 & 7 Baden Street, and any other adjacent properties or public land which may be affected by the works, according to the opinion of the Professional Engineer.”

49. Written objections included concerns in regard to view loss. I accept the agreed position of the parties that there are no significant view loss implications of the proposal.

Jurisdictional issues

Building height contravention

50. The proposal would have a maximum height of 12.4m at the top of the lift overrun, whereas RLEP includes a maximum height of building control of 12m at cl 4.3. The applicant is seeking an exception for the contravention of development standards under cl 4.6(2) of the RLEP. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5);

(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,

…

51. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (‘Initial Action’) at [14]).

52. The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3) of RLEP. The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

53. The Applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. The written request was prepared by BMA Urban (Ex E Tab 6).

Whether compliance unreasonable or unnecessary

54. Mindful of cl 4.6(3)(a) of RLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ’s finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first “Wehbe way”, seeking to show how, otherwise, the development achieves the objectives of cl 4.1 of RLEP.

55. I reproduce the list of objectives of cl 4.3 below:

(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 view.

56. The written request successfully demonstrates that objective (a) is achieved by pointing out that, in this case, the 0.4m contravention within a relatively small area of the rooftop, would not add to the perception of the development size or scale.

57. I agree with the written request that objective (b) is not relevant to this proposal.

58. The written request works through the topics of visual bulk, loss of privacy, overshadowing and view loss, adequately demonstrating that there is no adverse impact in terms of each.

59. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

60. The written request also argues a series of environmental planning grounds as justifying the contravention. The most notable for me was the fact of the small scale and isolated positioning of the contravention and the fact that there is virtually no adverse impact as a consequence. These are sufficient environmental planning grounds to justify the contravention in this instance.

61. Together, the above findings mean the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of RLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.

Public interest

62. I now turn to the test at cl 4.6(4)(a)(ii) of RLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the R3 zone.

63. I agree with and rely on the written request’s demonstration that the proposed development is consistent with the objectives of the applicable building height standard.

64. The zone objectives are reproduced at par [10].

65. The proposed development would by definition, provide for an aspect of the housing needs of the community, in this medium density setting, consistent with the first zone objective.

66. The proposal would likely provide for upper market housing given its setting, but nonetheless this accommodates for one group in the overall population seeking housing types, consistent with the second zone objective.

67. The third zone objective is not relevant.

68. The fourth zone objective was picked up in suggestions from Council’s Design Excellence Panel. Among other things, these suggestions looked for the proposal to reduce its visual horizontality and strengthen the vertical elements of the building massing. The Applicant accommodated these concerns in the design now before the Court consistent with the fourth zone objective.

69. Issues relating to amenity have been considered in the body of the judgement and the proposal is seen to be consistent with the fifth zone objective.

70. The sixth zone objective is seen to be the type of objective described by Preston CJ in Wehbe as “descriptive of the result achieved by the clause itself”. In this case, the “(encouragement of) housing affordability”, as sought by the objective, is achieved by the permissible uses within the R3 zone, including residential flat buildings, such as proposed here.

71. The final zone objective is not relevant.

72. On the basis of the above I find the development consistent with the R3 zone objectives.

73. Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard, and the objectives for development within the R3 Medium Density Residential zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of RLEP are met in regard to the height of buildings contravention.

Conclusion – building height contravention

74. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of RLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.

75. The states of satisfaction required by cl 4.6 of RLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height standard.

Other statutory instruments

In regard to State Environmental Planning Policy No 55 – Remediation of Land, and in particular cl 7(1), I note and accept the uncontested advice from the Applicant (Ex A Tab 4 p 41) that the land has been used for residential purposes for an extended timeframe and is not considered to be at risk of contamination. No further consideration is required in this instance.

In regard to SEPP 65 and cl 50(1A) and (1AB) of the EPA Regulation, the Applicant has provided the required statement by the proposal’s qualified designer (Ex F) addressing how the design quality related principles and objectives nominated at cl 50(1AB) of the EPA Regulation are achieved. I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria (as required by cl 30(2) of SEPP 65).

Conclusion

On the basis of the above consideration, the proposal warrants support, subject to appropriate conditions.

Orders

The Court orders that:

1. The written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2013 seeking to vary the development standard for height of buildings contained in clause 4.3 thereof, as prepared by BMA Urban, is upheld.

2. The appeal is upheld.

3. Development consent is granted to DA/523/2020 seeking development consent for demolition of existing structures and construction of a four storey residential flat building with basement car parking, landscaping and associated works at 5 Baden Street Coogee, subject to conditions of consent at Annexure ‘A’.

4. Exhibits are returned with the exception of Exhibits 2, A, C and E.

P Walsh

Commissioner of the Court

Annexure A (462158, pdf)

Decision last updated: 08 March 2022