Samavi v Randwick City Council

[2024] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation:

Samavi v Randwick City Council [2024] NSWLEC 1051

Hearing dates:

5 and 6 December 2023 and 9 February 2024

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 427/2022 for alterations and additions to the approved residential flat building, at 29 Stanley Street, Randwick, is determined by the grant of consent, subject to the conditions of consent in Annexure A.

(3) The exhibits, other than Exhibits 2 and 5, are returned.

Catchwords:

DEVELOPMENT APPLICATION – amend a development consent – residential flat building – contravention of the height of buildings development standard – impact on the heritage significance of the adjoining heritage conservation area

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Heritage Act 1977

Land and Environment Court Act 1979, ss 34, 39

Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.10, Sch 5, Pt 1

State Environmental Planning Proposal (Housing) 2021, s 16

Cases Cited:

Cumming v Cumberland Council(No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Mark Zhang v Randwick City Council [2022] NSWLEC 1120

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

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

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Hamid Samavi (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
H Grace (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2022/348241

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 427/2022 for alterations and additions to the approved residential flat building including changes to the internal layout, reduction in the common lobby size and increase in total units by two (the proposal), at 29 Stanley Street, Randwick (the site), by Randwick City Council (the Council).

2. The appeal was subject to conciliation on 26 April 2023, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 24 May 2023, pursuant to s 34(4) of the LEC Act.

The application is amended

3. The Applicant was granted leave on 9 February 2024 to amend the application to rely on an amended proposal. The amended proposal includes amendments agreed upon by the urban design and planning experts (Ex A), which resolve all the urban design and planning issues raised by the Council.

Issues

4. The Council’s contentions can be summarised as:

• The proposal is not accompanied by a heritage impact statement as required under sections 1.12 and 1.13 of Part B2 in the Randwick Development Control Plan 2013 (DCP 2013).

• The proposal has not demonstrated that the development is consistent with the objectives of cl 5.10 of the Randwick Local Environmental Plan 2012 (LEP 2012).

• The proposal is out of character with the characteristics of the heritage conservation area and the streetscape. The majority of buildings in the North Randwick Heritage Conservation Area (North Randwick HCA) have hipped or gabled roof forms. The roof form of the proposal is out of character with those typical roof forms in the North Randwick HCA. The bulk and massing of the proposal is out of character with the single storey and two storey character of the North Randwick HCA. The western elevation of the proposal will disrupt the setting and amenity of the adjoining residences in the North Randwick HCA, dominating the skyline.

• The proposal results in the loss of views from some apartments in the complex to the rear of the site, across the site to the Emanuel School.

The site and its context

5. The site is on the southern side of Stanley Street, between Avoca Street and Waverley Street. Emanuel School is on the opposite side of Stanley Street. There is a residential flat building on the eastern side of the site, a residential flat building to the south of the site fronting Avoca Street, and a single-storey Federation dwelling on the western side of the site.

6. The eastern boundary of the southern portion of the North Randwick Heritage Conservation Area (North Randwick HCA) is the western boundary of the site. Emanuel School is a State Heritage Item (Item 1449, Pt 1 of Sch 5 to LEP 2012) and is listed on the State Heritage Register under the Heritage Act 1977.

Background and the proposal

7. The approved development was the subject of a s 34 of the LEC Act agreement between the parties (Mark Zhang v Randwick City Council [2022] NSWLEC 1120). The approved development complied with the height of buildings development standard. The approved development is for a three-storey residential flat building over a basement including a car stacker system. The approved development has a partly hipped and partly flat roof (Ex C).

8. The proposal adds an additional storey to the approved development and proposes that three of the units are to be affordable housing under the provisions of State Environmental Planning Proposal (Housing) 2021 (Housing SEPP). The proposed apartment mix is two 1 bedroom apartments, three 2 bedroom apartments and three 3 bedroom apartments.

Planning framework

9. The site is zoned R3 Medium Density Residential pursuant to the Randwick Local Environment Plan 2012. The objectives of the R3 zone, to which regard must be had, 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.

10. The height of buildings development standard for the site (excluding dwelling house or semi-detached dwelling) is 12m. The objectives of the development standard, at cl 4.3(1) of LEP 2012, 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.

11. DCP 2013 includes the following regarding development in the vicinity of heritage conservation areas, at Part B2, section 1.12:

“1.12 Development in the vicinity of heritage items and heritage conservation areas

All new development adjacent to or in the vicinity of a heritage item or heritage conservation area needs to be considered for its likely effect on heritage significance and setting.

Applicants should address in their Statement of Environmental Effects any potential impacts of the development on a heritage item or heritage conservation area and measures to minimise this impact, with reference to Part 12 of this section of the DCP and the relevant statement of heritage significance.”

12. The significance of the North Randwick HCA, at Part B2 of DCP 2013, is:

“Aesthetic Significance

Centennial Park is one of Sydney’s largest expanses of urban parkland and provides a much needed breathing space for Sydney’s inner eastern suburbs. The park has high scenic and landscape significance. It has a strong rural character, but also incorporates remnant natural vegetation, formal garden areas, tree lined avenues, playing fields and formal and informal water features. The melaleuca wetlands are a distinctive and important character element. Notable architectural elements include two residences, several kiosks and shelters, magnificent sandstone entry gates, the perimeter palisade fence, reservoir fences and steps, statues and monuments and an amphitheatre.

The North Randwick heritage conservation area is significant for its persistent, strongly Federation streetscapes. The imposition of a varied subdivision pattern, on the north facing slopes adjoining Centennial Park, has created numerous internal views and vistas of special interest. The combination of street pattern, topography and native and cultural plantings, set off the areas original buildings to good advantage.

The heritage value of the area largely derives from its Federation and Inter-War housing, its predominantly single storey scale, face brick construction, dominant slate and terra cotta tiled roofs and well established cultural plantings. The mixed building stock adds to the area’s interest, ranging from larger Federation houses on Darley Road to small semi-detached on Dangar Street. Whilst many buildings have been substantially altered, there has been, very little redevelopment relative to other parts of Randwick. Most buildings and streetscapes retain their essential period character.

Historical Significance

Centennial Park has considerable historical significance. It originated as a Common, set aside by Governor Macquarie and later become the main source of Sydney’s water supply. It was dedicated as a park to celebrate the first centenary of European settlement in Australia. It was also the focus of Sydney’s celebration of Federation in 1901. Busby’s Bore and the lakes persist as important visual reminders of the area’s historical role as a water supply catchment.

The consistency of the architecture in North Randwick is partly a reflection of the unusual historical circumstances which delayed the release of the area for housing. Most of the area originally formed part of the Sydney Common. For many years it was reserved for water supply purposes. The eventual residential release saw the area develop reasonably quickly, despite the slow start in the 1890s recession. As a consequence, most housing dates from the early twentieth century. There are a few particularly notable examples of Victorian housing, as well as more numerous Inter-War houses. The latter filled in remaining empty lots in the 1920s and 30s.

The street and subdivision pattern is Victorian in origin, though the area developed over a long period. This has produced an interesting juxtaposition of Federation and Inter-War housing on often narrow Victorian allotments. There was a resultant modification of standard house designs to suit narrow frontages.

The continuing physical and historical connection with Centennial Park is important and gives special significance to houses fronting Darley Road. These buildings tend to be larger and grander, with more generous allotments. These allotments were created to help fund the establishment of Centennial Park.

The area still retains a few horse stables connected with the historic racing industry in the area. There are also historical and physical connections with the adjoining former tramway workshops.

Public submissions

13. Two resident objectors gave evidence at the commencement of the hearing onsite. Their concerns can be summarised as:

• The proposal exceeds the height of buildings development standard and the excessive height results in the solar access to neighbouring properties being reduced.

• The bulk and scale of the proposal is excessive.

• The proposal impacts on views to the north from some apartments in the residential flat building to the rear of the site.

Expert evidence

14. The Applicant relied on the expert evidence of Peter Smith (urban design), George Karavanas (planning) and Zoltan Kovacs (heritage).

15. The Council relied on the expert evidence of Nigel Dickson (urban design), Rosalind Read (planning) and Sue Rosen (heritage).

Contravention of height of buildings development standard

16. The proposal has a maximum height of RL9.63 at the roof ridge, which is a maximum height above existing ground level of 14.37m. The amendments to the development consent include the addition of two apartments at the third floor which forms part of the roof form. The height of buildings development standard for the site is 12m.

17. The applicant provided a written request , prepared by GSA Planning, as part of the amended proposal, seeking to justify the contravention of the height of buildings development standard.

18. Clause 4.6(4) of LEP 2012 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (“Initial Action”)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(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.

19. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

20. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(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

21. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

22. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

23. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

24. The applicant’s written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the proposal provides three affordable housing apartments and complies with the floor space ratio (FSR) including the additional gross floor area (GFA) component pursuant to s 16 of SEPP Housing.

25. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

26. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as a justified response to accommodating the additional GFA for the affordable housing apartments. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

27. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

27. The proposal is consistent with the objectives of the zone and height of buildings development standard, because the 4.46m setback of the third-floor level from the street façade of the proposal, and the gable roof form, result in a built form that is compatible with the scale and character of the contributory buildings in the North Randwick HCA and the built form of Emanuel School.

28. I am satisfied that the built form of the proposal and materials are compatible with the size and scale of development in the vicinity of the site and with the desired future character of the locality.

29. I am satisfied that the proposal’s impact on views from some apartments in the complex to the rear of the site, across the site to the Emanuel School, is acceptable. Those views would be obstructed by the approved development and are currently obscured by vegetation.

Consideration

31. I accept the Council’s submission that the Statement of Environmental Effects (SEE) (Ex 2, tab 4) that accompanied the application did not comply with the requirement under Part B2, section 1.12 of DCP 2013 because the SEE does not address the likely effect of the proposal on the heritage significance of the adjoining North Randwick HCA or the nearby heritage item. Nevertheless, I have sufficient evidence before me in the heritage experts’ joint report, and their oral evidence, to be satisfied that the proposal will not have a detrimental effect on the heritage significance of the adjoining North Randwick HCA and the nearby heritage item, Emanuel School.

32. I accept and prefer Mr Kovacs’ evidence regarding the impact of proposal on the heritage significance of the North Randwick HCA. The roof form of the proposal need not match or mimic the roofs of the traditional character buildings further along Stanley Street to be compatible with the character of the adjoining North Randwick HCA. I am satisfied on the basis of all of the evidence before me that the bulk and massing of the proposal is compatible with the existing character of Stanley Street and the North Randwick HCA, because the surrounding development includes a mix of mid-century dwellings, multi-storey residential flat buildings and educational institutional buildings. The proposed alterations and additions to the approved development result in a building form that is sufficiently harmonious with the mixed character of the eastern end of Stanley Street. The proposal does not have to be the same height as those historic buildings on the southern side of Stanley Street within the North Randwick HCA to be visually compatible, and I am satisfied that the proposal is appropriately contemporary and responds to the established character of the locality.

33. I accept Mr Kovacs’ evidence that the proposal does not impact on the identified heritage significance of Emanual School, because the historic buildings on the Emanuel School property are mostly obscured from view from Stanley Street by new development. The school has its own unique character comprised of institutional buildings constructed over a long period of time from when the site was part of the Roman Catholic mendicant order of the Little Sisters of the Poor and then Emanual School since 1985, which is quite distinct from the residential character of the rest of Stanley Street.

34. The proposal need not demonstrate that the development is consistent with the objectives of cl 5.10 of LEP 2012 because the site is not identified as a heritage item, nor is it within a heritage conservation area. Sub-clause (4) of the heritage conservation clause under LEP 2012 requires consideration of the effect of the proposed development on the heritage significance of an item or area before granting consent under the clause “in respect of a heritage item or heritage conservation area”. The proposal is not caught by cl 5.10 as it is neither a heritage item nor is it within a heritage conservation area.

Conclusion

35. I am satisfied that the proposal will not detrimentally impact on the identified heritage significance of the adjoining North Randwick HCA.

Orders

36. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 427/2022 for alterations and additions to the approved residential flat building, at 29 Stanley Street, Randwick, is determined by the grant of consent, subject to the conditions of consent in Annexure A.

3. The exhibits, other than Exhibits 2 and 5, are returned.

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 16 February 2024