Seaside Developmens v Randwick City Council

[2005] NSWLEC 480

Land and Environment Court

of New South Wales

CITATION:

Seaside Developmens v Randwick City Council [2005] NSWLEC 480

PARTIES:

Applicant:
Seaside Developments Pty Ltd

Respondent:
Randwick City Council

FILE NUMBER(S):

11410 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- resident objections against consent orders

DATES OF HEARING:

25/08/2005

 
DATE OF JUDGMENT: 

09/07/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr G Green, solicitor of Pike Pike & Fenwick

Respondent:
Ms S Duggan, barrister instructed by Ms A Bowen of Bowen & Gerathy

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

7 September 2005

11410 of 2004 Seaside Developments Pty Ltd v Randwick City Council

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Senior Commissioner: This is an appeal against the refusal by Randwick City Council (the council) of a development application to demolish the existing building and erect a multi-unit housing development containing six dwellings over basement parking for 13 cars on lot 61 DP 859423, known as 88 Beach Street, Coogee.

2 The parties have reached agreement to seek consent orders from the Court; however, there are several objectors who have concerns about the proposal. At a visit to the site on 25 August 2005, the Court heard the evidence of the following objectors.

3 Dr J Buchanan, who lives at 83 Beach Street, pointed to the proposal’s non-compliance with the height and Floor Space Ratio (FSR) standards in the Local Environmental Plan 1998. He drew attention to the character of the area being lower in scale than the proposal. He did not think that the SEPP 1 Objections to the two development standards were well founded.

4 Ms Z Kaye, who lives at 2/84 Beach Street, an apartment building called Wandal, was mainly concerned about how future residents of the proposal would deal with the garbage, since the council’s contractor does not enter the lane. Mrs P McDermott, who lives at 3/84 Beach Street, was concerned about being overlooked and losing some views of the water. Mr R Delilkhan, who lives at 6/84 Beach Street, said that his main concern was that the rear garden of Wandal would be overlooked. Mr P Worcester, who lives at 4/84 Beach Street, said that his main concern was the future traffic in the laneway.

5 Mr S and Mrs D O’Neill, who live at 351 Alison Road, complained about not being given the opportunity to find out how the applicant proposed to re-construct the laneway. Mr M Knibbs, who lives at 349A Alison Road, was concerned about the re-construction in the laneway trespassing over his property. His second concern was view loss due to the non-complying height of the building.

6 Mrs R Dykstra, who lives at 349 Alison Road, was concerned about not being informed of the proposed re-construction of the laneway. She endorsed Dr Buchanan’s concern about non-compliance with the height and FSR standard. Mr K Murdoch, who lives at 91 Beach Street, across from the subject site, said that the proposal was too big and would destroy too many trees.

7 The objectors’ main concern was that the proposal exceeded the height and Floor Space Ratio (FSR) controls, was therefore out of character with the locality and caused additional impact. The second main concern was that they could not find out what work was proposed to be done on the lane from which the proposal obtains its vehicular access. The applicant provided drawings that showed the work proposed on the laneway (see Exhibit 9). The council requires the work to be done. The planning expert appointed by the Court, Mr L Fletcher, a consultant town planner dealt with the issue of non-compliance with FSR and height controls.

8 The applicant offered to accept a condition requiring the Body Corporate of the proposed building to enter into a contract for moving the garbage to Alison Road and back to the property each collection day. The condition is now part of the consent. I have inspected her apartment 3 of Wandal. I do not think that the impact is significant, and, more importantly, it is not due to any non-compliances. This is because the proposal’s setback from the front boundary is the critical aspect and the setback complies with council’s requirements. Mr Fletcher, said that, while Mr Knibbs would lose some views to the east, the view loss was due to parts of the building that comply with the height limit. If the proposal were forced to comply, the view loss would be the same.

9 Mr Fletcher supported the application. In his opinion, the applicant’s objections to the height and FSR control were well founded. As regards non-compliance with the height control of 9.5m, Mr Fletcher found that the proposal exceeded the height control only to a minor degree. None of the points where the height was greater than 9.5m were responsible for view loss.

10 The proposal’s FSR is 0.89:1, while the maximum FSR is 0.65:1. In Mr Fletcher’s opinion, this is justified on two grounds. First, most of the excess FSR is below natural ground level. Second, the buildings in the immediate vicinity (on the western side of Beach Street in the same street block) are all built to FSRs in the range of 1:1. In Mr Fletcher’s opinion, there would be little point in forcing this proposal, as the only development in the street block, to comply with the statutory FSR.

11 For the above reasons I have agreed to the council’s and the applicant’s request for consent orders.

Consent orders

1. The appeal is upheld.

2. Development application to demolish the existing building and erect a multi-unit housing development containing six dwellings over basement parking for 13 cars on lot 61 DP 859423, known as 88 Beach Street, Coogee is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 9 and C.

_______________
Dr John Roseth
Senior Commissioner - 2 -