Stockland v Randwick City Council

[2009] NSWLEC 1008

Land and Environment Court

of New South Wales

CITATION:	Stockland v Randwick City Council [2009] NSWLEC 1008
PARTIES:	Applicant: Stockland Developments (PHH) Pty Ltd Respondent: Randwick City Council
FILE NUMBER(S):	10389; 10390 of 2008
CORAM:	Roseth SC
KEY ISSUES:	DEVELOPMENT APPLICATION :-
DATES OF HEARING:	10 December 2008 and 11 December 2008
DATE OF JUDGMENT:	6 February 2009
LEGAL REPRESENTATIVES:	Applicant: Mr C McEwen SC and Ms S Duggan, barrister instructed by Ms L Camenzuli, solicitor of Corrs Chambers Westgarth Mr P McEwen SC, instructed by Mr C McFadzean, solicitor of Shaw Reynolds Bowen Gerathy Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

6 February 2009

10389 of 2008 Stockland Developments (PHH) Pty Ltd v
10390 of 2008 Randwick City Council

JUDGMENT

1 Senior Commissioner: These appeals are against refusals by Randwick City Council (the council) of development applications for the redevelopment of the old Prince Henry Hospital at Little Bay, a residential project undertaken by Stockland Developments (PHH) Pty Ltd. Appeal No 10389 of 2008 relates to proposed commercial-residential development on lot 11 DP270427, known as 2-8 Pine Avenue, Little Bay. Appeal No 10390 of 2008 relates to commercial-residential development on lot13 DP 270427, known as 1-9 Pine Avenue, Little Bay.

The site

2 Lot 11 is on the northeast corner of Pine Avenue and Anzac Parade at the main entrance to the Prince Henry site. On the eastern side it faces Jenner Street. The site area is 4,472m2.

3 Lot 13 is on the southeast corner of Pine Avenue and Anzac Parade. To the east it faces to Brodie Avenue. The site area is 5,874m2.

4 To the south east of lot 13 are the heritage items of the Flower Wards and the Memorial Clock. To the east is an apartment building called Coperture. Outside the Prince Henry site, on the other side of Anzac Parade is a cluster of shops and beyond it, low density housing. Anzac Parade at Little Bay is a wide thoroughfare with an open character.

5 The Prince Henry Hospital project is guided by an adopted Master Plan deemed a development control plan.

The proposal and its history

6 The application for lot 11 is for a partly four and partly five-storey building with offices, retail and 51 dwellings above basement parking for 86 cars, including Strata subdivision.

7 The application for lot 11 is for a partly four and partly five-storey building with offices, retail and 70 dwellings above basement parking for 114 cars, including Strata subdivision.

8 The applicant lodged the development applications in August 2006. Following notification and advertisement in the local press, the council received eight objections and a petition containing 323 signatures. In April 2007 the council refused the applications on the grounds that it does not comply with floor space, setback and height controls and has an adverse impact on the Flower Wards. The applicant lodged the appeal in April 2008.

Relevant planning instruments and policies

9 Randwick Local Environmental Plan 1998 (LEP 1998) zones the site Residential 2D. Multi-unit housing, local shops and business premises are permissible with consent in this zone. The maximum Floor Space Ratio (FSR) is 1.2:1.

10 Prince Henry Development Control Plan (the DCP) is a site-specific plan for the redevelopment of the Prince Henry Hospital site.

11 State Environmental Planning Policy 1 – Development Standards (SEPP 1) provides for objections to the strict application of development standards.

Matters in contention

12 The council submitted its Statement of Contentions containing five matters. At the commencement of the hearing, the council’s advocate, Mr P McEwen summarised the matters in contention as follows:

· excessive building height and FSR and, hence, bulk and scale;

· inadequate setbacks; and

· adverse heritage impact.

The objectors’ concerns

13 The Court heard the evidence of four objectors during the visit to the site. Mr C Abela, who is the chairman of the La Perouse Precinct Committee, said the members of his Committee believe that the Master Plan should be adhered to. The Master Plan shows a medical centre and a shopping centre for the site, and these are not part of the application. In addition the proposed buildings are larger and have more apartments than the Master Plan indicates. Ms J Dalton, who lives at 27 Dawes Street, said that the DCP shows the site as three-storeys, while the proposal is for four-to-five-storeys. The proposal has a poor relationship to the Flower Wards. Ms D Condie, who lives at 6 Budd Avenue, said that the height and bulk of the proposed buildings would produce an unwelcoming entrance as well as dominate the Flower Wards. It would set a precedent for other buildings to be larger than shown in the Master Plan. She is disappointed with the fact that the proposals do not include a medical centre. Mr M McIntosh, who lives at 6 Murra Murra Place, said that he was disappointed that the DCP was not complied with.

14 I note that the absence of a supermarket and a medical centre was not an issue embraced by the council. While I understand the residents’ disappointment that these facilities were promised to them and will now not be realised, the Court can do nothing about it. The planning system works on prohibition not on compulsion. The consent authority can stop an applicant building a medical centre but it cannot make an applicant build one. Even if the applicant could be forced to build the physical space for a supermarket and a medical centre (which is not the case), little would be achieved. If the demand for these spaces does not exist, they would remain unoccupied. This would not be in anyone’s interest.

Height and FSR (and hence bulk and scale)

15 The council’s urban design and heritage expert is Mr M Robinson, an architect. The applicant’s urban designer is Ms G Morrish, an architect, and its planner is Mr P Grech, a planning consultant.

16 The height argument is about a recessed fifth floor, which the council does not like and the applicant presses. Although Mr Robinson argues that the buildings are too bulky, I do not think that in the context of this large site and of Anzac Parade (which does not possess any kind of unified scale), it makes sense to call the proposed buildings too bulky. Ms Morrish responds by claiming that the additional height is actually required for urban design reasons. I do not find this convincing either; in my opinion, the buildings look fine as they are and would also look fine if they were one-storey lower.

17 On the other hand, it is undeniable that the proposal breaches several development standards in the LEP and controls in the DCP; therefore the breaches must be justified. The relevant development standards are height and FSR. I turn to the height standards. The Built Form Control Plan specifies that the buildings should be four–storeys. Both buildings have five-storey sections. The maximum wall height is 14m. The proposed buildings have a maximum wall height of 14.7m. The maximum building height is 15m. The proposal exceeds this by about 3m where the lift towers and plant rooms occur.

18 The applicant’s SEPP 1 Objection justifies the variation from the standard on the following basis:

· The proposal has a smaller footprint than that indicated in the DCP. This opens up the view from the entrance towards the heritage buildings. A smaller footprint should be compensated by a greater height.

· There are no adverse impacts from the variation. (This is common ground between all experts.)

· The council has allowed other buildings to exceed the height standard.

19 In my opinion, these are sound arguments.

20 I turn to the breach of the FSR standard. The maximum permissible FSR for the sites is 1.2:1. The actual FSR is 1.32:1. The DCP identifies the objectives of density control. (The LEP does not contain such objectives.)

(a) To control the bulk and scale of development.
(b) To ensure that building bulk is compatible with the surrounding built form and minimise the impact of building bulk on existing buildings in the locality, open spaces and streetscape; and
(c) To encourage a mix of dwelling sizes and types.

21 Clearly, the relevant objective is objective (b). It is common ground that there are no adverse impacts as a result of the additional FSR. It is also common ground that the buildings around also exceed the permissible FSR. The building on lot 6 has a FSR of 1.32: 1 instead of the permissible 1.2:1. Other buildings in the vicinity have FSRs of between 0.9:1 and 1:1; however, their permissible FSR is also lower at 0.9:1. It seems to me therefore that the bulk of the two buildings proposed here is compatible with the surrounding built form.

22 In Wehbe v Pittwater Council (156 LGERA 446-465 at 457) Preston J sets out the various ways in which a departure from development standards may be justified, ie

1. by establishing that the objectives of the standard are satisfied;

2. by establishing that the objective of the standard is not relevant in the particular case;

3. by establishing that the objective of the standard would be defeated;

4. by establishing that the standard has been abandoned; and

5. by establishing that the zoning of the land is inappropriate.

23 In this case the applicant has established that the proposal achieves the objective of the standard and also that the standard has been abandoned (or, at least, not strictly observed) in the case of surrounding buildings. The SEPP 1 Objections are therefore well founded.

Setbacks

24 The council contends that the setback of the building on lot 13 should be 7m as prescribed in the DPC. The actual setback is 3m. The applicant points out that the DCP envisages a rectangular building while the proposed building is curvilinear and therefore hard to fit into rectilinear controls. In addition, the verge on Anzac Parade in the location of lot 13 is wider than elsewhere; therefore the 3m setback has the same visual effect as a 7m setback where the verge is narrower.

25 In my opinion, the applicant’s arguments are sound. The 3m-setback will not diminish the urban design qualities of the proposal. The variation from the DCP controls is justified.

Heritage impact

26 Mr R Staas, a heritage architect retained by the applicant, joined the other experts. All four experts, Ms Morrish, Mr Staas, Mr Grech and Mr Robinson, agreed that, provided the top floor of the building on lot 13 was set back an additional distance shown on a diagram that came to the Court as Exhibit F, there would be no adverse impact on the Flowers Wards. The applicant accepted the additional setback and this resolves the heritage issue.

Conclusions

27 All concerned, including the objectors, agreed that the proposed buildings are well designed. The applicant has successfully justified its variations of development standards and controls. The variations are not all “one-way”, for example, the variation of the footprint leads to a smaller building on lot 13 and opens up the view into the most attractive parts of the project. The appeal is therefore upheld.

Orders
Appeal No 10389 of 2008

1. The appeal is upheld.

2. Development application for a commercial-residential building on lot 11 DP270427, known as 2-8 Pine Avenue, Little Bay is determined by the grant of consent subject to the conditions in Annexure A.

Appeal No 10390 of 2008

1. The appeal is upheld.

2. Development application for a commercial-residential building on lot13 DP 270427, known as 1-9 Pine Avenue, Little Bay is determined by the grant of consent subject to the conditions in Annexure B.

3. The exhibits are returned except Exhibits 8 and A.

__________________
Dr John Roseth
Senior Commissioner