Thomas v Randwick City Council

Case •

[2016] NSWLEC 1158

•

27 April 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Thomas v Randwick City Council [2016] NSWLEC 1158
Hearing dates:27 April 2016
Date of orders: 27 April 2016
Decision date: 27 April 2016
Jurisdiction:Class 1
Before: Maston AC
Decision:

1. The appeal is upheld.
2. Development Application No. DA-203/2015 for alterations and additions to the existing residential flat building at 9 Glenwood Avenue, Coogee is approved subject to the conditions set out in Annexure “A”
3. The exhibits, other than exhibit “A” may be returned

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to existing residential flat building; effect on views, sufficiency of parking provision, impact on amenity of existing residential flats in the area
Legislation Cited: Environmental Planning and Assessment Act (EP&A Act)
Environmental Planning and Assessment Regulations 2000 (EP&A Regulations)
State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP(ARH))
State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65)
State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004 (SEPP BASIX)
Randwick Local Environmental Plan 2012 (RLEP)
Randwick Development Control Plan 2013 (RDCP)
Category:Principal judgment
Parties: Mr Tim Thomas (Applicant)
Randwick City Council (Respondent)
Representation: Mr A. Whealy, Mills Oakley Lawyers (Applicant)
Mr K. Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):11176 of 2015
Publication restriction:No

This determination was given extemporaneously

and has been edited prior to publication

JUDGMENT

  1. These proceedings are an appeal under s.97(1) of the Environmental Planning and Assessment Act, 1979 (EP&A Act) from the refusal by the Respondent Council of the Applicant’s development application for alterations and additions to an existing residential flat building at 9 Glenwood Avenue, Coogee (the site).

  2. The proposal includes the demolition of the existing garage, construction of a new upper level and rear two storey additions comprising seven units and basement car parking for six vehicles, associated site and landscape works.

  3. The site is described as Lot 9 in DP18186. It is located on the western end of an existing cul-de-sac with one street frontage available from Glenwood Avenue.

  4. The site area is 575.4 m². The existing two-storey residential flat building comprises four, two bedroom strata titled units with a detached ancillary garage structure comprising four undercover spaces and four car spaces located on the eastern end of the garage structure.

  5. The site is zoned R3 – Medium Density Residential under Randwick Local Environmental Plan 2012 (RLEP).

  6. The surrounding development is characterised by medium density residential development consisting of residential flat buildings with a 2 to 3 storey scale along Glenwood Avenue.

  7. The development application was lodged on 26 October 2015 and was publicly notified for a period of 14 days in April 2015 in accordance with RDCP.

  8. Eighteen public submissions were received following notification, raising the following concerns –

  1. parking;

  2. traffic;

  3. character;

  4. loss of privacy;

  5. loss of sunlight;

  6. damage due to excavation and demolition;

  7. excessive bulk;

  8. overdevelopment;

  9. flooding;

  10. wall length;

  11. deep soil and open space;

  12. built form;

  13. heritage;

  14. overshadowing;

  15. loss of natural breeze.

  1. On 16 October 2015 the applicant submitted amended plans addressing Council’s issues with the original proposal relating to the western side setback, proposed floor space ratio exceeding the limit under RLEP, parking and potential for flooding. The applicant also submitted an amended parking study and flood report.

  2. On 8 December 2015 the development application was considered at the Council meeting and refused for the following reasons:

  1. The proposal is deficient in the provision of parking on the site and will adversely impact on the parking capacity of the locality.

  2. The proposal is out of character with the streetscape and will adversely impact on the amenity of the adjoining and neighbouring properties.

  3. The proposal is an overdevelopment of the site.

  1. On 14 December 2015 the current appeal was lodged against Council’s refusal of the development application.

  2. On 24 December 2015, the applicant lodged a review application to Council pursuant to s82A of the EP&A Act (“the review application”).

  3. The s82A review application was notified between 12 and 28 January 2016 in accordance with the requirements of Part A3 of RDCP.

  4. As a result of the notification of the review application Council received 6 submissions (from 8 residents) which raised the following concerns:-

  1. loss of privacy;

  2. loss of acoustic amenity;

  3. loss of parking;

  4. loss of visual amenity;

  5. intergenerational issues;

  6. environmental issues;

  7. loss of light/solar access;

  8. building size;

  9. impact on landscaping and open space;

  10. traffic safety;

  11. view loss;

  12. impact on streetscape;

  13. impact of excavation and construction; and

  14. heritage.

  1. The review application was considered at the Council meeting on 23 February 2016. The Council confirmed its original decision to refuse the application for the following reasons:-

  1. The proposal is deficient in the provision of parking on the site and will adversely impact on the parking capacity of the locality.

  2. The proposal is out of character with the streetscape and will adversely impact on the amenity of the adjoining and neighbouring properties.

  3. The proposal is an overdevelopment of the site.

  1. Council subsequently resolved to seek to finalise the appeal by the hearing of an application for consent orders.

  2. The hearing took place on 27 April 2016 commencing on site at Glenwood Avenue. Oral representations were received by me from several neighbours and local residents. Further documents were handed to the Council’s solicitor on site by some of the objectors and these have been included in the Council’s bundle of documents.

The evidence:

  1. In addition to the Council’s bundle the documents tendered at the hearing included:

An agreed expert town planning position paper dated 21/3/2016 prepared by Mr A. Darroch, consultant town planner for the applicant, and Mr J.Mead consultant town planner for the Council; Notes taken on site on the view recording the oral representations made by the objectors; and a copy of the floor space ratio map, the height of buildings map and the zoning map relevant to the subject property and forming part of RLEP.

  1. The applicant tendered the amended architectural drawings of the proposal as referred to in the proposed consent orders. The consent orders themselves had been filed on 24/3/2016, signed by the parties representatives. These included comprehensive agreed conditions of consent. The applicant also tendered a survey plan of the site, and a report of M.L. Traffic engineers dated 20/3/2015 together with an addendum dated 23/3/2015.

  2. At the hearing in court following the view on 27/4/2016 Mr Darroch and Mr Mead jointly gave oral expert evidence with respect to the representations made by the objectors on the view. They both agreed, particularly on the questions of parking and loss of views and outlook, that on balance all the issues raised had been satisfactorily addressed by the amended proposal and by the proposed conditions of consent and that they had no reason to alter the opinions expressed in their agreed position paper dated 21 March 2016.

  3. The Court’s practice in cases where the parties are satisfied that all contentions and objections have been addressed is to require the council to demonstrate that the relevant statutory provisions have been complied with and that any objection has been properly taken into account.I am satisfied that this is the case. In addition, I am satisfied that the council has demonstrated that it has given reasonable notice to all persons who objected to the proposal as to the content of the proposed orders including the proposed conditions of consent, the date of the hearing, and that such persons have been given full opportunity to be heard.

  4. I was satisfied at the conclusion of the hearing that the development was worthy of development consent subject to the agreed conditions of consent. Accordingly, on 27/4/2016, at the conclusion of the hearing and having regard to all the evidence, I made the orders in terms of the consent orders filed in court on 24 March 2016. I indicated that I would publish my reasons for the decision and for making the orders as soon as possible. These are those reasons. In addition to those orders I also order that the exhibits, other than exhibit “A” be returned.

Maston AC

11176 of 2015 Maston_Annexure A (422 KB, pdf)

Amendments

05 May 2016 - Uploaded Annexure A

Decision last updated: 05 May 2016

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