Troon Property Holdings Pty Ltd v Randwick City Council (No 2)

[2025] NSWLEC 1103

Land and Environment Court

New South Wales

Medium Neutral Citation:

Troon Property Holdings Pty Ltd v Randwick City Council (No 2) [2025] NSWLEC 1103

Hearing dates:

11-12 November 2024, final submissions 31 January 2025

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) DA/231/2023 for construction of a medium density townhouse complex consisting of sixteen (16) two storey residential dwellings over a common basement and associate development at 27 Jennifer Street, Little Bay is determined by the grant of consent, subject to the conditions at Annexure A.

(3) The exhibits are returned with the exception of Exhibits 1, A, B and C which are retained.

Catchwords:

APPEAL – development application – multi unit housing – finalisation of judgement

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Randwick Local Environmental Plan 2012, cll 4.3(2A), 4.6

Cases Cited:

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

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

Texts Cited:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Troon Property Holdings Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
S Berveling (Respondent)

Solicitors:
Colin Biggers & Paisley Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/425914

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council (Council) of Development Application No. DA/231/2023 (DA) for a medium density townhouse complex and associated development at 27 Jennifer Street, Little Bay (site).

2. In a judgment handed down on 16 January 2025, among other things I sought some further submissions from the parties in relation to certain matters relating to potential conditions of consent. This has now occurred.

3. Having regard to this earlier judgment and the above-referenced submissions from the parties, but also upon completion of a consideration of the proposal’s breach of a height standard under Randwick Local Environmental Plan 2012 (RLEP), which follows directly; with this judgement I am in a position to make final orders in relation to this appeal.

Height standard breach

4. As indicated in my earlier judgement, the site is located adjacent to both St Michael’s Golf Club which is situated to the east and a facility known as Cullen’s Driving Range which is situated to the site’s west. In relation to this, the proposal involves the construction of golf safety netting adjacent to and along both the eastern and western boundaries of the site. Relevantly, under cl 4.3(2A) of RLEP, a maximum height of building control of 9.5m applies. The proposed golf safety netting breaches this height standard, having a maximum proposed height of 12m. To make clear, the rest of the development, and particular the proposed residential accommodation, itself, does not breach this development standard.

5. The applicant is seeking an exception for the contravention of development standards under cl 4.6(2) of RLEP. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5), which are well known.

6. 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]). The first opinion is in regard to a written request from the applicant seeking to justify the contravention of the development standard. 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.

7. The applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention (Ex B Tab 13).

8. The first opinion of satisfaction required of the Court under cl 4.6(4)(a) concerns the written request’s demonstration of two factors which can be summarised as: (1) whether compliance with the development standard is unreasonable or unnecessary and (2) whether there are sufficient environmental planning grounds to justify the contravention.

9. The written request’s demonstration that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case relies on the findings of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). Among other points of justification, the written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.3 of RLEP, notwithstanding the contravention.

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

1. (a) to ensure that the size and scale of development is compatible with the desired future character of the locality,

2. (b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,

3. (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. The written request argues that the proposal, including the proposed golf safety netting, is compatible with the desired future character of the area because of the general compliance of the residential buildings with height and scale controls and because there are no unreasonable adverse impacts as a consequence of the essential “translucency” of the netting. These points are relevant to the first and third objectives. It is also argued that there is sufficient space between the proposal and the two identified heritage conservation areas (the Botany Bay National Park and the Prince Henry Hospital Site Heritage Conservation Area)

12. I can make the following comments in regard to expert evidence in relation to the height standard breach. The experts giving evidence in relation to implications of the netting were, principally, K Castellanos (visual analysis expert) appointed by the applicant and F Macri (town planning expert) appointed by the Council. After, and at the request of Council, finalised details of the proposed netting were provided and certain additional visual analysis work was completed (including undertaking site inspections of comparable netting), the experts were satisfied with the visual impacts of the proposed netting, including in regard to potential adverse impacts on 11 Jennifer Street (Ex 5 pars 76-86, 114, 118) and that the proposal “adheres to the view sharing principles and there will be no discernible affectation of water views or district views”. I can also note here that Council did not press concerns relating to the netting’s breach of the height standard in its submissions. I also note that the expert evidence was generally supportive of the proposal ultimately before the Court, with respect to otherwise general amenity impacts.

13. Having regard to the evidence before me, I can accept the written request’s arguments that the development achieves the objectives of cl 4.3 of RLEP and that consequently compliance with the development standard is unreasonable and unnecessary in the circumstances of the case.

14. The written request also argues a series of environmental planning grounds as justifying the contravention. The most notable arguments for me were that the netting would not contribute to additional visual bulk, overshadowing or view loss. These are sufficient environmental planning grounds to justify the contravention in this instance.

15. 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 applicable R3 zone of RLEP. 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.

16. Relevant 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 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.

…

17. The proposed development would by definition, provide for an aspect of the housing needs of the community, in this medium density setting, delivering a particular variety or type of housing; consistent with the first and second zone objectives. The medium density zoning, visual analysis accompanying the proposal (which takes account of the wider setting) and fact of the acceptability of the proposal with respect to adverse impacts, together allows me to draw the conclusion that due recognition of setting has occurred, and the proposal would contribute to the desired future character of the area. As indicated, I am satisfied that the proposal reasonably protects the amenity of residents. The supply of additional housing can be understood to have flow on effects with respect to housing affordability. Together these findings means the proposal is consistent with the relevant R3 zone objectives.

18. The above conclusions mean I am satisfied that 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.

19. 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.

20. 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 golf safety netting’s breach of the building height standard.

Conclusion

21. The parties have now provided me with what I find to be a satisfactory suite of development consent conditions, which are documented at Appendix A. On the basis of the general merits analysis found in my judgement in this matter handed down on 16 January 2025, the above consideration of the proposal’s breach of a height standard under RLEP and the suite of development consent conditions provided at Appendix A, it is my conclusion that the proposal warrants the grant of consent. My orders in relation to the matter at hand follow.

Orders

22. The Court orders:

1. The appeal is upheld.

2. DA/231/2023 for construction of a medium density townhouse complex consisting of sixteen (16) two storey residential dwellings over a common basement and associate development at 27 Jennifer Street, Little Bay is determined by the grant of consent, subject to the conditions at Annexure A.

3. The exhibits are returned with the exception of Exhibits 1, A, B and C which are retained.

P Walsh

Commissioner of the Court

Annexure A

Decision last updated: 25 February 2025