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Veloshin v Randwick Council

Veloshin v Randwick Council

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Land and Environment Court

of New South Wales

CITATION: Veloshin v Randwick Council [2007] NSWLEC 428

PARTIES:
Applicant:
Anatol Veloshin & Michael Moses
Respondent:
Randwick City Council;

FILE NUMBER(S): 10095 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application :- Planning principle:assessment of height, bulk and scale

LEGISLATION CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 03/04/2007 and 04/07/2007

DATE OF JUDGMENT:
13 July 2007

LEGAL REPRESENTATIVES: Applicant:
Ms S Duggan. barrister instructed by Mr V Conomos, solicitor of Pike Pike & Fenwick
Mr P McEwen SC instructed by Ms T Litt, solicitor of Shaw Reynolds Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

13 July 2007

10095 of 2007 Anatol Veloshin & Michael Moses v Randwick City Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Randwick City Council (the council) of a development application to demolish the existing development and erect a three to four-storey building containing two shops, eight one-bedroom and two studio apartments at 35-37 St Paul’s Road, Randwick. At the conclusion of the hearing the applicant indicated that it was willing to delete a floor containing two studio apartments. Given that this change goes towards reducing the shortcomings of the proposal, I have assumed that the two studio apartments are removed and adjusted the evidence accordingly.

The site

2 The site is on the northern side of St Paul’s Street in “The Spot” commercial centre of Randwick. It is trapezoidal, with an area of 361m2. The rear boundary adjoins Aeolia Lane. The width at the lane is 7.9m. The existing building has a Floor Space Ratio (FSR) of 1.35:1 and contains two shops and two two-bedroom apartments above. The front façade to St Paul’s Street is listed as a contributory item in the Conservation Area in which the site is located.

3 To the east the site adjoins the Ritz cinema, the central part of which is heritage listed. The section that adjoins the site is a new addition to the cinema and reaches the height of about 15m. Beyond the Ritz is a vacant site, which is part of Brigidene College and on which a proposal to erect a public car park for 156 cars has been approved. To the west the site adjoins 33A St Paul’s Street, which is a building containing shops at ground floor and a dwelling at first floor level. Further to the west are similar buildings up to the corner of Aeolia Street. The corner site contains a new development of retailing and residential. On the other side of the lane is Brgidene College.

4 The Spot is a strip shopping centre of traditional appearance. Most of the buildings are two to three storeys. The Ritz cinema, which has been recently expanded, is the largest building in the centre.

The proposal and its history

5 The applicant proposes to demolish the existing building on the site, with the exception of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 428
Decision Date: 13 July 2007

CaseChat Overview and Summary

The case of Veloshin v Randwick City Council involved an appeal against the council's refusal of a development application for a proposed building on a site at 35-37 St Paul’s Road, Randwick. The applicants sought to demolish the existing building and construct a new three to four-storey building containing two shops, eight one-bedroom and two studio apartments. The primary issues before the court were whether the proposal complied with planning principles regarding height, bulk and scale, and whether the objection to the floor space ratio (FSR) under the State Environmental Planning Policy 1 (SEPP 1) was well founded.

The court found that the proposal did not comply with the maximum FSR of 1.5:1 as stipulated by the Randwick Local Environmental Plan 1998. The amended proposal, which reduced the height and removed two studio apartments, still exceeded the FSR, resulting in an FSR of 2.14:1. The court concluded that the objection under SEPP 1 was not well founded because it failed to quantify the overshadowing impact on neighbouring properties or demonstrate how the proposal reduced potential adverse impacts on adjoining development. Additionally, the court held that the proposal did not adequately address the parking requirements. Despite the applicant's argument that car ownership rates in the area were lower than those stipulated by the council's parking development control plan, the court found that the site could only practically accommodate four cars on-site, which limited the residential development potential to six one-bedroom apartments. Given these factors, the court dismissed the appeal and upheld the council's decision to refuse the development application.

In conclusion, the court's decision was based on the non-compliance with the FSR and parking requirements, as well as the inadequacy of the objection under SEPP 1. The court determined that the appeal was dismissed, the development application was refused, and the exhibits were returned.

Orders