Zhang v Randwick City Council

[2022] NSWLEC 1336

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Randwick City Council [2022] NSWLEC 1336

Hearing dates:

17-18 March 2022

Date of orders:

29 June 2022

Decision date:

29 June 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Randwick City Council as the relevant consent authority pursuant to cl 55 of the Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA/353/2021 to reflect the architectural plans which form Exhibit A in these proceedings.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application as agreed or assessed.

(3) The appeal is dismissed.

(4) The exhibits, other than 3, 4, 5, A and D, are returned.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – cl 4.6 written request – floor space ratio – residential amenity – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, ss 34, 39
Randwick Local Environmental Plan 2012, cll 2.3, 4.4, 4.6
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55—Remediation of Land
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Cases Cited:

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

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, (July 2015) (ADG)
Australian Government, National Construction Code, 2019 (NCC)
Land and Environment Court, COVID-19 Pandemic Arrangements Policy (February 2022)
Randwick Comprehensive Development Control Plan 2013 (RDCP

Category:

Principal judgment

Parties:

Mark Zhang (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
R White (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2021/222554

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/353/2021 (the DA) by Randwick City Council (the Respondent). The DA sought consent to amend an approved residential apartment building development (DA/707/2018) by adding a new residential level and two additional units, with alterations to the basement level adding two additional parking spaces, and resulting in a four-storey residential apartment building of 7 x three bedroom apartments over basement parking accommodating 11 x parking spaces, landscaping and associated works at 68 Beach Street, Coogee (the site).

2. Prior to the hearing, on 1 February 2022, the Court granted leave to the Applicant to amend the DA and to rely upon amended plans. These amended plans were referred to as Revision C.

3. At the commencement of the hearing, on 17 March 2022, and with the consent of the Respondent, the Applicant was granted leave to further amend the DA and to rely upon further amended plans. The final amended architectural drawings (now referred to as Revision F) were tendered as Exhibit A in these proceedings and form the subject of this appeal.

4. The key features of the final amended DA comprise a four-storey residential apartment building development comprising 5 x three bedroom apartments over a single basement level accommodating 10 x car parking spaces and motorcycle and bicycle parking. The various aspects of the proposal include:

1. Removal of one tree and demolition of all existing structures on the site.

2. A single-level basement containing the common pedestrian entry and circulation space, common lift, 10 car parking spaces, 1 motorcycle parking space, 3 bicycle spaces and service and waste management rooms.

3. A ground and first level each comprising 1 x three bedroom apartment.

4. A second level, comprising 2 x three bedroom apartments and communal open space.

5. A third level, comprising 1 x three bedroom apartment.

5. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter commenced with a site viewing limited in the number of participants before resuming by Microsoft Teams.

6. Upon commencement of the hearing by Microsoft Teams, the Court also benefited from oral submissions made by two affected neighbours in the immediate vicinity of the site.

7. These residents expressed their concerns for a number of issues and potential impacts arising from the proposed development, including in summary:

1. The danger to life and property posed by an existing sandstone cliff - a former quarry face - at the southern boundary of the subject site and concerns that excavation and construction risks destabilising the rock and precipitating collapse.

2. Uncertainty of the depth of soil over rock at the top of the cliff and hence uncertainty of excavation and construction methodologies to mitigate against destabilisation and potential collapse of the rock cliff.

3. Noting that the face of the rock cliff does not correspond precisely with the site boundary, and given the varied alignment of the rock face, it is situated on both sides of the site boundary in different locations.

4. Given the nature of this varying boundary condition, uncertainty that the proposed excavation and construction works could be entirely implemented from within the subject property and without requiring access from the neighbouring property, for which owners’ consent has not been provided.

5. The existing approval included a series of planning concessions relating to building height, depth of excavation and number of apartments, some of which are now sought to be further exceeded by the proposal.

6. Proposed parking, circulation and manoeuvring space is inadequate, and previously approved basement service rooms have been omitted, giving rise to concerns that the basement design is not workable.

7. Privacy and cross viewing impacts arising from inadequate side setbacks.

8. Concern that the proposal is seeking to increase development yield, gross floor area and the resultant floor space ratio by stealth, substituting an earlier approved over-height basement parking level with a habitable floor level that provides inadequate amenity.

The site and its context

8. The site is located at 68 Beach Street, Coogee and is legally described as Lot 11 in DP 84481.

9. The combined site is regular in shape. It has an easterly frontage to Beach Street of 13.82m and an average approximate site depth of 46.3m. The site has a total area of 634.6sqm by survey.

10. The site’s topography is pronounced, with the north eastern corner of the site addressing Beach Street situated at RL41.50m, then rising by approximately 9m from the street frontage towards the rear boundary, which has a level of RL50.69m in the vicinity of the south western corner of the site.

11. Further, the southern site boundary coincides approximately with a sandstone cliff, which was described to the Court during the site view as a former sandstone quarry. The existing structures at the subject site are located atop this cliff, whilst the neighbouring property at 70 Beach Street is located at its foot. The cliff face presents as an approximately 3-4m naturalistic rock wall to the side boundary. Climbing vegetation over the rock cliff adds to its existing character.

12. This part of Beach Street has a mixed urban character derived from a combination of single- and two-storey detached dwellings and three- and four-storey residential apartment buildings. There are two locally listed heritage houses in the immediate visual catchment of the subject site along Beach Street.

13. The topography along Beach Street is also pronounced, with the subject site being situated near the top of a local crest revealing views to the north and south along the street.

14. North of the subject site, at 66 Beach Street, is a detached three-storey residential apartment building, whilst to the south of the subject site, at 70 Beach Street, is a two-storey detached dwelling house.

15. The rear of the subject site is served by Beach Lane, which ends just to the south of the site. This rear lane has a character consistent with a service lane and reveals similar underlying topographical features as Beach Street.

The planning controls

16. The site is zoned R3 Medium Density Residential pursuant to the Randwick Local Environmental Plan 2012 (RLEP). Development for the purposes of a residential apartment building is permissible with consent within the R3 zone.

17. Further relevant planning controls are as follows:

1. The EPA Act.

2. The Environmental Planning and Assessment Regulation 2000 (EPA Reg).

3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. State Environmental Planning Policy No 55—Remediation of Land.

5. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65)

6. RLEP.

7. Randwick Comprehensive Development Control Plan 2013.

8. Apartment Design Guide (ADG)

History of the Development Application

18. The Respondent’s Amended Statement of Facts and Contentions, filed with the Court on 24 February 2022 (and tendered as Exhibit 3 in these proceedings), sets out the history of the Application. A concise summary follows.

19. DA/707/2018 (the existing approval) was granted consent by the Randwick Local Planning Panel on 31 October 2019 subject to conditions. This consent is for the demolition of existing structures and construction of a three-storey residential apartment building containing 5 x dwellings, basement parking for nine vehicles, including the use of car stackers, and landscaping and associated works.

20. A Modification Application DA/707/2018/A (the Mod) was submitted to the Respondent on 29 November 2019 seeking to modify the existing approval to delete a number of conditions of consent relating to the building’s height and configuration.

21. This Mod was refused by the Respondent on 29 October 2020.

22. The refusal of the Mod subsequently formed the subject of an appeal made to the Court. This appeal was upheld on 27 April 2021 following a s34 conciliated agreement between parties. The terms of the agreement involved the Court amending the conditions of consent initially sought to be deleted.

23. The DA (the subject of this appeal) was lodged with the Respondent on 22 June 2021. As noted earlier, the DA sought consent to amend the existing approval by increasing the depth of excavation, adding two additional parking spaces, eliminating approved car stackers (having the effect of reducing the clear height of the approved basement level) and introducing a new residential level and two additional units, resulting in a four-storey residential apartment building of 7 x three bedroom apartments over basement parking accommodating 11 x parking spaces, landscaping and associated works.

24. The Application was publicly notified for a period of 14 days from 1 July to 15 July 2021.

25. The Respondent received multiple submissions in response to the public notification, citing a range of planning issues and objecting to the proposal. The Respondent’s Exhibit 1 in these proceedings includes copies of each of these submissions at pp 13-84.

26. On 4 August 2021, the Applicant filed a Class 1 appeal against the Respondent’s deemed refusal of the Application.

27. On 1 February 2022, prior to the hearing, the Court granted leave to the Applicant to amend the DA and rely upon amended plans. These are referred to as the Revision C plans and included a number of design changes, which most significantly, altered the internal arrangement of the DA so as to reduce the proposed number of apartments from seven to five within broadly the same building envelope.

28. Finally, at the commencement of the hearing, on 17 March 2022, and with the consent of the Respondent, the Applicant was again granted leave to amend the DA and to rely upon further amended plans. These final amended architectural drawings (referred to as Revision F) were tendered as Exhibit A in these proceedings and now form the subject of this appeal.

The issues

29. The contentions pressed by the Respondent can be found in the Amended Statement of Facts and Contentions forming Exhibit 3 in these proceedings.

30. These contentions are summarised as follows:

1. Inconsistency with the objectives of the R3 Medium Density Residential land use zone as set out at cl 2.3(2) and the Land Use Table of the RLEP

2. Exceedance of the maximum Floor Space Ratio (FSR) development standard as set out at cl 4.4 of the RLEP.

3. Inadequacy of the Applicant’s written request, prepared pursuant to cl 4.6 of the RLEP, which seeks to justify the proposed variance of the FSR development standard.

4. Unacceptable internal amenity for future occupants given the extent of excavation, poor natural ventilation, constrained solar access and limited natural light available to a number of lower-level habitable rooms.

5. Risk of collapse of the rock cliff along the southern boundary due to excavation and construction.

6. Insufficient information to assess various aspects of the DA including details of the basement configuration, provision of services, storage space, performance of the proposal against targets established by the ADG, lack of a site survey, clarification of front setback and aspects of the landscape design.

7. The proposal, seeking a significant incremental increase to total gross floor area and the resultant exceedance of FSR, represents an undesirable precedent.

8. Shortcomings identified with the proposed vehicle access and circulation arrangements within the basement, and shortfall of bicycle parking.

9. Inadequate space and circulation for waste management.

10. Inconsistencies between the proposal and a number of conditions of the existing approval.

11. The proposal not being in the public interest.

The evidence

31. The Court was assisted by experts in planning, urban design and civil and geotechnical engineering who conferred to prepare two separate joint reports.

32. The civil and geotechnical engineering experts are Mr Warwick Davies (engineer) for the Respondent and Mr Alan Morrow (engineer) for the Applicant. Their joint expert report forms Exhibit 4 in these proceedings.

33. At section 9 of the joint report (pp 22-23), with reference to the proposed extent of excavation, the experts set out their areas of agreement, which in summary include that there is a viable methodology to safely excavate for the proposed basement from within the subject site without destabilising the rock face. The proposed methodology would result in a reinforced ‘rock blade’ retaining the existing cliff face as it addresses the side boundary with 70 Beach Street. The proposed basement structure, once constructed behind this rock blade, would further reinforce the retained rock face.

34. At section 10 of the joint report (p 23), the remaining disagreement between the experts is set out, and is effectively distilled to alternative views on the most appropriate form for the conditions of consent necessary to implement the agreed excavation and construction methodology.

35. In their oral evidence, Mr Davies and Mr Morrow confirmed to the Court that the proposed basement could be safely constructed, and that they had agreed on a suitable form for the final conditions of consent. The key to securing agreement on this point rested with a commitment to prepare a detailed engineering and structural design consistent with the agreed excavation and construction methodology, and upon acceptable inspection and hold points being established during the construction phase.

36. The planning and urban design experts are Ms Ros Read (planner) for the Respondent, and Mr David Waghorn (planner) and Mr Rohan Dickson (urban designer) for the Applicant. Their joint expert report forms Exhibit 5 in these proceedings.

37. In their oral evidence, the experts addressed the various interwoven contentions by grouping issues into three broad topic areas - streetscape character, FSR exceedance and residential amenity.

38. At section 3 of the joint report (pp 19-34), the experts set out - in some considerable detail - their respective positions on Contention 3, dealing with the justification for the proposed exceedance of FSR. This section of the joint report also references the experts’ views of the impacts of the proposal upon the streetscape character.

39. In summary, the experts remain divided in two key regards. Firstly, Mr Waghorn and Mr Dickson share a view that by siting the proposed quantum of additional gross floor area (in the form of an additional habitable level) within a building envelope that is consistent with the existing approval, any impacts upon the streetscape are minimised and not material, and therefore serves as an appropriate justification for the proposed FSR exceedance.

40. At section 3.11 of the joint report (p 21), Mr Waghorn states:

‘I consider the fact that the additional FSR is contained within the approved building envelope to be a “sufficient environmental planning ground” because the original DA consent is specific to the subject site. That is, no other property has the benefit of DA/707/2018 which establishes a building envelope for the site to house the additional FSR. Clearly, the additional FSR can be accommodated within the approved envelope and the experts agree that the proposal does not have any adverse impacts on the amenity of adjoining properties. The lack of adverse impacts on the amenity of adjoining properties is also a “sufficient environmental planning ground” and one that is also discussed in the revised Clause 4.6 in Annexure C.’

41. At section 3.45 of the joint report (p 32) Ms Read demurs:

‘The clause 4.6 exception request discusses compatibility with the desired future character by stressing that the inserted level is within the approved building envelope. The argument is that as the envelope was approved by Council previously and it has not changed it must therefore remain compatible with the desired future character. That as an argument is flawed because there could be many developments that may be within an approved envelope but nevertheless would no longer be compatible with the desire future character, for instance placing a modern garish façade within a heritage conservation area. Simply being within the building envelope does not of itself mean that a proposal will be compatible with the desired future character, however that is the argument on which the Clause 4.6 relies. The clause 4.6 states that the new proposed frontage "will appear generally as a compliant residential flat building". My observations of the desirable character of the locality in contention 1 and 3 is specifically to try to avoid the presentation of contemporary buildings as residential flat buildings, so as to transition to the low density dwellings across the street. I therefore do not believe that the clause 4.6 has demonstrated that the size and scale of the proposal is compatible with the desired future character of the locality as required by the objectives of the FSR controls in clause 4.4 of the LEP.’

42. Secondly, the experts are divided on the appropriateness of the resultant architectural expression of the proposal and its compatibility with the prevailing character of this part of Beach Street.

43. At section 1.9 (p 7) of the joint report, Mr Waghorn states:

‘The proposed development will fit within the envelope of a building that previously satisfied the desired future character and therefore remains compatible with the approval of DA/707/2018 and also sits in harmony with other buildings in the locality. The limited changes to the front façade and visual appearance of the building will remain compatible with the approved and surrounding buildings which also makes the proposal contribute to the desired future character of the locality. It cannot be said that the proposed development is out of scale or context with the approved or anticipated envelopes established by the applicable planning controls, both of which assist in shaping the desired future character of the locality.’

44. Mr Dickson notes a basis for determining the relevant visual catchment at sections 1.15 and 1.16 of the joint report (p 8) as follows:

‘It is important to note that Beach Street forms the zone interface between R3 Medium Density Residential (western side of the street) to R2 Low Density Residential (eastern side of the street). The desired future character of each side of the street, as anticipated by Council in their controls, would therefore differ. The site is located on the western side of Beach Street.’

‘In my opinion, the character of an area should be considered in the context of the visual catchment. In this instance, the visual catchment is defined by Beach Street bound by Alison Road and Quail Street due to the topographical fall from south to north.’

45. Ms Read broadly agrees with Mr Dickson’s assessment methodology, but not with its conclusions. At section 1.25 of the joint report (p 11), Ms Read states:

‘The desirable elements of the existing streetscape are the varied dwelling forms on the eastern side of Beach Street and the dwellings to the south of the site. There is relative consistency in the hipped and gabled roof forms of the dwellings which are setback from the boundary on relatively flat platforms at the street presentation in a low density environment. The two heritage buildings at 69 and 75 Beach Street are attractive period architecture, as are the two complementary older style residential flat buildings at 54 and 56 Beach Street.’

46. Referencing the positive characteristics of existing larger-scale buildings within the visual catchment, Ms Read continues at sections 1.26 and 1.27 of the joint report (p 11):

‘Addressing the more modern style and larger developments between 58 – 66 Beach Street there is a relative consistency in form of the garage frontage facing Beach Street, save that 66 Beach Street has no vehicular access from Beach Street. The garage form, including the sandstone frontage has been adopted in the approved development. Each of the buildings present as two or three storeys above the garage element but set back from the boundary to provide a less obtrusive impact on the public domain. 60 and 66 Beach Street have a recessed third level to again reduce the visual impact from the public domain. Again, the recessed third level above the garage forms part of the approved development. Desirable characteristics also include the two to three storey form as it relates to the two storey form on the eastern side of Beach Street.’

‘The contemporary styled buildings all include a stepping back of development away from the street within the lower levels and assists in providing a transition between the R3 medium density residential land to the R2 low density land across the street. The graduated façade treatments present a streetscape of large dwellings rather than residential flat buildings which provides for compatibility with the dwelling houses on the eastern side of the road. This avoids a stacked form of balconies (multiple identical balconies above each other) which is typical of a residential flat building form and which is proposed by the balconies for levels 1 and 2 of the proposal. The proposal's balconies provide for a much more obvious façade as a residential flat building which is inconsistent with the transition to the lower density eastern side of the street and the southern end of the western side of the street.

47. Turning next to Contention 4 relating to residential amenity. At section 4 of the joint report (pp 36-45) the experts set out - again in some detail - their respective positions.

48. In summary, the experts remain divided on the acceptability of amenity available to a number of habitable rooms towards the rear of the site at the ground and first floor levels.

49. Whilst Mr Waghorn and Mr Dickson are satisfied these rooms do provide adequate amenity - in particular natural light and ventilation - Ms Read is not.

50. At sections 4.8 and 4.9 of the joint report (pp 37-38), Mr Waghorn notes:

‘The contentions do not detail any non-compliance with any requirements of the ADG or RDCP with regard to the building location below ground level (existing), simply because there are no requirements that are not satisfied by the proposed development. That is, there are no controls that require habitable or non-habitable rooms to be above ground level (existing).’

‘This position is supported by the fact that Part 5.2 of Chapter C2 of RDCP 2013 does not specifically require windows and openings to be above ground level (existing). Rather it sets a lower bar that only requires an opening to an outdoor area. The windows for all habitable and non-habitable rooms on the ground floor level are setback at least 1.3m from the walls on the northern or southern boundaries and are opening to an outdoor area that is open to the sky. Whilst I acknowledge that Clause 6A of SEPP 65 provides that DCP controls for ventilation are of no effect, if applicable, the proposed development would comply with Part 5.2(iii) of Chapter C2 of RDCP 2013.’

51. Mr Dickson’s view, set out at sections 4.12-4.26 of the joint report (pp 38-40), is that when considered holistically, the apartments at ground and first floor level do perform adequately against nine criteria for amenity set out within the ADG. In particular, he sets out the manner by which - in his view - the apartments achieve acceptable amenity in terms of solar access, daylight and natural ventilation.

52. In her oral evidence, Ms Read focused her concerns upon the proposed ground level apartment, Unit G01, noting that while this apartment is generous in its overall size and benefits from good outlook to the east, it is clearly deficient in deriving adequate amenity towards the rear of the apartment.

53. In particular, she noted that each of the three bedrooms within Unit G01 are habitable rooms, and as a consequence of these being situated entirely below the existing ground level, they are incapable of achieving an acceptable level of amenity, primarily in terms of access to natural daylight, natural ventilation and outlook.

54. Further, the configuration of the proposed indentations or ‘light wells’, from which a number of the habitable rooms derive a portion of their outlook, are covered at each level of the proposed building - although this is difficult to discern form the architectural plans - which further constrains outlook and effective natural light and ventilation.

55. At the rear of the ground level apartment, the proposed boundary retaining walls are between approximately 4-5m tall to resolve the extent of excavation against the existing ground level of each neighbouring site and the rear yard of the subject site.

56. In oral evidence, when asked of his opinion of the acceptability of this arrangement, Mr Dickson stated he was satisfied that adequate natural light and ventilation were available to these habitable rooms, and that a proposed landscape treatment - climbers on a vertical trellis or espalier - would improve the quality of outlook from the most constrained rooms of the apartment.

57. Ms Read continued in oral evidence to highlight her lack of satisfaction with the overall performance of the proposal against the ADG in terms of solar access, natural cross ventilation and the allocation of adequate storage space.

58. Returning to the joint report, Ms Read sets out her residual concerns for residential amenity at section 4.27 (p 40) as follows:

‘Almost the whole of Unit G01 and much of Unit 101 are below natural ground level. Even leaving aside the various controls, it is a matter of common sense that amenity of habitable spaces is poorer in a subterranean form than above ground. That is why the vast majority of dwellings are built above ground rather than underground. Sufficient daylight and natural ventilation is not provided in accordance with the ADG and the NCC to 101…to habitable rooms (which include bedrooms). Daylight access is severely compromised to Unit G01.’

59. Similarly, at section 4.32 of the joint report (p 41) Ms Read states:

‘Unit G01's access to daylight is severely compromised. The rear bedroom window of Unit G01 will have the boundary wall up to 4.5m high at a distance of 2 metres from the window. Number 66 Beach Road's roof overhang close to the boundary opposite the window is up at RL54.18 – being 9.28 metres above the FFL of the proposed ground floor. The potential for significant light infiltration is also hampered because one of the small windows is partially covered up by the robe…’

60. The Court thanks each of the various experts for their contribution to clarifying the issues of concern.

Findings

61. I have determined to dismiss the appeal. In deciding this course, I set out my reasons over the following paragraphs.

62. Acknowledging that the experts remain divided regarding Contentions 1, 2, 3 and 4, and that Contentions 5, 6, 7, 8, 9, 10 and 11 have been resolved, are capable of resolution by way of conditions of consent, or are no longer pressed, it is helpful now to group the remaining live contentions in this matter into a series of interwoven design and planning issues:

1. In seeking to justify the proposed FSR variance, determining whether the proposal is consistent with the objectives of the R3 Medium Density Residential zone as set out at cl 2.3 of the RLEP.

2. In seeking to justify the proposed FSR variance, determining whether the proposal is consistent with the objectives of the FSR development standard set out at cl 4.4 of the RLEP.

3. Whether the Applicant’s written request pursuant to cl 4.6 of the RLEP adequately justifies the variance of the development standard for FSR set out at cl 4.4 of the RLEP.

4. Merit issues relating to the configuration of the proposed ground level apartment, Unit G01, and the acceptability of the resultant residential amenity.

5. Merit issues relating to the achievement of the Design Quality Principles set out in SEPP 65 so far as density, sustainability and amenity are concerned.

The Applicant’s written request

63. The key to resolving the first four of these remaining issues lies in assessing the Applicant’s written request pursuant to cl 4.6 of the RLEP.

64. The Court received oral evidence from the planning and urban design experts, which generally narrowed disagreement regarding the amenity provided by the DA to the acceptability (or otherwise) of outlook, natural light, solar access and natural ventilation able to be derived from a number of bedrooms within Unit G01 located toward the rear of the site, which at Contention 4(e) are said to:

‘…result in poor ventilation, no solar access and poor natural light resulting in unacceptable internal amenity.’

65. Ultimately, it is these deficiencies evident in all three bedrooms of Unit G01 that prove to be a fatal weakness of the DA since they follow the proposed variation to the FSR development standard, and I find these deficiencies and their impacts are not adequately justified by the Applicant’s cl 4.6 written request.

66. On behalf of the Applicant, Planning Ingenuity has prepared a cl 4.6 written request, forming Annexure C to Exhibit 5 in this matter. At p 2 of the written request, Mr Waghorn sets out the site area as 634.6sqm, determined by survey, and the relevant FSR development standard to be 0.75:1. He then calculates the total gross floor area of the DA to be 679sqm, and the resultant FSR therefore to be 1.07:1. This represents a variance equivalent to 203.05sqm or 42.6% of the development standard.

67. I note that at sections 3.34-3.54 (particularly) and sections 4.27-4.40 (more generally) of the joint report (Exhibit 5), Ms Read sets out her various reasons for assessing the proposed FSR as being excessive. These reasons were also summarised in her oral evidence and noted earlier in this judgment.

68. Consistent with cl 4.6(3) of the RLEP, the Applicant’s written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of this particular case, and that there are sufficient environmental planning grounds to justify the contravention.

69. Further, and following the planning principle established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), the written request adopts Webhe way 1, seeking to establish that the objectives of the development standard are achieved notwithstanding the non-compliance.

70. Clause 4.6(4) of the RLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

71. In this case, the relevant objectives of cl 4.4(1) - Floor space ratio - of the RLEP are:

to ensure that the size and scale of development is compatible with the desired future character of the locality,

to ensure that buildings are well articulated and respond to environmental and energy needs,

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

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.

72. Similarly, the relevant objectives of the R3 Medium Density Residential zone as set out in the RLEP are:

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 enable other land uses that provide facilities or services to meet the day to day needs of residents.

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.

To enable small-scale business uses in existing commercial buildings.

73. Of these various objectives, and in the context of this case, I place particular emphasis on the fifth bullet point objective of the R3 zone:

To protect the amenity of residents.

74. I accept this phrase applies equally to residents of the proposed development as much as to neighbours whose amenity might potentially be impacted by the proposed development. In this instance, it is the amenity provided for future residents which I have determined to be inadequate.

75. I accept the Respondent’s closing submissions, supported by the evidence of Ms Read, which set out a logic whereby:

1. The existing approval meets the development standard for FSR as set out in cl 4.4 of the RLEP.

2. The existing approval establishes a building envelope within which the subject DA now seeks to introduce additional gross floor area (and hence FSR).

3. The additional gross floor area is primarily attributable to a new residential apartment - Unit G01 - introduced at the ground level of the proposal, and broadly in a location which was previously configured as basement.

4. Features of the existing approval, specifically its generous ceiling heights, to which the Applicant had previously attributed amenity benefits, are now proposed to be reduced (although remaining compliant) sufficient to introduce a new residential floor level within the same building envelope as defined by the existing approval.

5. The new residential level and the principal quantum of additional gross floor area broadly accord with Unit G01 at ground floor.

6. Unit G01 is situated almost entirely below the existing ground level and towards the rear of the site is between 4 and 5m below this existing ground level.

7. The result is a number of habitable rooms - in particular all three bedrooms of Unit G01 - which derive all outlook, amenity, natural light and natural ventilation from a deep, dark slot situated between the building perimeter and the boundary retaining walls to be constructed within the site.

76. I further accept the Respondent’s submission that the residential amenity able to be derived from these three bedrooms is inadequate, and that the proposal to vary the development standard for FSR does not ‘protect the amenity of residents.’

77. For these reasons, I determine that the Applicant’s cl 4.6 written request to vary the FSR development standard fails since it inconsistent with the objectives of the R3 Medium Density Residential zone.

78. Additionally, my close review of the Revision F plans (Exhibit A) and the habitable bedrooms of the lower two levels Units G01 and 101 indicates that the face of the proposed retaining walls (which must necessarily be constructed entirely within the subject site’s boundary) are situated within 2m of the windows serving these habitable bedrooms. Depending on the final construction methodology and thickness of these retaining walls (and to the south, the thickness of the retained ‘rock blade’), the side-facing windows are likely to come within approximately 1.4-1.6m of the face of the retaining wall. The architectural drawings lack dimensions to determine this separation accurately.

79. I make this point since in their evidence, the planning and urban design experts have generally referred to a nominal 2m separation between the window and the boundary, where in my observation, the physical separation between the proposed windows and the opposing face of the retaining wall will be significantly less than 2m, and serves to further exacerbate the inadequate residential amenity available within these bedrooms.

80. I am satisfied this reasoning addresses Contentions 1, 2 and 3 in favour of the Respondent.

Residential Amenity

81. Turning next to Contention 4 regarding residential amenity, I note that the substance of this contention is already addressed within a number of the findings set out in this judgment, and further contributes to the failure of the Applicant’s cl 4.6 written request. It is not necessary to repeat these in great detail, other than to provide a concise summary.

82. I find that qualitatively, the three bedrooms of Unit G01 deliver very poor amenity in terms of the available outlook, access to natural light, solar access (at any date of the year), and natural ventilation. These bedrooms are significantly constrained by their location towards the rear of the site and situation well below existing ground level.

83. The physical aspect and outlook from each of these bedrooms is into a retaining wall of between 4-5m in height, located within perhaps 1.4-1.6m of the outer face of the building. I accept the submissions of the Respondent, again supported by the evidence of Ms Read, that these bedrooms do not meet a minimum threshold of acceptable amenity for habitable rooms.

84. The evidence offered by Mr Dickson - that the constrained outlook from these rooms might be ameliorated by the introduction of planting - is less persuasive given the fundamental proximity of bedroom windows to what would be very tall retaining walls, and compounded by the lack of suitable growing conditions for any such planting which would be deprived of almost all direct light and offered only a narrow, deep slot into which to deliver daylight.

85. Considering the Design Quality Principles established by SEPP 65, I find that Principles 3, 4 and 6 have not been met by the DA. The detail of these principles are as follows:

Principle 3: Density

Good design achieves a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context.

Appropriate densities are consistent with the area’s existing or projected population. Appropriate densities can be sustained by existing or proposed infrastructure, public transport, access to jobs, community facilities and the environment.

Principle 4: Sustainability

Good design combines positive environmental, social and economic outcomes.

Good sustainable design includes use of natural cross ventilation and sunlight for the amenity and liveability of residents and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. Other elements include recycling and reuse of materials and waste, use of sustainable materials and deep soil zones for groundwater recharge and vegetation.

Principle 6: Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

86. For reasons already articulated in this judgment, I find that inadequate amenity available to the three bedrooms of Unit G01 results in the DA failing to meet the preceding three principles of SEPP 65 as follows:

1. Unit G01 does not achieve a ‘…high level of amenity…’, and given the proposed exceedance of the FSR development standard, the proposal further betrays its failure to justify the resultant density.

2. Unit G01 does not provide an acceptable minimum level of ‘…natural cross ventilation and sunlight for the amenity and liveability of residents and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs.’

3. Unit G01 does not provide an acceptable minimum level of ‘…access to sunlight, natural ventilation, (and) outlook.’

Determination

87. Having found that the Applicant’s written request pursuant to cl 4.6 of the RLEP does not adequately justify the proposed variance of the FSR development standard, and having found that the DA fails merit tests established by the Design Quality Principles of SEPP 65, pursuant to s 39 of the LEC Act, I now move to dismiss the appeal.

Orders

88. The Court orders that:

1. The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Randwick City Council as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA/353/2021 to reflect the architectural plans which form Exhibit A in these proceedings.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application as agreed or assessed.

3. The appeal is dismissed.

4. All exhibits are retained with the exception of exhibits A, D, 3, 4 and 5 which are returned. The exhibits, other than 3, 4, 5, A and D, are returned.

………………………..

M Pullinger

Acting Commissioner of the Court

**********

Decision last updated: 04 July 2022