Land and Environment Court New South Wales Medium Neutral Citation: Gabo v Randwick City Council [2022] NSWLEC 1242 Hearing dates: 20 April 2022 Date of orders: 12 May 2022 Decision date: 12 May 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) the Applicant's written request prepared by aSquare Planning pursuant to cl 4.6 of RLEP to vary the height of buildings development standard in cl 4.3 of RLEP is upheld; (2) the appeal is upheld; (3) Development Application No. 401/2021 for the demolition of the existing structure and construction of two semi-detached dwellings along with Torrens title subdivisions of land and associated landscaping and other works at 417A Maroubra Road, Maroubra, is determined by the grant of consent, subject to the conditions set out in Annexure 'A' to this judgment. (4) the exhibits are returned, except exhibits A, C, 2 and 3. Catchwords: DEVELOPMENT APPLICATION – semi detached dwellings – Torrens title subdivision of land – contentions resolved – consideration of objector submissions – Respondent does not oppose grant of consent – conditions agreed. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7(1) Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, cl 37 Land and Environment Court Act 1979, s 34C Randwick Local Environment Plan 2012, cll 2.3, 4.1, 4.3, 4.4, 4.6, 6.1, 6.2, 6.4, 6.7, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 55 - Remediation of Land, cl 7 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Texts Cited: Randwick Comprehensive Development Control Plan 2013 Category: Principal judgment Parties: David Isakovich Gabo (Applicant) Randwick City Council (Respondent) Representation: Counsel: S Berveling (Solicitor) (Applicant) M Harker (Respondent) Solicitors: V Oh, Boskovitz Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2021/320513 Publication restriction: No Judgment 1. COMMISSIONER: David Isakovich Gabo (the Applicant) has appealed the refusal by Randwick City Council (the Respondent) of his development application 401/2021, made with owner's consent, seeking consent for the demolition of existing structures, and construction of two semi-detached dwellings, Torrens title subdivision of land along with landscaping and associated works (the Proposed Development) at 417A Maroubra Road, Maroubra (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Subject Site, which has its primary frontage to Maroubra Road and a secondary frontage to Hereward Road, is zoned R3 medium density residential under the provisions of cl 2.3 of Randwick Local Environment Plan 2012 (RLEP) and development for the purposes of semi-detached dwellings is permissible in that zone. 4. The Applicant has proposed that the Subject Site, which has an area of 417.5m2 be subdivided into two Torrens title lots as part of its Proposed Development, with the resultant lots being: 1. proposed lot 417c, which would have an area of 220.38m2; and 2. proposed lot 417d, which would have an area of 195.33m2. 1. At the commencement of the hearing: 1. the Parties advised that prior to this hearing, undertaken pursuant to the provisions of s 34C of the Land and Environment Court Act 1979, they had undertaken a site view with their experts to assess potential impacts of the Proposed Development, including in relation to view loss; and 2. the Applicant advised that it had amended its plans and some other documents within its development application and sought to amend its application. The Respondent confirmed that, consistent with the provisions of cl 37 of the Environmental Planning and Assessment Regulation 2021 (formerly cl 55(1) of the Environmental Planning and Assessment Regulation 2000) and as the relevant consent authority for the purposes of that section, it had agreed to the Applicant amending its development application. 1. Noting the advice of the Parties, and the agreement of the Respondent to the Applicant's proposed amendments, the Court directed the Respondent to upload the Applicant's amended development application to the Planning Portal as soon as possible and no later than 7 days following completion of the hearing. The Respondent has confirmed that the amended application was uploaded successfully to the Planning Portal on Thursday 21 April 2022. 2. The Applicant was granted leave by the Court to rely on amended plans and supporting documentation in the hearing, and those amendments included: 1. amended architectural plans, identified as the revision E plans; 2. amended landscaping plans, identified as the revision B plans; 3. an amended written request to vary the height of buildings (HoB) development standard applicable to development on the Subject Site, prepared by aSquare Planning and dated 13 April 2022, which included a suite of view analyses and survey material; 4. an amended traffic and parking assessment prepared by Hemanote Traffic Consultants and dated 23 March 2022; 5. amended BASIX and NatHers certificates in relation ­­the Applicant's amended architectural and landscaping plans and both dated 12 April 2022. 1. The Parties agreed that the Applicant's amended plans: 1. removed a proposed basement car parking level and relaced it with parking at grade within a garage; 2. reduced the height of the Proposed Development; 3. reduced potential impacts of the Proposed Development on views enjoyed from neighbouring properties. 1. As a consequence of the Applicant's amended plans, and mitigation of potential impacts achieved by those plans, the Parties advised that all contentions in the appeal were resolved to their satisfaction and the Respondent confirmed that it did not oppose the grant of conditional consent to the amended application. Notifications and objector submissions 1. Pursuant to the provisions of Part A3 of the Randwick Comprehensive Development Control Plan 2013 (RDCP), the Proposed Development was placed on public exhibition by the Respondent between 13 and 27 July 2021. Thirteen submissions were received in response to that notification. 2. The application was further notified 19 December 2019, following the Applicant's provision of amended plans and ten submissions were received in response to that notification. 3. The Parties confirmed residents' concerns largely related to bulk, scale, overshadowing, view loss, parking and privacy, and they submitted that the Applicant's amendments to the Proposed Development have resulted in a lowering of the building height and a consequential reduction in view loss and any potential overshadowing impacts. Further, the Parties have noted that the design of the balconies in the Proposed Development had been amended to address privacy concerns expressed by residents. 4. At the hearing, the Respondent tendered the written submissions made in response to the notification of the application, and in particular drew the Court's attention to those provided by: 1. Ms Isabelle Paoli, a resident of Hereward Street, whose residence faces the Subject Site, who expressed concern in relation to the scale of the Proposed Development and its potential impact on views enjoyed by her from her residence. She also expressed concern in relation to the adequacy of car parking arrangements in the Proposed Development, and potential impacts in relation to overshadowing and solar access; 2. Ms Patricia Garvie, a resident of a property also facing the Subject Site on Maroubra Road, who expressed concerns in relation to potential view loss from the Proposed Development; 3. Ms Deborah Cooper, a resident of Hereward Street close to the Subject Site, who expressed concerns in relation to the bulk and scale of the Proposed Development, including in relation to its height and setback dimensions, landscaping and potential impacts in relation to overshadowing, and reductions in solar panel efficiency; 4. Mr Brian Hill, on behalf of the owners' committee of a strata plan in the vicinity of the Subject Site on Maroubra Road, and whose submission expressed concerns in relation to the character and height of the Proposed Development, and its potential impacts in relation to traffic, parking, stormwater drainage, and view loss from adjoining properties. 1. I have reviewed the objector submissions, and I am satisfied that the Applicant's amended plans are responsive to matters raised by objectors, including in the manner submitted by the Parties, and identified above (at [12]). Contentions 1. The Respondent advised that on the basis of the Applicant's amended plans and other documents, together with the agreements of the Parties expert planners, all contentions in the appeal were resolved to their satisfaction and subject to conditions. 2. The principal contention in the appeal concerned the height of the Proposed Development and the consequent potential impact of the development on views enjoyed from neighbouring properties. Further contentions concerned: 1. the site coverage of the Proposed Development; 2. the acceptability of the Applicant's proposed landscaping plans; 3. the quantum and configuration of private open space within the Proposed Development; 4. the extent of a wall height within the development; 5. the adequacy of the proposed front and side setbacks of the Proposed Development; 6. various aspects of the design of the Proposed Development in relation to balconies, parking, materials, retention of view lines and privacy; 7. the acceptability of parking arrangements within the Proposed Development; 8. the location and functionality of air conditioning units within the Proposed Developments. 1. The Court was assisted in its consideration of the Parties submissions concerning resolution of contentions by the evidence of the Applicant's expert planner, Ms Jenny Askin. The Respondent confirmed that it did not contest the evidence of Ms Askin and did not seek to call its expert planner to provide evidence at the hearing. 2. Ms Askin, who authored the Applicant's written request pursuant to the provisions of cl 4.6 of RLEP to vary the HoB development standard in cl 4.3 of RLEP, said that: 1. consistent with the Applicant's cl 4.6 written request, the Proposed Development, as amended, had reduced the proposed height of the development which now exceeds the HoB development standard by maximum of 430mm, in relation to which: 1. compliance with the development standard was unreasonable or unnecessary in the circumstances of the case, as the Proposed Development, as amended, achieved the objectives of the HoB development standard in cl 2.3 of RLEP because: 1. the size and scale of the Proposed Development is compatible with the desired future character of the locality noting that the proposed built form of a two-storey dwelling with a third story located within the roof form is consistent with surrounding medium density development in an R3 zone; 2. the Proposed Development is not located within a conservation area or near a heritage item; and 3. the Proposed Development would not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views noting that the position and visual bulk of the Proposed Development will not give rise to loss of privacy or overshadowing, and any view loss impacts would be minor at worst and generally arise as a consequence of compliant building elements; 1. there are sufficient environmental planning grounds to justify contravening the development standard including that the component of the development that exceeds the HoB standard: 1. arises as a consequence of the sloping nature of the Subject Site; 2. is limited to the southern portion of the roof of each of the dwellings; and 3. any potential impacts that arise from the bult form, particularly in relation to view loss, do not arise from that element of the built form that exceeds the standard but from height and front setback compliant elements (see below at par [(2)]); 1. the Proposed Development will be in the public interest because: 1. as already discussed, it achieves, and so is consistent with, the objectives of the HoB standard in cl 4.3 of RLEP; and 2. it is consistent with the objectives for development within the R3 zone in which the development is proposed to be carried out, and in particular it will provide for the housing needs of the community within a medium density residential environment, contribute to the variety of housing types within a medium density residential environment and in its amended form would protect the amenity of residents; 1. in relation to view impacts, Ms Askin noted that view impact analyses undertake from various vantage points within residences overlooking the Subject Site, and provided within the Applicant's cl 4.6 written request, had confirmed that: 1. in relation to the view impacts from vantage points 1 and 2 located at seated and standing points from a living room at Unit 2 of 417B of Maroubra Road, the Proposed Development would have a negligible impact on views from those points; 2. in relation to the view impacts from vantage point 3 located at a standing point within a bedroom at Unit 3 in 417B Maroubra Road, the Proposed Development would have a minor impact on views from that point, and in her assessment the bulk of the views to the ocean from that point would be maintained, and the built form affecting the view arose from a compliant element of the Proposed Development; 3. in relation to the view impacts from vantage point 4 also located from a standing position within a bedroom at Unit 4 in 417B Maroubra Street, the Proposed Development would remove certain views to the ocean from that point but the height of the built form affecting the view would arise from a compliant element of the Proposed Development, and the view could not be maintained; 4. in relation to view impacts from vantage point 8 located from a standing position on a balcony at Unit 5 at 4 Hereward Street, a part of an ocean view would be lost due to an element of the Proposed Development that is compliant with both the HoB development standard and the front setback control in RDCP; 5. in relation to view impacts from vantage point 9 also located from a standing view on a balcony at Unit 5 of 4 Hereward Streety, an element of ocean view would be lost but the horizon view of the ocean is retained and the view of the ocean past the rear of the Proposed Development is also retained, and on balance the view impact would be minor and acceptable; 6. in relation to the view impacts from vantage point 10 also located from standing position on a balcony at Unit 5 of 4 Hereward Street, an element of the ocean view is lost but the horizon view of the ocean is maintained, and the view loss impact would be minor; 7. in relation to the view impacts from vantage point 11 located at a standing location on a balcony at Unit 3 of 4 Hereward Street, any view loss would arise from height and setback compliant elements of the Proposed Development and the view loss impact would be minor; 8. in relation to the view impacts from vantage point 12 also located at a standing position on a balcony of Unit 3 of 4 Hereward Street, any view loss would arise from height and setback compliant elements of the Proposed Development and the view loss impact would be minor. A view of the ocean past the rear of the Proposed Development would be maintained. 1. Having considered the evidence of Ms Askin, I am satisfied that: 1. the impact of the Proposed Development on views from neighbouring properties is acceptable and will be either minor or insignificant with those view losses arising from compliant elements of the development; 2. the Proposed Development achieves the objectives of the HoB development standard, including that would not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk and views. 1. Further, having reviewed the Applicant's written request pursuant to cl 4.6 of RLEP to vary the HoB development standard in cl 2.3 of RLEP, I agree with the submission of the Parties that the request is well founded and should be upheld for reasons provided within the request, noted above at [18(1)], which I adopt. 2. The Parties advised that the remaining contentions in the appeal had been resolved as follows: 1. the Proposed Development, as amended, is compliant with the site coverage control of a maximum of 60% of the area of the Subject Site, as required under section 2.3 of Part C1 of RDCP for lots with an area up to 300m2; 2. the Proposed Development, as amended, is compliant with the landscaping area and width controls within section 2.4 of Part C1 of RDCP; 3. the Proposed Development, as amended, included a reconfiguration of the private open space within the proposed dwelling at 417d of the Subject Site, and all private open space was now compliant with the controls in section 2.5 of Part C1 of RDCP; 4. the Proposed Development, as amended, had provided an amended roof form, including the setting of the upper level of the dwelling within the roof form, and reducing the external wall height, which achieves the objective of control (i) in section 3.2 of RDCP, and so represents a reasonable alternative to the control, consistent with s 4.15(3A) of the EP&A Act; 5. the Proposed Development, as amended, incudes: 1. a compliant front setback that satisfies control (i) in section 3.3.1 of Part C1 in RDCP; and 2. the secondary street frontage setback is also largely compliant with control (ii) in section 3.31 of Part C1 in RDCP other than for a small exceedance in relation to the 417d dwelling, which nevertheless achieves the objective of the control and so represents a feasible alternative to the control consistent with the provisions of s 4.15(3A) of the EP&A Act; 1. the design of the Proposed Development, as amended, was assessed by the Parties' expert planners, including Ms Askin, who confirmed that: 1. the design of the balconies has been revised and was acceptable, and the provision of privacy screens, as required, had been included as an agreed condition of consent; 2. a previous proposal for basement car parking had been removed and parking was now proposed at ground level; 3. the architectural interface of the Proposed Development including the 417d dwelling with Hereward Road had been resolved in the amended architectural plans that had improved connectivity of the development with the street; 4. the materials palette had been revised and that present in amended plan DA19 was now acceptable; 5. all privacy and potential view impacts had been resolved to the extent required, and to the degree possible, within the context of compliant built form elements; 1. the Applicant's proposed parking arrangements within its Proposed Development, as amended, had been assessed by the parties' traffic engineers who were satisfied that these were now compliant with the relevant provisions of Australian Standard AS 2890. 2. the location and performance of externally located air conditioning units had been assessed as acceptable; and 3. the Applicant has provided a BASIX certificate no. 969831M_05 dated 12 April 2022, in satisfaction of the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, 1. The Parties also confirmed, and I am satisfied, that the following further relevant statutory development standards and controls had been satisfied as follows: 1. in relation to the provisions of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) (incorporating the provisions of cl 7 of the former and now repealed State Environmental Planning Policy No. 55 - Remediation of Land), the Parties have advised that the Subject Site has only been used for residential purposes, and as the Applicant has proposed a continuation of residential use on the Subject Site, the requirements of SEPP R&H cl 4.6 are satisfied; 2. regard has been given to the objectives of the R3 medium density zone in the resolution of contentions in the appeal, including in the context of the Applicant's cl 4.6 written request to vary the HoB development standard in cl 4.3 of RLEP; 3. the Subject Site is not subject to a minimum lot size development standard under cl 4.1 of RLEP, and because the Proposed Development is for a pair of semi-detached dwellings, the provisions of cl 4.1B in relation to exceptions to minimum subdivision lot size in Zone R3, and which might otherwise require a minimum lot size of 325m2, do not apply to Proposed Development, as amended; 4. the Subject Site is not subject to a floor space ratio (FSR) development standard pursuant to the provisions of cl 4.4(2B) of RLEP which provides that there is no maximum FSR applicable for semi-detached dwellings on lots with an area less than 300m2, which is the case in relation to the Proposed Development; 5. in relation to the provisions of cl 6.1 of RLEP concerning acid sulfate soils (ASS), the Subject Site is mapped as containing class 5 ASS, and the Parties' experts have agreed that the Applicant's plans do not propose earthworks which would lower the water table to within 500mm of Classes 1-4 land below 5m AHD, and so the Parties agree that the provisions of cl 6.1 are not engaged and an ASS Management Plan is not required; 6. in relation to cl 6.2 of RLEP concerning 'Earthworks', the Proposed Development includes some proposed excavation of the Subject Site and the Parties agree, and I am satisfied that those matters arising in clause 6.2(3) have been considered as part of the assessment of the Final Plans, noting that: 1. the proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of the neighbouring uses; 2. the extent of excavation is limited to an area in the centre of the Subject Site with considerable setbacks to adjoining properties; 3. these matters are also subject to proposed conditions of consent; and 1. clause 6.4 of RLEP concerns stormwater management, and: 1. subclause 6.4(3) requires that the consent authority, or the Court on appeal, must not grant consent unless it is satisfied that the Proposed Development, as amended: 1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and 2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and 3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact; and 1. the Parties have advised that Proposed Development incorporates appropriate measures to manage stormwater as addressed by the Stormwater Plans prepared by Water Design Civil Engineers dated 31 May 2021, (Stormwater Documents), including: 1. the Stormwater Documents provide details about the provision of on-site detention of stormwater on the Subject Site; 2. permeable areas have been included within the Proposed Development to allow for further on-site collection and detention of stormwater; 3. a sediment control plan to further mitigate the potential impact of stormwater runoff and to facilitate protection of the environment; and 4. the provision of a rainwater tank which would minimise and mitigate adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters; and 1. the Parties have provided a letter from Mr Paul O'Sullivan, Development Engineer from Randwick City Council, conforming that the Proposed Development, as amended, has satisfied the above requirements of cl 6.4(3) of RLEP; 1. clause 6.7 of RLEP concerns foreshore scenic protection areas, and: 1. subclause 6.7(3) requires that development consent must not be granted for development on land to which the clause applies unless the consent authority, or Court on appeal, is satisfied that the Proposed Development: 1. is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas; and 2. contributes to the scenic quality of the coastal foreshore; and 1. in her oral evidence at the hearing, the Applicant's expert planner Ms Jenny Askin confirmed, and the Respondent agreed, that in her assessment, the Proposed Development, as amended, satisfied the provisions of subcl 6.7(3) of RLEP; 1. clause 6.10 of RLEP concerning essential services and: 1. the clause requires that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available, or that adequate arrangements have been made to make them available when required: 1. the supply of water, 2. the supply of electricity, 3. the disposal and management of sewage, 4. stormwater drainage or on-site conservation, 5. suitable vehicular access; and 1. the Parties have confirmed their agreement that they are satisfied that the essential services specified in cl 6.10 of RLEP are available in relation to the Proposed Development, as amended: 1. noting that the Subject Site is currently used for residential purposes and already benefits from the use of the required essential services; and 2. in relation to suitable vehicular access which had been addressed within the Applicant's traffic study that accompanied its Class 1 application tendered as evidence at the hearing; 1. in relation to the provisions of RDCP, the Parties have confirmed, and I am satisfied, that: 1. the Proposed Development, as amended, complies with the relevant provisions of RDCP; or 2. the Proposed Development, as amended, represents a reasonable alternative solution that achieves the objectives of the controls in RDCP, and so merits the application of flexibility as provided under the provisions of s 4.15(3A) of the EP&A Act; Conditions 1. The Parties' have confirmed that all conditions to be imposed with the grant of consent have been agreed and they advise that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EP&A Act and relevant legal principles as they, inter alia, are responsive to the contentions raised by Council and to the evidence of the experts and residents. Conclusions 1. As all contentions in this appeal are resolved, and all jurisdictional requirements are satisfied, the Court is able to make final orders to dispose of the appeal. Orders 1. The Court orders: 1. the Applicant's written request prepared by aSquare Planning pursuant to cl 4.6 of RLEP to vary the height of buildings development standard in cl 4.3 of RLEP is upheld; 2. the appeal is upheld; 3. Development Application No. 401/2021 for the demolition of the existing structure and construction of two semi-detached dwellings along with Torrens title subdivisions of land and associated landscaping and other works at 417A Maroubra Road, Maroubra, is determined by the grant of consent, subject to the conditions set out in Annexure 'A' to this judgment. 4. the exhibits are returned, except exhibits A, C, 2 and 3. M Chilcott Commissioner of the Court Annexure A (477474, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2022