Land and Environment Court of New South Wales CITATION : Architectus Sydney Pty Limited v Randwick City Council [2004] NSWLEC 450 revised - 18/08/2004 APPLICANT: PARTIES : Architectus Sydney Pty Limited RESPONDENT: Randwick City Council FILE NUMBER(S) : 11593 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Whether the objection under SEPP 1 regarding the non-compliance with the building height requirements of the RLEP is well founded - Whether the bulk form scale and design of the proposed building will have an adverse impact on the visual amenity of the surrounding locality and streetscape - Whether the proposal is of good design having regard to the design quality principles contained in SEPP65. LEGISLATION CITED: Randwick Local Environmental Plan 1998, (RLEP) - Randwick Development Control Plan - Parking, (PDCP) - State Environmental Planning Policy No 65 - Residential Flat Buildings, (SEPP 65) - State Environmental Planning Policy No 1 - Development standards, (SEPP1) - Environmental Planning and Assessment Act ss 79C and 97 CASES CITED: Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) DATES OF HEARING: 12/08/2004, 13/08/2004 DATE OF JUDGMENT: 08/18/2004 APPLICANT: Dr S Berveling, barrister, instructed by Mr J Lloyd, solicitor SOLICITORS: John Lloyd & Co LEGAL REPRESENTATIVES: RESPONDENT: Mr A Pickles, barrister, instructed by Ms A Bowen, solicitor SOLICITORS: Bowen and Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 18 August 2004 11593 of 2003 Architectus Sydney Pty Limited v Randwick City Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Randwick City Council (the council) of a development application to demolish two existing, detached dwellings, to erect a mixed-use commercial/ residential building with basement car parking, and to strata subdivide, at Lot 1 in DP 90871 and Lot 284 in DP 752015 being Nos 1599-1601 Anzac Parade, La Perouse. 2 I visited the land in company with the parties on the morning of the first day of the hearing and heard from various witnesses. 3 I have concluded that the height, bulk and scale of the proposal would be inappropriate in its context and the SEPP1 objection to height is not well founded and as a result the application fails under s 79C of the Environmental Planning and Assessment Act 1979. The land 4 The land is situated on the northern side of the circular terminus of Anzac Parade on the La Perouse Peninsula, at the intersection of Anzac Parade and Goorawahl Avenue. The land is irregular in shape, having a total site area of 1,346.8m2. 5 Erected on the land are two detached dwelling houses, both of which have vehicular access across the northern boundary onto Goorawahl Avenue. At No 1599 Anzac Parade there is a single-storey brick dwelling, while at No 1601 Anzac Parade there is a two-storey brick dwelling. Ancillary structures including carport, garage and shed are located to the north of the dwellings. The land falls from the northeast to the southwest about 2m. These are shown in the survey plan prepared by Harrison Friedmann & Associates Pty Limited drawing No 22372DT in Exhibit 12. 6 To the north the vicinity is generally characterised by detached residential dwellings. A single-storey heritage-listed bungalow is at No 27 Goorawahl Avenue located directly opposite the subject land across Goorawahl Avenue. The floor level of this dwelling is 17.18m AHD and estimated eye height of a person standing on that floor is 18.78m AHD. No 1597 Goorawahl Avenue is to the east of No 27. It is a split level brick dwelling with a floor level at 18.29m and estimated eye height of a person standing on that floor is 19.89m AHD. 7 Abutting the subject land to the west is a two-storey building being No 1603 Anzac Parade, which contains a restaurant 'The Tandoori Paradise' at ground floor level with residential units located at first floor level. The roof level of this building is 17.89m. Further to the west in Anzac Parade is No 1605 which is a three-storey brick building with skillion roofs at around 18.65m AHD incorporating 'Danny's Restaurant' and residential accommodation. Botany Bay National Park is located to the south of the land and there are views towards Botany Bay. Relevant planning controls Randwick Local Environmental Plan 1998, (RLEP) 7 The land is zoned 3B (Local Business Zone) under the RLEP. The proposed use as a mixed commercial/ residential building is permissible with consent. Multi-unit housing is prohibited "…other than dwellings attached to building involved in other uses which are permissible in this zone," [Note: Exhibit 8 p 16]. 8 Clause 9 of the RLEP states that the council may only grant consent for development that is, "…consistent with the general aims of this plan and the specific objectives of the zone within which the development is proposed." 9 Clause 14 of the RLEP provides the objectives for the '3B' zone: (a) To provide opportunities for local retail and business development in the City of Randwick, and (b) To provide opportunities for associated development such as car parking, service industries and the like, and (c) To provide opportunities for residential accommodation in the local business centres where does not interfere with the primary business function of the zone, and (d) To minimise the impact of development on adjoining and nearby residential zones. 11 With regard to the current proposal, the LEP contains the following relevant clauses: · Clause No 14 - Zone 3B (Local Business Zone) Clause No 32 - Floor Space Ratio; · Clause No 33 - Building Height; · Clause No 29 -- Foreshore Scenic Protection Area; and · Clause No 46 - Vicinity of Heritage Item. 12 Under cl 49 of the RLEP the definition of gross floor area, (GFA) is: …gross floor area near is the son of the areas of each level of a building where the area of each level is taken to be the area are within the interface of the external enclosing walls and the area of any attic measured at 2.1 metres above the floor level of the attic excluding: (a) Columns, fin walls, shading devices, awnings, balconies, and any other elements, projections or works outside the general lines of the outer face of the external wall, and (b) Lift towers, cooling towers, machinery and plant rooms, and air-conditioning ducts, and (c) Associated car parking and any internal beta all pedestrian access to that parking (to ground level), and (d) Space for the loading and unloading of goods. 13 This definition was amended on 9 May 2003, by RLEP Amendment 23 to exclude the thickness of the external enclosing wall and is thus different from the model provisions definition of the same name. Thus the RLEP definition of GFA is more akin to a net floor area than gross. The decision in respect of No 1605 Anzac Parade, was made when the definition of GFA included external wall thicknesses. So it is difficult to make a comparison in relation to the bulk in terms of FSR of the proposal and that of No 1605 Anzac Parade. 14 Clause 33(5) of the RLEP provides that: "The maximum building height for buildings within Zone 3A or 3B are shown by distinctive shading on the map." The abovementioned map, describes the building height standard as 9 metres. 15 The purpose of cl 33 is stated as: …to set upper limits for the height of buildings in residential and business zones that are consistent with the redevelopment potential of land in those zones given other development restrictions, such as floor space and landscaping, and have regard for the amenity of surrounding areas. 16 Clause 49 of the LEP contains the definitions, including a definition of: …building height means the vertical distance from the highest point on the building to the ground level and includes ancillary services, installations and works (including works to conceal and integrate services) unless the Council is satisfied that they will not adversely affect the amenity of adjoining or nearby land. Randwick Development Control Plan – Parking, (PDCP) 10 The PDCP applies to the land. State Environmental Planning Policy No 1 – Development Standards, (SEPP1) 20 SEPP1 was gazetted 17 October 1980, and under cl 3: This policy provides flexibility in the application of planning controls operating by virtue of a development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 19 The applicant lodged a SEPP1 objection to cl 33 - Building Height under the RLEP, to the maximum building height. State Environmental Planning Policy No 65 - Residential Flat Buildings, (SEPP 65) 11 The proposed development is also subject to the provisions of SEPP65. The proposal and its history 12 Development application No 891/03/GG was lodged with the respondent council on 29 September 2003, to erect a mixed commercial/ residential development comprising originally twelve (12), residential apartments and amended to eleven (11), originally three (3) commercial tenancies, amended to two (2), at the ground level and parking for thirty-six (36) cars, including 3 visitors' cars, 12 commercial cars and 21 residential cars, on the subject land. 13 The proposal is described in plans prepared by Architectus Sydney Pty Limited [Architecture, Urban Design, Planning, and Interior Architecture] and numbered DA-01, Issue D, DA–02 and DA-03, both Issue E, all dated 7 June 2004; DA–04 Issue E, dated 30 July 2004; DA-05 Issue D and DA-06, Issue D, dated 7 June 2004; DA-07, Issue B, DA-08, Issue C, DA-09 and DA-10, both Issue D, dated 7 June 2004, all in Exhibit A; and Site Analysis plan DA-11, Issue A, and stamped received by the Court 22 December 2004, in Exhibit 12; Landscape Plans LA01 and LA02, both Revision B, dated received 6 August, 2004 and prepared by Taylor Brammer Landscape Architects in Exhibit C. 23 The proposal comprises two separate buildings. The first is a two-storey 'townhouse' style apartment building on the north and northeastern frontages of the land, comprising Units 10, 11 and 12, with their own separate street entrances. The second is a stepped three-storey/ four-storey residential flat building on the south and southeastern frontages of the land above two commercial units. A central courtyard separates the buildings. 14 With one three bedroom apartment deleted the amended application included: · Seven (7) x two bedroom units; · One (1) x two bedroom plus study unit; and · Three (3) x three bedroom units. 15 Apartments No 3, 4, 7 and 8 are served by a lift from the car parking levels, allowing for adaptable use for persons with a disability. Proposed behind the commercial spaces Nos 1 and 2 there are residential car parking spaces, however, none is specifically marked for people with a disability. 16 Apartment No 12 is planned as a home/ office with the office on the first floor level at 14.2m AHD (ground level to Goorawahl Avenue). 27 A pre-lodgment meeting for the proposed development was held with the council's development control officers on 28 July 2003 and the pre-lodgment application was referred to the meeting of Council's Design Review Panel on 1 September 2003. The Panel commented positively on the proposal even in its 1.23:1 FSR configuration. 28 There was dispute as to the extent of the breach of the 9m-height standard. Mr Sanders, consultant town planner for the council, contended that the proposal would exceed the 9m maximum height standard along the eastern elevation with a height of about 10.32m maximum, excluding the lift over-run and skylights, and along the western elevation with a height of about 9.8m maximum and along the southern elevation with a height of about 11m, excluding the lift over-run. 29 A joint conference was held on Monday, 9 August 2004 to discuss the extent of the breach of the 9m standard. For the purposes of the SEPP 1 objection, the maximum height calculated by Mr Sanders was adopted. 30 Both parties agreed that the proposal as amended in the plans in Exhibit A would comply with the 1:1 FSR under the RLEP definition of gross floor area GFA as amended by Amendment 23. Thus, there is no need of a SEPP1 objection in respect of FSR. Notification 31 The application was notified to nearby owners and occupants for a period of 14 days and the council received twenty-one (21) submissions. Concerns of the local residents included, [Note: Exhibit 15]. · elevation at the Anzac Parade and Goorawahl Avenue corner out of character; · the size, bulk and height of the proposal, particularly at that corner, would affect the sense of arrival and of place to the historic La Perouse area; · a much 'softer' visually impactive building would be preferable to a 'boat shed' building with a facade not in keeping with the historical area; · the height looking towards the north from the park would be conspicuous; · nature of the design and balconies would present as a dominant feature; · proposal would constitute a significant change to the area; · proposal represents a modern building of bulk and colour which only serves to block out the historical significance of the area; · 'butter box' design likened to 'Green Square' which should not be reproduced at La Perouse; · effect on the historical significance of the area; · trees would be replaced with a solid building; · SEPP65 Review Panel did not consider the social impact of the proposed development and the consequential effect to the historical significance of the area; · the Aboriginal people's connection to the land should be recognised; · necessity to maintain and respect the historical significance of the area; · what is proposed here is an 'eye sore'; · 'paradise' going down the drain; · any development must blend in with the area; · residents of the proposal might want to close in the balconies against strong southerlies, creating a different look and bulkier building; · the photomontage is 'deceiving' in relation to the height, bulk and scale of the proposal; · there is a long and proud tradition of the Aboriginal people connected to the lands in and around the proposed site, and the proposal would be 'culturally insignificant'; · carbon monoxide and that poisonous gas blowing into the surrounding residential area from basement; and · view loss by the proposal; · problems of parking congestion and traffic movements in the residential streets, particularly Goorawahl Avenue and there is a major of child safety concern. 32 The application was also referred to Council's Design Review Panel as required under the provisions of SEPP65. The Panel considered the application on 10 November 2003, and concluded: Generally this is a good application. Panel believes that subject to minor amendments this proposal should progress to its subsequent stages. 33 The Panel did not comment on Principles 8 and 10 (Safety & Security and Aesthetics respectively). 34 On 16 December 2003, the council considered a report that recommended approval of the development application, subject to deferred commencement conditions. The council did not adopt the recommendation and refused the application for reason that: a) The bulk, form, scale, design and aesthetics of the proposed building would detrimentally affect the character and amenity of the surrounding locality and streetscape, pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (as amended). b) Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (as amended), the proposal fails to comply with the maximum building height for the site as contained in Clause 33(5) of the Randwick Local Environmental Plan 1998. c) Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (as amended), the proposal fails to comply with the maximum floor space ratio for the site as contained in Clause 32(3) of the Randwick Local Environmental Plan 1998. d) Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (as amended), the proposal is considered unsatisfactory in relation to the provisions of Clause 46 of the Randwick Local Environmental Plan 1998 - Development in the vicinity of heritage items, heritage conservation areas and potential archaeological sites. e) Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (as amended), the proposal would cause detrimental overshadowing of public places. f) Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (as amended), the proposal would increase traffic to the detriment of the residential amenity of Goorawahl Avenue. g) Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (as amended), the proposal represents an overdevelopment of the site. 35 A s 82A review of the application was incomplete when the appeal was filed. 36 The plans were amended on 8 June 2004, prior to the hearing to: · Delete one residential unit. Total number of residential units reduced from 12 to 11; · Delete one commercial unit reducing to two the number of commercial units from 3; · Delete storage area from basement; and · Reduce the overall floor area of proposal. The hearing 37 The appeal was filed on 22 December 2003. Court-appointed experts were Mr C Hallam, traffic and Mr R Staas, heritage. 38 At the hearing the court heard evidence on behalf of the respondent council from Mr H M Sanders, town planner. 39 On behalf of the applicant Mr A Moody, town planner, Mr N Dickson, architect and urban design consultant, and Mr G Brooks, heritage consultant gave evidence. 40 The Guriwal Aboriginal Corporation, Botany Bay, and the La Perouse Local Aboriginal Land Council, sent letters to the Court, opposing the application. [Note: Exhibit 6]. 41 Present on the site inspection were: · Dr. S. Bervelling instructed by John Lloyd representing the applicant; · Mr. A. Pickles instructed by Ann Bowen of Bowen & Gerathy representing the respondent; · Mr. N. Dickson, Mr. G. Brooks and Mr. T. Moody experts for the applicant; · Mr. H. Sanders expert for the respondent; · Court-appointed experts were Messrs. R. Staas and C. Hallam; · Residents were represented by: · Norma Simms (Aboriginal Elder) – La Perouse Aboriginal Mission (together with other representatives from the Mission); · Clifford Ryan of Guriwal Aboriginal Corporation; · Adrian Hanson of La Perouse Local Aboriginal Land Corporation; · Charles Abela of La Perouse Precinct Committee, 1587 Anzac Parade; · Carol Abela, President of La Parouse Precinct Committee, 1587 Anzac Parade; · David Anderson, 28 Goorawahl Avenue; · Norman Hobson, 1597 Anzac Parade; · June Hobson, 1597 Anzac Parade; · Ms Spillane, 1597 Anzac Parade; · Gary Davis, 27 Goorawahl Avenue; · Gary Peters, 15 Goorawahl Avenue; · Patricia Conway, 22 Goorawahl Avenue; · Gail Tring, 11 Grose Avenue, Little Bay; · Edward Taylor, 5 Endeavour Avenue; · Michael Nikolaidis, 11 Goorawahl Avenue; · Greg Bond, 5 Bunda Crescent, Little Bay; · Bella Glenny, 10 Goorawahl Avenue; · Glen Blaxland, 3 Endeavour Avenue; · Carol Dennett, 1593 Anzac Parade; · Margaret Crain, 8 Goorawahl Avenue; · Maurice Hume, 26 Goorawahl Avenue; · June Hume, 26 Goorawahl Avenue; · Stephen Fisher, 28 Goorawahl Avenue; · Judith Tuggle, 83 Little Bay Road; · Claude Stubley, 9 Goorawahl Avenue; · Betty Stubley, 9 Goorawahl Avenue; · David Seelin, 84 Austral Street, Malabar; · Rebecca Coutts, 24 Goorawahl Avenue; · Mark Bowman (Bondi Junction); · Edward Moice, 19 Goorawahl Avenue; · Paul Cooper, 18 Goorawahl Avenue; · Lynda Newman, 15 Goorawahl Avenue; and · Councillor Robert Bellelli. The issues 17 On 25 June 2004 the council filed a statement of issues. 1. Whether the bulk, form, scale, design and aesthetics of the proposed building will have an adverse impact on the historic character of the surrounding locality and streetscape. 2. Whether the bulk, form, scale, design and aesthetics of the proposed building will have an adverse impact on the visual amenity of the surrounding locality and streetscape. 3. Whether the proposal will adversely impact on the heritage significance of the heritage items in Botany Bay National Park Conservation Area having regard to Clause 46 of the Randwick Local Environmental Plan 1998 - Development in the vicinity of heritage items, heritage conservation areas and potential archaeological sites. Particulars: The site of the proposed development is located at 1599-1601 Anzac Parade, La Perouse. 4. Whether the proposal will adversely impact on the heritage significance of the heritage items at No 27 Goorawahl Avenue, La Perouse having regard to Clause 46 of the Randwick Local Environmental Plan 1998- Development in the vicinity of heritage items, heritage conservation areas and potential archaeological sites. Particulars: The site of the proposed development is located at 1599-1601 Anzac Parade, La Perouse. 5. Whether the objection pursuant to State Environmental Planning Policy No 1 regarding the non-compliance with Clause 33(5) (building height) of the Randwick Local Environmental Plan 1998 is well founded. Particulars The proposal exceeds the maximum height for buildings of 9m under Clause 33(5) of the Randwick Local Environmental Plan 1998 along the eastern elevation (10.32m maximum approximately, excluding the lift over-run and skylights), along the western elevation (9.8m maximum approximately) and along the southern elevation (11 m approximately, excluding the lift over-run). 6. Whether the objection pursuant to State Environmental Planning Policy No. 1 regarding the non-compliance with Clause 32 (2) (floor space ratio) of the Randwick Local Environmental Plan 1998 is well founded. Particulars The proposal has a floor space ratio (FSR) of 1.23:1 and therefore exceeds the maximum FSR of 1:1 under Clause 32 (3) of the Randwick Local Environmental Plan 1998. 7. Whether the proposal is an overdevelopment of the site given the proposal exceeds the maximum permissible FSR and height requirements. 8. Whether the proposal will result in increased overshadowing of the Botany Bay National Park to the south of the subject site. 9. Whether the proposal will result in an increase in traffic and associated noise and safety impacts to the detriment of the amenity of residential properties in Goorawahl Avenue and whether the proposal for tandem parking is satisfactory. 10. Whether the proposal is of good design having regard to the design quality principles contained in State Environmental Planning Policy No 65. Particulars (a) The proposal does not respond or contribute to its context as required under State Environmental Planning Policy No. 65 Design Principle 1: Context. (b) The proposal does not provide an appropriate scale in terms of its bulk and height so as to suit the scale of the street and surrounding buildings as required under State Environmental Planning Policy No 65 Design Principle 2: Scale. (c) The proposal does not provide adequate storage as required to optimise amenity under State Environmental Planning Policy No 65 Principle 7. Amenity. 43 The applicant amended the plans to delete one of the proposed dwellings, to reduce the FSR to 1:1 and salient issues were: (i) Whether the objection under SEPP1 regarding the non-compliance with the building height requirements of the RLEP is well founded. (ii) Whether the bulk, form, scale and design of the proposed building will have an adverse impact on the visual amenity of the surrounding locality and streetscape. (iii) Whether the proposal is of good design having regard to the design quality principles contained in SEPP65. The evidence and findings Whether the objection under SEPP1 regarding the non-compliance with the building height requirements of the RLEP is well founded 44 Mr Moody, town planner for the applicant, supported the SEPP1 objection on the following grounds: The redistribution of the heights (within the allowable FSR control) responds to the site context and surrounding development. In addition, the proposed heights will improve the amenity of future occupants of the development and decrease the impact on adjoining properties. 45 Mr Sanders did not support the objection for reason that the proposed breach of the maximum height especially in the southeastern corner of the proposal would be inappropriate. 46 I have considered the SEPP1 objection to the 9m-maximum height standard of the RLEP in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 – 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported): …it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 47 Taking each question posed by his Honour Lloyd J and answering it: 48 First, the maximum height control under cl 33 the RLEP is a development standard. There was no dispute between the parties in this regard. 49 Second, the underlying object or purpose of the standard is to: …to set upper limits for the height of buildings in residential and business zones that are consistent with the redevelopment potential of land in those zones given other development restrictions, such as floor space and landscaping, and have regard for the amenity of surrounding areas. 50 Third, compliance with the development standard of 9m-maximum height would be consistent with the aims of the Policy, and compliance with the development standard would not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act. The proposal for a commercial/ residential mixed-use development with, on the ground floor, Commercial Space No 1 of 40.35m2 and Commercial Space No 2 of 55.75m2, which combined comprise around 7% of the gross floor area, GFA would mean that only a small proportion of the total GFA would be for commercial uses. In a neighbourhood business-shopping strip such as that in the 3B zone, it would be reasonable to expect a much higher proportion of the GFA as commercial than proposed. The fact that the applicant has chosen to provide such a small proportion of the GFA as commercial and a relatively large proportion of residential has made more difficult, for the applicant, to comply with the height limit. For instance, were 50% of the ground floor given over to commercial/ retail and 50% to residential the maximum height could more easily be achieved with 0.5:1 FSR in residential over a podium of commercial. The proposed building form with mainly residential apartments militates against complying with the height standard. 51 Another factor, which militates against the applicant being able to comply with the 9m-maximum height standard is the measurement of GFA. Under the model provisions definition of GFA, the area of the external wall of the proposal would be included. Under Amendment 23 to the RLEP, gazetted 6 June 2003, the council's changed definition of GFA, in the RLEP, would exclude from calculations the external enclosing wall. That change adds considerably to the bulk of any building for a given FSR. Without including the re-entrant parts of the external enclosing wall, Mr Dickson calculated the total area of the external wall of the proposal as 113m2 or 8.42% of the GFA. By way of comparison the area of the top floor of Apartment No 7, which is the fourth storey in the development, is 79.75m2 in area. In effect, the change in the method of calculating the GFA means that the applicant is required to squeeze more building bulk into the permissible building envelope defined by a 9m-maximum building height. Thus, the applicant's task of complying with the applicable standards of height and FSR is made more difficult. 52 There appears to be an inherent conflict in the planning controls, if approval is sought for a predominantly residential development on the land. That conflict might mean that the applicant cannot achieve the maximum FSR, measured under the new method, and comply with the 9m-maximum height control. There is no reason given that the applicant cannot comply with the 9m-maximum height limit. There are no special considerations given to justify a breach of the height limit. 53 Fourth, I am satisfied on the evidence of Mr Sanders, that compliance with the 9m-maximum height development standard would not be unreasonable or unnecessary in the circumstances of the case. A development, which complies, with the development standard would be likely to provide a better transition between the open space to the east by eliminating the fourth level, being the top floor of Apartment No 7. Also, if the views of residents to the north of the land had been taken into account it might have been possible to provide for greater preservation of those views over the top of any development. This fact is born out by the small top part of the proposal blocking distant views from Nos 27 and 1597 Goorawahl Avenue. The removal of the skylights and parapets might be sufficient to achieve that end. 54 Fifth, I am satisfied that the objection is not well founded. 55 Consequently, the application must fail, as the 9m-maximum height standard would be infringed and compliance with that standard is not unreasonable or unnecessary in the particular circumstances of the case. I dismiss the objection. 56 Although it is not necessary for me to consider the application any further, I have considered the other remaining key issues. Whether the bulk, form, scale and design of the proposed building will have an adverse impact on the visual amenity of the surrounding locality and streetscape 57 The council was concerned that the proposal would have an adverse impact on adjoining heritage items and the Heritage Conservation Area, and on the surrounding locality and streetscape. Mr Sanders of the opinion that the proposal would be of a built form that would not appropriately respond to the visual context of the surrounding streetscapes and locality, and that the bulk, form, scale and design of the proposal would not contribute to an attractive visual environment and would not be compatible with nearby development. 58 He prepared a drawing to show the extent of the height infringement on the southern elevation, [Note: Exhibit 2 Figure 5]. The breach, he pointed out, would be in the range of between 0.5m and 2.8m. He noted that there were no four-storey buildings in the 3B zone, in the vicinity. He was satisfied despite this not being specifically stated, that the purpose of the 9m-maximum height control was to provide for buildings of no more than three-storeys. 59 On the site inspection and with reference to the planning report on No 1605 Anzac Parade, it was revealed that the commercial/ residential development of that site would largely comply with a three-storey limit and result in a development of 1:1 FSR. This was under the old method of calculating GFA. The GFA of No 1605 under the new definition would be less than 1:1. 60 Mr Sanders considered in principle that the form of the proposal was 'potentially acceptable', however, he considered, that the fourth storey element in the southeastern corner should be deleted in order to provide an acceptable visual outcome, [Note: Exhibit 2 p 7]. 61 Mr Moody, on the other hand, supported the breach in height on the basis that the proposal complied with the 1:1 FSR standard, the higher building in the southeastern corner provides 'definition' and marks an entry point to the commercial precinct fronting Anzac Parade. He also pointed to the fact that the council officer's supported the application and the SEPP65 Design Review Panel supported the height breach. 62 I accept Mr Sander's evidence and I consider the proposal to be of an inappropriate height bulk and scale and as a result I refuse the application for this reason. 63 Were a compliant design being formulated, I would expect that every effort be made to comply with the 9m-maximum height limit along Anzac Parade and for the height of the southern and northern wings towards the western boundary to be lowered slightly in order to protect the standing person's view-corridor over the top of the proposal from No 1597 Goorawahl Avenue. The eye-height of a person standing in the dining room of that dwelling was calculated to be 19.89m AHD. With a small adjustment to the height of the parapet of the southern building that view line might be retained. It is noted that the view line from both No 1597 and 27 Goorawahl Avenue was not shown in the site analysis, [Note: Exhibit 12, drawing No DA11 Issue A]. It is noted that the building at No 1603 complies with the 9m–height limit. Views of water and land over that building were possible from No 1597 Goorawahl Avenue from a standing position. Those views should be retained if possible. Whether the proposal is of good design having regard to the design quality principles contained in SEPP65 64 Mr Sanders was of the opinion that the SEPP65 Design Review Panel had given insufficient consideration to the design principles of context, scale, and amenity. 65 Mr Sanders was of the opinion that the height of the proposal on the southern part of the land, fronting Anzac Parade, would be excessive when compared to the height and form of other neighbouring developments, which are located within the same Zone B3 (Local Business Zone). 66 Mr Moody referred to the comments of the SEPP65 Design Review Panel that, [Note: Exhibit E p 13]: The proposed design fits the context in an excellent manner and that the marking of the corner at the eastern edge of the site with a high building and reducing heights towards the western end of the site in an excellent contextual solution. The Panel considered that the lower scale to the rear of the site would be an appropriate transition to existing nearby houses. 67 The proposal does not fit the 9m-height limit for most of the southern façade as is shown in Mr Sander's Figure 5, [Note: Exhibit 2 p 6]. It does not comply at the eastern or western ends of that facade. I am satisfied that it would make a better fit were it to comply in height for the full extent of the southern façade. I am also satisfied that were it to comply in height, the scale would be appropriate, and it would be in context, and the complimentary comments of the Design Review Panel could equally apply provided the design were architecturally well considered. If it were to comply in height, I am satisfied, in terms of amenity, it would present better in the historical context, better meet the concerns of many of the local residents, and be of good design. 68 For the above reasons, the appeal is dismissed. Orders 69 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed. 2. The State Environmental Planning Policy No 1 objection to the 9m-maximum height standard under cl 33 of the Randwick Local Environmental Plan 1998, is not upheld. 3. Development application No 891/03/GG lodged with the respondent council on 29 September 2003, to erect a mixed commercial/ residential development comprising eleven (11), (originally twelve (12)), residential apartments, two (2) commercial tenancies (originally three (3)) at ground level and parking for thirty-six (36) cars, including 3 visitors' cars, 12 commercial cars and 21 residential cars at Lot 1 in DP 90871 and Lot 284 in DP 752015 being Nos 1599-1601 Anzac Parade, La Perouse, is refused development consent. 4. The exhibits with the exception of Exhibits A, B, C, D, 9 and 15 are returned. S J Watts Commissioner of the Court sw 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.