Vanimo Pty Limited and Blackbutt Estate Pty Limited v Randwick City Council [2004] NSWLEC 353

Land and Environment Court of New South Wales

CITATION : Vanimo Pty Limited and Blackbutt Estate Pty Limited v Randwick City Council [2004] NSWLEC 353 APPLICANT PARTIES : Vanimo Pty Limited and Blackbutt Estate Pty Limited RESPONDENT Randwick City Council FILE NUMBER(S) : 10182 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Compatibility of height bulk and scale - Overdevelopment of the site. LEGISLATION CITED: Randwick Local Environmental Plan 1998, (RLEP) - Randwick Development Control Plan - Parking 1998, (PDCP) - Randwick Development Control Plan - Multi-Unit Housing 2000, (MUDCP) - SEPP No 55 - Remediation of land, (SEPP55) - SEPP No 65 - Design Quality of Residential Flat Development and the Residential Flat Design Code, (SEPP65) - SEPP No 66 - Integration of transport and land use, (SEPP66) - Environmental Planning and Assessment Act 1979, ss 79C, 97, 106, 107, 108 and 109 CASES CITED: DATES OF HEARING: 21/06/2004, 22/06/2004 and 23/06/2004 DATE OF JUDGMENT: 07/06/2004

APPLICANT:Mr A Galasso, barrister instructed by Ms P Whitford, solicitor SOLICITORS:Maddocks LEGAL REPRESENTATIVES: RESPONDENT:Ms S Duggan, barrister instructed by Ms T Litt, solicitor SOLICITORS:Bowen & Gerathy, Solicitors

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

6 July 2004

10182 of 2004

Vanimo Pty Limited and Blackbutt Estate 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 decision of the Randwick City Council (the council) to refuse a development application to demolish the existing car sales yard and workshop and existing residential flat building and to erect a multi-storey mixed-use commercial/ residential flat buildings over basement car parking at Lots 1 and 2, DP 901019 (Nos 48-54); Lot 2, DP 962347 (No 56); Lot 1, DP 962347 (No 58); Lot 10, DP 791694 (No 59); Lot 11, DP 791694 (No 61); Lot 3, DP 901019 (No 63), being Nos 48-58 Maroubra Road and Nos 59-63 Royal Street, Maroubra. 2 I visited the land in company with the parties on the morning of the second day of the proceedings. 3 I have concluded that that the application should fail as it would be incompatible with the existing and likely future character of the area. The land 4 The land is situated on the northern side of Maroubra Road with a frontage to that road of 60.345m, to Royal Street of 62.525m after dedication of 4.57m for widening of Glanfield Street, to Glanfield Street of 60.35m and a common side boundary (with No 60 Maroubra Road) of 62.495m. The land has an area of 4,046.8m2. 5 The land is relatively flat and there is a minor fall in the order of 800mm from Maroubra Road to Glanfield and Royal Streets. There are no significant trees or vegetation on the land. 6 Erected on the land is a Mitsubishi/ Daihatsu motor dealership and showroom and associated workshops and a two-storey residential flat building containing four (4) dwelling units. 7 The land is located about 600m west of Anzac Parade and the Maroubra Town Centre, and about 300m east of Bunnerong Road and a local commercial centre. 8 Maroubra Road is the major east-west road linking Botany, Pagewood and Eastgardens to Maroubra and Maroubra Beach. Glanfield Street is a one-way street westbound, which is being widened through land dedications as development proceeds. 9 Maroubra Road is on the Nos 353 and 359 bus routes and a bus stop is located adjacent to the subject land. 10 The scale of development east of the land on Maroubra Road and Glanfield Street (towards the town centre) is mixed and comprises: · No 60 Maroubra Road (abutting the land) - 30 residential units on 5 levels above ground level car parking; · Nos 62-64 Maroubra Road - 12 residential units over 3 levels above ground level car parking; · Nos 66-70 Maroubra Road - 25 residential units over 3 levels above ground level car parking; · Nos 72 + 74 + 76 Maroubra Road - single storey detached houses; · Nos 78 Maroubra Road - 12 residential units over 3 levels above ground level car parking; · Nos 80 + 86 Maroubra Road – single-storey detached houses. · Nos 82-84 Maroubra Road – two-storey detached house; · No 88 Maroubra Road - single storey workshop; · No 90 Maroubra Road - 2 residential units in 3-storey duplex; and · No 92 Maroubra Road - 4 residential units over 2 levels. 11 The scale of development west of the land on Maroubra Road and Royal Street is: · No 54 Royal Street - 2 storey detached house; · No 52 Royal Street - residential units on 3 levels; · Nos 46 + 44 + 42 + 40 Maroubra Road – single-storey detached houses; · No 38 Maroubra Road - 10 residential units on 3 levels above parking raised about 1.5m above street level; · Nos 32-36 Maroubra Road - 21 residential units on 3 levels above parking raised about 1.5m above street level; · No 30 Maroubra Road - 8 residential units on 2 levels above ground level car parking; · No 28 Maroubra Road - 12 residential units on 3 levels above ground level car parking; · Nos 24-26 Maroubra Road - residential units on 3 levels above ground level car parking; and · No 20 Maroubra Road - residential units on 3 levels above level floor car parking. 12 There are single semi-detached dwellings at Nos 77-83 Maroubra Road, single-storey detached dwellings at Nos 73 and 75 Maroubra Road and a two-storey detached dwelling at No 69 Maroubra Road on the corner of Royal Street. These characterise the area south of the subject land. 13 Three two-storey detached dwellings at Nos 57 Royal Street and Nos 44 and 46 Glanfield Street are to the north of the subject land. The area is characterised by single and two-storey detached dwellings. Existing use rights 14 The parties are agreed that the subject land enjoys existing use rights (EUR), under the Environmental Planning and Assessment Act 1979 ss 107, 108. 15 Under s 108(3) of the Act: An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions [being those provisions referred to in this section] but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate from the incorporated provisions have no force or effect while the incorporated provisions remain in force. A s79C of the assessment of the application is required. Randwick Local Environmental Plan 1998, (RLEP) 16 Under the provisions of the RLEP the subject land is zoned 2A residential and the objectives of that zone in cl 10 are: (a) to maintain the character of established residential areas, and (b) to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors, and (c) to enable redevelopment for low density housing forms, including dwelling houses, dual occupancy, semi-detached housing, and the like, where such development does not compromise the amenity of surrounding residential areas and is compatible with the dominant character of existing development, and (d) to allow people to carry out a range of activities from their homes, where such activities are not likely to adversely affect the environment of the locality.