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. 17 Clauses 32(1) and 33(1) of the RLEP restrict the bulk and height of buildings in the 2A zone, other than dwelling houses, to a maximum floor space ratio of 0.5:1 and maximum height of 9.5m respectively. The maximum wall height above ground level of 7m applies. 18 The objectives and controls under the RLEP are of little relevance when considering development under the existing use rights provisions of the Act. Randwick Development Control Plan - Parking 1998, (PDCP) 19 Under the PDCP the following rates apply: · 1 space for 40m2 of retail/ commercial floor space; · 1 space for each one bedroom dwelling; · 1.2 spaces for each two bedroom dwelling; · 1.5 spaces for each three or more bedroom dwelling; and · 1 space for every four dwellings or part thereof for visitor parking; · 1 bicycle parking space for every three dwellings plus one visitor space for ten dwellings; · 1 car-wash bay for every twelve dwellings. Randwick Development Control Plan - Multi-Unit Housing 2000, (MUDCP) 20 The MUDCP became effective from 1 March 200 and provides detailed design criteria and controls for the development of multi-unit housing and is of little relevance when considering existing use rights. SEPP No 55 – Remediation of land, (SEPP55) 21 The object of SEPP55 is to provide for a Statewide planning approach to the remediation of contaminated land. Because automotive uses have been carried out on the land care must be taken to address contamination. There is no issue in relation to this matter that cannot be resolved by conditions. SEPP No 65 - Design Quality of Residential Flat Development and the Residential Flat Design Code, (SEPP65) 22 SEPP65 aims to improve design quality of residential flat buildings and recognises that there are economic, environmental, cultural and social benefits to be had by improving design of these buildings. SEPP No 66 – Integration of transport and land use, (SEPP66) 23 SEPP66 aims to ensure that urban structure, building forms, land use locations, development designs, subdivision and street layouts achieve planning objectives by improving accessibility to housing, employment and services by walking cycling, and public transport, improving the choice of transport and reducing dependence solely on cars for travel and supporting the efficient and viable operations of public transport. 24 This matter could be addressed by providing accommodation near public transport routes as is proposed. The proposal and its history 25 Development application No 758/2003 was lodged with the respondent council on 27 August 2003 to demolish the existing car sales yard, workshop and existing residential flat building and to erect a multi-storey mixed-use commercial/ residential flat buildings over basement car parking on the land. A 5 December 2003 amendment to the plans showed a development that comprised 73 dwelling units, 3 commercial units comprising 322m2 of commercial floor area and parking for 110 vehicles. 26 The development application as now further amended comprises 68 dwelling units and 3 commercial units. 27 The proposal is now described in further amended plans accompanying the Development Application prepared by Hill Thalis and Randles Hill Straatvert Architects being: · Schedules, Drawing No 00.62 A00, Revision A, printed 8 December 2003; · Context Plan, Drawing No 00.62 A01, Revision A, printed 25 August 2003. 28 The proposal, as originally submitted in August 2003, was for a gross floor area of 7,299m2 at a floor space ratio of 1.8:1, and as amended in December 2003, involved a gross floor area of 7,088m2 and a floor space ratio of 1.75:1. It is now proposed to be at a FSR of 1.63:1. 29 The proposal comprises two buildings around a 'deep-soil' landscaped courtyard. The buildings would vary in height from 4 - 5 storeys on Maroubra Road at a height of about 15m - 17m above footpath level, 4-6 storeys to Royal Street at a height of about 13m - 17m above footpath level and 3-4 storeys to Glanfield Street at a height of about 11m - 13m above courtyard level. 30 The proposed setbacks to the buildings would be: · nil to 2.7m on the Maroubra Road frontage; · nil to 2.1m on the Royal Street frontage; · 1.4m to 3.8m on the Glanfield Street frontage (beyond the 4.57m road widening dedication); · 1.7m to 3.0m from the eastern side boundary with 6-storey residential flat building at No 60 Maroubra Road. Further amended plans 31 The proposal was further amended after the joint conferences held on 19 and 24 May 2004 and is described in plans prepared by Hill Thalis Architects and Peter Hill Architects dated 27 May 2004, [Note: Exhibit A] : · Schedules, Drawing No 00.62 A00, Revision B; · Context Plan, Drawing No 00.62 A01, Revision B; · Basement Level 2 Plan, Drawing No 00.62 A02, Revision B; · Basement Level 1 Plan, Drawing No 00.62 A03, Revision B; · Ground Level Plan, Drawing No 00.62 A04, Revision B; · Level 1 Plan, Drawing No 00.62 A05, Revision B; · Level 2 Plan, Drawing No 00.62 A06, Revision B; · Level 3 Plan, Drawing No 00.62 A07, Revision B; · Level 4 Plan, Drawing No 00.62 A08, Revision B; · Level 5 Plan, Drawing No 00.62 A09, Revision B; · Roof Plan, Drawing No 00.62 A10, Revision B; · Elevations and Sections 1, Drawing No 00.62 Al 1, Revision B; · Elevations and Sections 2, Drawing No 00.62 A12, Revision B; · Elevations and Sections 3, Drawing No 00.62 Al 3, Revision B; · Elevations and Sections 4, Drawing No 00.62 A14, Revision B; · Elevations and Sections 5, Drawing No 00.62 A15, Revision B; · Apartment Types 1, Drawing No 00.62 A16/B; · Apartment Types 2, Drawing No 00.62 Al 7/13; · Shadow Diagrams 1, Drawing No 00.62 A18.1/B; · Shadow Diagrams 2, Drawing No 00.62 A18.2/B; · Detailed Elevation, Drawing No 00.62 Al 9/B. 32 These further amended plans show a reduction in the proposal's number of residential levels at the corner of Maroubra Road and Royal Street from six storeys (ground level commercial plus 5 residential levels) to four storeys (ground floor commercial plus 3 residential levels). 33 They also show a reduction of one residential level on the corner of Royal and Glanfield Streets. 34 The further amended proposal also reduces the number of dwelling units from 73 to 68 comprising the following dwelling mix: 1-bedroom apartments 18 2-bedroom apartments 46 2-bedroom apartment + home office 2 3-bedroom apartments 2 35 The number of car parking spaces remains unchanged at 110 spaces. 36 Mr Nash for the council was satisfied that the amended plans address the privacy issues raised in his original report, [Note: Exhibit 2 pp 15-17 and pp 19-20], and resolved the flooding concerns [Note: Exhibit 2 pp. 20-21]. Notification 37 The original application was notified to nearby owners and occupants and the council received 135 objections and 2 petitions of 16 and 94 signatures. When the amended application was advertised in December 2003 the council received 166 objections. 38 Concerns expressed included: · 7m front setback would allow for planting to the front of the building, this will allow for future footpaths and road widening; · A shortage of water and overlooking impacts; · Aesthetics - building is out of character with surrounds and is unattractive; · Applicant presumes that site is zoned commercial; · BBQs, playgrounds, clotheslines and garbage storage have not been shown on the plans; · Building form degrades the urban design and landscaping of the immediate area; · Building is an eyesore and is built to the street alignment; · Building is built to the curb and will obstruct the vision of motorists and pedestrians resulting in a greater number of accidents; · Building is too high and wide; · Building is too high in context of surrounding residential zone; · Building is too large; · Building should be 7m from the boundary to provide for planting to the front of the development; · Building should be setback from street boundaries to allow for gardens and planting as exists on other sites on Maroubra Road and Royal Street; · Bus stop is outside the units - will it be maintained; · Bus stop outside 69-73 Maroubra Road has not been indicated - it should remain; · Capacity of infrastructure and services to cope with the proposed density in this area; · Carparking; · Colour scheme does not fit in with surrounds; · Colour scheme is inconsistent with surrounding properties; · Commercial area is close to this site, development is not needed; · Commercial development is inconsistent with 2(a) zoning; · Commercial tenancies should not be allowed in this area; · Commercial uses are inappropriate outside of Maroubra Junction CBD; · Commercial zone has extended too far already - site is zoned 2A and should not be used for commercial purposes; · Communal space will be overshadowed; · Concern over Council's notification procedure and timeframe for submissions; · Concern over impact of development on existing infrastructure capacity; · Concern regarding role of planning profession and Council in making aesthetic decisions as noted in recent media coverage; · Congestion from additional commercial suites proposed; · Construction impacts; · Construction noise and damage (settlement and vibration); · Contamination from underground petrol tanks; · Contemporary aesthetic is inappropriate to Maroubra; · Cumulative impact of recent residential developments on viability of commercial precinct; · Decreased property value; · Demand is for `family housing' with yard and play areas; · Design is an `eyesore' and is inconsistent with the local environment; · Design is sterile and similar to existing development in Maroubra Junction; · Development contravenes LEP and draft DCP; · Development is excessive given existing construction in Maroubra Junction; · Development is inconsistent with 2A zoning and buildings of this type should only be allowed in Maroubra Junction CBD; · Development should be residential only; · Development will result in dangerous traffic conflicts; · Disruption due to heavy vehicles and road closures; · Dust and damage during construction; · Energy Australia should be consulted to ensure power can be provided - all power and telecommunications are to be installed underground; · Exceeds standards and will impact on the local environment; · Excessive height; · FSR and height is non-compliant and excessive; · FSR is exceeded; · Garbage storage and collection; · Geotechnical and hydrological information due to high water table; · Height; · Height - 2 storeys higher than existing blocks of flats; · Height and bulk; · High-rise development does not blend in with the area; · High-rise should be limited to Maroubra Junction CBD; · Inadequate car parking; · Inadequate commercial parking; · Inadequate infrastructure; · Inadequate notification - only 120 letters sent by Council; · Inadequate setbacks from Maroubra Road, lack of opportunities for landscaping; · Inadequate visitor parking spaces proposed; · Inappropriate form of development outside the Maroubra Junction CBD; · Inappropriate unit mix - too many 1 bedroom units and not enough 3 bedroom units; · Inconsistent with 2A zoning of the site; · Inconsistent with the neighbourhood; · Increased noise pollution; · Increased setbacks from Maroubra Road would reduce overshadowing; · Increased traffic; · Increased traffic and reduced safety; · Increased traffic and safety impacts; · Increased traffic flow, particularly in Glanfield Street; · Increased traffic, road congestion and vehicular movements; · Insufficient information regarding commercial activities that can be carried out on the site; · Insufficient setbacks on Glanfield Street; · Interruption to TV reception; · Lack of setbacks- development is built to all boundaries; · Lift well not shown and plant room areas not shown on roof; · Loss of property values; · Maroubra Rd frontage is too long - development is overwhelming in size; · Median strip planting is supported, Council should also ensure that footpaths, street planting and undergrounding of overhead wires is contributed to by the proposal; · Mixed use development is prohibited in the 2(a) zone; · More reasonable development should be considered; · Narrowness of Glanfield Street will result in overlooking from the development; · Narrowness of laneway - traffic and safety issues; · Nil setback to the street; · No commercial areas should be included in development; · No communal areas and space for garbage etc.; · No formal notification received although resident lives 100m from subject site; · No landscaping to the street; · Noise and residential amenity impacts; · Non-compliance with FSR, height and setbacks; · Oppose the colour scheme - a quieter theme should be adopted; · Out of character with 2A zone; · Out of character with surrounding scale and development; · Out of character with the area; · Outside Maroubra Junction; · Overdevelopment, cumulative impact of development given existing and approved buildings at Maroubra Junction; · Overlooking; · Overshadowing and loss of aspect; · Parking impacts, insufficient off street parking provided; · Pressure on existing infrastructure; · Proposal contravenes planning guidelines and 2A zoning of the site; · Proposal should be submitted to the Land & Environment Court for a reasonable decision; · Proposed commercial spaces are not workable in this area and climate; · Provision of clotheslines; · Reduced pedestrian safety; · Reduced property values; · Request a dilapidation report for any approval; · Residential area - townhouses are more appropriate; · Residents have spent money on 2 water bores - carparking should not allowed to contaminate these valuable resources; · Residents rights will be encroached upon; · Royal Street is used as a shortcut and emphasise traffic and safety issues, site is not zoned for high-rise; · Rubbish collection; · Sandy soil will result in dust being spread during construction; · Scale and character of surrounding development is not considered in the design of the building; · Security of the footings; · Setbacks do not comply with the DCP; · Setbacks should be increased; · Sharing of commercial and residential spaces and use of kerbside parking inappropriate; · Shops are inappropriate in this location; · Shops will be vacant and will not contribute to the streetscape; · Should be setback from Maroubra Road; · Six storeys is too high - development should be limited to 3 storeys; · Social impacts and request that additional community services be provided as a result of development; · Spread of Maroubra Junction CBD, poor precedent; · Stormwater detention; · Stormwater drainage is unclear; · Stormwater runoff - development in the area already exceeds capacity of system; · Structure is too close to the Glanfield Street boundary, should be aligned with existing buildings; · The applicant has misinterpreted existing use rights - reliance on existing use rights is unsound. Sites cannot be amalgamated as each separately benefits from the existing use rights; · Too big and high; · Too high; · Too many 1 bedroom units have been proposed; · Too many developers are purchasing properties in the area to the detriment of home buyers; · Town houses without any commercial component would be more appropriate to the area; · Traffic and parking impacts; · Traffic lights are required at the corner of Maroubra Road and Royal Street; · Traffic volumes and safety impacts; · TV reception interrupted already by large developments with no compensation; · TV reception may be affected - developer should ensure that signal quality remains; · TV reception, impact of tall aerials on appearance of the area, ugly appearance of power lines; · Units will be tenanted introducing a transient population and social impacts; · Units will be tenanted rather than owner-occupied and this will lead to social problems; · Use of 1996 traffic data to project traffic movements; · Vibration damage to surrounding properties during construction; · Water tanks and solar panels should be installed; · Will set a poor precedent; · Wind tunnel effects from U-shape proposed; 39 The amendments received in December 2003 were advertised and re-notified to surrounding residents concluding on the 7th January 2004 and similar concerns were expressed. · 30 day notification period is inadequate, 500 residents should be notified for this development; · All parking during construction is to be on-site; · Amendments are cosmetic, no change to maximum height; · Amendments do not address previous concerns - FSR is still excessive; · Amendments do not go far enough, overall height and width have not been reduced; · Amendments have not addressed issues raised with original proposal · Amendments to proposal are inadequate; · Any impact on TV signal should be rectified at developers expense · Basement parking is still inadequate; · Building exceeds residents' reasonable expectations of what can be built on the site; · Building is still non-compliant - amendments haven't changed overall height; · Bus stop is not included in DA; · Car parking is inadequate; · Challenges existing-use rights being applied to Lot 10 DP 791694 and Lot 3 901019 as these are currently and were previously used for residential purposes; · Claim of commercial usage is incorrect due to existing residential flat building (residential use); · Colour scheme is revolting; · Colours and materials are inconsistent with local streetscape; · Commercial use inappropriate in 2A zone, should be restricted to Maroubra Junction CBD; · Commercial zone has extended too far with many vacancies; · Composting machine should be included in proposal; · Concerned over existing use rights - development is inconsistent with 2A zoning and resident's expectations; · Construction damage; · Construction impacts; · Contemporary colour scheme will quickly become an `eyesore'; · Corner of Glanfield and Royal Street was purchased for staff parking, is being used for storing and detailing of cars; · Development is not appropriately scaled and articulated in response to the residential character of surrounding streets; · Development is not in the public interest, residents would be happy to participate in any defence of a refusal in the Land and Environment Court; · Doesn't comply with 2A zone; · Drainage pit; · Excessive height; · External clothes drying area not provided; · Flooding; · FSR and height is non-compliant and excessive; · Garbage bins are to be collected from a suitable area - not Royal Street or Maroubra Road; · Garbage storage inadequate, concern over hours of operation of garbage compactor; · General objection to high-rise development in Maroubra; · Geotechnical and hydrological information due to high water table; · Height is non-compliant and inconsistent with prevailing character; · Impact on TV reception; · Impacts on on-street parking; · Inadequate commercial parking, security concerns; · Inadequate parking; · Inadequate time given to respond to amendments; · Inappropriate to use existing use rights to justify development, inconsistent with 2A zoning; · Inconsistent with character; · Lack of setbacks- development is built to all boundaries; · Mixed use development is prohibited in the 2(a) zone; · Native species should be used for landscaping; · New footpath around the development will provide better access and safety on the street with new native trees; · No land provided for road widening on Glanfield Street; · No loading bay provided; · No open space for residents - no playground or BBQs; · No rainwater tanks, solar collectors shown; · Non-compliant setbacks; · Notification fees are not commensurate with the cost of works proposed; · On site composting should be provided; · Open space is too small and tokenistic; · Out of character with surrounding area - this is not the Maroubra CBD; · Outraged at size and height of proposal; · Overdevelopment; · Overlooking; · Overshadowing; · Power lines should be undergrounded; · Privacy impacts; · Privacy impacts due to excessive height; · Reiterates previous objections; · Request a dilapidation report for any approval; · Setbacks are still inadequate, pedestrian safety issue; · Setbacks do not comply with the DCP; · Sets a poor precedent for purchase and amalgamation of non-conforming sites; · Site is too large; · Solar heating and lighting should be required; · Stormwater detention – flooding; · Stormwater drainage inadequate - flooding and impacts on surrounding properties • Impact of deliveries; · Too few people notified of the development and too little time given to respond, 60 days is more appropriate; · Traffic and parking impacts; · Traffic and safety issues, particularly on Glanfield Street; · Traffic calming should immediately be halted for Royal Street; · Traffic flow on Glanfield Street; · Traffic impacts, inadequate parking; · TV reception, impact of tall aerials on appearance of the area, Ugly appearance of power lines; · Ugly facade remains; and · Will impact the precedent value of surrounding intended developments such as the Goodyear, Beaurepaire and Pagewood Hotel sites. The council's decision 40 By notice dated 10 February 2004, the council refused the application for the following reasons: 1. The proposed FSR is considered to be excessive and results in a building which is incompatible with the bulk and scale of neighbouring development; 2. The height of the proposed building is excessive in relation to the established streetscape and scale of surrounding development; 3. The excessive height and FSR of the proposal result in an overdevelopment of the site; 4. The proposal will increase traffic in the area to the detriment of the local traffic network and residential amenity; 5. The proposal will result in visual privacy impacts to surrounding dwellings, including those on Glanfield Street and those adjacent to the site to the east; 6. The provision of commercial uses in this location is contrary to the objectives for the Maroubra Junction Town Centre and the desired future character of the Residential 2A zone; 7. The form of development proposed (mixed use residential flat building) is not well suited to the site's location in a 2A zone. The site is considered unsuitable for the proposed use; and 8. The proposal is inconsistent with the objectives of the Residential 2A zone pursuant to Randwick Local Environmental Plan 1998 and as such will adversely affect the character and amenity of the immediate locality. The hearing 41 The appeal was filed on 17 February 2004. 42 At the hearing the court heard evidence on behalf of the respondent council from: · Mr B Scott, Secretary Maroubra Junction Precinct Committee, and resident of No 53 Wild Street, Maroubra; · Mr A H Jacob, resident of No 6/65 Wentworth Street, Randwick, and owner of Unit No 3/ 60 Maroubra Road, Maroubra; · Mr K R Nash, consultant town planner, [Note: Exhibits 2 and 5]; 43 On behalf of the applicant evidence was given by: · Mr D B Crane, consultant town planner, [Exhibit B and Exhibit G SoEE]. 44 Mr Hill architect also prepared a statement of evidence [Note: Exhibit H], and was not required to give oral evidence. The issues 45 On 27 April 2004 the council filed an amended statement of issues. Issue 1: Whether the proposed development by virtue of its: a) height; b) bulk, c) scale, is compatible with the existing and desired future character of the surrounding residential areas. PARTICULARS The existing character is predominantly low scale single-storey detached dwelling houses on the southern side of Maroubra Road, a mixture of single and 2-storey dwellings in Royal Street and 2-storey detached dwellings on the northern side of Glanfield Street. The desired future character is the same as the existing character that is predominantly single and 2-storey detached dwellings. Issue 2: Whether the proposed development is of good design having regard to: a) context, scale and built form; b) landscaping: inadequate setbacks to Royal and Maroubra Roads as not sufficient for meaningful landscaping otherwise no longer pursued, c) … d) impact on adjoining residential development at 60 Maroubra Road in relation to the visual impact of the proposal from within No 60, aural privacy and overshadowing. PARTICULARS The Council contends that the planning and design quality principles in SEPP 65 - Design Quality of Residential Flat Development and the Residential Flat Design Code referred to in SEPP 65 are relevant considerations. Restatements of planning principle and a guide as to whether they are met by the proposal. Issue 3: Whether the proposed development provides a satisfactory level of amenity in respect of: a) communal open space: i) whether the area receives adequate solar access, ii) whether the area is a useable and attractive outdoor space. b) … c) … d) … e) acoustic impacts: whether the proposal makes sufficient provision for the sound insulation between units in accordance with F5 of the Building Code of Australia 2004, resolved by conditions. f) acoustic impacts: noise impact from mechanical plant on the proposed development to be assessed in accordance with relevant EPA criteria, resolved by conditions. g) … h) … Issue 4: Whether the proposed setbacks from the two street frontages to Maroubra Road and Royal Street and the side boundary with 60 Maroubra Road are adequate and compatible with the existing character of the built form and streetscape. PARTICULARS The Council contends that the planning and design quality principles in SEPP 65 and the Residential Flat Design Code relating to street and side boundary setbacks: a) the proposal does not reflect the existing building line established by developments at 60, 62-64 and 66-70 Maroubra Road; b) The proposal does not reflect the established building lines in Royal Street; c) … d) the proposed setback from the side boundary with 60 Maroubra Road is inadequate and will result in a loss of amenity for the existing residents of the six storey building; e) the proposal is contrary to the Primary Development Control - Street setbacks and side and rear setbacks embodied in Part 1 of the Residential Flat Design Code. Issue 5: Resolved subject to agreed conditions. Issue 6: Whether the height, bulk and proximity of the proposed development will have a detrimental impact on the amenity of the residents of the existing 6-storey residential flat building at 60 Maroubra Road in terms of aural privacy particularly from proposed units 108, 109, 127, 135, 136 and 316. Issue 7: Not pressed. Issue 8: Resolved subject to agreed conditions. Issue 9: Resolved subject to agreed conditions. 46 The following emerged as the salient issues: · The proposal's height, bulk, and scale, and compatibility with the existing and desired future character of the surrounding residential areas. and · overdevelopment of the site. The evidence and findings Existing use rights 47 Under the Environmental Planning and Assessment Act 1979, an existing use may be continued, increased in area, enlarged, expanded, and intensified, unless it is abandoned, and the consent authority may take into account those parts of environmental planning instruments that extend, expand or supplement the 'incorporated provisions', being those provisions relating to existing use rights under the Act, but nothing in an environmental planning instrument may derogate from the 'incorporated provisions'. 48 This means that any provisions of an environmental planning instrument, such as those relating to height, bulk and scale, or any objectives that may derogate from the 'incorporated provisions' are of no force or effect. Such an objective that might derogate in would be that in the residential zone 2A under cl 10 seeking to maintain the character of established residential areas. 49 As a result a discretionary planning evaluation of the proposal by the decision-maker is to be made under s 79C of the EPA Act, taking into account the suitability of the land for the proposal, the proposed development/ use, existing and likely future context, and the public interest. 50 The applicant's counsel submitted that under the existing use rights provisions of the Act, the applicant seeks to ensure that the proposed development fits comfortably in the local environment of Maroubra Road, Royal and Glanfield Streets including that of No 60 Maroubra Road, a six-level residential flat building to the east of the land. The applicant's aim, he submitted, was to maintain the character of the established residential areas. 51 The council's representative submitted that the applicant had overcome some of the design deficiencies of the original application, including privacy impacts and notwithstanding the issues were reduced in number during the hearing the fundamental concern of context remains. 52 She submitted that the applicant had misunderstood the context in which is found the proposal. 53 She conceded that the council's planning officer had recommended approval of the application, and the SEPP65 design review panel supported the proposed design. However, she submitted that these facts are irrelevant to a consideration of the application under s 79C of the Act. Also she submitted that the pre-DA meetings history was irrelevant to a consideration of the application. She submitted that the Court is required to consider whether the application is acceptable under s 79C of the Act. 54 She submitted that the independent planner, Mr Nash, had supported the council's refusal. 55 The council's representative submitted that there is common ground that the application is to be determined having regard to the contextual relationship of the proposal and its visual impacts and there is a need to determine the existing and future context to make this determination. 56 In the present case, she submitted, that there would be minimal change to the character of the area likely in the future and the built form that exists in Maroubra Road, Royal and Glanfield Streets informs the assessment of the proposal. The future character of the area is informed by the controls applying to the residential 2(a) zone. It is likely that the single-storey houses might be developed to two-storeys in height with a FSR of around 0.5:1 and around 50% landscaping. 57 She submitted that the existing context of Royal Street and Maroubra Road largely comprises single dwellings however there are residential flat buildings above car parking with pitched roofs on the northern side of Maroubra Road to east and west of the land. These buildings she submitted are setback from the street alignment. 58 The council's advocate asked the Court to accept as common ground or on the basis of Mr Nash's evidence that it would be unlikely that the residential flat buildings would be further developed and that their existing form of development would represent the 'highest and best' use of the land. [Note: Exhibit 6 para 2 agreement of the experts]. 59 I accept the evidence of Mr Nash that the existing residential flat buildings would be unlikely to be further developed, such that their present bulk and scale would change greatly and that the single storey houses might be developed to two storeys to a maximum height of 9. The proposal's height, bulk, and scale, and compatibility with the existing and desired future character of the surrounding residential areas and overdevelopment 60 The question for the Court to answer is whether the proposal would be compatible with the existing and desired future character of the surrounding residential areas. 61 The council representative submitted, that based on the council's evidence, the proposal would not fit in or be consistent with the existing and likely future character and context and would not meet zone objectives of the RLEP that would require the status quo to be maintained. 62 She submitted that Mr Nash, the council's town planner, had considered the built form and concluded that by virtue of its height, length and setbacks it would be inconsistent with and would diminish the quality of the area. 63 Mr Nash was of the opinion that the proposal should step down from No 60 Maroubra Road as shown by the 'red line' in Exhibit 5 towards the single storey house in Royal Street opposite the land in Royal Street. The red line he confirmed indicated the maximum height of any development on the land. 64 Mr Hill, the applicant's architect, in his supplementary statement in Exhibit K, suggested that the proposal should not reduce in scale towards the single-storey house in Royal Street or increase in scale towards the 'other anomaly' of No 60 Maroubra Road. He was of the opinion that the height of the proposal should be a continuation of the scale of the street front, be of appropriate scale in the street and have regard for the street's potential as a boulevard. 65 Mr Crane was satisfied that the proposal when viewed from Maroubra Road would sit well in the context of the streetscape of the northern side of Maroubra Road, [Note: Exhibit K]. 66 The applicant's representative submitted that the height of the proposal would be not so significant as to be 'detectable' from Maroubra Road. 67 The council's representative submitted that the proposal would be only consistent with the anomaly in the street, being No 60 Maroubra Road, and as seen from the Photographs No 9 and 10 in Exhibit 2, the anomalous height of No 60 Maroubra Road would be clearly detectable both from a distance and when proximate. She submitted that it is ludicrous to suggest that the difference in height would not be detectable and therefore acceptable. 68 The 'tablecloth' plan and elevations in Exhibit E is instructive and with other drawings, enables the height, bulk and scale of the proposal to be assessed in the context of Maroubra Road and other streets both in plan and elevation. 69 Excluding the inset lift motor room of No 60 Maroubra Road, the proposal would be higher than all other buildings in this part of Maroubra Road and higher than No 60 Maroubra Road. Highest part of the proposal would be 42.5m in length and about 70% of the 60.345m Maroubra Road frontage. The proposal would be several stories higher than most of the residential flat buildings on the northern side of Maroubra Road, which are relatively consistent in height around three storeys. It would be much higher than the single dwellings on both sides of Maroubra Road in the vicinity of the land. 70 I accept the council's submission that the proposal would be discordant in Maroubra Road as a result of its excessive height. I am satisfied that from viewpoints in Maroubra Road the proposal would be seen as not fitting-in with the existing streetscape or the likely future context. I would refuse the application for reason of it being inappropriate in the Maroubra Road streetscape. 71 The council's representative submitted that the applicant was in effect seeking to persuade the council to rezone Maroubra Road. The council has considered that to be inappropriate and has decided to maintain low scale residential, and it is unnecessary for the Court to decide this. 72 In Royal Street the existing streetscape is entirely low-rise residential except for the three-storey residential flat building opposite the land. I accept the submission of the council that the proposal reflects no identifying characteristics with other buildings in Royal Street. It is not consistent with the existing consistent character and would undermine it. I would refuse it for this reason. 73 I also accept the council's representative' submissions that the proposed setbacks would exacerbate built form. Mr Crane seeks to justify the proposal by suggesting that there are no consistent setbacks elsewhere in the street, but there are no buildings with nil setbacks except the corner shops further along Royal Street. These are two storeys in height, small of scale and relate well in the residential context. I distinguish these from the proposal before the Court. I am satisfied that there is a consistent residential setback both in Maroubra Road and Royal Street of around 6m and the proposal would not be in keeping with that. The proposed nil setbacks are more in keeping with the commercial setbacks in Maroubra Junction. I accept the council's position that the proposed balconies would impact on bulk and the setbacks should be measured to their face. I am satisfied that the lack of setbacks in this residential area is inappropriate and sufficient to refuse the application. 74 One of the indicium of bulk is floor space ratio, (FSR). The proposal has been reduced to 1.63:1 with the lowering of its height on the corner of Maroubra Road and Royal Street. I am satisfied that even at that reduced FSR the proposal would remain an overdevelopment of the site for the reasons explained above concerning height, bulk and scale. 75 There would be inadequate separation between the proposal and No 60 Maroubra Road. The proposal would be setback between 3.0m and 1.8m and No 60 Maroubra Road is setback around 3.65m [Note: Exhibit F, 12 feet or 3.65m], giving a combined maximum separation of about 6.65m window to window. The applicant's representative indicated that his client would be agreeable to the proposed windows within the development being conditioned as being fixed and frosted. This would certainly improve visual and acoustic privacy but there is little evidence as to whether this would leave those units within the proposal, facing the boundary, with sufficient internal amenity on other grounds. 76 Despite there being little evidence in this regard, there would be an impact on daylight to some of the units within No 60 Maroubra Road. This was a concern for Mr Jacob who told the Court that there is presently limited sunlight to the rooms within No 60 Maroubra Road for the hours between 9.00am and 3.00pm. 77 The council's representative submitted that there was a significant degree of public interest in the proposal when it was advertised and this was reflected in the number who attended the Court's site inspection. She submitted that the representatives of the Precinct Committee were also present and that the objections were "…measured and sensible". She submitted that under the existing use rights provisions of the Act, town houses would also be capable of being developed as a non-conforming use. Similarly, apartments would be non-conforming, and she submitted these would be more in keeping with the context than the proposal. 78 The council's representative submitted that the applicant should not be entitled to choose the largest development and to build it. She submitted that the applicant should not be myopic and should respond with a design that would be in context and that has not been achieved. She submitted that consistent with the views of Mr Nash, the applicant should be "sent back". State Environmental Planning Policy No 65 79 The experts agreed that aesthetics was not an issue. It is conceivable that a proposal of bulk, height and scale more in context with the of nearby buildings could be successfully designed to the same 'architectural' standard as that proposed. 80 Experts from each side addressed the relevant design principles and came to differing views. As the proposal fails for other reasons it is unnecessary to address the evidence relating to each planning principle of SEPP65. 81 However, Principle 1 that relates to context is of some relevance. Mr Nash stated: …the proposed development does not respect the existing or future desired character for the locality… The height, bulk and visual impact (that is lack of street setback and an FSR of 1.75:1 [Now amended to 1.63:1] will not contribute to the quality and identity of the area. 82 In regard to context, Mr Crane concurred with Mr Hill, who stated, [Note: Exhibit H pp 5-6] The design responds appropriately to the different street conditions around the site's perimeter. The project aims to reinforce the emerging importance of Maroubra Road as a vibrant boulevard linking Maroubra Junction centre and Eastgardens in Pagewood. In contrast to the dominant 3-6-storey walk up flats, which currently line the north side of Maroubra Road, the proposal positively addresses the street by providing building entrances and retail/ commercial frontages. 83 Under the heading of scale Mr Hill states, [Exhibit H p 6]: The project is consistent with the scale of the more permanent existing buildings on each of the street frontages. In particular the scale responds to the only immediate neighbour, an existing 6 storey residential flat building on the eastern boundary at No 60 Maroubra Road. 84 I prefer the evidence of Mr Nash concerning the proposal's height, bulk and scale, and it is clear when a dispassionate eye is cast over the street elevations in Exhibit E, without even measuring the height and bulk of the proposal, that the proposal would be seen as inappropriate in the context of Maroubra Road and Royal Street. When the dimensions are checked it is clear that the proposal is too high in this context. It would also be too bulky when the lack of meaningful setbacks is also taken into account. 85 For the above reasons, the appeal is dismissed. Orders My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed. 2. Development application No 758/2003 lodged with the respondent council on 27 August 2003 to demolish the existing car sales yard, workshop and existing residential flat building and to erect a multi-storey mixed-use commercial/ residential flat buildings over basement car parking on land 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 is refused consent. 3. The exhibits with the exception of Exhibits A, E, G, 5, 10 and 11 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.