McGuire v Randwick City Council [2010] NSWLEC 1314

Land and Environment Court of New South Wales

CITATION : McGuire v Randwick City Council [2010] NSWLEC 1314

APPLICANT Peter McGuire PARTIES : RESPONDENT Randwick City Council

FILE NUMBER(S) : 10512 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :- Views

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Randwick Local Environmental Plan 1998 Randwick Local Environmental Plan 1998 (Consolidation)

CASES CITED: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Tenacity Consulting v Warringah [2004] NSWLEC 140

TEXTS CITED: Building Code of Australia

DATES OF HEARING: 9 November 2010

DATE OF JUDGMENT: 17 November 2010

APPLICANT Mr D Loether SOLICITOR Bartier Perry LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton SOLICITOR Marsdens Law Group

JUDGMENT:

The Land and Environment Court OF NEW SOUTH WALES

Morris C

17 November 2010

10512 of 2010 Peter McGuire v Randwick City Council

JUDGMENT 1 Commissioner: This is an appeal under s97(1)(B) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Randwick City Council (the council) of a development application which proposes the demolition of semi detached terrace dwellings and the construction of two x two storey, five bedroom, attached dwellings with basement garages at Nos. 194-196 Beach Street, Coogee. The application also requires an alteration to the boundaries between the two lots however, whilst comment was made in the statement of environmental effects submitted with the application, no plans of the subdivision were lodged or are before the Court. As the development would involve the construction of the dwellings across the boundary unless the subdivision occurs, the parties were directed to lodge further submissions to address this issue. The site and its context 2 Nos. 194-196 Beach Street, (the site) are located on the western side of the roadway and comprise two allotments, Lots A and B in DP 436142 which have a combined frontage of 13.1m and area of 551.8m2. Lot A (No. 196) is affected by a right-of-footway 875mm-1.015m wide which provides shared pedestrian access to the adjoining residential flat building at No. 198 Beach Street. That site provides a reciprocal right-of-footway 665mm-955mm wide to the site. 3 Lot A is 7.01m wide at its rear boundary and 6.843m at the frontage to Beach Street, whilst Lot B has a frontage of 6.874m and rear boundary of 6.706m. The plans before the Court show the walls of the proposed dwellings centrally located within the site and accordingly, it is necessary for the boundary to be centred and straightened to allow construction of the buildings as designed. The parties agree that is would be necessary for the subdivision to occur before a construction certificate could be issued for the development. 4 A pair of single storey semi-detached dwellings with no vehicular access or on-site parking is currently located on the site. The site slopes from both south to north and west to east so that the rear gardens are terraced to support the higher levels. 5 Beach Street contains a mix of low to medium density development. The site is bound by four storey, two storey and three storey residential flat buildings (RFB) to the north, south and west respectively. Coogee Beach is approximately 350m to the north and a number of large public reserves are located within close proximity to the site. The proposal 6 The application proposes the demolition of the existing semi-detached dwellings and outbuildings and the construction of two new dwellings, one on each lot with adjoining walls constructed adjacent to the common boundary. Each dwelling would comprise a basement garage and storage area, ground floor living, dining, kitchen and terrace areas and two bedrooms. The first floor comprises three further bedrooms, balcony and bathroom areas. 7 Parking for three vehicles in a stacked arrangement could be provided in the northern dwelling (No. 194) and two vehicles in the southern dwelling (No. 196). Two driveway crossings off Beach Street, each 3m in width, are proposed to provide vehicular access to the garages of each dwelling. 8 Leave to rely on amended plans was granted by the Court on 5 November, 2010. Those plans vary from the plans originally notified by the council and the amendments made reflect matters raised in the submissions received in response to the notification and also the issues raised in the joint expert planning report prepared for these proceedings. The main changes to the plans are setting the building back 7.1m from the Beach Street property boundary with consequential relocation of the rear building wall, alterations to the roof and balcony. The purpose of the changes is to improve solar access and view lines from the adjoining residential flat building, No. 198 Beach Street. The Planning Controls 9 The site is zoned Residential 2(c) pursuant to the provisions of Randwick Local Environmental Plan 1998 (the 1998 LEP). This plan was amended on 15 January 2010 by an LEP consolidation which consolidated the provisions of the Randwick Planning Scheme Ordinance, Randwick Local Environmental Plan No 71 (Coogee Precinct) and a number of other environmental planning instruments. The consolidated LEP, known as Randwick Local Environmental Plan 1998 (Consolidation) has a savings provision that requires assessment of this application, which was lodged to the council on 7 December 2009, pursuant to the provisions of the 1998 LEP. 10 The council's Dwelling Houses and Attached Dual Occupancies Development Control Plan (the DCP) applies to the site and provides development controls for the construction of alterations and additions or new dwelling houses and attached dual occupancy development and ancillary structures. 11 The 1998 LEP has, in clause 9, a requirement that, for consent to be granted to the carrying out of development, consideration of the objectives of the plan and specific objectives of the zone within which that development is proposed must be made. 12 The relevant objectives of the 1998 LEP are: (c) to create a broad framework of planning controls within which the Council may prepare development control plans to formulate and adopt more detailed policies and guidelines relating to matters of significance for local environmental planning, and (f) to facilitate and encourage community consultation and participation in the planning process, and (g) to promote, protect and enhance the environmental qualities of the City, and (h) to recognise the importance of ecological sustainability in the planning an development processes, and (i) to recognise the responsibilities of accountability in the planning processes, 13 The relevant objectives of the Residential 2(c) zone are: (a) to allow a variety of housing types within residential areas, and (c) to enable residential development in a variety of medium density housing forms where such development does not compromise the amenity of surrounding residential areas, 14 The erection of a dwelling house is permissible with consent on land within the Residential 2(c) zone. In order for the dwelling house to be built as shown on the plans and comply with the provisions of the Building Code of Australia (BCA) it would need to be contained wholly within the allotment. Accordingly, the boundary adjustment is required before the development can proceed. 15 Development consent is required, pursuant to clause 21 of the LEP for subdivision unless, pursuant to clause 26, the development is exempt of complying development. 16 Clause 30 provides development standards for minimum allotment sizes and in a Residential 2(c) zone, the minimum area is 325 square metres and minimum frontage is 9 metres. Subclause 5 has the effect of allowing the erection of a dwelling house on an allotment of land that existed as a separate allotment on the day the LEP was made. This subclause would allow the development to proceed on the existing allotments however, does not apply to the proposal to vary the boundary between the two lots. Further discussion on this issue is provided later in this judgment. 17 The DCP provides controls for the construction of dwelling houses on the site and operates on a hierarchy of controls using a "performance" approach to design guidance and development control. To gain approval, developments must fulfil the relevant objectives for each control. The performance criteria provide the means by which a development will achieve the objectives. Preferred solutions are offered and illustrate how the performance requirements may be achieved in the design of developments but are not compulsory, rather, they are a guide of what would deemed to be compliant.