Tizzone Developments v Randwick City Council [2012] NSWLEC 1174

Land and Environment Court New South Wales

Medium Neutral Citation: Tizzone Developments v Randwick City Council [2012] NSWLEC 1174 Hearing dates: 26 April 2012 Decision date: 27 April 2012 Jurisdiction: Class 1 Before: Tuor C Decision: (1)The appeal is upheld (2)The application under s 96(2) of the Environmental Planning and Assessment Act to modify development consent (DA 526/2010) for a multi unit development at 201-207 Barker Street, Randwick is approved subject to the conditions in Annexure A (3)The exhibits except Exhibits 2, 4, 5 and C are returned. Catchwords: DEVELOPMENT CONSENT - modify development consent for multi unit development. Impact on residential amenity from bulk, privacy and traffic impacts. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 1998 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development State Environmental Planning Policy No 1 - Development Standards Category: Principal judgment Parties: Tizzone Developments Pty Limited (Applicant)

Randwick City Council (Respondent) Representation: Counsel Mr G Green (Applicant)

Mr S Patterson (Respondent) Solicitors Pikes Lawyers (Applicant)

Wilshire Webb Staunton Beattie (Respondent) File Number(s): 11193 of 2011

Judgment This determination was given extemporaneously and has been edited prior to publication 1COMMISSIONER: This is an appeal against the refusal by Randwick City Council (council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 to modify a development consent (DA 526/2010) for a multi unit development at 201-207 Barker Street, Randwick. 2The site, its locality, the history of the application and earlier applications and the planning controls are in the Amended Statement of Facts and Contentions (Exhibit 2) and the assessment report to the council meeting of 13 March 2012. 3The development consent, which is sought to be modified, was granted by the Joint Regional Planning Panel (JRPP) on 25 November 2010. The development consent approved the demolition of existing buildings and the construction of a part 4/part 5 storey residential flat building containing 116 apartments, two levels of basement parking for 146 vehicles and associated works with an overall floor space ratio (FSR) of 1.4:1. 4The original s 96 application was lodged on 17 October 2011. It sought to amend the incorrect description in the development consent from 116 units to 117 units. It also sought to make various internal and external changes to the approved plans, including: * increasing the FSR to 1.57:1 (816 sqm), * altering the apartment mix for the overall development primarily by providing additional internal bedrooms within Blocks B and D, * deletion of one lift and relocation of lifts primarily in Block D to the northern side. * Deletion of a lobby area at the corner of Blocks A and B and retaining this area as open space, * provision of secondary rear pedestrian access to ground floor units in Block C, * replacement of planter boxes on northern side of Block C with turf, * conversion of Block C terraces to private terraces. 5Council refused the original s 96 application on 13 December 2011. A conciliation conference under s 34 of the Land and Environment Court Act 1979 was held on 20 February 2012. The parties did not reach agreement and the conciliation conference was terminated. The applicant subsequently sought and obtained leave of the Court to rely on an amended proposal (amended proposal). 6The amended proposal was prepared in consultation with council's urban design expert, Ms G Morrish, and its planning expert, Mr S Harding, and the applicant's urban design expert, Mr B McDonald, and planning expert, Mr R Player. 7On 13 March 2012, the council considered a report on the amended proposal, which noted the advice of its experts that the amended proposal largely addressed the basis for the refusal by Council of the original s 96 application. Council resolved to "proceed with a defence of the appeal based on the evidence of resident objectors". 8The amended proposal, for which consent is sought, principally proposes to: * amend the development consent by increasing the FSR to 1.45:1 (272.17 sqm), * amend the unit mix to be 96 x 1 bedroom and 122 x 2 bedroom apartments, * increase the car parking from 146 spaces (115 resident and 31 visitor) to 151 spaces (122 resident and 29 visitor). The full extent of changes are set out in Mr Player's report (Exhibit E). 9The contentions raised by council in the Amended Statement of Facts and Contentions can be summarised as: (1)The proposed modifications will have an adverse impact on the amenity of adjoining and surrounding dwellings (2)The proposed modifications will result in unacceptable visual bulk, and (3)The matters raised by objectors. 10Council provided no expert evidence to support the contentions or the matters raised by the residents. 11The Court visited the site and heard evidence from residents which is summarised in Exhibit 6. Their principal concerns relate to the development consent, which they considered to be an overdevelopment of the site that does not comply with a number of planning controls in Randwick Local Environmental Plan 1998, including height and FSR. The residents also considered the traffic generation of the development consent would further exacerbate the already unacceptable traffic conditions in the surrounding streets, particularly the intersection of Avoca and Barker Streets. They stated that the development consent was based on inaccurate information. In particular, they disputed the physical commencement of an earlier consent (DA 820/2004) and the parking and traffic generation of the existing car dealership on the site and the level of service (LOS) of the Barker Street and Avoca Street intersection. 12While I understand the concerns of the residents, the development consent has been granted and it is not open to me to review this consent. Rather, I must assess the proposed modifications to the development consent under the requirements under the requirements of s 96 of the Environmental Planning and Assessment Act. 13The concerns of the residents that relate specifically to the s 96 application before the Court, centre on the proposed increase in FSR. They consider the additional floor space will further exceed the FSR control in LEP 1998 and is beyond what was approved by the JRPP and what it considered to be the maximum for the site. 14The residents held the opinion that the additional floor space will add to the visual bulk of the building and increase traffic, noise and other impacts on residential amenity. They stated that the additional 17 bedrooms would increase the number of people and result in further demand for infrastructure, buses, schools, hospitals etc, which are already at capacity. The increased number of people would also add cars and create further traffic and parking impacts, particularly at the intersection of Barker and Avoca Streets. 15The residents also raised concerns about the proposed number of lifts, accessibility, safety and pedestrian access to Avoca Street and the cumulative impact of other developments in the area, as well as procedural issues regarding size of plans, their distribution to residents and referral to the Design Review Panel under State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development. 16The Court heard evidence, for the applicant, from Mr B McDonald and Mr R Player and Mr G Pindar, traffic consultant. Mr McDonald made the following comments in response to the amended proposal and the contentions raised by council: The changes that have been made improve the development consent overall; they create no increases in amenity impacts with respect to neighbours and in fact provide positive benefits in relation to the existing adjacent development and; they do not increase the bulk and scale of the development as it will be seen from the public and private places. 17In particular, Mr McDonald noted that: the increase in FSR to 1.45:1 is minor and is taken up within the building volume or internal to the site as well as reflecting reinstatement of a proper entry lobby at the corner of Avoca and Barker Streets. The increase in FSR does not affect the height, bulk or scale of the building forms, as they will be seen from Avoca Street, Barker Street, Dine Street or the properties to the north. The adjustment to FSR enables a better apartment mix, particularly by providing two bedroom apartments at the upper levels of Block B and better amenity within apartments. 18Mr McDonald also referred to other changes in the amended proposal which he considered to be positive, including the two level landscaping and fence along the northern boundary which address privacy concerns; screening to stair landings; the deletion of internal rooms and the reinstatement of the lobby at the corner of Blocks A and B. He supported the imposition of an additional condition which provides gates at the eastern and western end of the landscaping along the northern boundary to prevent access, other than for maintenance. 19Mr Player agreed with Mr McDonald. He provided a summary of the proposed changes and noted that the amended proposal has a total gross floor area (above ground of 7,127.81 sqm with an FSR of 1.45:1. The development consent has a total gross floor area (above ground) of 6,855.64 sqm with an FSR of 1.4:1. This represents a minor increase in the gross floor area for the revised proposal of only 3.97% or 272.17 sqm. 20Mr Player stated that the small increase in FSR results from a slight increase in the size of the units in Blocks B and D to improve the internal amenity of these units. He considered the minor increase in the FSR to 1.45:1 will be imperceptible when viewing the multi unit housing proposal in the public domain along Dine Street, Avoca Street and Barker Street, as well as the surrounding locality. 21Mr Player considered the increase in FSR met the purpose of the control for FSR in cl 20F of LEP 1998. Further, in Mr Player's opinion, the proposal is medium density development and the changes meet the objectives of the Zone No 2B (Residential B) of LEP 1998. 22The report to council on 13 March 2012, outlines the proposed changes and states that the council's urban design and planning experts have advised that the amendments largely addressed the reasons for refusal of the original s 96 application and that the amended proposal is worthy of approval. Council did not seek to call these experts to provide evidence to the Court. 23The council report also considered the issues raised by the residents in relation to the traffic impacts of the amended proposal. It states: The currently approved development would have an estimated net increase of 15 vehicles per hour over and above that generated by the previous motor showroom and service facility which equates to one additional vehicle movement every 4 minutes. One of the objectors asserts that the estimate of traffic generation on the site when it was being used a motor showroom and service facility as being understated in the original traffic report. The estimate that was provided is consistent with the trip rate identified in the RTA's Guide to Traffic Generating Development. The net increase in traffic is well within the range of daily fluctuations in volumes along Avoca Street and Barker Street. The expected traffic generation is as detailed in the Traffic Report was referred to the Roads and Traffic Authority (RTA) and in the RTA's response dated 20 October 2010, no objections were raised in relation to the expected traffic generation and impact of the currently approved development. Accordingly, it was considered that the increase in traffic generation by the approved development would not have a significant traffic impact on the adjacent classified road network and intersections, nor on the amenity of adjoining and surrounding properties. The additional increase in traffic generation proposed in the current s 96 was not considered significant as it did not increase the average peak hour generation rates and as such did not form a part of council's reasons for refusal. 24Mr Pindar prepared the traffic impact assessment (Traffic Report) which accompanied the development application. This was based on 132 dwellings and parking for 178 cars, including 145 resident spaces (Exhibit E). 25Mr Pindar prepared a supplementary statement (Exhibit F) which assessed the amended proposal. He noted that the RTA Guidelines base traffic generation associated with residential development on the number of units and not the unit mix. The proposal does not increase the number of units and he estimated the additional car spaces from the proposed unit mix would result in an additional two vehicle movements in peak hour, which he considered to be insignificant. 26Mr Pindar, in response to questions from Mr Patterson, for the council, explained that the traffic generation of the former car yard use of the site (s 3.4 of the Traffic Report) was based on his own surveys and consultation with the then owner regarding the staff parking on the street. As stated in the council report, this estimate is consistent with the RTA guidelines for such a use. 27Mr Pindar explained that the different approaches to Barker and Avoca Street intersection have different LOS in the AM and PM peak periods, as set out in Appendix D to his traffic report. The Barker Street approach from the east in the AM peak has a LOS F, in some directions. The average level of service for the intersection in all directions is LOS E. He accepts that the intersection is at capacity at certain times but considers that it is important to consider not the condition of the existing intersection now but whether it would be changed with the proposal. In particular, there should be no change in the overall level of service. In his opinion, the removal of the car yard and its numerous entry and exit points results in a net improvement to the intersection and maintains its current level of service.