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. Findings 28Section 96 of the Environmental Planning and Assessment Act relevantly provides: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. 29The parties made no submission that the amended proposal is not substantially the same as the development for which consent was granted. 30Mr Patterson submits that the amended proposal should be refused as it is inconsistent with the following objectives of Zone No 2B (Residential B zone) under LEP 1998: (a) To provide a low to medium density residential environment, and (b) To maintain the desirable attributes of established residential areas, and (c) To protect the amenity of existing residents. 31Mr Patterson provided no evidence to support this submission other than the evidence of the residents. 32The assessment of the development consent considered the compatibility of the proposal with the zone objectives and found it to be consistent. Based on the evidence before the Court, the amended proposal remains a medium density development as approved by the JRPP, and therefore meets objective (a). It maintains the desirable attributes of the established resident area to the same extent as the development approved by the JRPP, and therefore meets objective (b) and it protects the amenity of existing residents to the same extent as the development approved by the JRPP, and therefore meets objective (c). 33Mr Patterson also submits that the proposal should be refused as it exceeds the FSR in cl 20F(2) of LEP 1998 and does not meet the purpose of the control. He provided no evidence to support this submission other than that of the residents. 34The maximum FSR permissible in the 2B zone is 0.65:1. The development consent has an approved FSR of 1.4:1, although I note that this figure is based only on the above ground gross floor area and not the definition of gross floor area in LEP 1998. The amended proposal has a FSR of 1.45:1, which is also based on the above ground gross floor area and not the definition. The increase in gross floor area between the development consent and the amended proposal is 272.17 sqm. 35The purpose of the FSR in cl 20F(2) of LEP 1998 is stated as being: to operate together with controls for building height and landscaped area to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area. 36The development consent relied on an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to cl 20F. The SEPP 1 objection found that the variation to the standard was well founded and that the purpose of the control was achieved. 37The evidence of Mr McDonald and Mr Player is that the additional floor space above that approved in the development consent does not affect the height, bulk and scale of the approved development from the adjoining properties and the public domain. Nor does it change the impact on amenity and aesthetic character beyond that of the approved development. The increase in floor space is achieved within the existing built form or through changes that are internal to the site. These changes are considered by both the experts previously retained by council and those retained by the applicant, to be acceptable. 38I therefore accept that the increase in floor space is acceptable and meets the purpose of the FSR control in LEP 1998. 39Mr Patterson also submits that the other matters raised by the objectors, particularly their evidence in relation to traffic, would warrant refusal of the application. This submission was not supported by expert evidence and traffic was not raised by council as a reason for refusal of the original s 96 application or in its Contentions. 40The residents' concerns in relation to traffic centre mainly on the traffic impacts of the development consent. They consider the traffic report to be inaccurate as, in their opinion, it underestimates the traffic generated by the former car dealership on the site and does not recognise that the Barker and Avoca Street intersection has a LOS F. 41The traffic report was reviewed by council and accepted by the JRPP in its determination of the development consent. The RTA also found that the traffic impacts of the development consent and of another development application with a greater number of units (DA 215/2010) to be acceptable. 42As previously stated, it is not open to me to challenge the basis of the development consent. The question is whether the changes proposed in the amended proposal will adversely impact on the traffic system to the extent that they would warrant refusal of the s 96 application before the Court. 43The changes to the unit mix will increase the number of two bedroom units from four to 21 and consequently change the overall parking from 146 spaces to 151. The number of spaces complies with the requirements in the Randwick Development Control Plan. The overall number of units does not change. 44The assessment in the council report of 13 March 2012 and by Mr Pindar is that the traffic impact of the changed unit mix is not significant. If council considers the impacts have not been adequately assessed, it should have raised this as a contention in the proceedings and provided expert evidence. In the absence of such evidence, I find that the traffic impacts of the amended proposal and the other matters raised by the residents would not warrant refusal of the s 96 application. Orders 45The orders of the Court are therefore: (1)The appeal is upheld (2)The application under s 96(2) of the Environmental Planning and Assessment Act to modify development consent (DA 526/20100 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. Annelise Tuor Commissioner of the Court ********** 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. Decision last updated: 26 June 2012