Land and Environment Court New South Wales Medium Neutral Citation: Parker Logan Property v Randwick City Council [2014] NSWLEC 1179 Hearing dates: 28 August 2014 Decision date: 28 August 2014 Jurisdiction: Class 1 Before: Fakes C Decision: 1. The appeal is upheld. 2. Development consent is granted to development application No. 132/2014 in respect of the property 140 Carrington Road, Randwick, for the demolition of the existing dwelling and garage and the construction of a residential flat building comprising six 2 bedroom units, basement parking and strata subdivision subject to conditions. Catchwords: CONSENT ORDERS: Residential flat building; height, FSR, tree removal. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 Category: Principal judgment Parties: Peter Logan Property (Applicant) Randwick City Council (Respondent) Representation: Applicant: Mr G Green (Solicitor) Respondent: Ms V McGrath (Solicitor) Applicant: Pikes & Verekers Lawyers Respondent: Norton Rose Fulbright Australia File Number(s): 10247 of 2014 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant appeals Randwick City Council's deemed refusal of Development Application No. 132/2014 for the demolition of a dwelling and ancillary structures and the construction and strata subdivision of a residential flat building at 140 Carrington Road, Randwick (the site). 2The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act). The site and its locality 3The site is located on the western side of Carrington Road, elevated above Carrington Road. 4Existing improvements include a two-storey dwelling with a subfloor garage and other minor structures. The garage fronts the street boundary. 5As a consequence of the slope of the site and the street, the levels across the site vary considerably. Similarly, the relative levels of adjoining properties are a function of the local topography. 6The surrounding residential development comprises a range of style, form and age. Immediately to the north is a four storey residential flat building; to the south is a single dwelling similar to the dwelling on the site. Elsewhere in the immediate vicinity are detached dwellings, as well as two and three storey flat buildings. Relevant background 7The original development application (DA) proposed: the demolition of all structures on the site and the removal of 10 trees; excavation to accommodate a basement level parking area for 10 cars, meter room, garbage storage, stairs and a lift; three levels of residential accommodation comprising a 1 x 2 bedroom and 1 x 3 bedroom unit on each floor; associated site works including a new retaining wall at the street boundary, landscaping and fencing; and associated stormwater drainage works. The plans illustrated a maximum building height of 11.1m and a Floor Space Ratio (FSR) of 1:1. 8The DA was exhibited for 14 days and a total of 11 submissions were received, the majority of which were objections to the proposal. Issues raised included: view loss; loss of vegetation and associated environmental and amenity impacts; potential noise from the development including plant; exceedence of height and FSR controls; inappropriate front and rear setbacks; overlooking and privacy; and overshadowing. 9The DA was subject to a number of internal council referrals. In general no objections were raised on technical matters and a number of possible conditions of consent were drafted for inclusion in any Notice of Determination. A draft strata plan of subdivision was required before any determination could be made. 10On 22 April 2014, the DA was received by council's City Plan Strategy and Development (CPSD) unit for independent assessment. 11On 1 May 2014 the appeal to the Court was filed. 12Council's Statement of Facts and Contentions filed on 20 May 2014 identifies the following issues that should result in the refusal of the DA. * 1. The application did not include the consent of all owners. * 2. Exceedence of the FSR control in Randwick Local Environmental Plan 2012 (RLEP) by 33.7%; the accompanying cl. 4.6 variation request is not well founded. * 3.Exceedence of the building height control in RLEP by 1.6m or 16.8%; the accompanying cl. 4.6 variation request is not well founded. * Insufficient information concerning the: site survey plan; strata subdivision; building height and location of non-compliant portion; site works; internal solar access; open space calculations; and external overshadowing. * A number of matters were considered capable of resolution by conditions of consent: retention of trees; privacy through screening of balconies and other measures; modifying the design of the front boundary wall; provision of adequate storage; and provision of a Construction Management Plan. 13The matter commenced on 9 June 2014 as a conciliation conference under s 34 of the Land and Environment Court Act 1979 before another Commissioner of the Court. As no agreement was reached, the conciliation was terminated under s 34(4) and the matter was returned to the Registrar for directions. 14Since the termination of the conciliation, a number of amendments have been made to the architectural plans and additional information provided. This consent orders hearing is based on the amended plans. The amended proposal 15The applicant now proposes the construction of a residential flat building comprising six 2 bedroom units with basement parking for 8 cars and associated tree removal, landscaping and reconstruction of the front boundary wall as well as strata subdivision and other associated works. The planning controls 16The site is zoned R3 - Medium Density Residential under RLEP 2012. Residential flat buildings are permitted with consent. The following clauses in RLEP are relevant: * Cl. 4.4 - Floor space ratio - prescribes a FSR control of 0.75:1 for the site and the proposed development; * Cl. 4.3 - Height of buildings - sets a building height control of 9.5m; and * Cl. 4.6 - Exceptions to development standards - provides a mechanism for requesting a variation to a control. 17Randwick Development Control Plan 2013 (RDCP) applies. The following clauses are relevant: * Cl. 4.4 C2 - external wall height * Cl. 5.1 C2 - solar access The consent orders hearing and evidence 18The matter commenced on site with a several local residents giving evidence. The issues raised are summarised as: * Continuing concerns about tree removal and the likely impacts on local biodiversity and visual privacy; * Height of the building and its overall bulk in the landscape; * Undesirable impacts on the character of streetscape as a consequence of the location of the front balconies and the precedent this may set for future developments; and * Concerns about the impacts of demolition in particular, asbestos removal and physical damage that may arise. 19The parties' experts, Mr Jeffrey Mead, Consultant Planner for the applicant, and Mr Brad Roeleven, Council's Town Planner, prepared a joint expert report in regards to the amended plans. The planners were also on site to provide assistance to the Court and to the local residents. 20At [1.7] of the joint report, the planners state: The experts agree that the revised architectural plans and additional supporting information resolve the issues in contention and are worthy of approval, subject to conditions of approval. 21Specifically, the planners agree and note: * The consent of all owners of the site has been provided. * The amended plans show an FSR of 0.75.4:1, a very minor breach of the development standard of 2.85m2. In their opinion, this can be made compliant subject to a condition requiring a minor shift of the western glazing line of nominated units by 120mm. This therefore removes the need for a request under cl. 4.6 RLEP. * The revised plans have reduced the height of the building. The only portion that is non-compliant is essentially limited to the south-eastern corner of the building which coincides with a previously excavated area of land for the existing driveway and garage. The redistribution of the mass of the building increases the rear setback and reduces shadowing of the rear yard of the adjoining property. The areas of non-compliance do not result in unacceptable view loss from adjoining properties. Given the amendments, the cl. 4.6 variation statement is well founded. That is, the height has acceptable impacts in terms of bulk, scale, streetscape and area character. * The additional information provided in relation to the site survey plan, strata subdivision, site works (including landscaping and fencing), internal solar access, open space calculations, and external overshadowing, satisfy council's concerns. Subject to the imposition of conditions of consent identified in their joint report, the proposal is acceptable. * In regards to tree removal, the advice of the applicant's arborist should be accepted and trees 5 and 6 cannot be retained and suitable replacement trees should be conditioned. * The revised architectural plans have significantly improved the privacy relationships with surrounding properties through increasing the rear setback, tree retention, reduction in building height, relocation of the entrance, obscured glazing and privacy screens. Conclusion and findings 22Having regard to the site inspection, the joint planners' report, the revised plans, council's controls and other relevant provisions of s 79C(1) of the Act, and the proposed conditions of consent, I am satisfied that the consent orders sought by the parties may be granted. 23I have read the position statement in regards to the cl. 4.6 variation sought for the height control. I agree with the planners that the amended architectural plans, the more than compliant rear setback, and the minimal area of non-compliance with the control, achieve the objectives in cl. 4.3(1) RLEP and the cl. 4.6 request for a variation to the height control is well-founded. 24I acknowledge the concerns of the residents however, the zoning permits residential flat buildings and the proposed building is substantially compliant with the controls. The area of non-compliance with the height control is limited to a small portion of the site and does not create any unreasonable impact on adjoining properties. Significantly, the height of the rear of the building is fully compliant and therefore any impacts on views from or sunlight to adjoining and nearby properties will be as a consequence of a compliant element. 25I am satisfied that the increased setback at the rear will not only enable the retention of significant screening vegetation along the rear boundary but will ensure adequate space for the establishment of replacement canopy trees. The retention of the Blueberry Ash and Pittosporum will retain the majority of the vegetative screen and the retention of a large Swamp Mahogany in the north-western corner will retain suitable habitat for local fauna. I note the condition requiring replacement canopy trees to reach a minimum canopy height of 10m. The use of native species will provide future habitat. I also note the reasons for the removal of trees 5 and 6 (Swamp Mahogany and Lemon-scented Gum) on the southern boundary. It was stated on site that council's arborist had agreed that given the proximity of the trees to each other and to the area to be excavated for the basement car park, the best option would be to remove these trees and replace them with advanced specimens. 26The provision of screens on balconies will limit the potential for overlooking. I am also satisfied that the conditions of development consent address other concerns about demolition and asbestos removal. 27Therefore, in conclusion, by consent the Orders of the Court are: (1)The appeal is upheld. (2)Development consent is granted to Development Application No. 132/2014 in respect of the property 140 Carrington Road, Randwick, for the demolition of the existing dwelling and garage and the construction of a residential flat building comprising six 2 bedroom units, basement parking and strata subdivision subject to the conditions annexed and marked "A". (3)The Court notes the agreement that the applicant is to pay the respondent's costs in the agreed amount of $5,000. (4)All exhibits except A, B, 1 and 3 are returned. Judy Fakes Commissioner of the Court Annexure A 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: 01 September 2014