Kassis v Randwick City Council [2014] NSWLEC 1233

Land and Environment Court New South Wales

Medium Neutral Citation: Kassis v Randwick City Council [2014] NSWLEC 1233 Hearing dates: 21 October 2014 Decision date: 21 October 2014 Jurisdiction: Class 1 Before: Tuor C Decision: See paragraph 21 Catchwords: DEVELOPMENT APPLICATION: residential flat building. Consent Orders. Legislation Cited: State Environmental Planning Policy No 65 State Environmental Planning Policy - Design Quality of Residential Development (Affordable Rental Housing) 2009 Randwick Local Environmental Plan 2012 Category: Principal judgment Parties: Mr Anthony Kassis (Applicant)

Randwick City Council (Respondent) Representation: Mr A Whealy of Gadens (Applicant)

Mr S Patterson of Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10392 of 2014

Judgment 1COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Randwick City Council (council) of a development application (617/2013) for the demolition of an existing dwelling and construction of a four-storey residential flat building with 13 units and basement parking for eight cars at 44 Arthur Street, Randwick (site). 2The applicant sought and was granted leave to rely on amended plans (exhibit A). The issues identified in council's Statement of Facts and Contentions filed on 10 July 2014 have been resolved through the amended plans and proposed conditions and the parties are seeking consent orders. Site and locality 3The site is located on the southern side of Arthur Street and is currently occupied by a singlestorey house. It is rectangular in shape with a frontage of 12.19 metres and an overall area of 504.7 square metres. To the east, the site adjoins a residential flat building (46 - 48 Arthur Street); and to the west a single story dwelling (42 Arthur Street). To the rear, the site adjoins a residential flat building (15 Blenheim Street) that is next to Blenheim House, which is a heritage item. Other development in Arthur Street and the locality includes single storey detached houses and residential flat buildings up to four storeys. The site is close to the University of New South Wales, Sydney Children's Hospital, Randwick Racecourse and Randwick Shopping Centre. Planning controls 4The site is in Zone R3, Medium Density Residential, under Randwick Local Environmental Plan 2012 (the LEP). Residential flat buildings are permissible with consent. Clause 4.3 of the LEP permits a maximum height of 12 metres and cl .4.4 permits a maximum floor space ratio (FSR) of 0.9:1. 5The application relies on and complies with the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP). In particular, it proposes a floor space ratio of 1.4:1, which is permissible under cl 13 of the SEPP. The application provides eight car spaces which exceeds the requirements of cl 14(2), and, consequently, consent cannot be refused on this ground. 6Clause 16 of the SEPP provides that the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Development (SEPP 65) apply to the development and the Residential Flat Design Code (RFDC) is a relevant consideration. Clause 16A provides that consent must not be granted unless consideration has been given to whether the design of the development is compatible with the character of the area. 7Randwick Development Control Plan 2013 (the DCP) is a relevant consideration, particularly in determining the desired future character of the area. The parties agree that the proposal complies with the requirements of the DCP. While there is non-compliance with some numerical controls, including the eastern side setback (C2, cl 3.4.2), external wall height (C2, cl 4.4), and earthworks (C2, cl 4.12), the proposal meets the objectives of these controls. The non-compliance with FSR (C2, cl 3.1), and parking controls (B7, cl 3.2), are inconsistent with the requirements of the SEPP, but the SEPP prevails over the DCP. Evidence 8Objectors to the application were notified of the Consent Orders in accordance with the Court's Practice Direction and a number were present when the Court visited the site. The key concerns of the residents who gave evidence on site and in the written submissions, relate to the number of parking spaces proposed in the development and the potential increase in the demand for on street parking. They considered the number of on street spaces is already inadequate to meet the demand for residents and visitors to the hospital, university and other facilities in the area, and the proposal will exacerbate this situation. The residents were also concerned about the demolition of the existing house and the height, bulk and scale of the proposal, which they considered would be inconsistent with the character of the area and would adversely impact on the heritage significance of Blenheim House. The adjoining owner was concerned about loss of solar access, privacy impacts, and the bulk of the development from her property. 9Ms C Brown, the planning consultant for the council, prepared a position paper on the amended application (exhibit 3), but was not required to give evidence. The paper outlines her opinion on how the amended application addresses the contentions that were in dispute between the parties and is summarised below: 10Contention 1 - Character The amendments to the design have provided increased setbacks to the western side boundary, and changes to the external facade and building treatment which represent a better planning outcome than the original application. The site is in an area undergoing transition and is likely to experience more medium density housing in the future as permitted under the current zoning. 11Contention 2 - Bulk The amendments have provided improved articulation of the building, larger spaces for landscape treatment, amended privacy screening and increased solar access and ventilation to the building. 12Contention 3 - Overshadowing The amendments to the design and layout of the proposal have enabled the provision of common open space areas and landscaped areas that will receive solar access and has increased solar access into the living areas of some of the dwellings. 70% of the dwellings receive solar access for three hours or more each day. 13Contention 4 - SEPP 65 The side setbacks do not meet the "rule of thumb" for building separation in the RFDC. The amendments increase the western side setback and articulation of the building at the centre point consistent with or greater than the DCP controls. The amendments also achieve the "rule of thumb" in the RFDC for solar access and ventilation and the increase in the depth of the balconies provides better amenity and functionality. 14Contention 5 - Precedent The proposal would not be a precedent for other similar scale developments as each application must be considered on its merits. 15I accept Ms Brown's evidence that the amendments to the design have adequately addressed the issues that were in dispute between the parties. In particular, the amended proposal is consistent with the desired future character sought by the planning controls and meets the requirements of cl 16A and other provisions of the SEPP. 16While there are some numerical non-compliances with the DCP, these would not warrant refusal of the application. In particular, the eastern side setback adjoins the driveway of a recent residential flat building at 46 Arthur Street, and, therefore, provides adequate separation to achieve the objectives of the control. Similarly, the external wall height is within the overall height under cl 4.3 of the LEP, and meets the objectives of the control. The FSR exceeds the requirements in cl 4.4 of the LEP but is permissible under the SEPP and is contained within an envelope that is defined by the building height and setbacks. 17The area is one undergoing transition and the planning controls envisage the existing character of single dwelling houses will change to a medium density environment. The proposal is generally consistent with the form of development that is anticipated by these controls. 18While I acknowledge the residents' concern about the number of parking spaces provided in the development, these comply with the requirements of the SEPP, and, therefore, cannot be a grounds for refusal. 19The impacts on 42 Arthur Street are also consistent with what is anticipated under the planning controls; more than three hours of solar access are maintained and impacts of privacy and bulk are reasonable. 20For these reasons, I accept that the amended plans have adequately addressed the contentions of council and that the Consent Orders sought by the parties may be granted. ORDERS 21The orders of the Court, by consent, are: (1)The appeal is upheld; (2)Leave is granted to the applicant to rely on the amended plans numbered: Plan Drawn by MP 00_01 Issue C Urban Future Org. Locality Map and Compliance Table MP 01_01 Issue C Urban Future Org. Site Analysis MP 01_02 Issue C Urban Future Org. GFA Calculation MP 03_01 Issue C Urban Future Org. Proposed Carpark Plan MP 03_02 Issue C Urban Future Org. Proposed Ground Floor Plan MP 03_03 Issue C Urban Future Org. Proposed First Floor Plan MP 03_04 Issue C Urban Future Org. Proposed Second Floor Plan MP 03_05 Issue C Urban Future Org. Proposed Third Floor Plan MP 03_06 Issue C Urban Future Org. Proposed Roof Plan MP 04_01 Issue C Urban Future Org. Proposed Street Elevation North South Elevation MP 04_02 Issue C Urban Future Org. Proposed East and West Elevations MP 04_03 Issue C Urban Future Org. Proposed East and West Elevations From Neighbour MP 05_01 Issue C Urban Future Org. Proposed AA Section MP 05_02 Issue C Urban Future Org. Proposed BB Section MP 07_01 Issue C Urban Future Org. Detail Plans MP 08_01 Issue C Urban Future Org. Material Samples MP 03_01 Issue B - overdrawn in Red Urban Future Org. Detailing OSD Calculations and Site Drainage Concepts Landscape Plan Cover Sheet Arcadia Landscape Architecture 13-120 Drawing 000 Issue C Colour Landscape Plan and Plant Images Arcadia Landscape Architecture 13-120 Drawing 001 Issue C Landscape Plan Arcadia Landscape Architecture 13-120 Drawing 101 Issue C Landscape Details Arcadia Landscape Architecture 13-120 Drawing 501 Issue C