McGregor Westlake Architecture Pty Ltd v Randwick City Council [2015] NSWLEC 1249

Land and Environment Court New South Wales

Medium Neutral Citation: McGregor Westlake Architecture Pty Ltd v Randwick City Council [2015] NSWLEC 1249 Hearing dates: 11 May 2015 Decision date: 06 July 2015 Jurisdiction: Class 1 Before: Smithson AC Decision: 1. The appeal is upheld; 2. Development application (116/2014), as amended, for alterations and additions to the existing flat building including a new café is approved, subject to the conditions in Annexure A; and 3. The exhibits, except Exhibits A and 2, are returned. Catchwords: DEVELOPMENT APPLICATION – Alterations and additions to a residential flat building including new café; view impacts; café opening hours and patron numbers Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings Randwick Local Environmental Plan 2012 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Category: Principal judgment Parties: McGregor Westlake Architecture Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: Mr I Pickles (Applicant) Mr J Robson (Respondent) Solicitors: Mr G Christmas of Apex Law (Applicant) Mr S Patterson of Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10828 of 2014

Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application (DA) No. 116/2014 for alterations and additions to a residential flat building and construction of a new café on land known as 58-60 Carr Street, Coogee. 2. The development the subject of the DA specifically comprises; a café/restaurant above an existing car park fronting Carr Street with service area at street level; a new entry from Kurrawa Avenue; a new car park gate on Carr Street frontage; alterations to the car park configuration including extensions to a car port at the rear; addition of a ground floor storeroom; extension of first floor terraces to the front of the building; and extension of balconies on the eastern and western sides. 1. The Council's Design Review Panel supported the DA and was critical of a number of the site specific DCP controls for the site. 2. The DA was advertised between March 14 and March 26, 2014. Thirty two objections were lodged raising the following concerns: * unacceptable view impacts, * bulk and scale, * attraction of undesirable elements, * inadequate waste management, * noise impacts from larger balconies and the café area, * overshadowing, and * undesirable development on the foreshore and in this part of Coogee. 1. The DA was refused by Randwick City Council ("the Council") on 2 September 2014. The grounds for refusal were as follows: 1. The proposal does not comply with the Floor Space Ratio standard under the Randwick Local Environmental Plan 2012 (RLEP) and the Clause 4.6 exception is not well founded. 2. The proposed development does not comply with the objectives and relevant controls under section 8.2 of the Randwick Development Control Plan 2013 (RDCP). 3. The proposal will adversely impact on the amenity of surrounding residential properties and the public domain. 1. The appeal was the subject of a conciliation conference on 30 January 2015 under s 34 of the Land and Environment Court Act 1979 (the Court Act). Some adjoining properties, as well as the site, were inspected and viewed at the onsite conference and the objections of neighbouring residents heard. 2. The conference was adjourned to allow the applicant to consider amendments to the plan to satisfy the concerns of the Council and adjoining residents. The resumed s 34 conference was held on 6 March 2014 and, as no agreement was reached, the conciliation conference was terminated pursuant to s34(4)(a). The matter was then listed for hearing. 3. Prior to the hearing, leave was granted by the Court on March 20, 2015 for the applicant to rely on amended plans developed during the conciliation process. 4. The amendments made to the original application were proposed by the applicant in order to lessen the impact on neighbours and address a number of the Council's concerns. The applicant advised that the changes to the plans have the following effect: 1. the impacts on the view from the neighbouring residential flat building are reduced by the lowering of the height of the café building and increasing the setback of the upper level of the café to 9.82 metres from Carr Street thereby improving the view corridor; 2. reducing the width of the balcony within the view corridor; 3. revising the balustrade material from metal to glass to reduce the view impact from the neighbouring residential flat building; and 4. reducing the size of the garbage room and car port in the south eastern corner of the site providing a greater setback to the neighbouring building. 1. Notwithstanding the modifications undertaken to the application, a number of neighbours attended at the commencement of the hearing onsite to raise continuing concerns with the development. The Council also noted that there had been significant opposition to the development amongst the residents. 2. Neighbouring residents at the commencement of the hearing re-iterated issues raised in submissions on the DA in terms of view impacts, bulk and scale and noise impacts but also raised concern in terms of: * traffic and servicing/delivery vehicles * changes to the balconies and how they would be viewed from the beach, * disabled access to the cafe, * inappropriateness of a bar in this location, * establishing a precedence for other commercial development in the area, and * the development was not in accordance with advice the Council had provided when the LEP amendment was undertaken and DCP controls prepared to permit a café on the site, which was supposed to be small and located at street level. 1. A representative of the Strata Body for the subject site also spoke and advised that Council Planners had suggested the café at the front of the building when their original intent had been to only upgrade the residential aspect of the building. 2. The adjoining café, Barzura, was also visited on the first day of the hearing. The proprietor of Barzura advised that the café was licensed for 90 patrons, including 30 in the footpath dining area. 3. In their Joint Report, the Planning experts agreed that the bulk and scale of the development was no longer an issue as the amended plans reduced both bulk and scale, particularly along the eastern boundary, significantly reducing the potential amenity impacts resulting from development. It was also acknowledged by the Council that: 1. whilst the proposed Floor Space Ratio (FSR) exceeded the development standard for the site, this was largely attributable to the residential tower component that has been in existence for some time and which already exceeded the FSR; 2. a recent amendment to the Randwick Local Environmental Plan facilitated a cafe/restaurant use on the site and the proposal is consistent with the change that was made to accommodate that use. That amendment foreshadowed additional gross floor area to accommodate the new use; and 3. The net change in gross floor area is not significant in numeric terms. 1. Further amended plans were filed during the hearing. The key issues that remain in dispute at the hearing were: 1. Whether further modifications to the development should be required to further minimise view impacts; and 2. The required conditions to be imposed on the operation of the café to address neighbours' concerns and preserve amenity, specifically in terms of number of patrons and hours of operation. 1. The Council accepted that what was proposed in the revised development scheme was generally not inappropriate and they supported the proposed improvements to the building. However, they were seeking the imposition of "relatively modest" conditions to ensure residents' amenity was maintained. 2. Expert Planning evidence was provided to the hearing by Mr Stuart Harding for the applicant and Mr Jeffrey Mead for the Council.