Land and Environment Court New South Wales Medium Neutral Citation: Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386 Hearing dates: 12-14 August 2015 Date of orders: 25 August 2015 Decision date: 25 August 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: residential flat building; whether objection to development standards for building height and floor space ratio are well founded; compliance with planning controls; impact on adjoining properties; adequacy of solar access; Legislation Cited: Randwick Local Environmental Plan 2012; 28 State Environmental Planning Policy No 55 – Remediation of Land (SEPP55); State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65); State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Affordable Rental Housing) 2009; Environmental Planning and Assessment Act 1979 Texts Cited: Randwick Development Control Plan 2013; Residential Flat Design Code Category: Principal judgment Parties: Micaul Holdings Pty Limited (Applicant) Randwick City Council (Respondent) Representation: Counsel: Mr I Hemmings SC (Applicant) Mr J Robson SC (Respondent) Solicitors: Mr G Christmas, Apex Law (Applicant) Ms V McGrath, Norton Rose Fulbright (Respondent) File Number(s): 10170 of 2015 Judgment 1. Micaul Holdings Pty Limited lodged Development Application 11/2015 with Randwick City Council on 12 January 2015 seeking consent to demolish existing buildings and construct a residential flat building at 293-297 Alison Road, Coogee. 2. The council had not determined the application within the prescribed period and Micaul is appealing its deemed refusal. The site and locality 1. The site comprises three adjoining allotments; Lot 1 DP172506 (No 293 Alison Road, Lot 1 DP 172815 (No 295 Alison Road) and Lot 11 DP 303463 (No 297 Alison Road) on the southern side of Alison Road between Melody and Mount Streets. Each lot has a frontage of 9.65m to Alison Road however Lot 11 is dual fronted with a 4.285m frontage to Abbott Street. That additional frontage acts as an access handle and provides driveway access to the lot and is also a right-of-way in favour of Nos 293 and 295. The length of the driveway is 42.67m and it is currently fully concreted. 2. Whilst not a contention in the case, at the request of the Court details of the right of way were investigated. That investigation revealed that in addition to the right-of-way providing access to each of the lots it also serviced the adjoining residential flat building SP8810 although it is not used to provide any access with a high retaining wall separating that land from the site. It was agreed between the parties that it would need to be extinguished to allow use of that land as common open space for the development as proposed. The council says such a requirement should be a deferred commencement provision whereas the applicant proposes it as an operational condition to be effected prior to issue of any work the subject of the consent commencing. 3. The combined frontage of the site to Alison Road is 28.69m and the area of the site including the access handle is 2,398sqm and without is 2,220sqm. 4. Existing improvements comprise: * No 293 Alison Road – a residential flat building of 3 apartments comprising two levels of accommodation, partly set over ground floor parking, and with a detached single garage positioned adjacent to Alison Road; * No 295 Alison Road – a single storey dwelling with a detached garage and carport adjacent to Alison Road. The allotment also has another detached garage at the rear of the site, accessible from Abbott Street via the right-of-way; * No 297 Alison Road – a single storey dwelling with a detached garage set at the rear of the site, accessed by the right-of-way. 1. The site topography varies appreciably. It sits at a low point between markedly higher land to the east and west along Alison Road. While the northern third of the site is generally level, it falls away from its north eastern and north western corners to a low point through the centre of that part of the site. The maximum change in grade is 1m. For the balance of the site, the high point is located at the south west corner. From there the site falls to the east, along the common boundary with Nos 8-14 Abbott Street with a change in level of 3.5m; to the north, with a change in level of 7.25m along the western site boundary common with Nos 2.-6 Abbott Street and to the northeast towards the low point at the centre of the site, with a change in level of 7.5m. 2. It is subject to a major overland flow path and the management of this stormwater flow has been the subject of extensive floor modelling. It is common ground that the design of the proposal satisfactorily addresses this constraint. 3. Development surrounding the site is residential, however the built form varies in terms of scale, form and age. No 2-6 Abbott Street (SP 8810) adjoins to the west (also known as 287-291 Alison Road as it has dual street frontages) and contains two large residential flat buildings set at each end of the property which is elevated above the site with its common boundary defined by a retaining wall of variable height. Those buildings are older style developments of 3 storeys set above ground level garages. 4. Beyond No 2-6 Abbott Street, west along Alison Road, are a mix of dwellings and older flat buildings typically of 2 storeys. 5. No 301 Alison Road adjoins to the east of the site, is a vacant allotment with a development consent granted in October 2013 for the construction of a three storey residential flat building with a partial basement level. That development was described as "The Boathouse" during the hearing. 6. Beyond No 301, east along Alison Road, is a mix of dwellings, single and two storey and older flat buildings, also typically of 2 storeys above garages. 7. Opposite the site on the northern side of Alison Road are a mix of dwellings and 2 storey flat buildings. 8. Nos 8,10,12 and 14 Abbott Street adjoin the site to the south (rear) and comprise single storey, semi-detached dwellings set adjacent to the street frontage. No 16-18 Abbott Street adjoins the site to the southeast, being adjacent to the access handle of No 297 Alison Road and contains a 3 storey residential flat building set above garages. Background and the proposal 1. The applicant was granted leave to rely on amended plans following a conciliation conference presided over by another Commissioner of this Court. 2. The plans now before the Court propose: * Demolition of all structures and removal of all trees; * Excavation of the site to accommodate two basement levels comprising 46 car parking spaces, 3 motor cycle spaces, multiple garbage storage areas, general storage areas, a bicycle storage area, fire egress stairs and two lift cores for pedestrian access to the residential floors above; * Construction of a residential flat building of 4 storeys at the northern end of the site adjacent to the Alison Road frontage, comprising 14 apartments (4 x 1 bedroom and 10 x 2 bedroom units): * Construction of a residential flat building of 4 storeys at the southern end of the site comprising 16 apartments (16 x 2 bedroom units); * Associated site works comprising new landscaping and fencing; and * Associated stormwater drainage works. 1. The building has a maximum height of 14.5m and a maximum floor space ratio (FSR) of 0.91:1. 2. The council exhibited those plans for 14 days and received 21 submissions, all objecting to the proposal. 3. A substation was shown on these plans however the applicant has investigated whether this is required and has advised the Court that it is not. For that reason, amended landscape plans were prepared that provide for the landscaping of that area and the deletion of vehicle access along the handle and paving of that area as a pedestrian pathway with multi-tiered mass/screen/buffer planting using native grass, sedge and accent plantings. 4. Whilst not forming part of the original application, the applicant proposes the creation of a pedestrian through site link along the eastern side of the site so as to connect Alison Road to Abbott Street and offers the creation of a public right-of-way for pedestrian access. That link utilises the pedestrian pathways that provide access to the proposed unit blocks and common open space areas within the development. Its purpose is to provide a shorter, more level pedestrian route from Alison Road to Coogee, Coogee Beach, buses, shops and recreation areas. 5. The council does not accept the dedication of the area for public usage and opposes any condition of consent that would facilitate that dedication. The planning controls 1. The site is zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (LEP). A residential flat building is permitted with consent in that zone. 2. Clause 2.3 of the LEP requires a consent authority to have regard to the objectives of a zone when determining a development application within that zone. The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings. 1. Part 4 of the LEP contains Principal Development Standards with clauses 4.3 (Height of buildings) and 4.4 (Floor space ratio) relevant to the application. The objectives of those clauses are : 4.3 Height of buildings (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. 4.4 Floor space ratio (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that buildings are well articulated and respond to environmental and energy needs, (c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. 1. The maximum height of buildings for the site is 9.5m and FSR is 0.75:1. The proposal exceeds these development standards and the applicant relies on the provisions of clause 4.6 of the LEP which provide for exceptions to those standards. 2. Clause 5.9 requires consent to remove trees. 3. Randwick Development Control Plan 2013 (DCP) in particular part C2 Medium Density Residential, is relevant to the application. 4. State Environmental Planning Policy No 55 – Remediation of Land (SEPP55); State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC); State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 (SEPP BASIX) and State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) are also relevant to the application. It is common ground that the provisions of Part 3 Retention of existing affordable rental housing in SEPPARH are not engaged. The evidence 1. The hearing commenced on site with evidence heard from a number of objectors to the proposal. The issues raised are summarised as follows: * Amenity impacts from overshadowing, loss of privacy, loss of views, increased noise, light pollution and use of the pedestrian pathway; * Increased traffic on local roads which are already hazardous due to the narrow widths, topography and level of street parking; * Increased demand for street parking which is already at capacity; * Inappropriate scale and character; * Overdevelopment of the site as demonstrated by significant non-compliances with the development standards for building height and FSR; * Impacts for vegetation on adjacent sites and loss of habitat for wildlife, need to retain existing avocado tree that provides screening; * Impacts for structural integrity of adjacent buildings as a consequence of dewatering and significant site excavation; * Inappropriate to construct proposed buildings within a floodway; * Excessive and extended impacts from excavation and construction. 1. Expert evidence in the form of a Joint Report, Exhibit 4, was provided by: Applicant Council Town Planning Mr A Betros Mr B Roeleven Urban Design Ms K Castellanos Ms A Thomas Solar Access Mr S King 1. Mr King was not required for cross examination however did supplement his contribution to the Joint Report by updating the table that demonstrated the extent of solar access provided to individual units within the development. 2. Mr Betros prepared the two written requests that seek exemption to the development standards for building height and FSR. 3. The experts agree that the siting of the buildings on the site is logical allowing a front setback, a common open space in the middle of the two buildings and a rear recreational open space. The side boundary setbacks (4m) comply with the DCP requirements and the rear setback that varies from 11-12m due to the angled southern boundary is also compliant. The area available for landscaping and deep soil satisfies the minimum required under the DCP. 4. They disagree whether the building height and FSR of the proposal are appropriate. Building height 1. Mr Betros says the distribution of height has been carried out in a responsive manner to this large amalgamated site with the variation at the front partly due to the required flood freeboard levels however he does not rely solely on this for justification. He says there is a sound streetscape outcome as the proposal will present to Alison Road as 3 storeys because the non-compliant component is substantially recessed from the front and sides of the perimeter of the building below and therefore appears as a secondary component. The rear component of the proposal where it is non-complaint is significantly setback 12m behind the rear of the front building and would not be readily perceptible in the Alison Road streetscape. 2. He says the particular site context contributes to justification of the proposed height as it lies in between an approved 3 storey residential flat building(RFB) (the Boathouse) and an elevated 4 level residential flat building higher up to the west at 2-6 Abbott Street, is also adjoined to the south-east by a 3-4 level RFB (16-18 Abbott St) with a separation distance of over 27-30m from the rear of the dwellings to the south (Nos 8-14 Abbott St) ensuring an abundant separation distance in a dense urban environment. Furthermore the difference in topography ensures that the proposed height will only be 2-3 storeys when viewed from the rear of these properties. The combination of this contextual analysis demonstrates that the proposed height will sit comfortably in this context and the proposal represents an appropriate and desirable transition between the established and approved residential flat buildings either side of the subject site. 3. Mr Betros acknowledges the height of the buildings is beyond the 9.5m development standard which informs the desired future character (DFC) however says the surrounding buildings are strata titled and unlikely to change for a significant character so the proposed height will appear consistent with the DFC and, when viewed from the dwellings to the south, will appear a maximum of 3 storeys therefore consistent with the DFC. 4. Ms Castellanos says the design has a good contextual fit, will contribute positively to the character of the area and has no privacy, overshadowing or view loss issues. The proposed height, type of development and the configuration of the footprints on the site is responsive to its immediate context. The subject block is characterised by an eclectic mix of building types, architectural expression, scale and heights with a concentration of RFBs at the centre with 'fine grain' buildings at the periphery of the block mainly concentrated along Mount Street and Melody Street. It also has a good contextual fit along Alison Road, with a 3 storey presentation to the street, the same as approved on the adjacent site to the east. Due to the changes in the topography, the perceived height along the streetscape also varies with no defined height datum. That topography is a major element of the streetscape and the location of the site within the lower levels of the street allows the proposed massing to be absorbed and well integrated within the existing and proposed built form along the street. The proposal will fit comfortably within and contribute to the eclectic and varied streetscape. 5. Ms Castellano says that the height variation is a contravention mainly to the building height plane as the proposal generally complies with the external wall heights which apply to the side elevations and this is important as it assists in reducing the perception of bulk and scale from the adjoining properties as well as from the public domain when the proposal is seen obliquely form the footpath. 6. Mr Roeleven says the proposed northern building breaches the 9.5m development standard at all elevations, with almost the entire fourth floor entirely above the height limit. The southern building exceeds the height control along most of its northern elevation, all of its eastern elevation and part of its southern elevation with a maximum height of 13.2m excluding the lift overrun. He says the LEP controls do not categorise the locality as a dense urban environment as contended by the applicant, with higher densities allocated for localities which have a more suitable established character, are closer to services and are either on, or are closer to public transport routes. The site is not at a zone interface with a higher density residential area and is not undergoing transition. The four storey building adjoining to the west is an atypical element of the Alison Road streetscape, which is predominately buildings of 1-2 storeys. He says a 3 storey building would be appropriate with regard to the prevailing built form and the intended DFC contemplated by the zone objectives and the associated controls. 7. Mr Roeleven says the breach of the LEP height and FSR controls combine to create a visually dominant building that is not consistent with a medium density residential environment. 8. Ms Thomas says the development has not taken into consideration the desirable elements of the existing streetscape and built form and the DFC of the area. Within this locality, the existing urban characteristics is that of a low to medium density area comprising predominantly detached dwellings interspersed with occasional 4 storey apartments. She agrees with Mr Roeleven that the development to the west is atypical of the urban character of this precinct and says it is not an exemplary or desired urban form, nor a residential typology desired in contemporary residential development and is not reflected in the council's height standard. Ms Thomas says whilst the built form transition achieves an acceptable outcome, other factors of improved amenity and compliance with the height and FSR objectives of the zone must be considered. The additional height increases overshadowing to the landscaped open spaces between the buildings and to the south of the rear building, particularly in mid-winter. She advocates the removal of the 4th storey to improve amenity of those units and the common open space. Floor space ratio 1. The council's experts says the inclusion of the access handle in calculation of the FSR, whilst acknowledging it forms part of the site, adds significantly to the bulk of the building and has the effect of a FSR of 0.97:1 on the regular portion of the site. Mr Roeleven says the dimension and location of that handle does not contribute to the provision of landscaping and open space that may otherwise assist in managing the scale and mass of the building. 2. Mr Betros says there are sufficient contextual grounds to justify the proposed bulk and scale and the associated density, there are no adverse external amenity impacts generated by the proposed FSR in regard to overshadowing, privacy or view loss. 3. Mr Roeleven says in terms of streetscape considerations, for the northern building, a fourth floor at the street frontage, comprising GFA which is wholly above the height control, is not essential to achieve a superior transition between adjacent building form as as compared to a compliant scheme. Further, despite its setbacks relative to the floor plates below, it will remain readily apparent within the streetscape as a four storey building. The southern building will also be apparent within the streetscape as, despite substantial site works, it remains elevated above the northern building and also the envelope of the approved building for adjoining No 301 Alison Road, with the development on that site properly arranged so that its rear building is lower than the building at the street edge. 4. Ms Castellanos says the proposed layout and distribution of built form across the site is contextual with the immediate surrounding residential flat buildings at the centre of the block. The character of the block is one where larger residential building sit side by side to lower scale single residential dwellings and this is anticipated by the zone controls. The proposal breaks the overall bulk and scale into segments and redirects the outlook and visual amenity away from the side boundaries to centralised areas of green open space and is superior to the layouts of the surrounding buildings that occupy the longitudinal distance of the site will all of the amenity being dependent on the side boundaries. The additional quantum of development does not significantly alter the massing of the proposal, nor make it out of context with the surrounding development, the block or the streetscape character. 5. Ms Thomas says the proposed development results in visually dominant building of greater bulk/mass than envisaged under the DFC, with a large proportion of the private open spaces of the units receiving less than 10% sunlight in mid-winter and increased overshadowing to the landscaped open spaces between the buildings and to the south of the rear building. Provision of a development in closer compliance with the denstiy development standard may potentially result in a smaller development footprint with resultant increase in landscaped areas, increased solar access to private open spaces to apartments currently lacking in this amenity, reduction in depth of excavation under the southern building and less excavation with reduction in parking. Solar access 1. The experts agree that solar access is acceptable, with the exception or the private open space areas. 2. Despite this agreement, Mr Roeleven says the proposal does not satisfy the DCP requirement which provides that at least 50% of the private open space of dwellings should receive 3 hours solar access at midwinter or the RFDC control which says that 70% of apartments should receive a minimum of 3 hours of direct sunlight to private open spaces between 9am to 3pm midwinter as only 63.3% of units meet that best practice target. 3. Mr Betros says the site is a dense urban environment, thereby the 2 hour requirement for solar access in the RFDC is appropriate to the site and references Mr King's report that demonstrates 90% of units will achieve this goal. The majority of private open space areas will receive in excess of 2 hours solar access and the outer components of those that will not, will receive morning or afternoon sun. The variation is not significant given the large nature of the balconies which are 25sqm (8sqm required under DCP) and is acceptable in regard to solar access. 4. Ms Thomas says 16 apartments receive 3 hours of solar access and the remaining 14 apartments receive substantially less than 50% of sunlight to their private open spaces so as a consequence, those apartments will receive less than desirable solar amenity. She advocates a redesign of the development with a reduction in building footprint to address this issue. Clause 4.6 written objections 1. Mr Betros prepared these objections and, because the objectives of the particular development standards are similar, the objections are also similar in terms and matters argued. He says compliance with the development standards is unreasonable and unnecessary following an assessment of the proposal against a number of criteria and concludes the development provides a compatible streetscape and contextual outcome; the proposed height, bulk and scale would not create any adverse visual bulk impacts; there is a reasonable visual relationship with adjoining developments with appropriate separation distances; there are no adverse shadow, view, visual and acoustic privacy impacts; the development provides for high quality internal amenity; no adverse heritage impacts; parking is fully compliant with the DCP control and the development will have no adverse traffic impacts associated with the additional density subject to no right turn movements out of the site; landscaping is compliant with the DCP controls and contributes to the amenity of the site and provides a short-cut for pedestrians travelling to these facilities by eliminating the steep hill to the east; setbacks are compliant and the additional housing associated with the additional FSR/building height is a better planning outcome in view of the aforementioned reasons. The high level of design and outperformance of internal amenity indicators combined with the public benefit associated with the publicly accessible access path also contribute to the demonstration that the proposal is a better planning outcome than a compliant development. 2. Mr Betros says that given the reasonable and appropriate streetscape, contextual, amenity, visual bulk, landscape, traffic and parking outcomes associated with the proposed floor space/building height, there would be no public benefit in maintaining the development standards. He says the site is somewhat unique in Coogee as its amalgamated area of 2400sqm represents an exceptionally large land parcel whilst the overland flow path and the two frontages also contribute to a particular site circumstance. The presence of 3 and 4 level RFBs around the majority of the site's perimeter also contribute to the particular site complex. 3. In relation to whether there are sufficient environmental planning grounds to justify contravening the development standards he says there are. He lists the following: retention of 3 hours solar access to surrounding living and private open space area; retention of visual and acoustic privacy; no loss of views; no adverse or unreasonable traffic or parking impacts; no adverse or unreasonable streetscape or heritage impacts; no adverse or unreasonable visual bulk impacts; no internal amenity grounds due to adequate solar access ventilation, private open space provision and compliant side and rear setbacks and deep soil areas being provided. 4. He concludes the development is consistent with the objectives of the zone and the development standards. Conclusion and findings 1. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted. 2. Clause 4.6 is in the following form: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence………………. 1. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required. 2. Having regard to the evidence and in particular to the written objections prepared, I am satisfied that these tests have been met. The site is unusual in terms of its location at the lowpoint of the locality, its proximity to larger RFBs that would not comply with the building height development standard and its flood affectation. These constraints provide sufficient environmental planning grounds when considered with the issues raised in Mr Betros' written objection to justify an exception to both the FSR and building height control. I do not consider, in the circumstances of the case that it is necessary to comply with those standards and that adequate reasons have been provided for the exception. 3. Having found the precondition to consent is met, it is necessary to consider those matters proscribed in s79C of the Environmental Planning and Assessment Act 1979 (EP&AAct). 4. The development is permissible with consent in the R3 zone and, having found that it is appropriate to vary the building height and FSR controls, is one that is acceptable under the provisions of the LEP. I accept the evidence of the applicant's experts that the development provides an acceptable level of amenity and solar access and that where there is non-compliance with DCP controls, that is not a reason to refuse consent. There is adequate separation to address any external privacy impacts and I support the proposal to retain existing vegetation, particularly the large avocado tree in the south western corner of the site to enhance the privacy that arises from that separation. 5. I am satisfied that the impacts of the development have been adequately mitigated and the site is suitable for the proposed development. Parking provided satisfies the DCP control and, subject to the prohibition of a right-hand turn from the development, the experts agree that there will be no adverse traffic impacts. The conditions 1. The proposal is satisfactory only on the basis that the southern area that currently forms the right-of-way can be incorporated into a landscaped common open space area without any impediments to its use for that purpose. Accordingly, I accept the council's submission that any consent granted should be on the basis of a deferred commencement and the right-of-way extinguished prior to the consent becoming operative. 2. The applicant proposes to grant a public pedestrian right-of-way through the site. The council, as the local government authority in whom such a right-of-way would be vested does not wish to receive that benefit. I do not consider that the pathway, though beneficial to residents in the vicinity of the site, is necessary and therefore do not impose the condition. 3. The council seeks to impose a condition that requires traffic studies to be conducted along Alison Road. The applicant opposes this condition and submits the development is acceptable provided a right-hand turn from the site is prohibited. There is no evidence that supports the need for any further traffic studies and it is not a contention in the case. For that reason, the condition sought by the council has not been imposed. 4. The applicant proposes an additional condition that would require the common open space areas to be fenced to prevent access by the public when using the right-of-way that it intended to dedicate. As I have not imposed a requirement for that dedication, the condition is not required and it would be unnecessary and constrain the optimum use of those areas. 5. A condition requiring the retention and protection of the avocado tree in the south-western corner of the site has been added. 6. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application 11/2015 for the demolition of existing buildings, tree removal and construction of a residential flat building at 293-297 Alison Road, Coogee is approved as a deferred commencement consent subject to the conditions of consent in Annexure A. 3. The exhibits, other than exhibits A, C, D and 1, are returned. _____________________ Sue Morris Commissioner of the Court 10170 of 2015 Morris (C)_amended 29.10.2015 (498 KB, pdf) ********** Amendments 29 October 2015 - Conditions amended 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: 29 October 2015