//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWLEC 1224
Land and Environment Court (NSW)
2011-07-20
Mr P
Original judgment source is linked above.
Mr S Patterson Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10233 of 2011
Judgment 1This is an appeal against the refusal by Randwick City Council (the council) of Development Application DA767/2009 (the application) which proposes the demolition of an existing dwelling house and associated structures and the construction of a 3-storey multi-unit development comprising 5x2 bedroom and 2x1 bedroom dwellings, basement car parking for 10 vehicles, landscaping and associated works at No. 95 Wentworth Street, Randwick. 2The main contentions in the matter are the bulk and scale of the building, particularly floor space ratio (FSR) and boundary setbacks, adequacy of landscaped areas, the impact of the proposed building on the streetscape and adjoining properties and the suitability of the site for the proposed development.
The site and its context 3The site is located on the eastern side of Wentworth Street, between Stanley and Sydney Streets and has a secondary frontage to Waverley Street. It slopes from east (Waverley Street) to west with a cross fall of approximately 5.1m. Frontage to both streets is 12.8m, depth is 45.72m and the area of the site is 585.3sqm. 4A single-storey dwelling addressing Wentworth Street, a detached storage shed and single garage fronting Waverley Street are currently erected on the site and proposed to be demolished. All existing trees and shrubs on the site would be removed. 5The site is adjoined to the north and south by 4-storey residential flat buildings (RFB). Garaging for adjacent unit buildings is provided to the rear of the adjoining sites and erected to the Waverley Street property boundaries. 6Wentworth Street is a 4-lane (2 x parking plus dual carriageway) local distributor road and is characterised by a mixture of detached, semi-detached and multi-unit residential developments. Waverley Street comprises a single carriageway and one parking lane. A row of double storey, terraced cottages is located on the eastern side of Waverley Street opposite the site and another group of terraces at the corner of Waverley and Gordon Streets to the north-east of the site. Those terraces are within the Gordon Square Heritage Conservation Area (HCA) and those at Nos 2-26 Gordon Street are listed heritage items pursuant to Schedule 3 of the LEP. The HCA does not extend for the full length of the eastern side of Waverley Street, there are two allotments at the southern end not included in the area. One comprises a detached dwelling house and the southern most lot, an older style residential flat building. The latter has consent for additions and refurbishment and on evidence provided, was approved under different controls to those which apply to the application.
Background and the proposal 7The proposal provides for:
The planning controls 11The site is within Zone No. 2C (Residential C Zone) pursuant to the provisions of Randwick Local Environmental Plan 1998 (Consolidation) (the LEP) . 12There was no contention that the development of the site as proposed did not satisfy the objectives of the LEP and the zone objectives. Multi-unit housing is permitted with consent in the 2C zone. 13The LEP, at Part 2B, includes a number of development standards relevant to the application. Those are 20E - Landscaped area; 20F - Floor Space Ratio (FSR), and 20G - Building heights. In accordance with these development standards, the maximum FSR for the site is 0.65:1, a minimum of 50% of the site is to be landscaped area of which landscaped areas over podiums or excavated basement areas must not exceed 50% of the landscaped area requirements and the maximum height of the building is 12m and external wall height 10m. 14Each development standard includes a note entitled Purpose . There was debate between the parties as to whether the note formed part of the plan and should be taken into account in determining the application. Clause 2A of the plan makes specific reference to that issue and states: Notes in this plan (other than those prefaced with "Purpose:") do not form part of this plan. Accordingly, I can have regard to those notes entitled Purpose as they do form part of the LEP. 15The Multi-Unit Housing Development Control Plan (the DCP) also applies to the site and contains provisions in relation to building and environmental design, facilities and access and provisions that apply to areas of special significance. The DCP is formatted to include a series of controls, which are defined as performance requirements and then 'preferred solutions' are provided as a means of achieving those controls. Section 1.1 of the DCP explains how these provisions are to be applied and says that the preferred solutions illustrate a way that performance requirements may be achieved in the design of development. However they are not compulsory standards. Their achievement will be taken to satisfy the corresponding Performance requirement and the relevant DCP objectives. 16In addition , State Environmental Planning Policy No 65-Design Quality of Residential Flat Development (SEPP65) and the Residential Flat Design Code apply to the proposal however the council did not press compliance with these documents in its contentions .
The issues 17The contentions in the matter are whether the objections to the FSR and height development standards contained in clauses 20Fand G of the LEP should be allowed pursuant to the provisions of State Environmental Planning Policy No 1 (SEPP1); whether the impact of the proposed development is acceptable in terms of the adjoining properties; the streetscape and the context of the Gordon Square conservation area; whether the development represents an overdevelopment of the site and whether the development standard for landscaped area is met.
The evidence 18The hearing commenced on site where an inspection of the property and the area bounded by Wentworth Street, Sydney Street, Waverley Street and Gordon Street was undertaken. In addition, the Court was taken to Unit 9, No 97 Wentworth Street and dwellings at Nos 17 and 21 Waverley Street and heard evidence from the owners/tenants of those properties in relation to their concerns regarding the proposal. Other residents of Gordon Street, Waverley Street and Wentworth Street provided evidence on site. The Court proceeded to walk around a larger area, to view the range of developments in that area, which extended to William Street to the west and Cowper Street to the south returning to the site. 19The matters raised by the residents were
Floor Space Ratio 22The parties agree that the site has an area of 583.5sqm and therefore the provisions of clause 20F(2) apply with the relevant development standard for FSR for sites in the Residential 2C zone with an area of less than 700sqm being 0.65:1. The Court notes that for sites in excess of 700sqm, the FSR increases to 0.9:1. 23The planners agree that the proposed FSR is 0.96:1 or 0.969:1 if the garbage storage areas within the basement area are included. As the FSR exceeds the LEP development standard, an objection to that standard was submitted with the application pursuant to the provisions of SEPP1. 24Mr Harrison says that it is appropriate to allow variation to the development standard for this application, as it is consistent with the purposes of the control. He cites a range of reasons that support his view including that the development proposed complies with other relevant environmental and residential amenity controls, exceeds the minimum landscaped area control, has been designed to avoid and does not generate any adverse impacts on neighbouring properties, is of a high visual quality and consistent with the scale and character of the streetscape, does not result in any unacceptable overshadowing effects and has been found by the council's Design Review Panel (DRP) to be satisfactory in terms of scale and density. 25Ms Laidlaw disagrees and considers that the variation to the FSR standard is not supportable having regard to the proposal's inconsistency with the objectives of the standard, the absence of well founded grounds for variation and the consequential environmental impacts which arise in regard to streetscape to both Wentworth and Waverley Streets, amenity impacts by reason of visual bulk, privacy (acoustic and visual), vies and aspect due to non-compliance with the council's recommended setback controls.
Landscaped area 26The parties disagree on how the development standards for landscaped area in clause 20E of the LEP are applied. Relevant sections of the clause in relation to Zone 2(c) are (subclause (1) applies to Zone 2A): (2) Development, otherwise than for the purpose of a dwelling house, within Zone No 2B or 2C must provide a minimum of 50% of the total site area as landscaped area. (3) Landscaped areas over podiums or excavated basement areas must not exceed 50% of the landscaped area requirements specified in subclauses (1) and (2). The LEP provides a definition of landscaped area as follows: landscaped area means the part of a site area that is used, or capable of being used, for outdoor recreation or garden areas (such as lawns, gardens, unroofed swimming pools, clothes drying areas, barbecue areas, footpaths and the like) and includes landscaped podium areas and water tanks located at ground level. It does not include areas used for parking, driveways, balconies, rooftop gardens or areas used for garbage or recycling material storage or sorting. Podium is not a defined term in the LEP. 27It is agreed that to comply with subclause (2) 292.65sqm of the site would be landscaped area. It is also agreed that the development provides for 327sqm of landscaped area of which, applying the plans provided for in Exhibit J, 168sqm is over podium and 159sqm is "soft" landscaping. Therefore, the development provides in excess of that required for landscaped area. 28The experts disagree on whether the provisions of subclause (3) are satisfied. Mr Harrison says that the area of "soft" landscaping, i.e. the area that is not over podium or excavated basement areas is 159sqm or 54.33% of the landscaped area and therefore satisfies the clause. The council's position, put by Mr Hemmings, is that the area over podium is not to exceed 50% of the required landscaping area, i.e. 50% of the minimum area required which is 50% of 292.65sqm. That equates to 146.3sqm. For this reason, he concludes that the 168sqm over podium fails to meet the development standard set by clause 20E(2) and that no objection to that development standard has been submitted with the application. 29Ms Laidlaw says that failure to comply with the development standard is a further unsatisfactory aspect of the application in terms of both quality and quantity. In a qualitative sense, she considers the areas to be inappropriate on the basis of the extent of landscaping that is contained within planter boxes rather than as deep soil planting. She has calculated only 10.25% of the site is provided as landscaping in deep soil with the majority being narrow strips, which she says, has limited landscape value. The Court notes that the proportion of deep soil planting would be increased through the deletion of the elevated terrace and that would add approximately 5.5sqm however, no substantial planting is proposed in that area. It is also noted that there is no dispute between the parties that the amended treatment of the front building alignment would be included as landscaped area for the calculations in subclause (2).
Building Height 30There are two development standards for building height relevant to the proposal pursuant to clause 20F of the LEP. The first is the maximum height of the building, which is 12m, and it is agreed that is met by the application. 31The second is maximum height for any external walls and that is 10m when measured vertically from any point on ground level. It is agreed that the standard is not met, as there is a variation in the western side of the eastern building in the region of 580mm at its greatest extent. The experts agree that the SEPP1 objection submitted with the application in relation to the wall height development standard is supportable as it arises from a local distortion of ground level.
Setbacks, size and scale of the development 32The primary area of concern with regard to Ms Laidlaw's objection to the treatment of the Wentworth Avenue building alignment was addressed through the amended plans, which removed the elevated terrace area. Whilst she prefers the amended proposal, it introduced the need for additional elements not shown on the plans such as that recommended by Mr Harrison. That includes a fence, either on the property boundary or set slightly back behind a hedge to enclose the area and stairs to link the terrace to the grassed area so that the occupants of unit 1 can use it as private open space (POS) or in another location to provide security to the site. He says enclosing the area as POS is preferable to the area becoming a "dead space" if it were to be common area. Mr Harrison refers to other developments within the vicinity of the site which include front fencing and refers to part 3.5 of the DCP which contemplates front fences to a height of 1.2m. Fencing details, other than the glass balustrading referred to in para 9, were not included in the amended plans, Exhibit J. 33Ms Laidlaw disagrees and says the area should be common area consistent with the treatment of the adjoining RFBs and the remainder of the properties on the eastern side of Wentworth Street. Whilst she acknowledges that there is one property that provides its POS within the building alignment, she says that is a reflection of the topography and does not introduce a foreign element to the streetscape. 34The experts agree that the setback of the building from Wentworth Street is appropriate however Ms Laidlaw considers the balconies to the upper floors should not extend into that setback as to do so encroaches the recognised front setback area, which is inconsistent with the streetscape. 35Both experts agree that is not inappropriate for the building to be designed to address Waverley Street however they disagree as to the extent of setback to that street and the qualitative aspects of treating that setback area. They also agree that the existing garage arrangements to the adjoining flat buildings are a negative aspect of the streetscape. Mr Harrison says that a setback in the order of 5m is appropriate whereas Ms Laidlaw considers the DCP preferred solution of 8m with a minimum depth of planting in deep soil of 4 metres would be appropriate and would achieve good privacy and amenity. 36The experts agree to the extent the side building setbacks vary from those 'preferred solutions' contained within the DCP and that at ground level, on the northern side, the setbacks vary from 1.42m to 3m and on the southern boundary, the basement carparking level, where it is partly above ground, the setback provided is between 900mm and 7.5m with the upper floors being between 1.87m and 4.4m from the side boundaries. The DCP 'preferred solution' is for a minimum average side setback of 5m with no part of the building being closer than 3.5m. 37The objectives for building setbacks are at clause 3.3.1 of the DCP and are to: · Reduce the impact of development on adjoining land. · Ensure adequate separation between buildings for landscaping, visual and acoustic privacy, sunlight penetration and private open space. · Integrate development with desirable characteristics of the established streetscape. The performance requirements for side boundary setbacks are found in clause 3.3.4 and are: Buildings are set back from the side boundary to ensure that:
View loss 41Of the adjoining properties inspected by the experts, they conclude that the only property which will experience view loss in the sense dealt with in the planning principle established in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 is Unit 9 in No. 97-99 Wentworth Street, which they say will lose views of Centennial Park and the Central Sydney CBD. The Court observed the views available from the bedroom, living area and kitchen of this unit on the site view. Unit 9 is located to the rear of the building in its north-eastern corner. 42Mr Harrison does not consider the view available to be iconic and notes that it is obtained across a side boundary. The impact is from the proposed western building, which complies with both height development standards set in the LEP. 43Whilst no inspection was made of the unit above, Mr Harrison concludes that the unit would retain its regional city view in the distance but lose views of rooftops in the foreground of the view. He also considers that the properties on the eastern side of Waverley Street that currently enjoy a view towards the CBD would lose that view. 44Ms Laidlaw concedes that the view loss arises primarily from the height of the development, which complies with the LEP controls however, says that it is also a consequence of a development that is substantially in excess of the relevant FSR standard. It is her opinion that a relatively small reduction in the height of the western building could secure at least a partial reinstatement of the views currently enjoyed by No 97-99 Wentworth Street.
Whether the proposal represents an over-development of the site 45Ms Laidlaw says that the failure to comply with the FSR, height and landscape controls of the LEP and the preferred solutions of the DCP with regard to setbacks contributes to a poor streetscape outcome to both Wentworth and Waverley Streets as well as amenity impacts to surrounding residences. Whilst she accepts that the variations are to some extent attributable to the narrowness of the site, her evidence is that it is also because the proposal provides a FSR in excess of the maximum for the site and also that allowed for larger sites (i.e. sites in excess of 700sqm - 0.9:1). It is her conclusion that the impacts on the views/aspect, privacy and general amenity of adjoining residences are unacceptable and could, if a more conservative level of development were sought, be more sensitively handled and have less impact on the streetscape. 46Mr Harrison considers the development has been designed to minimise impacts on the neighbouring development and where impacts do occur, he considers them to be reasonable given that the units are in a vulnerable location and notwithstanding that, will continue to have a sufficient level of amenity in terms of solar access, privacy and outlook. He says that a reduction in the floor space of the development or increased setbacks would not noticeably alter the impacts of the development and as such compliance with the relevant controls is unnecessary and unreasonable.
Findings and conclusion 47The applicant relies on two and possible the need for a third objection to development standards contained within the LEP. These are in regard to FSR, external wall height and the extent of landscaped area over podium if I find that the council's interpretation of its LEP is correct. 48The alternate propositions put to me in relation to the interpretation of clause 20E of the LEP are those outlined in para 28 above. The applicant's position is that because the plans provide for more than 50% of the landscaped area as 'soft space' the development must comply. I do not accept this position on the basis that the area over podium exceeds 50% of either the provided landscaped area or the minimum area required by subclause (2). The application requires a minimum of 292.65sqm of landscaped area, that being an agreed position. No more than 50% of that can be over podium, which equates to 146.325sqm. The plans provide 168sqm over podium. Even if those calculations are based on the area provided (327sqm) and not the minimum, the application still fails. The math in that instance is the 50% of the provided area that cannot be over podium and that is 50% of 327sqm, which is 163.5sqm. 49As this provision is a development standard, any variation to that standard requires consideration of an objection pursuant to SEPP1. No such application is before the Court. Ms Irish, for the applicant, has requested that in the event that I find in favour of the applicant, the proceedings be re-opened to allow preparation and consideration of such an objection. 50With regard to the FSR and height controls, I must determine whether it is appropriate to allow variation to those development standards. Although that classic formulation was expanded further by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446, it is not necessary, in my view, in these proceedings, to go beyond the five questions posed by Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46. Those questions are as follows:
Orders 60The orders of the Court are: (1)The appeal is dismissed; (2)Development application DA767/2009 which proposed the demolition of an existing dwelling house and associated structures and the construction of a 3-storey multi-unit development comprising 5x2 bedroom and 2x1 bedroom dwellings, basement car parking for 10 vehicles, landscaping and associated works at No. 95 Wentworth Street, Randwick is refused consent. (3)The exhibits, other than exhibits 4, D and J, are returned. Sue Morris 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: 05 August 2011
Ballas Mendes Constructions Pty Ltd
Randwick City Council