David Mitchell Architects Pty Ltd v Randwick City Council

David Mitchell Architects Pty Ltd v Randwick City Council - [2022] NSWLEC 1144 - NSWLEC 2021 case summary — Zoe

COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA/297/2020) by the Randwick City Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks development consent for: partial demolition and partial retention of the existing residential buildings (11&13 Abbotford Street Randwick) and demolition of existing multi dwelling housing (9 Abbotford Street Randwick); construction of a part 3/4 storey boarding house arranged over a central courtyard with 59 boarding rooms (including for a boarding house manager), basement carparking for 21 cars, 14 motorcycle and 14 bicycles; and tree removal and landscape works.
The appeal was subject to conciliation on 30 March 2021 (s 34 of the Land and Environment Court Act 1979 (LEC Act), however agreement was not reached, and conciliation was terminated. The proceedings were dealt with as a hearing.
In August and November 2021, the Applicant lodged amended development applications on the NSW Planning Portal. The Applicant was further granted leave to rely on further amended architectural and landscape plans during the hearing. Randwick Council as the relevant consent authority provided their consent, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant amending the development application. The evidence in the supplementary joint expert reports and the findings in this judgment relate to the amended development application.
Further, during the final stages of the hearing, the Applicant informed the Court that they proposed to amend their development application by Notice of Motion to respond to the oral evidence of the planning experts. An adjournment was provided to allow the Applicant to prepare the mooted amended plans. However, given the time required for the Applicant to produce the relevant documents to support, such an amendment to their development application, the motion was ultimately withdrawn by the Applicant and not heard by the Court.

[8]

Preconditions to the grant of consent

Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows.
The first precondition relates to the potential for site contamination. The Statement of Environmental Effects filed with the development application notes that: "Based on an investigation of application history, perusal of historic aerial imagery and a site inspection, it is unlikely that the site has previously been used for any potentially contaminating land uses, and is therefore unlikely to be contaminated. In addition, the site will be almost entirely excavated to accommodate the basement parking structure and consequently a significant amount (if not all) topsoil will be disposed of at the appropriate facility thereby removing any possible contaminants." (Exhibit C)
State Environmental Planning Policy (Resources and Energy) 2021 (SEPP) came into force on 1 March 2022. Whilst the SEPP transfers the provisions of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) to the new SEPP, the provisions of SEPP 55 continue to have effect to the DA by dint of ss 5(6) and 30(2)(d) of the Interpretation Act 1987. With regard to the consideration required at cl 7 of SEPP 55, I accept that the likelihood of contamination is low, and the land is or can be made suitable for the proposed use. The precondition is satisfied.
The development application was lodged with a BASIX Certificate that satisfied the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Environmental Planning and Assessment Amendment (Housing) Regulation 2021 came into effect on 26 November 2021. It amended the definition of a 'BASIX affected building' to specifically not include boarding houses. As such, no amended BASIX certification is required.
State Environmental Planning Policy (Housing) 2021 (SEPP Housing) commenced on 26 November 2021. SEPP Housing does not apply to a development application made, but not yet to be determined before the commencement date: sch 7 2(a) of SEPP Housing. The provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEEP ARH) continues to apply to the development. The subject site is within zone R3 Medium Density Residential, under Randwick Local Environmental Plan 2012 (LEP 2012), therefore Div 3 of Pt 2 of the instrument is applicable. As the subject site contains a heritage item, the FSR bonus under cl 27(1) of SEPP ARH is not applicable. (Exhibit J) Clause 30 of SEPP ARH states: 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following-- (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
Relying on the Statement of Environmental Effects (Exhibit C) and the architectural plans (Exhibit G), I am satisfied that the development application meets the standards listed at cl 30 of SEPP ARH, meeting the requirements of the precondition. I note the Respondent does not contend that these standards are not met.
Clause 30A of SEPP ARH states that 'A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area'. My consideration of this precondition follows.

[10]

Wall height adjacent the interim heritage items

Addressing first the appropriateness of the wall height adjacent the IHO item, Section 4.4 of Part C to of DCP 2013 states: 4.4 External Wall Height & Ceiling Height … Objectives: - To ensure that the building form provides for interesting reforms and is compatible with the streetscape. - To ensure ceiling heights for all habitable rooms promote light and quality interior spaces. - To control the bulk and scale of development and minimise the impacts on neighbouring properties in terms of overshadowing privacy and visual amenity. Controls: i) where the site is subject to our 12m building height limit under the LEP, a maximum external wall height of 10.5m applies.
Mr Coorey argues that the proposal maintains a significant variation to the 10.5m external wall height with the following impacts:

That the proposed western portion of the development dominates the retained single storey dwellings at 11 and 13 Abbotford Street due to its proposed height and proximity to the interim heritage items.
It is inconsistent with the preferred neighbourhood character in the area given the wall height, the lack of articulation and the building length proposed.
Adverse visual and privacy impacts to adjoining properties.
(Exhibit 7, 8)

In contrast, Mr Kosnetter argues that the character of the local area includes " … a predominance of four storey residential flat buildings interspersed with smaller scale dwellings" and that the proposed development is compatible with that character on the following reasoning:

That the new building form that surrounds the retained interim heritage items "offers adequate physical separation to the eastern side and an appropriate connection to the northern rear that provides a suitable visual backdrop that accentuates the juxtaposition of the retained portion of the IHO semis from the new development behind". (Exhibit 7)
That such an approach is a common character of the R3 Medium Density Residential zone in the locality where smaller original buildings are immediately adjacent new taller development.
The architectural design of the development is compatible with the height and form of the existing buildings and provides a cohesive streetscape because it is responsive to the context of the site, being surrounded by four storey buildings on all sites. Applying Woollahra Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 at [53]-[56] ('SJD DB2 Pty Ltd'), the existing context is as relevant to determination of the compatibility with the character of the locality as the relevant planning controls.
(Exhibit 7)

Mr Kosnetter argues that the elevations produced as part of the amended plans demonstrate that there is sufficient separation between the proposed building and the adjoining properties to address any overlooking or privacy concerns. Further, he argues that the proposed balconies are not large and will not lend themselves to be utilised for active recreation. (Exhibit 7)
The appropriateness of the scale and siting of the proposed development in proximity to the retained semi-detached dwellings (the IHO items) was also the subject of heritage evidence. In their supplementary heritage joint report, the experts reached the following agreements on the amended plans: "The Revision E proposal retains the two buildings as separate residences, albeit in a truncated form. This truncated form is now satisfactory to present the dwellings as a legible semi-detached pair in the streetscape and maintain the important characteristics of the pair. … The site is zoned R3 medium density and has an allowable building height of 12 m. The retention of additional fabric and portions of the rear of the building, with the consequence or deletion of some or all of the units above, would reduce the visual impact by setting the northwestern portion of the new building further north from Abbotsford (sic)Street. The proposed decorative façade protrusion (blade wall) on the south west corner of the proposed new building along Abbotsford Lane (between units G 10 and G 11) of skewers the connection between the existing building and the new building. This transition should be exposed and delineated by either straightening this protrusion to 90degrees or deletion, to provide a clear distinction between the old and the new buildings. … The visual impact of the adjacent new building has been reduced through the use of appropriate façade materials on the new buildings in face brick, which is more in keeping with the other heritage buildings in the street. The proposed brick colour of white is not supported, and a brick which tone is better to the heritage building is preferred. This can however be resolved through a condition of consent requiring final review and approval of the brick colour by Council. Further separation of the proposed new building along Abbotsford Street would not significantly reduce the visual impact. MN and SD agree that the visual impact of the new building directly behind the heritage item has been reduced by the proposed deletion of the units identified above and the retention of more of the rear of the heritage item. MN and SD agree that revision E, November 2021, is a satisfactory resolution of the contention and is acceptable in heritage terms." (Exhibit 9)
In brief, the heritage experts conclude that the proposed development, including the proposed interface with the IHO items is acceptable in heritage terms.

[11]

Upper-Level setback

Mr Coorey argues that the upper level of the proposed building should have an increased setback from Abbotford Lane and the adjoining property at 7 Abbotford Street. He argues that such a step in the building form would improve the articulation of the proposed building form, reduce the dominance and visual bulk of the architecture and allow for deeper planters to improve privacy. (Exhibit 8)
Mr Kosnetter disagrees that an increased upper floor setback is necessary arguing that such a built form would be incongruous with the character of the locality which is dominated by the buildings of four storey scale, with a continuous setback from the ground floor to the fourth storey (Exhibit 8). On the basis of his earlier evidence, summarised at [28], he argues such a setback is also not warranted on the other grounds advanced by Mr Coorey, for example visual privacy. Findings
Following a consideration of the evidence, I am satisfied that a positive attribute of the proposed development is the retention of the principal rooms of the existing heritage buildings and their adaptive reuse. I am persuaded that in the context of the R3 Medium Density Residential zone of this location, such an approach is compatible with the character of the locality, both currently and in the future. I accept and prefer Mr Kosnetter's evidence that the existing character of the locality is one characterised by four storey residential flat buildings interspersed with retained smaller scale residential buildings from the early twentieth century. The R3 Medium Density Residential zoning of the site, in conjunction with the applicable development controls, indicate construction of higher density residential development is likely to continue to be a characteristic of the locality. Further, within proximity of the site are a number of listed heritage items which are likely to be retained. In my view, this character of large scale residential flat buildings interspersed with retained federation period smaller scale residential buildings will likely be the future character of the locality. In my view, the proposed development is compatible with such character: SJD DB2 Pty Ltd [52]-[54]; Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 [22]-[31] ('Project Venture').
The streetscape elevation provided by the Applicant, in my view, reinforce the conclusion of compatibility. Figure 1:Extract of the streetscape elevations.
Given the agreed heritage evidence of the acceptability of the amended architectural design, I am not persuaded by Mr Coorey's evidence that provision of a setback or separation between the heritage buildings and the new construction is a necessary town planning requirement to ensure the compatibility of the proposed development with the character of the locality. I accept and prefer the agreed evidence of the heritage experts as summarised at [29].
DCP 2013 provides a maximum wall height of 10.5 m for medium density residential: Section C2, cl 4.4 (i) of DCP 2013. Whilst agreeing that the control does not apply to the proposed development, the experts agree that the development exceeds this control. The objectives of this control are extracted at [25].
The Respondent argues the wall height control is relevant to the consideration of the character of the locality, notwithstanding the control does not apply to the proposed development but rather applies to development for the purpose of medium density residential. The controls for boarding house developments are contained in Section C4 of DCP 2013. Notwithstanding that the wall height control does not apply, to the extent it is relevant to character, I find:

I am satisfied that the proposed development is compatible with the streetscape of the locality, which is demonstrated by the streetscape elevations annexed to the planning joint report (Exhibit 8). The relevant wall which exceeds the wall height control is consistent with the height of the neighbouring buildings at both 7 and 15 Abbotford Road.
Further, the relevant wall is setback some 18-19 m from the front boundary with Abbotford Road. In my view, it is unlikely that the wall, or its exceedance, will be observed by a viewer in the streetscape of either Abbotford Street or Abbotford Lane.
I am satisfied that the proposed development achieves both appropriate ceiling heights for the development and an interesting built form. The architectural plans include a typical cross section which confirms that the boarding rooms will have a floor to ceiling height of 2.73 m to living rooms and 2.4 m to kitchen areas.

Given the preceding considerations, the precondition at cl 30A of SEPP ARH requiring the consent authority to take into consideration whether the design of the development is compatible with the character of the locality is met.
The site is subject to the provisions of LEP 2012. Pursuant to LEP 2012, the subject site is zoned R3 Medium Density Development, boarding houses are a permissible use with consent in the zone. As required by cl 2.3(2) of LEP 2012 in determining the development application, I have had regard to the following objectives of the zone: Zone R3 Medium Density Residential 1 Objective of zone • 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.
Demolition is permitted with consent: cl 2.7 of LEP 2012.
Pursuant to cl 4.3 Height of Buildings of the LEP 2012, the subject site has a maximum height standard of 12 m. The amended plans are compliant with this development standard.

[12]

The effect of proposed development on heritage significance of the dwellings

As the subject contains a heritage item, cl 5.10 Heritage conservation of LEP 2012 applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at subcl (1), are to conserve the environmental heritage of Randwick, and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at subcl (4).
The Applicant has prepared and filed a Heritage Impact Statement (HIS) prepared by Urbis dated 8 October 2021 (Exhibit B). The HIS includes an assessment of the item against the criteria for listing contained in the Heritage Council of NSW publication: Assessing Heritage Significance. The conclusion of the assessment in the HIS is that, despite their IHO status of the semidetached dwellings at no.11 - 13 Abbotford Street, they do not meet the threshold for listing under any of the criteria.
The HIS includes the following statement of significance for the item: "The subject site once formed part of the Crown Land grant which would become Centennial Park. In 1907 select portions of land of Centennial Park, including the subject site, were subdivided and sold for residential development as Centennial Park Lands. The subject site was purchased in 1909 by Robert Buik Edward who subsequently developed the existing semi-detached residences at 11-13 Abbotsford Street in 1909. The altered setting of Abbotsford Street, however, is considered to detract from the legibility of the original subdivision. The semi-detached dwellings are modest examples of Federation Bungalow style dwellings. Externally, the semi-detached dwellings feature characteristics of the period and style, including simple massing, corner projecting gables, bull nosed verandah, brickwork construction, timber posts, leadlight timber framed windows and roughcast detailing, however they are not considered to demonstrate fine examples of the period or typology and are not aesthetically distinctive. Internally, 13 Abbotford Street retains most of its original timber skirting, picture rails, doors and architraves and plaster work cornices, vents and ceiling roses, however the interior is typical rather than a refined example of the period and type. The dwellings are also not a significant variation to their class of items, as the characteristics of corner projecting gables, wrap around verandahs and side entrances are not rare within the Randwick LGA. The dwellings do not form part of a group that collectively illustrates the representative type. The semi-detached Federation period dwellings are not rare within Kensington or the Randwick LGA. Features including projected corner gables, wrap around bull nose verandahs and side entrances are also not rare for Federation period dwellings and many other examples of these characteristics exist within the Randwick LGA and in proximity to the site." (Exhibit B)
In the alternative the Heritage Data Form which supports the IHO and the proposed listing of the items in LEP 2012 contains the following statement of significance: "No.11 - 13 Abbotford Street demonstrates historical, aesthetic and representative signficance at a local level, as a notable example of a Federation semi-detached pair. Though not able to be fully appreciated from the street due to a high front fence, it has a high degree of intactness. In terms of historical significance, the 1910 building is a good example of the early twentieth development of Kensington, associated with the 1900 construction of the tramway spur to Randwick Racecourse. In terms of aesthetic significance, the building is a fine example of a generously planned 3 bedroom semi-detached pair on a wider block, allowing all rooms to be oriented to a substantial side garden area. The building retains many characteristic, and a number of distinctive features of the Federation style, both internally and externally. In terms of representativeness, the pair a fine example of Federation era residential development." (Exhibit B)
The consideration at cl 5.10(4) of LEP 2012 is against this statement of significance in the Heritage Data Form.
The conclusion of the HIS is that the proposed development will have no impact on the semi-detached dwellings that are the subject of the IHO or on the heritage items in the vicinity of the site as follows: "▪ The proposed partial demolition of the buildings at 11-13 Abbotford Street, demolition of 9 Abbotford Street and construction of a part 3 /4 storey boarding house containing 60 boarding rooms will respect the heritage significance of the semi-detached dwellings, and the heritage items located in close proximity to the subject site. ▪ The development of the proposed four storey boarding house will respect the existing mixed streetscape and will have no impact on the heritage items located at 5 & 5A Abbotford Street and 29 and 31 Alison Road which are distanced from the subject site. ▪ The primary built form of the semi-detached dwellings is proposed to be retained including all original details, the primary roof form and two chimneys. Internally, the original layout of the front portion of the dwellings will be retained and readily interpreted, despite the proposed addition of bathrooms within the existing corridors. Original internal fabric, including timber skirting boards, architraves and doors, plaster cornices and ceilings roses and fireplaces and surrounds will be retained. All original exterior fabric of the semi-detached dwellings including timber detailing, doors windows, leadlight windows, moulded detailed and tessellated tiles are to be retained and restored. ▪ The proposed boarding house has been designed to respect the semi-detached dwellings and the existing streetscape character in terms of its overall, height, scale form and bulk. The overall four storey height and scale of the proposed building is appropriate to the surrounding character, with multiple other four-storey residential flat building being located within the same block. The overall bulk and form of the development has been well articulated through the use of several materials including off form concrete, two tons of pre-cast concrete and timber screens. Sufficient setbacks have been provided between the retained portions of the semi-detached dwellings and new development to ensure a sufficient landscaped curtilage is retained and to ensure that the semi-detached dwellings retain their own character and presence within the wider streetscape. ▪ The landscaping proposed across the site respects and enhances the landscape values of Abbotford Street, removing the existing high brick wall which encloses 11-13 Abbotford Street and adding substantial plantings across all boundaries of the site. The buildings presentation to Abbotford Street at the south too is softened through the use of planter boxes that extend across the Level 3 façade. The primary facades of the semi-detached dwellings will be reintroduced to the streetscape through the removal of the existing fencing and will once again contribute to the streets remaining Federation character. ▪ Due to the existing physical separation between the subject site and the heritage items located at 5 & 5A and 29 and 21 Alison Road by existing four storey apartment buildings at 7 Abbotford Street and 25 Abbotford Street, the proposed development will neither impact the immediate setting or views to and from these heritage items. Furthermore, the proposed development will have no impact in terms of shadowing on the heritage items." (Exhibit B)
I accept the agreed evidence of the heritage experts that the proposed development is acceptable in heritage terms and will not detrimentally impact the heritage significance of the single storey semi-detached dwellings identified in the IHO. Pursuant to cl 5.10(4) of LEP 2012, I have considered the effect of the proposed development on these items, and I am satisfied that any effect on the heritage significance is acceptable.

[13]

The Gross Floor Area (GFA)

Pursuant to cl 4.4 of LEP 2012, a base FSR of 0.9:1 applies to the subject site. The proposed development seeks a variation of 156.3m² or 12.9% to this FSR standard. Pursuant to cl 4.4(2) of LEP 2012, the FSR for buildings on the land cannot exceed the FSR contained on the Floor Space Ratio Map. Development consent for development which contravenes the development standard can only be granted if the consent authority is satisfied that the preconditions at cll 4.6(3) and 4.6(4) of LEP 2012 are met.
The town planning experts disagree as to the application of the gross floor area (GFA) definition to the proposed development. The GFA for a proposed development is calculated in accordance with the definition contained in LEP 2012, as follows: Dictionary … gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
The Applicant calculates that the GFA of the proposed development is 1372.2 m². (Exhibit J)
Mr Coorey argues that the Applicant's calculation of FSR is incorrect and that the GFA calculation should include certain horizontal circulation spaces "that are predominately enclosed by side walls and a roof" (Exhibit 7). He calculates that the inclusion of these areas would increase the GFA of the proposed development by approximately 144 m². (Exhibit 7)
Mr Coorey, and the Respondent, rely on the decision of the Court in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 ('Landmark') in support of their argument that the following highlighted areas of the plan form part of the GFA of the development: Figure 2:Extract of marked up ground floor plan from planning joint report Figure 3: Extract of marked up first floor plan from planning joint report
Mr Coorey argues that these highlighted areas are enclosed spaces with full height timber screens forming the end or face of the corridors which act as 'walls'. He argues that, consistent with Landmark, these spaces are not open to the elements and should be included as GFA increasing the extent of variation to the FSR standard sought by the Applicant.
Mr Kosnetter, citing HPG Mosman Projects Ltd v Mosman Municipal Council [2021] NSWLEC 1243, disagrees with Mr Coorey's approach. He argues that the GFA as calculated by the Applicant is correct on the basis that the horizontal circulation spaces highlighted by Mr Coorey are outside the external wall of the building, partly open to inclement weather. He argues that applying the GFA definition, these areas are excluded from the calculation of GFA for the proposed development.

[15]

Does the FSR bonus under SEPP ARH apply to part of the subject site?

I note that in his oral closing submissions, Mr Farland submitted that the exclusion of the proposed development application from the FSR 'bonus' under cl 29(1)(c) of SEPP ARH due to the presence of the IHO should be reconsidered as the IHO does not apply to the whole of the subject site. He submits that the IHO attaches to Lot 1 and Lot 2 in DP 786825, with a site area of 343.64 m² and 348.96 m² respectively but does not affect Lot 26 Sec 28 DP 4601 with a site area of 658.71 m².
The provision at cl 29 of SEPP ARH states: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than - … (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus - (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.
Mr Farland submits that by applying the provisions of cl 29(1)(c) of SEPP ARH, the bonus FSR is available to Lot 26 Sec 28 DP 4601 in the basis that the exclusion for land containing an IHO does not apply to that lot.
Mr Farland submits that the bonus available at cl 29(1)(c) of SEPP ARH would apply to Lot 26 Sec 28 DP 4601, which does not contain any of the factors that exclude the application of the bonus FSR. He argues that this would increase the total GFA available to the Applicant to 1545.4 m². Importantly, on this basis he argues that the proposed development would no longer vary the FSR development standard or rely on the provisions of cl 4.6 of LEP 2012.
If I accept Mr Farland's submission on the application of cl 29(1)(c) of SEPP ARH, the development is compliant with the FSR standard and does not rely on the Court being satisfied that the written request to vary the FSR standard meets the preconditions at cl 4.6 of LEP 2012.
In the alternative, Mr White argues that the term 'development' in cl 29(1)(c) of SEPP ARH describes one indivisible whole, not separated by lot boundaries. He argues that in this case, the development proposed is for the purpose of a boarding house across the totality of the subject site. He draws the Court's attention to the fact that elements in the development such as the basement, the communal room and the corridors service the whole of the development across the three lots that make up the site of the proposed development. Applying this approach to the construction of the clause, Mr White argues that 'development' (at cl 29(1)(c)) must be a reference to the development for which consent is sought. He submits that in this case that development is a building which is proposed to be constructed over all three of the lots which form the subject site. The development proposed to be undertaken on the lot relied on by Mr Farland is not self-contained or divisible from the development as a whole. Therefore, in his submission the correct approach to the application of cl 29(1) of SEPP ARH to the development is the whole of the subject site. Thereby the bonus FSR at cl 29(1)(c) of SEPP ARH is not available on the subject site which contains a heritage item subject to an IHO.
In support of his submission Mr White relies on the following definitions in SEPP ARH: 4 Interpretation - general … site area or site means the area of any land on which development is, or is to be, carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Policy.
Mr White concludes that the site which is the subject of the development application is the totality of the three lots (Lot 1 and Lot 2 in DP 786825, Lot 26 Sec 28 DP 4601). Given that the site so described incorporates land which is the subject of the IHO in Mr White's submission, the operation of cl 29(1)(ii) of SEPP ARH is excluded. On this basis, the FSR standard is varied and the Applicant relies on the provisions of cl 4.6 of the LEP 2012 being satisfied to vary the FSR standard.

[16]

Findings

I accept the submission of Mr White that the reference in cl 29(1)(c) of SEPP ARH to 'land' is a reference to the totality of the land which is the subject of the development application. I adopt his reasoning and submissions at [61]-[63]. In these proceedings I find that the relevant land is Lot 1 and Lot 2 in DP 786825, Lot 26 Sec 28 DP 4601. The development application before the Court, with the exception of Mr Farland's oral submissions, makes no attempt to delineate the development of the two lots affected by the IHO from the remaining parcel. Applying the reasoning of Preston CJ in Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 137 at [90]-[91] and [93], the 'land' on which the development (a boarding house) is proposed to be carried out is the totality of the three lots. That land contains the heritage items identified by the IHO and is excluded from the operation of cl 29(1)(c)(ii) of SEPP ARH. I note this conclusion is identical to the manner in which the application is framed in the Applicant's Statement of Environmental Effects which states: 'The site comprises two allotments at Nos 9, 11 and 13 Abbotford Street with a legal description of SP 12920 [Lot 26 Sec 28 DP 4601] and Lots 1 and 2 in DP 786825.' (Exhibit C)
I further note that the proposed development is intended to be operated as one use, reliant on one basement carpark over the three lots with a single driveway access, a single communal space and one manager's room (Exhibit G). I accept that it would be open to the Applicant to apply for a standalone development on Lot 26 Sec 28 DP 4601 to which the provisions of cl 29(1)(c)(ii) of SEPP ARH would apply. However, that is not the development application advanced by the Applicant: Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [89].
I prefer and accept the submission of the Respondent that the reference in cl 29(1)(c)(ii) of SEPP ARH to 'the land' is a reference to the totality of the land, which is the subject of the development application, in this case all three lots which form the subject site. I find that the 'bonus' FSR pursuant to cl 29(1)(c)(ii) is not available to that land as it contains a heritage item which is identified in an IHO. Therefore, the Applicant relies on the provisions of cl 4.6 of LEP 2012 to vary the FSR standard. The satisfaction of the preconditions in cl 4.6 of LEP 2012 are therefore preconditions to the grant of consent.

[17]

Should the maximum FSR standard be varied?

The objectives of the FSR development standard at cl 4.4(1) of LEP 2012 are: 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.
The Applicant has filed a written request to vary the maximum FSR control pursuant to cl 4.6 of LEP 2012. This request accords with the amended plans and seeks a variation to the FSR development standard. The written request seeks a variation to the FSR development standard of 156.3 m². (Exhibit J)
Given the requested variation, development consent cannot be granted except in accordance with cl 4.6(2) of the LEP 2013. Clause 4.6 provides, at (3) and (4): 4.6 Exceptions to development standards … (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 Planning Secretary has been obtained.
It is clear from a reading of cl 4.6 of LEP 2012 that the onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility, in this case to the FSR standard, by demonstrating that the breach of the development standard is justified.
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ('Wehbe').
Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).
In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action'), Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action).
The written request argues that compliance with the standard is unreasonable or unnecessary as the proposal complies with the objectives of the FSR standard. (Wehbe test 1).
Broadly the written request argues that, despite the variation, the objectives of the standard are achieved as follows:

[21]

Objective (d):

That the proposal does not adversely impact on the amenity of adjoining and neighbouring land as detailed in the following extract of the written request: "In relation to visual bulk: • The visual bulk of the building responds to the character of the locality and is commensurate with adjoining and surrounding 4 storey residential flat buildings and those in close proximity to the site, in addition to retaining a portion of the existing single storey semi-detached dwellings. • The only adjoining property sharing a boundary with the site is to the east, whereas all other adjacent properties to the north, south and west are separated from the site by a road or lane. The face of the building has a 4m setback to its eastern adjoining property, offering adequate separation between the buildings and a side setback zone that will be densely vegetated. • From the adjacent properties at the rear (north) and side (west) the building will have substantial separation, meeting the DCP control for medium density development despite not being applicable to boarding houses. In relation to loss of privacy. • Significant planting is proposed to the perimeter of the development and screening is integrated into the design of the building to larger windows, particularly the limited number of openings opposite the eastern neighbour. Balconies at the uppermost level are limited in size for passive enjoyment of the outdoors, extending from the bedrooms and do not facilitate active or intense uses. • An Acoustic Report accompanies the proposal application and includes recommendations for noise mitigation measures, including requirements to close windows and doors to the indoor communal room and acoustic screening to the outdoor area at the rear. • A communal open space is at the rear, adjacent to the parking areas and open space areas of the adjoining residential flat buildings with a limited depth that restricts the area for congregation. There is also a central courtyard for communal engagement and social interaction between the residents that does not cause visual or acoustic privacy impacts on surrounding properties. In relation to overshadowing: • Overshadowing diagrams demonstrate that the proposed building has a limited impact on the adjoining properties, which continue to receive in excess of 3 hours sunlight in midwinter. In relation to views: • There is no adverse view loss attributed to the building from public domain or from private properties. The height of the building complies with the standard and is commensurate with the scale of adjoining properties." (Exhibit J)

In contrast, Mr Coorey argues that the objectives of the FSR standard are not met by the proposed development. In particular, he relies on reasoning in a similar form to that summarised at [24]-[26] to disagree that the development is compatible with the character of the locality. Specifically he argues that firstly, a separation in built form should be introduced between the retained heritage items and the new built form, secondly that Level 3 of the new buildings should be further setback from Abbotford Lane and the adjoining property to reduce the visual bulk, overshadowing and privacy impacts to adjoining properties, and finally that the development should incorporate additional sustainability measures such as ceiling fans in the bedrooms, photovoltaic cells and roof and rainwater capture and reuse. (Exhibit 7)

[22]

Are there sufficient environmental planning grounds to justify the variation?

In Initial Action at [24], Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, that the environmental planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justifications is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
The written request proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the height development standard. These grounds can be summarised as follows: 1. That the scale of the building is appropriately four storeys, consistent with the height standard and the development is compatible with the character of the locality. Importantly, the request acknowledges that the additional FSR that contravenes the development standard (156.3 m²) could be manifested anywhere within the built form of the development. 2. That the provision of affordable housing facilitates the achievement of the following object of the EPA Act: "(d) to promote the delivery and maintenance of affordable housing". The request states: "In this case the entirety of the development is focussed on the provision of affordable rental housing and the additional FSR is entirely attributable to the additional boarding rooms. Compliance with the standard would result in the loss of affordable housing opportunities on the site with no material benefits to adjoining properties, the streetscape, public domain or locality." (Exhibit J) 1. That the amount of FSR which exceeds the standard is equivalent to the floor area of the retained heritage items and four of the boarding rooms within the development. That the provision of additional affordable housing in a manner that is compatible with the character of the locality furthers the achievement of the following aim of the LEP 2012: '(g) to encourage the provision of housing mix and tenure choice, including affordable and adaptable housing, that meets the needs of people of different ages and abilities in Randwick'. 2. That the provision of additional affordable housing furthers the aims of SEPP ARH, in particular cl 3(b) 'to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,'. The request argues: "… in this particular case there is no incentive in the way of floor space bonuses due to the IHO status of the site. Had there been no heritage listing impediment to the site, as was the case when the application was originally lodged, this site would benefit from a 0.5:1 bonus FSR, allowing a total FSR of 1.4:1. The proposed development is 519.2m² or 27.5% lower than the previously allowable 1891m² of gross floor area." (Exhibit J, original emphasis)
Mr Coorey argues that the environmental planning grounds relied on by the Applicant in the written request are insufficient as the proposed development does not provide a better outcome as asserted. Rather he argues the proposal results in adverse impacts associated with bulk and scale of the proposed development in proximity to the single storey semi-detached dwellings identified in the IHO. Further, the proposal results in adverse visual impacts from neighbouring properties.

[23]

Findings

I am not satisfied that the environmental planning grounds advanced in the written request are sufficient to justify the contravention of the FSR standard in LEP 2012. My reasoning follows.
Importantly, in discussing the requirement to demonstrate sufficient environmental planning grounds in Initial Action, Preston CJ stated: "the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds."
The aspect or element of the development that contravenes the development standard is its GFA. It is necessary for the written request to demonstrate why GFA over and above what might be permissible under the LEP 2012 is justified on environmental planning grounds: Initial Action at [24]. Applying Initial Action, it is not sufficient for the written request to show that the environmental planning grounds advanced in the request are benefits of carrying out the development as a whole, the request must establish why those environmental planning grounds justify the contravention of the development standard. In my view, the written request fails to do this analysis in any of the four grounds advanced. For example, in relation to ground 1, extracted at [78], it is self-evident that a compliant development could equally be four storeys, consistent with the height development standard and compatible with the character of the locality. These benefits are benefits that arise from the building envelope as a whole, not a justification to support the contravention of the standard. I find this first ground advanced is not sufficient to justify the contravention of the development standard, as it fails to particularise how the environmental planning ground proffered arises from the variation to GFA.
In relation to ground two, I am satisfied that the provision of affordable housing is an environmental planning ground. However, as framed in the written request, it is again more fairly advanced as a benefit promoted by the carrying out of the development as a whole. Other than a statement in the written request that the GFA has equivalency to four boarding rooms, there is no analysis or reasoning advanced in the written request that identifies how that aspect of the development which is in contravention of the FSR development standard achieves the provision of affordable housing beyond that achieved by the development as a whole. In my view, more detailed analysis, beyond a single statement, is appropriate in order to evaluate this ground advanced to justify the particular development's contravention of the FSR development standard and to allow the consent authority to determine whether the ground advanced is sufficient to justify the GFA variation sought in the way required by cl 4.6(3) of LEP 2012. For example, the written request does not advance any reasoning on how the additional GFA is tied to the achievement of asserted benefit beyond that which will be realised by the development as a whole. I am not satisfied that this environmental planning ground, the provision of additional affordable housing, is sufficient to justify the contravention.
Finally, I am not persuaded that the final environmental planning ground proffered, furthering the aim of SEPP ARH to incentivise the delivery of affordable housing is made out. Rather, the final ground advanced laments the loss of 'bonus' FSR as a result of the IHO status of the site. I am not satisfied that this is an environmental planning ground. The IHO is a fact, not a burden or an impediment and the development of the site without its presence is not a relevant comparator in seeking to justify the contravention of the FSR standard. I am not satisfied that this ground is an environmental planning ground or is sufficient to justify the variation.
When looked at collectively, I find I am not satisfied that the environmental planning grounds advanced in the FSR written request are sufficient grounds to justify the contravention of the development standard.
For those reasons, I cannot be satisfied that the request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the FSR standard and for this reason I do not reach the state of satisfaction required by cl 4.6(4)(a)(i) of LEP 2012.

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Cases Cited (15)