Fox Johnson v Randwick City Council

Land and Environment Court (NSW)|2011-12-20|Before: Mr J

Mr J Robson SC Respondent) Solicitors Pikes Lawyers (Applicant)

Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10515 of 2011

Judgment 1COMMISSIONERS: This is an appeal against the refusal by Sydney East Region Planning Panel of Development Application 182/2011 for the demolition of all existing structures and construction of a new part 5 and part 6 storey level mixed use development comprising three buildings referred to as Block A, Block B and Block C to create 73 apartments, 3 retail units, basement car parking for 94 vehicles, landscaping and associated works. 2The amended Statement of Facts and Contentions raises a number of concerns that can be grouped into the following main areas.

The site 3The site comprises the following lots:

Lot 1 in DP920484 with a site area of 1,593 sq m and known as 2 Goodwood Street (alternatively known as 3 Ascot Street) which contains the Kensington War Memorial Club and adjoining car park at 5-7 Ascot Street,
Lot 1 in DP653029 with a site area of 284.5 sq m known as 4 Goodwood Street and contains one-half of a single storey semi-detached dwelling, and
Lot 1 in DP901206 with a site area of 329.8 sq m and known as 6 Goodwood Street and containing the other half of the adjoining single storey semidetached dwelling. 4The site has a northern frontage of 35.14 m to Goodwood Street, a frontage of 80.465 m to Kokoda Memorial Park (the Park), a southern frontage of 19.18 m to Ascot Street and a combined site area of 2,211 sq m. To the west, 5-7 Ascot Street is occupied by 4-storey strata titled residential flat building containing 5 units. Also to the west is 8-10 Goodwood Street that is occupied by 4-storey strata titled residential flat building containing 6 units. To the north, across Goodwood Street, is 29 Elsmere Road occupied by a 4-storey residential flat building. To the south, and across Ascot Street are a variety of housing types including multi-unit housing and low scale residential dwellings. 5The site and surrounding area form part of the wider Kensington Town Centre and is characterised by a mixture of single storey semi-detached dwellings, older style residential flat buildings and newly developed multi-unit housing with commercial and retail uses along Anzac Parade.

Relevant planning controls 6The site is zoned Local Business 3(b) under Randwick Local Environmental Plan 1998 (LEP 1998 ) . Multi-unit housing, retail and commercial uses are permissible with consent in this zone. Clause 9 provides that the Court may only grant consent if it has, "considered the extent to which the proposed development is consistent with the general aims of this plan and the specific objectives of the zone...". The aims of the plan are found in cl 2 and the zone objectives are: (a) to provide opportunities for local retail and business development in the City of Randwick, and (b) to provide opportunities for associated development such as car parking and service industries, and (c) to provide opportunities for residential accommodation in local business centres where it does not interfere with the primary business function of the zone, and (d) to minimise the impact of development on adjoining and nearby residential zones, and (e) to encourage housing affordability, and (f) to encourage the provision and use of public transport. 7The site falls within the area designated by cl 42C(1) as the Kensington Town Centre. Clause 42C(2) provides that consent must not be granted unless the Court is satisfied that the proposed development is consistent with the objectives for the Kensington Town Centre identified in the subclause. Clause 42C(4) refers to the Kensington Town Centre Development Control Plan 2002 (the DCP) adopted by the Council on 26 November 2002 and states that the requirements in the subclause apply "to the development of the land within the Kensington Town Centre as if they were incorporated into this plan." The relevant controls are maximum number of storeys (cl 42C(4)(a)) and maximum height of development (cl 42C(4)(b)). 8The relevant parts of the DCP are, Pt 2-Vision Statement, Pt 3.6-Parks and Public Open Space, cl 4.2.1-New Built Form, cl 4.2.3-Articulation Zone, cl 4.2.4-Building Heights, cl 4.2.5-Building Zone, and cl 4.2.10-Setbacks. 9The DCP provides specific requirements for specific areas within the Kensington Town Centre. The site falls within Block 02 and the requirements are found in cl 4.3.2. These requirements include a diagram indicating the layout of buildings and their respective heights, and specific 10State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)).

Height and storeys - the SEPP 1 objection The evidence 11It was agreed by Mr Betros, the applicant's town planner and Mr Stuart Harding, the council's town planner that Building B (that adjoins the Park) does not satisfy the maximum building height and number of storeys development standards referred to in cl 42C(a) and (b) respectively of LEP 1998. The standards require a 4-storey building and a height of 13.8 m whereas Building B is proposed to be 5- storeys with a height of 17.1 m. 12Mr Betros provided an objection under SEPP 1 to show why strict compliance with the development standards was unreasonable or unnecessary in the circumstances of this case. The SEPP 1 objection addresses the non-compliance with the development standard through the decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 and particularly where it can be shown that the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1). 13The maximum building height and storey standards are included in cl 4.2.4 of the DCP. The objectives identified in this clause are: + To ensure appropriate scale relationship between new development and street width, local context, adjacent buildings and Contributory Buildings. + To achieve well-proportioned buildings. + To maintain public view corridors from the east side of Randwick Racecourse over the Town Centre to Monastery of the Missionary of the Sacred Heart. + To ensure appropriate management of overshadowing, access to sunlight and privacy. + To ensure appropriate floor to ceiling height within buildings. + To achieve a visual transition between heights of buildings "behind" the main street. 14Mr Betros states that the proposed height and number of storeys of Building B satisfy the objectives of the standard because:

the height is below the 1:1 ratio of building height to street width,
the height and scale is suitably proportioned given the 1:1 ratio and the relationship with existing and adjoining residential flat buildings,
there is no interference with critical views,
solar access is preserved to neighbouring buildings,
adequate sunlight is maintained to the Park,
there are no unacceptable privacy impacts, and
floor to ceiling heights are consistent with the RFDC. 15For these reasons, Mr Betros maintains that strict compliance with the development standards is unreasonable and unnecessary and that the SEPP 1 objection is well-founded. 16Mr Harding disagrees. He states that the proposed development is inconsistent with the first, second and sixth objectives that relate to an appropriate relationship with local context and adjacent buildings, well proportioned buildings and the achievement of a visible transition, respectively. Mr Harding also states that in considering the height and storey objectives it is also necessary to consider other objectives that relate to building envelopes. 17In his opinion the SEPP 1 objection is not well founded because the additional height and storey of Building B does not:
provide an appropriate relationship with the Park and the existing residential flat buildings at 5-7 Ascot Street and 8-10 Goodwood Street (objective 1),
provide well proportioned buildings because of the absence of appropriate gaps between the buildings that exacerbate the height and length of Building B (objective 2), and
achieve a visual transition from buildings on Anzac Parade (objective 6). Findings 18In balancing the competing evidence of Mr Betros and Mr Harding, we agree with the conclusions of Mr Harding for a number of reasons. First we agree that the breach of the height and storey requirement does not provide an appropriate relationship in a local context. We have taken local context to include the relationship with the Park. In our view, the additional height will be visible from the Park even though the full extent will not be visible from all locations, such as areas near the interface with Building B because of the setback of the upper level from the edge of the building. The existence of this level however will be visible from Ascot Road and Goodwood Street areas of the Park and will be reinforced by the units on the fifth floor towards the northern end and particularly parts of the southern end where the setback on the upper level to the building edge is reduced from other units on this level. 19Second, the length of the breach is some 44 m on Building B. This needs to be compared to the length of the building footprint in Block 02 of around 30 m. The additional length of the additional height and storey when compared to the anticipated form in the DCP exacerbates the unacceptable relationship with the Park. 20Third, the appropriate relationship with the Park is established by the controls for Block 02 in the DCP. We agree with Ms Morrish, the council's architect urban designer, that the form of the building adjoining the Park was intended to be more recessive when viewed from the Park and be book-ended by buildings of 5-storeys at the Ascot Street and Goodwood Road ends of the Park. We accept that this is a sound and valid planning approach in providing a compatible relationship with a relatively dense urban form and a public space. We have little trouble in concluding that this legitimate relationship will be lost if the additional height and storey is maintained. 21Fourth, we do not accept that the additional height and storey provides an appropriate relationship with the existing residential flat buildings at 57 Ascot Street. In coming to this conclusion it is necessary to understand the approach set out for Block 02 in the DCP. The proposed layout for Block 02 acknowledges the existence of the residential flat buildings at 5-7 Ascot Street (and also the residential flat building at 8-10 Goodwood Street). While the ultimate building form for Block 02 envisages the demolition of both residential flat building, the DCP properly acknowledges that these buildings may remain and that development of the remaining part of Block 02 could proceed but clearly not in the form envisaged by the ultimate building form. 22The residential flat buildings are specifically notated "Strata Title-Unlikely To Change" in the DCP. The text in the DCP for Block 02 expands on this by stating: There are two existing strata titled buildings in this Block. Although they are unlikely to change, there is always the slight possibility that development may occur in the future. 23There was no evidence to suggest that the residential flat building at 5-7 Ascot Street was going to redevelop in accordance with the Block 02 ultimate building form, but clear evidence of opposition from a number of residents in the residential flat building to the proposed development. In this planning context, an additional storey will add another level to Building B to that anticipated by the DCP. In our opinion, the additional height will unacceptably impact on 57 Ascot Street because of the additional overbearing and imposing form, in relatively close proximity to this building. The length and largely unbroken façade unacceptably adds to this bulk and massing of Building B when viewed from 5-7 Ascot Street. 24Fifth, we do not accept the approach of Mr Betros that the approval and alleged breaches of the Block 02 controls by the developer at 112 Anzac Parade can reasonably be used as a basis for allowing the additional height and storey for Building B on the basis that there is an acceptable transition between the site and those buildings on Anzac Parade. It is not the role of the Court to review the decisions made by council but to consider the subject application on its individual merits against the relevant planning controls. We did not understand Mr Betros to suggest that the DCP has been abandoned by the council but that it had administered the requirements of the DCP flexibly. We do note however that each of the examples provided by Mr Betros was a corner site and that the DCP (at cl 4.6.12) provides a level of flexibility for corner sites that are not available in other locations in the Kensington Town Centre. We also do not accept that compliance with a 1:1 ratio of building height to street width provides any support for the height and storey variation given the specific requirements height and number of storeys for Block 02 in the DCP. 25In anticipation that the Court might find that the additional height and storey cannot be supported based on a comparison with the development standard objectives, Mr Green the applicant's solicitor, submitted that while the applicant's preferred position was the retention of the additional units on the fifth level of Building B, the applicant would be prepared to firstly provide a 7.1 m setback for all units on Level 5 and secondly, if the increased setback was not acceptable to the Court, remove Level 5 completely from Building B by way of a deferred commencement condition. 26We have given consideration to this submission and if the only major concern with the proposed development was the additional storey on Building B then Mr Green's submission that this level could be removed, could have been adopted by the Court. This, however is not the case as the development has a number of other fundamental concerns that would require a significant redesign and cannot properly be addressed through conditions of consent. These matters relate to inconsistencies with the requirements in the DCP for Block 02. 27In terms of the SEPP 1 objection, we find that in this case, strict compliance with the development standards is reasonable and necessary and that the variation would be inconsistent with the aims of SEPP 1. It follows that the objection is not well-founded and the development application must be refused. 28For completeness, we will briefly deal with some of the other significant issues raised in the proceedings.

Non-compliance with the DCP requirements The assessment framework 29The role of a development control plan is set out in some detail by McClellan CJ in Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472 (at pars 83-92) and includes review of recent judgments on this issue. Relevantly (at par 87), His Honour states, 87. A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning instrument. However a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. 30His Honour further states at par 87, the principles relevant to consideration of a development control plan. These include the matters raised in the proceeding paragraphs and a number of specific matters that determine weight to be given to the development control plan. These are the level of consultation with interested persons, including the affected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a state, regional or local level and the consistency of decision making. 31The role of a development control plan is further addressed in Zhang v Canterbury City Council [2001] 115 LGERA 373 where Spigelman CJ (at par 75) raises three important propositions. First and although the Court has a wide of discretion, the discretion is not unfettered. Secondly, the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to the decision making process particularly if there are no issues relating to compliance with the local environmental plan. Thirdly, a provision of a development control plan directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative. 32If the proposed development is considered in the light of Stockland, we have little trouble in concluding that significant weight should be given to the DCP. Similarly there is no reason why the DCP should not be, "a fundamental element in or a focal point to the decision making process" as outlined in Zhang . In our assessment, the DCP raises two fundamental problems with the development application both of which, in our view, would warrant the refusal of the application. Length and location of proposed Building B 33The first relates to the length and location of proposed Building B. The DCP identifies a smaller building (TO3) and that is generally located along the common boundary with the Park and the site. The proposal provides a considerably longer building form than T03 that is far more imposing when viewed from the Park. Proposed Building B also superficially attempts to create a gap with Building C, although in our opinion, the attempt is largely unsuccessful as the gap is narrow and Building B and C are attached by a walkway that runs along the rear of both buildings. If a gap between Building B and Building C was similar to that shown in the DCP then some relief from the bulk of the building form would be obtained from the Park and existing residential flat building in Ascot Street. Upper level setbacks of Building A 34The second matter relates to the upper level setbacks of Building A. Mr Dixon, the applicant's urban designer and architect, explained that the architectural treatment of the upper two levels of the building through clear balustrades compared to solid balustrades for the lower levels and other architectural measures, achieve a similar result to the 4 m setbacks for the fourth and fifth levels anticipated by the DCP. We disagree. Given the residential character of the development on the opposite side of Goodwood Street and importantly, the existing residential flat building adjoining in Goodwood Street, we would expect that a more substantial setback on the upper two levels should be provided. The question of whether a full 4 m setback should be provided would depend on any design, including the articulation proposed along at this particular part of the building. 35In our view, the development is inconsistent with zone objective (b).

Other matters 36As we have found at the location, the design of Buildings A and B and the separation of the three buildings is unsatisfactory, it is unnecessary to address the remaining issues raised by the council experts. However we make the following general comments:

in the absence of any evidence to suggest that the existing residential flat buildings in Goodwood Street and Ascot Street are to be redeveloped, the setbacks contemplated in the DCP should be applied to maintain a reasonable level amenity for the residents in these buildings. We do not accept that these existing residential flat buildings should be used as a guide for any new development on the site, however they are existing developments and the residents should not be unacceptably disadvantaged through adjoining redevelopment. This is a matter clearly contemplated by the DCP.
the location of bedrooms directly adjoining public access areas and the likely need to close windows to maintain a reasonable level of privacy at the expense of natural ventilation is a negative aspect of the development.
the use of elevated bridges to provide access between buildings is an undesirable architectural feature of the proposal and should be avoided.

Orders 37The orders of the Court are:

The appeal is dismissed.
Development Application 182/2011 for the demolition of all existing structures and construction of a new part 5 and part 6 storey level mixed use development at 2-6 Goodwood Street and 5-7 Ascot Street is refused.
The exhibits are returned with the exception of exhibit 2.

G T Brown Acting Senior Commissioner

M Ritchie Acting Commissioner 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: 19 January 2012

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