Hayek v Randwick City Council

The Subject Land and its context

1. As set out in the ASOFAC: 1. The Subject Land is located at 21 Baden Street and has an area of 581m2 and is presently occupied by a three-storey residential flat building of brick construction containing eight apartments. The existing building includes a single car garage at ground floor level. 2. The Subject Land is zoned R3 Medium Density Residential under the Randwick Local Environmental Plan 2012 (RLEP). 3. The Subject Land has a moderate fall of approximately two metres from the rear to the front (north to south) and approximately two metres from east to west. 4. Surrounding development is characterised by a mix of residential flat building and dwelling houses which range in height from one to nine storeys. Surrounding development predominantly represents older housing stock. 5. To the east of the Subject Land at 23 Baden Street, is a nine-storey residential flat building with car parking at ground and first floor levels. A communal open space area for this building, including a swimming pool, is located to the north of the Subject Land. The eastern side of 23 Baden Street adjoins Dunningham Reserve. 6. To the west of the Subject Land at 17-19 Baden Street, is a three-storey residential flat building with a detached rear dwelling. 7. The Subject Land is in proximity to "Ballamac", a Victorian villa at 39 Arcadia Street Coogee, listed under Sch 5 of the RLEP as a heritage item of local significance (39 Arcadia Street). 8. To the south of the Subject Land, on the opposite side of Baden Street, is Dunningham Reserve. Further to the south, is Coogee Beach.

The proposal

1. On 6 June 2024, the Court granted leave for the applicant to amend its Development Application to rely on amended plans and documents (June Amendments). The June Amendments are contained in Ex B in these proceedings and primarily relate to: 1. deleting the rooftop terrace; 2. decreasing the height of the proposed development; and 3. reducing the gross floor area (GFA) of the proposed development.
2. During the course of the hearing, the applicant sought leave to rely on a further bundle of documents which was not opposed by the respondent. This bundle of documents is Ex C.
3. On the second day of the hearing, the applicant sought leave to rely on an updated cl 4.6 written request prepared by CPW dated 15 August 2024 which seeks to justify the variation to the maximum permissible height of building standard for the Subject Land (Amended Height Request). The Amended Height Request supersedes the cl 4.6 written request prepared by CPW dated 13 March 2023 (Original Height Request). The Amended Height Request sought to provide alternative calculations as to the height of the proposed development and to include additional environmental planning grounds in support of the request.
4. The Court granted leave to the applicant to amend the Development Application to rely on the Amended Height Request on the basis that the town planning experts be provided the opportunity to address the Amended Height Request in the witness box. The Amended Height Request is Ex G in the proceedings.
5. For the purposes of these proceedings, the following documents comprise the Amended Development Application: 1. the Class 1 Application (Ex A) (subject to specified exclusions); 2. the June Amendments (subject to specified exclusions); 3. the August Amendments (with the exception of tab 3); and 4. the Amended Height Request.

Issues

1. The issues raised in the respondent's ASOFAC that were pressed at hearing are as follows: 1. The height of the proposed development is excessive, does not comply with the development standard in cl 4.3 of the RLEP, and the Height Request (in both its original and amended form) is inadequate. 2. The gross floor area (GFA) of the proposed development is excessive, does not comply with the development standard in cl 4.4 of the RLEP, and the written request to vary the floor space ratio (FSR) development standard is inadequate. 3. The proposed development has not been designed to avoid overshadowing of the Coastal Use Area, including Dunningham Reserve, for the purposes of s 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). 4. The Amended Development Application is inconsistent with the relevant objectives of the R3 Medium Density Residential zone under the RLEP. 5. The Amended Development Application does not comply with the maximum external wall height control in Pt C2, s 4.5 of the Randwick Development Control Plan 2013 (RDCP). 6. The proposed development is not compatible with the desired future character of the local area, having regard to its excessive bulk and scale and significant adverse impacts to the amenity of neighbouring residential properties and the Coastal Use Area. 7. The proposed development provides insufficient landscaped open space having regard to Pt C2, s 2.2.1 of the RDCP and will adversely impact the visual presentation of the Subject Land. 8. The proposed development is inconsistent with Pt C2, s 5.5 of the RDCP and the proposed development is likely to result in view loss for neighbouring properties. 9. The proposed development is not in the public interest.

Public Submissions

1. As set out at [5], the Development Application, as lodged, was notified on 20 April 2024 and advertised for 14 days. As a result of this notification, 22 objections were received. The views expressed by the submitters are summarised in the SOFAC (Ex 2) at [27] and included in the respondent's bundle (Ex 3, tab 4), but primarily include: 1. building height non-compliance; 2. FSR non-compliance; 3. side setback non-compliance; 4. external wall height non-compliance; 5. overshadowing impacts - including overshadowing or public open space and coastal walkway; 6. view loss impacts; and 7. loss of privacy - visual and acoustic.
2. The June Amendments (referred to at [15]) were re-notified from 11 June to 24 June 2024 and eight submissions were received. The issues raised were generally the same as those set out at [21] (see Ex 3, tab 16).
3. There is significant overlap between the objectors' submissions and the contentions raised by the respondent in its ASOFAC. The issues have therefore been consolidated as appropriate and considered accordingly.

The site view

1. The Court attended a site view on the morning of the hearing accompanied by the parties. The Court also heard evidence from one objector which largely supplemented their written objections in relation to the Development Application as lodged, and the June Amendments. The Court also attended two of the units located within the residential flat building at 23 Baden Street Coogee (being units 8 and 13) to view, and hear oral evidence from the owners in relation to, the anticipated impacts to the units' views as a result of the proposal.

Expert evidence

1. The applicant relied on the town planning evidence of Mr Michael Neustein.
2. The respondent relied on the town planning evidence of Ms Julia Warren.
3. A Joint Town Planning Report prepared by Mr Neustein and Ms Warren was filed on 18 July 2024 and subsequently tendered at the hearing (Joint Town Planning Report) (Ex 4).

The role of the Court on appeal

1. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether consent should be granted to the proposed development. Section 39 of the LEC Act provides as follows: 39 Powers of Court on appeals … (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. …
2. Section 8.14(1) of the EPA Act similarly gives the Court broad powers on an appeal against the refusal or deemed refusal of a development application, as follows: (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
3. Section 4.16 of the EPA Act relevantly provides that: (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application.
4. Section 4.15(1) of the EPA Act relevantly sets out the matters that must be taken into consideration as are of relevance by a consent authority in determining a development application.

Legislative and planning framework

1. On 1 September 2023, Randwick Local Environmental Plan 2012 (Amendment No 9) came into force. Amendment No 9 contained the following savings provision inserted into cl 1.8A(3) of the RLEP: "The amendments made to this plan by Randwick Local Environmental Plan 2012 (Amendment No 9) do not apply to a development application made but not finally determined before the commencement of the plan".
2. Consequently, the parties agree that the version of the RLEP in force immediately prior to 1 September 2023 applies to the Amended Development Application.
3. The Subject Land is zoned R3 Medium Density Residential under the RLEP. The R3 zone objectives to which I have had regard in the assessment of the Amended Development Application, are extracted below: • 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.
4. Clause 4.3 of the RLEP (in conjunction with the Height of Building Map) prescribes a maximum building height of 12m for the Subject Land (Height Standard). The objectives of the Height Standard are extracted below: (1) The objectives of this clause are as follows - (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. …
5. Clause 4.4 of the RLEP (in conjunction with the Floor Space Ratio Map) prescribes a maximum FSR of 0.9:1 for the Subject Land (FSR Standard). The objectives of the FSR Standard are extracted below: (1) The objectives of this clause are as follows - (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. …
6. Clause 4.6 of the RLEP (being the version of cl 4.6 that applied at the date the Development Application was lodged) relevantly provides as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
7. Clause 5.10 contains provisions relating to heritage conservation. The Subject Land is in proximity to 39 Arcadia Street, a local heritage item, however no contention is raised in relation to this provision.
8. Clause 6.2 specifies mandatory matters for consideration with respect to development involving earthworks.
9. Clause 6.4 specifies matters relating to stormwater management in respect of which the consent authority must be satisfied before granting consent.
10. Clause 6.7 applies to the Subject Land as it is identified as "Foreshore Scenic Protection Area" and requires the consent authority to be satisfied of various matters. A contention regarding cl 6.7 was raised in the SOFAC but was not pressed at hearing by the respondent.
11. Clause 6.10 requires the consent authority to be satisfied that essential services are available or that adequate arrangements have been made to make them available.
12. Clause 6.11 relates to design excellence and applies to the Amended Development Application as it will be at least 15m in height. Consent must not be granted unless the consent authority is satisfied that the proposed development exhibits design excellence.
13. The following definitions set out in the Dictionary to the RLEP are also relevant to this matter: building height (or height of building) means - (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. ground level (existing) means the existing level of a site at any point. ground level (finished) means, for any point on a site, the ground surface after completion of any earthworks (excluding any excavation for a basement, footings or the like) for which consent has been granted or that is exempt development.
14. The RH SEPP applies to the Subject Land in two respects: 1. section 2.11 regarding "development on land within the coastal use area" which forms the basis of a contention regarding the matters required to be considered and satisfied under that provision; and 2. section 4.6 regarding contamination. There is no contention raised in relation to this provision.
15. State Environmental Planning Policy (Housing) 2021 applies to the Amended Development Application.
16. Section 2.48 of the TISEPP applies to the Subject Land due to its proximity to exposed overhead electricity power lines.
17. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the Amended Development Application.
18. RDCP applies to the Subject Land.

Height of the proposed development

1. Before I can consider the merits of the Amended Development Application, it is necessary to determine, as a matter of jurisdiction, the adequacy of the applicant's Amended Height Request.
2. As set out at [35], the Height Standard for the Subject Land is 12m.
3. It was not disputed that the Amended Development Application breached the Height Standard, however, there was disagreement as to the meaning and application of the term "ground level (existing)" and the subsequent extent of the non-compliance and how it should be calculated.
4. In the Joint Town Planning Report, Mr Neustein contended (at p 9) that the height exceedance varies from "0.07m at the SE level 3 corner to 3.05m at SW corner at the roof level." This equates to 12.07m to 15.05m in height. Mr Neustein's table on p 9 of the Joint Town Planning Report (extracted from the Original Height Request) measures the height from the "existing ground RL" to the "proposed building RL" as follows:

• It is noted that the applicant made a correction to the table in the hearing to amend the second column relating to "SW corner up to roof level" from "20.42" to "20.25".

1. As set out at [18], following cross examination of the town planners on the first day of the hearing, the applicant sought and was granted leave to rely on the Amended Height Request.
2. The Amended Height Request provides two alternative bases for calculating the height of the proposal. The first basis was stated to be in accordance with the principles in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 (Bettar) and reflects the calculations in the table on p 9 of the Joint Town Planning Report. The second basis was stated to be in accordance with the principles in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 (Merman) which resulted in the calculations demonstrated in the additional columns of the following table at p 5 of the Amended Height Request:
3. The Court was taken to various passages from both Bettar and Merman by the parties.
4. In the case of Bettar, the existing building occupied "the whole of the site area so there was no "ground" (as in soil/garden/paving) around the building and on the site, from which the existing ground level can be determined by a site survey" (at [36]). Commissioner O'Neill summarised the Council's town planning evidence (at 38]), as focussing: "…entirely on the existing building on the site… it is conceivable that on one property, the existing ground level will be taken as two storeys below ground level where this is a basement (as in the example raised by Mr Betros) and on the adjoining property, the existing ground level will be taken as being well above ground level where a building occupies the entire site and the finished floor level is higher than the footpath, resulting in adjoining sites with starkly different heights limits arising from the same development standard."
5. Commissioner O'Neill (at [41]), preferred the approach of determining existing ground level as the level of the footpath at the boundary which "bears a relationship to the context and the overall topography that includes the site and remains relevant once the existing building is demolished."
6. Calculating building height in accordance with Bettar, the Amended Height Request relies on drawings A305, A406 and Section G-G (Ex B, tab 1) (Height Plans) and utilises an "extrapolated ground line". When adopting the RLs indicated on the Height Plans, the Amended Height Request concludes that "the degree of non-compliance varies from 0.07m at the SE level 3 corner to 3.05m at SW corner at the roof level".
7. In the case of Merman, a subsequent decision by O'Neill C which also considered the calculation of height, the Commissioner stated at [73] - [74]: "[73] The existing level of the site a point beneath the existing building is the level of the land at that point. I agree with Mr McIntyre that the ground level (existing) within the footprint of the existing building is the extant excavated ground level on the site and the proposal exceeds the height of building development standard in those locations where the vertical distance, measured from the excavated ground level within the footprint of the existing building, to the highest point of the proposal directly above, is greater than 10.5m… [74] The prior excavation of the site within the footprint of the existing building, which distorts the height of buildings development standard plane overlaid above the site when compared to the topography of the hill, can properly be described as an environmental planning ground within the meaning of cl 4.6(3)(b) of the LEP 2014."
8. When calculating the building height in accordance with Merman, the Amended Height Request adopts a ground level (existing) of RL 20.09 which it states reflects the respondent's assumed basement level for the existing building on the Subject Site. When the RL of 20.09 is adopted, the Amended Height Request states (at p 5) that "the range of non-compliance is from 0.44m to 3.91m".
9. The respondent, relying on the written and oral evidence of Ms Warren, maintains that the maximum height of the development proposed by the Amended Development Application is 16.11m, thereby exceeding the Height Standard by up to 4.11m. Ms Warren states at p 7 of the Joint Town Planning Report (and maintained this position during cross examination): "The highest point of the proposed building is the top of the lift overrun and is RL36.00. At this point of the site, existing ground level is the underside of the existing lower ground slab. As shown in the below overlay, the vertical point below the proposed lift overrun is the existing workshop and storage room (at lower ground level), which has a finished floor level of RL20.09 (as per submitted survey plan). Assuming a slab thickness of 200mm, existing ground level at this point is RL 19.89 (ie 200mm below RL20.09). As such, the maximum building height is 16.11m."
10. In cross examination, Mr Neustein did not accept that it was appropriate to deduct 200mm for a concrete slab, stating that this was an "artificial construct - ground level is where you stand" and maintained that regardless of the approach adopted, the Amended Height Request was adequate having regard to cl 4.6 of the EPA Act.
11. The definition of "building height (or height of buildings)" in the RLEP requires a calculation of the "vertical distance from ground level (existing) to the highest point of the building". "Ground level (existing)" is defined as "the existing level of a site at any point". It is clear from a plain English reading that the existing ground level must therefore be the existing level of the site at any point, whether or not it has been modified from what may have once been the natural ground level. This assumes that a ground level measurement (be it RL or FL) can be ascertained by site survey, having regard to the built form on the relevant land (Bettar at [36]).
12. I accept that this may produce unsatisfactory results where one site has been excavated more than its next-door neighbour, resulting in potentially significantly different building height planes resulting from the same development standard. However, I am satisfied that this perceived difficulty can be, where appropriate, resolved through a consideration of an environmental planning ground for the purposes of s 4.6(3)(b) of the EPA Act (consistent with the decision of O'Neill C in Merman at [74]).
13. In this case, the Survey Plan (Ex A, tab 15) depicts a FL of 20.09 where the footpath on Baden Street meets the entry to the garage, being the lowest level of the existing development on the Subject Land that generally appears to span the expanse of the lower ground floor level of the existing residential flat building. Based on the site view and evidence of Ms Warren, I accept that this survey point is reasonably indicative of the starting point for calculating the existing ground floor level of the Subject Land and should be utilised in the calculations of building height. As FL 20.09 appears generally representative of the existing lower ground floor level of the existing residential flat building, it is not necessary to utilise an extrapolated ground floor level.
14. In relation to the issue of whether the floor of the existing level should be deducted (for example, in this case the 200mm slab thickness proposed by Ms Warren), this step, however arbitrary, appears necessary so as to determine an existing ground level as opposed to finished floor level. I accept that 200mm is an appropriate estimate in the circumstances of this case in the absence of any alternative calculation.
15. I therefore accept the evidence of Ms Warren that the proposed maximum height of the building is 16.11m (resulting in a non-compliance with the Height Standard of up to 4.11m).
16. Notwithstanding which approach is correct, the parties agree that the proposed development exceeds the Height Standard and development consent cannot be granted except in accordance with cl 4.6 of the RLEP.

Does the Height Request satisfy cl 4.6 of the RLEP?

The Amended Height Request

1. The Amended Height Request comprises a written request that seeks to justify a contravention of the Height Standard for the purposes of cl 4.6 of the RLEP. For the purposes of cl 4.6(3)(a) of the RLEP, the Amended Height Request submits that compliance with the Height Standard is unreasonable or unnecessary in the circumstances of this case because the objectives of the Height Standard are achieved notwithstanding non-compliance with the standard (as per Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [17] (Initial Action)).
2. In respect of the objectives of the Height Standard under cl 4.3 of the RLEP, the Amended Height Request relevantly states (at p 9): 1. There is no specific definition of "desired future character" in the RLEP nor any reference to the RDCP in the RLEP. In accordance with Preston CJ's decision in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115, elements such as specific LEP provisions, existing buildings, approved and/or newly constructed buildings and planning controls can be considered. In the locality of the Subject Land, there are newly approved four-storey residential flat buildings (eg 112 Beach Street, 39 Arcadia Street and 9-11 Baden Street) including where the Height Standard has been allowed to be breached and there are existing taller buildings approved (eg 23 Baden Street and 10 Major Street). The Amended Development Application can be seen to be compatible with the apparent desired future character of the locality. 2. The Amended Development Application proposes an appropriate scale, being a little taller than 19 Baden Street to the west and still very much lower than 23 Baden Street to the east. The proposal provides a more appropriate streetscape response to the out-of-scale size of 23 Baden Street. The proposal provides a transition between the over scaled 23 Baden Street and the rest of the street block, thus keeping its medium density character without major or disruptive change. The Subject Land is not located within a heritage conservation area but adjoins 39 Arcadia Street, being a heritage item, which has just been approved to form part of a new four-storey residential flat building. The Amended Development Application will not affect the heritage significance of 39 Arcadia Street and will in turn complement the four storeys approved at 39 Arcadia Street. 3. The impact of the proposal may be classified as minor in terms of impact on views available from two units in 23 Baden Street. Overshadowing is increased within a limited time frame at midwinter on a single unit at 19 Baden Street. The extent of impacts does not suggest a course other than approval.
3. The Amended Height Request also seeks to justify the contravention on the basis of grounds that it describes as environmental planning grounds for the purposes of cl 4.6(3)(b) of the RLEP as follows: 1. The proposal represents a decrease of 1.34m at the SE corner at level 3 and an increase of 1.64m at the SW corner up to the roof level when measured from the existing 13.41m building. As noted in Merman (at 74), an environmental planning ground to justify breach of the HoB is the anomalous basement excavation which increases the degree of non-compliance based on the defined Standard Instrument definition of HoB. 2. The existing building on the site has outlived its useful life with small rooms, poor access to sunlight and daylight, little landscaping, no parking and too intimate proximity to the similarly aged apartment building at 17-19 Baden Street. Site redevelopment, whether carried out now or a few years hence, is inevitable but will be delayed by a rigid observance of a development standard. 3. There is a need to bring the accommodation on the site up to ADG compliant Standards. Redevelopment is the only option if ADG Guidelines are to be met. 4. The impact of the proposal may be classified as minor in terms of impact on views available from two units in No 23 Baden. Overshadowing is increased within a limited time frame at mid-winter on a single unit of No 19 Baden. The shadowing and view analyses compare the proposal with a compliance proposal as well as the existing conditions. 5. Parking for occupants will be provided off-street and without loss of on-street spaces. 6. Accommodation suitable for families will be provided by the proposal. Family suitable accommodation is rare in the residential flat zones around Coogee which are populated by apartment buildings of the first half of the 20th century. 7. Development of a high-quality architectural design will be a major positive in the streetscape of Baden Street. The design is open, light filled and has an appropriate coastal look, a character sought by the RLEP objectives. 8. Greater separation will be created between Nos 21 and 19, with No 19 getting improved access to daylight and air flow. 9. By providing apartments suitable for families, the proposal meets the objectives of housing mix and allows access to the building for people with mobility problems, a class not catered for by the existing obsolete building. 10. By replacing an obsolete apartment building of almost 100 years age with a modern, environmentally conscious design, the proposal promotes sustainability in the planning and development process. 11. No discernible additional overshadowing of Dunningham Reserve results from the proposal. 12. The lack of material or discernible impact resulting from the non-compliance of the proposal with the height control must be counted as a positive environmental planning ground (Randwick v Micaul Holdings 225 LGERA 94; [2016] NSWLEC 7).

Respondent's position on the Amended Height Request

1. The respondent argued in closing submissions that regardless of the definition of existing ground level applied, the Amended Development Application proposed an exceedance of more than one storey in various locations. The respondent stated that the Amended Height Request was defective as it: 1. does not demonstrate that it is unreasonable or unnecessary to breach the Height Standard in the circumstances of this case as the Amended Development Application is not consistent with the objectives of the Height Standard; and 2. does not demonstrate that there are adequate environmental planning grounds which justify the breach of the Height Standard and promotes the benefits of the development as a whole, rather than focussing on the contravening element (see Initial Action at [24]).
2. In respect of the grounds proffered by the applicant in the Amended Height Request, the respondent relies on the written and oral evidence of Ms Warren (Joint Town Planning Report at pp 7-9) that: 1. The condition of the existing building and inevitability of site redevelopment does not constitute an environmental planning ground that informs or justifies departure from the Height Standard. The variation to the Height Standard is not integral to site redevelopment, as this can be achieved with a compliant built form. 2. The view loss impacts and additional overshadowing of Dunningham Reserve could be avoided by way of a compliant built form. 3. The variation of the Height Standard is not integral to the provision of off-street parking as this can be achieved with a compliant built form. There is no direct correlation between the provision of off-street car parking to the contravention of the Height Standard so as to justify that contravention. 4. The variation to the Height Standard is not integral to providing "family suitable" and/or accessible accommodation as this can be achieved with a compliant built form. There is no direct correlation between the provision of family suitable and/or accessible accommodation to the contravention of the Height Standard so as to justify that contravention. 5. The variation to the Height Standard is not integral to providing a high quality architectural design as this can be achieved with a compliant built form. There is no direct correlation between the provision of a high quality architectural design to the contravention of the Height Standard so as to justify that contravention. 6. The non-compliant portion of the proposed building results in additional overshadowing of Dunningham Reserve and additional view loss from units at 23 Baden Street which could otherwise be avoided by way of a compliant built form.

Consideration

1. Having considered the Amended Height Request, evidence of the experts and submissions of the parties, I am not satisfied that the Amended Height Request adequately addresses the matters required to be demonstrated by cl 4.6(3) for the following reasons.
2. Firstly, the applicant's Amended Height Request does not demonstrate that compliance with the Height Standard is unreasonable or unnecessary on the facts of this case because it has not demonstrated that the Amended Development Application is consistent with the objectives of the Height Standard.
3. The objective in cl 4.3(1)(c) is "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". A key element of this objective (and in fact all three objectives in the Height Standard) is the use of the term "ensure". This is more onerous than for example, to "minimise impacts".
4. To be consistent with cl 4.3(1)(c), the Amended Development Application must therefore not adversely impact the amenity of adjoining and neighbouring land in terms of visual bulk, loss or privacy, overshadowing and views. It is clear from the "Amended View Analysis Drawings" (Ex B, tab 2) and "Amended View Loss Assessment against Tenacity Planning Principles" (Ex C, tab 7) that there will be, at the very least, a not insignificant adverse impact on the views of Units 8 and 13 of 23 Baden Street, Coogee when compared with the existing development on the Subject Land (and also when compared with a development that complies with the Height Standard). The Amended Height Request acknowledges that there will be an impact, although it characterises that impact as "minor" and further notes that "overshadowing is increased within a limited time frame at mid-winter on a single unit at No. 19 Baden" (at p 9).
5. I accept the respondent's submission that as there is an adverse impact on the views of adjoining and neighbouring land (which is ultimately acknowledged in the Amended Height Request, in addition to overshadowing impacts to one unit in no 19 Baden Street), the Amended Development is not consistent with the objective in cl 4.3(1)(c).
6. As I am of the view that that the Amended Height Request has not demonstrated that the Amended Development Application is consistent with the objective in cl 4.3(1)(c) of the Height Standard, the Court cannot form the requisite state of satisfaction required by cl 4.6(4) of the RLEP.
7. Secondly, the Amended Height Request does not demonstrate that that there are sufficient environmental planning grounds to justify contravening the Height Standard for the following reasons: 1. I accept the submission of the respondent that the Amended Height Request promotes the benefits of the development as a whole, rather than focussing on the contravening element. There is little to no consideration of the specific aspects of the height breach and why they are necessary (see Initial Action at [24] and Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]). 2. Any purported grounds regarding the deficiencies in the condition or the design of the existing building which the proposal seeks to replace in its entirety do not in and of themselves constitute an environmental planning ground justifying a breach of the Height Standard. I accept Ms Warren's evidence that the Amended Height Request does not demonstrate (beyond mere assertion) that a breach of the Height Standard is integral to site redevelopment and why site redevelopment cannot be achieved with a compliant built form. 3. As recognised by O'Neill C in Merman (at [47]), the pre-existing excavation of a site may artificially reduce the height of a proposal when compared to a neighbouring property which has not been similarly excavated and this may form an environmental planning ground justifying a breach of a height standard. However, in the case of Merman, if an extrapolated ground level was adopted, the proposed development would not have contravened the relevant height standard in that case. That is not the case here, where regardless of the approach adopted, the proposed development will still result in a not insignificant breach of the Height Standard (up to one storey in some locations). I do not consider that this amounts to an environmental planning ground having regard to the facts of this case.
8. As I have determined that the Amended Height Request does not demonstrate the matters required to be demonstrated by cl 4.6(3) for the purposes of cl 4.6(4)(a)(i) and I am not satisfied that the Amended Development Application is in the public interest for the purposes of cl 4.6(4)(a)(ii), there is no jurisdiction for the Court to approve the Amended Development Application and the appeal must fail.

Does the FSR Request satisfy cl 4.6 of the RLEP?

1. Clause 4.4 of the RLEP (in conjunction with the Floor Space Ratio Map) prescribes a maximum FSR of 0.9:1 for the Subject Land (FSR Standard).
2. It was not disputed that the Amended Development Application proposed a FSR of 1.31:1 and therefore did not comply with the FSR Standard.
3. The applicant relies on a cl 4.6 written request prepared by CPW dated 31 May 2024 (Ex B, tab 15) which seeks to justify the variation to the maximum FSR standard for the Subject Land (FSR Request).

FSR Request

1. The FSR Request comprises a written request that seeks to justify a contravention of the FSR Standard for the purposes of cl 4.6 of the RLEP. For the purposes of cl 4.6(3)(a) of the RLEP, the FSR Request submits that compliance with the FSR Standard is unreasonable or unnecessary in the circumstances of this case because the objectives of the FSR Standard are achieved notwithstanding non-compliance with the standard (as per Initial Action at [17]).
2. In respect of the objectives of the FSR Standard under cl 4.4 of the RLEP, the FSR Request relevantly states (at p 389): 1. The Amended Development Application proposes an appropriate scale, being a little taller than 19 Baden Street to the west and still very much lower than 23 Baden Street to the east. The character of the locality is determined by the existing buildings which are largely strata titled and hence not easily responsive to the need to replace old and obsolete buildings with more modern development. The proposal is a transition between the over scaled no 23 and the rest of the street block, thus keeping its medium density character without major or disruptive change. 2. The proposal incorporates appropriate measures to ensure that the design is articulated and response to the environmental and energy needs including: 1. highly articulated facades featuring prominent structural "louvered" walls for privacy as well as visual interest; 2. the built form steps back at level 3 and the rooftop terrace to provide articulation from the ground floor to the highest point visible from the street; 3. the proposed landscaped area at the ground level ensures the impacts of urban heat island affect are significantly reduced from existing levels; 4. the deep soil landscaped area is 149.8m2; and 5. water features to the rear (north) and along the pedestrian entry (East) also contribute to the building's overall reduction of the heat island effect. 1. The Subject Land is not located within a heritage conservation area but adjoins 39 Arcadia Street, being a heritage item, which has just been approved to form part of a new four-storey residential flat building. The Amended Development Application will not affect the heritage significance of 39 Arcadia Street and will in turn complement the four storeys approved at 39 Arcadia Street. 2. The impact of the proposal may be classified as minor in terms of impact on views available from two units in 23 Baden Street. Overshadowing is increased within a limited time frame at midwinter on a single unit at 19 Baden Street. Privacy to adjoining buildings is provided by the structural louvre walls. Visual bulk is minimised by the highly articulated facades. The extent of impacts does not suggest a course other than approval.
3. The FSR Request also seeks to justify the contravention on the basis of grounds that it describes as environmental planning grounds for the purposes of cl 4.6(3)(b) of the RLEP (which largely mirror those grounds contained within the Amended Height Request) as follows: 1. The proposal represents a decrease of 15m2 below that currently existing. 2. The existing building on the site has outlived its useful life with small rooms, poor access to sunlight and daylight, little landscaping, no parking and too intimate proximity to the similarly aged apartment building at 17-19 Baden Street. Site redevelopment, whether carried out now or a few years hence, is inevitable but will be delayed by a rigid observance of a development standard. 3. There is a need to bring the accommodation on the site up to ADG compliant Standards. Redevelopment is the only option if ADG Guidelines are to be met. 4. The impact of the proposal may be classified as minor in terms of impact on views available from two units in No 23 Baden. Overshadowing is increased within a limited time frame at mid-winter on a single unit of No 19 Baden. The shadowing and view analyses compare the proposal with a compliance proposal as well as the existing conditions. 5. Parking for occupants will be provided off-street and without loss of on-street spaces. 6. Accommodation suitable for families will be provided by the proposal. Family suitable accommodation is rare in the residential flat zones around Coogee which are populated by apartment buildings of the first half of the 20th century. 7. Development of a high-quality architectural design will be a major positive in the streetscape of Baden Street. The design is open, light filled and has an appropriate coastal look, a character sought by the RLEP objectives. 8. Greater separation will be created between Nos 21 and 19, with No 19 getting improved access to daylight and air flow. 9. By providing apartments suitable for families, the proposal meets the objectives of housing mix and allows access to the building for people with mobility problems, a class not catered for by the existing obsolete building. 10. By replacing an obsolete apartment building of almost 100 years of age with a modern, environmentally conscious design, the proposal promotes sustainability in the planning and development process. 11. No discernible additional overshadowing of Dunningham Reserve results from the proposal.

Respondent's position on the FSR Request

1. The respondent argued in closing submissions that the FSR Request was defective for largely the same reasons as the Amended Height Request, namely that it: 1. does not demonstrate that it is unreasonable or unnecessary to breach the FSR Standard in the circumstances of this case as the Amended Development Application is not consistent with the objectives of the FSR Standard; and 2. does not demonstrate that there are adequate environmental planning grounds which justify the breach of the FSR Standard and promotes the benefits of the development as a whole, rather than focussing on the contravening element (see Initial Action at [24]).
2. In respect of the grounds proffered by the applicant in the FSR Request, the respondent relies on the written and oral evidence of Ms Warren (Joint Town Planning Report at pp 15-16). As Ms Warren's evidence in relation to the environmental grounds set out in the FSR Request is almost identical to her evidence in respect of the environmental planning grounds set out in the Amended Height Request, I will not set the evidence out again (see [74] above).

Consideration

1. Having considered the FSR Request, evidence of the experts and submissions of the parties, I am not satisfied that the FSR Request adequately addresses the matters required to be demonstrated by cl 4.6(3) for largely the same reasons articulated at [76] to [81] above in relation to the Amended Height Request.
2. The applicant's FSR Request does not demonstrate that compliance with the FSR Standard is unreasonable or unnecessary on the facts of this case because it has not demonstrated that the Amended Development Application is consistent with the objectives of the FSR Standard.
3. The objective in cl 4.4(1)(c) is "to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views".
4. As with cl 4.3(1)(c) in relation to height, to be consistent with cl 4.4(1)(c) in relation to FSR, the Amended Development Application must not adversely impact the amenity of adjoining and neighbouring land in terms of visual bulk, loss or privacy, overshadowing and views. It is clear from the "Amended View Analysis Drawings" (Ex B, tab 2) and "Amended View Loss Assessment against Tenacity Planning Principles" (Ex C, tab 7) that there will be, at the very least, a not insignificant adverse impact on the views of Units 8 and 13 of 23 Baden Street, Coogee when compared with the existing development on the Subject Land. The FSR Request acknowledges that there will be an impact, although it characterises that impact as "minor" and further notes that "overshadowing is increased within a limited time frame at mid-winter on a single unit at No. 19 Baden" (at p 9).
5. I accept the respondent's submission that as there is an adverse impact on the views of adjoining and neighbouring land (which is ultimately acknowledged in the FSR Request, in addition to overshadowing impacts to one unit in no 19 Baden Street), the Amended Development is not consistent with the objective in cl 4.4(1)(c).
6. As I am of the view that that the FSR Request has not demonstrated that the Amended Development Application is consistent with the objective in cl 4.4(1)(c) of the FSR Standard, the Court cannot form the requisite state of satisfaction required by cl 4.6(4) of the RLEP.
7. Secondly, the FSR Request does not demonstrate that that there are sufficient environmental planning grounds to justify contravening the FSR Standard for the following reasons: 1. I accept the submission of the respondent that the FSR Request, like the Amended Height Request, promotes the benefits of the development as a whole, rather than focussing on the contravening element. There is little to no consideration of the specific aspects of the FSR breach and why it is necessary (see Initial Action at [24] and Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]). 2. Any purported grounds regarding the deficiencies in the condition or the design of the existing building which the proposal seeks to replace in its entirety do not in and of themselves constitute an environmental planning ground justifying a breach of the FSR Standard. I accept Ms Warren's evidence that the FSR Request does not demonstrate (beyond mere assertion) that a breach of the FSR Standard is integral to site redevelopment and why site redevelopment cannot be achieved with a compliant built form.
8. As I have determined that the FSR Request does not demonstrate the matters required to be demonstrated by cl 4.6(3) for the purposes of cl 4.6(4)(a)(i) and I am not satisfied that the Amended Development Application is in the public interest for the purposes of cl 4.6(4)(a)(ii), there is no jurisdiction for the Court to approve the Amended Development Application and the appeal must fail.

Conclusion

1. As I have decided that the appeal must fail on the basis that there is no jurisdiction for the Court to approve the Amended Development Application, it is not necessary to consider the parties' submissions in relation to the other contentions (listed at [20]).
2. The Court orders that: 1. The appeal is dismissed. 2. Development application no DA/132/2023 for the demolition of an existing residential flat building and construction of a four-storey residential flat building containing four units, basement parking and related landscaping at Lot 8 In Deposited Plan 8843, known as 21 Baden Street Coogee, is refused consent. 3. The exhibits are returned, except for Ex B, G, 2 and 4.

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: 09 October 2024