Hurst v Randwick City Council [2025] NSWLEC 1628 | Case summary | Zoe

NSWNSWLEC

Hurst v Randwick City Council

[2025] NSWLEC 1628

Land and Environment Court (NSW)|2025-09-02|Before: Porter C

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-09-02

Before

Porter C

Catchwords

DEVELOPMENT APPEAL – new dwelling house – building envelope
– setbacks – storeys – floor space ratio
– variation to
development standard – written request

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Catchwords

DEVELOPMENT APPEAL – new dwelling house – building envelope– setbacks – storeys – floor space ratio– variation todevelopment standard – written request

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Hurst v Randwick City Council [2025] NSWLEC 1628

Hearing dates: 23 and 24 April 2025. Final submissions received 7 May 2025.

Date of orders: 02 September 2025

Decision date: 02 September 2025

Jurisdiction: Class 1

Before: Porter C

Decision: The Court orders:
(1) The appeal is upheld.
(2) Development application number DA/544/2024, as amended, for the demolition of the existing residential flat building and associated structures and construction of a three storey dwelling house with open deck, in ground swimming pool, water feature, car parking and associated works at 242 Oberon Street, Coogee is determined by the grant of development consent subject to the conditions at Annexure A.
(3) All Exhibits are returned except Exhibits 1, 4, A and B.

Catchwords: DEVELOPMENT APPEAL – new dwelling house – building envelope – setbacks – storeys – floor space ratio – variation to development standard – written request

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 3.43, 4.15, 8.7
Land and Environment Court Act 1979 (NSW),
ss 34AA, 39
Environmental Planning and Assessment Regulation 2021 (NSW), ss 35B, 38 Randwick Local Environmental Plan 2012, cll 2.3 4.4, 4.5, 4.6, 4.7, 6.2, 6.7, 6.10 State Environmental Planning Policy (Resilience and Hazards) 2021

During the course of the hearing, the Applicant sought leave to amend the DA on several occasions. Council neither opposed nor consented to the changes. On the basis that the changes were minor, responsive to the contentions and could be dealt with by the respective experts during the hearing, the Court granted leave pursuant to s 39 of the LEC Act and s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg).
In summary, the key amendments comprised:
Changes to the proposed parking arrangements to include a parking turntable and associated changes.
Decreased deep soil in the front setback, offset within the rear setback with associated garden changes.
Amendments to confirm the retention of existing retaining walls.
Changes to the setbacks, planters, windows and bins.
Inclusion of a privacy screen.
Reduction of the terrace / pool RL to ensure that the pool fence does not exceed the height limit and other changes to the pool fence.
At the end of the hearing, I directed the parties to:
As proposed by Hurst, amend the section plan to remove the mistaken reference to any works to the adjoining retaining wall.
Provide an amended BASIX Certificate for the amended development.
Provide agreed conditions of consent, and submissions on any conditions in dispute.
The parties provided the above information on 5 May 2025 and 9 May 2025. The conditions received 9 May 2025 are substituted for Ex 3. The amended section plan is added to Ex A and the BASIX Certificate and associated documents are substituted in Ex B tabs 9 and 10.
On 24 July 2025 I sent an enquiry to the parties about inclusion of the Geotechnical Report in the conditions of consent. Hurst responded on 25 July 2025 with no objection. The Court sent a further self-executing communication on 29 July 2025, that if Council did not respond by 1 August 2025, that it would be assumed there was no objection to its inclusion. A response was not received and it is taken that there is no objection from Council.

Both planners agreed that the replacement of a prohibited use with a permissible use is consistent with the intent of the zone. It was agreed that there is an existing degree of overlooking from the existing apartments to the neighbouring properties.
It was agreed that the revised shadow diagrams demonstrated that the RDCP’s solar access controls for neighbouring properties were complied with. It was agreed that the increased eastern setback and planter levels along the top level private open space have mitigated visual privacy concerns and other rooms could be mitigated through fixed privacy screens.
Mr Awford for Council gave evidence that the proposed development is inconsistent with the zone objectives for the following reasons:
Any existing use redevelopment would be assessed on its merit and is not relevant.
The proposed dwelling is four storeys which would all be visible from the street and not obscured by the vegetation.
The development does not contribute to the desired future character due to the non-compliance with floor space ratio, setbacks, and storeys sought by the RDCP, which allow between two and three storeys.
The proposed dwelling is significantly larger than the existing residential flat building with greater impacts to the streetscape and neighbouring properties. The elevated nature of the site increases its scale in the streetscape.
The excessive bulk will be overbearing and present privacy impacts to 6 Dundas Street, result in additional overshadowing and will impact views of Coogee Beach from 10 Dundas and 3/12 Dundas Street. The height and scale of the proposed development is excessive against 6 Dundas Street.
The proposed planter boxes provide articulation but add bulk and contribute to the side setback breaches.
Mr Betros for Hurst gave evidence that the proposal is consistent with the relevant objectives of the zone as:
The replacement of a prohibited use (the existing residential flat building) with a permissible dwelling house is consistent with the intent of the zoning.
The proposed dwelling house is likely to generate less of an impact to surrounding properties through a reduction of living areas and private open spaces areas.
The proposed three storey dwelling is largely screened by vegetation on Council’s verge and compatible with the adjoining three storey dwelling at 6 Dundas Street and RLEP height limit of 9.5m.
The proposal protects the amenity of surrounding residents and most view impacts are limited to non-habitable car parking areas. Most properties obtain their water views from either living, balcony or roof terrace areas that are unaffected by the amended DA.
Adjoining properties are primarily orientated to the north and east, not west towards the subject property, which minimises impacts to those properties from the proposed built form. The upper level is recessed by 6.5m at the front and 1.25m from the east with planting, reducing perceived building bulk.
All surrounding properties retain three hours of solar access. Proposed living areas and terraces have been designed to mitigate privacy impacts through a recessed built form, planters and the placement of windows.
The site could be redeveloped for a residential flat building under existing use rights.
Ms Novak for Council submits that consideration of the zone objectives is a fundamental element or focal point in determination of the application. The proposed development is inconsistent with the desired future character of the area (including the foreshore scenic protection area) and fails protect the amenity of the area (objectives three and four).
Mr Pickles SC for Hurst submits that zone objectives do not need to be satisfied. They are a matter for consideration. The proposed development is not antithetical to the relevant objectives, in that it provides housing in a low density environment in that the development removes a residential flat building and proposes a dwelling as sought by the zoning.

Clause 2.3 of the RLEP requires that I have regard to the objectives of the zone. To have regard to or consider a provision requires an active intellectual process of the stated planning control: Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [98] to [100]. There should generally be an assumption that a permissible form of development is consistent with the relevant objectives of the zone, subject to its environmental impacts: BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [116] to [119]. I accept that if a proposed development is antipathetic to a relevant objective, that this could be a reason to refuse an application on its merits.
I accept the evidence of Mr Betros and submissions of Mr Pickles SC and find that the amended DA is not inconsistent or antipathetic to the objectives of the zone.
Firstly, I accept that the amended DA provides for the housing needs in a low density residential environment. It is a dwelling house, one of the lowest density forms of the residential development. In addition, the proposal removes a non-conforming higher density development, through demolition of the residential flat building.
For the same reasons as set out under the ‘FSR’ contention, I accept that the proposal is not antipathetic to the existing streetscape or the desired future character. The proposal results in the removal of a non-conforming residential land use to one sought by the suite of planning controls. In terms of its elements, I accept that the dwelling is similar in scale to dwellings in the streetscape and that the current planning controls will not create a different character than what exists in parts of the R2 zoned streetscape.
For the reasons set out in response to the amenity related contentions, I find that the amenity of the residents is sufficiently protected and the proposal is not antipathetic to this objective.
There were no concerns raised about housing affordability. To the extent that it is relevant, in having regard to this objective, there is no evidence that the proposed development is antipathetic to this objective.

Council submits that the proposal is inconsistent with objectives (a) and (d) of cl 4.4 FSR and that the amended DA has not demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify the contravention.
It is noted that the contentions raised that the development is not in the public interest, however the applicable version of cl 4.6 no longer references the public interest.
Mr Awford relies on his evidence in response to other contentions that the impacts on neighbouring dwellings from the significant departure from the standard are inconsistent with the objectives for FSR.
In relation to the calculations, Mr Awford’s evidence (Ex 6) is that:
All parts of the stairway are included as gross floor area (GFA) as they are not common vertical circulation.
Inclusion of a small part of the garage area not used for vehicle parking, manoeuvring or access.
Mr Betros relies on the amended updated Clause 4.6 to Clause 4.4 of Randwick LEP 2012 prepared by ABC Planning Pty Ltd dated April 2025 (written request) and the Statement of Facts and Contentions in Reply (SOFAC IR) to demonstrate that the variation is acceptable. Mr Betro’s evidence is that the proposed FSR is 0.888:1, representing a variation of 0.138:1 or 43.14m2.
Addressing cl 4.6(3)(a), the written request argues that compliance with the development standard is unreasonable or unnecessary in the circumstances as:
The recessed nature and topography of the site, as well as dense vegetation, obscures the proposed three storey built form from Oberon Street and the park.
The uppermost level of the dwelling has been substantially recessed, reducing the visibility of this level from the parking and public domain and ensuring there are no adverse visual bulk impacts to adjoining neighbours from the FSR variation.
The built form and its FSR variation are consistent with the three to four storey development in the area.
The immediate context includes adjoining 6 Dundas Street, a three storey dwelling with a lengthy built form and FSR of approximately 1:1, which faces prominently to Dundas Street and Oberon Street. The proposed built form and the FSR variation will be subservient to the bulk and scale of 6 Dundas Street.
The FSR variation is contained within a compliant building height and appropriate setbacks with dense vegetation.
The proposed building articulation and existing and proposed vegetation reduces the bulk of the FSR variation.
There are no amenity impacts from the FSR variation:

| FSR objective | Written request | | (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, | The FSR variation will be compatible with the desired future character of the locality and will not be out of context with the height, bulk and scale of adjoining properties to the east. The built form of 6 Dundas Street has a greater visual bulk given its extended built form over three levels with minimal landscaping in the foreground. In contrast, the proposed development is narrower and substantially screened by vegetation with a recessive third storey at the upper level. The site is located opposite the R3 Medium Density Residential zone which contains residential flat buildings of a 3-4 storey built form. The variation will not be inconsistent with the built form of the surrounding context. Compliance with the building height development standard confirms that the built form and FSR variation will be compatible with the desired future character. | | (b) to ensure that buildings are well articulated and respond to environmental and energy needs, | The built form is highly articulated on all facades and is fragmented and stepped. The articulation breaks down the visual bulk and allows for abundant sunlight, daylight, and ventilation, which reduces reliance on heating, lighting and cooling. The variation does not generate any inconsistency with this objective. | | (c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, | The proposed dwelling is not in a heritage 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 additional FSR is not responsible for any adverse or unreasonable amenity impacts to neighbouring properties, noting that only two properties to the east and one property to the south adjoin the site. Such properties will continue to receive more than the required solar access under the DCP, while views will be retained. Privacy will be improved compared to the current interrelationship. The proposed FSR will minimise adverse environmental impacts notwithstanding the FSR variation. |

Addressing cl 4.6(3)(b), the written request argues that there are sufficient environmental planning grounds to justify the contravention of the development standard, summarised below.
The site area is 312.5m2. If the size was 12.5m2 less or the depth was 1.06m less, than no FSR would apply. The FSR standard is a blunt transition not a sliding scale and the variation is reasonable in these circumstances.
The proposed development will be less than the immediately adjoining dwelling at 6 Dundas Street, with an FSR of 1:1.
There is a proposed reduction in intensity of development on the site. The removal of the existing non-conforming residential flat building, with three apartments, is a higher intensity development accommodating three living areas and private open areas for different occupants. The proposed dwelling has the same number of bedrooms but for one family. The additional FSR above the development standard will be of less intensity than the existing use.
There are particular circumstances of the site that constitute sufficient environmental planning grounds for the variation. These include the recessed nature of the site from the Oberon Street frontage that is obscured by established vegetation along the street frontage. The vegetation and discreet roadway access creates a limited perception of the subject property and the associated built form from the public domain. The built form and variation are screened or out of view, presenting a more modest built form than development to the east that present a prominent bulk and scale. The presence of 3-4 residential flat buildings in the R3 zone opposite the site create a larger built form presence in the context of the subject property. The dense screening of vegetation to the west and within the steeply sloping section of Blenheim Park also screens the perception from the west and southwest. These circumstances are atypical when compared to the bulk and scale of other properties in the locality and are distinct circumstances.
The site is steeply sloping with a significant portion of the site being either excavated or located below ground level or retaining walls of adjoining sites. The visible component of the built form presents as a compliant FSR.
The absence of adverse view loss, overshadowing and privacy impacts to adjoining neighbours in a coastal location. The additional floor space can be accommodated without generating any adverse views impacts. Primary living areas of affected adjoining dwellings are all unaffected by the variation. Rear yards and private open spaces will receive more than the required three hours of solar access between 8am to 4pm on June 21.
In relation to the calculations, Mr Betros’ evidence is that the GFA has been properly calculated in accordance with the architectural plans (Ex A). The proposed FSR is 0.88:1

Beyond the evidence and submissions that the departure had not demonstrated that it would not adversely impact the amenity of adjoining neighbours, it was not specifically stated how Hurst’s application to vary cl 4.4A had not met the thresholds set out in cl 4.6(3). I have taken the evidence and submissions to be criticisms by Council of both cl 4.6(3)(a) and (b).
The variation sought is a precondition to the grant of consent. I accept that Hurst has demonstrated that the proposed variation to the FSR development standard is acceptable pursuant cl 4.6(3) for the following reasons.
In considering the variation, I do not need to be satisfied that the non-compliant development is a better outcome than a compliant one: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) at [88] to [90].
The written request incorrectly imports the previous version of cl 4.6, though there is no consequence to this as the relevant matters are addressed. The new version of cl 4.6 commenced 1 November 2023, and the DA was lodged to Council on 27 June 2024.
In forming the requisite state of satisfaction required by the current cl 4.6 development and consideration of the caselaw referred to by the parties, the following has also been considered:
A ‘document’ for a variation which relies on cl 4.6 still needs to be provided with a DA (s 35B(1) of the EPA Reg). That ‘document’ needs to set out the grounds on which the applicant seeks to demonstrate certain matters, which are identical to those set out in cl 4.6(3) of the RLEP. The submitted written request addresses these provisions.
Whilst such a ‘document’ must accompany a DA and address the relevant provisions, there is no longer an express requirement for a consent authority to be satisfied that the ‘document’ or a ‘written request’ itself satisfies cl 4.6(3). The wording of cl 4.6(3) is that ‘the applicant has demonstrated’ that compliance with the development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contravention of the development standard.
On that basis, in determining if the consent authority, or the Court on appeal, is satisfied that the applicant has demonstrated that cl 4.6(3) has been satisfied, it is open to the Court to consider the written request and the other evidence in the proceedings.

As previously detailed, Hurst argues that compliance with the development standard is unreasonable or unnecessary in these circumstances as the variation achieves the objectives of the development standard. Though identification of the exact location of an FSR variation is not as straight forward as other breaches (i.e. height or subdivision size) and a risk to the Applicant if they do not identify the area of the breach (Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [84]-[87], [92]), it is open to find that built form variations to other controls assist in identifying the variation. Here, I have considered that the variation primarily manifests as the third storey (though the third storey as a breach is disputed) and minor variations to the setbacks.
I accept that Hurst has demonstrated that the variation achieves the objectives of the development standard in order to demonstrated that compliance is unreasonable and unnecessary (utilising Wehbe) for the following reasons.
I accept that the variation is compatible with the desired future character of the locality on the basis of the existing dwellings, 3-4 storey residential flat buildings on the northern side of the street and development allowed under the current planning controls. I give less weight to the residential flat buildings (both current and future built forms) as the zone increases in density and the anticipated scale unsurprisingly increases. However, they do exist in the same streetscape. I find that the proposed scale of this three storey dwelling and specifically its variation, is entirely compatible in terms of height, width and density, with the scale of residential flat buildings allowed and currently present in the streetscape.
Of more importance is the desired character sought by the relevant planning controls and present within the streetscape for development in the same zoning. In addition to the suite of applicable planning controls, the current dwellings in the streetscape form part of the desired future character, particularly given its R2 low density zoning (see: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [53]-[60]).
I find that the variation is compatible with the desired future character sought by the RLEP and RDCP. I accept that the dwelling is three storeys and complies with the RLEP height limit. The RDCP permits dwellings up to three storeys. The dwelling is generally compliant with the side setbacks and compliant with the front and rear setbacks, and the setback required for the third storey is unworkable (for reasons I set out at [101]-[104]). Substantial vegetation will be retained at the front of the site. These are key planning controls that inform the built form character in this locality and I find that the proposed variation is compatible with the planning controls for the reasons stated in the written request and evidence given by Mr Betros.
In considering the compatibility with existing dwellings in the locality, the scale of the dwellings are quite large, as viewed on site with the parties. The adjoining site at 6 Dundas is large is height and width. Sitting beyond but above a grassed road reserve and part retaining wall on one frontage, the dwelling is observed as being two to three storeys above the verge. Due to the sloping topography of the locality, the height of 6 Dundas as viewed from Oberon Street is consistent with the height of the opposite existing residential flat buildings on Oberon Street. The dwelling maintains this scale and sprawls across the entire corner site. Other dwelling houses towards the foreshore are two and three storey, with many of the new dwellings reflecting a three storey scale with a recessive but readable third storey. I therefore find that the variation sought is entirely compatible with existing dwelling house development in the locality. Whilst the topography of the site relevantly adds to the scale of the dwelling and specifically the variation, making it noticeably taller than its downslope neighbours, it is still compatible with the scale of two to three storey dwellings in the locality and consistent with the stepping down of dwellings that occurs down to the foreshore area. The recessive nature of the third storey is an essential component of finding that the variation is compatible with the desired future character.
As set out in the written request, I find that the variation is well articulated through the recessive upper level and stepping along the side setbacks. The additional floor space still allows for a response to environmental and energy needs, including adequate access to sunlight, daylight and ventilation to reduce reliance on artificial methods.
The site is not located near a heritage item or heritage conservation area and therefore, the variation cannot be incompatible with this objective.
Finally, I find that the additional floor space would not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views for some of the reasons given in the written request. Some arguments related to the entire development, which are not relevant to this consideration. There are no adverse impacts on view loss for the reasons I detail at [149]-[154]. In relation to the variation, view loss impacts are to areas where views cannot be reasonably maintained over side boundaries, or are caused by other parts of the building or are lost from car parking spaces. A negligible loss of views from the variation can be attributed to 10 and 3/12 Dundas Street, however the minor loss of these views from the variation are not adverse impacts. The majority of the dwellings also obtain views from other aspects of their dwelling, except for one where the view is obtained over a side boundary.
In terms of visual bulk and privacy, 6, 8 and 10 Dundas Street are the most impacted given their location to the side and rear of the site, however there are no adverse impacts as:
6 Dundas Street will visually view the variation from their elevated private open space and some internal rooms. However, the variation will not adversely impact on their visual bulk or privacy amenity, as their dwelling has been designed to capture views to the north and east. The areas to the west of the dwelling are partly covered and setback from their rear boundary. The variation is setback from 6 Dundas Street and windows have been suitably screened (to the extent relevant to the variation and not the building as a whole). Any reduction in privacy or visual bulk is a result of topography, a desire from the properties to capture water views and for each site to receive reasonable amenity, not from the proposed variation.
8 Dundas Street will not be adversely affected by the variation, with only a small portion of the variation containing windows and those will be fitted with privacy screens. I also find that the variation will not cause adverse visual bulk impacts, given the separation between the properties and small extent of the built form length and height of the variation that would be perceived partly behind the rear of 8 Dundas.
10 Dundas Street will not be adversely affected from the variation. There are no windows associated with the variation to the rear and therefore no privacy impacts. Given the topography of the locality and higher location of 10 Dundas Street, there are no adverse visual bulk impacts.
In terms of overshadowing, I accept the agreed evidence of the planners and find that all adjoining and neighbouring properties will not be adversely affected. I accept that the requisite amount of solar access required by the RDCP has been maintained, notwithstanding the variation.
On this basis, I am satisfied that Hurst has demonstrated that compliance with the development standard is unreasonable and unnecessary in these circumstances (cl 4.6(3)(a)).

I accept that there are sufficient environmental planning grounds on the basis of several points argued in the written request and summarised at [51], being points 3-6. For clarity, I do not accept the other points summarised at [51] as being sufficient environmental planning grounds.
I find that the site has particular circumstances that are distinctly relevant to justify the FSR variation. The site, located between a park and large dwelling house, has a sloping topography that presents unique challenges and opportunities to respond to its adjoining neighbours, who are also located on sloping sites. Some of these are located higher and some lower than the site, which presents challenges to the site’s amenity. The site benefits from extensive, established vegetation across its frontage and along the park boundary that will be primarily retained. From these aspects, the variation will barely be perceptible from the public domain. I have already addressed the lack of adverse visual impacts to adjoining dwellings. From the east towards the foreshore, the variation will be somewhat visible but as previously found, entirely compatible with the character of the area. The topography and design of the variation responds to these particular circumstances of the site and its context.
The variation promotes the good design of the dwelling through increased amenity for occupants to their private open space and living areas, which will achieve quality outlook. I accept the submissions of Mr Pickles SC, in that the living areas and adjoining private open space would have diminished amenity if they had been located on lower levels (noting the POS does not contribute to FSR but is required to be co-located with living areas under the RDCP). Instead, these spaces capture high quality water views and sunlight. Notwithstanding its size and the higher quality amenity afforded to the future residents, the variation does not come at a cost to its neighbours and does not result in any unreasonable or adverse amenity impacts to adjoining properties.
For these reasons, I find that Hurst has demonstrated sufficient environmental planning grounds to justify the contravention of the development standard. The variation is consistent with the objective at s 1.3(g) of the EPA Act, in that it promotes good design and amenity of the built environment.
I am therefore satisfied that Hurst has demonstrated that there are sufficient environmental planning grounds to justify the contravention of the development standard (cl 4.6(3)(b)).

Mr Awford’s evidence is that the proposed dwelling is four storeys. All levels would be visible from the street and not obscured by the vegetation on the Council verge. The height of the proposed dwelling is exacerbated by the site’s elevated position and adjoining park. The dwelling is not consistent with the RDCP intent to allow dwellings one to two storeys, with an additional storey on sloping sites, as depicted in Figure 9 of control 4.1 of the RDCP.
The dwelling is not in keeping with development in the R2 zone and is approximately 3.7m above the existing building and 5.1m above 6 Dundas Street. The existing vegetation cannot be relied on to screen the proposal.
Mr Awford says that the fourth storey adds excessive visual bulk that is not recessed to a point where it cannot be perceived from the street and neighbouring dwellings. The amenity of surrounding residents will be impacted. 6 Dundas Street will be impacted from excessive visual bulk to its private open space and the proposal is larger in scale that 6 Dundas Street. 10 and 3/12 Dundas Street will lose views of Coogee Beach. Additional overshadowing will occur to 6, 8 and 10 Dundas Street from the non-compliant floor space, though it accepts that the controls for solar access for neighbouring properties are met. The scale of residential flat buildings in the adjoining zone should not be compared to the R2 zone.
Mr Awford agrees that the increased eastern setback and planter box width to the private open space area has mitigated visual privacy impacts. Visual privacy impacts from the first floor bedroom and balcony and the ground floor music room can be mitigated through fixed privacy screening.
Mr Betros’ evidence is that the dwelling is three storeys and presents as three storeys to Oberon Street. He says that the RDCP contemplates three storey dwellings on sloping sites, which this is, and that the 9.5m height limit facilitates three storey dwellings. The dwelling is less than the 9.5m RLEP height limit, screened by existing vegetation, highly articulated and steps with the sloping topography of the street. The dwelling is consistent with other three storey dwellings in the vicinity and will be subservient to existing and proposed four storey built forms allowed in the opposite R3 zone.
Mr Betros says that there are no unreasonable or adverse amenity impacts relating to privacy, overshadowing or view impacts. The proposal is smaller in scale than the adjoining dwelling at 6 Dundas Street due to its setbacks and screening from existing vegetation. 6 Dundas Street has a prominent and greater presence in the streetscape, with an approximate FSR of 1:1 and significantly less landscaped area.
The dwelling and adjoining dwellings will all receive the required amount of solar access under the controls. The extent of mutual visual and acoustic privacy impacts are more common in areas looking to capture views, as is the case here. 6 Dundas Street has multiple elevated windows and balconies that view into the subject site. The proposed dwelling includes privacy measures.
Mr Betros says that adjoining dwellings along the east are mostly orientated east and south-east to capture water views. The proposed dwelling is to the west of them. The proposed dwelling is highly articulated with planters and the upper level has been recessed. There are no adverse visual bulk impacts to neighbouring sites.

Considering the formula as described in the table of control 3.3.2 of the RDCP, on the basis of the site’s frontage of 11.645m, the parties agree that the side setback controls are complied with for the part of the building below 4.5m.
The text of the control and the diagram differ on the application of the side setback above 7m. There is no reference in the text of the control to any tapering for the part of the building above 7m. The only indicator is a dotted blue line on Figure 7 that shows a tapering of a roof form for a two storey, pitched roof dwelling. The note in the general setbacks explanation states that setbacks are measured perpendicular. I accept Mr Pickles’ submissions that the control requires a 6.5m side setback on both sides. This is a plain reading of the words and calculation of the control formula. On a site with a frontage of 11.645m, the total required side setbacks of 13m would not allow any building over 7m. On this basis, this part of the side setback control is more than controlling the intensity within a building envelope, but is inconsistent with the RLEP height development standard. It therefore should not apply. I agree with the decision in Appel and find that the side setback as applicable to the dwelling over 7m is unworkable as the required side setbacks would exceed the total frontage of the site.
In addition, I am satisfied that the variations to the side setback controls, including the minor protrusions below the 7m height in the side setback, meet the objectives of the control for the following reasons:
The RDCP anticipates three storey dwellings. I accept Mr Betros’ evidence and Mr Pickles submissions that the RLEP height control of 9.5m clearly anticipates three storey dwellings. Whilst this diverges from the objective for two storey dwellings, there is conflict between three storeys anticipated in the RLEP, in the RDCP, and this objective. I place more weight on the development standard and also on the existing three storey dwellings in the streetscape.
The proposed side setbacks and overall massing of the dwelling are generally consistent with the established rhythm of setbacks of the other two to three storey dwellings along Oberon Street and importantly, those dwellings towards the foreshore area.
For reasons I have articulated throughout, there is adequate building separation between adjoining dwellings to maintain visual and acoustic privacy as well as solar access. I also accept the evidence that some mutual privacy impacts are contextually appropriate as properties seek to obtain water views.
As I detail in the landscaping contention, there is adequate deep soil planting and private open space provided.
As I detail in the view sharing contention, adequate views are retained from neighbouring dwellings and the public domain.
For these reasons, the proposed side setback variations are acceptable in this context.

The proposal seeks variations to controls 2.7, 4.4 and 7.5 of the RDCP. I accept the evidence of Mr Betros and find that the proposed variations that result in a primary POS with swimming pool on the upper storey meets the objectives of each of the controls for the following reasons.
Control 2.7 is not complied with, as the controls seek to locate a 6m x 6m primary POS space on the ground floor, not on podiums or roofs, located to the rear of the site and incorporating landscaping.
The roof terrace is generally consistent with the controls of 4.4 of the RDCP but not for primary POS areas. Controls 4.4(ii) and (iii) allow stepped buildings on sloping sites to contain a roof terrace, so long as it is not located at the uppermost or main roof and other controls. I find that the proposed terrace is not located on the main or uppermost roof. The terrace is designed in a manner that is shown as ‘acceptable’ in Figure 12 of the RDCP, generally above the garage area and directly adjoining the living, dining and kitchen areas. The terrace complies with the controls in 4.4(ii) except for the requirement to be a secondary POS.
A garden area has been proposed in the rear setback, but is below the minimum 6m x 6m dimensions. Notwithstanding, the main POS is the rooftop POS.
With consideration of the objectives of controls 2.7 and 4.4, in the circumstances of this site, there are conflicts between the objectives to ensure that POS is provided at the ground floor, that trafficable roof spaces are not the primary POS area and for POS areas to receive adequate amenity.
I accept the evidence of Mr Betros and submissions of Mr Pickles SC that the location and orientation of this site means that a ground floor POS would result in a POS with poor amenity. A ground floor POS would be located below most of the southern Dundas Street properties. The rear of the site faces south, and a rear POS would receive very little sunlight and due to the topography, poor outlook. The proposed roof POS captures solar access, water views and adjoins the main living areas.
There are no unreasonable privacy, solar access or view sharing impacts to adjoining neighbours from the roof POS. Large upper element balconies and roof terraces are characteristic in the area, in order to capture water views. The proposal also provides adequate landscaping, as detailed at [173].
In considering the acoustic privacy issues raised about the roof POS, I am satisfied that the roof terrace primarily adjoins the elevated POS of 6 Dundas (albeit, at a higher height). The use of the POS by a family is consistent with terraces and large balconies already existing in the streetscape. There are no requirements for an acoustic report and I accept that the acoustic impacts will be consistent with those anticipated in a residential area.
Whilst some of the controls and objectives seek to locate the primary POS on the ground floor, the result on this site would be an undesirable, overshadowed primary POS area that would not provide adequate amenity for the residents. In the circumstances of this site, this objective conflicts with the other objectives seeking amenity and functionality. For these reasons, I accept that the proposed variations for the roof terrace meet all the relevant objectives and are acceptable.
In relation to control 7.5, the location of the swimming pool on the roof POS is inconsistent with the control to minimise pool structures protruding more than 1m above ground level. There are no relevant objectives for control 7.5. I have previously found that the location of the pool is not inconsistent with the character of the area. I accept that there are no visual or acoustic impacts from the pool, which is located towards the public park and away from 6 Dundas Street. The pool and its associated fencing do not breach the height limit. I find that the proposed location in an area that captures solar access, adjoins the POS and living areas and lacks amenity impacts to adjoining residents is acceptable.

I accept the evidence of Mr Betros and with the benefit of the site viewing, find that the view impacts are consistent with the view sharing controls of the RDCP for the following reasons.
I firstly accept the agreed evidence of the planners that views from 6 and 8 Dundas Street remain unaffected, given their location and orientation.
In considering all of the views lost from the car spaces, these are not views to be protected. I acknowledge that residents congregate in these areas for special events, to socialise or to appreciate the iconic views of Coogee Beach and the reserves, however it is unreasonable to protect views obtained from car parking spaces. There are no controls that seek to maintain view sharing from car parking spaces. I find that any view loss from the car parking spaces is reasonable.
10 Dundas Street benefits from expansive water views from rooms and living areas facing east. To the extent that views are lost from the rear yard, which from the site view and evidence would be a negligible amount, I find that these partial lost views from a valuable POS area are significantly offset by the other expansive water views obtained from the east facing balcony and rooms. I accept that the small amount of views lost are consistent with the view sharing controls of the RDCP.
The most impacted dwelling is 3/12 Dundas Street. The proposed development will partially impact the main POS and kitchen, which includes views of iconic Coogee Beach. Control 5.6(ii) of the RDCP prioritises living areas and kitchens as important areas to be retained, which are the identified impacted areas for this property. I accept Mr Betros’ evidence that a small portion of views that capture Coogee Beach and its interface will be lost, however the majority of the existing water views and headland view will be retained. I accept that the views lost are primarily not from the non-compliant parts of the proposed dwelling. Further, more views are currently lost from the existing vegetation at 8 Dundas Street. In considering the competing interests of maintaining views to main living areas (being the POS and the kitchen) over a side boundary, I find that the small amount of view loss, albeit to an iconic view, are acceptable and consistent with the view sharing controls of control 5.6 of the RDCP. I note that pruning of vegetation at 8 Dundas Street would open up more views to these affected areas.
To the extent that it was contended that views of the reserve may be lost to the gym at 14 Dundas Street, I accept the agreed evidence that there will be no loss of water views. The room is a gym, which is not a room prioritised for view sharing retention by the RDCP and still obtains expansive water views. For these reasons, any loss of views from this room of the reserve are reasonable, irrespective of the view loss being from the non-compliant aspect of the proposal.

Whilst it was contented that cl 6.2 of the RLEP was not met, there was no evidence adduced about how the proposal did not comply with these provisions. The evidence related to control 4.7 of the RDCP. On the basis of the supplementary report addressing cl 6.2, the Geotechnical Report and stormwater plans, I accept that cl 6.2 has been met.
I accept that the variation to control 4.7 earthworks meets the objectives of the control for the following reasons.
I accept and adopt the reasons given by Mr Betros that the additional excavation is acceptable as it is consistent with the site’s topography, generally stays within the building envelope, is not the cause of the lack of ground floor POS and provides adequate stormwater drainage and landscaping. There is no evidence of potential impacts to adjoining neighbours from the excavation and the excavated areas have not been used to provide subterranean spaces. I therefore find that the variation to the earthworks control is acceptable and meets the objectives of the control.
In relation to deep soil, the evidence was not able to identify the discrepancy between the 35% calculated by Hurst and the 32.7% calculated by Council.
I prefer the evidence of Mr Awford that the deep soil does not comply, as he personally undertook the assessment of the calculations. However, for the following reasons, I find that the minor variation is acceptable and meets the objectives of the controls. The minor variation of 2.3%, which I accept was not an intentional variation, still provides deep soil planting along the front setback, majority of the side setbacks and half of the rear setback. The site viewing revealed extensive existing vegetation at the front of the site and the site benefits from its location adjoining a park, which also provides trees near the boundary. Through the conditions of consent, appropriate tree selection will be provided. There is no evidence that the deep soil areas do not provide adequate stormwater measures or impact the climate resilience of the site. Accordingly, I accept that the proposed deep soil meets the objectives of control 2.5.

Hurst v Randwick City Council

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Amended Application

Site description and locality

Issues

Expert Evidence

Is the proposed development inconsistent with the zone objectives

Evidence and submissions

Findings

Is the breach to FSR acceptable?

Evidence

Submissions

Findings on FSR/GFA calculations

Findings of the FSR variation

Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

Are there sufficient environmental planning grounds?

Is the breach to the building height acceptable?

Evidence

Submissions

Findings

Side Setbacks

Evidence

Submissions

Findings

Is the dwelling’s design inconsistent with the desired future character?

Evidence

Findings

Are there impacts to the foreshore scenic protection area?

Evidence

Findings

Terrace, private open space area and swimming pool variations

Evidence

Findings

View Loss

Evidence

Findings

Amenity impacts

Evidence

Findings

Earthworks and deep soil

Evidence

Findings

Insufficient information

Community submissions

Conditions

Jurisdiction

Conclusion

Orders

S Porter

Commissioner of the Court

Annexure A (328 KB, pdf)

Parties

Legislation Cited (4)

Cases Cited (1)