Solitarii Developments Pty Ltd v Randwick City Council

Relevant planning controls 6The site is zoned 2C Residential under Randwick Local Environmental Plan 1998 (Consolidation) (LEP 1998). Multi-unit housing is permissible with development consent in this zone. Clause 9 provides that consent by only be granted after consideration has been given to the extent to which the proposed development is consistent with the general aims of the plan and the specific objectives of the zone. 7Clause 20F(1) provides that the maximum FSR is 0.9: 1 however cl 20F(2) provides that notwithstanding subclause (1), the maximum FSR is 0.65:1 when the site area is less than 700 sq m. The proposed development has an area of around 692 sq m so cl 20F(2) applies. The proposed development does not satisfy the 0.6 5:1 FSR requirement and an objection under SEPP 1 has been provided to show that strict compliance is unreasonable or unnecessary in the circumstances of the case. 8Clause 20G(2) provides for a maximum building height of 12 m and cl 20G(4) provides for a 10 m maximum height of any external wall of the building. The proposed development satisfies the 12 m requirement but not the 10 m maximum height requirement where an objection under SEPP 1 has been provided to show that strict compliance is unreasonable or unnecessary in the circumstances of the case. 9Randwick Multi Unit Housing Development Control Plan (the DCP) applies. Clause 2.1 provides Vision for Randwick - Desired Future Character, cl 3.2 provides objectives and controls for height, cl 3.3 provides objectives and controls for building setbacks and cl 3.4 provides objectives and controls for density. 10State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

SEPP 1 objection - floor space ratio 11Clause 20F provides for a maximum FSR of 0.65:1 for sites with an area of less than 700 sq m. The proposed development has a site area of 691.98 sq m and an FSR of 0.85:1 according to Mr Mooney and FSR of 0.78:1 according to Mr Betros. For either calculation, the proposed development does not satisfy the development standard. The evidence 12Expert town planning evidence was provided by Mr Anthony Betros for the applicant and Mr David Mooney for the council. Mr Betros provided an objection under SEPP 1 based on the approach adopted in Wehbe v Pittwater Council [2007] 156 LGERA 446. This judgment identifies a number of ways of establishing that compliance with a development standard is unreasonable or unnecessary. Wehbe states that the most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1). A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary (Test 2). A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable (Test 3). A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable (Test 4). A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard was inappropriate for that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5). 13Mr Betros notes that the stated purpose of the floor space ratio standard is identified in cl 20F as: Purpose: To operate together with controls for building height and landscaped area to limit the size, scale and site coverage of the building having regard to the environmental amenity and aesthetic character of the area. 14He states that the proposed development meets the purpose of the standard because:

• the proposal satisfies the overall height limit, outperforms the overall and soft landscaping requirements and is within the front and rear setback requirements,
• the site area is only 2% below the 700 sq m site area which allows for FSR of 0 9:1,
• the FSR is consistent with the adjoining residential flat building at 84 Dudley Street within FSR of 0 .9:1,
• the proposed development sits comfortably within the existing established medium density streetscape along both sides of Dudley Street,
• the proposal maintains the environmental amenity of the area through the provision of legible deep soil zones at the front and rear of the site while maintaining the amenity of neighbours, in terms of solar access and privacy, and
• the articulated and divided form of the building breaks up the bulk and scale. 15For these reasons, and if considered against the aims and objectives of the SEPP 1 and the relevant objects of the Environmental Planning and Assessment Act 1979 (the EPA Act), Mr Betros maintains that the proposal is consistent with the underlying and stated purpose of the standard, the local planning objectives for the locality and the objectives of the EPA Act. The objection has appropriately justified that the strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and as such is well founded. 16Mr Mooney states that the SEPP 1 objection is not well founded because it does not present an empirical analysis of the streetscape. An analysis of the street shows the bulk and scale of other buildings to be moderated by greater building separation. The proposal does not achieve this separation, especially to the east of the northern wing and to the west of the southern wing. The proposal has too much bulk too close to neighbouring buildings and results in unacceptable impacts on the spatial character of the area, which is symptomatic of non-compliance and is in conflict with the purpose of the standard. 17While impacts on the amenity of neighbouring buildings are acceptable, the accumulation of impacts of similar non-compliances for the future development at 86 Dudley Street is not acceptable. Findings 18While Mr Betros addressed each of the tests in Wehbe, we accept that Test 1 is the appropriate test for this application. The purpose of the FSR development standard is identified in cl 20F and is one of a number of controls to address amenity and character of an area. 19There was agreement between Mr Betros and Mr Mooney that the proposed development satisfies the numerical requirements for overall height, exceeds the overall and soft landscaping standards as well as the front and rear setback standards. There was also agreement that the proposed development does not create any unacceptable amenity impacts on adjoining residential properties (with the exception of the isolation argument which is dealt with later in the judgement). The significant difference between Mr Betros and Mr Mooney was whether the proposed development had an unacceptable impact on the streetscape and character of the area, largely because of the eastern setback of the proposed building. As we understand Mr Mooney's concerns, the additional floor area above the 0.6 5:1 FSR requirement manifests itself in the reduced side setback and is unacceptable when considered against the existing character and streetscape of the area. In his opinion, the eastern setback does not maintain the rhythm or the pattern of building separation in the streetscape. For the purpose of any assessment of streetscape and character, we understood that the experts largely relied on both sides of Dudley Street between Alexander Street and Brook Street. 20After considering the evidence of both the experts and with the benefit of the site inspection, we agree with Mr Betros that the variation to the FSR requirement can be supported for a number of reasons. First, and while we agree with Mr Mooney that cl 20F does not provide a sliding scale for FSR for different lot sizes, it would be unreasonable, in my view, to ignore that an FSR of 0.9: 1 would be acceptable if the lot was 8 sq m larger. We have no doubt that an area of 692 sq m could not be distinguished from an area of 700 sq m without a survey plan. Even taking Mr Mooney's calculation, the FSR of 0.85:1 is still below an FSR of 0.9: 1. 21Second, cl 3.3.4 of the DCP provides for a "minimum average setback (measured for the length of the building along the boundary) of 5 m from any side boundary" and "no part of the building is closer than 3.5 m from any side boundary". The proposal provides for a varied eastern setback ranging from 1.67 m to 5 m but at the street frontage the setback is 2.2 m at the terrace and 2.1 m at the building. We accept (and we understood Mr Mooney to agree) that strict compliance with the DCP side setback requirements was not sought but only that the proposed setback was insufficient in width because it was inconsistent with the prevailing building separation in the area. If the proposed side setback is tested against the performance requirements in cl 3.3.4 at P2, I agree with Mr Betros the setback is acceptable. The performance requirements address solar access, overshadowing, privacy, opportunities for landscaping and open space and streetscape. Only the latter requirement was in dispute, and in our view, given the existing building separation in the area, no issue can be taken with the proposed eastern setback. 22Third, and while cl 3.1.4 at S2 requires "sites are of a regular shape and have a frontage of at least 20 m", the clause also contemplates development on smaller width sites where it states: Note: Narrow or irregular shaped blocks may not be suitable for redevelopment. Development on these sites may need to be scaled down to reduce the potential for adverse impacts on adjoining properties 23Having agreement from the experts that there are no adverse impacts on adjoining properties and considering the large number of developments in the area that do not comply with the minimum frontage requirement, we accept there is a valid basis for allowing development on the lot notwithstanding the breach of the frontage requirement in the DCP. 24Fourth, and with the benefit of the site inspection, we agree that the eastern setback of the proposed building does not have an unacceptable impact on the streetscape and character of the area. Mr Betros and Mr Mooney provided graphical representations of the separation between existing buildings in the area and while there were some differences; these differences were not significant. This separation distances between between buildings at 78A, 80, 82, 84, 86 Dudley Street (to the west) is around 5.5 m. It must be remembered that these separation distances are spread over two lots. In our view, these separation distances reasonably compare to be 2.9 m setback, near the street frontage, to the adjoining single residential dwelling to the east at 88 Dudley Street. This separation distance has the potential to increase with any redevelopment on 88 Dudley Street in future, although we are satisfied that in the event that this dwelling remains, the acceptability of the proposed development in the streetscape is not changed in any meaningful way. 25Fifth, we accept the evidence of Mr Betros that the council has permitted a number of developments in the immediate area that exceed the FSR requirements, including 164 Brook Street, 205 Oberon Street, 47-53 Dudley Street and 55 Dudley Street. While this does not suggest that the council has abandoned its FSR requirements, we presume it simply means that each of the applications has been considered on its individual merits and breaches of the FSR requirement have been justified - as in this application. 26For these reasons, strict compliance with the FSR development standard is unreasonable and unnecessary in the circumstances of this case and it follows that the SEPP 1 objection is well founded.

SEPP 1 objection - wall height 27Clause 20G(4) provides for a maximum external wall height of 10 m. The proposed development has an external wall height that exceeds 10 m for part of the building in three locations. The first breach occurs at the street frontage of the building where the breach is a wedge shaped area measured 1.2 m from the eastern corner of the building to 0.2 m on the western corner of the building and extending back a distance of some 10 m of the 45 m long building. The second breach is a small area above the skylight to the central stairs and the third breach is a an area towards the rear of the building, some 0.2 m in height for a distance of some 10 m. The evidence 28Mr Betros uses the approach adopted in Wehbe in his SEPP 1 objection and notes that the stated purpose of the building height standards (that includes wall height) is identified in cl 20G is: Purpose: To operate together with controls for floor space ratio and landscaped area to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area. 29He states that the proposed development meets the purpose of the standard because:

• the proposal is appropriate for the surrounding locality and prominence of existing development of three storeys,
• the rear component is predominantly compliant with the wall height requirement,
• the development complies with the overall building height requirement of 12 m,
• the non-compliance is generally due to the sloping nature of the site and maintains its three-storey appearance,
• the proposed building makes a positive contribution to the locality,
• the proposed height creates no unreasonable overshadowing impacts, loss of view or outlook from adjoining properties, and
• the proposed development complies with the council's landscape requirements. 30For these reasons, and if considered against the aims and objectives of the SEPP 1 and the relevant objects of the Environmental Planning and Assessment Act 1979 (the EPA Act), Mr Betros maintains that the proposal is consistent with the underlying and stated purpose of the standard, the local planning objectives for the locality and the objectives of the EPA Act. The objection has appropriately justified that strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and as such is well founded. 31Mr Mooney states that the SEPP 1 objection is not well founded because it does not present an empirical analysis of the external wall height of other buildings in the street. In his opinion, the external wall height variation is quite severe and at the front of the site where it impacts most on the street character. The external walls of the street elevation are higher overall than the buildings to the wet, even though the subject site is topographical lower. The proposed building presents four aboveground storeys to the street, which is inconsistent with the prevailing 3/3.5 storey character of buildings in similar settings nearby. The excessive wall height is also close to the side boundaries than other buildings in the street making the impact of the spatial character of the street worse. The proposal does not satisfy the purpose for the external wall height standard because of this impact. Findings 32The purpose of the wall height development standard is identified in cl 20G and like the FSR development standard, is one of a number of controls to address amenity and character of an area. As with the FSR development standard, there was no dispute between Mr Betros and Mr Mooney that any breach of the wall height standard resulted in any amenity impacts, such as overshadowing. The differences between Mr Betros and Mr Mooney centred on the breach of the wall height requirement at the front of the building and the effect on the streetscape and character of the area. 33In considering this matter, the Court had the benefit of the site inspection and also plans showing the relative height of buildings adjoining and near the site. If the proposed building is considered in the context of the existing buildings in the area, we agree with Mr Betros that the breach of the wall height development standard can be supported in this instance. The height of buildings in the area varies considerably as does the type, age and design. In close proximity to the site are residential dwellings (80 and 88 Dudley Street), a 2-storey art deco residential flat building (90 Dudley Street), older style residential flat buildings (84A Dudley Street) and contemporary residential flat buildings (84 Dudley Street). Even though the height of the proposed buildings has a similar height to the adjoining residential flat building at 84 Dudley Street despite lower relative level because of the falling topography, we do not accept that it creates an unacceptable relationship between the two buildings. It must also be remembered that the breach of the wall height requirement, where it adjoins 84 Dudley Street, is in the order of only 0.2 m. 34The other breaches of the wall height requirement, in the area above the skylight to the central stairs and the area towards the rear of the building, are relatively minor and will not be seen from the street. These breaches also do not create any amenity impacts of adjoining properties. 35For these reasons, strict compliance with the wall height development standard is unreasonable and unnecessary in the circumstances of this case and it follows that the SEPP 1 objection is well founded.

Zone objectives 36Clause 9 provides that consent by only be granted after consideration has been given to the extent to which the proposed development is consistent with the general aims of the plan and the specific objectives of the zone. The relevant zone objectives are: (b) to maintain the desirable attributes of established residential areas, and (c) to protect the amenity of existing residents, and 37Having found that the proposed development is acceptable in terms of streetscape and character and is a form of development contemplated by LEP 1998, it follows the proposal is consistent with objective (b) in that the desirable attributes of the area are maintained. The agreed position of the experts, and a position we agree with, was that the proposed development would have no impact on the amenity of existing residents so we accept that there is consistency with zone objective (c).

Isolation of an adjoining property 38The adjoining property at 88 Dudley Street adjoins the site of the proposed development and contains a residential dwelling. The council contends that approval of the proposed development will result in the isolation of this property as development for the site for multi-unit housing cannot occur because the minimum frontage requirement of 20 m in cl 3.1.4 of the DCP cannot be achieved. It is also likely that an acceptable separation could not be achieved by a development on the subject site and 88 Dudley Street that would be compatible with the streetscape and that unacceptable impacts on solar access on other adjoining properties would also occur. To address the concerns of the council, the applicant has prepared a hypothetical design for 88 Dudley Street. The evidence 39Mr Mooney states that the hypothetical designed envelope shows a two-storey building that is much less than the maximum permissible height and FSR under LEP 1998, which is potentially not an economic development of the site. A 3-storey building on 88 Dudley Street would have unacceptable impacts on solar access to the west and would, at best, impact on the character of the street because of its height and setback characteristics. In his opinion, the two sites should be amalgamated and developed together to achieve the full height/FSR development potential while having acceptable impact on amenity and streetscape character. 40The owner of 88 Dudley Street provided evidence on the site inspection and copies of his correspondence to the council when the development application was advertised was also provided to be Court. Apart from comments on the breaches of the development standards in LEP 1998 and breaches of the DCP requirements, the owner stated that the site of the proposed development and his property should be developed together as they both have narrow frontages and it would open up the streetscape. The owner did state however that he had lived at the property for some 15 years and had raised a family there and it was his preference to continue occupying the dwelling as a family home. 41Mr Betros states that the hypothetical design shows a permissible for development which has reasonable amenity outcomes and which are typical of those in the locality along the section of Dudley Street. He notes that 88 Dudley Street has a depth of only 40 m compared to the subject site, which has a depth of 64 m. In his opinion, this limits the capacity to development the site, as does adjoining development. Findings 42The Court has considered the question of isolation land through redevelopment in Melissa Grech v Auburn Council [2004] NSWLEC 40 and Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189. In Melissa Grech , I made the following comments: Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application. Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property. Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979. 43In Cornerstone Property Group Tuor C supplements the comments in Melissa Grech and makes the following comments: 34 Two questions need to be answered: Firstly, is amalgamation of the sites feasible? In determining the answer to this question the principles set out by Brown C are relevant. Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible? + In answering this question the key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity. + To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road. + The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments. 44In response to those matters identified in Melissa Grech, the applicant tendered a bundle of documents (Exhibit F) containing correspondence on 14 December 2010 with the owners of 88 Dudley Street, including a valuation from a Registered Valuer and an offer to purchase the property for the amount of the valuation, plus an additional sum to be further discussed to cover any reasonable expenses to address the matters in Melissa Grech . The owner rejected this offer by letter dated 24 January 2011 by saying that "we are happy to stay in our home and enjoy what it offers to us as a family". The letter expressed similar views to that expressed on the site inspection that the location of the dwelling offered significant life style benefits such as coastal living, proximity to the beach and transport and easy access to the city and Sydney Harbour. We note that the letter of rejection of the offer to purchase the property appeared final and did not contain any suggestion of further negotiation. 45In relation to those matters identified in Cornerstone Property Group, we accept that the orderly and economic development of 88 Dudley Street would be best achieved through amalgamation of the two sites however this needs to be considered in the context of the legitimate right of the owner to remain in his property and not become involved in the joint development of the sites. Conversely, the applicant has a legitimate right to develop his property in line with what is anticipated by LEP 1998 and the DCP. The fact that the proposed development does not satisfy all requirements within these planning controls does not necessarily mean that the application should be refused. As with other cases in the immediate locality, variations to these planning controls were sought and accepted by the council. There was no evidence to suggest that ongoing negotiations would achieve a development over both sites, rather the evidence suggests that the owner of 88 Dudley Street seeks continued use of the site as a dwelling because of the lifestyle benefits it offers. 46While the principles in Cornerstone Property Group place some emphasis on achieving a development that is consistent with the planning controls, this must also be balanced against the evidence that suggests that the owner of 88 Dudley Street wishes to remain in his dwelling and development in the area has been the subject of a number of variations to these controls. To reject a development application on 88 Dudley Street on the basis that the minimum 20 m frontage requirement was not satisfied would be inconsistent with most approvals in the immediate area. 47For these reasons we do not accept that the as 88 Dudley Street is not included in the development, that this is a reason to refuse the application.

Orders 48The orders of the Court are:

1. The appeal is upheld.
2. Development Application DA/452/2010 for the demolition of the existing improvements and the construction of a multi-unit housing development at 86 Dudley St Coogee is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1, A and F. G T Brown Commissioner of the Court David Galwey Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2011