TAL GP Projects No 5 Pty Ltd v Randwick City Council

File Number(s): 2025/212266

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: TAL GP Projects No 5 Pty Ltd (TAL GP) have applied to Randwick City Council to demolish an existing building and construct a part 7, part 9 storey mixed-use commercial and co-living development at 229 Anzac Parade, Kensington.

2. In detail, the development proposes: ground floor retail/commercial space; 62 self-contained co-living accommodation rooms on upper levels; communal living areas; central courtyard; roof top communal space; lower ground level containing plant and service areas, waste rooms, bicycle storage, motorbike parking, car parking, substation and ancillary elements, and; landscaping and associated site works.

3. At the commencement of the hearing, due to discussions between the parties and amendments to the application, the remaining contentions relate to issues of planning and urban design resulting from the building design. Principally, these contentions focus on building separation and privacy, amenity, bulk and scale, and lot size.

4. With consideration of these issues, for the following reasons I find that the amenity impacts of the proposed development are unacceptable and that the development does not exhibit design excellence. Accordingly, I find that the appeal should be dismissed.

The subject site

5. The site is a narrow rectangular site fronting Anzac Parade, with rear lane access from Houston Lane. It is located within a narrow strip of E2 Commercial Centre zoning, and is adjacent to an existing 4-storey shop top residential flat building to the south and the 7-storey UNSW College building to the north. The University of New South Wales is situated directly opposite, across Anzac Parade.

6. The site is 505m2 in area, and currently supports an existing 3 storey residential flat building that is proposed for demolition.

Expert evidence

7. Expert evidence in these proceedings was provided by:

8. Daniel Barber, planning expert for TAL GP

9. Peter Smith, urban design expert for TAL GP

10. William Joannides, planning expert for the Council

11. Rohan Dickson, urban design expert for the Council

The development does not exhibit design excellence

8. Numerous contentions remained in this hearing despite two amendments to the development application, however in my considered opinion, the application fails principally because of the detail of the building design and the resulting amenity impacts. Overall, this results in a development that does not exhibit design excellence, contrary to the requirements of cl 6.11 of the Randwick Local Environmental Plan 2012 (RLEP)

9. Clause 6.11 of the RLEP reads:

6.11 Design excellence

(1) The objective of this clause is to deliver the highest standard of architectural and urban design.

(2) This clause applies to development involving the construction of a new building or external alterations to an existing building—

(a) on a site that has an area of 10,000 square metres or greater, or

(b) on land for which a development control plan is required to be prepared under clause 6.12, or

(c) that is, or will be, at least 15 metres in height.

(3) Development consent must not be granted to development to which this clause applies unless the consent authority is satisfied that the proposed development exhibits design excellence.

(4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c) how the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the same site and on neighbouring sites,

(d) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security, resource, energy and water efficiency, renewable energy sources and urban heat island effect mitigation,

(e) whether the proposed development detrimentally impacts on view corridors and landmarks.

10. With reference to the matters listed in cl 6.11(4) I find that the considerations listed in cl 6.11(4)(a) and (c) are of critical importance to my decision. It is for reasons of architectural design, as well as the relationship with the building on the neighbouring site to the south, that leads me to my conclusion.

The application does not exhibit a high standard of architectural design

11. The Council contends that the architectural design of the proposed building results in poor amenity to both the communal living spaces and the occupant rooms. Whilst I concur that the communal living spaces could be more equitably distributed and improved in layout, in my opinion the design of these spaces alone does not warrant refusal of the application. However, several aspects of the design of the building and occupant rooms result in a level of amenity that is, in my opinion, unacceptable.

12. The broad parameters of the building design are set through several instruments. The State Environmental Planning Policy (Housing) 2021 (Housing SEPP) provides a number of non-discretionary development standards at s 68. With the inclusion of the rooftop internal room to the Houston Lane building as communal living area, the development complies with all of these standards.

13. TAL GP gave some focus to the provision at s 68(1) that if these development standards are complied with, the consent authority cannot require more onerous standards for the particular matters provided for. These matters include: floor space ratio (FSR); minimum dimensions and area of both communal living area and communal open space; and parking provision. I note that in their assessment of this application and in their contentions, the Council has not required more onerous standards for any of these matters.

14. What the Council have required is compliance with the standards for co-living housing at s 69 of the Housing SEPP, and with the Apartment Design Guide (ADG) so far as is relevant. Again, I note that the area of each private room accords with the requirements at s 69(1)(a) of the Housing SEPP. However, the building does not meet the requirements of the Housing SEPP in terms of minimum lot size (s 69(1)(b)) and minimum separation distances as specified in the ADG (s 69(2)(b)).

15. The minimum lot size for co-living housing on this land, pursuant to s 69(1)(b) is 800m2. The lot size of the subject site is 505m2, which is a shortfall of some 36.8%. TAL GP have filed a written request to vary this standard pursuant to cl 4.6 of the RLEP, however it is the practical design implications of this shortfall that are of consequence to my decision, not the substance of the cl 4.6 request. The practical implications of the undersized lot are that, in order to achieve the applicant’s desired yield and development type, certain compromises are made such as removing street setbacks and reducing building separation. The reduced building separation results in a need for privacy screening to some habitable rooms.

16. The need for privacy screening is, on the evidence of Mr Dickson and Mr Johannides, the direct result of the combination of lot size and building separation. The ADG requires separation distances between habitable rooms of 12m up to 4 storeys, and 18m from 5-8 storeys (Part 3F). The building does not comply with this, with a separation of 12.5m between habitable rooms on the 5th floor and 14.3m on the 6th floor. The 6th floor separation is between windows from occupant rooms to a common living room and is, on the evidence, a lesser issue that can be practically resolved through a privacy screen to the balcony of the common terrace.

17. The 5th floor separation presents more of an issue, in that the lack of privacy between habitable rooms needs to be resolved again through the use of privacy screens. These screens in turn create an adverse amenity impact through the reduction of sunlight to the courtyard-facing occupant rooms to which they are applied. As the privacy screens have not been detailed in this application, the sunlight received by the level 5 courtyard-facing units has not been quantified, however on the expert evidence the screens are likely to result in rooms with unacceptable levels of daylight. These rooms are single-aspect and face a courtyard, and based on the sun eye diagrams in Ex D tab A, I concur with the Council that further compromise to the solar access is likely to significantly and unacceptably impact the amenity of these residential rooms.

18. The Council then contends that the dimensions of the occupant rooms result in rooms with a poor layout, and therefore poor amenity. As stated at [14], all occupant rooms in this building meet the required minimum area pursuant to the Housing SEPP s 69(1)(a), and the Council does not dispute this. The issue lies with the dimensions of the proposed rooms, in that they are narrow and long. For example, the typical floor plans of the Types 1 and 2 standard studio involve long, narrow corridors that also house the kitchen, wardrobe and desk. To fit all items, the fridge is positioned behind the entrance door, and the kitchen bench opposite the bathroom door, with the 1m corridor separating kitchen bench and bathroom. This creates a conflict between kitchen use and access, and no windows to either kitchen or bathroom, resulting in a reliance on mechanical ventilation, and poor amenity. The kitchen corridors then lead to a bed/dining space that is 2.6m wide. In the twin studios, Unit Type 3, this bed/dining space is reduced to 1.89m wide. As Mr Dickson points out, the Type 3 room does not even allow for an alternative bed orientation, let alone suitable living space. The Type 3 room also has an eating area with no outlook or access to natural light.

19. The Council summarises, and I agree, that these rooms are simply too deep and too narrow to provide adequate amenity, and will result in an unacceptable reliance on artificial lighting and mechanical ventilation. Mr Dickson further highlighted in oral evidence the mismatch between the internal room layout and the building structure, which results in some windows that do not align with rooms and in some instances span across party walls separating rooms. This has implications for function, ventilation, acoustics and construction.

20. TAL GP submits that the room dimensions are acceptable, because the rooms will have a high level of amenity through access to windows, natural ventilation and daylight. I note that, in addition to the issues described above, the acoustic evidence demonstrates that in order to achieve acoustic compliance, the rooms facing Anzac Parade must have closed windows and be mechanically ventilated.

21. TAL GP provided examples of other student housing approvals with similarly narrow rooms (Ex 3 Appendix K), however I note that the experts confirmed that all of these examples are wider than the proposed rooms and therefore do not provide a helpful comparison.

22. On the evidence it is apparent that the quality and amenity of the occupant rooms is heavily compromised by the narrow frontage and a deep floor plan, a misalignment between building structure and internal layout, conflicting requirements for natural ventilation and acoustics, and conflicting requirements between privacy and sunlight. On this basis I do not consider that the rooms will have the high level of amenity described by TAL GP, nor that the application exhibits a high standard of architectural design.

The relationship with the building and the neighbouring site

23. The Council contends that there are two key aspects of the built form that result in adverse impacts to the neighbouring site: the building height and the lack of street setbacks. Both of these impact the residential flat building to the south at 231-233 Anzac Parade.

24. The Council submits that the building height results in overshadowing to the windows of the apartments to the north-west corner of 231-233 Anzac Parade. This is demonstrated in the sun eye solar study, drawings DA 1010 and 1011 rev D by WMK, Exhibit B.

25. In response, TAL GP submit that the proposed height represents an appropriate response to the site conditions, noting that whilst the building does cause some overshadowing to neighbouring units, it could, under cl 4.3 of the RLEP, be built to a much greater height than is proposed and therefore have significantly greater impacts. Clause 4.3 permits a maximum height of 24m, but does not apply to this proposal due to the applicant electing to utilise the bonus provisions of RLEP cl 6.17. These provisions result in a two-part overall height limit of 31m fronting Anzac Parade, and 19m fronting Houston Lane.

26. In consideration of this, I note that height limits are a maximum allowable, not an unrestricted entitlement. Broadly, an applicant must demonstrate that the environmental impacts of a proposed development are acceptable, and that the development is consistent with the relevant provisions. I therefore do not accept that the impact of the height of the proposed building is acceptable simply because it does not utilise the maximum height available on this site.

27. On its own, the overshadowing caused by the building height would not warrant refusal of the application, as the impact is limited to common spaces. However, when combined with the impact of the lack of building setbacks, the impact is more significant. Randwick Development Control Plan 2013 (RDCP) Part E6, Section 6.1, Building Setbacks, and Figure 3b of this part sets a setback of 1.5m to Anzac Parade and 2m to Houston Lane for this site. The building proposes no setback to either street.

28. TAL GP submit that the zero setback is partly the result of advice received from the design panel (Ex 2 Tab 11) and also partly a response to the built form of the neighbouring College building, which also features no setbacks. I note that that the design review panel suggested consideration of non-compliant setbacks to the ‘pending further investigation of impacts and discussion with Council.’ It is the resulting impacts that the Council has concluded are unacceptable.

29. The nil setback to Houston Lane results in overshadowing of the northernmost private balconies and windows to the neighbouring residential flat buildings at 231-233 Anzac Parade. This results in these units having no direct sunlight between the hours of 9am-3pm (Ex D tab A) which, in my opinion, is an avoidable and unacceptable impact. This also contradicts the provisions of the RDCP at Part E6, Section 6.1, Building Setbacks, and at Figure 3b of this part.

30. It is my considered opinion that the proposed building height, when combined with the effect of the building setbacks, results in overshadowing and a subsequent loss of amenity to both the private and public parts of the neighbouring building, to an extent that is both avoidable and unacceptable.

Floor-to-ceiling heights

31. The RDCP sets minimum floor to ceiling heights that apply to the subject site at control 12(a) of Part E6. The proposed development meets this control for the ground level and upper floors but, with a first floor height of 2.83m, falls short of the 3.3m floor-to-ceiling requirement for first floors in this control. The Council contends that this will remove the opportunity for flexible use of this floor, contravening the objectives of Clause 12 of the RDCP. Relevantly, the objectives of this clause are to contribute to the flexible use of buildings, and to allow for future flexibility for residential uses to be converted to non-residential uses.

32. TAL GP submits that such future redevelopment into non-residential uses is so impracticable and unlikely that the objectives of Clause 12 of the RDCP should be given little weight. No clear evidence is before the Court to clarify why this type of redevelopment is unlikely, beyond the practical preference to locate co-living for student housing purposes in proximity to the university.

33. As a result, I see no justification for non-compliance with this control, nor any adequate support for the flexible application of the floor-to-ceiling requirements of the RDCP.

Conclusion

34. The proposed mixed-use development attempts to fit two co-living buildings on a narrow, constrained site. To achieve the desired yield and development type, the resulting development compromises the amenity of the occupant rooms to such an extent that I consider it does not exhibit a high standard of architectural design appropriate to the building type and location. Further, the building height and setbacks creates an unacceptable relationship with the neighbouring residential through the removal of critical sunlight to habitable rooms, and beneficial sunlight to communal areas. Finally, the insufficient floor to ceiling height on level 1 contravenes the provisions of the RDCP at Part E6 Clause 12, inhibiting future flexible use of the building, with no adequate justification.

35. On this basis, I am not satisfied that the proposed development exhibits design excellence pursuant to RLEP cl 6.11. As this is a threshold to which the application must meet to enliven my power to grant consent, and for the above reasons I have found that this threshold is not met, I am unable to grant consent to the development. Accordingly, the appeal must be dismissed and the application refused.

Orders

36. The Court orders:

37. The appeal is dismissed.

38. Development application DA/242/205 for a part 7, part 8 storey mixed-use co-living development at 229 Anzac Parade, Kensington, Lot 4 in DP 5633, is determined by way of refusal.

E Washington

Commissioner of the Court

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