Troon Property Holdings Pty Ltd v Randwick City Council

Planning framework

1. The site is zoned R3 - Medium Density Residential under Randwick Local Environmental Plan 2012 (RLEP) and adjoins land zoned RE1 Public Recreation to the east, south and west, and land zoned C1 Environmental Conservation to the north. See Figure 2. Figure 2 - Zoning outline (source: ASOFAC p 2)
2. Relevant objectives of the R3 zone in RLEP include the following: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. ... • To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability.
3. The proposal can be defined as 'multi dwelling housing' a use permissible with consent in the R3 zone.
4. The site has a maximum floor space ratio (FSR) control of 0.75:1 and maximum building height control of 9.5m under the RLEP.
5. The southern portion of the site is mapped within a proximity area of a coastal wetlands on the Coastal Wetlands and Littoral Rainforests Map under s 2.8 of the State Environmental Planning Policy (Resilience and Hazards) 2021.
6. Randwick Comprehensive Development Control Plan 2013 (RDCP) also applies and is considered relevantly below.

Issues

1. By the time of final submissions from the parties, and mindful of amendments to the proposal and agreed conditions which would apply to any consent, Council pressed three of the contentions originally nominated in its Statement of Facts and Contentions (Ex 1), and only parts of these contentions were pressed. The relevant matters remaining in dispute involved Contentions 6 and 8 which are related, and concern the proposed built form, and Contention 2 which is in regard to biodiversity impacts (T 12/11/2024 114 (14)).
2. I can note here that the experts giving evidence of relevance to the remaining points of dispute were as indicated in the table below. Expert Expertise Appointed by S Wilkes Town planning Applicant F Macri Town planning Council A Clements Biodiversity Applicant D Wotherspoon Biodiversity and bushfire Council

Built form related matters

1. There are three somewhat inter-related matters remaining in contention. These are: visual bulk and character compatibility, visual privacy and solar access.

Visual bulk and character compatibility

1. Council contends that the DA should be refused as "it presents an unacceptable bulk and scale". It is noteworthy that there is no dispute that the proposal complies with both the building height and FSR standards under RLEP (T 12/11/2024 114 (14)). The point pressed by Council was that the proposal is nonetheless out of character. It was Council's submission that the predominant existing character is of golf course-related uses and National Park and that the proposed development is at odds with this character. Mr Macri noted his concerns with regard to proposed roof terraces in particular, which he believed also presented unresolved concerns relating to visual privacy and solar access which I will turn to below, which themselves had relationships with the visual bulk concern.
2. In relation to visual bulk as a factor in relation to character, reference was made to Court's planning principle in Veloshin v Randwick Council [2007] NSWLEC 428 (Veloshin) concerned with the evaluation of height and bulk. Council highlighted Veloshin's reference to planning controls aimed at preserving the existing character. I reproduce the relevant text below (Veloshin [32]): Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are: Does the area have a predominant existing character and are the planning controls likely to maintain it? Does the proposal fit into the existing character of the area?
3. I think it true enough that the existing visual character is related to outdoor (especially golf-related) recreation activities and (low) bushland, although I do note the existing medium density buildings nearby to the north (fronting Harvey Street) and under construction to the west of the driving range (fronting Jennifer Street). However, it seems unequivocal to me that the planning controls applying to the site are directly focused on other than "preserving" this existing character. Under the applicable environmental planning instrument (ie RLEP) it has been considered appropriate to zone the land for medium density housing, with a 9.5m height control and a 0.75:1 FSR control. I agree with the applicant that it is a further question in Veloshin (also at [32]) that is the most relevant here: Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is: Is the proposal consistent with the bulk and character intended by the planning controls?
4. The proposal accords with height and FSR controls, which suggests to me that the building bulk can be broadly considered to be in accordance with planning intentions. While this is at odds with the existing character, this is of less relevance in this case.
5. There is something of a chapeau to the consideration of the two questions from Veloshin which I refer to above. This refers to the question of whether the proposed bulk or massing provides a reasonable response in regard to impacts, (Veloshin [32]): Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.)
6. This leads readily into the next two topics.

Solar access

1. Council's concerns here include that the rooftop level of the development, a factor in overall building bulk, brings overshadowing implications for ground level private open space. RDCP's medium density housing section includes provisions relating to solar access and overshadowing at Part C, clause 5.1. The relevant objectives are: • To ensure the design, orientation and siting of development maximises solar access to the living areas of dwellings and open spaces, and is encouraged to all other areas of the development. … • To provide adequate ambient lighting and minimise the need for artificial lighting during daylight hours.
2. The applicable controls under clause 5.1 include: Dwellings within the development site must receive a minimum of 3 hours sunlight in living areas and to at least 50% of the private open space between 8am and 4pm on 21 June (mid winter). Living areas and private open spaces for at least 70% of dwellings within a residential flat building must provide direct sunlight for at least three hours between 8am and 4pm on 21 June (mid winter).
3. A central question in regard to this topic was whether solar access to rooftop private open space of the dwellings should be able to be included in calculated solar access areas. Mr Macri agreed that if the rooftop private open space of residences was included then the proposal achieved "well in excess" of the DCP provision at clause 5.1(i) (T 11/11/2024 57 (5)). I understood Mr Macri's concern was that this rooftop area did not adequately flow to a living area within the residences. Reference was made to Part C, clause 2.3 of RDCP concerned with private and communal open space. The objective is: • To provide useful areas of private and communal open space for outdoor living and recreation to serve the needs of the residents and enhance their quality of life.
4. The controls are nominated at clause 2.3.1 and include: Private open space is to be: i) Directly accessible from the living area of the dwelling ii) Open to a northerly aspect where possible so as to maximise solar access iii) Be designed to provide adequate privacy for residents and where possible can also contribute to passive surveillance of common areas For attached dwellings and multi dwelling housing- Each dwelling is provided with an area of useable private open space or courtyard area, at ground and/or podium level with minimal or no level changes …
5. In closing submissions, and perhaps as a matter of legal interpretation mindful of s 4.15(3A) of the EPA Act, Council sought to link the interpretation of useable "private open space" at clause 2.3.1 ("ground and/or podium level") and the control at cl 5.1(i) requiring "3 hours sunlight … (to) 50% of private open space…". Council argued that the rooftop open space was not a podium, and as such those rooftop areas could not be included for the calculation of solar access.
6. While I do accept the point, generally, that private open space that flows into living areas is preferable, it is my view that the rooftop aspects of the proposal meet the objectives relating to private open space in any event. The private open space objective (clause 2.3 of the RCDP) is concerned with providing "useful areas" and enhancing "quality of life". These rooftop areas seem to be of quite high amenity and seem likely to be reasonably well used. It follows for me that they can be included for solar access calculation purposes.

Visual privacy

1. I understood Council's concerns here to relate to the separation distance between residences. The links to the topic of visual bulk include: (1) that visual bulk would be reduced overall if there were to be greater inter-building spacing (and a lower yield) and (2) that the proposed screens required to deliver visual privacy had potential to add to visual bulk.
2. The objective of the visual privacy controls are at clause 5.3 and are as follows: To ensure a high level of amenity by providing for reasonable level of visual privacy for dwellings and neighbouring properties · To ensure new development is designed so that its occupants enjoy visual and acoustic privacy, whilst maintaining the existing level of privacy of adjoining and nearby properties.
3. Two of the controls have pertinence: iv) Locate and design areas of private open to ensure a high level of user privacy. Landscaping, screen planting, fences, shading devices and screens are used to prevent overlooking and improve privacy. v) Incorporate materials and design of privacy screens including (but not limited to): - Translucent or obscured glazing - Fixed timber or metal slats mounted horizontally or vertically - Fixed vertical louvers with the individual blades oriented away from the private open space or windows of the adjacent dwellings - Screen planting and planter boxes may be used as a supplementary device for reinforcing privacy protection. However, they must not be used as the sole privacy protection measure.
4. There is no numeric separation control under RDCP.
5. According to the evidence given by Mr Wilkes, the separation distance between relevant rooftop terraces is a minimum of 11m. Importantly, there is then the arrangements for operable screens to effect privacy. My understanding of the concept is that if one is on the rooftop terrace area then a roller screen to three sides of the rooftop terrace would come into effect (rolling down from above and triggered by a sensor). The roller screen plays both of visual privacy function and a function relating to protection from stray golf balls. The western side of the rooftop terrace would not be subject to the roller screen as it is not needed for privacy purposes (but like the eastern boundary of the site, the western boundary would accommodate a safety screen aimed at preventing entry into the site by stray golf balls).
6. In terms of visual privacy, the idea of the roller screens seems to me a quite acceptable arrangement, with considerable alignment with RDCP controls at clause 5.3. Sight lines between roof terraces in the north-south direction would be filtered by two sets of the roller screens in instances where people were located on each of the two terraces. There is a considerable degree of intricacy involved in the roller screen system and the planning experts agreed that it would be appropriate for a condition of consent to be imposed requiring final details to be subject to Council approval.

Biodiversity impacts

1. Council contends that the proposed development should be refused because of the uncertainty and insufficient information regarding the ecological assessment and mapping at the site. A series of points are then listed (Ex 1 p 10). By the time of the hearing, many of the perceived information deficiencies had been addressed. Some differences remained between the experts. There seemed to be three main areas. These related to: (1) the efficacy of the Biodiversity Development Assessment Report (BDAR) and some of the associated modelling, (2) potential wildfire risk to the proposed dwellings from the south and (3) certain particulars of relevance to a threatened snail species (Maroubra Land Snail Meridolum maryae).

BDAR and associated modelling

1. Dr Wotherspoon had raised concerns about the BDAR plot locations. At Ex 7 p 15, and after further confirmatory evidence prepared by Dr Constance, there was agreement that the BDAR plot locations were adequately mapped.
2. However, there was disagreement on further technical aspects of the heuristics adopted in the BDAR work, generally. Dr Wotherspoon thought it more reasonable that a different approach be adopted to that undertaken by Ms Clements involving, in my interpretation, a greater degree of sensitivity analysis to finer contextual particulars. Dr Wotherspoon expressed concerns about the application of online calculation tools established to standardise evaluative methods. Dr Wotherspoon felt that a different outcome, in terms of biodiversity offset, may have eventuated had his approach been adopted.
3. Overall, I preferred the evidence of Dr Clements in this area of the dispute. Dr Clements, in my opinion, clearly explained the "objective" process which was followed in the preparation of the BDAR, including the use of the Plot to PCT Assignment Tool. But Dr Clements also seemed to me to be able to respond with empirically based responses to Dr Wotherspoon's points, justifying the use of tools and standardised methods as adopted in this instance.

Wildfire risk

1. Dr Wotherspoon raised a question in regard to wildfire risk to residential properties from the south and south-west, in particular. The link between this question and the real issues in dispute between the parties (as established in the contentions), was tenuous. The fire-related contention was concerned with impacts on Eastern Suburbs Banksia Scrub (ESBS) as a Critically Endangered Ecological Community, rather than risk to property (Contention 2(f)), a concern which was adequately addressed. Nevertheless, the experts did seek to respond to risk of wildfire on residential properties in their expert report (Ex 7, still in the section dealing with contention 2(f)). In my opinion, the setting here was similar to that described in Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139 (Aussie Ark) at [52], where it was found that such reporting (on merits considerations not otherwise raised in contentions) was irrelevant, as the appeal needs to be determined in regard to the principal contested issues (ie matters raised in contentions which are clear to the applicant in the preparation of its case). There was a particular concern here in regard to procedural fairness, with Dr Wotherspoon indicating his expertise in bushfire considerations, whereas the applicant had not seen any need to engage a bushfire specialist (although Dr Clements was able to assist somewhat in the topic raised by Dr Wotherspoon).
2. Essentially, Dr Wotherspoon referenced the wildfire history of the National Park lands and suggested there was an unconsidered risk associated with introducing residential development in (fairly) close proximity to fuel hazard within the National Park. Dr Constance, who has no bushfire qualifications but had a familiarity with the topic with respect to the site, indicated the National Parks and Wildlife Services (NPWS) has prepared an appropriate fire management plan for this National Park, with reasoned response strategies, including in regard to bushfire prevention and "protection of life and property" (Ex 7 p 7). Both experts agreed that the land to the immediate south of the site was coastal swamp heath and that higher risk vegetation was some distance further away. Also notable for me in regard to this point, was the fact of the response from NPWS in regard to the proposal (Ex 2 p 23). In this referral response NPWS had the opportunity to raise concerns in regard to bushfire risk on property (a matter raised in the relevant guideline: NPWS, Developments adjacent to National Parks and Wildlife Service lands - Guidelines for consent and planning authorities). While certain idiosyncratic factors of local relevance were raised, no such bushfire (risk to property) concerns were indicated in the NPWS feedback.
3. In all of the circumstances, I am satisfied that this matter of bushfire risk to residential properties, raised late, is not of such significance as to shift the determination away from that which should occur based on the consideration of the nominated contentions, for which the parties have had opportunity to prepare.

Maroubra Land Snail

1. A point of contention related to reference to habitat retention for a threatened snail species (Maroubra Land Snail Meridolum maryae) in a required Vegetation Management Plan (VMP). While it seemed there was considerable doubt as to the presence, or even potential presence, on-site for this species, I understood the parties to come to a general agreement as to the approach to inclusions within the VMP which satisfied each of their points of view (T 12/11/2024 80 (20), 81 (1)).

Conditions

1. In accordance with my directions, the parties provided their positions on disputed conditions after the conclusion of the hearing. I note here, there were a large number of disputed conditions, sometimes going into matters of detail which were not fully canvassed in the hearing or in written submissions. This was a little disappointing to discover, in that there was time that remained available during the listed hearing dates to allow for such contested conditions to be better canvassed, with the Court, in the presence of both parties. At times in the consideration of disputed conditions, I have adopted the position that the applicant needed to make its case, in accordance with the general approach to contested Class 1 hearings.
2. The reference document, I use in the findings below, is the PDF version of conditions forwarded to the Court, jointly by the parties, on November 19, 2024 (at 3:04 pm). That is to say, and mindful of some non-sequiturs in the numbering in that document, the reference number in the headings below refers to the specific condition numbers included in that PDF document. Later I make orders for the parties to reconvene and seek to finalise the conditions in accordance with my findings.

Condition 1 - Traffic and Parking Report

1. I am satisfied that this report can be included in the Table to Condition 1. Other conditions address construction stage requirements.

Condition 2(a) - Detailed sections for roof top planting to be approved by Council

1. Council seeks a confirmatory role in regard to detailed landscape sections of roof top planting zones. The applicant sees such requirements as unnecessary, or able to be approved by certifier.
2. There was agreement from the planning experts on a need for a condition requiring these additional section drawings to be prepared prior to the issuance of the construction certificate. Given the uncertainties in other approval drawings, it is reasonable that these sections be approved by Council.

Condition 2(d) - Amended roof plan to be approved by Council

1. Council is concerned about breaches of the height control with final design. The applicant sees no need for this condition.
2. The consent only provides approval for the plans forming part of the application for consent, as amended. These plans are agreed as not breaching the height standard. The applicant's position is generally accepted. However, in the circumstances and similar to agreed Condition 2(e), it is reasonable to add an advising (replacing Council's proposed Condition 2(d)) to indicate the requirement for works to not contravene the height standard.

Condition 2(e) - Detailed specification of the proposed roller blind material and operational guidelines / plan of management to be approved by Council

1. The applicant argued this condition should be amended as a matter for the certifier as a precondition to the issuing of a Construction Certificate to avoid inefficiency.
2. The issue of the operating blinds system was quite significant in the response to merits concerns (in regard to visual bulk, privacy and safety related). There was some intricacy to it and particulars were unclear. Due to this uncertainty in the proceedings, Council's approach is preferred. This is essentially in alignment with the position indicated by the town planning experts (T 11/11/2024 50 (39-42)).

Condition 8 - Vegetation management

1. I agree with the applicant that Council's proposed condition linking the future landowners with the BDAR is unnecessary and should be deleted. The following condition is the appropriate means to ensure ongoing management in accordance with the BDAR.

Condition 8 (as also marked) - Vegetation management plan

1. There is a need for an ongoing commitment to the VMP to be established. I accept the Council's position in regard to this condition in its entirety (concerns about holding snails in the unlikely event of their identification have been addressed).

Condition 14 - External colours, materials and finishes

1. Council argues the current materiality provides insufficient details to ensure privacy, amenity and visual bulk are adequately addressed. The applicant relies on the existing set of approval documents.
2. I agree with the applicant that the approved architectural set adequately addresses visual compatibility and amenity requirements. The exception is the particulars of the screens, which are addressed in another condition (2(e)).

Condition 17 - Security deposit

1. The applicant argues this condition is not required because the site is not located adjacent to any public infrastructure.
2. I prefer Council's argument that damage to roads and the like remains possible as heavy construction machinery will still need to use Council roads. The condition should be edited to refer to the current version of the EPA Act (s 4.17(6))

Condition 22 - Noise and vibration

1. The dispute here is whether a compliance report from the acoustic consultant should be approved by the certifier or Council. Council argues that due to site sensitivities this should be approved by Council. I see no particularly sensitive noise-setting concerns with the proposal and accept the applicant's position.

Condition 24 - Construction waste

1. The encouragement of the recycling and reuse of construction waste is important. The applicant's case has not been adequately made here. I prefer Council's position.

Conditions 32, 33, 45 - Ongoing (operational) waste management

1. There was little attention to the issue of ongoing (or operational) waste management in the proceedings. My understanding was that a position was reached where it was agreed the then waste management plan needed to be updated to cover Council's concerns. I otherwise accept Council's position with regard to hygiene and the like. Council's position is adopted in its entirety on these matters.

Condition 38 - Groundwater monitoring

1. The applicant's revision of the opening paragraph is accepted with the addition of the following text. "The report must be submitted to certification authority for satisfaction with a copy provided to Council". There is no need for the addition of the second paragraph, as suggested by Council (ie commencing with "The report must confirm..").

Condition 44 - Detailed Construction Site Traffic Management Plan

1. The condition as proposed by Council is acceptable. It seems to require certain additional inclusions in the approved CTMP to address contentions raised by Council.

Condition 60 - Traffic Management

1. While this condition does not seem to be contested, for clarity I note that Council's condition is accepted as a backup to the matter addressed immediately above.

Condition 64 - Site seepage and stormwater

1. The applicant argues the condition should be deleted as there is no seepage to be collected and discharged from site for the building. The basement is proposed to be tanked.
2. The condition does not only relate to site seepage. This matter could have been addressed directly in the proceedings. The applicant has not made its case here. Council's position is adopted.

Condition 69, 71 - Site and works remediation

1. These conditions relate to "requirements during construction and site work". They essentially duplicate conditions imposed as "requirements before a construction certificate can be issued". I agree with the applicant that the duplication is unreasonable. It is fair to think it can be a requirement to establish controls relating to construction and site works prior to the issue of a construction certificate. The consent instrument need not duplicate such matters. Instead of the conditions as worded there should be a single condition in this section of the consent (relating to "requirements during construction and site work") to the following effect: "Remediation related site works need to be undertaken consistent with Conditions XX and XX [specifying relevant earlier conditions]".

Condition 79 - Footpath

1. During the hearing and in written submissions the applicant indicated acceptance of this condition, which Council sought to be imposed to allow a pedestrian connection, including for persons with disability. The condition is imposed under s 4.17(1)(c) (ie as works whether or not upon land to which the development relates). It is a matter for the applicant to undertake the works including gaining any required approvals for it. I agree with Council that this should be the responsibility of the development, as there is no evidence other than its occupants can be expected to be the major users.

Condition 86 - Infrastructure, Vehicular Crossings & Road Openings

1. I understood that the development engineering experts agreed with the essentials of the engineering design as proposed with the application. This condition also includes text which seems inapplicable in this instance. The applicant's position is accepted.

Condition 98 - Acoustic certification

1. Council indicates requirements for acoustic certification to the Council's satisfaction. I agree with the applicant, this is more a matter where the acoustic specialist provides confirmation of a satisfactory outcome, or otherwise, to the Council. The expert should be required to "certify whether the noise and vibration satisfies (legal requirements")…"

Condition 99(a) - Indemnification of St Michael's Golf Course

1. I agree with the applicant that this is beyond power.

Jurisdictional factors the applicant's provision

1. I appreciated the applicant's provision of a statement on jurisdictional matters (Applicant's Outline of Submissions 12 November 2024 Part L), and understand there was no dispute on its content. Below I summarise my findings having regard to this advice.
2. I accept the agreement of the parties that the proposal complies with relevant standards under RLEP.
3. I am satisfied in regard to the relevant matters at cl 6.4(3) of RLEP, with respect to stormwater having regard to the uncontested advice on these matters is provided at Tab 12 of Ex B.
4. In relation to cl 6.5 of RLEP concerning terrestrial biodiversity, I accept the advice at Tab 12 of Ex B that this provision does not apply because at the time of the application being made, the site was not mapped as "environmentally sensitive land".
5. I am satisfied in relation to s 4.6 of State Environmental Planning Policy (Hazards and Resilience) 2021 (SEPP H & I), concerned with contamination and remediation, noting that there is both a preliminary site investigation and a detailed site investigation and the recommendations from these investigations would be imposed under the nominated conditions.
6. I am satisfied in relation to s 2.8(1) of SEPP H & I, accepting the direct agreed advice of the ecology expert in relation to this (Ex 7 p 15).

Objecting submissions

1. There were considerable objections to the proposal included in Ex 3. I also had the opportunity to hear directly from a number of objectors at the commencement of the site inspection on the first day of the proceedings. Many of the issues raised in submissions were also embodied in Council's contentions which have already been covered in the judgement or were addressed through amending plans on expert advice or through agreed conditions.
2. In my opinion the environmental concerns which were raised by objectors have been adequately canvassed in the deliberations of the ecological experts and I have made findings in regard to the topic above.
3. In relation to the golf safety considerations, I accept the parties' shared position that proposed protective screening is adequate. This topic was canvassed by a specialist consultant who indicated satisfaction with the proposed safety treatments. There was also advice from St Michael's golf course which also indicated satisfaction on that front. This issue was not pressed by Council having a mind to this advice, the amendments to the safety treatments and agreed conditions.
4. A theme of some of the submissions was that the provision of housing along this strip of land would provide a threat to the ongoing operation of the golf course and golf driving range, or constrain enjoyment of each. This brings to mind the findings of the then Chief Judge of the Court in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399, where I note that among other things it was found that (at [85]): In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
5. In this case I have found generally that the impacts are acceptable.
6. In accordance with the findings above, I see no reason why this project, permissible in the R3 - Medium Density Residential zoning, should not go ahead to play its part in meeting the zone objectives, subject to finalised conditions.

Directions on final conditions of consent

1. The parties attempted to assist the Court by giving instructions as to the wordings of condition alternatives. I have made, I think, detailed findings with respect to the disputed conditions above. In this instance, rather than finalising my decision now, it is necessary for me to direct the parties to amend the consent conditions document to align with these findings on conditions, after which I will finalise the judgement.
2. The Court directs that: 1. By 24 January 2025, the parties are to confer and agree on the particulars of the conditions of consent which reflect the findings of this judgement and file the agreed conditions. 2. The matter is listed for Online Court - request required 24 January 2025 (listing to be vacated if agreed conditions filed prior).

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: 16 January 2025