CMH Design Pty Ltd t/a CM Hairis Architects v Randwick City Council [2021] NSWLEC 1117

CMH Design Pty Ltd t/a CM Hairis Architects v Randwick City Council [2021] NSWLEC 1117

The Court held that the amended development complies with the relevant FSR standard, as the stair access to the roof terrace is excluded from GFA. The application of the DCP's prohibition on roof terraces on the uppermost roof was flexible since the objectives were met, and the amended design's privacy, acoustic, and visual impacts were not unreasonable, adequately mitigated, or minor. The necessity of the terrace was not relevant. The development was generally consistent with zone objectives, and amenity impacts were not sufficiently detrimental to warrant refusal.

Jurisdiction
Australia
Judgment Date
08 March 2021
Procedural Posture
Appeal (class 1, Land and Environment Court) / Judgment Following Hearing After Conciliation Terminated
Outcome
Appeal upheld, development consent granted with conditions.
Legal Topics
['development Applications' 'floor Space Ratio' 'amenity Impacts' 'variations to Planning Controls' 'residential Development' 'discretion Under Development Control Plans']
['planning and Environment Law'] ['development Applications' 'floor Space Ratio' 'amenity Impacts' 'variations to Planning Controls' 'residential Development' 'discretion Under Development Control Plans']

Case Brief

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Procedural Posture

Appeal (class 1, Land and Environment Court) / Judgment Following Hearing After Conciliation Terminated

Legal Issues

  1. 1 ['Whether the proposed development exceeds the floor space ratio (FSR) standard under the Randwick Local Environmental Plan 2012' "Whether the development's roof terrace will cause unreasonable impacts (privacy, acoustic, visual) for adjoining neighbours" 'Whether the variation to the control prohibiting roof terraces on the uppermost roof is appropriate' 'Whether the development is generally consistent with zone objectives and DCP provisions']

Ratio Decidendi

The Court held that the amended development complies with the relevant FSR standard, as the stair access to the roof terrace is excluded from GFA. The application of the DCP's prohibition on roof terraces on the uppermost roof was flexible since the objectives were met, and the amended design's privacy, acoustic, and visual impacts were not unreasonable, adequately mitigated, or minor. The necessity of the terrace was not relevant. The development was generally consistent with zone objectives, and amenity impacts were not sufficiently detrimental to warrant refusal.

Court Disposition

Appeal upheld, development consent granted with conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to DA/210/2020 for alterations and additions to existing residential dwelling including a new roof terrace at 7 Undine Street, Maroubra (Lot 20 DP 8693) subject to the conditions at Annexure A.' 'The exhibits are returned with the exception of Exhibits A, F, G...