David Mitchell Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1144

David Mitchell Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1144

Although the Court found the amended development compatible with the character of the locality, acceptable in heritage terms, and calculated its GFA as 1372.2m² with an FSR of 1.016:1, the proposed development exceeded the 0.9:1 FSR standard. The SEPP ARH FSR bonus was unavailable because the relevant land was the combined three-lot development site containing heritage items subject to an Interim Heritage Order. The applicant therefore needed to satisfy cl 4.6 of Randwick Local Environmental Plan 2012, but the written request did not demonstrate sufficient environmental planning grounds directed to the FSR contravention, rather than to benefits of the development as a whole. As cl 4.6 was...

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application Da/297/2020 / Hearing After Unsuccessful Conciliation; Principal Judgment
Outcome
Appeal dismissed; development application determined by way of refusal.
Legal Topics
['boarding House Development' 'development Standards' 'floor Space Ratio Variation' 'clause 4.6 Written Request' 'affordable Rental Housing' 'local Character Compatibility' 'heritage Impact' 'gross Floor Area Calculation']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['boarding House Development' 'development Standards' 'floor Space Ratio Variation' 'clause 4.6 Written Request' 'affordable Rental Housing' 'local Character Compatibility' 'heritage Impact' 'gross Floor Area Calculation']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application Da/297/2020 / Hearing After Unsuccessful Conciliation; Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed boarding house design was compatible with the character of the local area under cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether the proposed development would have an acceptable effect on the heritage significance of the dwellings at 11-13 Abbotford Street under cl 5.10 of Randwick Local Environmental Plan 2012.' 'Whether certain horizontal circulation spaces should be included in gross floor area for the purpose of calculating floor space ratio.' 'Whether the FSR bonus under cl 29(1)(c) of State Environmental Planning Policy (Affordable Rental Housing) 2009 applied to part of the subject site only.' "Whether the applicant's written request under cl 4.6 of Randwick Local Environmental Plan 2012 adequately demonstrated sufficient environmental planning grounds to justify contravening the FSR development standard."]

Ratio Decidendi

Although the Court found the amended development compatible with the character of the locality, acceptable in heritage terms, and calculated its GFA as 1372.2m² with an FSR of 1.016:1, the proposed development exceeded the 0.9:1 FSR standard. The SEPP ARH FSR bonus was unavailable because the relevant land was the combined three-lot development site containing heritage items subject to an Interim Heritage Order. The applicant therefore needed to satisfy cl 4.6 of Randwick Local Environmental Plan 2012, but the written request did not demonstrate sufficient environmental planning grounds directed to the FSR contravention, rather than to benefits of the development as a whole. As cl 4.6 was...

Court Disposition

Appeal dismissed; development application determined by way of refusal.

Orders

  • ['The appeal is dismissed.' 'Development application DA/297/2020 for partial demolition and partial retention of the existing residential buildings (11&13 Abbotford Street Randwick) and demolition of existing multi dwelling housing (9 Abbotford Street Randwick); construction of a part 3/4 storey boarding house...