Emcon Group Pty Ltd v Randwick City Council (No 2) [2021] NSWLEC 1549

Emcon Group Pty Ltd v Randwick City Council (No 2) [2021] NSWLEC 1549

Although the proposal exceeded the RDCP external wall height control, it complied with the RLEP building height and floor space ratio controls and with relevant setback controls. The wall height non-compliance had only a small marginal effect on views from the key affected units, with most view loss caused by compliant aspects of the proposal and by development potential available on the site. The suggested alternative designs were not shown to sufficiently improve the view loss outcome without adverse implications for the proposal. With conditions, including privacy-related conditions, the proposal adequately responded to view loss and neighbour amenity issues and warranted conditional...

Jurisdiction
Australia
Judgment Date
30 September 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. Da/465/2020 / Principal Judgment
Outcome
Appeal upheld; development consent granted subject to conditions; exhibits returned.
Legal Topics
['development Application' 'residential Flat Building' 'view Loss' 'view Sharing' 'wall Height Control' 'visual Amenity' 'alternative Designs' 'development Consent Conditions']
['environmental Planning and Development' 'land and Environment'] ['development Application' 'residential Flat Building' 'view Loss' 'view Sharing' 'wall Height Control' 'visual Amenity' 'alternative Designs' 'development Consent Conditions']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. Da/465/2020 / Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed residential flat building caused unreasonable view loss to neighbouring properties at 43 and 45 Bond Street.' 'Whether non-compliance with the Randwick Comprehensive Development Control Plan 2013 external wall height control made the view loss unreasonable.' 'Whether the term "visual amenity" in the wall height control objective included view loss.' 'Whether more skilful alternative designs could provide the applicant with the same or similar development potential and amenity while reducing view impacts.' 'Whether conditions were required to address visual privacy impacts to the rear.']

Ratio Decidendi

Although the proposal exceeded the RDCP external wall height control, it complied with the RLEP building height and floor space ratio controls and with relevant setback controls. The wall height non-compliance had only a small marginal effect on views from the key affected units, with most view loss caused by compliant aspects of the proposal and by development potential available on the site. The suggested alternative designs were not shown to sufficiently improve the view loss outcome without adverse implications for the proposal. With conditions, including privacy-related conditions, the proposal adequately responded to view loss and neighbour amenity issues and warranted conditional...

Court Disposition

Appeal upheld; development consent granted subject to conditions; exhibits returned.

Orders

  • ['The appeal is upheld.' "Development consent is granted to DA/465/2020 for demolition of existing structures and construction of a part 3 and part 4 storey residential flat building containing 3 apartments, ground level parking, landscaping and associated works at 132 Marine Parade, Maroubra subject to conditions...