Overview of Development Application DA/297/2020
The development application (DA) selected for this assignment is Development Application DA/297/2020. The DA was submitted by David Mitchell Architects Pty Ltd (developer) to Randwick City Council. Upon assessment, the council refused the application. The application comprised of the following elements: partial retention and partial demolition of residential buildings existing on 11&13 Abbotford Street, Kensington; demolition of multi dwelling housing existing on 9 Abbotford Street, Kensington; construction of a part ¾ storey boarding house in a courtyard consisting of 59 boarding rooms, a basement car park with a capacity of 21 cars, 14 motorcycles and 14 bicycles; and landscaping and tree removal works at 9-13 Abbotford Street, Kensington (Land and Environment Court New South Wales, 2022). The application was filed at Randwick City Council. After assessment, the council refused the application on the following grounds: the proposed development had an impact on the heritage significance of the existing items on the site; the development was not compatible with the locality’s character; the development exceeded the maximum building height standard; and the development exceeded the maximum floor space ratio (FSR).
The site is zoned R3 Medium Density Residential, according to the Randwick Local Environmental Plan. The objectives of the zone include the following: to provide the community’s housing needs in a medium density residential area; provide different types of housing in a medium density residential area; to facilitate other land uses that are meant to provide services or facilities needed by the residents; to encourage affordable housing; to protect residents’ amenity; and to promote existence of small-scale businesses in the existing commercial buildings. Since the proposed development entails construction of a boarding house, it would only be permitted to be implemented in a medium density residential zone if development consent was given by the relevant authority (Randwick City Council, 2021).
The subject site is located on Abbotford Street’s northern side in Kensington, south-eastern Sydney, NSW, approximately 55 meters from the western intersection side between the street and Anzac Parade. There is a light rail stop located nearly 200m from the site. The site is surrounded by several residential developments ranging from large residential flat buildings to single detached dwellings, which are permitted in an R3 medium density residential zone. On the eastern side of the site is a 4-storey walkup flat building that has a garage at the ground level whereas on the western side of the site is a recently constructed part 3, part 4 storey residential flat building. The map, satellite view and street view of the subject site are as shown in Appendix 1, 2, 3 and 4 in the Appendices section. There are also several locally listed heritage items within the proximity of the site. These are: a pair of semi-detached dwellings (Parkside) on 5-5A Abbotford Street; a federation dwelling (Ledgers) on 29 Alison Road; and two-storey federation duplex on 31 Alison Road. The properties on the subject site (11&13 Abbotford Road) were listed as heritage items through an interim heritage order gazette on the NSW Government Gazette No 34 of 29 January 2021 (Government Gazette NSW, 2021). Therefore the properties are listed as heritage items and getting consent to demolish them and pave way for a new development has preconditions. This is one of the reasons why Randwick City Council did not give consent for the proposed development on 11&13 Abbotford Street, Kensington.
Grounds for Refusal by Randwick City Council
The developer was not satisfied with the determination of Randwick City Council and filed an appeal at the Land and Environment Court in New South Wales. Despite the provision of additional information and amendments, the court dismissed the appeal on similar grounds as those that Randwick City Council refused the DA. The grounds on which the court dismissed the appeal are as follows: the proposed development’s design is not compatible with the local area’s character; the proposed development is not consistent with the R3 Medium Density Residential zone’s objectives; and the proposed development’s wall height next to the heritage item is excessive.
The court cited several legislations in making its determination. These include the following: Environmental Planning and Assessment Act 1979 – section 1.3 (objects of act), section 4.15 (evaluation of development that needs consent) and section 8.7 (appeal by applicant for development consent); Randwick Local Environmental Plan 2012 – clause 2.1 (land use zones), clause 2.3 (objectives of land use zones and land use table), clause 2.7 (development consent required for demolitions), clause 4.3A (exceptions to height of buildings that are in Kensington and Matraville), clause 4.4 (floor space ratio), clause 4.6 (exceptions applicable to development standards) and clause 5.10 (heritage conservation) (Randwick City Council, 2021); Environmental Planning and Assessment Regulation 2000 – clause 55 (procedure for making amendments in a development application (NSW Government, 2000); Environmental Planning and Assessment Amendment (Housing) Regulation 2021, Interpretation Act 1987 – section 5 and section 30; State Environmental Planning Policy (Housing) 2021 – division 7 (development standards that are non-discretionary); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Affordable Rental Housing) 2009 – clause 3 (aims of policy), clause 4 (general interpretation), clause 27 (development to which the division is applicable), clause 29 (standards that cannot be used as a basis for refusing consent), clause 30 (standards that are applicable to boarding houses) and clause 30A (character of local area); State Environmental Planning Policy No 55 – Remediation of Land – clause 7; and State Environmental Planning Policy (Resources and Energy) 2021. The judges also cited the following texts: Randwick Heritage Study published in March 2021, Randwick Comprehensive Development Control Plan 2013, and NSW Government Gazette No 34 of 29 January 2021 (Land and Environment Court New South Wales, 2022).
The project selected in this study is a property development project. There are several reasons for selecting this project. First, it has provided information on the procedures for getting development consent from relevant authorities. For a development to take place, it has to be approved first. The developer must collect all the relevant information and documents before submitting a development application to the relevant agency in the area where the project is to be implemented. Once the application is received, the agency assesses the application and makes a determination. The application can be approved, refused or approved with amendments. The application can be done online without necessarily having to visit the physical offices of the agency.
Second, the project has helped in understanding some of the reasons why a development application can be refused. There are criteria that the agency uses to assess an application and make a determination. Before submitting a development application, the developer must carry out research and do due diligence so as to establish if the proposed development meet all the requirements within the subject area. In this case, the agency (Randwick City Council) refused the application because the development would affect the heritage items listed on the subject site, it was not matching with the character of the locality, it exceeded the maximum floor space ratio, and the building’s wall height exceeded the maximum standard height. Third, the project has also helped to learn that a decision made by the local agency can be appealed at the Land and Environment Court. The appeal can be made with the original proposal or with proposed amendments. In this case, the developer amended the original proposal and appealed the decision made by Randwick City Council at the Land and Environment Court New South Wales. Unfortunately, the appeal was dismissed by the court. If the appeal is dismissed then the developer must re-start the process by changing the design of the proposed development until it meets all the requirements of the relevant local authority, state and national policies, laws and regulations.
Zoning of the Site and Objectives of R3 Medium Density Residential Zone
Last but not least, the project has helped in appreciating the importance of controlling development in a certain area and why regions are categorized into development zones. Development control helps in ensuring that land is used in a manner that protects the natural environment (Gurran, et al., 2014). The control ensures that all development applications comply with the applicable policy guidelines, standards, planning regulations, approved physical development plans and other relevant local authority by-laws (Sahukar, 2018). It also ensures that certain standards of development are maintained within a specific region and minimizes the negative effects that come with physical development (Obabori, et al., 2017).
The following are the elements identified from a development control plan. For each element, at least three items have been listed that would be part of the checklist when working on the development proposal.
- Pollution levels in the area and potential control measures
- Human activities that is destructive to the habitat and possible control measures
- Population growth in the area and its potential on the proposed development
- Type of weeds
- Weed control measures
- Weed patterns on and around the site
- Soil conditions, ground texture, flood risk and flooding patterns
- Stormwater management strategies
- Existing storm water drainage systems adjacent to and at the site
- Estimated volume of storm water
- Layout of the site
- Management of tools, equipment and materials inventory
- Safety of all persons on site (workers and visitors)
- Allocation, movement and utilization of resources (materials, tools and personnel) on site
- Street lighting, bus stops, signage and utility lines
- Beautification of streets – landscaping, street furniture, accent planting and street trees(Rehan, 2013)
- Vehicle travel lanes (number and width), parking lanes, sidewalks, bicycle lanes and bicycle parking spaces/facilities(Al Odat & l Kurdi, 2021)
- The slope and drainage of the site(Wartmann, et al., 2021)
- The pH and soil types of the site
- Location of the building in relation to the site’s utilities, lines and easements
- Occurrence and type of the heritage within and adjacent to the site(Yung, et al., 2017)
- Sensitivity and significance of the heritage to the local community(Meutia, et al., 2018)
- Requirements and costs associated with applying for a heritage impact permit
- Acceptable heritage conservation methods, procedures and management plans(Janssen, et al., 2017).
- Category of vegetation
- Slope angle at/adjacent to the site and wind speed in the area
- Site access for vital emergency services
- Asset protection zone near the site
- Crime rates in the area
- Drug trafficking and gang activities in the area
- Crime reduction activities/programs
- Previous and current activities and land use on similar and adjoining contaminated site
- Type and level of contamination
- Precious remediation works or contamination investigation reports on similar contaminated sites(Tweed Shire Council, (n.d.))
- Personal protective equipment (PPEs)
- Employee involvement through training and awareness
- Applicable legal health and safety policies, processes and procedures
- Supervision, training, induction and reporting on health and safety matters
- Availability and location of electricity supply system on and around the site
- Availability and location of water supply pipelines on and around the site
- Availability and location of gas supply system on and around the site
- Nearby wastewater treatment plant(s)
- Onsite wastewater treatment options
- Reuse of wastewater
- Quantity of wastewater generated on site
- Traffic volume, flow and pattern in the area
- Types of road networks available (freeway, national highway, urban arterial, rural arterial, urban/rural sub-arterial or urban/local collector)
- Need to apply for temporary construction access
- Gated/ungated access, queuing requirements and security barriers
- Expected pedestrian and vehicular movements, in, around and through the site
- Available parking space on and near the site
- Type of traffic expected on site
- Street lighting
- Nearby amenities (type and distance from the site)
- Nearby historical buildings or features
- Attractions neat the site
- Sources (renewable and non-renewable) of energy in the area
- Energy requirements on site
- Existing energy supply systems on or near the site
- Type, size, scale, range and design of surrounding or existing buildings
- Size and zoning requirements (allowable site uses, height restrictions, parking necessities and zoning classifications)
- Setbacks and building materials
- Available road networks to and around the site
- Traffic volume and type of vehicles expected to the site
- Traffic control measures to and around the site
- Timing and duration of pedestrian and vehicle movements in, around and through the site
References
Al Odat, S. & l Kurdi, N., 2021. Lively Streets: The Role of Streetscape Elements in Improving the Experience of Commercial Street Users in Amman, Jordan. Journal of Settlements and Spatial Planning, 12(1), pp. 1-12.
Government Gazette NSW, 2021. NSW Government Gazette No 34 – Planning and Heritrage, Randwick City: NSW Government.
Gurran, N., Gilbert, C. & Phibbs, P., 2014. Sustainable development control? Zoning and land use regulations for urban form, biodiversity conservation and green design in Australia. Journal of Environmental Planning and Management, 58(11), pp. 1-26.
Janssen, J., Luiten, E., Renes, H. & Stegmeijer, E., 2017. Heritage as sector, factor and vector: conceptualizing the shifting relationship between heritage management and spatial planning. European Planning Studies, 25(9), pp. 1654-1672.
Land and Environment Court New South Wales, 2022. David Mitchell Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1144, Randwick: Land and Environment Court New South Wales.
Meutia, Z., Akbar, R. & Zulkaidi, D., 2018. Heritage planning and rethinking the meaning and values of designating heritage sites in a post-disaster context: The case of Aceh, Indonesia. IOP Conference Series: Earth and Environmental Science, 158(1), pp. 1-8.
NSW Government, 2000. Environmental Planning and Assessment Regulation 2000, Sydney: NSW Government.
Obabori, A., Obiuwevbi, D. & Olomu, J., 2017. Development Control an Important Regulator of Settlement Growth: A Case Study of Ekpoma, Nigeria. Journal of HUman Ecology, 21(4), pp. 285-291.
Randwick City Council, 2021. Randwick Local Environmental Plan 2012 (2013 EPI 36), Randwick: NSW Government.
Rehan, R., 2013. Sustainable streetscape as an effective tool in sustainable urban design. HBRC Journal, 9(2), pp. 173-186.
Sahukar, N., 2018. The Role of Planning Laws and Development Control Systems in Reducing Greenhouse Gas Emissions: Analysis from New South Wales, Australia. In: M. Hossain, R. Hales & T. Sarker, eds. Pathways to a Sustainable Economy. New York: Springer, pp. 61-86.
Tweed Shire Council, (n.d.). Contaminated land. [Online]
Available at: https://www.tweed.nsw.gov.au/development-business/land-use-planning-controls/land-constraints/contaminated-land
[Accessed 2 April 2022].
Wartmann, F., Frick, J., Kienast, F. & Hunziker, M., 2021. Factors influencing visual landscape quality perceived by the public. Results from a national survey. Landscape and Urban Planning, 208(1), pp. 1014-1024.
Yung, E., Zhang, K. & Chan, E., 2017. Underlying social factors for evaluating heritage conservation in urban renewal districts. Habitat International, 66(1), pp. 135-148.
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