RANDWICK CITY COUNCIL SET TO POTENTIALLY INVALIDATE ITSELF

RANDWICK CITY COUNCIL SET TO POTENTIALLY INVALIDATE ITSELF

Approval of too many developments above the size limits could legally invalidate the limits themselves, and yet Council continue to make such approvals at blistering speed. The pro-development Randwick City Council (RCC) may be set to give developers open slather on building heights and building bulk.

In addition, the current approvals appear to contradict the case law.

 

UNDERSTANDING THE COUNCIL PROCESS (what is a DA, SEPP 1 Objection, LEP etc)

When Development Applications (DA's) are lodged with council, they must comply with the controls detailed in the Local Environmental Plan (LEP). This covers controls such as building heights and bulk/building scale.

In order to build in excess of the LEP, for a multi-unit dwelling, a developer must make an objection stating that in their specific case that it would be unreasonable or unnecessary for the controls to apply to their development. This is called a SEPP 1 Objection.

The most important SEPP 1 Objections are to the building height and floor space ratio (FSR) controls. The maximum FSR places limits on building bulk.

Council’s planning staff assess the DA (including SEPP 1 Objection) and make a recommendation (in the case of RCC, this is usually a recommendation for approval). The Councillors then vote on whether to approve or disapprove the Development Application (or sometimes on whether to recommend it for approval in cases where the final decision lies with an external panel). A majority vote is required for approval/recommendation.

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

 

HOW RANDWICK CITY COUNCIL MAY ALLOW UNLIMITED DEVELOPMENT

Randwick City Council (RCC) has been using a court case ruling, Wehbe v Pittwater Council [2007] (The Case) to assess and justify upholding SEPP 1 Objections lodged as non-compliant Development Applications.

The ruling in The Case states that one way for a DA to be approved above the Local Environmental Plan (LEP) limits is,

“to establish that the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence the standard is unnecessary or unreasonable.”

If this can be shown it could potentially allow developments to effectively go without limits.

Council staff must be aware of this and yet still continue to recommend approvals despite community concerns. This could lead one to wonder if Council and community are at cross-purposes.

The number of approved DA’s with SEPP 1 Objections required to satisfy this is unclear. An assessment of recent Council actions begs the question, are we already there?

In 2010, there were 84 SEPP1 objections, this being equivalent to approximately 10% of all development applications lodged with RCC.

In the first quarter of 2011 a total of 28 such DA's were submitted to Randwick City Council (RCC) and not a single one was refused or withdrawn, with 7 of these being approved within that timeframe.

At a recent Council meeting (May 10 2011), 11 out of 13 DA’s had SEPP 1 Objections. Many of these were approved by almost unanimous vote, with just one Councillor, Margaret Woodsmith, not supporting the approvals. Just one DA was refused. In the case of the refusal it was noted that the specific DA could go to court and that the justification for the SEPP 1 may not hold up. This begs the question, is Council aware that its basis for approving the majority of DA’s with SEPP 1 Objections may be contrary to the case law (see below)?

 

IS COUNCIL MAKING APPROVALS THAT CONTRADICT THE CASE LAW?

In the Wehbe v Pittwater Council [2007] court case (The Case), the Development Application being considered was actually refused.

Yet RCC continues to uphold SEPP 1 Objections.

The justifications RCC has used to uphold SEPP 1 Objections could bring the recent approvals into question.

It is hard to believe that Randwick City Council actually knows the outcome of the case in question.

To justify upholding SEPP 1 Objections (and allow larger buildings), RCC has been asserting that the purpose of the controls stated in the LEP are being met, and because the purpose is being met anyway, that the controls on height and floor space ratio (FSR) do not need to be complied with.

Taking FSR as an example –

The stated purpose of the FSR control outlined in the LEP appears to be different depending on where you find it:

RANDWICK LOCAL ENVIRONMENTAL PLAN 1998 (CONSOLIDATION) - REG 20F

To operate together with controls for building height and landscaped area to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area.

Randwick LOCAL ENVIRONMENTAL PLAN 1998 (gazetted 10 June 1998)

To establish reasonable upper limits for development in residential, business, industrial and special uses zones through a limit on the amount of floor space that can be provided. This will help reduce the potential for adverse impact on nearby and adjoining development while still providing for reasonable levels of development and redevelopment.

Both definitions have been used in recent SEPP 1 Objections.

RCC often concludes that a SEPP 1 Objection should be upheld when applicants make SEPP 1 Objections such as -

The Development is consistent with similar structures to the locality with regard to bulk and scale and will not result in any significant amenity impact on the adjoining properties in terms of overshadowing, loss of privacy, view loss;

This seems in direct contrast to the the Wehbe v Pittwater Council [2007] ruling. Whichever FSR purpose you look at, the purpose is quite clearly to limit the size of developments. It is not enough to justify that environmental amenity and aesthetic character are not negatively impacted, or that other similar structures exist, without also addressing why the size limits should not apply.

In The Case, a similar scenario was considered, and it was noted that the stated purpose in the LEP,

"should be viewed as descriptive of the result achieved by the clause itself."

This makes a lot of sense, and applying that reasoning here, it fits very well that if the limits are enforced, the description of the result achieved would be that it would limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area.

In The Case, the judge also explained that viewing the aim of the standard in a way that meant the standard would have no work to do, would lead to an absurdity.

However, justifications which are being approved by RCC, seem to focus on environmental amenity and aesthetic character of the area, and appear to be without adequate justifications for why the limits should not apply. In doing so, this leaves the numerical limits with no work to do! Absurdity indeed...

Logic dictates that if other structures in the area have the same or greater FSR, then the reasons for upholding SEPP 1 Objections for those developments should be considered, to see if they apply to the case in question, rather than accepting that as reason enough for another non-compliant development. If the similar sized buildings existed prior to the 1998 LEP, they are irrelevant.

Council sometimes continues in its justification. For example, in Development Application Report No. D49/11 (relating to DA/507/2010), The Case is correctly quoted -

The aims and objects of SEPP 1 set out in clause 3 are to provide “flexibility in the application of planning controls operating by the virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in 5(a)(i) and (ii) of the Act”.

However, they then go on to justify that the SEPP 1 Objection is justified because it “would not detract from the objects of the Act…

Once again this appears completely at odds with the ruling in The Case.

Whether a non-compliant development would or would not detract from the objects of the Act is irrelevant. Rather, it must be shown that a compliant development would in some way actually hinder the attainment of those objects.

“the applicant has not established that compliance would hinder the attainment of the objects in 5(a)(i) and (ii) of the Act. Indeed, to the contrary, I find that granting consent would tend to hinder the attainment of the planning policy embodied in the development standard and hence the proper, coordinated and orderly development of land in the locality to which the development standard applies”

How about the other Objectives of the Environmental Planning and Assessment Act (EPAA) that Council has not considered (in what appears to be a cut-and-paste from the relevant part of The Case rather than from the Act itself)?

Here is the full list –

The objects of this Act are:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

(iii) the protection, provision and co-ordination of communication and utility services,

(iv) the provision of land for public purposes,

(v) the provision and co-ordination of community services and facilities, and

(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii) ecologically sustainable development, and

(viii) the provision and maintenance of affordable housing, and

(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

One of the key points here is that "ecologically sustainable development" has the same meaning it has in section 6 (2) of the Protection of the Environment Administration Act 1991 and that "environment" includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.

It may indeed actually be quite difficult to make a sound legal SEPP 1 Objection where those opposing the non-conforming development feel their environment is impacted.

Could this be the real intent of the legislation (to protect our personal environments from unreasonable development)?

 

WHERE IS THIS HEADING?

Council are currently looking at drafting a new Local Environmental Plan (LEP). Residents are scared that the new LEP may allow for more relaxed limits. It seems likely that Council will use the vast number of approved Development Applications with SEPP 1 Objections as justifications for raising the height and floor space ratio limits.

Council has exhibited a number of papers recently including the misnamed “Randwick Education and Health Specialised Centre Discussion Paper”. This paper recommends far greater heights to residential buildings and mixed commercial/residential use right along High St and part of Barker St, residential towers on the green space at the Randwick Racecourse, priority to pedestrians and bicycles with loss of car parking, and no additional public transport to the Kingsford South or POW Hospital areas. It also points to the Inglis Site, a Heritage Conservation Zone in the current LEP, where a rezoning to allow large residential towers was recommended. The study paper actually has very little to do with education or health.

With the area already one of the most densely populated in Australia, and already supporting traffic for the University of NSW, multiple Hospitals, and multiple schools, this was met by community outrage with over 120 submissions received by council and a petition with over 2000 signatures in a short amount of time.

The Mayor prepared a minute that aims to reduce the heights from 24m to 15m with allowances for affordable housing, however residents still feel 15m is unreasonably high (and could easily be 24m with the inclusion of affordable housing anyway) as developments will tower over surrounding homes and schools and add further traffic and street parking congestion as well as impact ambulance response times.

The developers for the Inglis Site, Elton, are currently seeking approval for 800-900 new dwellings and 25m high buildings, with a rezoning from 2A (low density residential) to 2D (high density mixed use). This site is across the road from the POW hospital and not far from another site (the Nissan Site) where 117 new dwellings have been approved, along Barker St where the road is already regularly choked with traffic and street parking is often at 100% utilization.

On May 24 of this year, Council voted to ban long serving democratically elected Precinct volunteer, Mr Andrew Roydhouse from holding any executive position with the Kingsford South Precinct, and to force the precinct to find new leadership.

Council has advised that Elton will likely complete their technical studies by the end of this month (May), which are required for rezoning the Inglis Site. Meanwhile, the most effected and vocal precinct has now been forced into a state of renewal by Randwick City Council.

Liberal Party Councillors have stated that they can’t vote on the Inglis Site due to a conflict of interest (the exact details of which is at this stage unclear). They may also be unable to vote on the Randwick Education and Health Specialised Centre Discussion Paper. This effectively means that five of the fifteen elected representatives will not represent residents in regards to these vital decisions.

The recently voted-out Labor State Government set targets for infill in Sydney to deal with increasing population. RCC appears to have taken this as a challenge, approving over 4,300 dwellings (the exact number is unknown even to Council) of the 8,400 target for 2031. That has been achieved in just 6 years! Reaching over 50% of the target in less than 25% of the time is astounding.

It appears we could hit 20,000+ new dwellings in the RCC area by 2031 and more than double the area’s infill allocation under the Metropolitan Strategy (which may no longer be valid in any case now that the government has changed). Given that the Inglis proposal (800-900 new dwellings) and the Randwick Education and Health Specialised Centre Discussion Paper (aiming at thousands of new dwellings), are all centred on approximately a 1km radius, this is not difficult to envisage.

So, where is this heading? Randwick City Council could push ahead with overdevelopment and ignore the residents they are supposed to represent, or the Councillors could begin to listen to the community and put a stop to this.

 

CONCLUSION

There are serious concerns that Randwick City Council recommendations seem in direct contrast to the ruling outlined in the Wehbe v Pittwater Council [2007] court case and could potentially be placing the council in a precarious position.

If this is the case, the council could be invalidating itself on two fronts at once. Firstly by making unreasonable approvals of DA's in contradiction to the case law for SEPP 1 Objections, and secondly by making so many of these approvals, that the standard could be considered abandoned.

The number of dwelling approvals by RCC is already well in excess of expected progress towards infill targets, with plans for thousands more dwellings being considered.

A city with a Council that has little limitation on development, and 3A about to be passed back to Council… This seems a very scary reality.

Resources

Wehbe v Pittwater Council [2007]

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

PROTECTION OF THE ENVIRONMENT ADMINISTRATION ACT 1991