Background
Hamid Samavi appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against Randwick City Council’s deemed refusal of a development application concerning 3-4 Llanfoyst Street, Randwick. The site already had consent for a residential flat building and was under construction. The new application proposed internal alterations and three additional residential storeys, producing a seven-storey building with basement parking and landscaping.
The site is in an R3 Medium Density Residential zone and within a low and mid-rise housing inner area near Randwick Town Centre and the light rail station. The proposal included an infill affordable-housing component and relied on the height and floor-space incentives available under the State Environmental Planning Policy (Housing) 2021. Council and numerous neighbours raised concerns about building separation, privacy, overshadowing, solar access, view loss, landscaping, parking, design quality and the area’s future character.
The Court heard planning, urban-design and traffic evidence, received submissions from neighbouring residents and inspected eight nearby properties. The experts agreed that a two-space parking shortfall could be addressed through a car-share arrangement secured by consent conditions.
The Court’s Holding
The Court upheld the appeal and approved the amended development application. Acting Commissioner Bilmon found that the proposal was an appropriately designed residential flat building, contained a complying affordable-housing component, had been refined in response to the disputed issues and was contemplated by the applicable planning controls.
The Court was satisfied that the proposal had merit despite its effects on neighbouring properties, including acknowledged view loss. It found, among other things, that the relevant Apartment Design Guide separation provisions were directed principally to privacy and were not mandatory development standards or view-preservation setbacks. The Court also accepted the proposal’s treatment of solar access, landscaping and neighbouring amenity and concluded that the remaining objections did not justify refusal.
Approval was made subject to the agreed conditions in Annexure A, supplemented by conditions requiring privacy screens and louvres to face away from neighbouring habitable areas and balconies, and requiring updated stormwater plans reflecting rooftop changes.
Key Takeaways
- The Housing SEPP’s low and mid-rise and affordable-housing provisions supported greater height and floor space than the underlying local controls.
- Apartment Design Guide separation criteria are not mandatory development standards and should be applied according to their stated amenity objectives, particularly privacy.
- Serious neighbour concerns, including view loss and overshadowing, do not necessarily require refusal when the development is contemplated by the planning regime and its impacts are acceptable on a merits assessment.
Why It Matters
The decision illustrates how the Land and Environment Court may assess apartment projects that use New South Wales’s relatively new low and mid-rise housing and infill affordable-housing incentives in established neighbourhoods. Existing built character and residents’ amenity remain important, but must be considered alongside the future character and additional density contemplated by current state planning controls.
It also shows the importance of distinguishing mandatory standards from design guidance. Noncompliance with a numerical guide or local development-control provision is not automatically decisive where the proposal satisfactorily achieves the relevant planning and amenity objectives.