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

 

About Us

This website was originally operated and maintained by local resident James Kruss.

Kruss has a Bachelor in Engineering (hons 1st class) and a Graduate Diploma of Education

This is his story:

"I first became aware of the Randwick Education and Health Specialised Centre Discussion Paper on March 8 2011 when a concerned resident had placed something in my letter box.

I was shocked that a study proposing such grand scale development had not been mailed directly to me by council with large writing saying "This will effect you!". I attended a public meeting held at the Rainbow St School where the Inglis developers presented plans, and like me, many residents in attendance had only just been made aware of the study, due to the actions of another concerned community member.<Founders of SaveRandwick>

I realized immediately that it is up to our community to hold council and government accountable and that we need to do our part where these services fail to deliver. I saw many very angry residents that day (I believe over 100 attended), with just a handful really trying to do something about it. As such, I set up this website and have worked tirelessly since to understand the issues, and provide frank and honest information, providing references wherever possible, and to help co-ordinate the efforts of local residents who care enough to represent the silent majority.

This is the only website that I am aware of that covers everything from understanding the current stage of the process, where to find detailed information, where officials and MP's stand on the issues, and much more including publishing local precinct minutes (and it's been live for less than 2 weeks as I write this)!

If you have a problem with over-development in the Eastern suburbs of Sydney, I would like to hear from you. I cannot guarantee I will be able to investigate everything as this is unpaid work and my time is limited, but if I can help shed light on things, I will!

If you wish to donate to the cause, or to help keep the website operational, please contact me."

Council Actions, Mistakes & Misinformation

This section of the website is not intended to unfairly represent Council, but is intended to keep Council accountable and help ensure open, honest and frank dealings between residents and the Council occur.

Are the spin doctor's here?

In mid-March a concerned resident emailed the Council about proposed rezoning

The response from Council:

...We have been getting some feedback from the community with concerns that a large area is recommended for re-zoning, and this seems to be from a misunderstanding that the whole study area of the Paper (a 1km circle centred on UNSW and the Hospitals Campus) is proposed to be changed.

This is not correct. The Paper recommends planning changes only to properties around High Street, to accommodate long term growth in education, health, research, and related key worker/student accommodation. There is a secondary focus on part of Barker Street, and the Paper recommends the existing cluster of shops/petrol station/etc at the corner of Barker Street and Botany Street can be re-zoned to a local business zone, which reflects the current uses better than the existing residential zone. The Paper does not suggest re-zoning of any other areas.

The resident was not taken in by this Council response and he replied:

...Given that you are saying the concerns are not correct, can you please confirm that council has no plans, from this discussion paper or otherwise, to allow development of multi-storey buildings on the Inglis site on Barker St?...

Council's Response:

...The proposal for the Inglis site is separate from the Discussion Paper I mentioned below. It has been initiated by the Inglis family, who are intending to move their operation to Warwick Farm, and sell their current site at Randwick for redevelopment. This is not a proposal generated by the Council.

(The Discussion Paper looked at some principles for this site, based on its proximity to the university and hospital, but the Inglis Planning Proposal supersedes this Paper)

The Inglis family (like any land owner is able to) has lodged a Planning Proposal with the Council seeking re-zoning of their site from Residential 2A (low density) to Residential 2D (mixed density). The residential 2D zone allows for a range of dwelling types from single houses to multi-unit housing, and must be accompanied by a master-plan for the site, which would include things like building locations, uses, heights, open space and circulation.

The responses by Council are very confusing to us as the Council Discussion Paper does seem to propose development and rezoning of the Inglis site and many other areas. Further Council responses don't appear to match the Study paper or the November Walking Tour sketches. Is this a case of clever wording by the Council? A mistake? ...or something entirely different?

 

On the Council website relating to the Randwick Education and Health Specialised Centre Discussion Paper deadlines for comment -

Comment from Kingsford South Precinct:
"The addresses to send your comments to are correct. Most of the dates and deadlines are incorrect. This has been brought to the attention of the General Manager and Mayor several times (including in our newsletter) but they have not corrected the errors. WHY NOT? Don’t they want residents to send in their comments? Why does the GM/Mayor not correct the Deadline for comments etc to a date in late March as implied up the top?

The Mayor has time to attack the Precinct saying we have “obsolete information” or for disagreeing with his grand plan for concrete canyons. What’s that saying about glasshouses…"

Some months later it does appear Council has now corrected the errors.

 

Does Council represent or listen to the residents?

Development of 117 units at the Nissan site was approved above voices of local petitioners and objectors by the JRPP group.

 

 

 

 

Save Randwick City from Overdevelopment

WE NEED YOU!! - JOIN THE FIGHT AND BE HEARD - CONTACT US

Latest Save Randwick City from Overdevelopment News

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.

Read more here...


 

Randwick City Council has approved many large scale developments recently and is moving to further increase population density and allow multi-storey tower blocks to be built in many locations. While the area already experiences a higher population density than most areas Australia-wide, council appears to be pushing a pro-development agenda without regard for our choked motorways, limited public transport and at-capacity street parking and lifestyle.

 

The recent 'Randwick Education and Health Specialised Centre Discussion Paper', which proposes rezoning areas for higher density to allow 24m high residential buildings while giving priority to pedestrians and bicycles, along with the approval of 117 units on the 'Nissan Site' in the same area, and a separate application for 800-900 dwellings at the Inglis stables have forced locals into action.

Above - The latest from Crazy Randwick Guy as he does everything he can to encourage development and sell off the area.

We can no longer sit back and watch our suburbs and lifestyles destroyed in the name of profit and greed. The following are the current elements of our campaign:

Awareness: Locals have produced fantastic SaveRandwick banners (left) to help spread awareness. The banners, this website, our Facebook page, posters, media attention, and working with local Precincts and local businesses will help spread awareness to these issues.

Petition: We have an active petition and have already collected many signatures at events such as The Spot Festival and the State Election. See photos on our Petition page.

Influence: We will continue to lobby councilors and politicians to gain support and to encourage those in power to make a stand against overdevelopment.

Accountability: We will publish council actions and decisions on our website to provide a level of accountability and transparency. Any actions (whether deliberate or not) that could mislead the public will be noted on our website.

 

The 12,500 Signature Petition - IGNORRED!

Update August 2017- After dozens of local residents spent hundreds of hours collecting signatures at Coogee Beach, local shopping centres, City-to-Surf (bus queues can be a good thing!), and numerous other events - SaveRandwick ended up with two petitions - each totaling over 12,500 signatures.

All we asked for is that local infrastructure be upgraded to cope with the current population living in Greater Randwick - BEFORE increasing the density any further.

We presented one to the Randwick Councillors - subsequently what did they do?  Start the process for 18 storey HIGH RISE.

We presented one to the Premier who attempted to avoid meeting us despite his office guaranteeing us 15 minutes with him.  He subsequently grabbed your petition and hurled it away on the ground.  In the end the NSW Premier broke all but one of his "Premier's Peoples Petition Promises".  He was ably assisted by Coogee MP Bruce Notley-Smith in this betrayal of residents.

The Premier refused to table it in State Parliament (broken promise) instead getting Bruce Notley-Smith to put it through months after we had given it to the Premier (another broken promise) without notifying us (another broken promise) nor the Media (another broken promise) and tabled it at the very end of the day on the last sitting day of the year.

Subsequently there were some 'intriguing' issues with donations etc etc.

... and Randwick was given TWO URBAN ACTIVATION PRECINCTS proposal covering around 1,100 hectares for up to 20 Storey High Rise.

They were later renamed "Priority Precincts" and the Anzac Parade Priority Precinct was 'MISTAKENLY' put up on the Dept of Planning's web site recently.

Was the mistake that the State Govt only intended it to become public AFTER THE COUNCIL ELECTIONS?  We think so - you don't spend hundreds of thousands drawing up detailed maps & plans 'by mistake' do you?

Download Petition to Randwick City Council |  Download Petition to Legislative Assembly

Filled petition pages can be emailed or sent to saverandwick.com. Please contact us for details.

State Election Day

Thanks to a joint effort between Kingsford South Precinct and SaveRandwick.com we were able to collect signatures at Rainbow St School and Randwick Girls School on March 26 (State Election Day). A local resident arranged for large banners to be printed (below) which enabled us to step up our awareness campaign. Locals worked in shifts and did a fantastic job. It is becoming increasingly evident that if not for the efforts of of a hand full of locals the majority of residents would simply not know about the Council proposals. This doubles our resolve and we hope to grow in strength and number as people stand up to fight against over-development of Randwick and Kingsford!

Above - Peter Garrett, Member for Kingsford Smith and Randwick resident, talks with some of the SaveRandwick team while Paul Pearce takes time out to support our campaign and sign the petition.

Below Left- A local resident collects signatures in front of the banner at Rainbow St Public School. Below Right - Local residents brave the weather to collect signatures at Randwick Girls School. Ironically the whole area could be cast in shadow if the Inglis development goes ahead as planned, those are the Inglis stables in the background!

 

The Spot Festival

Last Sunday (March 13 2011) The Spot Festival took place and 4 local residents spent less than 3 hours attracting around 500 signatures to their petition...

A Council initiative championed by Randwick Mayor and Green's Candidate for Maroubra, Murray Matson, is to rezone multiple sites within a 1 km radius circle (covering 314 hectares in area) centered on Botany St between UNSW and Prince of Wales from predominantly Residential 2A to Residential 2D (High density mixed use - read tower blocks).  The Spot, Royal Randwick Racecourse, Paine Reserve, Struggletown are just a few of the areas impacted by this proposal which if developed to the letter of the law (or appealed to the Land & Environment Court) could see the area transformed into concrete canyons.

Indeed, Council staff and the Mayor appeared to believe this to be the dream result for Randwick residents when they released a "vision" of the various areas under this plan at their Walking Tour in late November (Walking Tour Nightmares).

Remember these are the same people who proposed building eight storey apartments on Heffron Park just a few years ago.  It seems strange that the Green's candidate would be championing converting close to 10 hectares of Royal Randwick Racecourse to tower blocks of units but the pictures are worth a thousand words.  It appears the race is on to get rid of green space in Randwick with Prince Henry, the nearby UNSW site, the Endeavour Hostel, Randwick Nissan, the Bundock St site (66 hectares) to name just a few.

Is Randwick City Council the most pro-development Council in Sydney? Actions do speak louder than words after all...

With parking already stretched due to hospitals, a university and schools, and traffic congestion already a serious and unrelenting issue, this rezoning cannot be allowed to simply go unchecked. The implications on traffic will effect all neighbouring suburbs.

Join us in our fight to stop this rezoning and save Randwick and Kingsford!

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