104 Boyce v Randwick City Council - [2007] NSWLEC 83 - NSWLEC 2007 case summary — Zoe

NSWNSWLEC

104 Boyce v Randwick City Council

[2007] NSWLEC 83

Land and Environment Court (NSW)|2007-02-23|Before: Miss P

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2007-02-23

Before

Miss P

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

Introduction The appeal 1 This appeal relates to Development Application No. 302/2006 which involves the demolition of 3 existing dwelling houses and the construction of a six-storey mixed commercial and multi-unit housing building comprising two retail units, five commercial units and 26 dwellings above two levels of basement car park with parking for 36 vehicles. Strata subdivision is also proposed. The site 2 The site at Nos.102 -106 Boyce Road, Maroubra Junction comprises three allotments being Lot 1 DP 1067926 and Lots 1 and 2 DP 594896. It has a street frontage of 30.33 m and an area of 947.8 sq m. It is situated a short distance away from the Maroubra Junction commercial/shopping centre on Anzac Parade. The locality 3 The surrounding locality is characterised by a mix of building types and various architectural styles, including multi-storey mixed commercial and multi-unit housing buildings, six-storey multi-unit housing buildings interspersed with one and two-storey dwellings. Adjoining the site to the east (No 108 - 110 Boyce Road) is a part eight-storey mixed commercial and residential building above basement car park and to the north is a six storey multi-unit housing building (No 87 - 89 Mason St). Adjoining to the west is a single storey building currently occupied by the Salvation Army. Opposite the site on the south side of Boyce Road is a recently completed mixed commercial and multi-unit housing development of partly five and partly eight storeys. Planning controls 4 The following planning controls are applicable to the site: o Randwick Local Environmental Plan 1998 ("the LEP") o Randwick City Council Maroubra Junction - Town Centre Development Control Plan ("the Town Centre DCP") o Randwick City Council Development Control Plan-Parking ("the Parking DCP") o State Environmental Planning Policy - 65. Design Quality of Residential Flat Development ("SEPP 65"). The LEP 5 The site is zoned 3A General Business under the LEP wherein business premises and multi-unit housing are, subject to the granting of development consent, permissible forms of development.

[2]

6 Clause 42D(2) also requires development to be consistent with the applicable zone objectives and with the objectives for the Maroubra Junction Town Centre. The objectives of the 3A zone are: - to maintain the viability of existing business centres, and - to facilitate development of land, in places identified by the Council as suitable to be used as business centres, for commercial, retail, residential and community purposes: - by introducing appropriate floor space ratio controls, and - by encouraging economically viable retail cores which are centrally located and in close proximity to public transport, and - by enhancing employment opportunities and servicing the needs of the local and regional community, and - by encouraging and facilitating the use of public transport, and - by providing and enhancing pedestrian and public open space areas for shoppers and workers, and - by maintaining and improving the environmental and aesthetic qualities of the City of Randwick, - to minimise the impact of development on adjoining and nearby residential zones, and - to enable a mix of housing types to encourage housing affordability. 7 Also particularly relevant are the following town centre objectives in cl 42D(2): - to achieve high-quality design in all new developments and improvements undertaken in the public domain, - to encourage a vibrant and active town centre that provides a range of facilities and services that benefit the locality and local government area, - to provide opportunities for residential development in the town centre that complement the primary business function of the town centre, - to encourage a variety of housing forms that compliment development within the town centre and do not adversely impact upon the amenity of surrounding residential areas. 8 Clauses 31, 32 and 33 of the LEP contain development standards for floor space ratio, landscaped areas and building heights. However by virtue of cl 42D these standards do not apply. Relevantly cl 42D provides that:

[16]

27 The officer's report particularly examines the issues associated with the LEP, SEPP 65, the Town Centre DCP and the Parking DCP requirements, and the resident objections. It recommends that council agree in principle to enter into consent orders subject to a number of conditions. Those conditions deal with relatively minor changes to the proposal in relation to: planter boxes, balconies and privacy screens; the installation of ceiling fans; and an amended landscape plan. Council's decision 28 Despite the supporting officer's report, on 5 December 2006 the council refused the application for reasons involving: non-compliance with the number of storeys development standard; non-compliance with the objectives of the 3A zone in relation to aesthetic appearance, bulk, scale and form; non-compliance with objectives, performance criteria and other controls in the Town Centre DCP; the proposal is not a good design having regard to SEPP 65; and the inadequate provision of car parking spaces. The issues The statement of issues 29 The Court was provided with a nine page amended statement of issues identifying 10 separate issues. During the hearing a number of issues or parts of issues were deleted. The remaining issues are essentially as follows: o The proposed development is unacceptable in that the proposed height is in excess of the requirement in cl 42D of the LEP, particularly in relation to the five-storey maximum. o The proposed development is unacceptable in that it fails to respond to the design quality principles in SEPP 65 including matters of height and bulk, density and the internal layout of the dwellings. o The proposed development is unacceptable in that it is inconsistent with the objectives, performance criteria, development and design controls in the DCP, particularly in relation to gross floor area building depth building separation setbacks, apartment sizes and neighbour privacy. o The proposed development is unacceptable in terms of the an adverse impact on amenity for future residents of the development and existing residents in the surrounding area particularly in relation to view loss and privacy. o The proposed development is not consistent with the objectives of the 3A zone particularly in relation to aesthetic appearance, bulk scale and form. o The proposed development is unacceptable in terms of vehicular access to the basement car park, the design of the car park and the number of vehicle spaces provided. The relevant issues 30 Having considered all of the evidence, including an inspection of the site and its environs particularly including a consideration of the proposed development when viewed from a number of dwellings in the existing adjoining residential flat building I agree with Mr Harrison that the main issue is: o Whether the separation between the building at 108 - 110 Boyce Road and the proposed building is satisfactory, particularly in terms of the amenity of the existing dwellings and taking into account the relevant planning controls.

[26]

41 Mr Harrison then concludes as follows: The amended statement of issues is wide ranging and many have been satisfactorily addressed in the amended design. The main issue is the separation of the proposed building from 108- 110 Boyce Road. This is the issue most on the mind of the objectors and is addressed comprehensively in my response to issue 3(c) [building separation distances]. Height is also a primary issue but the setback of the top floor and the fact that the height is numerically less than a metre above the maximum height control for the most part means that I don't consider height determinative. The amended development application is suitable for approval subject to the following special conditions and checks being made. Development conditions o Ceiling fans to living rooms and bedrooms. o Replace Summer Red Gum trees with broad - leafed paperbarks. o Soil is to be of an open nature and contain no silt or clay and must be tested by an arborist with aims to being a gap/graded soil. o Soil areas over basement slabs are to be provided with agricultural pipes were equivalent to improve airflow to the soil medium and to promote free drainage. o Residents to have easy access to the common open space from the lift through the commercial area corridor. o Privacy screens to the southeast corner balconies to be fixed. o Demonstrate compliance with compatible AS1428-2001 for the commercial components of the development. o Demonstrate access from visitor car parking to retail and interaction with residential secure area. o An independent dilapidation report to be done of 108 - 110 Boyce Road prior to construction commencement and at construction completion. Any damages by the construction of the proposal to be made good prior to occupation. 42 The following is to be checked: o That council is satisfied with the waste management strategy. Supplementary report 43 In his supplementary report Mr Harrison deals with the following questions: o Is an objection under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") required for building height in relation to cl 42D of the LEP? o What should be an appropriate building separation and side setback between the proposal and the neighbouring apartment building to the east at 108 - 110 Boyce Road?

[48]

73 However those dwellings on the south-west corner of 108 - 110 Boyce Road, except perhaps the dwelling on the seventh floor, which are positioned directly opposite the proposed building will be significantly affected. These impacts involve the loss of views and outlook, some loss of privacy and various degrees of overshadowing. As for light, air and sunlight access I agree with Mr Harrison that the amenity of these dwellings will be substantially maintained and that there would be little difference if the side setback were to be increased to more than 3m. Daylight 74 In relation to daylight access Mr Harrison notes that the dwellings in 108 - 110 Boyce Road will all have their daylight affected by the proposed building. However, the middle apartments facing west will continue to have significant access to daylight given that they are generally oriented to the open space between the proposed building and the building at 95 - 97 Mason Street. Whilst the dwellings on the southwest corner will have their access to daylight affected to a greater degree, because they are positioned on the corner of the building they have a dual aspect. He also notes that a number of apartments will be variously affected in terms of direct access to sunlight. He concludes that while there will be some reduction in daylight to six dwellings there would be little difference if the proposal was setback 3 m or 6 m from the side boundary and as a consequence daylight should not be determinative. For the reasons he has given I agree with Mr Harrison. View loss 75 In relation to view loss associated with the dwellings on the south-west corner of 108 - 110 Boyce Road, Mr Harrison notes that the building separation control in s 3.1.6 of the Town Centre DCP makes no reference to views. Conversely, s 3.1.9 contains objectives to minimise the impact of development on views and outlook for neighbouring properties and the minimum setback of 3 m in s 3.2.4 is complied with. However s 4.3.2, which deals with visual privacy, makes reference to the maximisation of outlook and views without compromising the visual privacy of neighbouring buildings. Other than these matters, I was not referred to any provision of the Town Centre DCP that requires view protection or sharing.