Atchison v Randwick City Council

Land and Environment Court (NSW)|2019-11-11|Before: Dr J

Judgment

COMMISSIONER: Mr Grant Atchison (First Applicant) and Ms Donna Wild (Second Applicant) (the Applicants) are the owners of No. 119 Boundary Street, Randwick (the site) and they are appealing the refusal by the Randwick City Council of Development Application No. 677/2017, under s 8.7 of the Environmental Planning and Assessment Act 1979 ('the EPA Act'), for the demolition of an existing detached dwelling, and construction of a new part-two/part-three storey dwelling broken into northern and southern components separated by a sunken central courtyard and linked by a bridge at the first floor level.
The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 ('LEC Act') on 11 November 2019 which commenced with an onsite view under s 34 (1) of the LEC Act between the parties, and at which I presided.
As is its usual practice, the proceedings commenced onsite with the parties and the experts. Public submissions were heard from residents at the No. 121A and No. 121B Boundary Street, who also invited the Court and the parties to view their site. The Court viewed the site and the rear lane known as Park Lane, and a number of properties on Boundary Street, Park Street and Campbell Street.
The conciliation conference continued after the onsite view. However as the parties failed to reach agreement on the issues in contention, I terminated the conciliation conference pursuant to s 34(4) of the LEC Act, and proceeded forthwith to hearing. The parties did not consent to material discussed during the conciliation conference to be relied on in proceedings.
At the commencement of the hearing, the Applicant sought leave, (unopposed), to rely on amended plans that reflected discussions held during the conciliation conference and were marked as Exhibit F.
As a result of the amended plans, the remaining contentions may be summarised to include that the proposed development:

is inconsistent with the desired future character and streetscape due to its bulk and scale, and because of the position of the swimming pool, which is elevated above Boundary Street;

Desired future character and streetscape

The Respondent submits that the proposal overly preferences the private benefit of the owners of the site at the expense of neighbouring properties and the broader street. In the words of Mr McDonald, the desire of the Applicant to access a swimming pool at the front of the site from a first floor living area does not justify setting aside provisions of the Randwick Development Control Plan 2013 (RDCP).
Part C1 Section 4 of the RDCP contains objectives and controls related to Building Design. The chapeau places importance on façade composition as follows: "Façade treatment and detailing affect the visual presentation of buildings and play a pivotal role in enhancing the character and continuity of streetscapes. Façade composition has an impact on the perceivable bulk and scale of a building and should be carefully exercised to achieve an appropriate streetscape outcome."
Mr McDonald accepts that the streetscape is varied, comprising a mix of houses and residential flat buildings. However the proposed development would be uncharacteristic of the existing streetscape due to a large cantilevered roof, the form of the first floor balcony and spiral staircase, the proposed screens and the elevated swimming pool at the first floor level. The concrete structure containing the first floor swimming pool is 'alien' in the streetscape and the result would be a building unlike anything in the street.
In the alternative, the Applicant submits that the proposed development fully complies with the development standards in the RLEP, and is agreed by the experts to impose no unreasonable adverse impacts on adjoining properties in relation to visual or acoustic privacy, overshadowing, the rear lane of the property, and no adverse impacts on the FSPA at cl 6.7 of the RLEP and Part B10 of the RDCP.
Furthermore in the absence of a desired future character statement for the area, the Applicant has sought to comply with the controls that encourage a future character and has given regard to recent approvals in the area granted under the same controls, and it is on this basis that the Applicant asserts the bulk and scale of the proposed development is compatible with the streetscape character.
Mr Smith considers the various elements of the front façade sit together in a balanced way and in a manner that is well composed, and the proposal is consistent with the objective of Part 4.1 of the RDCP which encourages "…contemporary and innovative designs to establish a preferred neighbourhood character in new and transitional residential areas".
In relation to the FSPA, the Applicant considers it a preferable outcome for the garage to be located on the rear lane to allow the front yard to be comprehensively landscaped, including climbing plants to screens in the front façade which are complemented by choices in building articulation, materials and finishes as required by Part B10 of the RDCP.
According to Mr Harding, the proposal provides for a well landscaped setback that is not fenced or walled, in contrast to properties such as No. 121A Boundary Street which has privacy screening to the street.
The Respondent maintains that the elevated location of the swimming pool results in a form that is not sensitive or sympathetic to the natural landform, and so is not consistent with the objectives of Part B10 of the RDCP.

Setbacks and the swimming pool

A primary focus of the dispute is the location of a swimming pool at the front of the property, and in an elevated position on the Level 1 outdoor living area overlooking Boundary Street.
The Respondent submits that the objectives and controls of the RDCP do not support swimming pools, defined at Part 7 as 'Ancillary Development', being located forward of the front building façade, or where the coping level of the pool protrudes more than 1m above the ground level.
According to the chapeau of Part C1 Section 7 of the RDCP: "Ancillary development should be of smaller scale and be visually compatible with the design of the dwelling in terms of form, colours and finishes. These should be considered as part of the preliminary design of development works and positioned to minimise visual impact on the public domain."
The objectives of Section 7 provide, relevantly: "… To provide for ancillary development that enhances the liveability of dwellings and maintains reasonable levels of visual amenity, solar access and privacy for the neighbouring dwellings. To ensure ancillary development do not present as prominent features and detract from the streetscape character."
Mr Harding considers the pool to be fully integrated into the front façade, which he describes as being defined by a cumulative assembly of elements that form the presentation to the street. By virtue of this skilled integration, the pool is not forward of the front façade, but is integral to it.
Furthermore, due its elevated position, it will not be possible for any person passing the site in the public domain to realise that a pool is located behind the concrete wall, and it will not appear any different than if it were another outdoor amenity such as a deck or terrace.
The Respondent relies on the amended plans at Exhibit F which show the forward-most element in the front setback is the pool itself and rejects the Applicant's claim, as I do, that the water in the pool can be considered to be behind the façade as it is behind the concrete pool enclosure that contains it.
Mr McDonald refers to the dictionary of the RLEP to define the building line, behind which he considers the pool should be set: building line or setback means the horizontal distance between the property boundary or other stated boundary (measured at 90 degrees from the boundary) and - (a) a building wall, or (b) the outside face of any balcony, deck or the like, or (c) the supporting posts of a carport or verandah roof, whichever distance is the shortest.
The Respondent considers it likely that the pool will be read from the public domain whenever it is in use. For example, splashing and bobbing heads of those in the pool are likely to be visible over the 'wet edge' to Boundary Street.
Mr McDonald accepts that the actual pool may not be seen, but the structure that supports it will be prominent and heavy in what is otherwise a light and attractive design.
According to the Respondent, the pool would be better located at ground level which is easy to accommodate given the site is flat, and would minimise its acoustic impact on the bedroom of No. 121A Boundary Street, or in the central courtyard where it would be adjacent to the private open space of No. 121A and No. 121B Boundary Street.
However the Applicant submits that as the pool is not visible from the public domain, its visual impact has been minimised, and the acoustic panels to the eastern setback also minimise its acoustic impact on the neighbour at No. 121A Boundary Street. Furthermore, given the integration of the pool in to the façade of the building, there is no direct application of Part C1 Section 7.5(iv) which requires the coping level of the pool to relate to the topography of the site, and be no more than 1m above existing ground level.
The Respondent submits that this control does apply and should be read in conjunction with the last objective in Section 7 of the RDCP to avoid prominent features that would detract from the streetscape character. This is especially relevant in the FSPA which provides, relevantly at Part B10, Control (viii) that: "Any exposed coping structure of swimming and spa pools must be minimised and screened from view from the public domain."
The RDCP regulates development in laneways in Part C1 Section 8 with the following objectives: "• To ensure any building fronting a rear lane has a scale and mass secondary to the main dwelling on the site, and is appropriate for the width of the lane. • To promote casual surveillance and improve safety and security of laneways."
The Applicant submits that the southern component of the proposed development does not answer the description of an ancillary building, and so while the proposal is consistent with the objectives of the provisions, the controls under Section 8.1 of the RDCP, which limit the maximum height to 6m, and the maximum external wall height to 4.5m, do not apply.
Furthermore, as the rear setback has been abandoned by all adjoining properties, the Applicant relies on a 3 dimensional analysis at DA-025 of Exhibit F to assist in the assessment of the merits. The analysis is said to show a scale and mass that is consistent with the objectives of Section 8.1, and to consider the causal surveillance of the rear lane.
Mr McDonald considers the garage fronting the rear lane to be an ancillary use, but accepts that the area above, comprising a master bedroom, study and outdoor dining, is not.
The parties are agreed that the side setbacks, described by Dr Smith as 'rabbit ears' and shown splayed to the side boundary, do not comply with the provisions of Part C1 Section 3.3.2 of the RDCP. I observed at the onsite view that the existing side setback to the eastern boundary is in the order of the distance proposed on the amended plans.
Mr Smith considers the setback encroachment to allow greater privacy to adjoining properties as the function of the splayed setback is to provide a sightline to the front and rear of the property.

Adversely impacts the amenity of neighbouring properties due to its excessive bulk and scale

The Applicant relies on drawings at DA-024, DA-025 and DA-027 to describe the bulk and scale of the proposed development, which the Respondent considers to be excessive, and as a consequence, submits that the amenity of neighbouring properties is adversely impacted.
As letters of support are contained in Exhibit 2, Tab 7 from neighbours at Unit 1 and Unit 2, 117 Boundary Street, the impacts are said to be imposed on the residents of No. 121A and No. 121B Boundary Street.
To assess the impact on neighbouring properties, Ms LeBreton for the Respondent relies on the planning principle set out by Senior Commissioner Moore, as he was then, in Davies v Penrith City Council (2013) NSWLEC 1141 at [121] to submit the following, in summary: 1. The bulk and scale of the proposed development impacts on the solar access currently enjoyed by neighbours at No 121A and No 121B Boundary Street, and this is avoided by relocating the pool which in turn, permits the setting forward of the northern component of the proposal. 2. The proposal causing the impact, being the pool, is unreasonable as it both set forward of the building line, and is elevated above the topography by more than 1m. The pool could be relocated to the central courtyard. 3. The impact arises out of poor design as the pool is, in Mr McDonald's view, a poorly integrated element into the design 4. As the pool is set forward of the building line, and fails to have regard to the objectives and controls of the RDCP, the proposal does not comply with the relevant planning controls.
In the joint report, the experts are substantially agreed, at Exhibit D [61]-[63] that amended plans have resolved privacy concerns to neighbouring properties, and the shadow diagrams demonstrate that there is negligible overshadowing. Furthermore, at [66] of the joint report, the experts are agreed that acoustic impacts are resolved, subject to conditions of consent.
At [78], Mr McDonald states his concern that the public interest is not served by the grant of consent given the undesirable precedent that it would set, and considering it would undermine the intent of Part C1, Section 7.5 of the RDCP.

Consent would create an undesirable precedent

The Applicant sought to tender a map of properties, prepared by the architect, purporting to show a number of sites where the Respondent had approved swimming pools forward of the front building facade, and elevated above natural ground line.
The Respondent objected to the tender, as a number of the properties were not in the relevant local government area, others were more than a kilometre away on steeply sloping sites or were residential flat buildings, and nothing was known of the date or circumstances of approval.
I allowed the tender and marked it Exhibit M, but give it little weight for the reasons advanced by the Respondent.
The Respondent considers the elevated outdoor living and the location of the swimming pool would create an undesirable precedent and the proposal remains inconsistent with the aims of the RLEP as set out in cl 1.2 which provide, relevantly: … (2) The particular aims of this Plan are as follows - (a) to foster a liveable city that is accessible, safe and healthy with quality public spaces and attractive neighbourhoods and centres, … (d) to achieve a high standard of design in the private and public domain that enhances the quality of life of the community, …
Dr Smith for the Applicant, submits that there is nothing objectionable about the proposed development, and that it meets the tests set out in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80 at [24]-[29] in relation to its physical impacts and appearance which he asserts is compatible with the buildings in the street. Furthermore, as the proposal complies with building height, setback and other development controls, it cannot be regarded as itself objectionable and there is no evidence that further applications of a similar nature will come forward, as set out in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101at [28].

Findings

In considering the application of the RDCP to the matters in contention, the Respondent relies on Botany Bay City Council v Premier Customs Pty Ltd (2009) 172 LGERA 338, at [33] to the effect that I must not set aside the standard set by the RDCP so as to apply my own standard of what is reasonable but, consistent with Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254at [87], my fundamental objective should be a decision that is consistent with a development control plan that was adopted after consultation with the community.
Furthermore, I should give weight to the RDCP unless special circumstances apply that would justify a departure from the objectives and controls. The Respondent submits that in this matter there is nothing about the site that would justify a deviation from the provisions of the RDCP.
Part C1 Section 4 of the RDCP has an objective to encourage contemporary and innovative designs to establish a preferred neighbourhood character in transitional residential areas. For the reasons set out at [8], it is agreed that the site is within a transitional residential area.
Where a Development Control Plan seeks not just contemporary, but innovative design, it is not inconceivable that applicants will bring forward proposals that are unlike anything in the street, and may even comprise elements that are 'alien'.
I agree with Commissioner Bly who stated in Totem Queens Park Pty Ltd v Waverley Council (2004) 140 LGERA 406 at [42] that it is unreasonable to reject a building design simply because it is different. But for Mr McDonald's concern in relation to the concrete pool enclosure, the experts are agreed that the architectural design in this proposed development presents as a light and attractive form.
In assessing the impact of the proposal on the area, the Court is assisted by a detailed analysis of the existing form of the street. In particular, drawing DA-024 (Exhibit F) provides a 3-dimensional bulk and scale analysis of fourteen properties along Boundary Street, with 12 buildings said have a greater built volume than the proposed development, and 2 with a smaller built volume.
Drawing DA-027 (Exhibit F) provides a comparative analysis of fourteen properties showing the area of the front facades within 11m of the boundary to Boundary Street and which shows the proposed development has the least area when the first floor setback is excluded from the calculation.
To the extent that the proposal is unlike anything in the street, the point of difference is, in my view and considering the evidence of the experts, that the level 1 outdoor living area fronting the street is a covered external space, and is not enclosed to create internal floor area as is often the case.
The front building façade employs many of the elements seen in the street, including screens that filter views or provide visual relief, sections of solid wall, landscaping and first floor balconies that make the most of the view to the coast and the ocean beyond.
I accept the Applicant's position that other dwellings recently approved in the area locate garages in the front façade which are similar in scale to the concrete pool enclosure which is said to offend the character and amenity of the streetscape. Furthermore, where garages are located in the front façade, a driveway is also required for access.
This proposal imposes neither a garage door, nor a driveway on the streetscape, or for that matter, in the FSPA. Instead, the proposal is for a densely planted landscape design in the front setback, and generous screening that is intended to support climbing plants.
I accept that the concrete pool enclosure is solid, but as it represents a minor proportion of the façade treatment that is otherwise screened, landscaped, planted or glazed, I do not consider it prominent or likely to detract from the streetscape character.
Together with the roof over and the spiral stairs, I accept that the pool is the forward-most element in the front setback, and so it is deserving of careful consideration in relation to Part C1 Section 7.5(i) which advises that pools should be located behind the alignment of the front building facade.
However I do not agree with Mr McDonald that the 'building line' as defined in the RLEP is the most appropriate measure when considering the location of the pool. The RDCP encourages pools to be behind the front building façade, and I accept Mr Harding's evidence that, in this case, the pool is sufficiently integrated into a stepped and varied front building façade to consider it as being at, or behind elements that take precedence in the sightline when viewed from the public domain, such as the spiral stair.
In arriving at this conclusion, I consider it relevant that the concrete enclosure to the pool provides none of the usual visual cues traditionally associated with a swimming pool that would suggest its use, or distinguish it as anything other than part of the façade composition. The concrete element aligns with the roof over, and the screening to the eastern boundary, and is set back further than the spiral stairs. I also consider Mr Harding's more complete reading of the front building façade to be appropriate in this case given the obvious departure from a more conventional front façade which might adopt a more singular alignment.
Furthermore, in considering the steps taken by the Applicant to maintain reasonable levels of amenity to neighbouring dwellings, I note the pool is set back from the eastern boundary 500mm further than required by Part C1 Section 7.5(v), and provides acoustic panels to minimise its impact on neighbours. Finally I consider the likely use of the pool, being largely a daytime activity, to be unlikely to conflict with the use of the bedroom at No. 121A Boundary Street which is largely a night time activity.
For the reasons stated above, I am satisfied that the pool, being an ancillary structure, is integrated with the design of the main dwelling in a coherent architectural expression, and I am further satisfied that the pool coping, being the 'wet edge' is minimised and screened from view from the public domain. For these reasons, I am satisfied pursuant to cl 6.7 of the RLEP that the development is designed to minimise its visual impact and contributes to the scenic quality of the coastal foreshore.
In relation to the southern component of the proposed development, fronting the rear lane, I consider its scale and mass to be a thoughtful response that locates circulation space adjacent to the neighbour at No 121B Boundary Street with a setback of around 3m from the louvred openings to the neighbour's outdoor terrace above the garage. The circulation space is further screened with limited openings that would impact on the visual privacy of residents in either No. 121A or No. 121B Boundary Street.
I also accept that the master bedroom and outdoor dining terrace will provide opportunities for casual surveillance of the rear lane, and so I find it is consistent with the objectives for development in laneways.
As to whether the proposal will create an undesirable precedence, I consider this unlikely, for the following reasons: 1. Given the number of residential flat buildings, and recent single dwelling developments in the street, I consider it unlikely that applications of a similar nature will come forward. 2. Where integrated in to a building rooftop or terrace, a pool is likely to reduce the useable floor space below it given its structural depth and weight that often precludes habitable space below. For this reason I consider the usable floor area likely to be lost by applicants seeking to adopt such integration to be a disincentive to widespread adoption.
Additionally the Respondent submits that it would be preferable for the pool to be located at ground level. However, in my view, this would depart further from the controls that discourage pools behind the front building facade. As proposed, the pool is not visible, and is integrated into a façade comprising screens, decks, stairs and other elements. Even accounting for screening and landscaping around a ground level pool, and further amendments to the design of the proposal that may further mask the pool, it would be inconsistent with the objectives of the ancillary development and be, in my view, more prominent and more likely to detract from the streetscape character.
The proposal complies with all numerical controls in the RLEP and for the reasons set out above, is consistent with the aims of the RLEP set out at cl 1.2, and the zone objectives. Where it varies from the controls in the RDCP, I am satisfied that it is consistent with the objectives of the RDCP. I consider the experts to be substantially agreed that the impacts on the amenity of neighbouring properties have been minimised or mitigated, and so I consider there to be sufficient grounds for me to apply the provisions of the RDCP in a flexible manner as permitted by s 4.15(3A) of the EPA Act and to grant consent.

Orders

The orders of the Court are: 1. The Applicant is granted leave to rely on amended plans as set out in Condition 1 of 'Annexure' A. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. 677/2017, for the demolition of existing detached dwelling, and construction of a new part-two/part-three storey dwelling broken into northern and southern components separated by a sunken central courtyard and linked by a bridge at the first floor level, subject to conditions at Annexure 'A'. 4. All exhibits are returned, except Exhibit A, B, F and G. ………………………… T Horton Commissioner of the Court Annexure A (424 KB) Plans (8.45 MB)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2019

(2009) 172 LGERA 338

(2002) 121 LGERA 101

(2004) 136 LGERA 254

(2004) 140 LGERA 406

At a glance

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Judgment (8 paragraphs)

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Cases Cited (5)

Cited By (1)