Blue Water Pacific Pty Ltd v Randwick City Council

CASES CITED: PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355

DATES OF HEARING: 07/04/05, 08/04/05, 27/05/05 EX TEMPORE JUDGMENT DATE : 05/30/2005

APPLICANT Mr G Green, solicitor Solicitors Pike Pike & Fenwick

LEGAL REPRESENTATIVES: RESPONDENT Mr A Pickles, barrister Solicitors Bowen & Gerathy

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11515 of 2004 Blue Water Pacific Pty Ltd v Randwick Council

1 COMMISSIONER: This is an appeal against the refusal by Randwick City Council (the council) of a development application (874/2004) to demolish the existing houses on the site and construct a multi unit housing development with basement parking for 23 cars at 10 - 18 Bay Street, Coogee (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions. The site and its context 3 The site and its context are described in the Statement of Basic Facts. The proposal and its history 4 The application was lodged on 20 October 2004 and was notified to adjoining and nearby residents. Council received 22 objections and two petitions. The Design Review Panel (the panel) considered the application. It was amended in response to concerns of council and the panel and renotified. A number of objections were received. Council refused the application on 22 March 2005. The appeal was heard on 7 and 8 April 2005 at which time I visited the site and the surrounding area and heard evidence from a number of residents. The hearing was adjourned for amended plans which set back Unit 15 from Bay Street and incorporated other changes. The plans were again renotified and I heard further evidence on 27 May 2005. The amended plans became the subject of the appeal. 5 The proposal is to demolish the existing dwellings on the site and to construct a four-storey multi-unit housing development comprising 15 units and basement parking for 23 cars. A communal swimming pool and landscaped area are included in the proposal. Planning Framework 6 The site is zoned 2C (Residential C Zone) under Randwick Local Environmental Plan 1998 (LEP 1998). Multi Unit Housing is permissible within the zone. 7 Randwick City Council Development Control Plan - Multi Unit Housing (the DCP) and Randwick City Council Development Control Plan - Parking (parking DCP) are also relevant. 8 The application does not comply with the height standards in LEP 1998 and the applicant has submitted an application under State Environmental Planning Policy No 1 - Development Standards (SEPP1). The parties did not agree on whether the proposal complies with the floor space ratio (FSR) standard in LEP 1998. In the event that the standard is exceeded the applicant has submitted a SEPP 1 objection. 9 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) is also relevant. The issues 10 The Statement of Issues before the Court contained 8 issues. Some of these were resolved by the amended plans and conditions. The key remaining issues can be categorised as:

i) Whether the height and bulk of the proposal is compatible with the existing and future character of the area and the SEPP 1 objections to height and FSR are well founded.

ii) whether the proposal has an acceptable impact on residential amenity, particularly overshadowing and privacy impacts on adjoining properties at 6 Bay Street and 20 Bay Street.

iii) Whether the proposal has acceptable traffic and parking impacts. The Evidence 11 The following experts provided evidence: 12 For the council Ms R Aitken, town planner 13 For the applicant Mr S Harding, town planner Ms G Morrish, architect and urban designer Mr J Coady, traffic engineer and town planner 14 A number of residents provided evidence on site. Their principal concerns can be summarised as: · the street and the surrounding road system already experience unacceptable traffic impacts due to the narrowness of the street and the lack of on street parking. The street is a dead end with no turning circle and there has already been damage caused by trucks using the street. The proposal, particularly the location of the driveway will contribute to an already unsatisfactory traffic and parking situation. · The height and bulk of the proposal is out of character with the area. · The proposal will have an unacceptable impact on the amenity of adjoining residents, particularly, overshadowing, privacy and outlook. 15 The Court inspected the properties of Ms L Richards, 6/6 Bay Street, Ms E Chambers, 9/6 Bay Street and the Deeb Family, 20 Bay Street, which adjoin the site to its west and east. Height 16 The key issue in this case is whether the height of the proposal is acceptable and the SEPP 1 objection is well founded. 17 The purpose of the height control stated in cl 33 of LEP1998 is:

To set upper limits for the height of buildings in residential and business zones that are consistent with the redevelopment potential of land in those zones given other development restrictions, such as floor space and landscaping, and have regard for the amenity of surrounding areas. 18 The height control comprises two elements being a maximum overall height of 12 metres and a maximum wall height of 10 metres. Part of the western building roof and the lift overruns do not comply with the overall building height. The fourth level of the proposal is generally setback from the floors below, but the wall of this upper level in some locations exceeds the wall height control. The wall height of the lower storeys generally complies with or is below the wall height control. Mr Harding submitted a SEPP 1 Objection and the experts provided a joint statement on the areas of non-compliance (exhibit 4). The amended plans, by setting back Unit 15, reduced the wall height non-compliance. 19 The purpose of the two height controls is not distinguished in LEP 1998. Ms Atkins stated:

The intent of these standards is to achieve a built form which creates the clear delineation between the bulk of the building and the roof form above. The controls aim to encourage roof forms above development which meets the external wall height standard of 10 metres to minimise the overall bulk and scale of development, create visual interest and ensure that the height controls determine the appropriate number of storeys for development. 20 There are no controls in LEP 1998 on the number of floors or that restricts accommodation being provided above the wall height or that requires that structure above the wall height must be in a roof form (although a vertical wall would be included in the calculation of wall height whereas a wall on an angle would not). The DCP envisages variations to the wall height such as gable ends. 21 In PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 I considered the question of the difference in purpose of similar controls and stated:

As I understand the intent of the controls is to establish a dominant wall height …. above which a secondary structure is permitted. 22 The question is whether the exceedence in the overall height and wall height control meet the objectives of the control and are consistent with what is envisaged for the area under the planning controls. Essentially, would the proposal have a similar height, bulk and amenity impact to a development that complied with the controls. 23 I find that the answer to this question is yes. The experts agreed that there is no material impact on overshadowing, privacy or views as a result in the breaches of the overall or wall height controls. Ms Aitken stated that there were privacy impacts as a result of the terrace off Unit 15. The terrace itself complies with the height controls but is accessed from a unit that does not. Ms Aitken therefore concluded that the terrace would be unlikely to form part of the proposal if not accessed off unit 15 and therefore the privacy impacts would not result. 24 I do not accept Ms Aitken's view. The controls do not preclude rooms above the wall height control and therefore a terrace could form part of the proposal. The terrace of Unit 15 is above the level of 20 Bay Street and the proposed planter box along the eastern edge of the terrace would prevent overlooking into the back garden, balcony or the rooms of No 20 that face the terrace. The amended plans have reduced the size of the terrace considerably. 25 The living areas of Unit 15 are set back from the eastern boundary about 8.8m. This separation, together with the planter box and privacy screen will prevent overlooking of 20 Bay Street. Bedroom 1 is set back less but does not have windows along the boundary and there is no privacy impact. The privacy impacts from the terrace and Unit 15 are therefore acceptable 26 The experts disagreed on the impacts on amenity that would result from the bulk of the development. Ms Aitken considered the breaches to result in a number of storeys that was uncharacteristic of the existing or desired future character of the area. She stated that existing flat buildings were a result of previous planning regimes and did not reflect the desired future character sought in the current planning controls. In her opinion, these controls permitted a range of multi unit housing which must satisfy the objectives of the zone, particularly objective (c):

To enable residential development in a variety of medium density housing forms where such development does not compromise the amenity of surrounding residential areas and is compatible with the dominant character of existing development in the area. 27 In Ms Aitkens opinion "existing development in the area" meant the street and its character was predominantly one and two storey houses. Whereas Ms Morrish and Mr Harding considered that the area comprised the wider locality and its dominant character included three to four storey buildings of different styles and periods interspersed with houses. 28 Ms Morrish's stated

that it was always envisaged that the variety for the 2C zoning would have a mix of apartments of different scale and character as well as smaller semis and detached dwellings and that this juxtaposition of form and housing type was exactly the character desired for the area 29 In my opinion, the zone envisages a range of medium density housing that is compatible with the dominant character of existing development in the area. Existing development in the area is not limited to the street but to the wider area. The relationship of the proposal to adjoining development and its streetscape is obviously a key consideration and the likelihood that this development will remain in it current form is also relevant. 30 The site has residential flat buildings to its west and rear, four single dwelling houses to the east on sites, which could be amalgamated, and recent town house development opposite. The remainder of the street is single dwelling houses with another residential flat building further to the east. The wider area is a mixture of these forms and there is no consistent character. The dominant character of existing development in the area is therefore a mixture of development ranging from single storey houses to four storey residential flat buildings. Development of the site needs to be compatible with this mixture of forms, heights and styles, while recognising that the area is in a state of transition and the future character may change. 31 The zoning and the controls envisage a range of medium density development. This will vary in size and form depending upon whether it is residential flat building or town houses. The question is whether a residential flat development is compatible with the existing dominant character and if so whether the proposal is consistent with the scale of development envisaged under the controls for residential flat buildings. 32 While there are a number of single dwelling houses in the street and surrounding area, these are not multi unit development that is sought by the planning controls and it is reasonable to assume that the future character of the area would see the replacement of a number of these dwellings and a different character emerging. It is difficult for development of residential flat buildings to respond to the scale of existing houses and I assume that the compatibility sought by the planning controls recognises that residential flat buildings, town houses and single dwellings may co exist and that this difference in scale is one envisaged by these controls. As the zoning of the street and the area permits residential flat buildings it is reasonable to assume that this type of development will occur in Bay Street. The question then become one of whether the proposal is the type of residential flat building that is anticipated. 33 The proposal is broken into two buildings, the proportions generally reflect the form of other residential flat buildings in the area. While these are approved under earlier planning controls a degree of compatibility is required with these buildings as they are dominant elements in the area. The street slopes up towards the east which means that the houses to the east are elevated above the site which reduces the difference in scale to some extent although it will still be apparent. 34 I find that the breaches in the overall height controls and the wall height control do not result in a building of a bulk, scale or mass that is dissimilar to one that complies with the controls. I reach this conclusion on the basis that a building with a complying wall height and a roof form with accommodation in the roof would be of similar bulk to that proposed. The upper level is set back from the wall height and is of different material, which gives it the appearance of a secondary structure. The wall height generates the dominant bulk of the development and where it is exceeded, it is either small expanses which would have a similar impact to gables or is setback sufficiently from the street or adjoining buildings for the increase in wall height to have no additional impact than a lower wall height with less setback. 35 The area of the site most sensitive to bulk is the south west corner of the eastern building as this is in a prominent location in the street. It terminates the view up the street as it is on the curve of the street where the property boundary projects into the street. The corner is a minimum of two metres from the boundary with little landscaping and is therefore highly visible. The exceedence in the street wall at this point would result in an impact beyond that envisaged by the planning controls but the application has been amended to address this issue by reducing the wall height and setting back Unit 15 from the street. 36 I am satisfied that the exceedence in the wall height and overall height meets the objectives of the control as the proposal is of a height and bulk that would be similar to that of a building with a complying wall height with accommodation in a roof form and gables. I find that the SEPP 1 objection is well founded. Floor space ratio 37 The experts did not agree on whether the proposal complies with the floor space ratio. The difference was based on whether the access stairs should be included as gross floor area as they were enclosed with louvres. If included the FSR would be 0.99:1 and if excluded the FSR would be 0.89:1 (these figures are based on the original plans before the Court but the amended plans did not increase the FSR of the proposal). The maximum permissible FSR under cl 32(1) of LEP 1998 is 0.9:1. 38 The definition of gross floor area in LEP 1998 is, inter alia, the area within the inner face of the external enclosing walls. I accept the council's submission that the access stairs are included as gross floor area. Walls enclose these stairs, albeit the walls are a light weight material which is open able. The stairs are internal space, which can be protected from the weather and is therefore enclosed. 39 The purpose of the FSR control stated in cl 32 of LEP 1998 is: 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 to reduce the potential for adverse impact on nearby and adjoining development while still providing for reasonable levels of development and redevelopment. 40 Mr Harding prepared a SEPP 1 objection. He concluded that the proposal met the underlying objectives of the standard as it was of a bulk and scale that is consistent with the desired future character of the area and does not result in adverse amenity impacts. For the reasons which I have given, I accept that the proposal meets the objectives of the FSR standard and that the SEPP 1 objection is well founded.

Residential amenity 41 The experts agreed that the development complied with the numerical requirements of the DCP for solar access for both 20 Bay Street and 6 Bay Street. The experts agreed that there would be an increase in overshadowing to the upstairs bedroom/study of 20 Bay Street from about 2.45pm in midwinter. The shadow results from the terrace roof of unit 15. The experts disagreed as to whether the impacts on the bedroom/study are acceptable. I accept M Harding's opinion that 20 Bay Street will receive acceptable solar access; its living areas and outdoor open space will receive the amount of solar access required by the DCP and the increase in overshadowing of the bedroom/study is reasonable due to the use of the room and the limited increase in shadow. There would be some additional overshadowing of 6 Bay Street, but the experts agreed that the requirements of the DCP were met. The setback and angle of the proposal had minimised the overshadowing impact to 6 Bay Street. 42 The outlook from the apartments of 6 Bay Street would change but it is reasonable to expect that development of greater density would occur within a 2C zone and the setback and angle of the development has maintained more outlook than a development parallel to the boundary. The privacy currently enjoyed by 6 Bay Street will change but the windows to bedrooms and terraces are setback a sufficient distance to maintain a level of privacy to be anticipated within a 2C zone. Screening to the balcony has been included to further reduce this impact. 43 The proposal will impact on the privacy currently enjoyed by 20 Bay Street but the impacts are reasonable considering the zoning of the site. The setback of the proposal from 20 Bay Street and screening of the terraces will further reduce these impacts. 44 I find that the development has an acceptable impact on residential amenity.

Parking and Traffic 45 Council did not press parking and traffic as an issue. The report to council found that the additional traffic could be accommodated in the existing road network and that the number of spaces provided on site were satisfactory. Mr Coady's evidence was that the location of the driveway was appropriate and that the additional traffic generated by the development would not have an adverse impact on the street system. The further submissions of Mr Potok and Ms Richards did not alter his conclusions. 46 In relation to the driveway, Mr Coady's evidence was that it was located on that part of the site frontage with the least difference in level between the footpath and the site thereby minimising the extent and steepness of the driveway. Its location, at the western end of the site, also minimised the distance in the street to be travelled by cars using the development. As cars enter and exit the basement in a forward direction there would be minimal conflict with cars using the driveway of 6 Bay Street and no need for cars to travel up to the dead end to turn around. The location of the driveway on the bend in the street also provided clear sight lines and was better for pedestrian safety than a driveway located further to the east on the straight part of the street. 47 Ms Richards was concerned that the view up Bay Street would terminate at the driveway and the basement entry. Ms Morrish's opinion was that the view up the street would be over the driveway to the buildings not down into the basement and would have an acceptable streetscape impact. The deletion of the path along the western boundary provides an opportunity for deep soil landscaping to soften the development when viewed from 6 Bay Street and from the street. 48 The residents also expressed concern about trucks accessing the site during construction. Mr Coady's evidence was that a condition requiring a construction management plan should form part of any consent. He stated that traffic during construction could be appropriately managed by measures such as extending the restrictions on parking currently in place for the garbage trucks. A condition to this effect has been included. 49 I recognise that there are existing traffic issues in the area that are exacerbated in Bay Street because it is a narrow, dead end street. However, the expert evidence before me, from both the council and the applicant, is that the traffic generated by this proposal will have an acceptable impact on the surrounding road system and will not generate a demand for on street parking. The driveway is appropriately located to address both traffic and urban design concerns. This issue can therefore not be a reason for refusal. 50 The residents concerns about existing traffic issues need to be addressed through traffic management and the suitability of the street for further medium density housing is appropriately addressed through the strategic planning process.

Conditions 51 The parties did not agree on the imposition of condition 7 (previously Condition 9). This requires the doors to the bedrooms of Unit 5 to be changed to windows. To improve amenity, security, privacy and from the street. The doors face a courtyard with landscaping. No evidence was provided that the doors and the bedrooms would be visible from the street. The amenity of the rooms refers to ventilation when the doors are required to be closed. This can be achieved through condition 6, which requires an open able window. Condition 7 is therefore unnecessary and I have deleted it from the consent.

Orders 52 For the above reasons the Orders of the Court are:

2. The development application (874/2004) to demolish the existing houses on the site and construct a multi unit housing development comprising 15 units and basement parking for 23 cars and associated landscaping including a swimming pool at 10 - 18 Bay Street, Coogee, is approved subject to the conditions in Annexure A.

3. The exhibits, except exhibits 1, 2, 16 and R, may be returned.

      Annelise Tuor
      Commissioner of the Court

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