Cerny v Randwick City Council

The proposal

1. The secondary dwelling would comprise two bedrooms, a combined living area/kitchen and a combined laundry/bathroom. Plans indicate the new structure would be 6.9m wide and 9.1m deep on its eastern side and 8.0m deep on its western side. Its floor area would be 59.38m2. The front façade would be set back a minimum of 3.5m to Chatham Street (the existing garage has a setback of 1.78m). Side walls would be offset 900mm from boundaries.
2. The roof form would comprise three (staggered) gables (four, if the existing garage roof is included). Roofing would be "Kliplock" roof cladding and the external walls would be of a composite cladding ("Scyon" brand) with colouring described as "Linea".
3. Access to the secondary dwelling from Chatham Street would be via a new opening in the brick wall at the garage/carport's northern façade (as per agreed without prejudice conditions).

Objections from neighbours

1. At the site view, three objectors spoke. Ms K Dobra lives at 246 Carrington Road, on the corner and adjacent to the east. Ms Dobra said the proposed development would be a "visual block". Occupants would look into the personal space of Ms Dobra's home, including straight into the dining area. Concerns were raised about loss of parking and what use the dwelling would be put to, with short term rental ("Airbnb") a concern. I have also read a written submission from Ms Dobra which also raised concerns in regard to general privacy and overlooking, as well as loss of light and sun. While I invited Ms Dobra to allow the Court view the potential impacts from this property, this was not possible at the time. There were some difficulties in appreciating these potential impacts when viewing from the street, due to existing side fencing and hedges.
2. Ms Choy, who lives at 28 Chatham Street immediately west of the subject site, also spoke. Ms Choy also arranged for a submission from a specialist planner and I have also reviewed this submission. Ms Choy's concerns were in regard to: size, inadequate side setback, privacy and overlooking, view loss, parking inconvenience, loss of morning sun, and lack of architectural merit of the project. I also invited Ms Choy to allow the Court to view the potential impacts from her property; this was not possible at the time. Ms Choy's property was more open to the street and potential impacts could be perceived reasonably well.
3. Ms Vicki Heinemann spoke on behalf of her son, owner of 248 Carrington Road. Ms Heinemann was able to take us into the rear yard of the property which also backs directly onto the proposed development site. The main living area of the property is adjacent to this small area of private open space. A concern was raised about privacy for this open space and in regard to the upstairs bedrooms (indicated as occupied by two children). Parking was also raised. I have also read the written submission from her son Mr Heinemann, the owner of 248 Carrington Road (Exhibit 2, Tab 6). What was perceived as the "obtrusiveness" of the development, compared to existing levels of enjoyment experienced, was highlighted. Loss of afternoon daylight and sunlight was also raised.

Statutory framework

1. State Environmental Planning Policy Affordable Rental Housing 2009 ('SEPP ARH') aims to facilitate the delivery of new affordable rental accommodation, in part by allowing self-contained secondary dwellings in conjunction with another (principal) dwelling. To qualify, the new rental accommodation needs to be modest, in that the total floor area can be no more than 60m2. The land accommodating the new residence cannot be subdivided off, further encouraging its future rental status. The aims of SEPP ARH are as follows: 1. to provide a consistent planning regime for the provision of affordable rental housing, 2. to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, 3. to facilitate the retention and mitigate the loss of existing affordable rental housing, 4. to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, 5. to facilitate an expanded role for not-for-profit-providers of affordable rental housing, 6. to support local business centres by providing affordable rental housing for workers close to places of work, 7. to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
2. The subject site is zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 ('the LEP') and is also affected by Randwick Comprehensive Development Control Plan ('the DCP').
3. The relevant zone objectives of the R3 zone are as follows (objectives are marked with bullets in the LEP and numbered below for cross reference purposes only): 1. To provide for the housing needs of the community within a medium density residential environment. 2. To provide a variety of housing types within a medium density residential environment. 3. To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. 4. To protect the amenity of residents. 5. To encourage housing affordability.

Issues

1. The Council's contentions are centred on what is argued as the proposal's inconsistency with nominated zone objectives and non-compliance with nominated DCP provisions. Having reviewed Council's contentions, I will summarise the suggested impacts, arising as a consequences of these suggested non-compliances, as twofold:

• Adverse impact on streetscape - captured by Council's contention that "the proposal would be an alien and intrusive element in the streetscape", and
• Adverse impact on the visual amenity experienced by neighbours.

1. In the hearing I asked whether Council was pressing the other amenity issues raised by the objectors. Ms McGrath noted that the Court had heard the submissions from the neighbours and they spoke for themselves, requiring the Court's attention as such. Mr Knox, for the applicant, noted that Council's contentions had not referenced that part of the DCP which is concerned with amenity considerations (Part 5 is entitled "Amenity" and considers such matters as overshadowing, privacy and view loss).
2. Mr Gill (planning expert for the applicant) provided evidence that the proposal satisfied Part 5 of Section C1 of the DCP in regard to overshadowing, visual and acoustic privacy and view sharing. This was not contested by Council. I accept this expert evidence. I note that cl 22(4)(b) of SEPP ARH does not allow refusal determinations for secondary dwellings on the grounds of insufficient parking.

Policy settings

1. For Council the pertinent zone objective is as follows: To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
2. The DCP then establishes certain controls concerned with streetscape. Council raised Section 3.3 of the DCP, entitled "Setbacks", which includes the following objectives relevant to streetscape: • To maintain or establish a consistent rhythm of street setbacks and front gardens that contributes to the character of the neighbourhood. • To ensure the form and massing of development complement and enhance the streetscape character.
3. The DCP's front setback controls then provide relevantly as follows: i) The front setback must be consistent with the average setbacks of the adjoining dwellings. Where there are no adjoining dwellings, the setback must be no less than 6m.

Evidence

1. Mr Harding (planning expert for Council) said that there were two potential approaches to respond to streetscape requirements given the site's relatively narrow width to Chatham Street, and mindful of the relevant controls: …the first being a subservient "in the roof" form of dwelling that requires minimal physical adaption of the existing double garage presenting to the Street, or (second), a completely different approach wherein the proposed dwelling and associated car parking are more characteristic of other dwellings in the Street.
2. Mr Harding's view was that if the second approach were to be taken this would require what I understood to be in effect a rebuild, including: … the appropriate level of setback, street activation, landscaping and overall desirable character prevalent in the remainder of the Street.
3. The current design was seen to sit "inappropriately" between Mr Harding's suggested two approaches, and as such the proposal has unacceptable streetscape impacts. Apart from unsatisfactory street activation and "an inability to provide the dwelling in a landscape setting", the proposal's "variety of steps in the façade and roof form" results in inappropriate character and visual impact. The DCP's second streetscape-related objective (see para [19]) provided a frame for his concerns.
4. Mr Gill pointed to the variety of building forms in Chatham Street including "residential flat buildings, semi-detached dwellings and stand-alone dwelling houses". He emphasised the variety in "scale, arrangement and aesthetic qualities" of these buildings. Mr Gill thought the proposal had been designed to recognise the desirable elements of the existing streetscape, including through the proposed roof form, front building setback and building scale. Here he referenced the prominence of double gable roof forms in Chatham Street, which he believed the proposal had "adopted in the design". He suggested the proposed secondary dwelling would "contribute to a streetscape that contains similarly scaled buildings (as well as buildings with a substantially larger scale such as the residential flat building opposite)".
5. Mr Gill noted that the proposal adopts a front setback of 3.50m which, according to evidence supplied, (Figure 1 and Appendix 3 in Exhibit 3) accords generally with the prevailing front setback pattern. The suggestion is that the dwelling at 28 Chatham which is setback considerably further "is an anomaly in the streetscape".

Consideration

1. Mr Harding's evidence saw the building façade and roof form resulting in "inappropriate character and inappropriate visual impacts" with little opportunity for landscape treatment. His concerns about the existing double garage are also noted. While I accept that on occasion garages can dominate and be unsympathetic in a streetscape. In this particular Chatham Street streetscape, the reasonably modest garage/carport existing on the subject site, near the corner, would not in my view be generally seen as a significant "defect" in the streetscape. It presents more as part of a particular mixed history of development activity characteristic to the street and evident in the varying forms of development both nearby and at the streets western end.
2. In regard to the issue of streetscape, Mr Gill's evidence is more persuasive. He evidences the proposal's alignment with the prevailing 3-3.5m setback along the southern side of Chatham Street to the east of the site. 28 Chatham Street, with its 7.8m setback is appropriately seen as an anomaly. In that sense the proposal can be reasonably seen as not offending the DCP objective of "(maintaining) a consistent rhythm of street setbacks". Mr Gill noted the marked variety in Chatham Street "(ranging) from single storey to four storey" and that the proposal is of modest scale, with a maximum building height of 6.25m when the local height control is 9.5m.
3. It is fair to say that the proposed secondary dwelling attempts to "recognise" and "complement" the existing streetscape, with its gable roof form and further setback (from the existing garage) which allows it to align with the prevailing building setback in the street. While this proposal would not in my view "enhance" the mixed streetscape character in Chatham Street, it is too much to suggest it "alien" and "intrusive". Because of the proposal's scale and relative modesty, the diversity of built form and setback and prevailing (modest) landscape presence in the street today, and mindful of the wider zone objectives (discussed further below); I would find the proposal satisfactory in regard to streetscape. But this does not prove determinative in this matter.
4. I mention that I have considered the authority provided by Council in Michael Hesse v Parramatta City Council [2003] NSWLEC 313 and Ms McGrath's associated submissions, along with those of Mr Knox on this. In this instance I do not find a position of agreement that the existing (garage) building is intrusive. In this case, the principles in Hesse v Parramatta City Council do not apply.

Neighbouring Visual Amenity Impact

1. Council's concern here is that the visual amenity of adjoining property may be affected due to the secondary dwelling's form and massing.

Policy settings

1. Mr Harding pointed to SEPP ARH's limited policy provisioning in regard to secondary dwellings, and the reasonableness of reliance on local planning controls when evaluating a proposal. It is notable that unlike for "in-fill affordable housing", or "boarding houses" (other forms of affordable rental housing under the SEPP) no bonuses are referenced in SEPP ARH in regard to secondary dwellings and non-discretionary development standards are limited to site area and parking (SEPP ARH cl 22(4)).
2. Council's reference to Section 7.4 of the DCP (concerned with "outbuildings") was most relevant. The DCP suggests "secondary dwellings" as a form of "outbuilding". The following controls were suggested by Council as pertinent: … iii) Except for laneway development, outbuildings must be single storey only, and must not exceed a maximum height of 3.6m and a wall height of 2.4m. iv) Outbuildings may be constructed to the side and rear boundaries where: - The external walls are finished and do not require frequent maintenance; - There are no windows or openings facing the adjoining allotments; and - Adequate solar access to the adjoining dwellings is maintained. v) Where there is an existing detached garage at the rear of the allotment, a first floor addition may be considered subject to the following measures: - Contain the upper floor level within the roof form as an attic storey; - Articulate the facades; - Provide an integrated landscape design with screen planting to visually soften the outbuilding; - Does not create excessive structural bulk as viewed from the adjoining properties; - Maintain adequate solar access to the adjoining dwellings; and - Maintain adequate privacy to the adjoining dwellings.
3. Section 8 of the DCP provides for "Developments in Laneways" which is referenced by Mr Gill. Relevantly, these controls provide for buildings fronting laneways to have a maximum height of not more than 6m and a maximum external wall height of 4.5m.

Evidence

1. Mr Harding says that subclause (v) of Section 7.4 of the DCP (see para [32] above) recognises the potential intrusive nature of this form of development and "(seeks) a development outcome that is largely contained within the roof form". He also references the subclauses intentions for "screen planting landscaping to visually soften" such buildings when viewed from adjoining properties.
2. Mr Gill claimed that the provisions at Section 7.4 of the DCP do not contemplate a scenario involving an L-shaped block with two frontages as is the case for the subject site. Mr Gill noted the relative modesty of the proposed building height, which he indicated ranged from 6.06m (front) to 6.25m (rear) with an external wall of 4.8m (front) to 5m (rear). He pointed to Part 8.1 of the DCP ("Development in Laneways"): Numerically, the building height and external wall height are only marginally non-compliant with the building height and external wall height controls contained in (Part 8.1 of the DCP) which are 6m and 4.5m, respectively. These parameters apply to laneway development where it is important that the scale of development is appropriate for the typically narrow width of the laneway. By contrast, the subject presents to a typical residential street and presents an ideal opportunity to deliver a structure of a slightly larger scale.

Consideration

1. While I agree with Mr Gill that the DCP provisions do not contemplate the double-fronted scenario evident in this matter, they still have something significant to say here. I have adopted the following principles as a means of interpreting the DCP controls in this setting:

• Notwithstanding SEPP ARH and its own provisions, it is reasonable to rely on the DCP's "definitional step" to allocate its development controls for "outbuildings" to "secondary dwellings". As indicated above, the SEPP's positivist provisioning in regard to secondary dwellings (other than non-discretionary standards on site area, parking and particular complying development provisioning not of relevance here) is merely to make the development permissible in the zone. I agree with Mr Harding that it is then reasonable for Council to develop further pertinent planning provisions.
• The DCP has a clear intention of cushioning the potential impact of the visual bulk of outbuildings (and thus secondary dwellings) on neighbouring development by limiting their height and providing for landscape screening. In my interpretation the object (of this cushioning) is the reasonable enjoyment of living areas, backyards or rear private open space of directly adjoining development. I distinguish this from frontage areas of neighbouring properties in which "outbuildings" are unlikely to be located within.
• The less restrictive controls, in regard to building height, contained in the DCP's laneway controls, are not appropriately applied to the question of visual bulk as perceived in backyards or rear private open space in directly neighbouring development. The additional height (in the laneway controls) is taking into account the laneway itself as a kind of buffering to adjacent development.

1. Considering these principles of interpretation, the DCP's outbuilding's controls are less applicable to visual bulk as perceived at 28 Chatham Street, at the street frontage. My interpretation is that the visual impact at 28 Chatham Street is similar to what might be expected from other street frontage development in the locality and is reasonable.
2. I also note that the impact at 246 Carrington Road is not well understood due to the Court's inability to access this site. I do note the existing garage within 246 Carrington Road would effect its own buffer against the proposal. I do not find the impact at 246 Carrington Road as determinative.
3. However, it is clear from the site view that at 248 Carrington Road, the private open space enjoyed by residents and well integrated with the living area within the dwelling, would be significantly impacted by the overbearing visual presence of the proposed secondary dwelling.
4. This conclusion should not be the end of the evaluation, as the proposed secondary dwelling would also bring benefits. In his submissions, Mr Knox emphasised the zone objectives: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment.
5. His submission is that this proposal would better achieve these objectives than would "a room in a roof" (Mr Harding's suggestion) - that is, a development which complied with the DCP "outbuildings" controls. Mr Knox also submitted the proposal better met the SEPP ARH objectives. He also referred to the Section 4.15(3A) of the EPA Act and its provisions regarding the flexible application of DCP standards.
6. I do understand the provision of affordable housing as a keen area of public interest, and it seems appropriate that there be a place for less formalised housing, something akin to that proposed here, from this public interest viewpoint. However evaluation of a DA needs to be centred on the relevant statutory and planning provisions. Relevant to this application, when I examine the SEPP (pertinently cl 3(b)), the intended means of "facilitating" the aim of "effective delivery of new affordable housing" is centred on expanded zone permissibility. There is nothing particular there to offset the DCP controls.
7. Then when I examine s 4.15(3A) of the EPA Act, the particulars include at subsection (b): (If development control plan) provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - (the consent authority) is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development
8. My interpretation is that under s 4.15(3A)(b) of the EPA Act, if one were to "be flexible" in the application of a DCP provision, essentially there remains the requirement to meet the object which the DCP provision is concerned with (ie via an alternative solution). While I note the evidence that the proposal satisfies reasonable amenity requirements in regard to acoustic and visual privacy (via highlight windows), overshadowing and view loss; in this matter, there was no satisfactory alternative raised to mitigate against the abrupt and direct visual bulk experienced in the rear yard and associated living spaces at 248 Carrington Road. The suggestion to drop the massing at the rear of the proposed secondary dwelling by some 350mm, which arose in evidence at the hearing, was not near sufficient and brought other concerns.

Findings

1. On balance, the particular intention of the DCP in regard to amenity protection which is supported by its own zone objective (see para [15] above), needs to have weight over the more general zone objectives relating to meeting diverse housing needs.
2. The proposal would have an unreasonable adverse impact on the amenity enjoyed at 248 Carrington Road as a consequence of its visual bulk and lack of landscape softening to this neighbour.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Randwick City Council Development Application No. DA 712/2017 for a secondary dwelling at 250 Carrington Road Randwick is refused. 3. The exhibits are returned with the exception of Exhibit 1, A and B.

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P Walsh Commissioner of the Court 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: 08 August 2018