CMH Design Pty Ltd t/a CM Hairis Architects v Randwick City Council

Land and Environment Court (NSW)|2021-02-01|Before: Danks Street P

Judgment

COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA/210/2020) by Randwick Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The original development application sought consent for alterations and additions to a residential dwelling including a new loft and roof terrace. In the development for which consent is sought at the hearing the loft bedroom has been deleted by the Applicant and the size of the terrace reduced. The residential dwelling itself was approved under DA 178/2018 but is, as yet, unbuilt. The works are proposed at 7 Undine Street, Maroubra (Lot 20 DP 8693).
The appeal was subject to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached at the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act. The proceedings dealt with as a hearing.
At the commencement of the hearing the Applicant sought leave of the Court to rely on the amended plans that were annexed to the town planners joint report. Leave to amend the development application was unopposed by the Respondent and granted to the Applicant. The amendments included the removal of the loft structure, a reduction in the area of the roof terrace, inclusion of planter boxes surrounding the perimeter of the terrace, privacy screening and designation of non-trafficable roof areas. (Exhibit A)
The Council maintains that the development application should be refused for the following reasons: 1. The proposed development does not satisfy the objectives of the R2 Low Density Residential zone in the Randwick Local Environmental Plan 2012 (LEP 2012); 2. That the proposed development exceeds the floor space ratio (FSR) control in LEP 2012 and the request to vary the FSR standard is not well founded; 3. That the proposed roof terrace is not visually integrated with the built form of the proposed development and it will result in adverse visual, acoustic and amenity impacts upon the neighbouring properties. 4. (Exhibit 1)

Outcome of the Appeal

Having appreciated the site and the context of Undine Street at the view, listened and considered the submissions of the neighbours, the expert evidence, submissions of the parties and undertaken an assessment of the development application I am satisfied it warrants approval. My reasoning is contained in full later in the judgment.
I accept the evidence of Mr Betros, town planning expert for the Applicant, that, as amended, the proposed development will not result in unreasonable impacts on adjoining neighbours, the streetscape or the environment. Further, I am persuaded that in considering the merit of the roof top terrace it is not relevant to consider whether the additional development is necessary. An Applicant can seek consent for any form of permissible development: s 4.12 of the EPA Act. The role of the consent authority is to determine the merit of the development for which consent is sought. I am not persuaded in this appeal that the need for the terrace (its necessity), or the extent of provision of private open space for the proposed residence, is a matter relevant to that assessment.
As a result of the above the appeal is upheld and the development application is approved.

The site and locality

The development is proposed at 7 Undine Street Maroubra, located on the eastern side of Undine Street between Banks Street to the south and Marine Parade to the north. The site slopes both up from the street towards the rear boundary, and across the site from the southern boundary down to the north.
The subject site has an existing consent for a new residential dwelling, approved under DA 178/2018. The works under this consent have not commenced and the site contains an existing two storey residential dwelling.
The locality is characterised by a variety of detached and semi-detached dwellings of varied architectural character. Due to the significant fall of Undine Street from Banks Street towards Marine Parade, many of the dwellings have garaging on the lower side of their allotments and have a partial third storey element.

Public Submissions

The original development application was publicly notified to adjoining neighbours in June 2020. Thirteen submissions were received by Council. I have read and considered these submissions. They raise the following concerns with the development:

That it is incompatible with the streetscape and character of the locality.
That the height, bulk and scale of the proposed addition is unreasonable.
The non-compliance with the FSR and wall height controls.
The visual impact of the development on the foreshore scenic area.
The impact of the development on adjoining properties views of the ocean.
Potential for users of the terrace to overlook adjoining properties, impacting their privacy.
That the terrace will generate unreasonable noise and impact on the acoustic privacy of adjoining properties.
Potential for overshadowing impacts.
The development represents a poor precedent for future development in the locality.
The Applicant's variation request under cl 4.6 of LEP 2012 is not well founded.

A number of residents addressed the Court during the conduct of the proceedings. They raised a number of concerns, which can be summarised as follows: 1. That the proposed development will radically change the nature of Undine Street and the locality. That the development is comparable to a four-storey dwelling, of which none currently exist in the Undine Street precinct. It will be out of character, overbearing and a poor precedent for future development. 2. That the breach of the standard for FSR and height is unreasonable and unnecessary. The resident argues that the existing floors and balconies provide the same aspect, therefore the roof terrace is unnecessary, and the roof terrace is unreasonable as it comes at the detriment of the neighbours. 3. The wall height of the proposed development is 12m in circumstances that the control is 9m. The affect is an overbearing development akin to a residential flat building. 4. The roof terrace will result in a loss of amenity for the adjoining properties. It will generate potential for overlooking to neighbours, reducing their privacy; a reduction in solar access; noise impacts and potential loss of views. 5. The addition of the roof top terrace is unnecessary, the proposed new dwelling has more than adequate private open space. 6. The size of the terrace will lend itself to entertaining, generating significant noise for neighbours. 7. That the application seeks additional amenity for the subject property, at the expense of neighbours.
Relevantly, the concerns of the residents were responsive to the form of the terrace prior to the amendments made by the Applicant prior to the hearing.

Planning Controls

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the site. Clause 7(1) of SEPP 55 requires the Consent Authority to consider whether the site is contaminated. The Respondent notes that its records indicate that the subject land has been used for residential purposes for a significant period of time with no prior land uses. I accept the conclusion of the statement of environmental effects that the site poses a negligible risk of contamination and that the land is suitable for the proposed use. (Exhibit D)
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the development. The development application is accompanied by an updated BASIX certificate demonstrating compliance. The certificate, along with the conditions of consent, meet the requirements of the instrument.
The subject site is zone R2 Low Density Residential under LEP 2012. The objectives of the zone are: • to provide for the housing needs of the community within a low-density residential environment. • to enable other land uses that provide facilities or services to meet the day to day needs of residents. • to recognise the desirable element of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • to protect the amenity of residents. • to encourage housing affordability. • to enable small scale business uses in existing commercial buildings.
In determining the development application, I have taken into consideration the objectives of the R2 Low Density Residential zone. I accept Mr Pickles submission that the construction of LEP 2012 is that the consent authority must have regard to the zone objectives in determining a development application, but that there is no test requiring the application to satisfy the zone objectives: cl 2.3(2) LEP 2012.
The purpose of the proposed use is 'dwelling houses' which is a permitted use in the R2 Low Density Residential zone.
Pursuant to cl 4.3 of LEP 2012 the site is subject to a maximum height standard of 9.5m. The proposed development is compliant with this standard.
As the subject site is more than 450m², but less than 600m² the applicable FSR is 0.65:1. Whether the proposed development is compliant with this development standard is a matter of dispute between the parties and is addressed later in the judgment.
The site is not located within land or in proximity to land that is affected by acid sulfate soils: cl 6.1 LEP 2012. As the works for which consent is sought do not involve excavation, cl 6.2 of LEP 2012 is not applicable.
In determining the development application, I am satisfied that the development has been designed to maximise water permeable surfaces on the land by the incorporation of a 'green roof' and appropriately minimises any impact arising from stormwater runoff: cl 6.4 of LEP 2012.
The subject site is located within a foreshore scenic protection area. The planning experts in their joint report agree that the amended plans, with the deletion of the loft and the incorporation of the green roof, achieve a satisfactory visual presentation to the surrounding public domain. (Exhibit 3). I accept their agreement. As required by cl 6.7 of LEP 2012, I am satisfied that the development is located and designed to minimise visual impact on the public domain, views to and from the coast, foreshore reserves and open space due to the recessed nature of the terrace and significant setback from the front boundary. I am satisfied that, as amended, the development contributes to the scenic quality of the coastal foreshore.
The proposed development is subject to the provisions of the Randwick Development Control Plan 2013 (DCP 2013). The following provisions are relevant to the issues in dispute between the parties:
DCP 2013 provides an external wall height control at Part C1 of clause 3.2 as follows: "Objectives • To ensure development height establishes a suitable scale to the street and contributes to its character. • To ensure development height does not cause unreasonable impacts upon the neighbouring dwellings in terms of overshadowing, view loss, privacy and visual amenity. • To ensure the form and massing of development respect the topography of the site. Controls i) The maximum external wall height is 7m. For steeply sloping sites, the maximum external wall height is 8m. …"
Whilst originally contended by the Respondent that the proposed development was non-compliant with the external wall height control, the planning experts agree that the control is not breached as follows: "AB and EH agree that in the amended plans, the proposed balustrading and planter boxes present as vertical elements that contribute to the building's height. However, based on the DCP explanation of wall height, these elements are not 'external enclosing walls of a building' and thus are not included in the wall height measurement. The amended plans therefore satisfactorily remove the issue of wall height compliance." (Exhibit 3)
I agree with and accept the evidence of the experts that the proposed development, as amended, meets the wall height control at clause 3.2 of DCP 2013.
Clause 4.4 of DCP 2013 provides provisions relevant to roof top terraces. The objectives and controls contained in the clause are: "Objectives: • To ensure roof design integrates with the form, proportions and façade composition of the building. • To ensure trafficable roof space is integrated with the built form and maintains satisfactory privacy relationship with the neighbouring dwellings. Controls: Rooftop Terraces: i) Terraces, decks or trafficable outdoor spaces may be provided in stepped buildings, but must not be provided on the uppermost or main roof of the building (including the principal dwelling and any outbuilding). ii) Roof terraces above garages may only be provided in sloping sites, where the garages are located in the downhill side of the sites fronting the street."
The proposed development application represents a variation to the controls under clause 4.4 of DCP 2013 as it provides a roof terrace on the uppermost roof of the dwelling. The appropriateness of the variation to the control is a matter of contention between the parties and is addressed later in the judgment.
The Council originally contended that the proposed development resulted in adverse overshadowing to the adjoining property: 9 Undine Street. As a result of the amended plans, and the deletion of the loft, the experts agree that this contention is resolved and the provisions of DCP 2013 at clause 5.3 are met by the amended development application. (Exhibit 3)
DCP 2013 includes controls related to visual and acoustic privacy as follows: "5.3 Visual Privacy … Objective • To ensure development minimise overlooking or crossviewing to the neighbouring dwellings to maintain reasonable levels of privacy. Controls … iii) Focus upper floor balconies to the street or rear yard of the site. Any elevated balconies or balcony returns on the side facade must have a narrow width to minimise privacy impacts on the adjoining properties. iv) Where a balcony, deck or terrace is likely to overlook the private open space or windows of the adjacent dwellings, privacy screens must be installed in positions suitable to mitigate the loss of privacy. Privacy screens must be permanently fixed and have a minimum height of not less than 1600mm as measured from the finished floor level. Privacy screens must achieve a minimum of 70% opaqueness and may be constructed with: - Translucent or obscured glazing - Fixed timber or metal slats mounted horizontally or vertically - Fixed vertical louvres with the individual blades oriented away from the private open space or windows of the adjacent dwellings v) Screen planting and planter boxes may be used as a supplementary device for reinforcing privacy protection. However, they must not be used as the sole privacy protection measure. … 5.4 Acoustic Privacy … Objectives • To ensure the siting and design of development minimise the impacts of noise transmission between dwellings. • To ensure the siting and design of development minimise impacts from significant noise sources outside the property, such as arterial roads, flight paths, industries and ports. Controls i) Dwellings must be sited and designed to limit the potential for excessive noise transmission to the sleeping areas of adjacent dwellings. Accordingly, main living room windows, barbeques, swimming pools and spa pools must not be located immediately adjacent to the bedroom windows of the adjoining dwellings. …"
The provisions of DCP 2013 are required to be considered within the framework of s 4.15(3A) of the EPA Act, namely: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - 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, …

Does the proposed development represent a variation to the FSR control?

As the subject site is more than 450m², but less than 600m² the applicable FSR is 0.65:1: cl 4.4 of LEP 2012. As the subject site has an area of 470m², the maximum allowance gross floor area (GFA) is 305.5m². The calculation of maximum GFA is agreed. (Exhibit 3). By reference to the architectural plans the approved floor space of the proposed dwelling is as follows: "Lower Ground: 24.34m² Ground floor 150.11m²" (Exhibit F)
The Applicant argues the amended first floor has a GFA of 132.37m², resulting in a total GFA under the amended development application of 305.37m². Therefore, on their submission, the development application does not represent a variation to the FSR control.
However, the Respondent disagrees arguing that the proposed development is not compliant with the development standard of 0.65:1. The disagreement centres the new stairs to the roof top terrace and whether they constitute GFA. On the Respondents arguments the stairs form GFA as they convert a previously approved first floor level stair void to gross floor area.
Mr Betros for the Applicant and Ms Huang assisted the Court by the provision of town planning evidence in the proceedings. Their joint report was tendered as Exhibit 3.
The definition of GFA in LEP 2012 is relevant to the evidence of the planning experts, it is: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
The difference in their evidence in relation to the application of the definition of GFA in LEP 2012 can be summarised as follows: 1. Ms Huang argues that the area of the stairs from the first floor to the roof are GFA. She applies the reasoning of the Court in Chami v Lane Cove Council [2015] NSWLEC 1003 ('Chami') and argues that in the context of a single dwelling house the exclusion from GFA for 'common vertical circulation' does not apply to the area of the stairs. (Exhibit 3). Further, she argues that "at a height of 1.4m above the floor, a portion of the additional stair access would be captured as gross floor area" and concludes that the proposed development would therefore exceed the 0.65:1 standard. (Exhibit 3) 2. In the alternative, Mr Betros argues that the stairs fall within the exclusion provided for common vertical circulation and the area of the stair does not contribute to GFA. By reference to the architectural plans he concludes the GFA of the proposed development is 305.38m², thereby compliant with the FSR standard at cl 4.4 of LEP 2012.

Submissions

Ms McGrath maintains that the FSR control is exceeded, that a written request to vary the standard pursuant to cl 4.6 of LEP 2012 (written request) is required, and that the submitted written request is not well founded. She relies on the following extract from Chami which considered the applicability of the exclusion of common vertical circulation from GFA in a single dwelling: "[273] Mr Eastman [the Respondent's Counsel] submitted to me that the view adopted by Tuor C [in Lord v Manly Council [2010] NSWLEC123] was incorrect and that a proper construction of the words 'common vertical circulation areas' necessarily required the incorporation of stairs and lift wells in, relevantly for these proceedings, single dwellings, in the calculation of the gross floor area for such dwellings. In essence, he did so on the basis that the word 'common', by its inclusion in the definition as a qualifier to the words 'vertical circulation areas', was intended by parliamentary counsel to have work to do and that the only logical work that it could do was to narrow the term 'vertical circulation spaces' by confining it to spaces of that nature that were shared between multiple occupancies in a building (whether a residential flat building or a building of some commercial or industrial nature). [274] He argued that, had the drafting intention been to exclude all such areas no matter the nature of the building within which they are located, the inclusion of the word 'common' would have been unnecessary as the remaining words, 'vertical circulation areas', would have been all-encompassing without the necessity for the embellishment of the added term. [275] I agree with this submission."
Ms McGrath submits that the Court should apply the same reasoning as Chami and conclude that the exclusion for 'common vertical circulation' does not apply to single residential dwellings.
Further, she disagrees that the submission of the Applicant that the stair can further be excluded on the basis that it is a 'void' under (j) of the GFA definition as there is no storey above the relevant stairs in this matter. She states: "As to whether some of the gross floor area should be excluded under the exclusion provided by the definition of void Council maintains that the definition has been incorrectly applied to vertical circulation spaces because the area does contain some floor space. In any event, if the Court is minded to find that in measuring floor space at a level 1.4 metres above the floor results in a void at the level of a storey or storey above, due to the nature of this proposed development that exclusion does not apply because there is no void created by the 'storey above'." Respondent's written submissions 29 January 2021
In the alternative, Mr Pickles submits that the new staircase is not additional floor space as it is both a staircase and a void above an existing stairwell. It is his submission that as stairs provide for circulation between floors they form 'common vertical circulation' and that applying the definition at [37] they are excluded from GFA. He relies on the following decisions of the Court, arguing that Chami is an exception: Lord v Manly Council [2010] NSWLEC 1223 at [23]; JK Canterbury Holdings Pty Ltd v Marrickville Council [2016] NSWLEC 1142 at [28]; New Street No. 1 Pty Ltd [2017] NSWLEC 1592 at [47]; and Dwyer v Sutherland Shire Council [2018] NSWLEC 1543 at [59].
Mr Pickles submits that the Court could also apply the exclusion for 'voids above a floor at the level of a storey or storey above', applying the reasoning of Horton C in Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 at [86]: "As GFA is calculated at 1.4m above a floor, and as it excludes voids above a floor at the level of a storey or storey above, I accept the method articulated by Mr Betros in relation to stairs and lifts because, at the level at which GFA is measured, stairs and lift wells appear as voids, or part voids, and do not constitute floor area that is available to be stood upon or counted."
Mr Pickles concludes that in the current development application at a level of 1.4m above the floor of the highest habitable level, there is no floor in the location of the stairs, but a void. Similarly, at 1.4m above the floor of the roof, there is also a void over the stairs. It follows that the area is excluded from GFA. In his final submissions Mr Pickles noted that the stairs to the roof top terrace are not 'even roofed so are not within external enclosing walls so could never comprise GFA, regardless of whether an exception applies'. (Applicant's written submissions 27 January 2021)

Findings

The proposed development includes the insertion of a set of stairs from the first floor of the dwelling to the proposed roof top terrace. The stairs are not proposed to be roofed and are not waterproofed. A strip drain is provided at the entry to the external door on the first floor at the base of the stairs. Applying the chapeau to the definition of GFA, I am satisfied that there no applicable 'internal face of external walls' from which GFA can be measured at a height of 1.4m. The definition of GFA in LEP 2012 requires the floor area of each level to be measured from the internal face of external walls, measured at a height of 1.4m above ground. The walls surrounding the new stairs are external walls: GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 at [31].
On this basis I accept Mr Pickles submission, summarised at [44]. Adopting the evidence of Mr Betros, and by reference to the architectural plans, the proposed development has a total GFA of 305.38m² or an FSR of 0.649:1. I find that the proposed development complies with the FSR standard of 0.65:1 at cl 4.4 of LEP 2012. A written request is not required.

Are the amenity impacts of the proposed roof terrace acceptable?

The Respondent argues that the proposed roof terrace is not visually integrated with the built form of the proposed development and it will result in adverse visual, acoustic and amenity impacts upon the neighbouring properties. A number of the resident objections raised similar concerns about the impact of the proposed roof terrace.
The potential impacts of the proposed roof terrace were also the subject of expert evidence. Mr Betros argues that those impacts are acceptable on the following grounds:

The fact that the terrace is recessed from the alignment of the existing external walls of the approved dwelling deters, if not eliminates, downward overlooking to adjoining properties. By design the proposal ameliorates any potential privacy impact.
There are numerous roof terraces of a similar nature in the locality, of which he is not aware of any acoustic impact. Existing roof terraces form part of the character of the area.
The lower level decks and balconies, as well as several windows in the approved dwelling, "have a greater overlooking potential than the roof terrace's recessed nature set within the green roof." (Exhibit 3)
Surrounding dwellings have numerous existing terraces, balconies and decks which have potential for overlooking, in part due to the desirability of views to the ocean. In this specific location a degree of mutual overlooking is characteristic.

Ms Huang's evidence is that "the roof terrace as amended will not have an unacceptable impact on the amenity of adjoining properties, particularly in relation to overlooking and acoustic impact, due to the elevation and exposed nature of the terrace and its size". (Exhibit 3). She disagrees however that roof terraces are characteristic of the locality. Further, she argues that the Applicant has not demonstrated that the proposal is consistent with the existing or desired future character of the immediate surrounding area. She concludes that the variation to clause 4.4(i) of DCP 2013, which precludes roof terraces on the main roof, is not warranted.
In her oral evidence Ms Huang expressed concern that users of the stairs to the roof top terrace have the potential to view into neighbouring properties (especially the rear yard of 9 Undine Street) and argues that the Applicant has failed to demonstrate that oblique views are not available from the roof terrace into the open spaces of neighbouring properties. She also argues that the proposed roof terrace is unnecessary as the approved dwelling already enjoys high amenity, sufficient open space and ocean views. In her view the additional amenity sought from the roof terrace is at the expense of the amenity of the adjoining properties.
Ms Huang remains concerned about the potential for the proposed roof terrace to generate adverse acoustic impacts. She argues that its size, its ready accessibility from the homes living areas, its high amenity, and its proximity to adjoining neighbours' bedrooms means that the potential for acoustic impact is of concern. Ms Huang concluded her oral evidence stating that, in her opinion, the amenity impacts of the proposed roof terrace are unacceptable and the development warrants refusal.
The experts agree that the amended architectural plans have a satisfactory visual presentation to the surrounding public domain, resolving any concern in relation to the streetscape or visual impact of the proposed development.

Submissions

Ms McGrath submits that the Court ought to refuse consent to the development application. She argues that when consideration is given to the objectives of the zone, in particular the objective 'to protect the amenity of residents', the Court would conclude that the roof terrace will have unreasonable adverse impacts to the amenity of adjoining properties.
Further, Ms McGrath submits that the Court would not exercise its discretion to vary the control at clause 4.4 of DCP 2013 which provides that roof terraces must not be provided on the uppermost, or main, roof of the building. Ms McGrath argues that the roof terrace does not meet the objectives of the control, namely on of Ms Huang, it fails to maintain a satisfactory privacy relationship with the neighbouring dwellings.
Ms McGrath submits that, despite the approval of a roof terrace at 7 Torrington Road, the Council has not abandoned the control at clause 4.4 of DCP 2013 and that the DCP controls should be the focus of the Courts assessment: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [26].
Ms McGrath submits that the Respondent remains concerned in relation to the potential for overlooking from the roof top terrace. These impacts are exacerbated by the fact that, in her view, the size of the roof terrace will accommodate large gatherings to enjoy the extensive views. She argues that the information provided by the Applicant fails to fully represent the potential opportunities afforded for overlooking from the terrace, and the Court should not be satisfied that they have been assessed. She notes that it is Ms Huang's evidence that: "… the sightline information supplied for the amended proposal shows that the roof terrace will readily enable views over boundary fences into adjoining private open space and windows, resulting in adverse loss of privacy". (Exhibit 3) Further, Ms McGrath submits that any landscaping proposed should not be relied on to mitigate any overlooking due to its uncertainty.
Ms McGrath submits that the Court's planning principle in Super Studio v Waverley (2004) 133 LGERA 363; [2004] NSWLEC 91 ('Super Studio') is directly on point to the matters in dispute in the current proceedings. She notes that relevantly the first planning principle states: "the acceptability of an impact depends not only on the extent of the impact but also the reasonableness of, and the necessity for, the development that causes it.": Super Studio at [5]. Ms McGrath notes that in the decision of the Court in Super Studio, which also related to a roof terrace, weight was given to both the fact the property already had three outdoor areas and the fact that roof terraces were not present on houses in the surrounding area. In determining the appeal, the Court concluded that "a roof terrace would only be acceptable if its impact were minor or negligible": Super Studio at [5] Applying the same reasoning to the current proceedings Ms McGrath argues: "The approved dwelling on the subject site has 4 balconies (one off each of the living/lounge area and the dining area on the ground floor and one off each of the main bedroom/sitting area and fourth bedroom on the first floor level), in addition to the rear yard private open space with pool and cabana. The Respondent's expert's opinion is that the privacy impacts from the proposed development in terms of acoustic privacy and overlooking impacts are such that the proposed developments impacts are more than minor or negligible. … The test in Super Studio is whether the proposed development is necessary as part of the enjoyment or functionality of the development. The Respondent submits that the existing development already has adequate open space with four balconies offering views towards the ocean. The additional roof terrace is not necessary to the functionality or enjoyment of the existing development." (Respondent's written submissions, 29 January 2021)
Ms McGrath also observed that in Super Studio the Court noted that noise impacts alone may not be sufficient to refuse an application on its own but was sufficient in combination with privacy impacts to refuse the application. Ms McGrath maintains that similarly the noise disturbance potential from the roof terrace, the potential overlooking to neighbours, and the fact the roof terrace is an incompatible element in the streetscape cumulatively warrant the refusal of the application. (Respondent's written submissions, 29 January 2021)
In his written submissions Mr Pickles submits the proposed development warrants approval. His reasoning is summarised in the following.
Whilst the proposed roof top terrace represents a variation to the control at clause 4.4 of DCP 2013, the proposed development meets the objectives of the provision (refer to [28]). He notes that the planners, in the joint report, agree that the green roof provides a satisfactory streetscape presentation. Further, the existing approval proposed a flat roof, with which the proposed development is consistent with the form, proportion and composition of the approved development. Further, he argues that on the evidence of Mr Betros and the analysis in the architectural plans, the roof top terrace maintains a satisfactory privacy relationship with the neighbouring dwellings. Mr Pickles maintains that in circumstances were it is established the objectives of the standard are met by the proposed development it is appropriate for the Court to apply flexibility as mandated by s 4.15(3A)(b) of the EPA Act.
Mr Pickles submits that the reduction in the overall size of the terrace, as well as its increased setback, addresses the contention of the Respondent that it will have unacceptable visual and acoustic privacy impacts. He notes that "(t)he Council's contention (paragraph (e)) admits that the sight line study demonstrates there are no sightlines from the terrace to neighbouring properties immediately adjacent, but that sightlines occur over roofs of adjoining buildings." Mr Pickles argues that this analysis makes any remaining argument that the roof terrace has unacceptable visual impacts untenable. (Applicant's written submissions, 27 January 2021)
Mr Pickles rejects Ms McGrath's submission that the Court should consider the necessity of the terrace, in the context that the approved dwelling already has adequate or sufficient private open space. He submits that the concept of necessity in the Super Studio planning principle was expressly disavowed in the decision of the Court in Davies v Penrith City Council [2013] NSWLEC 1141 at [121] which states: "121 I have, therefore, undertaken the internal consultation process for consideration of the establishment of a new planning principle or the revision of an existing planning principle. As a result of that consultation, it is appropriate to refine the published planning principle to delete the words "necessary and/or" so that the revised planning principle will, in future, read: Revised planning principle: criteria for assessing impact on neighbouring properties The following questions are relevant to the assessment of impacts on neighbouring properties: How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? How reasonable is the proposal causing the impact? How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?"
Mr Pickles concludes that the question of the necessity of the roof top terrace is irrelevant to the Court's assessment.

Findings

After considering the evidence and submissions of the parties and undertaking the required assessment under s 4.15 of the EPA Act, I am satisfied the proposed development warrants approval. My reasoning is as follows.
As noted at [17] whilst it is not necessary for development to satisfy the zone objectives, I am required to take them into consideration in determining the development application: cl 2.3(2) LEP 2013. The zone objectives for the R2 Low Density Residential zone are extracted at paragraph [16]. In these proceedings it was contested that the proposed development fails to 'protect the amenity of residents', in particular residents neighbouring the subject site. In considering the question of consistency in relation to zone objectives I have used the guiding principle in Schaeffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 at [21], namely: "the guiding principle then is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that is compatible."
In applying this principle to the proposed development and the relevant zone objectives I am satisfied that the development is generally consistent with the zone objectives. On the evidence I am not persuaded that any detrimental impacts from the development are antipathetic to the protection of the amenity of residents in the low-density residential zone.
I am satisfied by the evidence of Mr Betros and the submissions of Mr Pickles that applying s 4.15(3A)(b) of the EPA Act, the variation to control (i) of clause 4.4 of DCP 2013 is warranted. Considering the first objective of the control at clause 4.4 of DCP 2013 there is no substantial evidence before the Court that the roof design of the proposed dwelling with the insertion of a roof terrace does not integrate with the form, proportion or façade composition of the building as a whole. In assessing the application I have given weight to the agreed evidence of the planners at [52] that the streetscape presentation is acceptable and the development will have no detrimental visual impact.
Considering the second objective of the control at clause 4.4 of DCP 2013 I am satisfied that the amended architectural plans demonstrate that the sight line of a person on the proposed roof top terrace will either: have a view of the adjoining properties roof of the main dwelling or the roof to a balcony; or alternatively have a view to the rear boundary of the adjoining property at a minimum height of 5m and a distance of over 20m. The plans demonstrate that the recessed nature of the terrace, the walls surrounding the garden beds and the parapet of the external house walls will obscure or block any view into the rear yard, terrace or balcony of adjoining properties. (Exhibit A) On the basis of this analysis I prefer and accept the evidence of Mr Betros. His comments regarding existing mutual overlooking being characteristic of the locality was observable on site. I am satisfied that any negligible views to the neighbouring properties achieved from the proposed stair landing, as raised by Ms Huang, are ameliorated by the proposed privacy screen or are transient distant views.
On the preceding basis I am satisfied that despite the variation to the control, the objectives of clause 4.4 of DCP 2013 are met.
In relation to the concerns pressed by the Council of a detrimental acoustic impact I accept that the roof top terrace will be a location of high amenity for the future residents, not least due to its ocean views. However, equally the approved dwelling has other external private open spaces both at grade and on upper decks and terraces.
Looking at the design and location of both the approved private open spaces and the roof top terrace it is, in my view, unlikely that if the residents were to host a party or a large gathering where people were to be seated for a long time, it would occur on the roof. My reasoning is influenced by the evidence of Mr Betros, the distance of the roof terrace from the kitchen, the lack of lighting proposed to the terrace, the inclusion of BBQ facilities cabana and the like in other spaces and the lack of sun protection or cover provided to the roof terrace. Further, the roof top terrace is immediately adjacent the bedrooms of the proposed dwelling. However, if I am wrong I am satisfied any acoustic impact will not be sufficiently detrimental to warrant refusal in the specific circumstances as: 1. The proposed conditions include a prohibition on amplified noise and a bar to usage of the terrace between 10pm and 7am. I am satisfied these conditions are reasonable and they are included in Annexure A. 2. The terrace is setback more than 5m to the nearest neighbour 3. The edge of the terrace contains a barrier to 1 metre high which will likely mitigate the transmission of noise.
I am satisfied that any acoustic impact generated by the roof top terrace is appropriately mitigated and does not warrant the refusal of the application.
Finally, in contrast to the submissions of Ms McGrath, I am not persuaded that it is relevant for the Court to consider the necessity of the development. I accept and adopt Mr Pickles submissions at [62] in this regard. An Applicant can seek consent for any form of permissible development: s 4.12 of the EPA Act. The role of the consent authority is to determine the merit of the development for which consent is sought. I am not persuaded in this appeal that the need for the terrace (its necessity), or the extent of provision of private open space for the proposed residence, is a matter relevant to that assessment.
In light of the preceding I find the proposed development warrants approval.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA/210/2020 for alterations and additions to existing residential dwelling including new roof terrace at 7 Undine Street, Maroubra (Lot 20 DP 8693) subject to the conditions at Annexure A. 3. The exhibits are returned with the exception of Exhibits A, F, G and 1

Commissioner of the Court Annexure A (294331, pdf) Plans (2819146, pdf)

Amendments 22 July 2021 - Amended typographical error in hearing date. 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: 22 July 2021

(2004) 133 LGERA 363

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Cases Cited (12)