Coogee Developments Pty Ltd v Randwick City Council

The site

1. The site has an eastern frontage of 14.94m to Higgs Street, depths of 48.57m (northern side) and 54.73m (southern side) and site area of 846.3sqm. It is trapezoidal in shape and rises from the street frontage up to the rear of the site by approximately 8-9m. There is also a cross fall from south to north of approximately 1.2m. The rear yard slopes up from the rear of the existing flat building and the rear yard contains some landscaping and no significant tree species.
2. The locality predominantly consists of detached dwellings and an attached dual occupancy at 6 Higgs Street to the south. Leete Park is located to the east of the site, across Higgs Street.

Relevant planning controls

1. The site is within Zone R2 Low Density Residential under Randwick Local Environmental Plan 2012 (LEP 2012). The proposed development is prohibited under the R2 zone however the approval of Development Application No DA 145/2015 was through the existing use rights provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act).
2. As the site falls within the Dudley Street Heritage Conservation Area (DSHCA) in Part 2 of LEP 2012, the requirements for Heritage Conservation in cl 5.10 of LEP 2012 apply.
3. Randwick City Council Development Control Plan (the DCP) applies. Part B2 provides requirements for Heritage. The DSHCA is specifically addressed at cl 4.4 of the DCP.

Is the modification substantially the same development as originally approved?

The submissions

1. Mr Patterson, for the council, submits that the development to which the consent as modified relates is not substantially the same as the development for which consent was originally granted in the previous proceedings. Development Application No. DA145/2015 was amended before it was approved in the previous proceedings. The amended application was considered to be acceptable on planning grounds as the proposed replacement building adopted a similar bulk, scale, footprint and building envelope as the existing residential flat building on the site.
2. The modification application will result in development that is not substantially the same as the development for which consent was originally granted as it seeks to extend the built form to the rear in a similar manner that was previously proposed, before being amended for the previous proceedings. The extension of the built form beyond the existing building envelope and its associated visual bulk and amenity consequences was a primary focus of the initial statement of facts and contentions that was filed with the Court on behalf of Council in the previous proceedings.
3. The applicant amended the design of the proposed building in the previous proceedings to be similar to the height, bulk and scale of the existing flat building (that is to be demolished) which addressed visual bulk and amenity impacts (loss of view, overshadowing, visual bulk and privacy) concerns that had been previously raised by council. The modification application reinstates the substantive unacceptable element of the previously unsupported development application which was amended to address such concerns.
4. Ms Irish submits that the council erroneously conflates merit considerations which council attributes to the development as originally granted which, first, were never the subject of determination by the Court as consent authority and, secondly, are irrelevant to the opinion of satisfaction required by s 96AA(1)(a). In the circumstances, an absence of building envelope cannot be proved to be "a particular feature of the development...found to be important, material or essential" and the case is not analogous to the circumstances of Pozzobon v City of Canada Bay Council [2014] NSWLEC 1143. In this matter the applicant sought to delete conditions 18 and 23 requiring amendments to the plans and window sill heights for privacy which informed "the development as originally granted" such that their deletion "would not result in a development that is qualitatively substantially the same as the consent for which consent was originally granted".
5. Further, an analogy can be drawn with ABD Holdings Pty Ltd v Council of the City of Sydney [2013] NSWLEC 45 where Sheahan J dismissed the council's motion seeking to dismiss (as an abuse of process) Class 1 proceedings to modify, albeit pursuant to s 96(8) of the EPA Act, a development consent granted by the Court by consent orders agreed upon at the hearing and made in a s 97(1) appeal only 6 weeks earlier. Here, the applicant accepted the replacement building proffered by council rather than seeking a larger residential flat building within the approved building footprint, and largely within the approved envelope, at the rear of the building. As in ABD Holdings, there is no bar and the statutory regime imposes on the Court's power no limitations on the new process which has been undertaken by the applicant.

Findings

1. Ms Irish provided a good summary of the relevant authorities in her submissions where she noted that in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Bignold J held (at [54]) that the availability of the modification power, pursuant to s 96(2)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) involved an ultimate finding of fact by the Court that the modified development was substantially the same as the originally approved development. At [55] His Honour opined that the requisite factual finding required a comparison between the development, as currently approved, and the development as proposed to be modified, and that the result of the comparison must be a finding that the modified development was "essentially or materially" the same as the currently approved development. At [56] His Honour further opined that the comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). At [62] His Honour referred to cases indicating that environmental impacts of proposed modifications to approved development are relevant to the ultimate factual finding. At [64] His Honour opined that although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential.
2. Applying these observations in Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351, Bignold J found that the proposed modifications in Tipalea created some changes in the external appearance of the approved development, but did not radically transform the originally approved development, and that the development as modified was substantially the same as the original development.
3. In Scrap Realty Pty v Botany Bay City Council (2008) 166 LGERA 342, Preston J held that the power under s 96 of the EPA Act was simply one to "modify the consent", and that the power of the consent authority to "modify" a consent is a power to alter without radical transformation the consent. The condition precedent under s 96(2) namely, the consent authority forming an opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), focuses on "the development", making a comparison between the development as modified and the development as originally granted.
4. In this case, I am satisfied that the modified development is "essentially or materially" the same as the currently approved development. I am not convinced that the council's argument that the modification application will result in development that is not substantially the same as because it seeks to extend the built form to the rear in a similar manner to that previously considered unacceptable by the council is relevant in this context. Clearly, it is relevant for the contentions relating to bulk and scale.
5. The modifications do not alter the use of the building nor the majority of the approved layout. When considered against the approved development; ground level setbacks remain unchanged, as does the overall height. The significant modification is the extension of the built form to the rear on Level 2 but when compared to the approved form of the building, it could not be reasonably said to "radically transform the originally approved development".

The evidence

1. Expert evidence in this contention was provided by town planners Mr George Karavanas, for the applicant and Mr Anthony Betros, for the council. Dr Richard Lamb also provided a view assessment for the applicant.
2. Mr Betros states that he attended the neighbouring property with Dr Lamb and photos were taken from the deck of the southern neighbour. The resultant photos confirm that the extension of the approved built form to the rear would have excessive visual bulk and scale impacts. Such bulk and scale impacts would be experienced by the adjoining properties to the north and south. The visual bulk impacts would be experienced from the rear yards, deck and swimming pool areas of the adjoining properties.
3. Mr Betros disagrees with the comparison of the proposal with a potential dwelling house on the site given that the rear setback requirement is not solely numeric but is qualified by a subjective assessment. Mr Betros notes that there is a consistent rear building line and that the site is located in a heritage conservation area which heightens the significance that should be applied to the rear setback controls. The existing flat building is a non-conforming use and its replacement by a substantially larger flat building will create an incongruous and overbearing built form. The minor side setbacks and solid/elevated nature of the built viewed from neighbouring properties is unacceptable.
4. Mr Karavanas states that the Joint Randwick/Waverley Design Review Panel considered the original development application which comprised a similar envelope to that of the modification application. The Panel considered the footprint and scale to be acceptable.
5. Mr Karavanas states that while the proposed additions extend beyond the approved building envelope, a dwelling house could be constructed on the site in compliance with council's controls that would be closer to the rear boundary (up to within 8m of the rear boundary) and with a height greater than the rear portion of the proposed building. In his opinion, the proposed interface with the neighbours is more modest than such a complying scenario. It is accepted that a dwelling house will be restricted by the floor space ratio (FSR) standard also that a complying envelope represents a hypothetical proposition, however, such an envelope would be possible given the inclusion of any number of voids, recesses and internal courtyards. These areas are not included in FSR.
6. While the DCP also states that consideration should be given to the existing predominant rear setback line, Mr Karavanas notes that the proposed addition is at the same alignment as the approved level below and the same alignment as the roofed terrace of 6 Higgs Street. Mr Karavanas states that the DCP states that "unroofed decks and terraces" may encroach beyond the rear setback line (not roofed terraces); thereby the roofed terrace of 6 Higgs Street constitutes part of the rear setback of 6 Higgs Street. In this regard, the proposed addition is in line with the existing rear setback of 6 Higgs Street.
7. Mr Karavanas further notes that the site has a greater depth than 6 Higgs Street and indeed the remainder of the properties to the south. On this basis, there could be an expectation that a building may extend beyond the rear building line of the shorter allotments and that the modifications are not likely to result in a sense of enclosure for the neighbouring properties.
8. In respect to 6 Higgs Street to the south of the site; the proposed addition has a similar height and rear alignment as the covered terrace of 6 Higgs Street. While currently there is an outlook from the terrace to the side (to the north), such an outlook would normally not be expected or allowed by council due to the potential for direct overlooking into the site. It is for this reason that council has imposed a condition of consent in the approval of the terrace of 6 Higgs Street for a privacy screen (DA 999/2006), which would screen the view of the proposed addition. Condition 3 of DA 999/2006 states, inter alia: "3. A privacy screen having a height of 1.8m is to be provided to the north-eastern side of the rear first floor balcony to minimise overlooking impact on No. 4 Higgs Street. Details of compliance are to be provided in the construction certificate plans.
9. Mr Karavanas further notes that, on and before 26 November 2014, prior to the submission of the original DA, extensive screen planting existed along the northern boundary of 6 Higgs Street. Such screen planting once further developed had the potential to considerably screen the view of the proposed addition. A further photograph taken after the submission of the original DA, on 12 May 2015, indicates the pruning of the hedging.
10. Given the setback of the basement from the southern side boundary, screen planting can be planted on site to provide a similar interface from 6 Higgs Street (to what existed prior to the lodgement of the DA) and assist in softening the appearance of the proposed addition (if the required privacy screen is not erected. The rear terrace is not the only outdoor space available from 6 Higgs Street as a balcony with direct connectivity from the internal living area and extensive views is located at the front of this dwelling.
11. In respect to 2 Higgs Street to the north of the site, the proposed additions will appear as one storey above the fence line. In the opinion of Mr Karavanas, this does not represent an unreasonable visual bulk nor does it create an unreasonable sense of enclosure. A compliant dwelling house could potentially have a greater height and extend further to the rear. As the basement is setback 1.5m from the northern setback, additional planting can be provided to soften the appearance of the addition when viewed from 2 Higgs Street.

Findings

1. Development Application No DA 145/2015 was approved through existing use rights of the EPA Act. The parties accepted that a development application was required and consequently an assessment under s 79C(1) of the EPA Act was necessary notwithstanding the existing use rights provisions.
2. In determining an application for modification of a consent under section 96AA of the EPA Act, the Court must also take into consideration such of the matters referred to in section 79C(1) as are of relevant (s 96AA(1 A)). The relevant provisions are:
3. The relevant provisions of s 79C(1) are: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) …,
4. The R2 zone has a number of zone objectives however only the following objective is relevant in this case: • 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.
5. DCP 2013 is also a relevant consideration in so far as it establishes the likely form of development anticipated in the R2 zone. While a site that has the benefit of existing use rights has certain freedoms not available to permissible developments, those freedoms are not unfettered.
6. In this case, I agree with the conclusions of Mr Betros that the extension of the built form to the rear would have excessive visual bulk and scale impacts when viewed from both adjoining properties.
7. I accept that proposed modification has little or no impact on the streetscape as street elevation of the proposed development is unchanged and the additional floor area at the rear is not readily visible from the street. However, the character of the area extends beyond just the streetscape. The built form is made of predominantly single residential dwellings and it is this form that contributes to the elements that make up the character of the area. The desirable elements relevantly include a reasonably consistent rear building setback with landscaped rear yards used for private recreational purposes with a high degree of visual privacy and a largely unconstrained open outlook from this area. These elements are not inconsistent to what would be expected in a low density residential area.
8. While the approved development extends further to the rear than the adjoining residential dwellings, it is at the ground level only. .The proposed additional floor area proposed in the modification application is largely located above this area and effectively extends the rear building setback when viewed from the adjoining properties. From the property to the north (2 Higgs Street), the additional area will be visible over the boundary fence from the rear yard and swimming pool area. Given the lower level of 2 Higgs Street compared to the site, the visual appearance and bulk will exacerbated by the change in level, in my view, this new visual appearance and bulk is unacceptable given the existing relationship that exists with the rear building line and the relatively open nature of the private recreational areas of the adjoining dwellings.
9. When viewed from the south (6 Higgs Street), the relationship with the site and the proposed modifications is complicated by the condition imposed on the approval of the balcony/terrace of 6 Higgs Street for a privacy screen (see par 26), which would partially screen the view of the proposed addition. It was further complicated by an application under s 96 of the EPA Act to modify this previous approval although this application was undetermined at the time of the hearing.
10. The approved plans for DA 999/2006 do not show any privacy screen on the first floor balcony of 6 Higgs Street however condition 3 requires "a privacy screen having a height of 1.8m is to be provided to the north-eastern side of the rear first floor balcony to minimise overlooking impact on 4 Higgs Street". The approved plans indicate an area identified as "balcony" and another area as "terrace". These areas adjoin each other. It was argued that condition 3 that required a privacy screen applied only to the "balcony" area and not the "terrace" area given the specific wording of the condition and the wording on the approved plans. With an understanding of the condition and plans; I accept this a reasonable interpretation of the condition. The modification application does not alter the approved plans significantly in this respect.
11. While the "balcony" needs to be screened (although the condition does not specify the type of screen) and will restrict views to the site, the "terrace" area has no such restriction. With the benefit of the site inspection and an understanding of the relationship between the two properties, I accept that the additional floor area sought in the modification will be visible over the fence from the "terrace" area of 6 Higgs Street and will provide a built form in an area previously devoid of built form and would be clearly seen as a breach of the existing rear building line and consequently with the existing character of the rear yards in the area. Again, the appearance and bulk in this location is unacceptable level given the existing relationship that exists with the rear building line and the relatively open nature of the private recreational areas of the adjoining and nearby residential dwellings.
12. For the reasons in the preceding paragraphs, I am satisfied that the proposed modification will likely have unacceptable impacts on the built environment in the locality (s 79C(1)(b)) such that the modification should not proceed for this reason alone .
13. Also, I do not accept that the proposed modification "recognise(s) the desirable elements of the … built form … that contribute to the desired future character of the area" (zone objective) such that the modification should not proceed for this reason alone.

Heritage impact

1. Expert heritage evidence was provided by Mr Colin Brady for the council and Mr Stephen Davies for the applicant. Mr Brady and Mr Davies provided heritage evidence in the original hearing. The main difference between their evidence on the original hearing centred on whether the existing building was contributory or not contributory to the DSHCA. Mr Brady maintained that it provided a contribution to the DSHCA and should not be demolished whereas Mr Davies maintained that it contributed little to the DSHCA and as such, could be demolished. In the original hearing, I accepted the conclusions of Mr Davies.
2. Mr Brady and Mr Davies maintained their previous approach with Mr Brady maintaining that the additional floor area and the location to the rear affected the significance of the DSHCA whereas Mr Davies came to the opposite conclusion.
3. As the modification application is to be refused on the basis of excessive bulk, it is not necessary to address all the evidence provided by Mr Brady and Mr Davies however I agree with Mr Davies that the modification application does not have a meaningful impact on the heritage significance of the DSHCA and as such would not be a reason to refuse the application.

Visual and acoustic privacy impacts on adjoining properties and unacceptable internal amenity for future occupants.

1. As the modification application is to be refused on the basis of excessive bulk, it is not necessary to deal with the evidence on visual and acoustic privacy and internal amenity.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. The application to modify Development Application No DA 145/2015 for the demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 8 units at 4 Higgs Street, Randwick is refused. 3. The exhibits are returned with the exception of exhibits 1and A.

G Brown 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: 24 January 2017