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[2011] NSWLEC 1350
Land and Environment Court (NSW)
2011-09-27
Mr P
Original judgment source is linked above.
Mr P Rigg, Solicitor (Respondent) Solicitors Susan Hill and Associates (Applicant)
Norton Rose Australia (Respondent) File Number(s): 10538 of 2011
Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against Randwick City Council's refusal of a development application for the property known as 2 Wolseley Road, Coogee. The subject site is opposite Coogee Beach and is separated by way of a large open reserve to the east and it is also adjoined on its northern boundary by a right-of-carriageway some 3 m in width that serves the property at the rear of No 2A Wolseley Road. A large open park is located to the north of the site. 2The subject site is rectangular and some 490 sq m, being approximately 14.6 by 33.5 m. The site has a fall of some 5 m from the rear boundary on the west to the eastern boundary with the street. Currently on the subject site, a dwelling house is erected and the proposal is to demolish the dwelling house and erect a residential flat building, comprising basement parking for some six vehicles with bicycle storage and three levels of apartments above. Each floor contains one three-bedroom unit serviced by a lift with a common entry at the ground floor with access from Wolseley Road. 3The proposal has a long history before coming to this Court including a number of council officers' assessments as detailed in the respondent's bundle of documents. 4I preface my judgment by saying that my assessment is in respect of the amended plans exhibit A and of today, amendments have been forthcoming from the applicant in exhibit N. 5The proposed development must be assessed under the relevant controls and in this regard the Randwick City Council Local Environmental Plan is the most relevant consideration. Also the accompanying document, which is referred to in the LEP, the Court must give focus to in its assessment of the development application, that is, the development control plan for multi-unit housing. 6The Court met on site the first morning of the hearing and heard from a number of resident objectors and the objectors' concerns were noted on returning to Court on the first day and a written summary of the objectors' concerns were also handed up to the Court to assist. The residents' concerns are that the proposed development does not comply with the provisions of the development control plan and the State Environmental Planing Policy No 1 objection to vary the floor space ratio control should not be allowed in the circumstances of this case. The objectors were also concerned, in particular those that resided or owned units in 4 Wolseley Road to the south about the impact of the proposed development on solar access and views from units within that block. 7I will just briefly describe the area generally. To the south of the subject site there is a residential flat building with a number of units contained therein and this development is of the inter-war period and generally has a large footprint. The building behind the subject site to the west at No 2A is a two-storey building and beyond that to the west there is a large residential flat building, which is most prominent when viewed from the surrounding open space area, which has access from Oberon Street. The area generally has little vegetation due to its coastal location and the prevailing winds. This is a beachside suburb and has considerable attributes and character. 8The Court in its assessment must have regard, as I stated, to the provisions of the relevant instruments of the council, as well as a merits assessment under s 79C of the Environmental Planning and Assessment Act . I will state at this point that, as it is a threshold question or a pre-condition to a merits assessment, I will first of all consider the State Environmental Planning Policy No 1 objection in respect of the floor space ratio provision. 9The floor space ratio provision is contained within cl 20F of the Local Environmental Plan, this states that: The maximum floor space ratios for buildings other than buildings erected for the purpose of a dwelling house within zone...2C is 0.9:1, that is 2A is .5:1, 2B is .65:1 and 2C is .9:1 respectively. 10Relevantly, subclause 2 states despite subcl 1 the maximum floor space ratio for buildings other than buildings erected for the purpose of a dwelling house within zone 2C is 0.65 where the site area is less than 700 sq m. 11The purpose of the clause is: To operate together with controls for building height and landscaped area to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area. 12In this regard I note that the plan has at cl 2A a statement which says: Notes in this plan other than those prefaced with purpose do not form part of this plan. 13As such, it is agreed between the experts that the purpose as articulated in the plan is the one the Court must focus on, in terms of the variation to the standard. 14There is agreement that it is a standard and in this regard there are a number of judgments in this Court, in particular the more recent one Wehbe v Pittwater Council [2007] NSWLEC 827 of the Chief Judge of this Court, that sets out a number of methods for assessing a SEPP 1 variation. 15For the purposes of the SEPP 1 consideration, the respondent advised the Court that it should have regard to the objectives of the zone as well and the relevant objectives of the 2C zone are: (a)to provide for a medium density residential environment and (b)to maintain the desirable attributes of established residential areas and (c)to protect the amenity of existing residents. 16The LEP, as I said, does set out a number of aims, general aims, and (c) is to create a broad framework of planing controls within which the council may prepare development control plans to formulate and adopt more detailed policies and guidelines relating to matters of significance for local environmental planning. Clause 9 is relevant in that it states: Council may not grant consent unless it has considered the extent to which the proposed development is consistent with the general aims of this plan and the specific objectives of the zone within which the development is proposed. 17Before I return to the SEPP 1 objection I do need to note, given that the purpose recognises an interrelationship between the controls, I have looked at also in, for the record, the landscaped area and the provisions in the landscaped area control are that development requires 50 % landscaped area and there is no issue between the parties that there is technical compliance in terms of the landscaped area, although Mr Turrisi for the respondent considers that the objectives are not necessarily achieved because some of the landscaping is under the building.
The building height provisions 18The maximum height for a building in cl 20G (other than a dwelling house within zone 2A or 2B) is 9.5 m. In the 2C zone it is 12 m, measured vertically from any point on ground level and the maximum height for any external wall of a building within zone 2C is 10 m. Once again the purpose of these standards is the same as the purpose I quoted earlier for the floor space ratio control as contained in cl 20F. 19Mr Rigg for the respondent urged the Court to look at the purpose and that it does not require one to be informed by other provisions. On the other hand, Mr Hemmings for the applicant is of the opinion that in order to look at the aesthetic character of the area and the meaning of environmental amenity that one can be informed by the provisions of the development control plan. 20Suffice to say, I look at the purpose as urged by the respondent in terms of my assessment under SEPP 1. As I stated, the FSR is 0.65 because the site is below 700 sq m and the proposed development has an FSR of 1.182:1. The Court, as I said, is guided by a number of authorities and in this regard the respondent referred to the judgment of his Honour Justice Lloyd in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 , and in this regard the Judge in that matter even posed a question about looking at what a compliant development would look like. Whilst it is not necessary to have a design in front of one, I have gone through the process of looking at what a compliant development would also be for the subject site in terms of the parameters or controls and envelope provided in the LEP. 21The applicant provided a SEPP 1 objection, which became exhibit H in the proceedings, and exhibit H sets out the purpose of the standard and why in the circumstances of this case, the standard is not necessary to comply with and why the SEPP 1 objection is well founded. The provisions of SEPP 1 in cl 3 states: This policy provided flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would in any particular case be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Act as set out in 5A(1) and (2). 22The objects are the proper management of land and for the purposes of promoting social and economic welfare of the community and a better environment and subcl (2) the promotion and coordination of the orderly and economic use and development of land. I must have regard to these in terms of whether I consider in the circumstances of this case there should be flexibility provided in the development standard. 23The circumstances of this case are that the proposed development, when assessed against the purpose of the standard, must provide for the environmental amenity and aesthetic character of the area, having regard to limiting the size, scale and site coverage. It is noted that the proposed development, whilst non-complying in terms of the FSR, and that is where I must direct my focus in this assessment, SEPP 1 is compliant in terms of the other provisions of the LEP and the plans clearly depict that the development or the proposed development is well below the height limits of 10 and 12 m articulated in the relevant cl 20G. 24Having said this, at the same time, it is this particular standard for the FSR that I must look at having regard to the circumstances and context. In this regard it is a timely reminder in terms of a recent Court of Appeal judgment of Botany Bay City Council v Ralansaab Corporation Pty Limited (2011) NSWCA COA at 308 of 28 June 2011 where we are reminded in terms of secondary legislation, and an LEP an instrument under the Environmental Planning and Assessment Act . Here it is stated that at para 74, " The following statement of Cripps in Hightower Investments v Lake Macquarie Municipal Council, was adopted in the Westfields Management Limited v Perpetual Trustee Company of 2006, namely: When interpreting delegated legislation the Court ought to be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of parliament and if the language is capable of more than one interpretation a court ought discard the more natural meaning if it leads to an unreasonable result and adopt that interpretation which leads to a reasonably practical result. 25In saying this, I am merely pointing out the importance of having regard to the context of the provisions and the purpose for the floor space ratio provision must be considered in its context having regard to the LEP and the specific purpose as articulated there. 26The applicant is of the opinion that the proposed development satisfies the environmental amenity and the aesthetic character of the area. The respondent is of the opinion that the proposed development is excessive and that if floor space was taken out of the building it would have less environmental amenity impacts on adjoining properties and as such the development should be "shrunk". Mr Turrisi for the respondent indicated that there should be a setback to the northern boundary and there should be a greater splay to provide for an increased view from unit 5 in the adjoining building. He also considered that the rear setback should be reduced and that the southern side setback should be increased as well. 27The proposed development before the Court in terms of its bulk and size satisfies the purpose of the floor space ratio control to limit size, scale and site coverage - I am satisfied that the objection is well founded as shown in exhibit H and with the benefit of the expert opinion in these proceedings the proposed development with a floor space ratio of 1.182:1 in my assessment will not result in unreasonable environmental amenity impacts and it will not be of an aesthetic character and contrary to the purpose of the floor space ratio provision having regard to the size, scale and site coverage that the provision or the standard goes to. The development is excavated at the rear and the ground floor at the rear is approximately one floor below the ground such that the visible floor space is less than what the FSR indicates and in this regard this reduces the impacts on adjoining properties, in particular, to the rear and in particular the property to the south, No 4, such that the proposed development provides for an appropriate aesthetic character for the area and also protects the amenity of the adjoining property at No 4 by allowing a skilful design that provides for view sharing. 28The proposed development satisfies the purpose of the standard and is worthy of upholding the SEPP 1 objection in the circumstances of this case. That is, having regard to its juxtaposition with adjoining development, having regard to the site location, having regard to the character of the area, the proposed development is appropriate and the standard is unreasonable and unnecessary and would tend to hinder the attainment of the objects of the Act. In my SEPP 1 assessment I must also have regard to the making of applications, that is cl 6, that is supported by a written objection as to why it is unreasonable and unnecessary and in this regard, the reasons articulated in exhibit H satisfy me that the compliance is unreasonable and unnecessary in the circumstances of this case. 29The design of the building has had regard to and has been informed by a site analysis and has regard to the surrounding buildings. It recognises the character and aesthetics of the area surrounding and the need for this building to be of a height that is lower and one that sits in the landscape and it will be one that provides for an appropriate fit in the context of surrounding development. It does not seek to maximise the height and in my opinion, having regard to the question of would a compliant development, that is in terms of FSR, be one that is appropriate, a compliant development subject to the regime of controls, would not produce a building that is necessarily appropriate and I am satisfied that there has been consideration in terms of both the environmental amenity and the aesthetic character of the area in the size, scale and site coverage that is proposed in the application now before the Court. 30In this regard in terms of cl 7 of SEPP 1, I must be satisfied the objection is well founded and that the granting of the development consent is consistent with this policy as set out in cl 3 which I stated earlier and I am satisfied that it does and that the purpose of the standard is satisfied by the proposed development and the SEPP 1 objection in the circumstances of this case should be upheld. 31In terms of cl 8, concurrence, Wehbe reminds us that the Court must also have regard or the consent authority must also have regard to whether non-compliance with the development standard raises any matter of significance with State or regional environmental planning. I am satisfied the proposed development does not raise any issues for state or regional environmental planning. It is one that is appropriate in the context, having regard to the purpose of the standard. 32In terms of 8(b), the public benefit of maintaining the planning controls adopted by the environmental planning instrument, I am satisfied once again that the public benefit is not impacted by a variation in the circumstances of this case. 33I say at this point in my judgment that I now move to the merits assessment of the application, which requires me to look at not just the LEP but the development control plan and its provisions and also having regard to s 79C of the Act. In this regard, I am satisfied that the proposed development is appropriate and the site is suitable for the proposed development. 34I note at this point that the Court also heard or had the benefit of expert evidence and Mr Gerard Turrisi, consultant town planner, gave evidence on behalf of the council and Mr Tony Moody, consultant planner, gave evidence on behalf of the applicant. They provided the Court with a joint report and the joint report is comprehensive and detailed, in terms of looking at solar impact and also view impact as required by the development control plan. There has been a careful analysis with respect to solar access and the applicant further amended the plans as shown in exhibit N such that there would be compliance with solar access for the building at No 4. 35I will go to the development control plan and we are reminded by the need to provide central focus to the development control plan and its provisions as the Court of Appeal authority in Botany Bay City Council v Premier Customs Services Pty Limited [2009] NSWCA 226 where the guidelines within a development control plan are central to consideration and it is not a matter for the consent authority substituting its own standards. In this regard, I have carefully considered the development control plan for multi-unit housing and I have carried out an assessment of the application in this regard. 36The authority of Zhang v Canterbury City Council [2001] NSWCA 167 another Court of Appeal judgment, also requires central consideration. This important authority states the need for central consideration of the DCP provisions, however they are discretionary and not mandatory as such. 37I also note the reference in the LEP of Randwick to the development control plan. In terms of the development control plan, it is important to understand the framework of the development control plan and it relies on performance requirements and these are design based measures which the design and construction review development are expected to achieve. The performance-based approach allows for greater innovation in building design and construction while ensuring Council's objectives are achieved. The preferred solutions, the DCP notes, are not compulsory standards and their achievement will be taken to satisfy the corresponding performance requirements and the relevant DCP objectives. 38The controls in the DCP discussed during the proceedings relate to the desired future character: to ensure the design of multi-unit housing is sensitive to the topographic landscaping environmental conditions of the area, ensure that the appearance of multi-unit housing is of a high visual quality, enhances the streetscape and is visually compatible with the identified desired future character of the area. 39It is noted that in the local context multi-unit development should encourage development to broadly continue the patterns and forms, which help retain existing themes and characters of the locality, design of buildings and their relationship to the local context is an extension of the site planning process. It is also noted that there are desired future character and the subject site fits into three categories 5, 6 and 7 but mixed is probably the most appropriate category and there are guidelines provided within the DCP. 40In terms of the character of the area, I am satisfied that the proposed design has had regard to the character of the area. The character of the area has a number of large residential flat buildings. The proposed development will not seek to overwhelm any building within the area, in fact it sits well into the site and is an appropriate architectural expression for what is a prominent site and in terms of the aesthetics of the area it will make a positive contribution. In this regard, I note the comments of the Design Review Panel, who have supported the application through the process, in particular the nil setback to the northern boundary and I also note the assessment of the council officers and I also agree with their comments that the proposed design of the building allowing for a splay or an angle at the front which affords greater solar access and also a view corridor is appropriate in the circumstances of this case. 41The other controls that I must touch upon in terms of giving focus to the DCP are the building setbacks. The building setbacks are to reduce the impact of development on adjoining land and ensure adequate separation between buildings for landscaping, visual and acoustic privacy, sunlight penetration and private open space and for development with desirable characteristics of the established streetscape. In terms of the side boundary setbacks, there are a number of objectives: adequate separation between buildings; reasonable levels of privacy; and opportunities for landscaping. 42The design and the siting of the proposal in my assessment with the splays to the northern boundary provides for a building that is minimised in terms of its length, for the residential flat building to the south and is appropriate in terms of its design. The small portion of non-compliance is one that is appropriate in the circumstances of this case having regard to the additional benefits provided to No 4 in terms of the angle or splay of the building footprint. 43I need to touch on the rear boundary setback, which also provides for an averaging of an 8 m setback and no part greater than 6 m. There is a non-compliance in terms of the rear boundary setback, one portion of the building on its northern end is some 3.6 m from the rear boundary. However, once again there is the opportunity of providing much greater landscaping by the courtyard provided and the boundary plantings on the southern boundary of the subject site. In the circumstances of this case and with the design as shown which provides for greater amenity benefits to the residential flat building at No 4 than a traditionally rectangular block I consider that the variation to the setbacks is appropriate and desirable in the circumstances of this case having regard to the greater amenity that is afforded by the design as shown in the plans. 44Once again, in terms of density, the objective is to control the bulk, scale and size of development to reflect the desired future character of the area and the desired future character as I stated is to ensure also that it is consistent with the area and I am satisfied the proposed development in terms of its density is appropriate in the location of this building and its context. The performance requirement is that the building bulk is compatible with the surrounding built forms and minimises the impact of building bulk on nearby buildings, open spaces and the streetscape. 45The controls for view sharing, was only raised at the end of the proceedings. Nonetheless, I have looked at this provision, cl 4.3 " to minimise the obstruction of views by a new development for adjoining buildings and public places ". Once again, a common sense interpretation must be taken to this provision in terms of the context and in terms of the development potential of sites having regard to a holistic reading of council's planning regime. 46The concept of view sharing is one that is common to us all but it is not a provision which means that views will be completely preserved as in maintained as they are, and it is unrealistic for objectors to consider that what they have had in terms of borrowed amenity, as submitted on behalf of the applicant, is something that should endure. The role of the Court is to assess whether the impacts are reasonable. I understand when residents have had the benefit of greater amenity than their own site may provide for then they will not embrace change but at the same time, as I stated, the Court's role is to look at whether the impacts are reasonable or unreasonable having regard to the suite of controls. In this regard, I consider the proposed development has carefully considered the amenity of the adjoining property at No 4 and it is of a skilful design. 47I agree with Mr Moody, the layout of the building is such that with living areas in the middle of the block as such it is very difficult to maintain solar access given the orientation of the east-west subdivision and this proposed development has considered the solar access to provide reasonable access to sunlight. That does not mean there will not be any impacts. 48Similarly, in terms of the view sharing concept of the DCP, the design and location of the building has had regard to the surrounding development, in particular No 4. The proposed development does not impact on other developments within the area in my assessment and I agree with by the planners. It is a relatively low building in comparison as to what one may expect on a block with 12 and 10 m for height and wall height. 49In terms of buildings and dwellings being aligned to maximise view corridors between buildings, the splay will provide an appropriate glimpse of the water from the living area of unit 5 and in this regard I consider that the proposal is a skilful design. One must not lose sight of the fact that in an assessment of views one has regard to the total view gained from the subject property and the view retained from No 5 there is an uninterrupted view of the ocean to the east and partly to the north from the sunroom that will not be impacted. I recognise the sunroom is small nonetheless it is where spectacular views are gained and I must have regard to this in an assessment of view impact. It would be unreasonable, unrealistic, for the Court not to allow the proposed development on the basis that it does not provide for the same views and the same solar access that is currently enjoyed by No 4. 50As I stated, view sharing is a concept about being reasonable in terms of the context of controls and the development potential of other sites, and it is not one that should be used to refuse developments that are appropriate in their context and seek to skilfully provide solar access and views even though reduced as the proposal does before the Court has. 51The other provisions are solar access and energy and as I stated this has been carefully assessed by the experts and carefully accessed by the Court, in terms of not only the northern orientation of No 4 but also having regard to once again the total solar sunlight received by each of the units in terms of the eastern and the western facades of those buildings. Yes, there will be change but once again the design of this building provides for a reasonable solar access to the building at No 4. 52The provision to have regard to solar access in design and orientation of buildings and landscaping. Once again this has been considered in the landscape plan provided to the Court and the approach to the construction of the DCP guidelines, as stated in the Court of Appeal judgment that I have referred to is that, " there should be a modicum of commonsense in respect of controls " and in my assessment where a DCP says " preserve views " or " preserve sunlight " one must read that in the proper context of what development is permissible. 53For the other provisions there is generally no dispute between the parties. At the end of the day the joint position of the experts, that is Mr Moody and Mr Turrisi, is that the proposal does not create unreasonable impacts although Mr Turrisi did not agree in terms of unit 5 at 4 Wolseley Road. He was of the opinion that there should be a reduction in the floor space and a greater splaying to provide for a wider view corridor. I am satisfied that the design is one that is skilful, it has architectural merit and the environmental impacts in terms of the amenity for adjoining properties is reasonably maintained and furthermore the aesthetics and character of the area is also maintained and as such the proposal is one that warrants approval. 54The parties have agreed to the amended conditions that have been tendered today and the approval is based on the amended plans that have been forthcoming and the amended landscape plan. 55The landscaping plan has been amended and that has become the new exhibit O and that is also the subject of the Court's approval. I am satisfied with the landscaping strip that has now been provided to the driveway, the architecture of the building is appropriate in its juxtaposition with the right of carriageway and the open space to the north of the subject site, and I accept the urban design panel's comments in this regard that it provides for an appropriate juxtaposition. 56Accordingly, based on my assessment above, the formal orders of the Court are: (1)The appeal in respect of the property known as 2 Wolseley Road, Coogee, is upheld. (2)The State Environmental Planning Policy No 1 objection to vary the floor space ratio contained in Randwick Local Environmental Plan clause 20F is allowed. (3)The development application for three residential apartments and basement parking for six vehicles is granted approval subject to the conditions in annexure A. (4)The exhibits may be returned to the parties with the exception of exhibit 5, exhibit 2, exhibit N, O and the rest may be returned to the parties, however, I will hang on to the exhibits except for the finishes and materials board until the judgment is published. J S Murrell 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: 05 December 2011
Davies
Randwick Council