COMMISSIONER: On 5 July 2013, development application no DA/761/2012 for alterations and additions to an existing dwelling house was determined by the grant of consent at 81 Denning Street, South Coogee.
Subsequently, an application to modify the consent, DA/761/2012/A, was lodged to seek consent for the addition of a roof terrace, internal changes and addition of a window. The modification application was deemed refused, and an appeal to the Court resulted in agreement under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 19 June 2014.
A further modification application, DA/761/2021/B, to modify the consent to permit the reconstruction of existing walls on the southern side of the dwelling, in the same location, was approved on 11 July 2014.
On 13 May 2021, a further application to modify the consent, DA/761/2012/C, was approved by the Randwick Local Planning Panel (the Panel). The modification application sought provision of an accessible pathway, modifications to the lobby and stair, addition of a new lift, internal reconfiguration, changes to windows and doors and associated works.
In determining the modification application, the Panel imposed condition 2A in the following terms:
"Condition 2A. The upper portion of the lift core and new roof above the existing dwelling shall be deleted. The height of the lift core including the associated lobby area shall not exceed RL56.19. Details of compliance are to be submitted to and approved by Council's Manager Development Assessment prior to the issue of Construction Certificate."
On 4 April 2022, a further modification application, DA/761/2021/D (the modification application), was lodged seeking that Condition 2A be deleted.
On 14 July 2022, the Panel determined to refuse the modification application.
On 9 August 2022, the Applicant in these proceedings, Mr Douroudis, filed an appeal in Class 1 of the Court's jurisdiction, under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).
On 15 November 2022, the Court, exercising its functions under s 39(2) of the LEC Act, being the function of Randwick City Council as the relevant consent authority under cl 113(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), agreed to the Applicant amending the development application by architectural plans prepared by Studio Johnson.
In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the LEC Act on 16 November 2022, which commenced with an onsite view after which the conciliation conference, at which I presided, continued on site.
At the conciliation conference, the parties reached in principle agreement as to the matters in contention, subject to the provision of further detail that necessitated the amending of plans and other documents, for which I granted an adjournment.
The following day, the Applicant provided the Respondent and the Court with amended plans, an updated BASIX certificate, and a draft agreement in accordance with s 34 of the LEC Act.
However, the Respondent advised the Court the following day that the agreement reached at [11] was no longer sustained. The parties advised that they consented to the Commissioner terminating the conciliation conference and disposing of the matter on the basis of what has occurred at the conciliation conference, pursuant to s 34AA(2)(b)(ii) of the LEC Act.
The Court directed the Respondent to provide a written statement of contentions that remain in the matter, and for the Applicant to prepare a short written submission in response to the Respondent's statement.
The parties complied with the Court's directions and the parties filed an agreement that I dispose of the matter in accordance with s 34AA(2)(b)(ii) of the LEC Act.
Accordingly, I terminated the proceedings and now provide my determination on the basis of discussions, and documents produced in the course of the conciliation conference held between the parties.
[2]
The site and its context
The site is legally described as Lot A in Deposited Plan 358843, having an area of 373.4m2.
The site is located on the eastern side of Denning Street and to the south of the three-way intersection with Cuzco Street and Malabar Road.
The site is currently occupied by an existing part two and three storey detached dwelling house with a swimming pool at the rear of the site and a rooftop terrace. A driveway in the north western corner of the site provides access to semi-basement level double garage.
The adjoining properties at 79 Denning Street, to the north, and 83 Denning Street to the south display similar characteristics, in their built form as the subject site.
Existing development in the area is predominantly dwelling houses of 2 to 3 storeys in height, oriented towards the distant view of the Pacific Ocean to the east, as well as local features such as Wedding Cake Island and Shark Point to the north, and Malabar headland in the distant south.
[3]
The onsite view and public submissions
The proceedings commenced onsite, during which the Court, in the company of the legal representatives and experts, heard an oral submission from the owner of No 202 Malabar Road, which is a 3 to 4 storey property located to the west of the subject site. The submission described the chronology of development on the site, and the view impact likely to be imposed should the appeal be upheld.
In order to understand the precise nature of the view impact asserted by the submitter from No 202 Malabar Road, the Applicant sought access to the submitters property but this was declined.
The owner of a neighbouring property in Cuzco Street who spoke in broad support of the submitter at No 202 Malabar Road.
The Court was taken by the parties to the western side of Malabar Road, and to a location on the site of St Pauls Anglican Church on Nymboida Street from which the location and approximate view enjoyed from No 202 Malabar Road was agreed.
The Court was also taken into Cuzco Street where the wall height of existing dwellings was noted.
Finally, the Court was taken on to the subject site. Most relevantly, the Court was taken to the existing roof terrace from which vantage point certain properties were identified, such as No 202 Malabar Road.
[4]
The remaining contentions
Consistent with the Court's direction at [14], the Respondent provided the statement, which is re-produced in full:
"The amended proposal remain inconsistent with the relevant objectives of the R2 - Low Density Residential zone under the RLEP 2012. The glazed lift area including the enclosed lobby area will remain as a bulky element when viewed from the public domain and neighbouring properties. The proposed design does not integrate with the overall design of the existing built form and will disrupt the existing character of the streetscape in the immediate locality.
The amended proposal remain non-complying with the FSR standard and will result in excessive visual bulk and incompatible with the size and scale of the development in the immediate locality.
The amended proposal remain inconsistent with the design quality principles under Section 2.1 of the RDCP 2013 in terms of scale, built form, amenity and aesthetic.
The amended proposal remain non-complying with the external wall height control in Section 3.2 of the RDCP 2013 and will result in adverse visual impact to the streetscape and neighbouring properties.
The amended proposal remain non-complying with the side setback control in Section 3.3 of the RDCP 2013 and will exacerbate the amenity impacts for neighbouring properties in terms of visual bulk and remain inconsistent with the streetscape character.
The amended proposal remain non-complying with the relevant controls in Section 4.4 of the RDCP 2013 in relation to roof design and features. The amended proposal has not been integrated with the existing roof form and the glazed lift area including the enclosed lobby area will contribute additional visual impact to neighbouring properties.
The amended proposal will create privacy concern and is inconsistent with the provision in Section 5.3 of the RDCP 2013."
I note here that the Applicant relies upon the contribution of its town planning expert, Mr Anthony Betros.
Together, Mr Betros and Mr Ferdinando Macri, town planning expert for the Respondent, conferred in the preparation of a joint expert report filed with the Court on 7 November 2022.
On the basis of the contentions set out at [28], the contribution of the experts in the joint expert report, and the amended plans at [12], I find the appeal should be upheld for reasons I will now set out. In arriving at my finding, I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application.
[5]
Whether the development to which the consent as modified relates is substantially the same development
As the appeal is made pursuant to s 4.55 of the EPA Act, I must be satisfied 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, in accordance with subcl (2)(a).
I have considered the amendments made by the Applicant at [12] that limit the extent of the modification to the extension of an elevator for which consent has been granted, in part, and a glazed annex providing access to a roof terrace that is also the subject of prior consent.
More generally, the proposed use, overall height and general envelope of the dwelling house remains that for which consent has previously been granted, as does the density and intensity of the development, including the retention of the number and precise layout of rooms, balconies and other spaces within the dwelling.
Although minor changes in the gross floor area and the external wall height are also proposed, I am satisfied, on the basis of a qualitative and quantitative comparison, 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.
I note here that the development, as modified, proposes to add a further 5.12m2 of gross floor area on the site, resulting in a total GFA of 329.93m2, in circumstances where the permissible GFA is 280.05m2. The floor space ratio permitted on the site by cl 4.4 of the Randwick Local Environmental Plan 2012 (RLEP) is exceeded.
However, for the reasons shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], s 4.55(2) is a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the RLEP does not apply to modification applications.
[6]
The amended proposal is inconsistent with the relevant objectives of the R2 - Low Density Residential zone under the RLEP.
The site is located within the R2 Low Density Residential zone according to the RLEP in which dwelling house development is permitted with consent, where consistent with the following relevant objectives for development in the R2 zone:
• To provide for the housing needs of the community within a low density residential environment.
…
• 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.
• To protect the amenity of residents.
• To encourage housing affordability.
…
According to Mr Betros' contribution to the joint report, the streetscape remains characterised by 2-3 storey dwellings, with which the development is consistent. To the extent that a vertical extension to the elevator is proposed, that would be viewed in context as a minor and narrow projection, and one that is below the maximum height of the existing dwelling, is set well back from the street, and is lightweight in form.
I note that the amended plans remove the enclosure connecting the elevator and the glazed annex with the primary roof form of the dwelling (the lateral connection). As a consequence, this also removes the exceedance of the height standard under cl 4.3 of the RLEP proposed in the modification prior to the amended plans. So understood, I accept Mr Betros' argument that the extension is a minor and narrow projection that is not incompatible with the existing streetscape. Furthermore, the removal of the lateral connection resolves Mr Macri's concerns, in my view, that the projection could be understood to be a fourth storey.
On the basis of the Elevational shadow studies prepared by Studio Johnston on behalf of the Applicant, I consider the impact of the additional built form on overshadowing to No 83 Denning Street to be acceptable. I note that fleeting additional shadow impacts a bathroom and ensuite between 1pm-3pm in mid winter, however this is additional to existing overshadowing that predominates by virtue of the existing dwelling being located to the north of the southern neighbour at No 83 Denning Street. This answers Mr Macri's concern, in my view, as to solar access between east-west oriented allotments.
I also note here that Mr Macri's concerns at the accuracy and adequacy of shadow studies have been validated by the Applicant who accepts that prior shadow studies contained inaccuracies that are now cured by the provision of new studies in the amended plans.
Finally, at p 14 of the joint report, Mr Macri considers the proposed modification will result in adverse visual impact to water views from properties to the west of the site, on Malabar Road and in Nymboida Street. On the basis of the onsite view, and after regard is had to images annexed to public submissions, I consider any impact arising from the narrow projection of the elevator and annex to be minor. The projection presents to the west as a glazed form with a dimension of around 1500mm in width.
When the scale of such a projection is considered in the context of a generally expansive view that appears to be enjoyed from a number of properties to the west of Malabar Road, provided by the wide road reserve in Cuzco Street, and the occluding role played by existing vegetation in the public reserve directly opposite the site, I find the potential impact on views to be minor or negligible.
For these reasons, I find the modification application to be consistent with the objectives of the R2 zone.
[7]
The amended proposal is inconsistent with the design quality principles under Section 2.1 of the RDCP 2013
Ten design quality principles are found at Section 2.1 of the Randwick Development Control Plan 2013 (RDCP).
The chapeau to the principles is as follows:
Ten design quality principles below are derived from SEPP 65: Design Quality of Residential Flat Buildings. They provide a guide to achieving good design, and the means of evaluating the merit of proposed solutions. All DA's required by RLEP to demonstrate design excellence (in addition to DAs covered by SEPP 65) must address these principles, as outlined in Clause 4: Additional requirements for certain development.
The design excellence provisions in the RLEP are at cl 6.11, and relevantly provide.
(2) This clause applies to development involving the construction of a new building or external alterations to an existing building -
(a) on a site that has an area of 10,000 square metres or greater, or
(b) on land for which a development control plan is required to be prepared under clause 6.12, or
(c) that is, or will be, at least 15 metres in height.
As the site is patently not 10,000m2 or greater, is not on land for which a development control plan is required under cl 6.12 of the RLEP, and is less than 15m in height, the self-evident upshot is that the development the subject of the modification application is not of a kind required to demonstrate design excellence, and so it follows that the principles at Section 2.1 are not required to be addressed.
[8]
The amended proposal does not comply with the external wall height control in Section 3.2 of the RDCP 2013
Section 3.2 of the RDCP relevantly provides:
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.
…
(iii) An alternative design that variates from the above external wall height controls may be acceptable having regard to the following consideration:
- Site topography
- Site orientation
- Allotment configuration
- Allotment dimensions
- Potential impacts on the visual amenity, solar access, privacy and views of the adjoining properties
The wall height provision is explained at Section 3.2 of RDCP as follows:
"Building height is a major factor affecting the visual mass of a development and the degree of overshadowing on the neighbouring properties…"
Wall height is defined as follows:
"Wall height" is the vertical distance as measured from the ground level (existing) to the topmost point of an external wall. The topmost point of an external wall is taken to be the underside of the eaves or the highest point of a parapet, and excludes gable ends and clerestory windows. For skillion or butterfly roofs, the highest point of the external wall is measured to the underside of the eave of the lower end of the roof. For dormer windows that protrude horizontally from the roof by 2m or more, external wall height is measured to the underside of the dormer eaves."
During the onsite view, the Applicant identified a number of buildings in the area that appear to exceed the wall height control in the RDCP, including the southern neighbour at No 83 Denning Street, and development for which consent was granted at No 79 Denning Street with a wall height of 10.38m.
While Mr Macri advances the opinion that view loss and unacceptable overshadowing will result from a breach of the wall height control, for the reasons set out at [41]-[44], I do not.
As stated at [40], the amended plans remove the lateral connection. The result of this, in my view, is that the solid structure of concern to Mr Macri will no longer be perceived from Cuzco Street. I also consider that as the projection steps in 100mm, and is a simple glazed construction it is akin to a clerestory window excluded from the definition of wall height.
[9]
The amended proposal does not comply with the side setback control in Section 3.3 of the RDCP 2013
The Respondent contends that a side setback control of 1.8m applies to the proposed extension to the elevator enclosure and glazed annex.
The amended plans now show a side setback of 1000mm to the elevator enclosure and the annex.
According to the Respondent, the non-conformance results in an unreasonable sense of enclosure and inappropriate separation to neighbouring properties, and adversely impacts solar access.
During the onsite view, the Court's attention was drawn to the north facing windows on No 83 Denning Street that are translucent glass. On this basis, it cannot be seriously contended that a sense of enclosure would be perceived from within the property at No 83 Denning Street. As for the separation between neighbouring properties, I note the setback of the projection the subject of this appeal is greater than the setback evident on the site currently and, by virtue of the elevation at which it occurs, is unlikely to have an impact on how the separation between Nos 81 and 83 Denning Street is perceived.
[10]
The amended proposal does not comply with the relevant controls in Section 4.4 of the RDCP 2013 in relation to roof design and features
Section 4.4 of the RDCP is in the following relevant terms:
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)
…
In the joint report, Mr Macri states that the roof enclosure fails to integrate with the existing pitched roof by proposing a 'pop up' element that is unsympathetic when viewed in context with the Denning Street streetscape.
On the basis of the amended plans which remove the lateral connection, and provides access via an unroofed, external ramp wholly concealed within the existing pitched roof form, I can only conclude that the integrity of the roof form is retained.
[11]
The amended proposal will create privacy concern and is inconsistent with the provision in Section 5.3 of the RDCP 2013.
While the nature of the concern as to privacy is not particularised in the statement at [28], the Development Application Report contained in the Respondent's bundle summarises the concerns arising from the glass lift areas and rooftop enclosure, and provides the following comment:
"The lift shaft and lift proper are all transient areas and not "habitable" spaces as defined. The lift and stairways are not occupied for any great amount of time and are not used for long term occupation being strictly and clearly access areas. Further, the proposed stairwell and ramp access was approved under the previous modification and the proposed amendments would not substantially alter the sight lines from this portion of the dwelling Therefore, overlooking and privacy impacts will be at the minimum in this part of the building."
I concur with the comment made in the Development Application Report. Furthermore, with the deletion of the lateral connection, movement in the north south direction is now changed to be external, after which the path of travel is in the east/west direction, away from neighbouring properties. The property most likely to experience privacy impacts, being No 83 Denning Street, presents translucent windows to the subject site preventing overlooking.
[12]
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
I am satisfied that the application is accompanied by a BASIX certificate (Certificate No A480611_02 dated 16 November 2022), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.
[13]
Conclusion
I have considered both written and oral submissions made concerning the proposed modification in accordance with s 4.55(2)(d) of the EPA Act. For the reasons set out above, I find the proposed modification will present a minor projection within the streetscape, with no unreasonable view impacts arising.
For completeness, I note that the site is located within the Foreshore Scenic Protection zone, according to the relevant map at cl 6.7(2) of the RLEP. In accordance with subcl (3), I am satisfied that the development to which the modification application relates is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas, and, in so doing, contributes to the scenic quality of the coastal foreshore. In forming this opinion of satisfaction, I note the existing roof form and existing side setbacks are retained, and I accept the consensus of the planning experts, at p4 of the joint report, that the dwelling will not be visible from the foreshore areas including and adjacent to the coastal walkway.
[14]
Orders
The Court orders that:
1. The Applicant is granted leave to rely on the following amended plans:
Plan No. Description Rev
A-101 Site Plan J
A-202 First Floor Plan J
A-203 Roof Plan J
A-300 South Elevation J
A-301 West Elevation J
A-302 East Elevation J
A-303 North Elevation J
A-306 Section CC J
[15]
all prepared by Studio Johnston and dated 17 November 2022.
1. The appeal is upheld.
2. Development Consent No. DA/761/2012 is modified in the terms in Annexure A.
3. Development Consent No. DA/761/2012/D as modified by the Court is Annexure B.
T Horton
Commissioner of the Court
[16]
234385.22 (Annexure A)
234385.22 (Annexure B)
[17]
Amendments
23 November 2022 - Updated Respondent Counsel
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: 23 November 2022