George Antiniou v Bayside Council

The statutory context

1. The site is zoned R3 Medium Density Residential under the Rockdale Local Environmental Plan 2011 (the LEP) and the proposed development is permissible with consent in that zone. The LEP contains objectives for development within the R3 zone.
2. Surrounding and adjoining land to the north, west and south is also zoned R3. Land to the east, on the opposite side of Crawford Road, is zoned R4 High Density Residential.
3. Under the provisions of the LEP, in the R3 zone applicable to the site, the maximum FSR permissible is 0.6:1 and the height, 8.5m.
4. Development is also subject to the provisions of the Rockdale Development Control Plan 2011 (the DCP). Various controls under the DCP apply including a maximum two storey height limit for low and medium density residential development (in Part 5.1).

The site and surrounds

1. The site is located on the south western corner of Kurnell Street and Crawford Road. It is relatively flat, rectangular in nature and has an area of 827.7m² with a frontage of 20.1m to Kurnell Street and 41.1m to Crawford Road.
2. The site contains a two storey dwelling approved and built in the 1970's. In the same decade, the pitched roof was replaced with a flat roof and rooftop terrace with enclosed stair access provided to the terrace at the third level. The Council contended the building's size and corner location, along with its flat roof and roof terrace, made it prominent and anomalous in the streetscape (see following image): The site viewed from the corner of Crawford Road and Kurnell Street
3. The locality varies in character. To the west, along Kurnell Street, there are predominantly single storey detached dwellings with more recent development at two storeys including the adjoining house at 4 Kurnell Street and a townhouse development at 12 Kurnell Street. Little other redevelopment of existing housing stock has occurred in this area. Similarly, housing stock in Crawford Road to the north on the western side in the R3 zone is predominately single storey post war residential dwellings with pitched roofs. Immediately opposite the site to the north is a single storey detached dwelling fronting Crawford Road.
4. The adjacent property to the south at the rear is a two storey older style RFB which the Council advised likely enjoys existing use rights as it is otherwise not permissible within the R3 zone. To the east, including to the north east, on the eastern (or opposite) side of Crawford Road are numerous older style RFBs of three to four storeys with predominantly pitched roofs. These are located within the R4 zone. Older style RFBs are also located fronting Kings Road to the south east of Crawford Road. West of Crawford Road, housing stock is generally single storey post war dwellings also predominantly with pitched roofs. There is a former corner shop with a flat roof converted to a dwelling on the corner of Crawford and Kings Road south of the site.

Neighbour's concerns

1. At the commencement of the hearing, the Court viewed the site and surrounds and heard from the adjoining neighbour to the west at 4 Kurnell Street, Mr McGarvie. The McGarvies had prepared a written objection to the modification application.
2. In their submission, the McGarvies raised concerns with what they considered to be a major expansion of the existing proposal which appeared to be a residential area on the rooftop. They argued that the area was zoned for two storey buildings and allowing a third storey would set a bad precedent. Further, that there would be adverse impacts on their privacy as, from the north west area of the rooftop, it would be easy to look directly onto their balcony and into their family area and one of their children's bedrooms.
3. Onsite, Mr McGarvie also raised concern with the outlook from their dwelling given the close proximity of the third storey to their upper level living areas.
4. The McGarvies' major concern however, explained onsite, was that the storage area would significantly block out the early morning sunlight into their daughter's bedroom. Whilst overshadowing analysis indicated that the only impact from 9am would be between 9am and 9:30am, their concern was the loss of light before 9am in particular between 7am and 9am in winter and spring when their daughter was preparing for school. They advised that their house was built to a passive solar design by a specialist architect and the proposed storage area would have a detrimental effect on the passive performance of the design and on future solar panel installation.

The issues and the expert evidence

1. Whilst noting the amenity concerns of the neighbours, the Council's primary concerns were in relation to streetscape, site context and the resulting undesirable precedent likely to be established. In particular, that the height of the development would be inconsistent with the existing and future desired context and objectives of the R3 zone.
2. The Council contended that the development did not comply with objective iv) of the R3 zone under the LEP, which did not apply to the adjoining R4 zone, and which reads as follows: To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.
3. The Council also contended that the development, whilst complying with the maximum FSR in terms of numeric compliance, did not meet the objectives for the FSR standard at cl 4.4 of the LEP in particular at c) which reads To maintain an appropriate visual relationship between new development and the existing character of areas or locations, that are not undergoing or likely to undergo a substantial transformation.
4. Expert advice was provided to the Court by Ms Prodromou, planner for the Council and Ms Marshall-McClelland, architect for the applicant.

Need for additional storage

1. Ms Prodromou considered the additional storage proposed to be an intensification of the use of the site rendering previously approved storage areas redundant. The Council argued that there were no details of the demand or need for the additional storage proposed and that adequate and sufficient storage areas were approved as part of the original approval.
2. It was noted that cots were provided as a permanent fixture within the two cot rooms at ground level for everyday use and that bed stores and generous storage cupboards were provided within close proximity to play rooms and were capable of accommodating standard linen associated with child care centres. Furthermore, an approved office and staff room had sufficient space for long term storage of accounts. The approval also provided a 12m² store room at roof top level.
3. Ms Marshall-McClelland argued that the additional area was required for long term storage of accounts, furniture (including additional cots and beds) and linen which took considerable space. These items could not be stored within the small storage areas approved which were the minimum required to be provided. Further, the division of the storage area into separate rooms was necessary as the walls were required for structural adequacy to allow a single span roof with a low pitch to reduce the overall height of the building. The proposed additional storage area had a minimum ceiling height of 2.1m and there was no requirement for ceiling heights for such uses in the BCA.

Neighbour and streetscape impacts

1. Ms Prodromou argued that the approved third level storage area was an existing structure enclosing the staircase and the Council had accepted minor additions at this level to allow new staircase access to the rooftop terrace and conversion of the former space for storage. In contrast the current proposal sought to significantly expand the existing 12m² store room and provide an entire third storey level in the order of 80m². She argued that the negotiated approval for the child care centre was on the basis that the applicant retain a two storey building with only a minor third storey component.
2. Ms Marshall-McClelland argued that the building is already a three storey building on an uncharacteristically large site for the area. This made it different from, but not necessarily incompatible with, the prevailing character of the area.
3. She argued that the proposal is simply to increase the storage area on the third level with no change in use of the building. As the additional area would be used for storage only, there would be no impact on parking and, as no windows would be provided which could overlook adjoining neighbours, no overlooking or privacy impacts beyond that which already occurred from the rooftop terrace. Modelling suggested that there would be no or negligible overshadowing impacts to the western neighbour at 4 Kurnell Street relative to the existing approved development in midwinter even prior to 9am.
4. In this regard, it was agreed that the amenity impacts to this neighbour, in terms of overshadowing and outlook, largely arose from the already approved development not from the proposed modification.
5. The Council contended that the DCP limited residential development in the R3 zone to two storeys. The applicant noted that these DCP provisions specifically apply to residential dwellings not to child care centres. However, Ms Prodromou referenced the DCP at Part 6.1 - Child Care Centres which seeks to ensure development for child care centres in residential zones is integrated appropriately, stating at objective G: To ensure the child care centre integrates with the character of the streetscape and local built form.
6. The Council also contended that the development was inconsistent with Part 6.1.11 Building Design of the DCP which requires the following: Child care centres must be designed in character with the existing streetscape (i.e buildings located in residential areas must maintain an appearance consistent with the nearby residential streetscape).
7. In contrast to this objective, the Council maintained that the proposed third storey storage area would result in adverse visual impacts when viewed from the public domain, being the adjoining streets, would be visually prominent and unsatisfactory in the R3 zone, and was not designed to be consistent with the streetscape.
8. The Council also referenced the written objections from other residents in the vicinity who had raised concerns with the impact of the proposed modification on the character of the area.
9. The Council advised the Court that the size and siting of the existing building on the site did not allow for any landscaping to either street frontage given the existing setbacks to these streets. Therefore there would be no opportunity to screen or soften with landscaping the additional third floor area now proposed.
10. The applicant argued that the development complied with the maximum height permitted by the LEP and was utilising available FSR. The extent of the third level proposed was only one third of the area of the lower levels and one sixth of the total floor area of the approved centre. Further, the roof would be lower than the adjoining roof of the dwelling at 4 Kurnell Street and the materials and finishes of the proposed storage area would be the same as the approved development thus it would appear as a recent element beyond the line of the solid timber clad balustrade.
11. Ms Marshall-McClelland also referenced a number of residential dwellings recently approved by the Council with a third storey including with flat roofs which exceeded 8.5m in height including in the low density residential zones.
12. However, Ms Prodromou claimed the examples provided related to dwellings with rooftop terraces, and the associated access to the rooftops, rather than additions of an entire third floor. Furthermore, the dwellings referenced were not in the locality of the site being in other suburbs where redevelopment was occurring, namely Kyeemagh, Monterey and Sans Souci.
13. The applicant argued that an expanded third storey would provide a transition between the R3 zone and the R4 zone opposite the site on the other side of Crawford Road as encouraged by the DCP control at Part 4.2.2. However, the Council considered that the approved partial third storey was already a sufficient transition between the two zones.
14. The applicant also argued that the proposal responded to the desired future character of the area with redevelopment likely over time given the location of the area, aged housing stock, and the permissible maximum height of 8.5m. The area was not a heritage conservation area and there was nothing preventing new flat roofed compliant development in the street and in the immediate vicinity including through complying development certificates which the Council could not prevent.
15. However, the Council disputed the interpretation of the desired future character of the area portrayed by the applicant, noting that there had been very little redevelopment in the vicinity of the site which suggested that the desired future character of the area was to retain its existing character particularly in Kurnell Street and having regard to the DCP controls which limit residential development to two storeys not to the three storeys sought by the applicant.

Alternative designs for the storage area

1. The final contention of the Council was that there were a number of alternative design options which could increase long term storage on the site, if it was required, whilst improving the development's visual presentation. In particular, a hip or pitched roof design utilising the existing roof deck as an eave overhang could house this storage whilst improving the visual presentation of the existing and approved structure having regard to its context. Such a design would address many of the issues raised by the Council, in particular it would provide a more appropriate streetscape and contextual response.
2. The applicant argued that a high pitched hipped roof form could add bulk and scale to the development and potentially increase overshadowing to the western neighbour, albeit modelling of a possible pitched roof design had not indicated this.
3. Furthermore, the building currently existed without a pitched roof and it was therefore already part of the existing streetscape and had been for some time.
4. The applicant also argued that the third storey, when viewed from eye level on the street, would appear recessed and, as the cladding material would be the same as the roof element, it would appear as part of the roof element. However, if required the proposed storage wall along the western boundary could be setback 1.5m to comply with side setback requirements.
5. The applicant was also concerned that, if an alternative pitched roof design was adopted, it would reduce the amount of area available or useable for storage given the sloping wall heights.
6. The experts agreed that the proposed storage area would be recessed from levels below to the north, west and east. However, the Council argued that it would still be located on a prominent corner in an area on the western side of Crawford Road which had an established 1-2 storey context. The Council argued it would therefore be clearly identifiable and visible as a third storey adversely impacting upon the streetscape character within the zone.

Findings

1. The main contention of the Council was that the proposed storage area was significant in size and would result in a dominant third storey on an existing visually prominent building in the streetscape in a zone and context where three storey flat roofed dwellings were not common. It would therefore have consequent adverse streetscape impacts as well as unreasonable amenity impacts on its residential neighbour to the west.
2. The site is currently developed with a building out of character with the surrounding development in the same zone and, in terms of roof form, out of character with taller RFB development in the adjacent higher density zone.
3. The Council had approved the conversion of the existing vacant yet prominent dwelling on the site for a child care centre following negotiations to agree on an acceptable form of development which did not include further third storey elements. The modification application now seeks to add an additional storage area of some 70m² resulting in a total third floor area of some 82m².
4. The proposed development, as amended, complies with the maximum height permissible under the LEP and with the FSR. However, the LEP contains objectives associated with applying these controls. In terms of FSR, this includes an objective that the FSR proposed results in development which maintains an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing or likely to undergo a substantial transformation.
5. I accept the advice of the Council's planner that the area is currently not undergoing substantial transformation. There was no evidence on the Court view of any substantial transformation. It is more difficult to ascertain if the area is likely to undergo substantial transformation. Whilst the zone and controls limit the number of storeys to two, the maximum height permissible of 8.5m permits at least the single storey dwellings to be redeveloped or extended and the design of any such new development is unknown.
6. However, it is the case that the existing streetscape in terms of Kurnell Street and surrounding streets in the same zone as the site comprises overwhelmingly single storey dwellings with pitched roofs. The dwelling on the appeal site and a converted former shop were the only buildings in the locality referenced by the applicant as having a different roof form. Furthermore, the only dwellings in the R3 zone in the area with a third storey element referenced by the parties is the existing dwelling on the site which was accordingly acknowledged as being anomalous albeit existing within the streetscape.
7. Whilst the Council had accepted the existence of the existing anomalous building in the streetscape and had supported its reuse for a child care centre, this did not mean that the Council supported exacerbation of the anomaly in the manner proposed.
8. Based on my view of the site and surrounds, and given the history of the approval of the child care centre on this site and the controls which apply, I find no basis for approving the modification to the development now sought.
9. Firstly, to approve the modification suggests the development should not have been approved in the first instance at the capacity proposed, being the maximum size for a child care centre in the zone, if there was considered by the applicant to be inadequate storage for the centre to operate.
10. Secondly, the evidence provided by the Council in terms of the Council report on the original application and the conditions imposed on the approval make it clear approval to the child care centre was only on the basis that there are no additional third storey elements.
11. Thirdly, whilst the concern that the proposed additional floor space would be used as a dwelling was not pressed by the Council with the applicant's offer to remove the bathroom and kitchenette, the proposed storage area was not proposed to be reduced with the deletion of these elements. Instead, the areas formerly allocated to these uses were simply to be added to the 'required' storage area. I was not satisfied that there was sufficient justification for the extent and design of the storage area proposed even without the additional areas previously allocated to a bathroom and kitchenette.
12. Given the proposed storage area would result in a not insignificant additional third storey element further increasing the visual prominence of an already uncharacteristic built form element in the streetscape, there would need to be sound basis for its approval. I do not find such a basis exists.
13. The modification proposed does not meet key objectives under the LEP and DCP in terms of maintaining an appropriate visual relationship with the existing character of an area (which does not, on the evidence, appear to be undergoing or likely to undergo transformation). It also does not minimise the impact on the character and amenity of the area required for development in the zone.
14. Furthermore, I agree with the Council that, if additional storage is now required, the size of the centre should be reduced to provide this. Alternatively, designs could be explored which would potentially justify this additional floor space, bulk and scale by way of a design which improves the visual discordance of the existing building in the streetscape rather than adding to it.
15. Finally, the proposed additional floor space would have adverse impacts on the neighbour to the west in terms of outlook and overshadowing resulting from the close proximity of the third storey. It was acknowledged by both parties that these neighbours were already impacted by the approved child care centre. Whilst the overshadowing of the proposed storage area may meet the required minimum provision under the controls between 9am and 4pm in midwinter, any additional overshadowing in the early morning and any increase in the visual impact or outlook when viewed from the upper level balcony and bedrooms of 4 Kurnell Street is simply not justified in the circumstances of the case.
16. Accordingly, the modification application is refused.

Orders

1. The orders of the Court are:The appeal is dismissed; 1. The appeal is dismissed. 2. Modification Application DA-2016/426/B to an approved child care centre at 2 Kurnell Street, Brighton-Le-Sands is as approved by the Council on 15 December 2016 but to the extent that it also sought approval for additional storage, that aspect is refused; and 3. The exhibits, except Exhibits A and 4, are returned.

Jenny Smithson Commissioner of the Court

Amendments 18 January 2018 - Pursuant to UCPR 36.17, the slip rule, amend Orders of 29 August 2017 [Amendment to Order 2] 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: 18 January 2018