Keith v Randwick City Council

Land and Environment Court (NSW)|2025-01-14

JUDGMENT

COMMISSIONER: John Keith, the Applicant, (Keith) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Randwick City Council's (Council) deemed refusal of development application number 726/2023 (DA). The DA seeks development consent for a three storey dwelling house with basement, swimming pool, associated excavation and landscaping at 49 Mermaid Avenue, Maroubra.
The appeal is a residential appeal and in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act), commenced as a conciliation conference. As agreement could not be reached between the parties to resolve the issues, the conciliation conference was terminated, and the hearing commenced immediately.
As a result of joint expert reporting and discussions between the parties, the remaining issues pressed by Council were in relation to the breach to the maximum permitted floor space ratio and the scale of development.
For the reasons set out below, I find that the proposed development warrants development consent as it is consistent with the character of the area and complies with the vast majority of planning controls.

Amended Application

During the hearing, Keith sought leave to amend the DA pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Reg). Unopposed by Council, the Court granted leave pursuant to s 39 of the LEC Act (amended DA). The amendments are generally described as follows:

The site and context

The Council's amended Statement of Facts and Contentions contains a detailed description of the site and context, detailed below. 49 Mermaid Avenue, Maroubra is legally described as Lot A in DP 345283 (site). The site is 490m2 with a frontage of 13.41m to Mermaid Avenue and rear boundary to Waterside Avenue, also 13.41m as per the Survey Plan in Ex B. Consistent with what was observed on site for the adjoining properties, the site has a significant fall of around 11m from Mermaid Avenue down to Waterside Avenue. Along Waterside Avenue, there is existing vegetation and road reserve area before the roadway. Existing structures on site include a dwelling house and garage.
The site and adjoining sites obtain expansive views of the headlands, Wedding Cake Island and water views.
The proceedings commenced on site and the parties took the Court on to the site, observed the rear setback, observed the adjoining neighbours and their windows and living areas and observed dwellings along Waterside Avenue.
Development in the visual catchment is primarily low density residential dwellings. The dwellings are orientated to maximise views of the water and headlands. The site and block are zoned R2 Low Density Residential under the Randwick Local Environmental Plan 2012 (RLEP).

Key Issues

Council raised the following contentions in its Amended Statement of Facts and Contentions (SOFAC) (Ex 1) that it says warrant refusal of the application:

Contention 1 - Inconsistency with zone objectives.
Contention 2 - Excessive floor space ratio.
Contention 3 - Incompatible with the desired future character of the local area.
Contention 4 - Visual impacts to the foreshore scenic protection area.
Contention 5 - Excessive and unnecessary earthworks excavation.
Contention 6 - Site coverage.
Contention 7 - Building height (storeys).
Contention 8 - Side setbacks.
Contention 9 - Rear setbacks.
Contention 10 - Building design.
Contention 11 - Terraces.
Contention 12 - Visual privacy.
Contention 13 - Acoustic privacy.
Contention 14 - Parking facilities.
Contention 15 - Outbuilding.
Contention 16 - Swimming pool.
Contention B3 - Insufficient information in relation to privacy between the dwellings and sight lines for vehicles from Waterside Avenue.

In opening, Council confirmed that the contentions in relation to engineering, and insufficient information had been resolved.
The remaining numerous contentions can be grouped as excessive FSR and excessive size and scale of the building (including coastal impacts).

The planning framework

The parties agree that the following planning legislation, environmental planning instruments and development control plans apply or are contented to be considered for the proposed development:

Environmental Planning and Assessment Act 1979 (EPA Act).
Environmental Planning and Assessment Regulation 2021 (EPA Reg).
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP).
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH).
Randwick Local Environmental Plan 2012 (RLEP).
Randwick Development Control Plan 2013 (RDCP).

Expert Evidence

Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 4) and supplementary joint expert report (Supplementary JER) (Ex 5) by Stephen Kerr for the Applicant and William Joannides for Council. George Wei for the Applicant provided expert acoustic evidence in the Planning JER. Oral evidence was provided by the expert town planners.
Expert evidence for engineering was submitted in a joint expert report (Engineering JER) (Ex 3) by Andrew Jackman, Rhys Mikhail and Stevan Petrocco for the Applicant and John Flanigan for Council.

Calculation of FSR

Council contends that the proposed development exceeds the maximum allowable FSR. The relevant planning controls are set out below: "4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that buildings are well articulated and respond to environmental and energy needs, (c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 4.4A Exceptions to floor space ratio - Zones R2 and R3 (1) This clause applies to land in the following zones - (a) Zone R2 Low Density Residential, … (3) For a building on a lot created before the commencement of Randwick Local Environmental Plan 2012 (Amendment No 9), the maximum floor space ratio for the building used for the purposes specified in the table to this subclause is the ratio determined in accordance with the table." … Dwelling houses, semi detached dwellings in Zone R2 >450m2 and <600m2 is 0.65:1
Gross floor area is defined in the RLEP: "gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above."
Keith disputes that the amended DA breaches the FSR development standard. A clause 4.6 written request forms part of the amended DA in the event that the Applicant's submissions are not accepted.
Council submits that the following should be included in the FSR calculations: 1. Pedestrian access from the basement to the dwelling including the walkway, stairs and lift. 2. The area for car manoeuvring where it relates to front in, front out manoeuvring. It is not a requirement of the planning controls to provide front in, front out access. 3. The lift shaft on all levels.
On this basis, Council submits that the proposed FSR is 0.77:1 and exceeds the maximum of 0.65:1. Council submits that the gross floor area definition is inclusive, and that all floor area is included except where explicitly excluded in the gross floor area (GFA) definition in the RLEP.
Mr Joannides, town planning expert for Council, says that the stairs and walkway in and to the basement also provide access to the storage areas and is not excluded under the GFA definition (g), for access related to car parking.
Further, Council submits that only areas that are needed to 'meet any requirements of the consent authority' are excluded. Pedestrian access is not a requirement and is therefore not excluded under (g).
Council and Mr Joannides rely on the decision of Moore J in Chami v Lane Cove Council [2015] NSWLEC 1003 (Chami), when His Honour was Senior Commissioner. His Honour found that the floor area of lifts were included on all levels in a dwelling as they were not common vertical circulation.
Keith submits that the proposed development does comply with FSR, at 0.64:1. The lift and stairs areas should be excluded except for one level as they are void areas above a storey: Connoisseur Investments v Sutherland Shire Council [2020] NSWLEC 1181 (Connoisseur) at [86]. Mr Kerr's evidence is that stairs and walkway access to the parking areas should be excluded as the definition does not require exclusive access. In addition, the vehicular manoeuvring area, including the space around it, should be excluded under (g) as it provides access to the car parking. Keith submits that is it irrelevant if there is an express control requiring vehicles to leave in a forward direction. The proposed access is still a requirement in order to achieve the consent authority's outcome of providing the required parking.
The differences in gross floor methodology are extracted from Ex E, shown below. Council's calculations of areas included in GFA are shown in blue on the left, the Applicant's in yellow on the right.
In addition to the above, which was generally based on the evidence of the town planners, Council submits that the entire area for vehicular manoeuvring related to front in, front out access should be included as gross floor area as it does not form part of the requirements of the consent authority for exclusions under (g). I have indicated my understanding of this area to be included in GFA in the blue dotted square below, on an extract from Ex E.

Findings

I find that each of the disputed areas should be excluded from the gross floor area (GFA) calculations, as set out below.
I accept Keith's submissions that one level of the lift should be included and the rest of the floor's excluded. This is not on the basis of being common vertical circulation, as there is no common property in the proposed development: Chami at [275]-[280]. As submitted by Mr Seymour SC, consistent with the decision of Horton C in Connoisseur at [86], the lift well is primarily a void area. Void areas above a floor are excluded from GFA, as is the case above the lift which starts in the basement.
The decision of Connoisseur does somewhat contrast with the then Senior Commissioner's decision in Chami. His Honour found that all levels in a dwelling should be included on the basis that they were not common vertical circulation. The focus, from [271]-[280], appears to me to be on excluding GFA in accordance with (d), being common vertical circulation. From the judgment, it appears to me that the then Senior Commissioner's attention was not drawn to the exclusion of void areas under (j) of the definition.
I therefore prefer the reasoning given in Connoisseur. The areas in a lift shaft where the lift is not stationed are void areas. The GFA calculation drawing shows the lift area on the lower ground floor included in GFA and the other floors excluded. I accept this approach of one level of the lift being included in GFA on the basis that the other areas are void areas consistent with the exclusion in (j) of the GFA definition.
In relation to the stairs, I accept Keith's submissions and the evidence of Mr Kerr. Stairs inherently are part void, part stair and are not wholly floor area on every level: Connoisseur at [86]. The part void area is to be excluded consistent with the GFA definition (j). The GFA drawing shows a 'hit and miss' per floor calculation, being two levels of stairs shown as included in GFA on the lower ground floor and first floor plan, and two levels of stairs on the basement level and ground floor stairs have been excluded. I find that these calculations are consistent with the definition of gross floor area and exclusions permitted by (j).
I accept Keith's submissions and Mr Kerr's evidence that the entire area for vehicular manoeuvring is excluded. The GFA definition at (g) excludes car parking required by the consent authority and access to it. In my view, the Council's evidence and submissions construe 'access to it' too narrowly. Council submits that 'including access to that car parking' should be interpreted as access requirements of the consent authority. In my view, the 'requirements of the consent authority' relates to the 'car parking' component of the definition, not 'access to it'. I accept that the RDCP is silent in relation to preferences for cars entering and exiting the site for dwelling. The desire to provide front it, front out manoeuvring within the basement is a reasonable form of access, offers a higher degree of safe egress when exiting the property (also acknowledging the objector's concerns about vehicle safety) and has been designed in a relatively constrained way, closely around the swept paths as shown at [26].
Further, in relation to the boxed manoeuvring area adjoining the wine storage area, I see no reason to narrow that consideration of excluded areas even further to the exact vehicular manoeuvring/swept paths shown in red, simply because the nose of the car may not reach the very corner of the basement structure. I accept Mr Kerr's evidence and find that the areas directly surrounding the reasonable vehicular manoeuvring area forms part of 'access to that car parking' and is excluded by (g). 'Access' should not be so confined to only mean literal manoeuvring of a vehicle. The proposed space around that manoeuvring area is modest in size, cannot be used for another purpose and limited to simply encasing the manoeuvring area. On that basis, I find that the areas shown in blue surrounding the manoeuvring area are also excluded from GFA.
I accept the evidence of Mr Kerr that the pedestrian walkways to the car parking are excluded. Noting my separate findings at [31], I accept that the stairs and lift also form part of the GFA exclusion for access to the car parking under (g). Taking a broad interpretation of the definition, 'access' is not constrained to vehicles, swept paths/vehicular manoeuvring and driveway access. Whilst the pedestrian stairs, lift and walkway also serve the storage areas, I find that they primarily provide access to the car parking to and from the proposed dwelling, do not need to exclusively serve the car parking area and are to be excluded on that basis under (g).
Accordingly, I find that the proposed development complies with the FSR under cl 4.4A of the RLEP and the clause 4.6 written request is not required.

Is the built form excessive and consistent with the desired future character?

Council presses that the proposed development is too large and exceeds the majority of the RDCP's building envelope controls, including side and rear setbacks, site coverage, height/storey control and excavation. Council contends that the proposed development is not consistent with the desired futured character and causes visual impacts to the coastline. The proposed development would result in visual and acoustic privacy impacts to 47 Mermaid Avenue, where the resultant screening required will further exacerbate the visual bulk issues. The relevant controls are set out below.
The site is mapped in the coastal use area. SEPP RH contains the following relevant provisions for this issue: 2.10 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following - (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact. 2.11 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority - (a) has considered whether the proposed development is likely to cause an adverse impact on the following - (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that - (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised - the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.
The RLEP R2 Low Density Residential zone objectives are: 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To recognise the desirable 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. • To enable small-scale business uses in existing commercial buildings.
The site is mapped in the foreshore scenic protection area. Clause 6.7 of the RLEP provides: 6.7 Foreshore scenic protection area (1) The objectives of this clause are as follows - (a) to recognise, protect and enhance the natural, visual and environmental qualities of the scenic areas of the coastline, (b) to protect and improve visually prominent areas adjoining the coastal foreshore, (c) to protect significant public views to and from the coast, (d) to ensure development in these areas is appropriate for the location and does not detract from the scenic qualities of the coast. (2) This clause applies to land identified as "Foreshore scenic protection area" on the Foreshore Scenic Protection Area Map. (3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development - (a) 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 (b) contributes to the scenic quality of the coastal foreshore.
The following RDCP controls relate to the key issues: 2.4. Site coverage Explanation The site coverage control, in conjunction with setback controls, determines the extent and location within the property that a building may be constructed. The control ensures that there is sufficient unbuilt upon areas on a property to accommodate private open space, deep soil planting, permeable surfaces, recreational area and for services. Site coverage is expressed as a percentage to describe the proportion of a site that could be built upon. The allowable site coverage percentage decreases as allotment size increases, so that the mass and scale of any building will not detract from the character of the street. Objectives • To ensure new development and alterations and additions to existing dwellings reserve adequate unbuilt upon areas for the purpose of private open space, deep soil planting, permeable surfaces and ancillary development • To ensure a high level of environmental amenity for residents of low density dwellings in the LGA. Controls i) The maximum site coverage of a building must not exceed the following based on site area: … 450 to 600sqm - 50% 3.2. Building height Explanation Building height is a major factor affecting the visual presence of a development and the degree of overshadowing of neighbouring property. In Randwick City, dwelling houses, semi-detached dwellings and dual occupancies are typically one-to-two storeys, with an additional storey occurring on sloping sites. The maximum building height control is stipulated in the RLEP Height of Buildings Map (HoB), which varies across different residential zones. The maximum building height under the Randwick LEP Height of Building Map is 9.5m for low density housing, and is measured from ground level (existing) to the topmost point of a building. Objectives • To limit the bulk, scale and visual impact of buildings as viewed from the street and from neighbouring dwellings • To ensure low density residential development maintains a two-storey height and street frontage • To position any habitable space above the first floor level within the roof of the dwelling • 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 is respectful of site topography. Controls Any habitable space located above the first floor level must be integrated into the building roof form and roofline The minimum floor-to-ceiling height for living areas, such as living/lounge, dining and bedrooms, is 2.7m The minimum floor-to-floor height for building stories, excluding those above the first floor level within the building roofline, is 3.1m An alternative design that varies from the two-storey height and street frontage in the Zone R2 may be acceptable having regard to the following considerations: - Site topography - Site orientation - Allotment configuration - Flooding requirements - Allotment dimensions - Potential impacts on the visual amenity, solar access, privacy and views of the adjoining properties. 3.3.2. Side setbacks Controls i) New buildings and alterations and additions must comply with the following minimum side setbacks based on the primary frontage width: 3.3.3. Rear setbacks Controls i) The minimum rear setback must be 25% of the allotment depth or 8m, whichever is the lesser ii. Provide increased rear setbacks over and above item i), or demonstrate that this is not required, having regard to the following matters: - Existing predominant rear setback line in the subject urban block - The need to achieve reasonable view sharing with the neighbouring dwellings and the public domain - The need to adequately protect the privacy and solar access to the neighbouring dwellings. iii) Garages, carports, outbuildings, swimming or spa pools, above-ground water tanks, and unroofed decks and terraces attached to the dwelling may encroach upon the required rear setback, in so far as they comply with other relevant provisions of this DCP. iv) For irregularly shaped allotments, or allotments with the longest boundary abutting the street or the rear adjoining neighbour (that is, the frontage width being longer than the site depth), the rear setback will be assessed on merit having regard to demonstration of the following: - Compatibility with the existing development pattern in the subject and adjoining urban blocks - Provision of adequate private open space with dimensions compliant with the requirements of this DCP - Potential impacts on the neighbouring dwellings in terms of solar access, privacy and view sharing. Definition: The predominant rear setback is defined as the average of adjacent dwellings on either side of the allotment and is determined separately for each storey. 4.4. Roof terraces and balconies Objectives • To ensure trafficable roof spaces (eg. balconies or terraces) are integrated with the overall built form and architectural expression of the dwelling and maintain privacy in relation to neighbouring dwellings • To minimise the amenity impacts of trafficable roof spaces on surrounding properties • To ensure that trafficable roof spaces allow for view sharing so that equitable access to views are provided from private property • To ensure trafficable roof spaces are not the primary private open space • To ensure roof terraces are not uncharacteristic of the area. Controls i) A roof terrace must not be provided on the uppermost or main roof of the building (including the principal dwelling and any outbuilding) ii) For stepped buildings on sloping sites, a terrace may be provided on the roof other than the uppermost roof above the storeys below, provided the terrace complies with the following controls: - Suitably located to prevent direct views to neighbouring habitable windows and private open spaces - The size is to be subservient to the roof form within which it is located - It is designed as a secondary private open space and does not to include entertainment facilities such as kitchens, BBQs or similar - Designed to provide for view sharing, including minimising associated structures and roof top elements - It is to be uncovered and all elements of roof terraces shall comply with the maximum building height control iii) Roof terraces above garages may only be provided on sloping sites, where the garages are located on the downhill side of the sites fronting the street, and are to comply with the controls outlined above item ii). 4.7. Earthworks Objectives • To maintain or minimise change to the natural ground levels, streetscape, and natural environment • To ensure excavation and backfilling of a site does not result in unreasonable structural, visual, overshadowing and privacy impacts on the adjoining dwellings • To provide usable private open space for dwellings with adequate gradient • To ensure earthworks do not result in adverse stormwater impacts on adjoining properties • To ensure earthworks do not impact upon the ability to achieve deep soil permeability surface areas and canopy tree planting • To prevent the use of subterranean spaces as habitable areas. Controls Any excavation and backfilling within the building footprint must be limited to a maximum 1m at any point on the allotment, unless it is demonstrated that the site gradient is too steep to reasonably construct a dwelling within this extent of site modification. Refer to Figure 16. These requirements do not apply to swimming or spa pool structures. The outer edge of any excavation, piling or sub-surface walls must be setback a minimum of 900mm from the side and rear boundaries. Any excavation undertaken to create subterranean spaces must not be used as habitable space. Retaining walls are to be stepped in response to the natural landform to avoid creating monolithic structures, particularly where visible from the neighbouring dwellings and the public domain. Where it is necessary to construct retaining walls at less than 900mm from the side or rear boundary due to site conditions, retaining walls must be stepped to follow the topography of the land. Each stepping must not exceed a maximum height of 2.2m, as measured from the ground level (existing). In this case, the retaining walls may be incorporated as part of the boundary fence. For sites that slope upwards to the rear with the dwelling elevated above street level, the surface area of any blank retaining walls fronting the street must be minimised. Use a combination of materials to create articulation, and/or incorporate landscaping to visually soften the wall structures. Any cut and fill outside the building footprint (for the purposes of creating useable private open space) must take the form of terracing following the natural landform, in order to minimise the height or depth of earthworks at any point on the site. The appropriate extent of site modification will be assessed on a merit basis. For sites with a significant slope, adopt a split-level design for dwellings to minimise excavation and backfilling, and design dwellings to minimise the height and extent of any exposed undercroft areas. 7.5. Swimming and spa pools Controls i) Locate swimming and spa pools and associated structures: a. behind the alignment of the front building facade b. to minimise damage to the root system of trees proposed or required to be retained on the subject site and on adjoining properties c. to minimise potential noise impacts on the adjoining dwellings. ii) The pool coping height must relate to the topography of the site. On sloping allotments, the high side of the site must be excavated, so that the pool structure does not protrude more than 1m above the existing ground level on the lower side. iii) Where pool coping height is above natural ground level, the pool should be located to avoid pool boundary fencing exceeding 2.2m from existing ground level when viewed from adjoining properties iv) Where pool coping height is above natural ground level and has the potential to create privacy impacts on adjoining properties, appropriate screening or planting extending along the full length of the pool shall be provided to address overlooking. Screen planting must ensure consistency with the Swimming Pools Act 1992 in relation to 'nonclimbable zones' Despite subclause iv), this requirement may not apply where there is a need to retain existing view corridors from adjoining and nearby properties Position any decking away from the side and rear boundaries to minimise adverse privacy impacts on the neighbours Locate the pool pump and filter away from the neighbouring dwellings. The equipment must be contained within an acoustically treated enclosure that limits noise transmission.

Evidence

The experts agree that the RDCP front setback control and RLEP height development standard are complied with. It is also commonly agreed that the proposed development seeks a variation to the side setback control. The other non-compliances and their impacts are in dispute. The experts agree that the proposed privacy screens shown on the plans and imposed by conditions resolve the privacy impacts. Existing development currently overlook into each other's backyards as a result of the topography.
Council's planning expert, Mr Joannides says that the proposed development is too large, symptomatic of its variations to five out of seven key built form controls. Mr Joannides evidence is that the FSR, site coverage, building height (storey), side setbacks, rear setbacks, building design and earthworks controls are exceeded. The proposed development presents a building envelope that is inconsistent with the bulk and scale of the desired future character. A greater emphasis on consistency with the desired future character is required, due to the location in the foreshore area.
In relation to the side setback, Mr Joannides says that the RDCP controls require development to respond to sloping sites by stepping the building mass with the topography. The side setback envelope is a maximum, and seeks to minimise third storey components into a pitched roof form. The proposed third storey is not contained within a pitched roof form and creates visual bulk impacts that are exacerbated by overly large terraces.
In the Planning JER in relation to the height (storey) control, Mr Joannides' evidence is that the site slopes significantly and the proposed development presents as three storeys with an additional basement level. The proposed storeys will have adverse visual and privacy impacts to adjoining neighbours, particularly 47 Mermaid Avenue.
Mr Joannides says that the proposed rear setback does not respond to the predominant rear setbacks in the block. The dwellings to the north east should be excluded, as they do not share a strict rear setback line and comprise a mix of new dwellings and older stock. Based on dwellings to the north west, Mr Joannides says that the rear setback should be consistent with 43, 45 and 47 Mermaid Avenue not 2 Lurline Street, which is a corner allotment not captured by the rear setback control.
Mr Joannides evidence is that other design characteristics contribute to the bulk and scale of the development include the excessive garage and basement area, inadequate articulation along the side elevations with limited openings, large terraces, front outbuilding and raised swimming pool. All of these design elements and the non-compliances with the building envelope controls are inconsistent with the desired future area that contain dwellings between 2-3 storeys in height containing pitched roofs.
Mr Joannides says that the site coverage control of 50% is exceeded, at 56%. The car parking access tunnel, basement area and elevated swimming pool are built structures that should be included in site coverage under the definition in the RDCP.
In relation to privacy, Mr Joannides raises concerns about direct overlooking between neighbours from floors that are at similar levels. The proposed privacy screens mitigate the overlooking but unreasonably increase visual impacts. The acoustic screens are required for the oversized terraces, both of which increase visual bulk.
Keith's town planning expert, Mr Kerr, says the RLEP and RDCP contain generic controls that do not account for atypical sites or existing development. The proposed development meets the FSR, height (storey), rear setback, site coverage and excavation controls.
Mr Kerr says that there is one variation sought, being the side setback control. Mr Kerr's evidence is that the objectives are achieved as:

The areas that encroach into the side setback do not contain windows and still facilitate adequate access, landscaping, natural lighting, acoustic privacy and ventilation. The variations are consistent with the two adjoining dwellings.
Towards Mermaid Avenue, the dwelling presents as a single storey development as opposed to two storey, which is consistent with the Mermaid Avenue streetscape character. The proposed side setbacks maintain the rhythm and pattern of buildings along the Mermaid Avenue street frontage.
Due to the orientation and design, there are no impacts from the breach to adjoining properties' solar access.
The proposed development exceeds the private open space requirements and achieves the minimum deep soil requirements.
View sharing is maximised through the design of the proposal. The flat ridge design, lesser in height than the adjoining dwellings, and rear terrace design preserves views from 2 Lurline Avenue and 44A Mermaid Avenue despite the side setback variation.
The existing and approved development is determinant of the desired future character of a place. In this area, the scenic qualities to the foreshore and coastline are also determined by development.
The breaches occur as they generally anticipate a flat site, not steeply sloping sites which are characteristic of the area. The foreshore and coastline area is dominated by 3 storey dwellings, interspersed by new 4 storey and older 1-2 storey buildings. The proposed dwelling is compatible with the character of the locality and scenic qualities of the foreshore and coastline.

In relation to rear setbacks, Mr Kerr says the amended DA complies with the rear setback control 3.3.3 i) and ii) of the RDCP. The control at i) requires a rear setback of 25% of the allotment depth (being 9.14m for this site) or 8m, whichever is the lesser. Control ii) requires an increased rear setback above that required by i). Mr Kerr sets out that the proposed rear setbacks are more than 8m, ranging between 10.2m to 14.7m, and comply.
Mr Kerr's evidence is that the height (storey) control is complied with. The site has a frontage to Mermaid Avenue, where the proposed development appears as single storey. Mr Kerr says that control 3.2 iv) of the RDCP provides an exception to the two storey control for various reasons, including site topography, visual amenity, views and solar access.
Mr Kerr says the excavation control is not contravened, as the 1m excavation control cannot apply to basements as a basement could not be constructed. Further, control 4.7 i) makes an exception for steeply sloping sites. The site is extremely steep with an average gradient of 31%.
In relation to the site coverage control, Mr Kerr's evidence is that it is not exceeded. The area in dispute is the tunnel into the basement, of which is located below the swimming pool and terrace. Mr Kerr says that the RDCP definition explicitly excludes swimming pools, terraces and driveways. The site coverage objectives are met in terms of private open space, deep soil and provision of services.
Mr Kerr's evidence regarding visual privacy is the inclusion of privacy screens alongside the planter resolves the concern. A full length privacy screen would not be required, but will still achieve reasonable visual and acoustic privacy. The locality characteristically includes terraces and large windows to maximise views towards the ocean.
The acoustic evidence from Mr Wei is that the method to understanding acoustic noise from a residential premises is the size of the house and bedrooms, not the size of the terrace. The proposed clear glass acoustic screens recommended in the Environmental Noise Impact Assessment will improve the acoustic privacy from the existing situation.

Findings

In considering the issues raised, I prefer the evidence of Mr Kerr. I accept that the proposed variation to the side setback is consistent with the objectives of the control and that the other raised controls are met, for the reasons I detail below.
I accept Mr Kerr's evidence about the existing and desired character, which is consistent with my observations at the site viewing. The local area along the foreshore and coastline is filled with large, multi storey dwellings. Older stock is generally 1-2 storeys. Newer dwellings are 3-4 storeys with large terrace areas to capture the water and headland views. Waterside Avenue is reflective of this change, where newer dwellings at the end of the cul-de-sac have a 3-4 storey character with basement garage entry at street level. The proposed dwelling, at three storeys, with a basement garage entry and generally consistent rear setbacks is compatible with the existing streetscape and foreshore area character. Compatibility means being capable of existing together in harmony and is different to sameness: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22]. The proposed dwelling, when viewed from Mermaid Avenue, presents as single storey which is consistent with the northern side of the Mermaid Avenue streetscape and below the RDCP controls.
It is agreed that the RLEP building height control is met. When considering the related RDCP controls for general design 4.1 and 3.2 building height, the explanation of the control states that dwellings are typically 1-2 storeys with an additional storey occurring on sloping sites. Control iv) allows an alternate design to the desired two storey height in R2 areas in relation to a number of factors including topography and impacts on adjoining properties. I accept Mr Kerr's evidence that the proposed development is a steeply sloping site and minimises its impacts on adjoining neighbours relating to solar access, views, visual amenity and reasonable privacy in a built up area. The proposed development does not step down in a wedding cake design and proposes a combination of materials and finishes that will also compliment the natural elements of the foreshore character as shown on the architectural plans. I accept that the third storey is not contained within a roof form, but is consistent with the objectives of the control for the same reasons. I therefore accept that the proposed development meets control 4.1 and is an appropriate alternative design as allowed by 3.2 iv) and envisaged in the explanation section.
In relation to the side setback variation, I accept and adopt Mr Kerr's reasoning that the flexibility is warranted as the setback objectives are met as set out in paragraphs 13 to 17 of the Planning JER. The variation is consistent with the streetscape when viewed from both streets, is consistent with the massing of newer development along Waterside Avenue, still provides adequate areas for private open space and deep soil and maintains view sharing. Whilst I agree that the visual privacy and acoustic screens do increase the visual effect, they are not unreasonably bulky and as agreed by the planners, provide effective visual and acoustic relief between neighbours. In any event, in locations like this, where dwellings are in close proximity and view sharing is a key consideration for dwelling design, I accept some visual and acoustic impacts are reasonable. For these same reasons, I accept that control 4.4 terraces is met.
I accept Keith's submissions and Mr Kerr's evidence that the rear setback control is complied with. The control is primarily in two parts. 3.3.3 i) requires a minimum rear setback of 25% of the allotment depth or 8m, whichever is the lesser. Here, the lesser is 8m.
3.3.3 ii) requires an increased setback over and above i) or where proposals seek to demonstrate an increased setback is not required, sets out criterion for consideration.
The proposed rear setbacks range between 10.2m to 14.7m. They are an increased setback from the required 8m, and therefore comply with the requirements of 3.3.3 ii), to 'provide increased rear setbacks over and above item i)'. The proposed development does not seek to demonstrate that the minimum rear setback is not required and the other matters in ii) therefore do not apply.
I accept Council's submissions and Mr Joannides evidence that site coverage is as defined in the RDCP within control 2.4, however I accept Mr Kerr's evidence that the site coverage control of 50% is complied with. On my understanding of the evidence, the disputed structures identified as included in site coverage included the elevated swimming pool and driveway tunnel. The definition of the site coverage under control 2.4 expressly excludes a driveway and swimming pool. In my view, whether the driveway is underground or on grade makes no difference to site coverage. If I'm wrong, I accept that the objectives of the control are achieved in that the private open space and deep soil requirements have been met and that the proposed development would continue to ensure a high level of environmental amenity for the residents through its landscaping and adequate permeable areas.
I accept the evidence that the now lowered pool (lowered after joint expert reporting), that is setback from the rear, elevated boundary will barely be perceived from the streetscape, public domain, coastal area or foreshore area with negligible impacts.
I accept Mr Kerr's evidence that control 4.7 i) of the RDCP for earthworks, that limits excavation within the building footprint to 1m, cannot apply to basements where excavation is almost always more than 1m by its own definition. If I am wrong, I accept Mr Kerr's evidence that the objectives of the control are achieved through the provision of sufficient deep soil, the development design reasonably minimising changes to the ground levels to accommodate the basement, provision of adequate private open space, the lack of unreasonable visual, overshadowing and solar impacts to adjoining dwellings, provision of appropriate stormwater management and lack of subterranean habitable spaces.
To the extent that they are raised in the contentions, in addressing ss 2.10 and 2.11 of SEPP RH, cl 6.7 of the RLEP and control B10 of the RDCP, I find that the swimming pool and scale of the built form will have a negligible impact. There is no evidence relating to water or cultural heritage impacts. For reasons I have previously detailed, I accept Mr Kerr's evidence that the scale of the dwelling is consistent with the suite of planning controls and also consistent with the character of dwellings visible from Waterside Avenue and therefore, the foreshore area and public domain.
In considering the disputed outbuilding structures, which can be described as roofed pedestrian entry structure in the front setback, a proposed condition seeks to further reduce the structure to 900mm in width. In reference to both the proposal on the plans and what is ultimately proposed via condition, I find that the structure is not defined as an outbuilding as per the definition in control 7. It is not like a cabana, shed, gazebo or habitable room. It contains a wall on the north western boundary and a roof, and is otherwise mostly open on the sides. I accept the evidence of Mr Kerr that the entry structure is not captured by 3.3.1 iv) front setbacks or 7.4 outbuildings.
Finally, I accept Keith's submissions that the zone objectives are not required to be achieved. In having regard to the objectives as required under cl 2.3 of RLEP, I accept that the proposed development protects the amenity of residents and recognises the desirable elements of the streetscape and desired future character within a low density environment for the reasons I have outlined in addressing these contentions.
On the basis of the reasoning set out above, I find that the issues raised do not warrant refusal of the amended DA.

Community submissions

The DA was notified on 5 October 2023 to 19 October 2023 and received one submission. Pursuant to s 4.15(1)(d) of the EPA Act, I have carefully considered the issues raised and find that they have either been addressed through the amended DA or do not warrant refusal as set out below.
The concerns raised primarily relate to the new driveway and crossover from Waterside Avenue, instead of utilising the existing driveway to Mermaid Avenue which is consistent with the two adjacent properties. Waterside Avenue is a steep, tightly curved area with no footpath that is regularly accessed by people and children.
Concerns are also raised about the loss of landscape character and vegetation from the new driveway and basement entry.
In evidence is a Sight Lines Advice Letter prepared by traffic consultants, Traffix, dated 28 August 2024 (Traffic Letter). Notwithstanding the typographical error in the project description, the Traffic Letter and accompanying sight line drawings demonstrate that the street is a dead end road and low traffic area, and that there will be sufficient sight lines out of the basement to safely exit when leaving in a forward direction. I accept and adopt the reasoning in the Traffix Letter that the new driveway is not a safety concern.
In relation to the removal of vegetation and landscape verge concerns, whilst this section of Waterside Avenue has increased vegetation, most dwellings along Waterside Avenue have very little front setback landscaping and provide a garage or basement opening to the street. The Applicant has chosen to cease utilising the driveway access from Mermaid Avenue, which is available to them as a dual frontage site. I find that the proposed development is consistent with the dominant character of Waterside Avenue and it is not a requirement to only use the Mermaid Avenue frontage for car parking access.

Preconditions

The parties agree that outside of the raised contentions, the preconditions to the grant of consent have been satisfied.
Owner's consent accompanied the DA (Ex B).
The DA is accompanied by an adequate BASIX Certificate no. 1407243S issued on 13 September 2024 (Ex 5) as required by s 27 of the EPA Reg.
Chapter 2 of SEPP RH applies. I am satisfied that the provisions have been met as previously detailed and also adopt the reasons set out in the SEE and shown on the Civil Engineering Plans (Ex D), including that the proposal has been designed to minimise impacts on the natural setting, does not have environmental impacts or impacts to access to the public domain or natural areas. I accept that the proposed development is compatible with the scale of built forms along the foreshore/coastline, has been adequately structurally designed so that adjoining neighbours are protected and will not increase the risk of coastal hazards. I also accept the reasoning in the Geotechnical Investigation report prepared by JK Geotechnics dated 24 July 2024 (Geotechnical Report) that SEPP RH has been satisfied as the drained basement will be designed to mitigate adverse impacts that might be caused by the basement during heavy rainfall periods.
I am satisfied that s 4.6 of SEPP RH is met, on the basis of the SEE which states that the site has a long history of residential use and that there are no indicators of any contamination of the site.
The preconditions in the RLEP are satisfied as follows:

Clause 2.7 permits the proposed demolition with consent.
The architectural drawings demonstrate the development complies with the maximum allowable height of 9.5m (drawing DA501).
As previously dealt with, cl 4.4A FSR is not exceeded.
I have considered the provisions of cl 6.2 earthworks and accept that they are met as:
The Geotechnical Report specifically responds to cl 6.2 and the implemented recommendations that will have little impact on soil stability and groundwater flow, will implement re-use strategies, details recommendations for structural works and has addressed the proximity to the foreshore area.
The proposed development is accompanied by a structural engineering letter prepared by Alba & Associated dated 25 July 2024, which forms part of the conditions of consent.
I adopt the reasons and agreed evidence of the engineering experts that the degree of earthworks provisions have been adequately addressed as further detailed in the Geotechnical Report.
The Stormwater Plans prepared by RTS (Stormwater Plans) demonstrate adequate management of stormwater to the street and a suitable site sediment and erosion control plan.
Clause 6.4 stormwater management applies. I am satisfied that the provisions are met on the basis of the Stormwater Statement and stormwater drainage plans prepared by RTS Consulting Engineering dated 24 July 2024. The submitted information demonstrates the effective management of stormwater to the existing street infrastructure and adequate permeable areas.
For the reasons set out in the contention regarding the scale of the building, I am satisfied that the provisions of cl 6.7 foreshore scenic protection area are met as the proposed development is consistent with existing development along the foreshore and has been designed to minimise its visual impacts to the coastline. These attributes and the quality of architectural design contribute to the scenic quality of the foreshore.
Clause 6.10 essential services applies. As set out in the SEE and evidenced from the existing use of the site for a residential dwelling, all services are currently existing and the new driveway access forms part of the proposed development.

Conclusion

The key issues ultimately distil to the overall size and bulk of the proposed development and its impacts on the site, adjoining neighbours and the foreshore / coastline areas. I find that the proposed development substantially complies with the vast majority of controls and that the variations to the side setbacks and if wrong, RDCP earthworks control, meet the objectives of the controls.
I therefore conclude that the amended DA warrants development consent.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development Application 726/2023 for demolition of existing structures and construction of a three storey dwelling at 49 Mermaid Avenue, Maroubra is determined by the grant of consent subject to the conditions set out in Annexure A. 3. The exhibits are returned except for A, B, 1 and 2.

Amendments 14 January 2025 - Added missing picture 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: 14 January 2025

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (4)