McDonald v Randwick City Council

Background and the proposal 8The proposal is to enclose the balcony to apartment 11, by inserting aluminium framed windows into the existing openings, to match the existing windows, in the southern and eastern elevations and a door in the western elevation of the projecting bay in which the balcony is located. 9The proposal was refused by the Strata Extraordinary Meeting on 18 October 2010 by the defeat of a motion by the applicant to make a by-law permitting him to enclose his balcony. A Consumer Trader and Tenancy Tribunal Order was made on 13 May 2011, which found the decision of the Strata Extraordinary Meeting unreasonable and prescribed the making of the by-law in the terms proposed by the applicant in the Strata Extraordinary Meeting. The application was refused by Randwick City Council on 20 September 2011.

Planning framework 10The site is located within the residential 2C zone, pursuant to the Randwick Local Environment Plan 1998 (LEP 1998) and the proposal is permissible with consent. 11The objectives for the residential 2C zone, at clause 12(1) of LEP 1998, relevantly include: (b) to maintain the desirable attributes of established residential areas (c) to protect the amenity of existing residents 12Clause 20F(1) of LEP 1998 states that the maximum FSR for buildings (other than dwelling houses) within the residential 2C zone is 0.9:1. Clause 20F includes the following explanation regarding the purpose of the FSR development standard: Purpose: To operate together with controls for building height and landscaped area to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area. 13As the proposal will exceed the allowable FSR standard for the site, an objection is provided by the applicant, under the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP 1), to justify why strict compliance with the development control for FSR is unreasonable or unnecessary in the particular circumstances of this matter. 14The site is located within the vicinity of two heritage items, listed in Schedule 3 Heritage Items of LEP 1998, as follows:

• 15 Carr Street (corner of Carr Street and Carr Lane) Federation style dwelling c1920, inventory number 137.
• 21 Carr Street (corner of Carr Street and Mount Street) Late Victorian house c1890, inventory number 138. 15Both heritage items share a common boundary with the site. 16The site is subject to the provisions of Development Control Plan Multi-unit housing 2000 (DCP 2000). Section 3.4 Density, includes the definition of FSR and objectives at clause 3.4.1, as follows: Controls the size, bulk and scale of development to reflect the desired future character of the area 17Clause 3.4.2, provides an explanation of density, as follows: Density of development is a significant indicator of the potential size of a likely development proposal. This in turn can indicate the extent of possible adverse impacts of a proposed development on adjoining land. Density is a very important building control. It is often used to determine the development potential and hense the relative value of a site. 18A 'note' is included in Section 4.1 Landscape and Private Open Space, regarding the enclosing of balconies on residential flat buildings, as follows: The piecemeal enclosure of balconies on building, in particular where a precedent on existing building does not exist, is strongly discouraged. Enclosed balconies are included in the calculations of floor space.

Public submissions 19The Court heard from two resident objectors, who both own apartments in the residential flat building at 98 Mount Street. The first resident objector is a resident and chairman of the Owners Corporation. The second resident objector is a part-time resident and her apartment is currently leased. She is the secretary of the Owners Corporation. They are both concerned about the precedent effect of the proposal and the appearance of having some balconies enclosed and others not.

Expert Evidence 20Expert planning evidence was heard from Mr Stephen Layman for the applicant and Mr Alex van Son for the Council.

FSR 21The experts agree that the FSR of the existing development is 1.188:1 and the proposal would increase the FSR to 1.197:1, representing an increase of 11m2, as the area of the balcony is excluded from the gross floor area and if it were enclosed, the floor area of the balcony would be included in the gross floor area. 22The experts agree that the proposal exceeds the permitted FSR for the site. A SEPP 1 objection to compliance with clause 20F of LEP 1998, dated 29.6.11, accompanied the development application. The SEPP 1 objection was structured to answer the five questions posed by Lloyd J in Winten Property Group v North Sydney Council (2001) 130 LGERA 79 at 89. The grounds for departure from the standard, according to the SEPP 1 objection, are that it is unnecessary to comply with the control because the proposal does not affect the height, size, scale, site coverage and streetscape appearance of the residential flat building and therefore the proposal achieves the purpose of the FSR, which is to operate together with other controls to limit the size, scale and site coverage of a building. 23Mr Layman states that the proposed increase in FSR is insignificant, both in numerical terms and in its impact on the bulk and scale of the development, as the size and scale of the building is unchanged. In his opinion, the proposal does not change the pattern of modulation and articulation. 24Mr van Son states that the proposal will result in unacceptable visual bulk and impacts on the streetscape. He argues that the design of the residential flat building is based on a pattern of ordered elements that modulate and articulate the bulk of the building and the balconies within the projecting bays gives the building a vertical emphasis, which would be interrupted by the proposal. In his opinion, the SEPP 1 objection is not well founded.

Findings 25The most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, as found in the judgment of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 at par 42. 26There are no specific objectives for the FSR control at clause 20F of LEP 1998 and in the absence of objectives, the experts have adopted the purpose of the FSR control as being the appropriate objectives for the development standard and I agree with this approach. The purpose of the FSR control is to limit the size, scale and site coverage of a building, having regard to the environmental amenity and aesthetic character of the area. 27The proposal is to insert windows and a door into existing wall openings enclosing the balcony. It would render an existing room, currently open to the elements, an indoor space. The proposal does not increase the existing building envelope. 28When tested against the agreed objectives of the development standard, I am satisfied that the proposal does not alter the size, scale or site coverage of the development and therefore a breach of the FSR development standard by this proposal is consistent with the aims of SEPP 1 and that the SEPP 1 objection is well founded.

Planning precedent - the potential piecemeal enclosure of balconies 29Mr Layman pointed out a number of enclosed balconies in residential flat buildings in the vicinity of the site. Mr Layman noted that these are located in the street front elevations of flat buildings, unlike the proposal, which is in a side elevation. Mr van Son noted that the examples are in buildings that date from 1960s and 70s and are therefore not relevant to the proposal, as the building at 98 Mount Street was constructed in 2003. The planning experts agree that the examples of enclosed balconies viewed by the Court detract from the streetscape appearance of the buildings. 30According to Mr van Son, the proposal would set an undesirable precedent for the ongoing piecemeal enclosure of balconies in the residential flat building, which would have significant adverse impacts on the visual bulk of the building and its relationship with the adjoining properties and streetscape. 31According to Mr Layman, the proposal would only set a precedent for apartment 6, as apartments 6 and 11 both have alternative outdoor areas, in contrast to the remaining apartments within the upper levels of the building, which only have a balcony for outdoor space. In Mr Layman's opinion, the proposal does not disrupt the architectural integrity of the residential flat building, as it does not change the pattern of wall articulation, nor the balance of 'solid and void' and will not result in a 'glass wall' effect.

Findings 32I accept that there is a reasonable probability of further applications to enclose balconies in the residential flat building at 98 Mount Street, if the proposal is approved. Precedent is a valid planning consideration, in accordance with the views of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. 33 I agree with the evidence of Mr van Son that the proposal would set a precedent for the enclosure of any of the balconies within the residential flat building, not only apartment 6. This would potentially result in the piecemeal enclosure of some and not all balconies in the residential flat building, which would detract from the appearance and the integrity of the design of the subject residential flat building, as well as potentially other residential flat buildings.

Conclusion 34A proposal that interferes with the original design of the residential flat building is not a reason for refusing the appeal. A proposal must be assessed with reference to the relevant development standards and controls and the merits of the application. 35I understand and am sympathetic to the applicant's view that their balcony is on the southern side of the building and therefore provides little amenity in terms of solar access and protection from southerly wind. The poor spatial planning of this portion of the residential flat building has located the living areas and balconies on the southern side and the vertical circulation and bedrooms on the northern side. Had the development been more carefully planned, by locating the living areas and balconies with access to sunlight, in order to optimise the amenity enjoyed within each apartment, this issue may not have arisen. 36I have, however, given greater weight in the determination of this appeal to the potential precedent that the enclosure of the balcony would provide for other applications and the consequences of the piecemeal enclosure of some balconies and not others. 37The balconies on the southern, side elevation of the residential flat building are visible from Mount Street, as the southern elevation can be seen over and across the site of the single storey late Victorian cottage, currently used as a medical centre, at 21 Carr Street. As 21 Carr Street is a heritage item, the scale and form of the building is unlikely to be substantially altered and therefore the view of the southern elevation of the residential flat building from the public domain will be retained. The balcony to apartment 11 can also be seen from Carr Street and Carr Lane. 38The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. Firstly, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decisionmaking process, but it is not in itself determinative. 39Having regard to DCP 1997, which strongly discourages the piecemeal enclosure of balconies, particularly where a precedent on existing building does not exist, the proposal should be refused, because the proposal would contribute to and set a precedent for the piecemeal enclosure of balconies at 98 Mount Street, as the proposal would be the first balcony enclosure within this building to be granted consent, if I were minded to approve the proposal.

Orders 40The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. 542/11 to enclose an existing balcony at apartment 11, 98 Mount Street, Coogee is refused consent. 3.The exhibits, other than exhibits 3, A and C, are returned. Susan O'Neill Commissioner of the Court

Amendments 09 July 2012 - Typographical error apartment "16" changed to "6" Amended paragraphs: 6 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: 09 July 2012