Pavilion Developments Pty Ltd v Randwick City Council

Land and Environment Court (NSW)|2021-06-18

Judgment

COMMISSIONER: This is an appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council (Council) of Development Application No. DA/175/2020 (DA) seeking development consent for a residential flat building and associated development at 191 Carrington Road, Coogee (site).

Proposed development

The DA, with modifications incorporated into amending plans, seeks consent for demolition of the existing single storey dwelling on the site along with associated structures and the construction of a three-storey residential flat building ('RFB') comprising six units, with vehicle access off Carrington Road. The outline particulars of the development, on a level by level basis, are as follows:

Basement - parking, bin storage room, plant/services rooms, residential storage cages, lift and stairway (all levels).
Ground Floor - pedestrian entry lobby (access walkway from Carrington Road along the southern boundary), 2 x 3 bedroom units, communal open space area at the rear and front of the site.
First Floor - 2 x 3-bedroom units oriented towards the east and west.
Second Floor - 2 x 3-bedroom units oriented towards the east and west.

Site and setting

I mostly rely on Council's Amended Statement of Environmental Effects (Ex 3) for the descriptive material which follows.
The site is legally described as Lot 23 DP 8000 and slopes from the rear towards Carrington Road. The site is rectangular in shape with side boundaries of 56.39m and front/rear boundaries of 13.41m. The site survey shows an area of 752.5m2 while Council calculates the area as 757.1m2.
The site surrounds can be characterised as a mix of low and medium density residential, with buildings varying considerably in terms of scale, form and age. There is a small group of shops and terraces to the north of the site, at the intersection of Carrington Road and Alison Road. Coogee Beach is about 1 km to the east.
To the south, the site shares its side boundary with 193 Carrington Road, which accommodates a single storey semi-detached dwelling. 193 and 195 Carrington Road together form a single storey semi-detached dwelling pair. The front (western) half of the site's northern boundary is shared with accessways for 187 and 189 Carrington Road. 189 Carrington Road, accommodating a two-storey residence, shares the rear (eastern) part of the northern boundary with the site. To the north again, across the access handles, at 185 Carrington Road is a three-storey RFB. The site shares its rear (eastern) boundary with 14 Melody Street which also accommodates an RFB. Development across the Carrington Road are mostly single storey low density residential, including directly opposite, with interspersed RFBs.

The approach to proceedings

Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy (April 2021). A site inspection occurred with limited attendance, and I took the opportunity to hear short oral submissions from objectors from the two residences to the immediate south of the site. After a site inspection, the hearing was conducted in a "virtual" courtroom arrangement under the Microsoft Teams platform.

Planning framework

The site and locality are zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (RLEP). The proposal is permissible with consent.
The objectives of the R3 zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium 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 maximum permissible height of buildings for the site is 9.5 m under cl 4.3(2) of RLEP. There is no dispute that the proposal complies with this control.
The maximum permissible floor space ratio (FSR) for a building on the site is 0.75:1 under cl 4.4(2) of RLEP. There are some matters for consideration in relation to FSR which I attend to below.
Randwick Comprehensive Development Control Plan 2013 (RDCP) also applies.
The provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65) apply to the proposed development and in turn the Apartment Design Guide (ADG) also applies.
The experts in this matter are A Betros for the Applicant and S Faridy for Council, each having expertise in urban planning.

Issues

A number of the contentions listed in Ex 3 were no longer pressed by Council following amending plans and the outcome of the joint expert report prepared by the urban planners (Ex 5). The key remaining issue at the time of the hearing related to the massing of the building and general design and associated impacts on neighbours to the south. The objections from the neighbours to the south (193 and 195 Carrington Road) generally aligned with Council's contentions and the following matters were highlighted: overshadowing, visual privacy impacts, security, fencing and street presentation. Neighbours were also aware of non-compliance with numerical controls and the potential impact on development potential for their own land, each of which are considered below.
A further significant issue warranting consideration is the acceptability of communal open space to be enjoyed by future occupants.
There is also an interpretive issue in regard to gross floor area (GFA) calculations for the proposal. I consider this issue first.

Gross floor area

Contention 6 in Ex 3 argues that the proposal exceeds the FSR permitted under cl 4.3 of RLEP. There was a dispute between the planning experts on the GFA totals which applied to the proposal under RLEP definitions. The most significant difference between the experts, and upon which it was agreed compliance or otherwise with SLEP's FSR controls would depend, was the extent of exclusion from GFA calculations properly qualifying as "any area for common vertical circulation, such as lifts and stairs". That is to say, it was common ground that this definition for "common vertical circulation" area was one of the nominated exclusions from GFA under the Dictionary to SLEP, but there was disagreement on what should qualify. The architectural plan calculations (Ex A DA 800) provided a baseline for analysis of the disagreement.
The central concern was the extent of area to be excluded (as the common vertical circulation area) on the landing level on the First and Second Floors. I agree with the Applicant (and the urban planning expert Mr Betros) that, while there is a level landing area on the First and Second floors, and it does serve a purpose of providing access to the front doors of units on these levels, this does not of itself exclude that space from being interpreted as common vertical circulation area. The area adopted by the Applicant on these landings is not oversized (mindful of the proposed balustrade) and can be reasonably interpreted as part of the area required for common vertical circulation.

Controls

The impacts in relation to the building massing relate to overshadowing, visual and acoustic privacy, visual bulk, airflow, and effect on development potential (the last matter mindful of Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [24] and objector concerns). A number of different controls are relevant. The central ones are introduced below.

Solar access and overshadowing (raised in Contention 1 in Ex 3)

The particulars of the contention raise both ADG and RDCP controls, indicating solar access to the south "would be reduced by more than 20%" and that a key causal factor is the proposal's side setback which does not accord with ADG requirements (see next item).
Objective 3B-2 of the ADG provides that "overshadowing is minimised in mid winter. Council referenced the following points of "design guidance" in the ADG: "Where an adjoining property does not currently receive the required hours of solar access, the proposed building ensures solar access to neighbouring properties is not reduced by more than 20% If the proposal will significantly reduce the solar access of neighbours, building separation should be increased beyond minimums contained in section 3F Visual privacy Overshadowing should be minimised to the south or down hill by increased upper level setbacks"
Clause 5.1 of RDCP is concerned with solar access and overshadowing to both new development and neighbours. The objectives of the clause are: "To ensure the design, orientation and siting of development maximises solar access to the living areas of dwellings and open spaces, and is encouraged to all other areas of the development. · To ensure development retains reasonable levels of solar access to the neighbouring properties and the public domain. · To provide adequate ambient lighting and minimise the need for artificial lighting during daylight hours."
The controls relating to surrounding development are: "i) Living areas of neighbouring dwellings must receive a minimum of 3 hours access to direct sunlight to a part of a window between 8am and 4pm on 21 June (mid winter). ii) At least 50% of the landscaped areas of neighbouring dwellings must receive a minimum of 3 hours of direct sunlight to a part of a window between 8am and 4pm on 21 June (mid winter). iii) Where existing development currently receives less sunlight than this requirement, the new development is not to reduce this further."

Building separation (Contention 3)

The contention raises Objective 3F-1 of the ADG (relating to visual privacy), which provides, as "design criteria", for a side boundary setback of 6m for habitable rooms and balconies and 3m to non-habitable rooms. RDCP also includes setback controls at clause 3.4.2. The nominated objectives go beyond privacy and include solar access and air circulation, as indicated below. "Objectives To define the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that contributes to the local character. To ensure adequate separation between buildings for visual and acoustic privacy, solar access, air circulation and views. · To reserve contiguous areas for the retention or creation of open space and deep soil planting."
It is noteworthy that RDCP adopts what the Applicant describes as a "sliding scale", dependent on side frontage, as indicated below at Figure 1 a component of control i). A figure of 2m side setback (highlighted) would apply to the site. There are additional controls indicated at control ii): "i) Comply with the minimum side setback requirements stated below for residential flat buildings and multi dwelling housing: Figure 1 - Sliding scale side setback controls at cl 3.4.2 of RDCP ii) Incorporate additional side setbacks to the building over and above the above minimum standards, in order to: Create articulations to the building facades. Reserve open space areas and provide opportunities for landscaping. Provide building separation. Improve visual amenity and outlook from the development and adjoining residences. Provide visual and acoustic privacy for the development and the adjoining residences. Ensure solar access and natural ventilation for the development and the adjoining residences."

External wall height (Contention 11)

This contention raises concerns in relation to building massing and a lack of visual interest in terms of the roof configuration, but also raises consequential additional overshadowing.
Under clause 4.4 control ii) of RDCP, where a site is subject to a 9.5m building height limit under the LEP (as is the case here), a maximum external wall height of 8m applies. This RDCP control measures to the "underside of the eave on the lower end of a roof". There is agreement that there is a breach of this control, the particulars of which I discuss below. The objectives of the control are: "To ensure that the building form provides for interesting roof forms and is compatible with the streetscape. To ensure ceiling heights for all habitable rooms promote light and quality interior spaces. To control the bulk and scale of development and minimise the impacts on the neighbouring properties in terms of overshadowing, privacy and visual amenity."

Building depth (Contention 8)

The contention raises concerns that the proposal is "in excess of 35m" from front to rear which creates overshadowing as well as privacy and visual impact concerns.
Under clause 3.3 of RDCP, the "preferred maximum building depth from (window line to window line) is between 10m and 14m". While the proposal's depth (from front façade to rear façade) is some 35m (Ex 5 par 90), it is clear from the objectives of the control that it is focused on the internal amenity available within residential units, having regard to. The point of attention is having a reasonably narrow "sectional depth" to facilitate natural ventilation and daylight access. I agree with Mr Betros that, given the relatively narrow north-south depth the relevant objective and numerical standard are achieved with the proposed design (Ex 5 pars 92-93).

Evidence and consideration

The plans show a 2m minimum side boundary setback for Levels 1 and 2 (for about 2/3 of the southern façade length), with the central 1/3 indented to be setback some 3.29m. More than half of the ground floor is setback 3.45m from the side boundary with the rest setback 2m (Ex A DA-A-101).
In closing submissions, Council argued that the evidence demonstrated that there was a severe impact to the south, most particularly demonstrated by the significant reduction in solar access to the semi-detached dwelling pair (193 and 195 Carrington Road), when the ADG suggests that overshadowing of neighbouring properties should be minimised in mid-winter. Council was not suggesting that the full 6m setback related to item 3F-1 of the ADG, was necessary, it was acknowledged this would make little sense given the block width of 13.41m. The suggestion was that the proposal had not gone far enough, and that with an increased setback and/or reduced southern wall height and perhaps most particularly through a redesign to incorporate what was termed the "two tower" concept (explained below), an appropriate level of amenity would be retained to the southern semi pair. There is some overlap in the consideration of the suggested impacts of concern, but I will commence with solar access.

Solar access

The evidence in the "view from the sun" diagrams (Ex A DA A 854to DA A 857) indicates that there would be no solar access to the northern side of 193 Carlingford Road in midwinter, including to living area windows. While I note there is little available now at that time, away from mid-winter there would also be losses to areas experiencing some sunlight now. There would be shading to the roof skylight of 195 Carrington Road up until around noon but then sunlight access until about 3pm. There is an overall reduction in midwinter sunlight to backyards of both properties but through the morning there is a considerable level of solar access to these areas retained in mid-winter. In reference to ADG provisions, Council's claim (Ex 3 p 8) that the solar access of the adjoining property to the south would be reduced by more than 20% was not refuted in the expert evidence.
I do need to emphasise the fact that the ADG design criteria at item 3F-1 which raises the 6m side setback provision is concerned with visual privacy. It will be seen below that the experts find the proposal is satisfactory in regard to that topic. I give considerable weight to the side setback controls which apply under RDCP. Here I am mindful of the findings of Justice Robson in Peter Sleiman Property Investments Pty Ltd v Valuer-General of New South Wales (No 2) [2021] NSWLEC 47 at [106]-[107]. When I view the RDCP control at clause 3.4.2, and including the sliding scale in regard to side setback, and the further provisions relating to the need for additional setbacks in certain instances, it suggests to me a planning intention in regard to the shaping of the form of what would be the forthcoming medium density style development on these quite narrow sites in this locality. While I note Mr Faridy's comments that the intention was that clause 3.4.2 not apply to ADG affected development, I was not provided with convincing evidence that this was the case and RDCP does not read as such. There was also uncontested evidence from Mr Betros of a number of RFB developments being approved with the 2m side setback in the site vicinity, including 14 Melody Street to the immediate rear of the site.
I accept the point of Mr Betros that the considerable rear setback adopted by the proposal is a significant positive feature of the proposal. It is a factor in the retention of solar access for a considerable period in the backyards of 193 and 195 Carrington Road and would seem to assist in regard to future development potential options. The increased setback in the middle of the proposed building (to 3.29 m) would help somewhat, in providing solar access during some of the cooler periods, but not in mid-winter. It seems to provide a response to the provisions at clause 3.4.2 ii) of RDCP (see [26]). The vulnerability of 193 Carrington Road, and in particular its northern façade and patio all at the ground level, should be seen to be quite high in this R3 Medium Density zone. Further, and this is suppositional and thus not of great significance, I did not have a sense that there is a great existing expectation of winter solar access now in regard to the covered patio area or living area windows.
Mr Faridy is right to acknowledge that there is a need for sensitivity to 193 and 195 Carrington Road, notwithstanding the inconsistency of the existing occupancies with what might be seen as the understood future character in the environs mindful of the R3 Medium Density zoning. However, retention of solar access to both properties (more to 195 than 193 Carrington Road but this reflective of vulnerability), as proposed with the application, is to me not unreasonable when these two aspects (right to "stay-as-is" versus planning ambitions for higher density) are balanced.
The two tower option suggested by Mr Faridy, as understood, would provide for two accommodation buildings on the site separated through the provision of "a central courtyard 16-17m deep" (eg Ex 5 par 65). The eastern building would sit closer to the eastern site boundary. It is not clear to me that this provides for an improvement overall compared with that proposed. It may. But the particulars are not before me here, and there seemed to be many uncertainties in regard to the benefits suggested by Mr Faridy. For example, it is not clear that a better solar access result would be delivered with this option, because this requires a weighing up of the value of the backyard sun to the living area sun (ie the shifting of the building massing to the east would obviously increase the backyard overshadowing). My view is that the scale (or size) of the backyard areas which would retain mid-winter sun is something that should not be set aside easily, and I agree with Mr Betros that it has potential to have significance in terms of future development potential of the adjoining semi-detached dwelling pair.

Wall height

The precise wall height contravention was disputed somewhat in terms of the interpretation of what constituted the "underside of the eave", a factor in establishing the particulars. In consideration of the evidence, my interpretation was that the contravention was about 800mm maximum along the important southern elevation. The contravention was worst in an area where a form of clerestory window treatment is proposed (a point of exclusion in the definition of wall height at clause 4.4). There is then only a relatively short length of about 4-5m before the building setback increases an extra 1.3m. The wall height to the rear third of the building (when it is again offset only the 2m from the boundary) then generally complies (Ex A DA-A-202). In regard to the objectives of the control (clause 4.4) I note that it is agreed by the experts that the first objective is satisfied and that the proposal provides a satisfactorily interesting roof form. The second objective is not in contention. The third objective relates to overshadowing, privacy and visual amenity. I have considered overshadowing, or solar access, above. Privacy and visual amenity or the visual bulk of the building are considered below. It will be seen that I generally see that the effects of the wall height contravention in regard to these three matters is not of great scale.

Visual privacy

There was a direct concern raised about potential overlooking of neighbouring properties to the south (193 and 195 Carrington Road) and a related concern that the development potential of these parcels would be adversely affected by the proposal due to available visual separation. I took the view that I was insufficiently informed in regard to this topic on the basis of the material put before me during the course of the two-day hearing. Therefore on 23 July 2021 I decided to re-open the case for the purposes of further scrutiny of these related topics. Subsequently, and with the agreement of the parties, I made further orders in regard to expert evidence, directing the planning experts to confer further and prepare a supplementary joint report.
A supplementary joint expert report (SJER) was filed on 30 July 2021. The experts took into account revised "concept plans" prepared on behalf of the Applicant which included provision of translucent glazing to south-facing windows on Levels 1 and 2 (bedrooms and bathrooms) and both translucent glazing and planting solutions at ground level, along with louvred screens on the southern side of the balcony cut-outs. The experts believed that "the privacy measures adopted (in the revised plans) address any existing and potential privacy impacts" (SJER p 6). In regard to other factors relating to development potential to the south, the experts advised (SJER p 5): "The concept plans allow for solar access, light and ventilation to be achieved to the potential living and balcony areas of a potential redevelopment whilst also allowing for a suitable level of privacy between the respective side-facing windows, as well as at ground level …"
Plans were referenced which demonstrated this (ibid).
In the SJER, Mr Faridy indicated his view that the proposed privacy measures would result in compromised internal amenity of future residents of the proposed development. The point of concern was the window treatment of south-facing bedrooms, and the limited amenity offered by the east-facing or west-facing windows (noting that the eastern apartments had both south and west-facing windows while the western apartments had both south and east-facing windows). In this instance, I prefer the evidence of Mr Betros who argued that appropriate amenity was available noting that, given the fact of east/west-facing bedroom windows, the south-facing windows would not be the sole source or light, ventilation or outlook. While there would be greater amenity offered from within these bedrooms were south-facing not constrained, as far as bedrooms are concerned, the proposal is not unreasonable, overall, especially given the fact of the additional bedroom windows.
The particulars of the means of addressing visual privacy and the related matter of redevelopment potential to the south, as referenced in the SJER, were translated to agreed conditions of consent (without prejudice on Council's part). They form conditions 2d. to 2f. in Annexure 'A'.

Visual amenity and visual bulk of the proposal

It is clear that the visual bulk, as perceived, would decrease were the building to be setback further from boundaries and from a compliant wall height. Again here the key concern is the visual amenity perception from the southern boundary. As indicated above, the building's side setback is generally in line with the controls and expectations. It also seems to me that the design form and material adequately offset the wall height break. Here, I accept the evidence of Mr Betros that with the detailing of the building massing (including to the south) which includes the increased setback for the central third or so of the building and the further visual breaking up of the side elevations through materials (with masonry prominent on the lower two levels and a cladding finish to the extremities of the top level along with the clerestory window form) will offset the visual bulk adequately.

Airflow

The immediate neighbour to the south expressed concern in regard to airflow relating to the building's side setback. Air circulation is also raised as an issue in the objectives to the topic of building setbacks in clause 3.4. of RDCP. There was no expert evidence to suggest physical impacts might eventuate here and I note that the proposal complies with the numerical standards for side setbacks at clause 3.4.2 of RDCP. The proposed development configuration seems to be common enough, and in the circumstances, I am not inclined to see this as a significant issue in the case.

Acoustic privacy and other amenity concerns at the ground level

Both Mr Faridy and the neighbour to the south raised concerns about the amenity impact and security problems in regard to the pathway just north of the common boundary. I agree with the Applicant that this is a typical arrangement for a RFB development within the zone. While there would be noise from footfall and talking this can occur in medium density neighbourhoods and even low density neighbourhoods. The relatively small scale of the project (six units only) would be self-moderating to an extent. The proposed fencing and edge landscaping seem to me typical and meet deep soil requirements. The experts expressed satisfaction with the proposed arrangement in regard to security concerns (Ex 5 pars 68 and 70) and proposed condition 76 would address external light annoyance concerns reasonably.

Effect on development potential

I agree with Mr Betros that the general configuration, or pattern of development, adopted with the proposal could provide something of a template for future development to the south (thought of potentially as a consolidated redevelopment of 193 and 195 Carrington Road). I believe Mr Faridy also accepted this position. That is not to say this is the only development pattern available, as put by Mr Betros it was an "example" only (SJER p 7). Certainly any redevelopment of adjacent land will move forward of its own volition. But with the pattern evident in this example in mind, and taking into account the opinions expressed in the SJER, I am not of the view that the subject proposal unreasonably constrains redevelopment of 193 and 195 Carrington Road.

Communal open space for future occupants

Council contends the proposal is inconsistent with the design criteria under Objective 3D-1 of Apartment Design Guide. The objective and design criteria are reproduced below: "Objective 3D-1 An adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping Design criteria 1. Communal open space has a minimum area equal to 25% of the site (see figure 3D.3) 2. Developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid winter)"
It was uncontested that the proposal meets the 25% minimum area requirement (Ex A DA-A-800). An examination of the shadow and view from the sun diagrams indicates that the northern buildings would shade the area for much of the mid-winter period. Nevertheless, I am satisfied that an adequate area of communal open space is provided in accordance with Objective 3D-1. Here I agree with Mr Betros that the consolidated nature of this quite large open space area to the rear, with BBQ facilities and the like and sensitive landscape treatment including for privacy, is quite a positive feature of the development and has good prospects for active use.

Other issues

In regard to State Environmental Planning Policy No 55 - Remediation of Land, and in particular cl 7(1), I note and accept the uncontested advice from the Applicant (Ex A Tab 4 p 41) that the land has been used for residential purposes for an extended timeframe and is not considered to be at risk of contamination. No further consideration is required in this instance.
In regard to SEPP 65 and cl 50(1A) and (1AB) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the Applicant has provided the required statement by the proposal's qualified designer (Ex F) addressing how the design quality related principles and objectives nominated at cl 50(1AB) of the EPA Regulation are achieved. I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria (as required by cl 30(2) of SEPP 65).

Conclusion

I am satisfied that the proposal provides an adequate response to solar access for the neighbours to the south, the vulnerability of these properties is clear and there is a considerable amount of solar access retained including in mid-winter. I accept the agreed position of the experts in regard to the satisfactory nature of the general visual presentation of the building and landscaping. The visual massing can be accepted given the setting and architectural detailing. The quality and size of the private open space including its useability in mid-winter is sufficient to overcome the minor deficiency in hours of solar access in midwinter. On this basis and in consideration of the other issues as addressed above, the proposal warrants support subject to appropriate consent conditions.
There were two points of difference between the parties in regard to consent conditions (submissions made without prejudice on the Council's part). I find as follows:

Condition 4 - the opening sentence requires consistency with relevant plans. In regard to the second sentence, there is no need to again reference the requirement to comply with the particulars of plans already referred to in Condition 1.
Condition 34 - there was no evidence to suggest what can be thought of as the common requirement for a "Works Zone", for demolition work, would not be required in this instance. I note this is a particular setting of high parking demand. The addition of an "if required" conditionality to the requirement creates unreasonable uncertainty without supportive evidence.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA/175/2020 seeking development consent for a residential flat building and associated development at 191 Carrington Road, Coogee subject to conditions of consent at Annexure 'A'. 3. Exhibits 1, 2, 4 and 5 are returned.

Commissioner of the Court Annexure A (355248, pdf) Architectural Plans (5876299, pdf) Landscape Plans (4448498, pdf)

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: 13 August 2021

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Parties

Cases Cited (3)