Raissis v Randwick City Council [2019] NSWLEC 1040 | Case summary

Land and Environment Court (NSW)|2019-01-23

Judgment

COMMISSIONER: The Applicant, Mr Spiro Raissis seeks consent for alterations and additions to an approved residential flat building at 1 Coogee Street, Randwick. The development application seeks consent to:

provide an additional storey comprising one unit; and
delete the stairs approved under the current consent and provide new windows in lieu of the stairs on level 2.

This matter is an appeal under s 8.11 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of DA/22/2018 by Randwick City Council.
I note that the development application was notified in accordance with the provisions of the Randwick City Council Development Control Plan 2013 (DCP 2013). In response to the public notification Council received nine submissions objecting to the application. I have read these submissions which have been tendered in the Council's bundle of documents (Ex 6).
The amended plans before the Court were renotified by the Council in September 2018.
Some of the objectors also gave further oral evidence at the site view. The residents' concerns are broadly that the additional development sought through this application will: 1. further reduce their solar access and amenity; 2. impact the privacy of their properties from the increase in windows to the eastern boundary; 3. exacerbate their concerns in regards to the safety of the driveway access to the development by increasing car movements; 4. increase on street parking demand by reducing parking provision in the basement; 5. result in excessive height and an obstruction of views to the sea. 6. The amended development will appear as three storeys above garage from Judge Street and four storeys from the adjoining properties to the west. This is in exceedence of the Councils planning controls which seek three storey development. 7. potential of overlooking into 3 Coogee Street, Randwick arising from the staircase landing, and the proposed 3-panel window in the living room. 8. the potential for the non-trafficable area on the eastern side of the level three apartment to be converted to a terrace with consequential overlooking and privacy impacts.

Expert Evidence

The applicant relied on expert planning evidence of Ms Jennie Askin and the Council relied on the expert evidence of Mr Stuart Harding. The experts prepared a joint report that was tendered as Exhibit C.
A supplementary joint report was completed assessing the potential view impacts arising from the proposed development on 4 Judge Street, Coogee. This was tendered as Exhibit E. The conclusion of that report is: "We are in agreement that there will be no impact on water views from the kitchen as a result of the proposed works. There is potentially some improvement in views as a result of the lowering of the approved building by 1 metre. Much if not all of the views of the water from the living room will be retained." (Ex E)

Planning Controls

The relevant statutory instruments applying to the development are: 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The development proposal is for infill housing. 1. Under cl 10.1(2) of the instrument, the land must be within an "accessible area". Accessible area is defined in cl 4 of SEPP(ARH): 4 Interpretation-general (1) In this Policy: accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday 1. The subject site is within an accessible area, being 400 metres from a bus stop used by a regular bus service that has at least one bus per hour servicing the stop between 6am and 9pm each day from Monday to Friday and between 8am and 6pm on Saturday and Sunday. The respondent accepts that clause 10(2) of SEPP ARH is satisfied. 2. Clause 14 of SEPP ARH details standards that cannot be used to refuse consent. These standards are met by the development proposed. 3. Clause 16A requires consideration of the character of the local area: 16A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The experts agreed evidence is: "13. SH and JA agree that the amendments made to the initial design result in a character that is compatible with the local area. These amendments include reductions in terms of bulk at Level 3 and reduction in the overall height by 1 metre. 14. Importantly, the extent of the development near the eastern boundary has been removed, as have trafficable areas to this side. SH is of the view that it was predominately in this location that the bulk and scale of the proposed building and its relationship with the adjoining property that was uncharacteristic of the area. A further concern relating to the visual scale of the building was the presentation of the building to the streetscape when viewed from below in Coogee Street. The reduction in height, changes to scale of the building at the upper level and amendments to the streetscape have addressed this issue." (Ex C) 1. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)). A design verification statement prepared by Alex Smith (Registration number 5473) has been filed with the Court. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A certificate (748541M_03) has been submitted with the development application and the relevant requirements incorporated in the proposal (Ex A). The proposal is considered to satisfy the requirements of this policy. 3. Randwick Local Environmental Plan 2012 (LEP 2012).
The provisions of the above controls as they relate to the amended proposal are discussed with the evidence of the experts in the following.

The request to vary the height standard

Prior to a consideration of the merits of the development application it is necessary to consider whether the variation to the building height development standard at cl 4.3 of LEP 2012 is upheld. Assessment of the requested variation
Clause 4.3 of LEP 2012 provides for a maximum height for the subject site of 9.5m. The proposed development seeks a maximum height of 10.418m, breaching the maximum height control by 915mm.
Clause 4.6 of the LEP 2012 allows development standards to be applied flexibly in certain circumstances. For there to be power to grant development consent for a development that contravenes a development standard, I must be satisfied that:

The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)),
The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)),
The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), and
The written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

Further at cl 4.6(4)(a)(ii), the Court must be satisfied that the development will be in the public interest because it is consistent with the objectives of the Building Separation standard and the objectives of the B3 zone: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) at [26].

Is compliance with the standard unreasonable or unnecessary?

The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (Wehbe).
Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by Council's own actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 4).
In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).
In these proceedings the written request seeks to establish that the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1).
The objectives of the development standard for height of buildings are: (a) to ensure that the size and scale of development is compatible with the desired future character of the locality; (b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (c) 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.
The written request, prepared by aSquare Planning Pty Ltd, sets out the following justification for the noncompliance with height: "Objective (a) seeks to ensure that the size and scale of development is compatible with the desired future character of the locality. The proposal is generally well below the height control with the non-compliance limited to the southern section of the upper level. This is a direct result of the slope of the land and the ground level immediately below. In terms of the relative height of the building, this will be lower than the adjoining residential flat building to the north with the majority of the development falling well below the statutory height control. The component that extends above the height control at the southern part of the proposed upper level does not add to the overall bulk of the building as perceived from the public domain due to its form and setback from the edges of the building below. The height of the development is as envisaged by the controls and therefore compatible with the desired future character of the site. The building has been limited to three storeys with part of the car parking level being above ground in order to minimise excavation within the site and provide a building which is in keeping with the scale of adjoining properties. Objective (b) seeks to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item. The site is not located in a conservation area and is not located in the immediate vicinity of any heritage items. Objective (c) seeks 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. The proposed development complies with the statutory floor space ratio control and therefore is of a bulk and scale acceptable for the locality. In terms of visual amenity, the form of the development has been designed to complement existing surrounding development and to minimise impact on the existing streetscape, with the building generally below the statutory height control. The shadow diagrams submitted with the application demonstrate that the area of height non-compliance does not affect solar access to adjoining properties. The overshadowing impact in the afternoon, which is as approved and will not change, is as a result of the rear section of the building and, which is compliant in terms of height, external wall height and rear setback. As demonstrated in the view analysis, the proposed development is consistent with Council's policy for view sharing and results in a lesser impact than that envisaged by the controls. The upper level will not affect views from properties on the opposite side of Judge Street and Millford Street as the view corridor was determined in the original development assessment to be across the rear section of the site. …" (Ex C)
In addition to the preceding, the following points are raised in support of the finding that compliance is height control is unreasonable or unnecessary in this circumstance: "• compliance with the development standard is unreasonable and unnecessary as the development is generally within the statutory height control and overall, the development provides a compatible streetscape and appropriate contextual outcome. • the height non-compliance is a direct result of the sloping nature of the site and the minor exceedence will not create additional building bulk that results in environmental amenity impacts in terms of overshadowing, loss of views, loss of privacy or loss of amenity. • exceedance of the height control will not create additional building bulk that results in environmental amenity impacts in terms of overshadowing, loss of views, loss of privacy or loss of visual amenity and a reduction in this bulk would not create additional benefit for adjoining properties or the locality." (Ex C)
The Council accepts this justification and that compliance with the control is unreasonable or unnecessary as the development meets the objectives of the height control standard.

Findings

With the benefit of a site inspection, I accept the Applicant's reasoning at par [24] that compliance with the development standard is unreasonable and unnecessary in the circumstances of the subject site and the design proposed. I am satisfied that it is appropriate to apply the height standard flexibly for this particular development for the reasoning submitted by the applicant.
I find that I can be satisfied that the Applicant's written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2012.

Are there sufficient environmental planning grounds?

The Applicant's written request must adequately demonstrate that there are sufficient "environmental planning grounds" that justify the requested variation (cl 4.6(3)(b)). In Initial Action, at [24] Preston CJ observes that there are two ways in which the request must be sufficient. Firstly, "the environmental planning grounds advanced in the written request must be sufficient to justify contravening the development standard", and secondly: "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter (citations omitted)."
In considering the Applicant's case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].
The Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds: "The height can be achieved without adverse impacts. The development as proposed fits contextually within the site and streetscape. In the circumstances of the case, there are sufficient environmental planning grounds to justify contravening the development standard including: • The intensity of the development is appropriate and acceptable, having regard to existing adjacent development and compliance with the FSR control; • Non-compliance with the standard does not contribute to adverse environmental impacts and the appearance of the development when viewed from the public domain will be positive; • The proposed development provides an articulated building form that minimises perceived bulk and scale impacts when viewed from Milford Street, Judge Street and the surrounds of the site; • The proposed development achieves compliance with the relevant underlying objectives of the standard and the objectives of the zone; • Like many of the buildings in the steeply sloping Coogee basin, the greatest building height is located at the lowest corner of the site, whereas on the highest corner of the site, the building is dug into the slope. • The proposal will allow for the provision of affordable rental housing, which is identified as a specific objective in the R3 zone and as an object of the Act (Section 1.3 of the EP7A Act, 1979). …" (Ex C)
The Council accepts the Applicant's justification.

Findings

I am satisfied that the variation to the development standard supports the provision of affordable housing and by amending the existing approval 'provides an articulated building form that minimises perceived bulk and scale impacts.' Importantly the proposed development sits within the approved height exceedance and the FSR control, whilst providing affordable housing. The variation of the height standard is directly related to the benefit arising from the provision of an affordable housing unit, rather than the development as a whole. I accept the applicant's submission that the provision of affordable housing is a specific aim of the R3 Medium Density Residential zone and is an object of the Act.
Collectively, I accept these justify the contravention of the development standard.
I find that I can be satisfied that the Applicant's written request adequately demonstrates the matters in cl 4.6(3)(b) of LEP 2012.

Are the matters in Clause 4.6(4) satisfied?

As stated in Initial Action at [14], cl 4.6(4) "establishes preconditions that must be satisfied before a consent authority [or the court exercising the functions of a consent authority] can exercise the power to grant development consent" (at [13]). The consent authority must form two positive opinions of satisfactions under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent.
Pursuant to cl 4.6(a)(i), I am satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3), refer to pars [29] and [35-37].
Further at cl 4.6(4)(a)(ii), the Court must be satisfied that the development will be in the public interest because it is consistent with the objectives of the Building Height standard and the objectives of the zone: Initial Action at [26].
The subject site is zoned R3 Medium Density Development. The objectives of the R3 zone are: • 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 Applicant argues that the objectives of the zone are met on the following grounds: "The proposal will be in the public interest as it meets the objectives of the R3 zone as follows: • To provide for the housing needs of the community within a medium density residential environment The proposal will provide one bedroom dwellings offering a high level of amenity within walking distance of public transport, shops and other services and a two bedroom unit. • To provide a variety of housing types within a medium density residential environment. The locality is continuing a transition from a low-density area to a medium-density area and the provision of one-bedroom dwellings and a two-bedroom dwelling will add to the existing mix of apartment sizes existing and approved within the locality. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. This is not relevant to the subject proposal. • To recognise the desirable elements of the existing landscape and built form, or in precincts undergoing transition, that contribute to the desired future character of the area. The proposal has been designed in such a manner to fit contextually within the streetscape having regard to the topography of the site and the need to protect the residential amenity of the locality. In particular, the height of the proposal will still allow for reasonable views across the site with the majority of the development substantially below the height control. The small area in breach of the height control, through its design and location, will not affect views from surrounding residences. • To protect the amenity of residents The proposal has been designed to ensure that the amenity of the locality is protected in terms of solar access to adjoining properties, the protection of views towards the water, the protection of the visual and acoustic privacy of adjoining properties and the protection of the visual amenity of the locality. The proposed breach in height will not affect adjoining properties in terms of solar access, views or privacy. The building is articulated as viewed from the public domain and designed specifically to address the view coming down Millford Street. • To encourage affordable housing The provision of one-bedroom apartments and two-bedroom apartment (affordable housing unit) will add to the existing mix of apartments in the locality and encourage housing affordability. • To enable small scale business uses is existing commercial buildings This is not relevant to the subject proposal." (Ex C)
The Council accepts the Applicant's arguments in the preceding and adopts the Applicant's reasoning.
Further the Council accepts the agreed evidence of the planning experts and concludes that the request to vary the height standard should be upheld.

Findings

I am satisfied that consistency in this context means 'agreeing or concordant', 'compatible', 'not self-imposed or self-contradictory' (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).
I am satisfied on the basis of the arguments submitted by the Applicant, and agreed by the Respondent, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. Accordingly, I find that matters in cl 4.6(4)(a)(ii) are satisfied.
Finally, Initial Action notes at [29] that despite the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Land and Environment Court Act 1979 the Court should consider the matters in cl 4.6(5).
I find that I can be satisfied that the variation sought to the development standard does not raise any matter of significance for State or regional environmental planning, and that there are no specific circumstances that establish an overriding public benefit of maintaining the development standard in this case.
I find that the requirements of cl 4.6 of LEP 2012 are satisfied and the requested variation should be upheld.
Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am satisfied that the variation to the building separation development standard is warranted and consequently there is power, subject to merit assessment, to grant consent to the development application.

The resident objections

Many of the objections to the development raise concerns that correlate to the matters listed in objective (c) of the height standard, namely the impact of the development on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.
Beyond the consideration of the requested variation to the height control Council concurrently accepts that on a merit assessment of the application under s 4.15 of the Act the concerns of the residents have been into consideration along with the other relevant heads of consideration. The Council has concluded that none of those matters warrant refusal of the application.
The parties, having reached agreement, assert that the amended plans have been appropriately responsive to the objections of the adjoining and adjacent residents and their submissions have been appropriately taken into consideration.
The planning experts conclude as follows: "23. SH and JA agree that the proposal, as amended, has addressed Council's contentions and reduced the built form and amenity impacts of the proposal to an acceptable planning outcome. The proposal, as amended, is within the public interest as it meets the affordable housing criteria at a compatible bulk and scale." (Ex C)

Findings

I have given consideration to the objections put forward by the residents in their written submissions, as well as their views presented to the Court on the onsite component of the hearing. Given the concerns of the residents in relation to view impacts a supplementary joint report was requested of the planning experts to assess any impact of the proposed development. The conclusion of that report is provided at [54].
Specific to these proceedings a building envelope has been established as being acceptable for the subject site through the grant of consent through DA/555/2016. The proposed development before the Court does not seek to alter the front, rear and side setbacks of this approved development. As noted at paragraph [56] the proposed development is also consistent with the maximum height approved under the existing consent.
Despite the residents informed submissions I must give weight to the zoning of the land and the incentives provided by SEPP ARH in determining the merits of the application. The agreed evidence of the planning experts is that the amenity impacts arising from the development are acceptable, and in the circumstances of this application I concur. I find that there are no issues raised in the submissions that would warrant the refusal of the application.

Is the development compliant with the Floor Space Ratio (FSR) standard?

The planning experts are agreed that the proposed development, as amended 'provides the correct calculation of GFA [Gross Floor Area] to Affordable Housing. The allocated apartment on Level 3 is 99m² and the storage allocated to that apartment at basement level (which is included in GFA provided in RLEP 2012) is 10.05m². This equates to 20.64% of the total gross floor area being used for affordable housing. This provides a bonus FSR of 0.2064:1. The proposal provides a permissible FSR of 0.916:1.' (Ex C)
Accordingly the parties agree that Council's original contention in relation to calculation and compliance with the FSR standard is resolved.

Is the development compatible with the character of the local area?

In brief cl 30A of SEPP ARH requires the consent authority to consider whether the design of the development is compatible with the character of the local area.
At paragraph [13] of the joint report the experts state: "13. SH and JA agree that amendments made to the initial design result in a character that is compatible with the local area. These amendments include reductions in terms of bulk at Level 3 and a reduction in overall height by 1 metre. 14. Importantly the extent of development near the eastern boundary has been removed, as have trafficable areas to this side. SH is on the view that it was predominately in this location that the bulk and scale of the proposed building and its relationship with the adjoining property was uncharacteristic of the area. A further concern relating to the visual scale of the building was the presentation of the building to the streetscape when viewed from below in Coogee Street. The reduction in height, changes to the scale of the building at the upper level and amendments to the streetscape have addressed this issue." (Ex C)
The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. It has been used repeatedly by the Court in addressing cl 30A of SEPP ARH. The relevant considerations outlined in the planning principal are: "24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. • Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. • Is the proposal's appearance in harmony with the buildings around it and the character of the street?"
The planning principle also notes that compatibility is different from sameness and it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
The Council accepts that the proposed development is compatible with the character of the local area.
With the benefit of the site view I accept the agreed evidence of the experts that the development proposed is compatible with the character of the local area. I am satisfied that the appearance of the additional level will be in harmony with the buildings around it and the existing and desired future character of the street. I am satisfied that there are no physical impacts of the development on the surrounding properties that are unacceptable given the context of the site zoning and the planning regime applicable.

Orders

Based on the agreed expert evidence before me, I am satisfied that the amended proposal represents a reasonable balance between providing needed affordable housing and providing a built form that does not have adverse impacts on the amenity of the adjoining properties and is compatible with the character of the area. As required by s 4.15 of the Act, I have considered all of the evidence against the statutory framework including the objectors' oral and written concerns. As indicated I am satisfied that any relevant contentions have been satisfactorily addressed in the amended design and the conditions of consent. For these reasons I make the orders proposed by the parties by consent.
The Court orders that: 1. The Applicant's written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2012 in relation to the contravention of the development standard for building height in clause 4.3 of Randwick Local Environmental Plan 2012 is upheld. 2. The appeal is upheld. 3. Development Application No. DA22/2018 for alterations and additions to the residential flat building approved pursuant to Development Consent No. DA/555/2016 on the land at 1 Coogee Street, Randwick (Lot 100 in DP 1224614) is approved subject to the conditions in Annexure "A". 4. The exhibits are returned with the exception of Exhibits A, C, D, and 5. ……………. D M Dickson Commissioner of the Court Annexure A (441 KB, 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: 08 February 2019

(2007) 156 LGERA 446

Raissis v Randwick City Council

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (5)