Residential Logistics P/L v Randwick CC

CASES CITED: Tenacity v Warringah [2004] NSWLEC 140

APPLICANT Mr J. Hones, solicitor of Hones Lawyers

RESPONDENT Mr Kildea, barrister instructed by Bowen Gerathy

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11616 of 2004 Residential Logistics Pty Limited v Randwick City Council

JUDGMENT 1 This was a class 1 Appeal No. 11616 of 2004 between Residential Logistics Pty Limited and Randwick Council in regard to an attached dual occupancy at No. 109 Victoria Street, Malabar.

2 The site was about 490 sq m in area with about 20 m frontage and 24 m depth. It was rectangular and sloped down from the street towards the north-east and Long Bay.

3 The streets in this locality generally ran along the contour of the hill so there were rows of houses along each street and each row stepped up the hill from the ocean front. The subject site was in the second row of houses from the ocean front. There was an older modest single-storey house on the site. Downhill there was another older modest single-storey house fronting Bay Parade and on both sides were newer and much larger houses that could be described as elevated two-storey.

4 There were neighbouring houses. These neighbouring houses all had views to Long Bay and the headland to the north and the ocean horizon to the east. Obviously, the houses on the ocean front of Bay Parade had unobstructed views. The second row of houses had some views between and, in some cases above the houses below.

5 On the uphill side of Victoria Street was a mixture of one and two and even three-storey houses. Nearly all the two and three-storey houses were relatively new and had built high to get the views.

6 Opposite the site at No.s 114 and 116 there happened to be two older single-storey houses. Currently, they had some quite pleasant and wide views from their living rooms, main bedrooms and, in one case, the front veranda. The centre of the views from each were above the site and its single-storey house and the other single-storey house below it. Because these older houses were lower than the two-storey and, in one case, three-storey houses downhill, No.s 114 and 116 could see the water of Long Bay and its north shore with ocean waves breaking on the rocks. Most of the headland on the north shore was visible and the far horizon to the east. But, views either side of the subject site had higher buildings in the foreground, some of which blocked some of the parts of the views from No.s 114 and 116 and of course, other houses along the street.

7 This was the major issue in the respondent's case. The loss of views to No.s 114 and 116 was put as devastating to No. 114 and severe to No. 116.

8 The issues were; 1. Whether the proposed development is consistent with the aims and the objectives of the Randwick Local Environment Plan 1998 , in particular, the objectives of the residential 2(A) zone. Particulars; the aim of cl 2(g) of the LEP is, "To promote, protect and enhance the environmental qualities of the city." The proposed development does not satisfy the intention of cl 2(g) of the Local Environment Plan because the proposed development has a detrimental impact upon the environmental qualities of the area, that being coastal and scenic qualities. The objectives of cl 10(c) is, "To enable redevelopment for low density housing forms, including dwelling houses, dual occupancies, semi-detached housing and the like where such development does not compromise the amenity of surrounding residential areas and is compatible with the dominant character of the existing development." The proposed development comprises the amenity of the surrounding residential in that it creates an unacceptable degree of view loss for neighbouring properties to Long Bay, Boora Point and Malabar Headland. Further, the form and design of the proposed development is not compatible with the built form of the surrounding development. 2. Whether the proposal satisfies the intention of cl 29 foreshore scenic protection area of the Randwick Local Environment Plan 1998. Particulars cl 29(3) of the LEP states, "The council may only grant consent referred to in sub cl 2 after it has considered the probable aesthetic appearance of the building in relation to the foreshore." The purpose of cl 29 is to identify visually prominent residential areas along the coast and establish consent requirements for development in these areas to protect and enhance the visual qualities. The appearance, scale, height and form of the proposed development is not in keeping with the character of the surrounding foreshore scenic protection area. 3. Whether the proposed development would have an adverse impact on immediately adjoining properties in relation to view loss and whether the proposal satisfies the objectives and performance requirements s 4.3 and performance requirements of s 4.9 of the Development Control Plan for dwelling houses and attached dual occupancies. Particulars. One of the objectives of a s 4.3 height form and materials of the development control plan states, "To ensure buildings reserve privacy and natural light access for neighbouring residents and allow for a sharing of view."

Performance requirement 6 of s 4.3 height, form and materials of the development control plan states that, "Buildings are designed to allow a sharing of views."

Performance requirement 4 of s 4.9 foreshore development of the Development Control Plan state that, "Buildings incorporate sufficient setbacks to allow planting and a fair sharing of views." The height, roof form and setbacks of the proposed development does not allow for sufficient sharing of views, including coastal views of Long Bay, Boora Point and Malabar Headland from properties located to the east and south-east of the subject property. Properties to the east and south-east of the subject property include but are not limited to No.s 110, 112, 114 and 116 Victoria Street, Malabar. 4. Whether the proposal is in the public interest, having regard to the issues and concerns raised in the residential submissions. Particulars. The proposed development is not in the public interest given objections received from properties at No.s 106, 108, 110, 112, 114 and 116 Victoria Street, Malabar. Objections received raised concerns that the proposed development creates excessive view loss as a result of its height and bulk. Further objections to the proposed development include a concern that the design of the development is not in character with the immediate locality. Also, concerns are raised that a dual occupancy is not considered to be an acceptable form of development in the context of the area.

9 The Court heard the respondent's evidence from Ms N Theodorus, objector and resident of No. 114 Victoria Street, Ms U Kalthause, objector and resident of No. 116 Victoria Street, Mr A King, objector and resident of No. 110 Victoria Street and Mr Inga, objector and resident of No. 108 Victoria Street. The Court was shown the views from No. 112 Victoria and the owners had objected to the proposal, however, the house was tenanted. Written objections were in the respondent's bundle of documents.

10 The applicant pressed the consultant town planning report of Mr Fletcher, whom the parties had agreed should be appointed by the Court. Mr Fletcher and the applicant submissions could be summarised in part as follows:

11 In the case of the subject site, it was in a part of the topography that had lesser slope at the bottom of the hill. So there were no views of the water of Long Bay from the ground floor level and only some glimpses of the top of the headland between houses and a glimpse of a small part of the ocean horizon through trees. The proposal was for two 2 storey attached dual occupancies, each being two bedrooms.

12 In order to obtain some views the combined kitchen, living room and dining was on the upper floor in each unit with the master bedroom and en-suite facing the street. On the ground level was a single car garage for each unit plus another bedroom and then a family room in each unit facing the backyard. On both floors of each unit there was a large covered terrace on the north-east side which would have the benefits of sunlight, ocean breezes in summer and some views gained by being at the first floor level.

13 The evidence showed that the two larger houses fronting Bay Parade on either side of the proposal would confine the views from the subject site to what could be seen between them and the roof of the existing older single-storey house directly below the proposal. If that existing house ever had a second storey added the views from the proposal would be further reduced.

14 Mr Fletcher's evidence and the applicant's submission was that, given the intentions of the statutes and control plans to share the views, the subject site had no option but to go 2 storeys in order to obtain any view, and even then the views would be partial views between houses.

15 The original design in exhibit J had been two-storey across the site with 1.5 m side setbacks. That had been changed in the subject plans in exhibit A to step the second storey in, so it had 2.5 m set back from the boundary at each side. The roof was at a low 12 degree pitch. There was a front gable parapet above the garage doors. It was at 25 degree pitch. It went a little higher than the ridge. The objectors were concerned it would further block the views from No.s 114 and 116. The applicant said it would appear lower than the ridge of the roof when being looked down on from the uphill side of the street.

16 Height poles and string lines had been erected and surveyed showing the wall positions, the eaves levels at front and rear and the two ends of the ridge of the hip roof and its height. The survey showed the ridge of the proposed roof would be 2.24 m below the maximum council allowed and the wall height was 0.52 m below the maximum allowed. The applicant said all reasonable concessions to view sharing had been given in exhibit A, and the proposal complied on all numeric requirements of the statute and controls and in may cases, generously complied, as exampled by the heights being well below the maximum.

17 Another example was the landscaped area and private open space provisions where the proposal had 51% of the site landscaped versus 40% being the requirement and 76 sq m of private open space for each unit when 25 sq m was the requirement.

18 The site also had a stormwater detention and recycling system for landscape irrigation with excess stormwater being pumped to the council's drains.

19 The applicant said the floor space ratio was close to the maximum allowed but that could be expected given the proposal was dual occupancy and, given the large size of new houses in Victoria Street, any new house on the subject site would be of about the same size and proportions. The respondent did not disagree with these latter points.

20 Mr Fletcher said that he had regarded the council statute and the Development Control Plan requirements on view sharing and also considered the court's adopted planning principle arising out of Tenacity v Warringah [2004] NSWLEC 140. It was his opinion that the final question or test in Tenacity about view sharing was whether or not it was reasonable. The respondent agreed this was the crucial point in determining this dispute between the council and the applicant. The respondent said it generally agreed with Mr Fletcher's evidence in regard to the first three steps in the Tenacity tests.

21 Mr Fletcher had considered a report on the original plans by Dr Lamb. Dr Lamb's solution to balancing the applicant's rights to have a view and the objector's wishes to not have their views reduced was to give the top floor of the proposal a four metre set back from the side boundaries thus opening a wider corridor on each side of the proposal down which No. 114 and 116 could see to the water and far shoreline of Long Bay.

22 The worst affected objectors, Mrs Theodorus and Mrs Kalthause, supported this position as reasonable.

23 Other objectors who were less affected, Mr King and Mr Inga, were more in favour of a flat roof versus a pitched one because their views were only in part across the site. They looked diagonally across the site so the side setbacks created no corridor of sight for them. It was the ridge of the roof that affected their views to a minor extent. Also, they were concerned other older single storey houses opposite them might also go two-storeys and a flat roof as a precedent on the subject site would hopefully minimise any impact on their views in the future.

24 The applicant tendered evidence in exhibit F to indicate that given the increased structural requirements for flat roofs and the need for parapets that whilst there would be a reduction in view loss if a flat roof were proposed, it would not be significant due to the low pitch of the hipped roof proposed.

25 Mr Fletcher said Dr Lamb's solution was too severe on the subject site and its reasonable expectations of some views. He said the combined kitchen, living and dining rooms were already quite modest with limited accommodation for dining and lounge furniture and room for circulation. A further reduction would give them further reduced amenity inside. Being only two bedroom units and having a family room, the space in the dual occupancies was adequate, but should not be further reduced, he said.

26 Mr Fletcher's major concern was that in obtaining any views between the houses to the north-east, the proposal of Mrs Theodorus, Mrs Kalthause and Dr Lamb would take an observer on the proposal's first floor rear balconies, or in the rooms inside, too much further away from the view corridors. Bearing in mind the fact that the proposal complied with all numeric requirements and more than complied in some cases, the proposal had done all that could reasonably be expected for view sharing in Mr Fletcher's opinion.

27 The respondent had a different interpretation of the planning principle, drawing attention to the statement, "With a complying proposal the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that is, no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable."

28 The respondent said, although exhibit A was an improvement over exhibit J it was not skilful enough. There was scope due to the large amount of landscaped area and private open space to change the shape of the building to give the extra side setback on the second storey and still have the same floor space.

29 In looking at the plans I had another concern. On the landscape plans the only two large trees to be planted as a condition of consent were located at either end of the front boundary in the middle of the view corridors down the side setbacks. No one had raised that in evidence. Mr Fletcher agreed banksias with a growth height of 10 m, and an understorey of 6 m high Lilli Pilli trees would result in not much view corridor being left. Mr Fletcher, although not a horticulturist, said in the salt atmosphere close to the ocean, the trees would probably not reach the maximum height. But in any case there would still be not much view corridor left.

30 The parties agreed the location of the trees should be changed to be on either side of the entry drive on the front boundary. This seemed reasonable as the trees and the bulk of the building would coincide, and leave the view corridors free.

31 Mr Fletcher agreed the proposal as in exhibit A was acceptable in the streetscape and would fit into the character of the area. He had observed the area from the north side of Long Bay and said the existing house was difficult to see amongst all the others. The proposal, being of relatively modest proportions, would not stand out amongst the existing houses or have any adverse effect that was unacceptable in the foreshore scenic protection area.

32 The applicant pressed Mr Fletcher's conclusions on the reasonableness of view sharing. The objectors at No.s 114 and 116 had said a more skilful design might be to locate the second storey on either side of the proposal to preserve their views through the middle of the site or to put more floor space at ground level and less on the second storey.

33 The respondent tendered photomontages in exhibits 7, 8 and 9 of the view obstruction by the previous design in exhibit J, as seen from No.s 110, 114 and 116 respectively. One can see the view loss caused by the exhibit A amended design would be considerably less than shown in the photo exhibits. Compared to what could be seen on site the photo in exhibit 9 is from the living room of No. 116. A much better view would remain from the master bedroom but it still would be a view corridor to the water and the headland. Some views to the horizon would remain in other directions.

34 No. 114 would be a little better off than No. 116 in my opinion, after having seen it on site with the height poles erected, although Mr Fletcher thought No. 114 was the worst affected. No. 112 lost most of the extreme tip of the headland but would still see the far horizon and other views of the bay and headland.

35 The applicant put, and Mr Fletcher agreed, that it could reasonably be expected No.s 114 and 116, being older single-storey houses along the high side of Victoria Street would redevelop the same as many others. In that case any new houses on those properties would get much better views than the proposal. Seen in that light, the impacts were relatively short term although the current owners of No.s 114 and 116 would have that impact in the meantime.

36 In coming to a conclusion, I note the expert and the party's opinions that view sharing is a balancing act because each objector and the applicant have a wish to maximise their views.

37 In following the Court's adopted planning principle it seems to me requirements such as the objectors' that the second storey be narrowed further, or more floor space put at ground level, creates impacts on the proposal that are unreasonable. Given: o the applicant's amendments to the design and o the modest nature of the proposal compared to the council statute and controls and o the coastal foreshore scenic protection considerations,

all of which were complied with, the proposal is reasonable.

38 Mr Fletcher had concluded that any reasonable person or prudent purchaser of houses on the high side of Victoria Street would expect that a two storey house or dual occupancy might be built on the subject site. The objectors have views now that they would reasonably expect to have reduced in that event. Having the advantage of elevation on the high side of the street they will still have views that are better than the subject proposal, and have the potential of adding a second storey themselves in the future. I agree with Mr Fletcher that having those considerations before me, the impacts on the objectors' views are reasonable.

39 Turning to the conditions, I agree with the applicant's condition one in exhibit H naming the approved plans, provided there is an amendment regarding the trees and the landscape plan in condition 1B. In condition 1A there needs to be a condition that the driveway be widened to 4 m at the street boundary and footpath crossing. I accept that the applicant's exhibit K longitudinal section of the driveway is a more correct depiction of the proposal than thought in council's memo in exhibit 13. I also think the parapet on the front elevation should be lowered so the peak is no higher than the ridge of the roof to ensure it does not further reduce view loss as the objectors fear.

40 The amendment to condition 1B has a flow-on to conditions 8 and 32 as in exhibit H. The respondent agreed to changes in conditions 2, 24, 36 and 37 as in exhibit H. I retained condition 50 as it was a professionally unqualified submission that the area is not subject to slip. The area is sloping and individual sites can have landslip problems that are undetected if not investigated. The change to condition 66 is allowed as per exhibit H.

41 Therefore the orders of the Court are. 1. The appeal is upheld.

2. Consent is granted to an attached dual occupancy at No. 109 Victoria Street, Malabar as shown in Job No. 85, Drawing Nos. 1/1, 1/8, 2/8, 3/8, 4/8, 5/8, 6/8, 7/8, 8/8 all Issue A by Forte Designer Homes Pty Ltd, and landscape plans Nos. LPDA-05-RL 509/1, 509/2, 509/3 by Landscape Architectural Services and drainage plan Job No. PC5257 Sheet 1A by Rafletos Zanuttini Pty Ltd, all as amended by, and built in accordance with the conditions in Annexure "A" hereto.

3. The exhibits are returned to the parties except Exhibits A, B, C, D, H, K, 1, 2, 6, 7, 8 and 9.

K G Hoffman Commissioner of the Court ljr

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.