Skyworks NSW Pty Ltd v Randwick City Council

Planning framework 4Section 96(2) of the EPA Act provides: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and ... (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. 5The parties agree that the proposal is substantially the same development. They also agree that an application for modification can be approved for a development in breach of an applicable development standard without an application under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) (see Lido Real Estate Pty Ltd v Woollahra Municipal Council (1997) 98 LGERA). 6The site is within Zone No 2C (Residential C Zone) under RLEP. The proposal is permissible with consent. Clause 43 of RLEP requires that the impact on the heritage significance of items in the vicinity (53 Willis Street) must be considered. RLEP also includes a minimum landscape area of 50% of site area (cl 20E); a maximum floor space ratio (FSR) of 0.65:1 (cl 20F); a maximum building height of 12 m (cl 20G(2)) and a maximum external wall height of 10 m (cl 20G(4)). 7Draft Randwick Local Environmental Plan 2011 (Draft LEP) has been adopted by council and forwarded to be made. The parties agree that it is imminent and certain. The draft LEP includes a savings provision (cl 1.8A), however, this applies to development applications and would therefore not apply to a s 96 application lodged prior to the commencement of the plan. 8Under the Draft LEP the site is within zone R3 Medium Density Residential, with a maximum building height of 12 m (cl 4.3(2)) and a maximum FSR of 0.9:1 (cl 4.4(2)). 9Randwick Development Control Plan Multi Unit Housing (DCP) and State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings (SEPP 65) apply to the proposal.

Background and the proposal 10On 9 March 2010, Council granted consent subject to conditions to the development application for "demolition of existing structures on site and construction of part 3 part 4 storey multi-unit housing building containing 5 units with basement carparking accessed from Kennedy Lane (SEPP 1 objection to FSR control)" (development consent). The development consent was approved on the basis that the development complied with the landscaped area and height controls in RLEP but exceeded the FSR control. In determining the original application and the associated SEPP 1 objection, the council found that the variation to the FSR standard was well founded. The FSR approved under the development consent is 0.87:1. 11The s 96 application seeks approval to amend Condition 1 of the development consent to include plans which reflect changes to the development. Some of the proposed works have been constructed without approval. The changes originally sought are described in the Statement of Environmental Effects as:

• Basement along Willis Street- new storage area below Unit 1 with new internal stairwell
• Unit 1- Level 1- reconfigured living area to provide for a more useable deck area with no increase in FSR, revised window locations, revised laundry and bathroom location
• Revised lift location and revised lobby locations
• Level 2- Unit 2- reconfigured internal layout (no increase in FSR). Reconfigured stair and lift access.
• Level 2- basement car parking accessed from Kennedy Lane- removal of mechanical stackers and replacement with stacked parking, revised garbage room.
• Level 3- Unit 3- reconfigured internal configuration
• Level 3- Unit 4- incorporation of parking within the front setback along Kennedy Lane. Incorporation of a new study through the removal of the redundant eastern fire stair. Revised internal configuration, openings and direct access to private open space and car parking. Increased landscaping along southern side to compensate for the replacement of the landscaping along Kennedy Lane which has been replaced by a car space.
• Level 4- Unit 5- reconfigured internal configuration and outdoor terrace. Revised lift access and stairwells.
• Level 5- New unit 6 with new living, bedroom and balcony which has replaced the upper level of Unit 5. Extended stairwell access from Level 4 to provide internal access from Level 4. New balcony to the eastern side of the unit. Proposed planter beds around the rooftop.
• Increased height of the building by 1.05m to allow for 2.7m clear ceiling heights and services/slab thickness along the eastern units. Increased height of the building along the western component by 400mm. 12The s 96 application was subsequently amended so that the increase in the approved height of the eastern end of the building would be 350 mm (RL 66.100) and at the western end of the building would be 110 m (RL 60.110). Other changes also included the provision of 1.6 m translucent privacy screens to the southern side of units 5 and 6 and the removal of the roof over the deck and the eastern balcony of unit 6 (Exhibit F). 13A mention was held on 14 September 2012, to clarify matters raised by the Court in relation to the provision of carparking, the location of the "comms elec" room and anomalies with the plans. Amended plans were filed on 19 September 2011.

The evidence 14The Court heard expert planning evidence from Mr S Harding, for the council and Mr A Betros, for the applicant. 15The Court visited the site and surrounding area and heard evidence on behalf of the owner of 7/47-49 Willis Street. Their main concern is the loss of views to the south from their terrace. In their opinion, the development as approved, would retain views to Botany Bay which would be impacted upon by the proposed increase in height. In oral evidence, the experts agree that the amended s 96 application would increase the height of the building where it adjoins Unit 7 by about 110 mm and that there would be no material impact on views. Mr Seton, for the council, did not press loss of views as a reason for refusal. 16The key difference of opinion between the experts is whether the increase in height and FSR and the reduction in setback and landscape area would result in unacceptable impacts. 17Mr Harding acknowledged that some of his concerns would be substantially addressed by the proposed amendments to the s 96 application to:

• reduce the height increase to RL60.09 at the western end and RL66.11 at the eastern end;
• provide a 1.5 m glazed privacy screen on the southern balcony of units 5 and 6;
• cut back the balcony roof by 2.5 m on unit 6; and
• reduce the planter on the eastern balcony of unit 6. 18Mr Harding maintained his concerns about the changes to the setback of the building, particularly the encroachment into the approved setback along the northern boundary near the entry/lift area which added to the visual bulk of the building. Mr Harding acknowledged that there were inconsistencies between the approved plans and elevations and that it was difficult to accurately determine what had been approved in this area. 19Mr Harding was also concerned about the reduction in landscaping, particularly at the Kennedy Lane frontage. In his opinion the replacement of planting with an entry path and car space for unit 4 had an unacceptable impact on the streetscape of Kennedy Lane. He considered it preferable to delete the visitor car space and provide parking for Unit 4 in the basement. 20Mr Betros considered that the changes did not materially add to the visual bulk of the building from the adjoining property or the public domain. They resulted from the non compliance of the approved development with the BCA and from inconsistencies in the approved plans. 21In Mr Betros' opinion, the landscape treatment along Kennedy Lane was acceptable and consistent with the development consent and the character of the lane. The parking area would not reduce deep soil planting as it is over rock and there had previously been garages along the Kennedy Lane frontage of the site. He noted that the planter box over the driveway had been increased which would soften the building's appearance from Kennedy Lane.

Findings 22RLEP states that the height, FSR and landscape area controls are to work together to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area.

Height 23With the exception of the lift, the proposal complies with the height control of 12 m in the cl 20G(2)) of RLEP. The non compliance results from the changed position of the lift and stairs to comply with the Building Code of Australia (BCA), the slope of the site and the provision of a lift overrun which was not shown in the development consent. The experts agree that the lift would not be visible from the public domain and did not identify any direct impacts such as overshadowing. 24Similarly, parts of the proposal exceed the 10 m external wall height control in RLEP. This will increase the bulk of the building and result in additional overshadowing, however these impacts are not material. The increase in overshadowing which results from the non compliance appears to fall on the roof and side wall of 53 Willis Street and the increased bulk will not be viewed from the public domain or from adjoining properties. 25The other changes comply with the 10 m wall height and do not add to the bulk of the building or result in unacceptable overshadowing impacts or view loss. 26The proposed changes, other than the lift, will comply with the 12 m height limit in the Draft LEP, which the parties agree is imminent and certain. The Draft LEP does not include a wall height control. I accept Mr Staunton's submission, for the applicant, that the Draft LEP should therefore be given significant weight and that the proposed increase in height is consistent with the planning approach in the Draft LEP (see Architects Haywood v North Sydney Council [2000] NSWLEC 138).

Floor space ratio 27The experts agree that the FSR of the proposal will increase from 0.87:1 to 0.9:1 (approximately 19.62 sq m). The additional area to Level 5 (unit 6) to convert what was approved as a bedroom for Unit 5 to an additional unit is 12 sq m. The additional bulk will not result in a material impact from either the public domain or adjoining properties. Similarly, the additional FSR will comply with the FSR proposed under the draft LEP of 0.9:1 and is consistent with its planning approach.

Setback 28Mr Harding's main concern was the reduction in the setback on the northern boundary resulting principally from the rearrangement of the lift and stair lobby and the provision of a "comms elec" room. At the mention on 14 September 2012, the applicant was asked to investigate the relocation of this room. The applicant has subsequently advised that this is not possible due to the structural integrity of the northern retaining wall. Council did raise issue with this advice. 29It is difficult to ascertain what is approved in this location under the development consent, as there are inconsistencies with the plans and elevation. While it would be preferable for this part of the building to be setback from the boundary, I accept that the change will not materially increase the bulk of the building or result in amenity impacts beyond those of the development consent.

Landscape area 30I accept Mr Betros' evidence that the changes to the landscaping along the Kennedy Lane frontage are acceptable and consistent with the development consent and the character of the lane. The reduction in landscaped area in this location is offset by the increase in the planter box over the driveway and overall there will be no material nett reduction in the amount of landscaped area, the landscape setting of the building or its appearance from Kennedy Lane.

Orders 31The orders of the Court are:

1. The appeal is upheld.
2. The development consent granted by the Respondent on 9 March 2010 to DA/676/2009 for "demolition of existing structures on site and construction of a part 3 part 4 storey multi unit housing building containing five units with basement car parking accessed from Kennedy Lane (SEPP 1 Objection to FSR)" on the property at 51 Willis Street, Kingsford is modified pursuant to Section 96(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure A.
3. The exhibits, except Exhibits 1 and G may be returned.

Annelise Tuor Commissioner of the Court ANNEXURE A 1.The "description of work" is amended to read: "Demolition of existing structures on site and construction of part 3 part 4 storey multi unit housing building containing six units with basement car parking accessed from Kennedy Lane (SEPP 1 Objection to FSR Control)". 2.Delete condition 1 and insert: 1.The development must be implemented in accordance with the plans filed in Land and Environment Court Proceedings 10442 of 2012 on 19 September 2012 being Sheet Nos 01, 02, 03, 04, 05, 06, 07, 08, 09, 10 and 11 prepared by Arkivis all marked as issue B dated 14-09-12 except as may be amended by the following conditions. 1A.The plans in condition 1 are amended as follows: 1The area described as "ROOF" on Sheet No. 07 to the west of unit 6 that is accessed via the "SERVICE DOOR" shall be made non trafficable by the use of gravel overlaid on the concrete surface. 2The door from bedroom B1 in Unit 3 to the area described as "planter" is to be deleted and replaced with a solid wall or alternatively a fixed window. 3. Delete condition 5 and insert: "5.The north facing windows of units 1, 2 and 3 shall be high sill windows no lower than 1.6 metres from the floor level of the relevant unit and the glazing for the north facing window of unit 3 must be frosted." 4. Delete condition 6. 5. Delete condition 7. 6. Delete condition 90 and insert: "90.Landscaping at the site shall be installed substantially in accordance with the plans tendered as exhibit "G" in Land and Environment Court Proceedings No. 10422 of 2012 prepared by Conzept Landscape Architects being Drawing No. LPCC 13-07/1 issue A dated July 2011 and Drawing No. LPCC 13-07/2 issue A dated July 2012 subject to the following: (a)The door from bedroom B1 of Unit 3 to the area described as "planter" is to be deleted and replaced with a solid wall or alternatively a fixed window. (b)The area described as "Lawn with Turf Cell" on the roof to the west of unit 6 that is accessed via the "SERVICE DOOR" is to be replaced with non trafficable material of gravel overlaid on the concrete surface. (c)All planter boxes and garden beds constructed on slab must have a minimum cell depth of 600 millimetres, with construction details to be submitted. (d)To ensure satisfactory maintenance of the landscaped areas, an automatic drip irrigation system shall be installed throughout all planted areas. Details shall be provided showing that the system will be constructed to the sites rainwater tanks, with back up connection to the main supply, in accordance with all current Sydney Water requirements. (e)All detention tanks and below ground stormwater infiltration systems located within the landscaped areas shall have a minimum soil cover of 600 millimetres to ensure sufficient soil depth to permit the establishment of landscaping. (f)Any substation required shall be screened from view with the proposed site, location, elevation and screening method to be shown". 7. Add the following condition after condition 8: "8A.No access shall be provided to any person to the area described as "ROOF" to the west of Unit 6 that is accessed by the "SERVICE DOOR" other than for the purpose of carrying out repairs, maintenance or installing services related to the building." 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: 28 September 2012