Zhang v Randwick City Council

Zhang v Randwick City Council - [2022] NSWLEC 1386 - NSWLEC 2022 case summary — Zoe

The Court notes: 1. that the Respondent, Randwick City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application No. 619/2020 and No. 718/2020 in accordance with the table of documents uploaded by the Applicant to the NSW Planning Portal on 14 March 2022 as follows: 3 Llanfoyst Street - 2021/54279 Name of Document Date Prepared Amended Architectural Plans (Revision F) prepared by Orosi DA1001 - Cover Sheet DA1002 - Compliance Table DA1003 - Site Analysis DA1004 - Site Plan DA 1101 - Basement DA1102 - Ground Level DA1103 - First Level DA1104 - Second Level DA1105 - Third Level DA1106 - Roof DA2001 - Elevation Sheet 1 DA2002 - Elevation Sheet 2 DA2003 - Elevation Sheet 3 DA2004 - Elevation Sheet 4 DA3001 - Longitudinal Section 11 March 2022 DA3002 - Cross Section DA6001 - Solar_View from the Sun DA6002 - Solar_View from the Sun DA6003 - Solar_View from the Sun DA6004 - Solar_View from the Sun DA6005 - Solar_View from the Sun DA6011 - Shadow Diagrams DA6012 - Shadow Diagrams DA6013 - Shadow Diagrams DA6014 - Shadow Diagrams DA6015 - Shadow Diagrams DA7001 - Calculation DA7011 - Solar Access Plans DA7021 - Ventilation Diagram Plans DA7031 - Finishes Schedule DA7041 - LEP Height Diagram Isometric Amended Landscape Plans (Various Revisions) prepared by Conzept Landscape Architects • Sheet 1 - Site Analysis & Street Planting (Rev D) • Sheet 2 - Hardscape Plan (Rev D) • Sheet 3 - Landscape Plan (Rev D) 4 March 2022 • Sheet 4 - Details (Rev D) • Sheet 5 - Details 2 (Rev D) • Sheet 6 - Section A-A (Rev A) • Sheet 7 - Specification (Rev D) BASIX Certificate, Certificate number 1145161M_02 prepared by Eco Certificates Pty Ltd 14 March 2022 BASIX Stamped Plans of Architectural Plans Revision F prepared by Orosi 14 March 2022 NatHERS Certificate No. HR-T8JLQ8-01 14 March 2022 Apartment Design Guide - Parts 3 & 4 Compliance Table (SEPP 65) Undated Apartment Design Guide - Design Quality Principles (SEPP 65) 14 March 2022 Design Verification Statement (SEPP 65) 14 March 2022

[3]

4 Llanfoyst Street - 2021/54315 Name of Document Date Prepared Amended Architectural Plans (Revision F) prepared by Orosi DA1001 - Cover Sheet DA1002 - Compliance Table DA1003 - Site Analysis DA1004 - Site Plan DA 1101 - Basement DA1102 - Ground Level DA1103 - First Level DA1104 - Second Level DA1105 - Third Level DA1106 - Roof DA2001 - Elevation Sheet 1 DA2002 - Elevation Sheet 2 DA2003 - Elevation Sheet 3 DA2004 - Elevation Sheet 4 DA3001 - Longitudinal Section 11 March 2022 DA3002 - Cross Section DA6001 - Solar_View from the Sun DA6002 - Solar_View from the Sun DA6003 - Solar_View from the Sun DA6004 - Solar_View from the Sun DA6005 - Solar_View from the Sun DA6011 - Shadow Diagrams DA6012 - Shadow Diagrams DA6013 - Shadow Diagrams DA6014 - Shadow Diagrams DA6015 - Shadow Diagrams DA7001 - Calculation DA7011 - Solar Access Plans DA7021 - Ventilation Diagram Plans DA7031 - Finishes Schedule DA7041 - LEP Height Diagram Isometric Amended Landscape Plans (Various Revisions) prepared by Conzept Landscape Architects • Sheet 1 - Hardscape Plan (Rev D) • Sheet 2 - Landscape Plan (Rev D) • Sheet 3 - Details (Rev D) 4 March 2022 • Sheet 4 - Section A-A (Rev B) • Sheet 5 - Section-Entry Passage (Rev B) • Sheet 6 - Specification (Rev B) BASIX Certificate, Certificate number 1162663M_02 prepared by Eco Certificates Pty Ltd 14 March 2022 BASIX Stamped Plans of Architectural Plans Revision F prepared by Orosi 14 March 2022 NatHERS Certificate No. HR-S40KST-01 14 March 2022 Apartment Design Guide - Parts 3 & 4 Compliance Table (SEPP 65) Undated Apartment Design Guide - Design Quality Principles (SEPP 65) 14 March 2022 Design Verification Statement (SEPP 65) 14 March 2022

[4]

That the documents listed in the table were filed with the Court during the hearing.
At the conclusion of the evidence and submissions, I directed the parties to file either final agreed Draft/proposed Conditions of Consent or if contested, then a marked-up version of Draft/Proposed Conditions of Consent by 4 pm Thursday 24 March 2022. A final version of Draft/Proposed Conditions of Consent with contested mark ups for each of the proceedings were filed on 1 April 2022 and I have marked these Ex 10/3 for No.3 Site and Ex 11/4 for No.4 Site.
The Respondent's contentions are particularised in the following documents: 1. Amended Statement of Facts and Contentions filed 3 March 2022 at 2 pm (SOFAC No.3 Site) (Ex 1/3); and 2. Amended Statement of Facts and Contentions filed 3 March 2022 at 1:56 pm (SOFAC No.4 Site) (Ex 2/4).
The only contention that is not adopted in both cases is contention 2 of SOFAC No.4 Site and relates solely to No. 4 Site which is the contravention of the maximum building height development standard referred to at [10] above. The Respondent, in closing submissions, said that the contention in relation to height is agreed between the experts to relate to the imposition of a privacy screen and that no real impacts seem to follow from that. (Transcript 16 March 2022, p 157 at 30). The privacy screen is later referred to as the 'breach in yellow' and an image is included later in this judgment at Fig 2.
The issues outstanding that are common to both proceedings are as follows: 1. Floor space ratio (FSR) (Contention 1 for both sites) is resolved to the extent that the Proposed Developments comply with the FSR, however the Respondent seeks the imposition of a condition of consent as to the location and purpose of the service or plant rooms; 2. Setback and building separation (Contention 2 and 3) where the Respondent submits that although there is a noncompliance, the matters regarding privacy can be resolved by conditions of consent. (Transcript 16 March 2022, p 157 at 32); 3. Wall height (Contention 3 and 4) where the external wall height breach is 13cm for No. 3 Site and 0.6 m for No. 4 Site and the parties agree that the concern in relation to wall height revolves around Mr Turrisi's evidence regarding streetscape; 4. Internal amenity and the solar access for future residents of the Proposed Developments (Contention 4 and 5). There is a dispute between the experts in relation to solar access (JER Ex 4/3 at par 4.10 and 4.18). Mr Waghorn says that if you scale the plans there is a metre or so of light coming in the necessary period of time, whereas Mr Turrisi disagrees and refers to the solar access as a "sliver" saying that he was unsure that if the plans were scaled that a measure of 1m would be the resultant solar access. In any event, the Applicant submits that if the Court were to prefer the evidence of Mr Turrisi, that this would not warrant the refusal of the grant of consent for the Proposed Developments (Transcript 16 March 2022, p 145 at 49); 5. Earthworks (Contention 5 and 6) is a question of streetscape in accordance with the Respondent's closing submission. (Transcript 16 March 2022, p 157 at 48); 6. Landscaping (Contention 6 and 7) is resolved as between the landscape experts (see above at par 12) however, the Respondent's town planning expert gives evidence about the planter boxes relevant to the contention regarding streetscape; 7. Streetscape (Contention 7 and 8) is the contention which seems to capture a number of the other contentions above and the Respondent submits that the Proposed Developments do not reflect either the present or future streetscapes, whereas the Applicant submits that the primary complaint appears to be that the basement carparking is at street level and not below ground, and that the Respondent fails to recognise the different zoning controls in different parts of the Lllanfoyst Street cul-de-sac. The Applicant submits that the future character will be one which meets or is likely to meet the planning controls and the Applicant is critical of the Respondent's town planning expert's evidence which is to the effect that a building on the site which is 12m in height and compliant with the LEP would be inconsistent with the streetscape (Transcript 16 March 2022, p148); 8. View sharing (Contention 8 and 9) is the issue of most concern to the resident objectors from neighbouring properties.
I will first address the jurisdictional prerequisite of the contravention of the maximum building height development standard that relates to No. 4 Site (Contention 2 SOFAC No.4 Site), Ex 2/4. I will then address each of the contentions as listed above at [19].

[5]

Contravention of maximum building height development standard - cl 4.6 written request in regard to 4 Llanfoyst Street Randwick

The maximum building height development standard that applies to the Sites is 12m pursuant to cl 4.3 of the RLEP. The Height Map is included in the Respondent's Bundle of Documents (Ex 3/3 and 4).
The expert town planners agreed that the extent of any contravention of the maximum building height development standard is 14.55m, measured from the slab of the double garage (RL58.83) to the top of the privacy screen on the second floor level balcony (RL73.38) resulting in a variation of 2.55m or 21.2% (Planning JER at par 2.2, Ex 5/4). However, when measured from the ground level (existing) excluding the garage and steps, the maximum height of the building will be 11.03m (RL74.93) which complies with the 12m height of buildings development standard. (Cl 4.6 Written Request at par 2, Ex 12/4)
Mr Waghorn goes on to explain that the height breach is at its greatest for the privacy screen for the third floor level being a 'small portion of the balcony above the garage only" and describes the extent of the height variation (RL73.88 for the privacy screen) is "actually lower than the maximum height of the third floor level roof behind it (RL74.93) which complies with the height limit." (par 2.5 Planning JER, Ex 5/4). It is Mr Waghorn's opinion that "this demonstrates that the historically excavated double garage bears no relationship with the building around it … to the casual observer along Llanfoyst Street, the proposal would appear compliant with the intended height and form of development on the site with a limited visual impact when compared to compliant elements of the proposed building." (par 2.5 Planning JER, Ex 5/4)
The contention that the proposed development contravenes the maximum building height development standard only applies to the No. 4 Site. The Respondent contends in the SOFAC for No. 4 Site (Ex 2/4) that the cl 4.6 written request is not well founded because: "The proposal is inconsistent with the objectives of cl.4.3 as follows: (a) to ensure that the size and scale of development is compatible with the desired future character of the locality. The RLEP 2012 sets the desired future character of the locality as having a maximum height of 12 metres. The proposed development exceeds these controls by proposing a maximum height of 16.1 metres compounded by minimal side setbacks and the location of the car park level. (b) 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 Respondent submits further that the proposed development has not demonstrated that the development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views, including the proposed development at No. 3 Site. It is agreed that the breach in yellow has no relevant impact (Transcript 16 March 2022 p 141). The reference to the 'breach in yellow' is from Ex H/4 which was prepared by Mr Waghorn highlighting in yellow the extent of the balcony on the third floor which contravenes the maximum building height, and I extract and reproduce the image from Ex H/4 below. Figure 2 "Breach in yellow" Ex H/4
The town planning experts agree that the yellow represents the location and extent of height breach, namely the southern privacy screen and balcony balustrade and that it corresponds with the survey (Tab 7 Ex B/4) and the LEP Height Diagram Isometric DA 7041 Rev F. The experts also agree that although modifying the shape of the balcony would render the building height compliant with cl 4.3 of the RLEP, such a modification to the balcony would not be a good planning outcome. (Transcript 15 March 2022 p 87 at par 41). Mr Turrisi's evidence is that the height breach has no direct impact on views to the rear of the development, he agrees that it would not be a good planning outcome to change the balcony by deleting the "yellow area" and that his fundamental concern is more direct in terms of streetscape and view loss (Transcript 15 March 2022 p 88 at par 20 - 44). I will come back to the impact on views and view sharing later in this judgment.
The Height Diagram Isometric DA 7041 Rev F (Ex D/4) illustrates the extent of the contravention of the maximum building height development standard. Figure 3: Height Diagram Isometric DA 7041 Rev F, Ex D/4
The Applicant, in opening, refers the court to the Elevation drawings for No. 4 Site Sheet 2 (DA 2002 Rev F, Ex D/4) noting that on the top storey the roof does not extend over the balcony that is below and that there is a small breach of the height limit of 12m for a very small area limited to the privacy screen on the balcony, if one takes the existing ground level as being the garage as excavated. (Transcript p 57 14 March 2022) Figure 4: Elevation drawings for No. 4 Site Sheet 2 DA 2002 Rev F, Ex D/4
The Applicant relies on an updated cl 4.6 written request to justify the contravention of the height of building development standard (cl 4.6 Written Request) (Ex 12/4) in the event that the Court finds that the Proposed Development contravenes the development standard. I will come back to the cl 4.6 Written Request and consider first the submission that the measurement of the height of the building of the proposed development at No. 4 Site may not actually result in a contravention of the development standard.
The Applicant submits that "there is an argument, whether or not the ground floor of the garage is in fact relevantly existing at an existing ground level." (Transcript 14 March 2022, p 58 at par 36)
Mr Waghorn summarised his evidence during the hearing as follows (Transcript 15 March 2022, p 87 at par 5): "It was part of the fact that if you measure from a technical point of view from existing ground level, the extent of the breach from the slab of the garage to the uppermost point directly above is 2.5m. However, if you take a more open approach like they did in Bettar v I think it's City of Sydney, where you take the natural ground level excluding any historic excavation, you would have a compliant building at No. 4 Llanfoyst."
Building height is defined in the RLEP Dictionary as follows: building height (or height of building) means - (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
I accept that the height non-compliance of the amended proposal is fundamentally attributed to the historic variation to the ground level over time for the double garage and that due to the alteration of the ground level from previous land owners, the building height is non-compliant for a small portion of the third floor level balcony glass balustrade and privacy screen as detailed in the Building Height Plane Diagram. (Cl 4.6 Written Request at par 2, p 3, Ex 12/4)
Mr Waghorn, in the cl 4.6 Written Request relies on the similar scenario contemplated in the decision of Commissioner O'Neill in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 at 37 - 40 ('Bettar'): "37 It is relevant to consider the objectives of the building height development standard in considering how best to determine the maximum height of the building using the dictionary definitions in LEP 2012. The objectives include, at cl 4.3(a) of LEP 2012, to ensure the height of development is appropriate to the condition of the site and its context. As one of the purposes of the development standard is to relate the proposal to its context, it follows that the determination of the existing ground level should bear some relationship to the overall topography that includes the site. 38 Mr Betros' approach focuses entirely on the existing building on the site. Once the existing building is demolished, the point at which the height of the building was measured from will no longer be discernable or relevant. Importantly, this approach does not relate the building height development standard to the context of the site, it only relates it to the building to be demolished. Using this method, it is conceivable that on one property, the existing ground level will be taken as two storeys below ground level where there is a basement (as in the example raised by Mr Betros) and on the adjoining property, the existing ground level will be taken as being well above ground level where a building occupies the entire site and the finished floor level is higher than the footpath, resulting in adjoining sites with starkly different height limits arising from the same development standard. 39 Furthermore, the definition of basement in LEP 2012 is the space of a building where the floor level of that space is predominantly below existing ground level and where the floor level of the storey immediately above is less than 1 metre above existing ground level [italics added]. From this definition, it does not follow that existing ground level becomes the level of the basement floor or the soil beneath the basement following the construction of a basement. A basement is, by definition, below ground level and so the level of the basement floor cannot be taken to be existing ground level. 40 For these reasons, I do not accept Mr Betros' approach of defining existing ground level as the ground floor level of the existing building and then dropping it down to the basement level in the north-eastern corner of the site where the existing basement is located. This results in an absurd height plane with a large and distinct full storey dip in it as it moves across the site and crosses the basement of the existing building, which relates only to a building that is to be demolished and has no relationship to the context of the site. This is not a criticism of Mr Betros' reasoning, however, as I understand he has adopted the approach taken by Council in previous assessments, which is reasonable."
The difference of ground levels on No.4 Site results in the difference between compliance and non-compliance with the maximum building height development standard. Mr Waghorn explains that "in this instance, when measuring the maximum height of the proposed development from the existing (or natural) ground level established by the existing car parking, that is, without the variations to the landform created by the excavated car parking area and access, the proposal would attain a maximum height of 11.03m and comply with Council's maximum height of buildings development standard." (Cl 4.6, p 4, Ex 12/4)
I have considered the reasoning of Commissioner O'Neill in Bettar in relation to how the building height is measured, although I note that I am not bound by this decision. I do take into account the definition of building height in the RLEP which expressly includes the word "existing" to qualify ground level. The RLEP Dictionary includes 3 separate definitions for ground level as follows: ground level (existing) means the existing level of a site at any point. ground level (finished) means, for any point on a site, the ground surface after completion of any earthworks (excluding any excavation for a basement, footings or the like) for which consent has been granted or that is exempt development. ground level (mean) means, for any site on which a building is situated or proposed, one half of the sum of the highest and lowest levels at ground level (finished) of the outer surface of the external walls of the building.
I conclude that it is appropriate in the circumstances of the Proposed Development, where the difference between 'natural' and 'existing' ground level is a non-complying development, for the Applicant to submit and for the court to consider a written request pursuant to cl 4.6 of the RLEP to justify the contravention of the maximum building height development standard, even if the contravention is minor as illustrated in Ex H/4.
I will now proceed to consider the cl 4.6 Written Request and I set out my reasons why I am satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 4.3 of the RLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the RLEP and that the proposed development would 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.
Mr Turrisi does not take issue with the cl 4.6 Written Request except to say that his principle concern is "the overall scale of the development and how it relates to the surrounding properties as detailed extensively in the JR provided for No. 3 Llanfoyst Street." He goes on to state in the Planning JER (Ex 5/4) at par 2.8 as follows: "From my perspective this contention identifies that there is a non-compliance however an alternative design could achieve a better urban outcome from an amenity and streetscape perspective that would result in a compliant development in terms of height. On that basis, concerns regarding the proposed height and its interface to its neighbours and within the development means that any breach, be it minor, can't be said to be well founded."

[6]

Is compliance with the development standard unreasonable or unnecessary? (cl 4.6(3)(a), RLEP)

The cl 4.6 Written Request seeks to answer this question by relying on the first of 5 ways as set out in the decision of Preston CJ in Wehbe v Pitwatter Council (2007) 156 LGERA 446; [2007] NSWLEC 827, namely that the objectives of the standard are achieved notwithstanding non-compliance with the standard.
The objectives of the height of building development standard are extracted from cl 4.3 of the RLEP as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows - (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.
Section 7 of the cl 4.6 Written Request explains how the objectives of the height of buildings development standard are achieved. As streetscape is a concern raised by the Respondent (Contention 7 and 8) and seems to capture a number of the other contentions, in that the Respondent submits that the Proposed Developments do not reflect either the present or future streetscapes, I have carefully considered the reasons given in the cl 4.6 Written Request as to how the objectives of cl 4.3 are achieved in some detail.
Firstly, the word 'compatible' was considered by Roseth SC in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at 22 as follows: "22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. 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."
Mr Waghorn, in the cl 4.6 Written Request explains how the Proposed Development, notwithstanding the proposed height encroachment, is compatible by noting firstly that there is no specific desired future character statement in the RLEP and that: "The desired future character of the neighbourhood must be set by the existing, recently approved and proposed buildings within the neighbourhood. The subject site is zoned R3 - Medium Density Residential within a locality characterised by varied building typologies and heights. That is, the existing size and scale of development in the immediate locality is not definitive. The proposed development is considered to be, at the very last compatible, with other developments to the south and west including Nos. 12 Milford Street and 3 Albert Street both of which provide for buildings four storeys or greater. Furthermore, the proposal sits lower that the adjoining building to the south (No. 12 Milford Street - RL 87.65) and west (No. 3 Albert Street - RL78.81) which is unlikely to be removed given their scale and strata subdivision. Therefore, these buildings must be considered in the character of the locality. The immediate locality is zoned R3 Medium Density Residential and reflect Council's objective of increasing population density within close proximity to the Randwick employment and commercial hub. The proposed development is best described as a residential flat building which is permissible in the zone and is encouraged as a building type for increasing population density whilst maintaining a residential character to an area. Noting the recently constructed residential flat buildings at Nos. 2 and 5 Llanfoyst Street and the proposed development at No. 3 Llanfoyst Street, it is evident that the character of Llanfoyst Street is undergoing transformation, better reflecting Council's desired R3 Medium Density Residential character."
Mr Turrisi's evidence is that even if the building were compliant with the height of building development standard, namely 12m, it would be inconsistent with the streetscape. (Transcript 15 March 2022 p 115-116)
I accept Mr Waghorn's summary that: "… the proposed height encroachment does not result in a building which is incompatible with the emerging character of the immediate locality and is representative of the varying typologies of the surrounding developments. The proposal will provide a high quality built form and a coherent streetscape appearance with building elements that complement the topography of the site and reflect the emerging contemporary character of the locality. As identified, the height breach is limited to the area directly above the historical excavation for the double garage with all other parts of the building compliant with the 12m height of buildings development standard. The point of variation is limited to light weight elements which will not be visually jarring to the casual observer."
I accept Mr Waghorn's conclusion that the Proposed Development is consistent with objective (a), notwithstanding the height breach.
In relation to objective (b) of cl 4.3(1) RLEP, the Site is not located within the immediate vicinity of a heritage item and is not within a heritage conservation area.
Finally, as to objective (c) of cl 4.3(1) RLEP, Mr Waghorn addresses the amenity impacts of visual bulk, privacy, overshadowing and views as follows: "For the reasons discussed in objective (a), including setbacks, design and materiality, the proposed development represents a scale which is compatible with the future character of the locality and anticipated by the planning controls. Furthermore, when viewed from the neighbouring properties or the streetscape, the height variation will not be visually jarring and be lower than the roof form of the third floor level which complies with the 12m height of buildings development standard. In terms of privacy, the height breach does not result in any adverse additional privacy impacts. The area of the height breach is limited to the third floor level balcony and privacy screen which will ensure privacy of No. 3 Llanfoyst Street will be maintained. The maximum height variation does not afford any further privacy impacts when compared to a compliant built form. As such, the balcony above the double garage which exceed the 12m height development standard do not result in any further privacy impact beyond a compliant built form. With regards to overshadowing, the proposed height breach will not result in any adverse overshadowing as opposed to an entirely compliant built form. The shadow diagrams and sun eye diagrams submitted with the architectural plans confirm that the proposal will not result in any significant additional overshadowing to the neighbouring properties and satisfies the provisions of the ADG with regard to solar access. As such, the additional overshadowing impact as a result of the height breach when compared to a compliant development are insignificant. In terms of view loss, the proposed variation will not result in any significant loss of views or outlook compared to a building with a compliant height. That is the height variation is largely masked by the third floor level which is compliant with the height of buildings development standard. When considering the extent of view sharing it is noted that the height breach is a result of the site topography and historical excavation to the front of the site, with the built form at the rear compliant with the LEP standard. As such, it is anticipated the extent of view loss caused by the height breach would be insignificant or nil. Therefore objective (c) is achieved."
I come back to view sharing in more detail below.
There is no evidence that contradicts the above reasons insofar as the height breach is concerned and accordingly, I am satisfied that in the circumstances, compliance with the building height development standard is unreasonable or unnecessary (cl 4.6(3)(a) RLEP) because the objectives of the standard are achieved notwithstanding non-compliance with the standard.

[7]

Are there sufficient environmental planning grounds to justify the contravention? (cl 4.6(3)(b) RLEP)

The first opinion of satisfaction required pursuant to cl 4.6(4)(a)(i) is that the written request to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3), firstly that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (because the objectives of cl 4.3 are achieved notwithstanding the non-compliance) and secondly, that there are sufficient environmental planning grounds to justify contravening the development standard.
I have formed a positive opinion of satisfaction that the cl 4.6 Written Request had adequately addressed the matters required to be demonstrated by cl 4.6(3)(a), namely that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the Proposed Development achieves the objectives of the height of buildings development standard notwithstanding the contravention.
Mr Waghorn explains in the cl 4.6 Written Request that there are sufficient environmental planning grounds to justify the height of buildings contravention in Section 5 of the cl 4.6 Written Request. Mr Waghorn quotes Preston CJ in the decision of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action') at [24] as follows: "24. The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, 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: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]."
Nine environmental planning grounds are submitted in the cl 4.6 Written Request to justify contravening the maximum building height on pages 7 to 9, and in addition, the cl 4.6 Written Request relies on the clarification given by Preston CJ in Initial Action at [86]-[87] that there does not need to be a "better" planning outcome. As Mr Turrisi's evidence is that "an alternative design could achieve a better urban outcome from an amenity and streetscape perspective", those passages from Initial Action are relevant and I include them as follows: "86. The first way is an error as it is contrary to the plain words of cl 4.6(4)(a). The question the Commissioner needed to address under cl 4.6(4)(a)(i) was whether she was satisfied that the applicant's written request had adequately addressed the matter in cl 4.6(3)(a) of demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: Randwick City Council v Micaul Holdings Pty Ltd at [39]. This is a different question to determining whether the Commissioner herself considered that compliance with the development standard was unreasonable or unnecessary. 87. The second way is an error because it finds no basis in cl 4.6. Clause 4.6 does not directly or indirectly establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development. This test is also inconsistent with objective (d) of the height development standard in cl 4.3(1) of minimising the impacts of new development on adjoining or nearby properties from disruption of views or visual intrusion. Compliance with the height development standard might be unreasonable or unnecessary if the non-compliant development achieves this objective of minimising view loss or visual intrusion. It is not necessary, contrary to what the Commissioner held, that the non-compliant development have no view loss or less view loss than a compliant development."
I accept that the environmental planning grounds submitted by Mr Waghorn in the cl 4.6 Written Request "are not general propositions and are unique circumstances to the proposed development, particularly the steep topographical incline of the site and the historical excavation for parking and access which bears on relationship with the existing ground levels surrounding it." (cl 4.6 Written Request p 9, Ex 12/4)
I have formed a positive opinion of satisfaction that the cl 4.6 Written Request had adequately addressed the matters required to be demonstrated by cl 4.6(3)(a), namely that there are sufficient environmental planning grounds to justify contravening the development standard.

[8]

Is the proposed development in the public Interest? (cl 4.6(4)(a)(ii) RLEP)

The second opinion of satisfaction pursuant to cl 4.6(4)(a)(ii) of the RLEP is that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out.
Section 7 of the cl 4.6 Written Request explains how the Proposed Development is in the public interest. I have already addressed the objectives of the height of buildings development standard (cl 4.3) and now consider the explanation given as to how the Proposed Development is consistent with the objectives of the zone in which the development is proposed to be carried out.
The R3 Medium Density Residential zone objectives are set out in cl 2.3 of the RLEP as follows: Zone R3 Medium Density Residential 1 Objectives of zone • 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.
I am satisfied that the Proposed Developments are consistent with the objectives of the R3 Medium Density Residential zone for the reasons set out in the cl 4.6 Written Request, namely: 1. The Proposed Developments will provide for the housing needs of the community and will provide a variety of housing in that there will be 4 dwellings including 3x2 bedroom apartments and 1x1 bedroom apartment; 2. The locality is undergoing a transition to medium density residential flat building and the Proposed Development is compatible with the character; 3. The amenity of future residents is protected. I come back to solar access in relation to the amenity contentions 4 and 5 at [113]; and 4. The Proposed Developments increase the number of overall dwellings in the locality.
I conclude that I have positively formed the second opinion of satisfaction pursuant to cl 4.6(4)(a)(ii) of the RLEP that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out.
I conclude that the cl 4.6 written request is to be upheld.

[9]

Floor Space Ratio - location and purpose of the service/plant rooms

The FSR development standard of 0.9:1 applicable to the No. 3 Site and to the No. 4 Site is complied with. (Transcript 15 March 2022, p 81 at par 17)
The Respondent submits that the only matter remaining to be addressed under this contention is a condition of consent proposed by the Respondent to relocate the service or plant room on the ground floor. This is opposed by the Applicant.
The proposed condition of consent 2(c) for each site sought by the Respondent reads as follows: "The service/plant room located on the ground level is to be relocated to adjoin the fire stair immediately below the ensuite/corridor of unit 2 so there is no physical connection to this unit. The service/plant room as shown on the plan is to be backfilled including in part the private open space that adjoins this room"
The Respondent provided the Court with a Word version of the Draft/Proposed Conditions which includes marked up comments from each party regarding the contested conditions including condition 2(c). The Respondent submits that "The service and plant room is less likely to generate any adverse impacts to the amenity of the ground floor unit if it is located adjoining the fire stair. The relocation will mean less people are walking past the front door of the ground floor unit and there is less likely to be any amenity impacts arising from the noise or vibration of any plant operating within that room."
The Applicant opposes the condition for "the reasons advanced in the oral submissions and in the Outline of Applicant's Submissions at [29(3)] and [33]. The purpose which led upon Mr Turrisi to contend for the condition is not a relevant planning purpose. Thus, such a condition would be invalid."
In written submissions at [29(3)], the Applicant submits as follows: "Service room on the ground level - off the lift lobby and to its north is what is identified as "service/plant room". Subclause (f) of the definition of gross floor area excludes plant rooms from the definition of gross floor area. There is no suggestion that it will not be used as a plant room. The contention is that there are already services rooms in the basement. This is irrelevant for at least two reasons: If the complaint is that at some future time an application might be made to modify the consent in respect of the service room, that application will be considered on its merits. That such an application might be made in the future is an irrelevant consideration in considering the DA. If it is suggested that the service room might be adapted and used unlawfully in breach of the planning law, that also is an irrelevant consideration: see for example the consideration in Ireland v Cessnock City Council (1999) 103 LGERA 285 at [86]. Mr Turrisi said that he was not seeking to suggest this."
Written submission par 33 for the Applicant reads as follows: "Mr Turrisi's submission is that the service area should be excluded and/or relocated in order to deprive the applicant or subsequent owner of its right to seek modification of any development consent to change the use of the service area to a bedroom, should it so wish. This is not a relevant planning purpose. His submission should be rejected as a matter of law. So also, is the proposed condition based upon the same submission."
The concern of Mr Turrisi is articulated in the two Planning JER (Ex 4/3 and Ex 5/4) and at par 1.3 of Ex 4/3 provides as follows: "As agreed, the lobby area and corridor on the basement level plan would fall under the definition of access to car parking and therefore could be excluded from the floor space calculations. However, I am concerned that the service/plant room, which has a dimension in the order of 3m by 3m and has two external walls, although no windows, is off the balcony and private open space to the ground floor apartment. This area could be utilised for the purpose of a bedroom in the future noting that if one included this area, it would result in a development that is non-compliant with the FSR control. This is shown in the figure below. "
I note that Planning JER par 1.4 Ex 5/4 adopts the concerns and reasons in Ex 4/3. Further, Mr Turrisi continues at par 1.4 Ex 4/3 as follows: "During the preparation of the joint report DW advised that a fit-out plan could be provided that demonstrates that the size of the proposed plant room is required for this development. GT advised that such a fit-out plan should be realistic to demonstrate that the area proposed equates to the area needed. However, to ensure that this space cannot be reused for an alternative purpose, it is recommended that the service/plant room be relocated next to the fire stairs which therefore separates this area away from the unit and would minimise the opportunity for that space to be modified in a future application. This area can be backfilled as like other areas shown on the plans. Providing it is demonstrated that the room is required for the needed services, then it can be excluded from the GFA calculations. On that basis, the development could be deemed to be compliant."
It is relevant that Mr Waghorn had earlier stated at par 1.2 Ex 4/3, as follows: "The experts agree that the proposed plant room is excluded from the GFA calculation. The issue is the location of the plant room. The size of the plant room is noted and it is acknowledged its relocation adjacent to the fire stairs as suggested by GT will not result in any additional excavation over what is currently proposed. This ground floor plant room is the only plant room available to No. 3 Llanfoyst Street given the constraints of the basement. Its location is largely driven by the need to provide the vertical risers for services through the bathrooms and storage areas which would not be achieved if relocated adjacent to the fire stair. On this basis I consider the location to be appropriate in this instance."
Mr Waghorn provides a similar opinion at par 1.2 of Ex 5/4 in relation to the location of the plant room at No 4 Llanfoyst Street. Mr Waghorn confirms his opinion during the proceedings by saying as follows: "Whilst there is the ability to relocate the service or plantroom, as Mr Turrisi has said, I don't think it's reasonable or necessary to do so because, quite simply, it has flow-on effects. The upper level directly above that, the first-floor level has access out to the private open space and if you put vertical risers in that are currently proposed in the service and plantroom, it will require a redesign and a reconsideration of the first floor and second floor and, potentially, third-floor levels. So, for the benefit that it causes, I don't think it's necessary to do it." (Transcript 15 March 2022 p 85 at par 15)
The fit-out plan of the service/plant room on the ground floor referred to in the Planning JER at par 1.4 Ex 4/3 is included in the Rev F architectural drawings relied on by the Applicant, namely Drawing No DA 1102 Ground Floor Rev F, (Ex C/3 and Ex D/4). It is relevant that Drawing No DA 1102 Rev F is included in the approved plans in the Draft/Proposed Conditions of Consent for each property. I reproduce an extract of each to illustrate the service/plant room as proposed by the Applicant. Figure 5: Drawing No DA 1102 Ground Floor Rev F (Ex D/4) Figure 6: Drawing No DA 1102 Ground Floor Rev F (Ex C/3)
Mr Turrisi accepts that his concern is with regards to the potential of a future development application. The fact that the area of the service room is of a size which in his view could be utilised in the future and if it is for the purposes of services, he sees no reason why that room could not be relocated to adjoining the fire stairs, which would "prevent any future application having to deal with a debate as to non-compliances with FSR." (Transcript 15 March 2022 p 82 at par 45).
Mr Turrisi's concerns may be honestly held however there are 2 reasons why I conclude that the proposed condition 2(c) should be excluded. The first reason is that I accept that the purpose which led upon Mr Turrisi to contend for the condition is not a relevant planning purpose and that a potential future application might be made in respect of the service room is an irrelevant consideration in considering the DA.
Secondly, Mr Turrisi accepts that providing it is demonstrated that the room is required for the needed services, then it can be excluded from the GFA calculations, and the development could be deemed to be compliant. I accept that Drawing No DA 1102 Rev F (Ex C/3 and Ex D/4) extracted above, adequately demonstrate that the service rooms are required for the needed services by way of its fit out plan and I have also taken into account the evidence of Mr Waghorn as to the reasons for the location of the services/plant room.
For these reasons, I find that the Proposed Developments are compliant with regard to FSR, and I conclude that condition 2(c) should be deleted from each Ex 10/3 and Ex 11/4.

[10]

Setback and building separation (Contention 2 and 3)

The contention is in relation to side setbacks and building separation pursuant to Part 2F of the Apartment Design Guide (ADG) and the common particular (f) of each SOFAC relies on clause 3.4 of Chapter C2 of the Randwick Comprehensive Development Control Plan 2013 (RDCP) which includes an objective of medium density residential development "to ensure adequate separation between buildings for visual and acoustic privacy, solar access, air circulation and views.".
In response to the role of the ADG, Mr Turrisi agrees that once controls are formulated in the RDCP, those controls fall to be determined on the text of the controls themselves (Ex 4/3 par 2.24 and Transcript 15 March 2022 p 89 at par 1 and 46). However, in relation to particular 3F of the ADG, Mr Turrisi's evidence is as follows: "the fact is that you've also got to look at the ADG was referencing the need to provide appropriate separation between buildings under those controls. That alludes to the whole principle of why I've suggested that I feel that the development should be consolidated, which therefore gives you one building form. I use in my evidence a comment about the gap and the ability to potentially fill in the gap between No. 3 and 4 in part, which therefore would give you the ability to actually provide greater setbacks to the side boundaries because you're applying a totally different design philosophy which provides a better outcome." (Transcript 15 March 2022 page 92 at 24)
For the No. 4 Site, "[t]he experts agree that the issues raised in Contention 2 of the Planning Joint Report for No. 3 Llanfoyst Street match the particulars under this contention, albeit the design is mirrored and therefore the numerical variation changes for the northern and southern boundaries." (JER Ex 5/4, at par 3.1)
Particular g) of Contention 2 addresses side setbacks stating that "The proposal conflicts with Section 3.4.2 Control (ii) of the RCDCP 2013 as the proposal does not provide additional side setbacks over those specified in control (i), so as to provide building separation; improve visual amenity and outlook from development and adjoining residents; provide visual and acoustic privacy for the development and adjoining residences; ensure solar access and natural ventilation for the development and the adjoining residences, including view loss impacts from the adjoining properties."
The concerns in the Planning JER and in oral evidence under cross examination focus on visual and aural privacy and the application of side setback Control (ii) of RDCP clause 3.4.2.
It is agreed that the RDCP in clause 3.4.2 regarding side setback control (i) provides the measurement rule applicable to properties with a site frontage width of more than 14m and less than 16m and relevantly requires a side setback of 2.5m. The width of each of the Sites is just over 14m. Control (ii) of clause 3.4.2, RDCP is relied on by Mr Turrisi and is particularised in the SOFACs at 2(g) and 3(g). That control provides as follows: "Incorporate additional side setbacks to the building over and above minimum standards, in order to: Create articulations to 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 development and the adjoining residences." (Respondent's Bundle, Ex 3/3 and 4, FOLIO 510)
Mr Turrisi's evidence regarding the side setback controls of the RDCP is as follows: "2.28. Although Council's Development Control Plan provides for setbacks that vary pending the allotment width, these are minimum controls and require additional setbacks to create articulation amongst other considerations. (Control 3.4.2 (ii)). This proposal fails to do this but instead adds elements projecting into the minimum setback controls to provide articulation. This approach adds additional mass and bulk to the scheme. A consolidated scheme with No 4 Llanfoyst Street will provide more meaningful setbacks to the side boundaries that in turn will enable appropriate landscaping, building separation and amenity outcomes. Those relevant considerations are identified in particular G." (Planning JER, Ex 4/3 at par 2.28).
The elements projecting into the setback controls referred to by Mr Turrisi in the quote above are referred to variously as 'snorkel' or 'awning' windows and are located on the southern side of No.4 Site and on the northern side of No.3 Site, or put another way, the snorkel windows of each proposed site face each other and are within the area separating the two proposed buildings. The separation between the two buildings is in the order of 3m (JER Ex 5/4 at par 3.6).
The Applicant's case is that the awning or snorkel windows on level 1 are designed "with the idea that those who are in the bedrooms don't look immediately across. You can see how visual privacy has been managed between the two properties." (Transcript 14 March 2022 p 55 at par 45)
The non compliance with Control (i) regarding the 2.5m side setback is as follows: 1. No.3 Site the 'snorkel' windows to the north facing towards No.4 Site and as a result of the irregular boundary to the south where the side setback of 2.5m narrows as a result of the irregular boundary as depicted in Fig 8. 2. No. 4 Site the 'snorkel' windows to the south facing towards No.3 Site.
I include an extract of DA-1103 Rev F for each No.4 Site and No.3 Site below: Figure 7: DA-1103 Rev F for No.4 Site, Ex D/4 Figure 8: DA-1103 Rev F for No.3 Site, Ex C/3
There were questions asked of the experts regarding the fact that the measurement rules in the RDCP at clause 3.4 control (i) do not apply to bay windows and whether the snorkel windows were bay windows. At p 91 Transcript 15 March 2022, Mr Turrisi at par 10: "traditionally, bay windows are usually catered to a rear and front elevation, and usually there's greater setbacks, hence why there's a minor projection. I see those as being more than just simply a bay window. They occupy - and I haven't measured, but just looking at the plans - probably a little bit more than 30% of the length of that well, so I don't see them as being a bay window in that context."
This ultimately did not assist the court because Mr Waghorn did not rely on this definition of bay window nor rely on the exclusion for the purpose of this contention.
In relation to visual privacy, Mr Turrisi comments in relation to No. 4 Site that "the windows on the southern side of the living area, to the upper levels may address visual privacy issues though (sic) frosted glass however acoustic privacy is still unresolved given the separation between the two buildings." (JER ex 5/4). Mr Turrisi's oral evidence on visual privacy is that the 'snorkel' windows do not adversely affect visual privacy (Transcript 15 March 2022 p 21)
It is relevant that proposed consent condition 2(e) in Ex 10/3 requires "The boundary fence between 3 and 4 Llanfoyst Street is to be of solid construction and 1.8 metres high to provide privacy."
Mr Waghorn's evidence on aural privacy is at par 2.12 JER Ex 4/3 in response to particular 2(d) and 3(d) regarding acoustic privacy: "When factoring noise from the street and public primary areas of private open space, the acoustic impacts as a result of separation distances are considered to be negligible. The proposal therefore satisfied the objective of Part 4H-1 that noise transfers are minimised through siting and building layout."
Mr Turrisi agrees that there are no adverse impacts in terms of visual privacy or aural privacy (Transcript 15 March 2022, p 91 and 92).
Mr Turrisi clarifies in relation to control (ii) of cl 3.4 of the RDCP, that "[i]t is the fact that there is not additional setbacks beyond the 2.5m which is what is concerning, is a concern to me in terms of how then this building is perceived on the site." (Transcript 15 March 2022 p 92 at 43)
Mr Waghorn's evidence is as follows: "I agree with Mr Turrisi, it says "incorporate additional side setbacks." But in my opinion the purpose to it is limited. It's rather subjective in the fact that it doesn't require any numerical increase to the side setbacks that are provided in part (i), which stipulates a 2.5m setback. In any event, s 4.15(3A) of the EPA Act requires council to be flexible in the application of the controls. And I would say that, one, the 2.5m setback on average is entirely appropriate and satisfies the objectives, and two, it doesn't create an adverse impact on the amenity of adjoining properties and, again, satisfied the objectives." (Transcript 15 March 2022 p 95 at 5)
I find that numerical compliance of the 2.5m side setback pursuant to clause 3.4 of the RDCP is achieved by the Proposed Developments but for the snorkel windows and the irregular side boundary of No.3 Site. I conclude that the proposed setbacks on balance are acceptable because there is no adverse impact on visual privacy and there is no evidence as to adverse noise impacts. In relation to control (ii) of clause 3.4.2, I accept the evidence of Mr Waghorn.

[11]

Wall height (Contention 3 and 4)

The relevant maximum external wall height control is 10.5m where a site is subject to a 12m maximum building height limit (clause 4.4, Control (i) of the RDCP). Both No.3 Site and No.4 Site are subject to the 12m maximum building height limit (cl 4.3, RLEP).
In relation to No.3 Site, the experts agree that the maximum extent of the wall height breach is 0.13m with the breach located at the front of the site. (JER Ex 4/3 at 3.1)
In relation to No.4 Site, the experts agree that they defer to the comments for consideration in Contention 3 of the JER for No.3 Site and that in relation to particular 4(d), being the extent of the wall height breach, they agree that the extent of the variation with the wall height matches the overall height at 14.55m when measured from the double garage immediately below. When measured from ground level (existing) to the roof of the third floor level (RL74.93) the maximum wall height variation is 0.6m (JER Ex 5/4).
Although numerical compliance with the maximum wall height control in the RDCP is not achieved by the Proposed Developments, the Applicant's expert, Mr Waghorn gave evidence that the objectives of the control are satisfied and he details three reasons in the JER Ex 4/3 at 3.4 as follows: "• The proposed development provides a flat roof which is a typical design response for contemporary buildings. The flat roof form is certainly compatible with the flat roof of No. 5 Llanfoyst Street and has been provided to minimise the impacts on views for surrounding properties. The proposal therefore satisfies Dot Point 1. • The ceiling heights of all habitable rooms comply with the minimum requirements of the ADG at 2.7m and provide for high quality spaces. The proposal therefore satisfies Dot Point 2. • The proposed development is at least 1.3m below the 12m maximum height limit, complies with the FSR development standards and provides setbacks that respond to the subdivision pattern and topography. In terms of amenity impacts, the non-compliance with the wall height control will not impact on privacy as the variation is limited to the roof and will not have any adverse impacts on solar access given the extent of variation and surrounding building. In terms of visual amenity, whilst not specifically referring to views, I accept that views are a relevant consideration and forms part of the visual amenity. In this instance, it is considered that the variation will not have any adverse impacts on views given the majority of the rear of the building complies with the wall height requirement which largely "masks" the variation. This will be discussed in Contention 8. The proposal therefore satisfies Dot Point 3."
In relation to numerical compliance with the wall height control of the RDCP, Mr Turrisi agrees that: "it is also important to have regard to the broader objectives of this control. The numerical application does not really have regard as to how one would read this development once completed given the elevated nature of the site in terms of its levels. Although most of my comments being made under this contention also relate to issues concerning view loss and streetscape, it is fair to say that if the view loss and streetscape issues are addressed, then the result would be that the external wall height would be deemed to be more acceptable and align with the proportional heights of development in the street." (JER Ex 4/3 at 3.6)
Mr Turrisi makes no further comments in relation to the wall height contention regarding No.4 Site.
Mr Turrisi in JER Ex 4/3 at par 3.9 states as follows: "3.9. As the image illustrates below, the adjoining development is 3 storeys while the proposed development, with its elevated carpark, reads as a 5 storey development. This reinforces my concern of the elevated nature of the carpark that has lifted the building significantly higher within the streetscape. If the carpark was to be excavated below street level, then the built form would be more in the order of 4 storeys and would provide a more appropriate transition, foreshadowed by the controls given the varying heights. It will also mean, and this will be detailed more in the view loss analysis contention, that the design would also assist in minimising view loss to the properties to the rear. It would mean that the uncharacteristic planter box element to the street, which is not an element evident in the streetscape, would be removed which will provide a far better urban outcome."
In relation to par 3.9 of JER Ex 4/3, Mr Turrisi goes on to say "if you drop the basement you would actually get an overall height of a building which would in my view be more compatible in terms of its interface with the adjoining property to the south … there's an element of discretion between external wall height and overall height under the LEP to provide some degree of flexibility." ((Transcript 15 March 2022 p 102 at par 16)
Mr Hale for the Applicant asks Mr Turrisi: "HALE: Just to be clear about this, your complaint at paragraph 3.9 is that the proposed development does not meet the unexpressed objective of the control even though it might actually comply in substance with the control itself. That's what you're saying, isn't it? WITNESS TURRISI: Yes, and that's my point at 3.6 of my evidence. I've expanded that at that point, yes."
Mr Waghorn in oral evidence states: "My response is I agree with Mr Turrisi that there is no storey height control but I disagree that storey heights are referred to in the objectives. There is no direct reference to storeys in the objectives either. I do accept that there is a reference to storeys and setting an appropriate storey height in the explanation but in my assessment I have not applied the explanation. I think it satisfies the objectives despite what we are calling a "minor variation." (Transcript 15 March 2022, p 103 at par 8)
Mr Turrisi acknowledges in cross examination that the breach is minor and that the control in clause 4.4 of the RDCP does not reference storeys. (Transcript 15 March 2022 p 101 at par 18 and 29).
I accept the evidence of Mr Waghorn as to the satisfaction of the objectives of the wall height control of the RDCP notwithstanding the minor breach and for that reason I conclude that the contention regarding wall height is otherwise resolved.
Mr Turrisi's approach to this contention has been to apply the control by reference to its objectives rather than the precise terms of the control "because of the way the street and the built form sits on the street" (Transcript 15 March 2022 p 101 at par 40). As the concerns of the Respondent's expert relate to view loss and streetscape, I will deal with streetscape and view sharing below and will be included in my reason for concluding that the non-compliance of maximum wall height is not a sufficient reason to warrant refusal of the Proposed Developments.

[13]

Solar Access to No.3 Site:

Mr Waghorn explains in the Planning JER, Ex 4/3 that sun eye diagrams demonstrate that the design criteria of Part 4A-1 of the ADG is complied with and that the solar access to the Proposed Developments is a result of orientation of the dwellings towards the views to the east which he says the design criteria acknowledges as a reason in why the numerical design criteria may not be achieved. His evidence is as follows: "4.2. The sun eye diagrams provided with the application demonstrate that the proposal complies with the design criteria of Part 4A-1 of the ADG. In this regard, solar access will be provided to the living rooms and private open space for 2 hours with the exception of the 2 bedroom apartment on the first floor level. This apartment will receive solar access to the living room for at least 1.25 hours and solar access to the primary open space for at least 2 hours. This ensures that 3 of 4 apartments (75%) receive solar access for 2 hours between 9-11am (Design Criteria 1) and certainly ensures that no apartments will receive no direct sunlight between 9am-3pm (Design Criteria 3)" (JER Ex 4/3 at par 4.2) "4.4 In any event, the subject site has an east-west orientation and the dwellings are orientated towards the views to the east. The design guidance acknowledges these reasons in why the numerical design criteria may not be achieved. Any relocation of the living rooms and open space areas to the northern boundary would have greater impacts on the amenity of surrounding properties and the occupants and is not considered reasonable in this instance. 4.5. All four (4) apartments will receive a high level of amenity with direct solar access available to the primary living and open space areas from sunrise until approximately 11am during mid winter, with much greater exposure to direct solar access during equinox. The objective of Part 4A-1 of the ADG seeks to "optimize the number of apartments receiving sunlight to habitable rooms, primary windows and private open space". The proposed development achieves this objective with all four (4) proposed apartments receiving direct solar access for a minimum of 1.25 hours (first floor level apartment) with the remaining apartments receiving direct solar access for greater lengths of time."
Mr Turrisi does not support Mr Waghorn's easterly orientation explanation and states in Ex 4/3 as follows: "4.14. The solar diagrams submitted with the application shows that between 9am and 3pm that only the apartment on level 4 would achieve two hours of solar access because by 11am the proposed building at No. 4 Llanfoyst Street would overshadow the northern living room windows of No 3 Llanfoyst Street. Even at 10am the amount of solar access available is diminished due to the provision of privacy screens, which are a direct result of non-compliances with setbacks, as previously detailed. The sun diagrams are provided below in part to reinforce the above comments. The ADG provisions require both 2 hours of solar access to both the living and private balconies and based on these solar diagrams only 25% of the apartments would achieve 2 hours.(JER Ex 4/3) 4.15. The applicant's submission that the non-compliance is a result of obtaining a view/outlook is not supported by me. I respectfully submit that this is not the case and it's a product of design not orientation. Greater separation to the built form or a step of the building form on No. 4 Llanfoyst Street could potentially improve solar access 4.16. Good design is not simply based on numerical compliance, it is based on site context, relationships and interface with the neighbours and the positioning of rooms to achieve an outcome."

[14]

Solar Access to No. 4:

Mr Turrisi in JER Ex 5/4 at par 5.6: "As like No. 3 Llanfoyst Street, No. 4 Llanfoyst Street is also non-compliant in terms of solar access. It's notes that the windows located on the northern boundary to those living areas are relatively small and are generally located between the kitchen benches. As best, based on the ADG provision, only 2 of the 4 apartments would achieve 2 hours of solar access. The proposal therefore does not meet the 70% requirement under ADG. For the same reasons concerns were raised for No. 3 Llanfoyst Street, they would also apply to No. 4 Llanfoyst Street. All other issues raised in the particulars are a direct result of non-compliance to setback controls."
Mr Waghorn explains the application of the ADG design criteria in JER Ex 5/4 at par 5.3 as follows: "The sun eye diagrams provided with the application demonstrate that the proposal complies with the design criteria of Part 4A-1 of the ADG. In this regard, solar access will be provided to the living rooms and private open space for 2 hours with the exception of the 2 bedroom apartment on the first floor level. This apartment will receive solar access to the living room for at least 1 hour and solar access to the primary open space for at least 2 hours. This ensures that 3 of 4 apartments (75%) receive solar access for 2 hours between 9-11am (Design Criteria 1) and certainly ensures that none of the apartments will receive no direct sunlight between 9am-3pm (Design Criteria 3)."
Mr Waghorn then refers again to the orientation of the dwellings towards the views to the east in JER Ex 5/4 at par 5.5 as follows: "Even if I am wrong, the subject site has an east-west orientation and the dwellings are orientated towards the views to the east. The design guidance acknowledges these reasons in why the numerical design criteria may not be achieved. All four (4) apartments will receive a high level of amenity with direct solar access available to the primary living and open space areas from sunrise until approximately 11am during mid winter except for the first floor level apartment, with much greater exposure to direct solar access during the equinox. The objective of Part 4A-1 of the ADG seeks to "optimize the number of apartments receiving sunlight to habitable rooms, primary windows and private open space". The proposed development achieves this objective with all four (4) proposed apartments receiving direct solar access for a minimum of 1 hour (first floor level apartment) with the remaining apartments receiving direct solar access for greater lengths of time."
Mr Waghorn does offer in relation to the second and third floor levels at par 5.4: "The contentions question the quantum of solar access at 11am for the apartments on second and third floor levels given the size of the windows. These are floor to ceiling windows with an area of approximately 1.9sqm which will allow direct penetration of solar access to the primary living areas. If solar access is a concern this can be easily rectified by enlarging the windows by a condition of consent. In any event, the sun eye diagrams clearly show these windows as visible from the sun and solar access is provided to a minimum of 1sqm measured at a height of 1m above ground level in accordance with the ADG."
In oral evidence, Mr Waghorn explains why there is a factual dispute between himself and Mr Turrisi, and refers the Court to Drawing DA 6002 which includes sun eye diagrams for both No. 3 Site and No. 4 Site. He explains as follows: "Our point of contention appears to be the difference between the second-floor level and the ground floor level. At 11am I say that you can see the window, the north-facing window for the second-floor level, that is a living room window and you can see the ground floor level living room window. When scaling off that gets you an area of both which is what the Design Guide seeks in the ADG." (Transcript 15 March 2022 p 103) "You will see that the first-floor level living room window which is a northern elevation window is visible at 11am as is the ground floor level living room window. I acknowledge there is not much of it left at 11am which is probably the reason why there is debate between myself and Mr Turrisi but when scaling off that gives you approximately - just over a square metre of living room that is visible by the sun so I say that that complies with the numerical design criteria of the ADG. But more important I think is the objective of the control. I say even if you're not with me and say that that is not a square metre or that is not sufficient solar access, I say that the proposal satisfies the objective which is to optimise apartments with solar access." (Transcript 15 March 2022 p 103)
Mr Turrisi's oral evidence is that: "It's questionable whether it is 1 metre and so from my perspective analysing the view analysis I'm not satisfied that the proposal does comply. It comes back to the issue then, could you make this development compliant, and my view is that you could. It's simply a situation and it comes back to the design philosophy which has been adopted on the site and comments I've made about consolidation because for instance, if you hypothetically reconfigured the building at number 4 where the apartments were for argument's sake more L-shaped because you now create an attachment to number 3 to that northern back section, that would actually push the building further back from the street so therefore those apartments would probably then get compliance in terms of solar access. So my concern is that yes, you can put an argument to say I meet the objectives but to me the fundamental test is, is there a design or orientation issue which is causing the problem. I don't think it's an orientation issue. I just think it's simply a design issue and that wouldn't compromise the amount of floor space to the development, so I guess that's my view of that issue, Commissioner." (Transcript 15 March 2022 p 105-106)
Mr Waghorn disagrees and says: "Look, I disagree. I think it's entirely an orientation issue. The balconies need to be orientated towards the street quite simply because any other location be it northern, southern or western orientation would be a worse impact on adjoining properties in terms of privacy, visual privacy and acoustic privacy to a lesser extent, and also the fact that the design issue that Mr Turrisi talks about, he talks about a complete redesign and there are so many variables in this redesign. The lift core would have to change. Basement parking would have to change. It's not the application we're considering. So I tend not to go to the hypothetical and potential redesign because simply there's no need to because the proposal as it stands satisfies the objective of the ADG and in my opinion provides a higher level of amenity, especially solar amenity." (Transcript 15 March 2022 p 106 at 20)
I have read and considered Part 4A-1 of the ADG and note the inclusion of the following: "Achieving the design criteria may not be possible on some sites. This includes: • where greater residential amenity can be achieved along a busy road or rail line by orientating the living rooms away from the noise source • on south facing sloping sites • where significant views are oriented away from the desired aspect for direct sunlight Design drawings need to demonstrate how site constraints and orientation preclude meeting the design criteria and how the development meets the objective." (emphasis added)
It is relevant that view sharing is a significant concern and contention raised by the objectors and the Respondent, that is, that views and access to them is considered to be a relevant consideration. In that context, I accept the Applicant's submission that the Court would favour Mr Waghorn's evidence because the configuration of the apartments is underscored by the orientation of the Proposed Developments is to take advantage of the views of the future residents to the east together with Mr Waghorns' calculation of solar access which Mr Turrisi didn't dispute other than to say that it was questionable as to compliance and refocussing on his alternative consolidated design. I will come back to the consideration of view sharing with the adjoining neighbours.
For these reasons, I reach the conclusion that even if solar access was not strictly compliant with the ADG design criteria, the extent of such non-compliance is minimal, the amenity of the future residents is thus adequately protected and does not warrant the refusal of the grant of consent to the Proposed Developments.

[15]

Earthworks (contention 5 and 6)

The experts agree that the contention largely relates to location of the car parking level at a similar level to street level and the subsequent impacts on the streetscape. (JER Ex 4/3 par 5.2). The Respondent submits that this contention is really a question of streetscape. (Transcript 16 March 2022, p 157 at 48)
Clause 6.2 of the RLEP addresses earthworks and the requirement for development consent for earthworks. Earthworks is mentioned again in clause 4.12 of the RDCP with one of the stated objectives being "to maintain or minimise change to the natural ground level."
Mr Turrisi relies on the issue as addressed in the JER Ex 4/3 for No. 3 Site. See also in relation to No. 4 Site JER Ex 5/4 par 6.1 which provides as follows: "With the exception of Particular (b), the experts agree that the issues raised in Contention 5 of the Planning Joint Report for No. 3 Llanfoyst Street match the particulars under this contention and defer to those comments for consideration. Particular (b) is considered below."
The SOFAC refers to "significant excavation of the landscaped area to the front of the property" whereas Mr Turrisi agrees that one of his fundamental concerns with this development is that there is not an underground car park and the Applicant does not drop the height of the building by one level to the area where the car park is presently proposed. (Transcript 15 March 2022 p 78 at par 31) Put another way, I understand Mr Turrisi to seek more excavation rather than less. Mr Turrisi's oral evidence confirms his evidence at par 5.6 of JER Ex 4/3 as follows: "The fundamental issue regarding this contention applies to the elevated nature of the carpark and the excessive bulk and scale created to the street because of the provision of the planter boxes. It is considered that this concern is probably better detailed under the streetscape contention and the view loss contention."
I will come back to the streetscape contention and the view loss contention as referred to by Mr Turrisi.
Mr Waghorn responds to Mr Turrisi's fundamental concern with the following opinion: "In terms of excavation, the objective is to minimise excavation and any solution that Mr Turrisi provided is counterintuitive to that objective because it's not just moving the basement level below ground level. You also need to consider the ramping effects that having a deeper excavation would require and to provide the same quantum of parking it's quite possible that any redesign would require potentially two levels of basement parking which certainly does not minimise excavation and also, in my opinion, creates a worse outcome." (Transcript 15 March 2022 p 110 at par 36)
On balance, I prefer the evidence of Mr Waghorn and find that Mr Turrisi's solution is counterintuitive to the objective to maintain or minimise change to the natural ground level. I conclude that the contention regarding earthwork is not supported by the evidence.

[17]

Planter boxes and car park - visual bulk.

The agreement of the landscape experts is set out at par [12] above. The evidence of Mr Turrisi is that although he acknowledges the agreement of the landscape experts "I certainly from the planning point of view am not happy with the built form outcome proposed by the planter boxes. It's my interpretation that it was more that the landscape officers and architects of the applicant were talking about choice of plants to achieve an outcome. I still think it's an element in the streetscape which is not characteristic." (Transcript 15 March 2022 p 112 at par 30). He goes on to say that: "the reality is the only reason the planter boxes are located in that location is to screen the car park and that car park from a setback point of view is only two and a half metres from the street." (Transcript 15 March 2022 page 114 at par 46)
I also note that the Landscape contention includes particulars (a) and (d) in each of the respective SOFACs includes the following: "the introduction of several garden terraces now fronting onto the street, fails to demonstrate how a suitable treatment/plant material will be selected within these narrow planters to minimise bulk and height, assist with presentation to the street."
I have considered the Planning JER Ex 4/3 and Ex 5/4 which in relation to contentions 6 and 7 regarding landscape, the planning experts agreed that "this contention is a matter for the Landscape Experts" and no further comment or opinions were expressed in relation to Landscape however in relation to Streetscape Mr Turrisi expresses his concern as I have already set out above at par [140].
Mr Waghorn's evidence is that "the presentation of the planter boxes along the front is the most appropriate response given the difference in levels between 3 and 4 and caters for the topography and the significant change in levels between the street and the existing dwellings for example which can be up to 5 metres." (Transcript 15 March 2022 p 110 at par 45)
In light of the language used by the landscape experts expressly responding to 'bulk and scale' and Mr Waghorn's evidence, I find that the topography of the two sites as they relate to each other and as they relate to the street requires a suitable response such as the planter boxes. I conclude that the planter boxes will render the Proposed Developments compatible with the streetscape in that context.

[18]

Is the overall scale of the Proposed Developments not characteristic of the streetscape?

The Applicant submits that it is relevant to note that Llanfoyst Street acts as a divider between applicable FSR and maximum building height development standards and as a result determining the character of the area must be done carefully and cautiously. (Transcript D2 15 March 2022, p 63) The most obvious differentiation within the streetscape is the comparison between the FSR and building height development standards as follows: 1. The FSR development standard applicable to other properties in Llanfoyst Street is 0.75:1 as opposed to an FSR of 0.9:1 applicable to the No.3 Site and the No.4 Site; and 2. Maximum building height development standard of 9.5m as opposed to maximum building height of 12m applicable to the No.3 Site and the No.4 Site.
The Applicant submits that "when we talk for example about streetscape and we talk about character, it must be remembered that Llanfoyst Street on one side is different from Llanfoyst Street on the other." (Transcript D2 15 March 2022, p 63 at par 24).
Mr Turrisi also said that the building on the site 12m in height and compliant with the RLEP 12m height limit would be inconsistent with the streetscape (Transcript 15 March 2022 p 115-116).
I have already referred to the planning principle in Project Venture above at [43] and I accept Mr Waghorn's evidence quoted at par [46] above which is useful to repeat here as follows: "… the proposed height encroachment does not result in a building which is incompatible with the emerging character of the immediate locality and is representative of the varying typologies of the surrounding developments. The proposal will provide a high quality built form and a coherent streetscape appearance with building elements that complement the topography of the site and reflect the emerging contemporary character of the locality. As identified, the height breach is limited to the area directly above the historical excavation for the double garage with all other parts of the building compliant with the 12m height of buildings development standard. The point of variation is limited to light weight elements which will not be visually jarring to the casual observer."
For these reasons I conclude that the Proposed Developments will reflect the future streetscape and will be compatible with the existing streetscape.

[22]

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. 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 question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable."

Part C2 of the RDCP provides controls for Medium Density Residential development and at section 5.5 view sharing is addressed as follows: "5.5 View sharing Explanation Many residences and public places in Randwick City enjoy views to the ocean, coastline, parks and distant skyline of Sydney CBD and Bondi Junction. Some elements are recognised as prominent natural landforms (such as Wedding Cake Island) or significant man-made artefacts, and carry scenic and iconic values. The concept of view sharing concerns with the equitable distribution of views between developments and neighbouring dwellings and the public domain. View sharing control aims to achieve a balance between facilitating quality development and preserving an equitable amount of views for the surrounding properties as far as is practicable and reasonable. View sharing does not prescribe the total retention of all significant views and vistas. In established inner metropolitan areas like Randwick City, developments would inevitably cause varying degree of view loss. The intent of the DCP is to ensure developments are sensitively and skilfully designed, so that a reasonable level of views is retained for the surrounding areas. The NSW Land and Environment Court has developed a planning principle relating to view sharing based on the case of Tenacity Consulting v Warringah Council [2004] NSWLEC 140. Where view loss impact is likely to occur, development proposals must address this Section of the DCP as well as the aforementioned planning principle in detail. Objectives To acknowledge the value of views to significant scenic elements, such as ocean, bays, coastlines, watercourses, bushland and parks; as well as recognised icons, such as city skylines, landmark buildings / structures and special natural features. To protect and enhance views from the public domain, including streets, parks and reserves. To ensure developments are sensitively and skilfully designed to maintain a reasonable amount of views from the development, neighbouring dwellings and the public domain. Controls i) The location and design of buildings must reasonably maintain existing view corridors or vistas to significant elements from the streets, public open spaces and neighbouring dwellings. ii) In assessing potential view loss impacts on the neighbouring dwellings, retaining existing views from the living areas (such as living room, dining room, lounge and kitchen) should be given a priority over those obtained from the bedrooms and non-habitable rooms. iii) Where a design causes conflicts between retaining views for the public domain and private properties, priority must be given to view retention for the public domain. iv) The design of fences and selection of plant species must minimise obstruction of views from the neighbouring residences and the public domain. v) Adopt a balanced approach to privacy protection and view sharing, and avoid the creation of long and massive blade walls or screens that obstruct views from the neighbouring dwellings and the public domain. vi) Clearly demonstrate any steps or measures adopted to mitigate potential view loss impacts in the development application."
The Court undertook an onsite inspection from affected properties to the west of the Sites, specifically Units 4 and 5 of 3 Albert Street Randwick and units 1 and 3 at 1 Albert Street, Randwick. There was also representation made by Ms Steven Layman on behalf of the proprietors of the strata owners corporation of 12 Milford Street Randwick, being a property which adjoins No.3 Site to the south-west. The Court did not inspect or attend a view from this last mentioned neighbouring property.
In relation to the view of Wedding Cake Island, one of the objector's evidence (unit 4, 3 Albert Street Randwick) is that Wedding Cake Island, described as a prominent natural form in the RDCP, which "I no longer will be able to see if the development goes ahead. I do understand that the current sites are under-developed and some development will most likely proceed or go ahead." (Transcript 14 March 2022, p 17 at 15)
The Applicant relies on a View Impact Assessment dated 4 February 2022 prepared by AE Design Partnership including photomontages dated 24 November 2021, which show nine identified vantage point locations and existing views obtained within wireframes of the existing buildings, wireframes of the proposed development and 3D model of proposed developments (Ex G/3 and 4). The View Impact Assessment is expressly stated to be assessed against the View Sharing Planning Principle for Private Properties in Tenacity as follows: "Both developments have been skillfully designed to lie approximately 1m below the 12m height limit minimising view loss for residents of neighbouring apartments (3 Llanfoyst: 1.33m to 1.57m and 4 Llanfoyst: 0.93m to 1.29m)"
The conclusion in the View Impact Assessment is that the impacts are acceptable on the following grounds: "From vantage points 1 to 2 and 9: Compliant envelopes would have a very similar impact as the proposed developments to water views, land-water interface views, water-sky interface views and distant views of Wedding Cake Island. From vantage points 3 to 8: Compliant envelopes would have a greater impact than the proposed developments to water views, land-water views, water-sky interface views and distant views of Wedding Cake Island."
I note that the image in Fig 3 above demonstrates that the Proposed Developments do not maximise the building envelopes and the image is consistent with the description of rear of the building being approximately 1m below the 12m height limit.
The Statement of Environmental Effects (SEE) filed with the Class 1 Application in each proceedings includes a submission on views (SEE page 24 section 4.3.7 Views. (Ex B/4) and SEE page 22 section 4.3.7 Views (Ex A/3). Although a view loss assessment had not been undertaken at the time the SEEs were prepared, they each conclude that "insistence on a standard more onerous than the development controls […] would certainly not give the applicant the same development potential and amenity and therefore the view sharing may be considered reasonable."
The town planning experts agree that the Wireframes provided by AE Design Partnership are an accurate depiction of the views from the properties to the rear, noting that Viewpoint 6 is actually 3/1 Albert Street. (Ex 4/3 at par 8.1) They further agree that the unresolved issue relates to part 4 of the Tenacity Planning Principle relating to the "skillful design". (Ex 4/3 at par 8.3)
The Applicant submits that before turning to the planning principles in Tenacity, the well-established principles established in the 1950s should be considered, namely Commonwealth Oil Refineries Ltd v North Sydney Municipal Council (1957) 2 LGRA 217 at 223, where Hardie J said: "It would seem that the attitude of the Council throughout, from 1947 up to the present time, has been influenced mainly by a consideration of the interests of those living in the residences immediately opposite the subject land, such interests being in the maintenance of an unobstructed harbour view across the appellant/s vacant land. This Court has pointed out in Connelly's Case that a Council may, in an appropriate case when exercising its discretionary power to grant approval of proposed buildings, seek to balance the interests of one owner of land against those of another, but that, if it does so endeavour, it undertakes a difficult and delicate task. In that decision it was also pointed out that care must be taken not to give undue emphasis and importance to the interests of an owner who happens to have built first in an area where views are attractive and where people naturally do not wish to have those views obstructed."
Then in the decision of Sugerman J in Wright v Manly Municipal Council (1958) 4 LGRA 29 at [33]-[35]: "Apart from any special or exceptional circumstances, the purchaser of a lot, with a view, in a residential subdivision which has been approved by the Council in a Living Area Zone is, prima facie, fairly entitled to expect that he will be permitted to erect on it a dwelling-house which will satisfy reasonable family requirements, conformly with the size of the lot and prevailing standards in the locality, and will secure to him a reasonable participation in the amenities of the situation, including the view. This claim may come into competition with the similar claims of neighbouring landholders, thus imposing upon the Council what has elsewhere been described as a "delicate and difficult task" (Connelly v Sutherland S.C.) requiring a close examination of the circumstances of the particular case… But the exercise of these powers for this purpose must not be allowed to press with undue weight upon those who, having been permitted to acquire adjoining lands for the purpose of erecting dwelling-houses thereon, are fairly entitled to such a reasonable expectation of use and enjoyment as I have earlier mentioned. These, in my judgment, are entitled to have their reasonable expectations taken into consideration. Where a question arises as between neighbouring landholders, both may be considered as more or less in the same case, having acquired their respective lots for the purpose of erecting dwelling-houses and enjoying the view; and where unhindered enjoyment cannot be had by either, consistently with the claims or the other, the proper solution would appear prima facie, to be one which secures to each a fair share, if that is possible and subject always to a due consideration of all the circumstances of the particular case … In my opinion the question in a case such as the present ought likewise to be whether there is any alternative, that is to say any reasonably practicable alternative, which, while enabling the reasonable expectations of the building owner to be fulfilled, and without imposing upon him any undue burden of added cost or otherwise, would at the same time secure to some appreciable extent the continued enjoyment of the view by the passing public."
The Applicant also refers the Court to the more recent decision of Chilcott C of Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1133 at [31]: "31. The urban design and planning experts agreed that: 1. the provisions of cll 4.3 and 4.4 of SLEP envisage, respectively, a built form of up to 30m in height and a FSR of 3:1 on the Subject Site, and the proposed development is compliant with these controls; 2. given that these are the development standards applicable to the Subject Site, it would be anticipated that a built form responding to these standards would, subject to merits assessment, be approved on the Subject Site; 3. given points (1) and (2), it should be concluded that a loss of view from apartments on the west side of Gerrale Street, including the Breeze apartments, was anticipated by the planners who drafted the provisions of SLEP, and the Council which adopted them; 4. the loss of views from the apartments to the west of Gerrale Street, which in some cases was assessed to be severe, was unfortunate, but was a natural consequence of the specific decision of Sutherland Shire Council to adopt the height and FSR development standards in SLEP applicable to both the Subject Site and to the lots immediately to its rear and west that front Gerrale Street; 5. there were opportunities, through use of a more skilful design, to reduce the view loss impacts on the Cecil apartments. In their joint report, the experts had provided recommendations to amend the design of the south east corner of the proposed development to achieve that outcome. These opportunities involved the relocation of fireplaces, and a reduction in the extent of the south-east corners of the proposed built form; 6. the amended Exhibit C plans prepared by the Applicant, upon which it now relies, satisfactorily reflected those recommendations, and were therefore supported by the experts."
Then at [36] - [38]: "36. Mr Hale SC, for the Applicant, submitted that the manner in which the Applicant had modified its plans for the proposed development, in order to respond to the Respondent's view loss contention, was consistent with the view loss planning principles contained in the decision of former Senior Commissioner Roseth in Tenacity Consulting v Warringah [2004] NSWLEC 140 (hereafter referred to as 'Tenacity'), and of which the most relevant principle for this appeal is the fourth principle at [29] of that judgment, which is: "The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. 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 question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable." 37.Given the complying nature of the proposed development, in terms of height and FSR, Mr Hale said that the Applicant had indeed adopted a more skilful design, which I note had secured a similar development potential and amenity, and which did reduce the impact on the views of neighbours, notably for those neighbours within the Cecil apartments. Mr Hale said this was consistent with the intent of the principles in Tenacity. 38. Having considered the evidence of the experts, and the submissions of the Parties, I accept their conclusion that, notwithstanding the view loss impacts on apartments on the western side of Gerrale Street, the Applicant's proposed development, as represented in the so-called Exhibit C plans: 1. reflects the intent of Council's B3 zoning of the Subject Site, and the development standards applicable thereto; 2. has appropriately responded to both the view loss contention raised by the Respondent, and to the submissions of objectors, in terms of the view sharing principles in Tenacity; and 3. should not be refused for reasons of view loss impacts."
I agree with the experts that the most relevant principle for these appeals is the fourth principle at [29] of Tenacity, which is: "The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. 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 question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable."
I note that non-compliance with planning controls does not in of itself automatically render the impact on views unreasonable. An assessment of reasonableness is still required.
The evidence of Mr Waghorn in relation to view sharing can be summarised as follows: 1. side boundary views are harder to protect; 2. the amended application lowered the Proposed Developments by 1.3m; 3. the impact of consolidating the Proposed Development which would result in 'closing the gap' between the 2 buildings will result in a total loss of some views; 4. the test involves considering the balance between protecting existing views and the development potential of the No.3 Site and No.4 Site. In this regard, Mr Waghorn's evidence that 'dropping' the buildings by a storey by excavating the basement carpark as expressed by Mr Turrisi will retain the same gross floor area of development however the cost of excavation will negatively impact the feasibility of the development potential and will also negatively impact the amenity of light and views of future residents.
The Proposed Developments comply with the RLEP and I have considered in detail and found that the contravention of the building height is justified for the reasons given above at par [21] to [63], and in particular the evidence that the portion of the building that contravenes the 12 m height limit has no impact on views of the adjoining neighbours. The RDCP controls which may be breached by the Proposed Development are minor numerical non-compliances and none of these non-compliances of the Proposed Developments have an impact on views.
In relation to setbacks and building separation, Mr Turrisi's recommendation is to consolidate the sites and to close the gap however I accept the undisputed evidence of Mr Waghorn that 'closing the gap' would obliterate some of the retained views and I conclude that this would result in a worse scenario for the neighbours.
I find that the development of No.3 Site and No.4 Site will inevitably cause a degree of view loss as foreshadowed in the RDCP. I have formed the opinion that the design of the Proposed Developments is skilful to the extent that the height of buildings has been lowered and that there is a separation between the two buildings, while sharing a common basement, which retains an equitable of aspect of views to the east for the neighbours to the west as depicted in the Wireframe.
I acknowledge that some of the neighbours may be disappointed with the outcome of my judgment however I have carefully considered the legal and planning principles together with their submissions in coming to my conclusion which achieves a balance between facilitating quality development and preserving an equitable amount of views for the surrounding properties as far as is practicable and reasonable.

[23]

Contested Conditions of consent

The parties do not agree on Consent condition 2(d) sought by the Respondent regarding the construction of the Basement which reads: "The entire basement car park must be built over the site, being Nos 3 and 4 Llanfoyst Street before any built form above the car park is constructed."
Mr Turrisi's view is that with the basement design the way it is, that it would make sense to treat this as one development because his understanding is that it is being built as one development. (Transcript 15 March 2022 p 80 at par 45)
The Applicant argues that the form of the proposed condition is opposed however, the Applicant would accept a condition which achieves the intent of the Council's condition but does not restrict the manner or staging of construction in the following terms: "The developments are to be constructed concurrently. The developments at 3 Llanfoyst Street Randwick and 4 Llanfoyst Street Randwick, the subject of the development consents to DA 619/2020 and DA 718/2020, are to be developed concurrently."
The Respondent does not agree with the Applicant's alternate wording for the reason that there is no certainty with respect to ensuring access to 3 Llanfoyst Street from the outset and that requiring concurrency does not ensure access.
I accept the concern of the Respondent as to ensuring access however I agree with the Applicant that if the construction is concurrent, the issue of relevant occupation certificates will not be enabled for one site prior to the other and I am satisfied that concurrency of construction will achieve the same outcome as sought by the Respondent. Accordingly, the alternative wording proposed by the Applicant is to be included at consent condition 2(d) as follows: "The developments are to be constructed concurrently. The developments at 3 Llanfoyst Street Randwick and 4 Llanfoyst Street Randwick, the subject of the development consents to DA 619/2020 and DA 718/2020, are to be developed concurrently."
There is also an inconsistency as to condition 2(e) regarding the solid boundary fence referred to at [94] above. This only appears in conditions for No. 3 Site and should also be included in the conditions for No.4 Site.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Cases Cited (13)