104 Boyce v Randwick City Council

[2007] NSWLEC 83

Land and Environment Court

of New South Wales

CITATION:

104 Boyce v Randwick City Council [2007] NSWLEC 83

PARTIES:

APPLICANT
104 Boyce

RESPONDENT
Randwick City Council

FILE NUMBER(S):

10600 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- demolition of dwelling houses, six-storey mixed commercial and multi-unit housing development, amenity impacts on neighbours, planning controls including development standards, car parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
Randwick City Council Maroubra Junction - Town Centre Development Control Plan
Randwick City Council Development Control Plan-Parking
State Environmental Planning Policy No.65 - Design Quality of Residential Flat Development
NSW Residential Flat Design Code 2002

CASES CITED:

Tenacity Consulting v Warringah [2004] NSWLEC 140

DATES OF HEARING:

8 and 14 Dec 2006

 
DATE OF JUDGMENT: 

23 February 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green, solicitor
of Pike Pike and Fenwick

RESPONDENT
Miss P Hudson, solicitor
of Marsdens.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 February 2007

10600 of 2006 104 Boyce v Randwick City Council

JUDGMENT

Introduction
The appeal

1 This appeal relates to Development Application No. 302/2006 which involves the demolition of 3 existing dwelling houses and the construction of a six-storey mixed commercial and multi-unit housing building comprising two retail units, five commercial units and 26 dwellings above two levels of basement car park with parking for 36 vehicles. Strata subdivision is also proposed.

The site

2 The site at Nos.102 -106 Boyce Road, Maroubra Junction comprises three allotments being Lot 1 DP 1067926 and Lots 1 and 2 DP 594896. It has a street frontage of 30.33 m and an area of 947.8 sq m. It is situated a short distance away from the Maroubra Junction commercial/shopping centre on Anzac Parade.

The locality

3 The surrounding locality is characterised by a mix of building types and various architectural styles, including multi-storey mixed commercial and multi-unit housing buildings, six-storey multi-unit housing buildings interspersed with one and two-storey dwellings. Adjoining the site to the east (No 108 - 110 Boyce Road) is a part eight-storey mixed commercial and residential building above basement car park and to the north is a six storey multi-unit housing building (No 87 - 89 Mason St). Adjoining to the west is a single storey building currently occupied by the Salvation Army. Opposite the site on the south side of Boyce Road is a recently completed mixed commercial and multi-unit housing development of partly five and partly eight storeys.

Planning controls

4 The following planning controls are applicable to the site:

• Randwick Local Environmental Plan 1998 ("the LEP")
• Randwick City Council Maroubra Junction - Town Centre Development Control Plan ("the Town Centre DCP")
• Randwick City Council Development Control Plan-Parking ("the Parking DCP")
• State Environmental Planning Policy - 65. Design Quality of Residential Flat Development ("SEPP 65").
The LEP

5 The site is zoned 3A General Business under the LEP wherein business premises and multi-unit housing are, subject to the granting of development consent, permissible forms of development.

6 Clause 42D(2) also requires development to be consistent with the applicable zone objectives and with the objectives for the Maroubra Junction Town Centre. The objectives of the 3A zone are:

• to maintain the viability of existing business centres, and
• to facilitate development of land, in places identified by the Council as suitable to be used as business centres, for commercial, retail, residential and community purposes:
• by introducing appropriate floor space ratio controls, and
• by encouraging economically viable retail cores which are centrally located and in close proximity to public transport, and
• by enhancing employment opportunities and servicing the needs of the local and regional community, and
• by encouraging and facilitating the use of public transport, and
• by providing and enhancing pedestrian and public open space areas for shoppers and workers, and
• by maintaining and improving the environmental and aesthetic qualities of the City of Randwick,
• to minimise the impact of development on adjoining and nearby residential zones, and
• to enable a mix of housing types to encourage housing affordability.
  

7 Also particularly relevant are the following town centre objectives in cl 42D(2):

• to achieve high-quality design in all new developments and improvements undertaken in the public domain,
• to encourage a vibrant and active town centre that provides a range of facilities and services that benefit the locality and local government area,
• to provide opportunities for residential development in the town centre that complement the primary business function of the town centre,
• to encourage a variety of housing forms that compliment development within the town centre and do not adversely impact upon the amenity of surrounding residential areas.

8 Clauses 31, 32 and 33 of the LEP contain development standards for floor space ratio, landscaped areas and building heights. However by virtue of cl 42D these standards do not apply. Relevantly cl 42D provides that:

(4) The maximum number of storeys requirement in the Maroubra Junction Town Centre Development Control Plan adopted by Council on 18 November 2003 applies to the development of land within the Maroubra Junction Town Centre as if it were incorporated into this plan.
(5) For the purpose of sub-cl (4), the maximum number of storeys must correspond with the building height as set out in the Table to sub-cl (6).

9 According to the diagrams in s 3.2.4 of the Town Centre DCP, the site is included in Block 4 and is indicated as having a five-storey limit. The table in cl 42D(6) of the LEP relevantly provides that for the purpose of the clause, that the maximum height to the underside of the ceiling of a five storey building is 18 m.

10 Having a height of six storeys the proposal has a one-storey non-compliance although the 18 m height limit is only exceeded by up to about 1 m, less than half of the height of a normal storey.

11 The NSW Department of Planning has advised that it does not consider it to be appropriate to refer to development control plan provisions in a local environmental plan. If a council wishes to introduce development standards these should be included in the principal local environmental plan and not through a development control plan. Despite this concern it seems likely that the requirement in clause 42D is a development standard.

The Town Centre DCP

12 Part 3 of the Town Centre DCP contains various development controls that are applicable to the Maroubra Junction town centre, which includes this site. Of particular relevance are the building envelope, building height, building depth, building separation, street setbacks, and side and rear setbacks.

13 The objectives of the building envelope requirement in s 3.1.3 seek to control the bulk, height and scale of development and to create a transition between the town centre and the surrounding residential area.

14 The objectives of the building height requirements in s 3.1.4 are to provide for an appropriate scale and character and to allow daylight and solar access to all development and the public domain. The applicable performance criteria in terms of storeys and building height reflect those in cl 42D(6) of the LEP.

15 The objectives of the building depth requirements in s 3.1.5 provide for the bulk and scale of development to be responsive to the existing and future context as well as adequate amenity for building occupants and ensuring that dwellings have a dual aspect. The performance criteria provide for a maximum allowable depth of residential building envelope is 22 m with a maximum of 18 m glass line to glass line.

16 Section 3.1.6 deals with building separation and notes that buildings which are too close together can create internal amenity problems both for the proposed new building and its neighbours. Such problems include lack of visual and acoustic privacy and loss of daylight access. The objectives include the need to ensure visual and acoustic privacy for existing and new residents. The relevant performance criteria require that for a building of five to eight storeys there should be 18 m between habitable rooms and balconies; 13 m between habitable rooms and balconies/non-habitable rooms; and 9 m between non-habitable rooms. The setback requirements, which are part of the block controls in s 3.2.4, are subject to the proviso that if any inconsistency between the maximum building envelope and setbacks arises, the setback requirements (ie the applicable 3 m side setback) and the requirements in s 3.1.6 override the maximum building envelope.

17 The relevant objectives of the street setback requirements in s 3.1.8 involve the definition of the street edge and the transition between public and private spaces. They also provide for visual privacy, entry spaces, outlook and surveillance, and landscape character but make no reference to views or view sharing. The performance criteria require that development should comply with the street setbacks in s 3.2.

18 The relevant objectives for side and rear setbacks in s 3.1.9 require the minimisation of the impact of development on light, air, sun, privacy, views and outlook for neighbouring properties. They also require that development positively define the streetscape. The performance criteria require compliance with the block controls in s 3.2.

The Parking DCP

19 The key objectives of the Parking DCP include the provision of an appropriate level of off-street car parking where that parking provides for the safe entry and exit of vehicles. Appropriate parking for people with a disability and on-site storage for bicycles are also required. Associated objectives relate to the maintenance of the visual and environmental qualities of the local environment.

20 Car parking spaces are variously required on the basis of the size of the dwellings and the amount of retail/commercial floor space. Ramp, access, and car space dimensions are also specified.

SEPP 65

21 The main aim of SEPP 65 is to improve the design quality of residential flat development in New South Wales. It seeks to do this by applying ten design quality principles, which have the purpose of producing good design. It also provides for the establishment of design review panels that have the responsibility of providing specific independent design advice to consent authorities in relation to particular development applications for residential flat development. Also relevant in this context is the NSW Residential Flat Design Code 2002 ("the RFDC")

Advertising

22 The application was advertised and some 18 objections were received plus a petition containing 108 signatures. The main matters of concern to the resident objectors from 108 – 110 Boyce Road include: inadequate building separation; loss of visual and aural privacy; inappropriate location of balconies; loss of daylight and sunlight; noise associated with the car park entry; insufficient ventilation between buildings; insufficient car parking especially for visitors; traffic congestion generally and resulting from the inappropriate garbage bin location; loss of views and outlook; and potential damage during construction.

23 A number of the objector’s dwellings were inspected by the Court.

Council's consideration
The design panel's comments

24 The Joint Randwick/Waverley Design Review Panel ("the design panel") considered the application, reached a number of conclusions and made a number of recommendations including:

• The reduction of the Boyce Road frontage setback is supported and considered desirable given the similar setbacks to neighbouring buildings. The articulation of the facade however could be improved.
• The increased number of floors could be acceptable if high levels of amenity are provided to all apartments and there are no negative impacts on the public domain or neighbouring buildings.
• The proposal is excessively bulky due to the dense planning arrangement however the scale could be moderated by a refinement of the facade treatment and detail and increased articulation. Such changes would result in an improved built form.
• The increased density cannot be supported and a reduction of negative impacts is required to satisfy SEPP 65 requirements.
• The deep soil areas on the northern part of the site are capable of supporting some substantial eucalyptus trees although the soil areas above the basement car park are not deep enough.
• Many improvements to the amenity of the development are required so as to satisfy SEPP 65 requirements. In this regard attention needs to be given to the entries to the commercial suites and the apartments, natural light, bedroom sizes, garbage room location and single orientation apartments.

25 In summary the panel considers that the applicant's architects have demonstrated reasonable skills in planning and built form, however improvements are needed to be made in accordance with the above concerns.

Officer’s report

26 Shortly before the hearing a report was prepared by Council's Senior Assessment Planner ("the officer's report") noting that the appeal was based on the deemed refusal of the application. That report deals with a number of issues that subsequently formed the basis of the Statement of Issues now before the Court. It considered the amended plans provided by the applicant in response to these issues and those raised by the Court-Appointed expert in urban design. These plans had been readvertised.

27 The officer's report particularly examines the issues associated with the LEP, SEPP 65, the Town Centre DCP and the Parking DCP requirements, and the resident objections. It recommends that council agree in principle to enter into consent orders subject to a number of conditions. Those conditions deal with relatively minor changes to the proposal in relation to: planter boxes, balconies and privacy screens; the installation of ceiling fans; and an amended landscape plan.

Council's decision

28 Despite the supporting officer's report, on 5 December 2006 the council refused the application for reasons involving: non-compliance with the number of storeys development standard; non-compliance with the objectives of the 3A zone in relation to aesthetic appearance, bulk, scale and form; non-compliance with objectives, performance criteria and other controls in the Town Centre DCP; the proposal is not a good design having regard to SEPP 65; and the inadequate provision of car parking spaces.

The issues
The statement of issues

29 The Court was provided with a nine page amended statement of issues identifying 10 separate issues. During the hearing a number of issues or parts of issues were deleted. The remaining issues are essentially as follows:

• The proposed development is unacceptable in that the proposed height is in excess of the requirement in cl 42D of the LEP, particularly in relation to the five-storey maximum.
• The proposed development is unacceptable in that it fails to respond to the design quality principles in SEPP 65 including matters of height and bulk, density and the internal layout of the dwellings.
• The proposed development is unacceptable in that it is inconsistent with the objectives, performance criteria, development and design controls in the DCP, particularly in relation to gross floor area building depth building separation setbacks, apartment sizes and neighbour privacy.
• The proposed development is unacceptable in terms of the an adverse impact on amenity for future residents of the development and existing residents in the surrounding area particularly in relation to view loss and privacy.
• The proposed development is not consistent with the objectives of the 3A zone particularly in relation to aesthetic appearance, bulk scale and form.
• The proposed development is unacceptable in terms of vehicular access to the basement car park, the design of the car park and the number of vehicle spaces provided.
  
The relevant issues

30 Having considered all of the evidence, including an inspection of the site and its environs particularly including a consideration of the proposed development when viewed from a number of dwellings in the existing adjoining residential flat building I agree with Mr Harrison that the main issue is:

• Whether the separation between the building at 108 - 110 Boyce Road and the proposed building is satisfactory, particularly in terms of the amenity of the existing dwellings and taking into account the relevant planning controls.

31 The other issues comprise:

• Whether the proposed building is appropriately responsive to the building envelope controls in the town Centre DCP, the height controls in the LEP, the design quality requirements of SEPP 65 and whether the SEPP 1 objection in relation to building height should be upheld.
• Whether sufficient off-street car parking has been provided and whether the additional traffic generated by the development and utilising Boyce Street would be unsatisfactory.

Court appointed expert

32 The Court-appointed urban designer and town planner Mr M Harrison considered the proposal and prepared three reports:

• A preliminary report dealing with the issues and the original plans. (Exhibit 8).
• A final report dealing with the revised issues and amended plans. (Exhibit 8).
• A supplementary report dealing more particularly with the building height and building separation issues (Exhibit R)
Preliminary report

33 In Mr Harrison's preliminary report he takes into account the design panel's comments and recommends a number of changes to the proposal.

34 In relation to building height he noted that the proposal exceeds the height limits by one story and 1.91 m but was of the opinion that the exceedences were acceptable (as did the design panel) subject to the need to address several amenity issues. Similarly, in dealing with height and bulk he explained that these matters were sufficiently consistent with the building envelope controls and less than the existing bulk and scale of the neighbouring development to the east at 108 – 110 Boyce Road. In the circumstances the general height and bulk of the proposal is satisfactory and the exceedence of the building envelope controls is marginal and acceptable.

35 The access to the commercial suites from the site path is inappropriate and requires modification. He also contends that there is no fundamental problem in relation to site landscaping, dwelling amenity, safety and security.

36 By reference to the report by Mr S. King a consultant architect who addressed the issues of solar access and natural ventilation for this development he was satisfied that additional solar access was not required for the dwellings within the building.

37 In response to the panel's concerns about the building's presentation, he agreed that the articulation of the facade design could be improved and identified a number of measures to achieve this including glazing and wall openings. In relation to density he noted that there is no floor space ratio limits in the planning controls and provided that amenity issues are resolved there is no reason why density could be considered to be excessive.

38 In his conclusion he recommends a number of changes in relation to the entry to the commercial lobby; street facade articulation; internal amenity; and landscaping; apartment sizes; segregated car parking and; and adaptable dwellings.

39 The application has now been amended in response to Mr Harrison's recommendations.

Final report

40 In his final report, Mr Harrison considers at length the issues of:

• Urban design including, context, aesthetics, height, scale, built form, density, landscape, amenity, resource, energy and water efficiency.
• Planning controls including: the design quality principles in SEPP 65; the objectives of the 3A zone in the LEP; and the building envelope, building separation, scale, privacy, landscaping and open space requirements of the DCP.
• The concerns of the objectors from the neighbouring building to the east, including: building separation visual and acoustic privacy, noise and relation between buildings car parking and traffic overshadowing, view loss and privacy impacts.
• Various other matters including: vehicle access and car parking, adaptable units, waste management, apartment sizes, dwelling mix and adequacy of information.

41 Mr Harrison then concludes as follows:

The amended statement of issues is wide ranging and many have been satisfactorily addressed in the amended design. The main issue is the separation of the proposed building from 108- 110 Boyce Road. This is the issue most on the mind of the objectors and is addressed comprehensively in my response to issue 3(c) [building separation distances]. Height is also a primary issue but the setback of the top floor and the fact that the height is numerically less than a metre above the maximum height control for the most part means that I don't consider height determinative.
The amended development application is suitable for approval subject to the following special conditions and checks being made.
Development conditions
• Ceiling fans to living rooms and bedrooms.
• Replace Summer Red Gum trees with broad – leafed paperbarks.
• Soil is to be of an open nature and contain no silt or clay and must be tested by an arborist with aims to being a gap/graded soil.
• Soil areas over basement slabs are to be provided with agricultural pipes were equivalent to improve airflow to the soil medium and to promote free drainage.
• Residents to have easy access to the common open space from the lift through the commercial area corridor.
• Privacy screens to the southeast corner balconies to be fixed.
• Demonstrate compliance with compatible AS1428-2001 for the commercial components of the development.
• Demonstrate access from visitor car parking to retail and interaction with residential secure area.
• An independent dilapidation report to be done of 108 – 110 Boyce Road prior to construction commencement and at construction completion. Any damages by the construction of the proposal to be made good prior to occupation.

42 The following is to be checked:

• That council is satisfied with the waste management strategy.

Supplementary report

43 In his supplementary report Mr Harrison deals with the following questions:

• Is an objection under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") required for building height in relation to cl 42D of the LEP?
• What should be an appropriate building separation and side setback between the proposal and the neighbouring apartment building to the east at 108 - 110 Boyce Road?

44 In relation to the SEPP 1 question he formed the opinion that it would be prudent for an SEPP 1 objection to be prepared.

45 In relation to building separation from 108 - 110 Boyce Road he notes that s 3.2.4 of the Town Centre DCP provides particular development controls for Block 4 in which the site is situated. In this regard observes that the proposal is generally within the envelope including having a 3 m set back from the side boundary. As for the setback performance criteria, he argues that the 15 m height category is applicable and relevantly the separation between habitable rooms and balconies is required to be 12 m, although the proposal should, in accordance with usual practice, only provide half this distance. Despite not complying with this requirement, he is satisfied that the distance of separation is satisfactory.

Additional evidence

46 Additional evidence provided for the consideration of the Court includes:

• A design verification statement prepared by Mr J. Selleck, an architect, in accordance with the requirements of SEPP 65.
• An SEPP 1 objection in relation to the maximum number of storeys and maximum building height in cl 42D(4), (5) and (6) of the LEP.
• A report by Mr G. Pindar, a consulting traffic engineer, dealing with car parking and traffic.
• A report by Mr S. King an architect, dealing with solar access and natural ventilation associated with the proposed building.
The design verification statement

47 The design verification statement considers the proposal in the light of the design quality principles in SEPP 65 including matters of: context; scale; built form; density resource energy and water efficiency; landscape; amenity; safety and security; social dimensions; and aesthetics.

48 The statement concludes that the primary objectives of good residential apartment design have been achieved taking into account that the building envelope, siting and general configuration complies with the requirements of SEPP 65. The building is appropriate in the context of the site.

The SEPP 1 objection

49 The SEPP 1 objection acknowledges the interrelated storeys and height development standards in cl 42D(4) and (6) of the LEP. It identifies the objectives of these development standards by reference to the objectives in cl 42D(2) of the LEP and s 3.1 of the Town Centre DCP as follows:

• To ensure future development within the town centre responds to the desired scale and character of the street and the town centre;
• To ensure development at the edges of the town centre responds to the scale and character of development and the streets surrounding the town
• To allow reasonable daylight and solar access to all developments and the public.

50 It considers the storeys and height non-compliances in the light of these objectives and the nature and form of surrounding development concluding that compliance with these standards would be unreasonable and unnecessary in the circumstances. A particularly important circumstance is the fact that the sixth storey of the building has increased setbacks from the site boundaries by comparison with the remainder of the building. This results in limited opportunities for those parts of the building that exceed the standard to be observed. Also, the proposed building is significantly lower than the adjoining residential flat building at 108 – 110 Boyce Road and taking into account other development to the east there is a resultant visual transition or stepping down of built form. It also takes into account the SEPP 65 design verification statement.

51 By reference to the "view from the sun" drawings and by comparison with an otherwise complying scheme the objection notes that there would not be any additional overshadowing impacts of any consequence.

52 In all of the circumstances it concludes that compliance with the standard would be consistent with the aims of SEPP 1 and that the objection to the development standards is well founded.

Mr Pindar's report

53 In his report Mr Pindar examined the proposal in terms of the car parking requirements in the Parking DCP and calculated that 45 car parking spaces would be required for both the residential and commercial use of the building.

54 Whilst only 36 car parking spaces have been provided it was his opinion that this would be satisfactory taking into account the mixed-use nature of the development and the opportunity for the car parking to be shared as well as the proximity of the site to good public transport and the Maroubra Junction commercial centre. He also took into account that as a result of the closure of one of the two existing driveways one additional on street parking space would become available. He also considered that this outcome is consistent with the approach that the Randwick Council has taken in the past in relation to similar developments.

55 In an earlier report he considered the two-way access ramp to street level which is to be operated with a traffic signal control which is designed to ensure that a vehicle waiting to exit the site does not impede and entering vehicle. This ramp as well as the parking spaces and aisles comply with AS 2890.1 in terms of width and gradients. More generally he advised that the internal circulation movement is satisfactory in terms of the swept path diagrams for an 85th percentile design car.

Mr King's report

56 Mr King is a consultant architect who has particular expertise in relation to solar access and natural ventilation. In his report he concludes, having taken into account the relevant requirements of the RFDC that overall, the proposed dwellings achieve a satisfactory level of solar access and natural ventilation. In the circumstances although the proposed building exceeds the building depth controls in s 3.2.4 of the Town Centre DCP he does not accept that any concerns, including dwelling size, regarding internal amenity arise.

Court's consideration
Envelope controls and design quality

57 Having reviewed the SEPP 1 objection, the SEPP 65 design verification statement, the design panel's report and the evidence of Mr Harrison, I am satisfied that the design of the building in the streetscape is entirely satisfactory.

58 In relation to the building envelope generally as determined by the various planning controls as applicable to this site I was assisted by the so-called "blue box" diagrams provided by the applicant. These diagrams provide a useful representation of the extent to which the proposed built form is positioned within or would exceed the building envelope.

59 The exceedences of the standards that form the basis of the envelope controls are not of any determinative significance. In particular I accept the evidence that the non-compliance with the 3 m set back from Boyce Road is appropriate indeed desirable given the similar setbacks of neighbouring buildings. The sixth level of the proposed building in so far as it exceeds the height controls is setback in excess of 5 m from the Boyce Road frontage and will have little impact in terms of streetscape.

60 I am satisfied that the changes made to the design of the facade as sought by the design panel will be effective. Also, the resulting building will, again taking into account the building envelope controls, including the associated objectives, not have an excessive density. I also have no concerns regarding the relatively minor exceedence of the height controls and accept that the height and form of the building will result in a satisfactory transition from 108- 110 Boyce Rd and as anticipated by the Town Centre DCP between the town centre and the surrounding residential area.

61 I also note that the sixth level of the building is setback in excess of 6 m from its southern boundary and this part of the building that does not comply with the height controls should not have any direct impacts of significance on the dwellings in 108 - 110 Boyce Road.

62 Overall, I am satisfied that the proposal is appropriately responsive to the applicable planning controls and in the circumstances I would uphold the SEPP 1 objection. Hence, in relation to built form and streetscape the building warrants approval.

Building separation

63 Mr Harrison was of the opinion that an appropriate application of the building separation requirements in s 3.1.6 of the Town Centre DCP requires a 12 m separation between habitable rooms and balconies. This is because:

The proposal lies between the two categories for building separation and is closer to the 15 m category and the 18-27 m category. In the 15 m category the separation between habitable rooms and balconies is 12 m. In the 18-27 m category the separation between habitable rooms and balconies is 18 m.

64 However, in my opinion because the proposed building is 6 storeys (rather than 4) and about 19 m high (rather than 15 m) the performance criteria for a building of 5 - 8 storeys/18 –27m in height should be applied. Hence there should be 18 m between habitable rooms and balconies; 13 m between habitable rooms and balconies/non-habitable rooms; and 9 m between non-habitable rooms.

65 Relevant to these requirements the main relationship between the proposal and 108 - 110 Boyce Road involves habitable rooms and balconies opposite balconies. Hence, the strict application of these requirements results in a separation distance of 18 m. The balconies of 108 - 110 Boyce Road are setback 3 m from the common boundary; the balconies of the proposal are setback 2.4 m; and the habitable rooms are setback 3 m. Hence the total separation distances vary between 6 m and 5.4 m compared to the required 18 m.

66 As a matter of principle I agree with Mr Harrison and do not accept that the proposed building should be required to meet the full separation distance on its own site, which would otherwise require the provision of a 15 m setback compared to the 3 m setback actually provided by 108 - 110 Boyce Road. This would impose an unreasonable constraint on the development of this site. Instead a reasonable initial interpretation of the standard, subject to a merits assessment would be to require the provision of half of the required 18m separation, that is a setback from the boundary of 9m.

67 As noted above, the objectives for side (and rear) setbacks in s 3.1.9 of the Town Centre DCP require the minimisation of the impact of development on light, air, sun, privacy, views and outlook. It is unclear however as to whether the building separation controls in s 3.1.6 should be considered to be side setback requirements for the purpose of s 3.1.9. There is nevertheless considerable overlap in the objectives for these two sections but significantly; the building separation objectives, whilst dealing with character, privacy, landscaping and stormwater management do not include a reference to views or outlook.

68 In dealing with the non-compliance with the building separation requirement in s 3.1.6 of the Town Centre DCP Mr Harrison notes that it is silent on circumstances where building separation may be less. He also notes that these requirements are the same as in the RFDC which provides a number of considerations where separation controls may be varied provided that a number of matters are satisfactorily achieved:

• response to site and context constraints;
• daylight access;
• urban form;
• visual privacy; and
• acoustic privacy.

69 In relation to site, context and urban form Mr Harrison addresses the urban design and streetscape matters in the context of: the design panel's report; the requirements of the Town Centre DCP particularly the building envelope requirements; and the nature of surrounding development, concluding that the proposal comprises an appropriate urban form and respond appropriately to the site and its context. For the reasons I have already given I agree with him.

70 Mr Harrison in addressing the remaining amenity matters in the context of the RFDC, has persuaded me that the building separation as proposed is satisfactory. These matters are dealt with under the appropriate headings.

Amenity impacts

71 It is plain that the amenity of a number of north facing dwellings within the eight-storey residential flat building at 108 - 110 Boyce Road will be affected by the proposal, particularly the dwellings on the east side of the proposed building. Such impacts are said to variously include: loss of views and outlook replaced with built form; loss of sunlight and daylight; and loss of ventilation and access to breezes. Whilst these dwellings will be variously affected I agree with Mr Harrison that, with some exceptions that I will refer to shortly, the majority of these will not be sufficiently affected, taking into account the extent and form of development permissible on this site on the basis of the provisions of the Town Centre DCP as to warrant the refusal of the application.

72 The acceptability of the impact of the proposal on the less affected dwellings is in my view supported by the fact that the proposed building, relevantly at the rear, is positioned about one metre within the building envelope generated by the planning controls. As a consequence of the rear alignment of the proposed building these dwellings have, to varying degrees and at various angles, an outlook between the proposed building and the existing building at 95 – 97 Mason Street. Plainly, their amenity will be affected but I am satisfied that they will continue to have a reasonable outlook between the buildings as well as reasonable ventilation, afternoon sunlight and access to daylight.

73 However those dwellings on the south-west corner of 108 - 110 Boyce Road, except perhaps the dwelling on the seventh floor, which are positioned directly opposite the proposed building will be significantly affected. These impacts involve the loss of views and outlook, some loss of privacy and various degrees of overshadowing. As for light, air and sunlight access I agree with Mr Harrison that the amenity of these dwellings will be substantially maintained and that there would be little difference if the side setback were to be increased to more than 3m.

Daylight

74 In relation to daylight access Mr Harrison notes that the dwellings in 108 - 110 Boyce Road will all have their daylight affected by the proposed building. However, the middle apartments facing west will continue to have significant access to daylight given that they are generally oriented to the open space between the proposed building and the building at 95 - 97 Mason Street. Whilst the dwellings on the southwest corner will have their access to daylight affected to a greater degree, because they are positioned on the corner of the building they have a dual aspect. He also notes that a number of apartments will be variously affected in terms of direct access to sunlight. He concludes that while there will be some reduction in daylight to six dwellings there would be little difference if the proposal was setback 3 m or 6 m from the side boundary and as a consequence daylight should not be determinative. For the reasons he has given I agree with Mr Harrison.

View loss

75 In relation to view loss associated with the dwellings on the south-west corner of 108 - 110 Boyce Road, Mr Harrison notes that the building separation control in s 3.1.6 of the Town Centre DCP makes no reference to views. Conversely, s 3.1.9 contains objectives to minimise the impact of development on views and outlook for neighbouring properties and the minimum setback of 3 m in s 3.2.4 is complied with. However s 4.3.2, which deals with visual privacy, makes reference to the maximisation of outlook and views without compromising the visual privacy of neighbouring buildings. Other than these matters, I was not referred to any provision of the Town Centre DCP that requires view protection or sharing.

76 Taking these matters into consideration, I accept that it is not the side setbacks of the proposed building, or even the building separation that affects the views from these dwellings in any significant way. Whilst the proposed building complies with the 3 m side setback requirement in s 3.2.4 but does not comply with the building separation distance in s 3.1.6, I accept that a building complying with these requirements would have similar consequences in relation to views from the affected dwellings.

77 However s 3.1.8 of the town centre DCP requires a setback of 3 m from the street alignment but this requirement is not for the purpose of protection of views or view sharing. That part of the proposed building positioned on the street alignment and in front of the 3 m setback requirement results in a loss of views to the west along Boyce Road within a very narrow compass. In these circumstances and because the building meets the streetscape objectives of the standard, the non-compliance does not in my opinion constitute a reason for rejecting the proposal on the basis of view loss. Despite this and notwithstanding the well-established principle that there is no general entitlement to views, the loss of views likely to be suffered by the dwellings on the south-west corner of 108 - 110 Boyce Road is a matter that can be considered on its merits.

78 The five possibly six affected dwellings have distant views to the west from their living rooms and balconies. They also have an outlook from these living rooms and the adjoining wrap-around balconies to the south across Boyce Road to the existing development opposite. As a result of the proposal the majority of the distant views will be lost except perhaps a narrow view from the front of the balconies to the west along Boyce Road.

79 In Tenacity Consulting v Warringah [2004] NSWLEC 140 Roseth SC in assessing view sharing explained that certain criteria can be taken into consideration. The first of these involves the assessment of views to be affected and from what part of the property they are obtained from, noting that any expectation that views across site boundaries should be retained is often unrealistic. In this case the townscape views are expansive but not iconic and are obtained across the common side boundary. The extent of the impact should also be considered, taking into account the rooms or balconies from which the view is obtained and the extent of view loss. Given that the view loss in these instances is qualitatively moderate and qualitatively severe the effect will be significant.

80 The question that next arises involves the reasonableness of the proposal that causes the impact. As discussed elsewhere the proposed building substantially complies with the building envelope requirements of the Town Centre DCP with some exceptions. As I have already decided these non-compliances, in relation to urban design and streetscape are satisfactory. Also as I later conclude, there are no other matters of critical concern and, as a consequence of the proposed building being largely anticipated by s 3.2.4 of the Town Centre DCP I am satisfied that it is, for the purposes of impacts on views a reasonable development.

81 The final criteria is whether a different design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. It is possible that the building could be moved to the north so as to align with the three metre front setback and the rear 6 m setback and that this would produce a marginal increase in views down Boyce Road from the front of the balconies of the dwellings on the south-west corner of 108 - 110 Boyce Road. However given the design panel's support for the removal of the Boyce Road frontage setback in the light of similar setbacks to neighbouring buildings I do not accept that such a change would be appropriate.

82 Consequently, and despite the impact being significant, I have been persuaded mainly by the evidence of Mr Harrison that loss of views is not a reason for the refusal of the application.

Outlook

83 The dwellings on the south west corner of 108 - 110 Boyce Road will also have their amenity reduced by having their westerly views replaced with views of a building and its balconies as close as 6 m away. This will result in a sense of enclosure that does not presently exist. According to Mr Harrison, whilst the outlook will be severely impacted for several of these dwellings there is very little difference with a fully complying development. Moreover the Town Centre DCP does not give weight to the outlook of the affected dwellings although all apartments will retain a reasonable degree of outlook albeit severely restricted compared to the current uninterrupted situation. He also explained that:

It is normal town planning practice to provide for an equitable amount of development between sites in the same zone and in achieving the objectives of the DCP, outlook must be compromised.

84 Whilst an increased setback of the proposed building could provide a greater separation between the two buildings I do not accept that this would make a significant difference in terms of outlook from the dwellings on the south-west corner of 108 - 110 Boyce Road. Hence for the reasons given by Mr Harrison the resulting changed outlook is not a reason for refusal.

Privacy

85 The visual privacy objectives in s 4.3.2 of the Town Centre DCP seek to ensure reasonable levels of internal and external visual privacy and that outlook and views from principal rooms and private open spaces be maximised without compromising visual privacy. The proposed building will result in the loss of visual and aural privacy for the dwellings in the existing building. To mitigate these impacts and to achieve appropriate levels of privacy in the proposed dwelling the habitable rooms on the east side of the proposed building are to have highlight windows and the decks/balconies are to have privacy screens.

86 In dealing with visual privacy Mr Harrison made the following points:

No primary windows or primary balconies directly face 108 - 110 Boyce Road except for one side of the corner balconies of the south-east apartments of the proposal and the windows to bedrooms. Screens are proposed to the east side of the corner balconies and it is recommended that they be extended to the full side face of the balconies in accordance with the draft development condition for the south-east apartments of the proposal. The windows of bedroom 1 face the lift core and have privacy screens. No further measures are needed for these windows.
The Juliet balconies on the sidewall are screened and are mainly opposite the lift core of 108 - 110 Boyce Road and provide visual interest to the east facade. I recommend that nothing further be done to these windows.
The sidewall windows of the proposal are mostly highlight windows to secondary internal spaces. No further privacy measures are necessary.

87 Mr Harrison also addressed acoustic privacy commenting that:

There are no primary windows or primary balconies directly facing primary windows/balconies of 108 - 110 Boyce Rd. except for one side of the corner balconies of the south-east apartments of the proposal…. While there are opportunities for increased noise compared to the existing situation, this is to be expected within a growing urban centre. It is immaterial that further setting back the proposal by another 3 m would change acoustic privacy.

88 Whilst a number of the dwellings in 108 - 110 Boyce Road will be able to look out onto the proposed building, the proposed dwellings will not have the same opportunities given the proposed privacy arrangements. As stressed by Mr Harrison it is of significance to note that any privacy impacts whether they be visual or aural will be principally caused by bedrooms rather than living rooms. In the circumstances I am satisfied that the matter of visual privacy is not a reason warranting refusal of the application.

Car parking and traffic

89 A number of resident objectors were concerned that the proposed development did not provide sufficient car parking and the consequences of this included increased traffic generation in Boyce Street and consequential potential for accidents. I understand these concerns however I accept that, as a whole the proposal is satisfactory, for the reasons given by Mr Pindar in his expert evidence.

90 Whilst I also acknowledge council's concerns regarding the theoretical car-parking shortfall I do not accept, on the basis of Mr Pindar's evidence, that this is a reason to refuse the application. In this context I note that the applicant has agreed to make a significant monetary contribution in accordance with council's s 94 Contributions Plan in relation to the shortfall.

Conclusion

91 In conclusion I have been persuaded that in relation to the urban design issues involving internal amenity and streetscape the proposed building is appropriately responsive to the applicable planning controls and warrants approval. There is no doubt that the proposed building will have impacts on the neighbouring building at 108 - 110 Boyce Road, however these impacts are largely to be anticipated as a result of these planning controls, especially the envelope controls that, as discussed in this judgement, are substantially complied with.

92 I have therefore decided that conditional development consent should be granted and that the applicable conditions will be largely in accordance with the conditions provided by the respondent subject to an additional condition in relation to the east facing balconies to units 8, 14 and 20.

Orders

93 The orders of the Court are therefore:

1. The appeal is upheld

2. Development Application No. 302/2006 for the demolition of 3 existing dwelling houses and the construction of a six-storey mixed commercial and multi-unit housing building comprising two retail units five commercial units and 26 dwellings above two levels of basement car park with parking for 36 vehicles and strata subdivision at Nos.102 - 106 Boyce Road, Maroubra Junction being Lot 1 DP 1067926 and Lots 1 and 2 DP 594896 is determined by the granting of development consent subject to the conditions in Annexure A hereto.

3. Exhibit A is retained.

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T A Bly
Commissioner of the Court
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