88 Gregory Pty Ltd v Randwick City Council

[2018] NSWLEC 1020

Land and Environment Court

New South Wales

Medium Neutral Citation:	88 Gregory Pty Ltd v Randwick City Council [2018] NSWLEC 1020
Hearing dates:	18 January 2018
Date of orders:	23 January 2018
Decision date:	23 January 2018
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: dual occupancy, impact on views
Legislation Cited:	Land and Environment Court Act 1979; Randwick Local Environmental Plan 2012
Cases Cited:	Tenacity Consulting v Warringah [2004] NSWLEC 140
Texts Cited:	14   Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	88 Gregory Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: Mr G Green Pikes & Verekers Lawyers (Applicant) Ms V McGrath (Respondent)
File Number(s):	249371/2017

Judgment

1. 88 Gregory Pty Ltd (applicant) sought consent from Randwick City Council for a dual occupancy development at 38 Gregory Street, South Coogee. Despite its officers recommending that consent be granted to the application, the council resolved to defer consideration of the application pending further mediation, earlier mediation having resulted in the applicant amending the plans of the proposal in an attempt to address the concerns of neighbours.

2. Rather than proceed to further mediation with the council the applicant filed an appeal against the council’s deemed refusal of development application DA/10/2017.

3. The appeal was lodged pursuant to the provisions of s34AA of the Land and Environment Court Act 1979 (LEC Act) and commenced with a site view which included a view of the site from two adjoining properties which are owned by objectors to the proposal.

4. Those objectors provided evidence to the Court during the view. The matters raised by them concerned view loss and sought further amendments to the plans that are before the Court to reduce the proposed building height in order that the views available from the ground floor level of their dwellings could be retained.

5. The matter was adjourned and returned to Court where the parties discussed options suggested by the residents during the site view. No agreement was reached during this conciliation process and the parties requested, pursuant to the provisions of s34(4)(b) of the LEC Act, that I determine the matter on the basis of what had occurred during the conciliation conference and in particular the evidence of the town planning experts.

The site and locality

6. The site is located on the western side of Gregory Street between MacLeay Street and Harrison Avenue and is a irregular shaped lot with frontage of 15.478m and area of 570.8m2.

7. Current development comprises a two storey brick dual dwelling with double garage at ground level. A concrete block wall is situated at the rear property boundary which retains the filled section of the adjoining property, No 15 Fowler Street.

8. According to the council’s Statement of Facts and Contentions (SoF&C) filed in the proceedings, the top of the wall is at or about 4m higher than the existing ground level at the rear of the site. The site falls approximately 6m from the rear to the street.

9. There is not any significant vegetation on the site and the application proposes demolition of all existing buildings on the site and removal of vegetation.

10. Land use within the vicinity of the site is predominantly residential and, apart from a residential flat building complex opposite the site (in an R3 Medium Density zone), primarily consists of dwelling houses and dual occupancy development. The area is transitioning towards higher density residential development as evidenced through the completion of a dual occupancy development immediately adjacent to the site which is of a similar scale and form to that proposed in this application.

The proposal

11. The development application seeks consent to demolish existing structures and construct a two storey attached dual occupancy over semi-basement garages which associated landscaping works.

12. In an attempt to reduce the extent of excavation of the site, the garaging has been provided at the lower level with split level living areas on the ground floor and bedroom areas on the upper floor. The building setbacks are staggered to reflect the angled street boundary and provide articulation to the structure and the floorplans are identical but mirror reversed. Two retaining walls are proposed within the rear yard areas to provide usable areas of open space adjacent to the main living areas of each dwelling.

The planning controls

13. The site is zoned R2 Low Density Residential under Randwick Local Environmental Plan 2012 (LEP). The maximum building height permitted on the site is 9.5m and the maximum floor space ratio permitted is 0.5:1. The development is compliant with these development standards.

14. Randwick Development Control Plan 2013 (DCP) applies to the site with the majority of controls relevant to determination of the application found in Part C1.

The contentions

15. The contentions in the case are that the development fails to comply with the external wall height control and objectives in clause 3.2 of Part C1of DCP; the garage width is excessive and inconsistent with the objectives and controls of Section 4.3 of Part C1 of the DCP; the extent of land modification proposed adjacent to the side property boundaries is excessive and does not comply with the provisions and objectives of Section 4.6 of Part C1 of the DCP and that the development will have an adverse impact on the streetscape, does not respond appropriately to site topography and is therefore not in the public interest.

16. The council did not include any contention in regard to view loss. This was a matter that has been the subject of objection from the owners of two adjoining properties to the rear of the site in Fowler Street.

The evidence

17. Expert planning evidence was heard from Ms A McCabe for the applicant and Mr R Gill for the council. They had prepared a joint report that addressed the contentions in the case and included comments in regard to the view impacts of the proposal. As a result of the joint reporting process the applicant prepared further amended plans which made the following changes to the proposal:

Basement Plan

• Access stairs relocated so that they are set back 900mm from the northern and southern boundaries.

• Three stepped planter boxes/garden beds on the northern and southern boundaries.

• Area of garden bed increased at street frontage.

• Garage doors reduced in width to 3.6m.

• Garage dimension changed by 100mm.

Ground Floor

• Entry stairs to entry terrace landing reduced from RL60.460 to RL59.985 (reduction of 760mm).

• Entry terrace/entry guest bedroom floor level RL reduced from RL61.695 to RL60.935 (reduction of 760mm).

• Three additional stairs added between entry hall and dining kitchen (near deck).

First floor

• Deck/master bedroom/study floor level reduced from RL64.885 to RL63.835 (reduction of 1m).

• Landing and additional stairs added near study.

Roof plan

• Front parapet reduced from RL67.835 to RL63.835 (reduction of 1m).

• Skylight over stairs reduced in length.

Floor to ceiling heights

• Garage reduced from 3.245m to 2.485m (reduction of 760mm).

• Guest bedroom/entry reduced from 2.89m to 2.65m (reduction of 240mm).

Elevations North and South

• Roof parapet reduced by 1m at front of building.

• Height of privacy screen shown at 1700mm – reduced from full height.

• Changes to parapet and floor levels to reflect the above.

• Planter boxes/garden beds shown on boundary.

Elevations East

• Front parapet at RL66.835.

• Floor levels reflecting above changes.

• Entry stairs set off boundary by 900mm.

• Garage door reduced to 3.6m width.

18. The amendments, according to the expert evidence satisfactorily address all of the council’s contentions in the case and I accept that evidence which was not pressed during the conciliation conference. The remaining issue for the Court to determine is those matters raised by objectors to the proposed development.

19. The town planning evidence and the Court have been assisted in assessment of the proposal through the erection of height poles. Those poles as observed on the view did not reflect the 1m reduction in building height at the front section of the building as outlined above. They did allow an assessment of the impact of the proposed building on views from the two adjoining properties to the rear.

20. It is common ground between the parties that the proposal, even with the further amendments proposed to reduce the height of the building at the front, will have significant impacts on the views of the ocean that are currently available from the ground floor living areas of those two dwelling, Nos 15 and 17 Fowler Crescent. The experts also agree that, with the reduced building height towards the front of the proposed dwellings, the views available from the first floor rooms and decks of those adjacent dwellings will be maintained.

21. The owner of No 15 Fowler Crescent had suggested that a further 500mm reduction in the height of the rear portion of the building would address the concerns of view loss.

22. This matter was discussed in detail both on site and during the conciliation process and it was agreed that such a reduction in height would be insufficient to retain the views from the ground floor of that property. Rather, a height reduction in the vicinity of between 700mm and 1m would be required.

23. Both experts agreed that, having regard to the LEP controls for building height at 9.5m and the proposed building height being in the vicinity of 6m, some 3.5m less than permitted, it would be unreasonable to require any further reduction in building height.

24. Mr Gill, for the council, says it would not be appropriate to drop the levels of the building any further and considers the design now before the Court to be responsive to the site and minimises excavation, consistent with the intent of the planning controls. He says any further excavation of the site would increase the already significant impact of the rear wall that retains the elevated yard and pool area of the adjacent property No 15 Fowler Crescent and would also compromise the functionality of the open space areas for the proposed dwellings and limit the solar access available to the yard areas and the rear rooms within those dwellings. He concludes the amended plans now before the Court are an appropriate outcome for the site and, whilst acknowledging there are adverse view impacts to adjacent properties from the ground floor level, says that those impacts are acceptable within the controls that apply to the site, in particular the building height development standard.

25. Ms McCabe says that, based on the levels of the site and the amended plans, the height of the building would have to be further reduced by at least 700mm to maintain some water views and possibly more to retain existing view lines. She says that a 500mm reduction would not maintain any views of the ocean or horizon.

26. Her evidence is that the changes made to the proposal are sufficient to reasonably address view loss and some view of the water would be retained from the ground floor of No 17 Fowler Crescent between buildings only. She notes that the proposal will not have any impact on the views available from the first floor levels of both adjacent dwellings and in particular the upper floor living areas within No 15.

27. Having regard to the building height development standard and the fact that the proposed building is some 3.5m below the maximum height allowed she says that the view impacts are reasonable. The siting of the dwellings are consistent with recent approvals and development around it and lower that some of the neighbouring buildings and of a similar scale to the recently completed dual occupancy adjacent to the site at No 40 Gregory Street. Ms McCabe concludes that the proposal would be consistent with the planning controls that apply to the site.

Conclusions and findings

28. Having regard to the evidence, in particular that of the planning experts and being assisted by the site view and height poles that had been placed on the site, I accept the views of those experts that, on the basis of the council’s planning controls, the amended plans now before the Court satisfactorily address the objectives of those controls.

29. In particular, I note that the proposed height is some 3.5m below the building height development standard and whilst that is a maximum, the objectives of the control are met. That is because I consider that the size and scale of development is compatible with the desired future character of the locality and does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy and overshadowing. Whilst I accept that there will be adverse impacts to views enjoyed from the ground floor level of the two adjacent dwelling houses to the west of the site, I consider, having regard to the planning controls that apply to the site, those impacts are acceptable.

30. I make that conclusion having regard to the planning principles outlined in Tenacity Consulting v Warringah [2004] NSWLEC 140. The view impacted on is a partial view of the ocean and therefore a valued view. There is no interface with land nor an iconic view. The view is obtained from a standing position within the lower floor living areas of the two adjoining dwellings and, from some parts of those dwelling, is also visible from a sitting position. I accept from some points within the dwelling the view impact would be rated as severe however, in accordance with the fourth principal, the reasonableness of the proposal must be considered.

31. As outlined above, the proposal is some 3.5m below the building height development standard. This equates to an additional storey that could, subject to compliance with other relevant planning controls, be erected on the site. As the proposal is a complying proposal, the question to be asked is 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.

32. It is the suggestion of the neighbour that a more skilful design would result from the reduction in building height by 500mm. I do not accept that this is the case and, based on my view of the site, the height poles as erected and the evidence of the experts, the rear portion of the building would have to be reduced in height by at least 700mm and perhaps up to 1m in order to retain the views that are currently enjoyed from the ground floor living areas of those dwellings. To achieve that further reduction in building height would require excessive excavation, contrary to the DCP controls and would result in poor amenity to the occupants of the dwelling due to the height of retaining walls that would be required in addition to the imposing wall that is currently erected to retain the yard area of No 15 Fowler Crescent. The impacts of that wall would be unacceptable if the site was excavated by a further 700 to 1000mm.

33. It is, because of the planning controls that apply to the site, important to also note that a second living area and sizeable deck of that living space is located on the upper floor of No 15. The views from those spaces and the upper floor bedrooms of No 17 will not be impacted as a result of the plans now before the Court.

34. Therefore, I conclude that the option as suggested by the objector is not a more skilful design but rather results in adverse amenity impacts and reduced development potential for the site, in particular to accord to the building height development standard. I do not consider in the circumstances of the case that it is appropriate to require the applicant to further reduce the building height to at least 4.2m and possibly 4.5m below that allowed under the development standard that applies to the site.

35. Therefore, I answer the fourth question in the negative and find that the view impact of the complying development would be considered acceptable and the view sharing reasonable.

36. In regard to the other contentions raised by the council in its SoF&C prior to the preparation of the amended plans that are now before the Court, I accept the evidence of the planning experts that these plans satisfactorily address those contentions.

37. The Orders of the Court are:

1. The appeal is upheld.

2. Development application No DA/10/2017 for demolition of existing structures, construction of a two storey attached dual occupancy over semi-basement garages and associated landscaping works at 38 Gregory Street, South Coogee, is approved subject to the conditions set out in Annexure A.

Sue Morris

Acting Commissioner of the Court

Annexure A (288 KB, pdf)

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Decision last updated: 23 January 2018