Biton v Randwick City Council

[2016] NSWLEC 1247

Land and Environment Court

New South Wales

Medium Neutral Citation:	Biton v Randwick City Council [2016] NSWLEC 1247
Hearing dates:	13 and 14 April 2016
Date of orders:	16 June 2016
Decision date:	16 June 2016
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	1. The appeal is dismissed. 2. DA 754/2015 for demolition of existing structures and construction of a new three level dwelling is refused. 3. The Applicant is to pay the Respondent’s reasonable costs under s.97B of the Environment Planning and Assessment Act 1979 for assessment of the amended plans, as agreed or assessed. 4. The exhibits, except Exhibits A and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION – height; foreshore scenic protection area; garage location; compliance with AS2890.1; acoustic impacts; precedent; public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012
Cases Cited:	Trueclad Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 252 Pam Grant v Ku-ring-gai Council [2005] NSWLEC1 Matouk v Ku-ring-gai Council [2004] NSWLEC 654
Category:	Principal judgment
Parties:	Debbie Biton (Applicant) Randwick City Council (Respondent)
Representation:	Mr A Boskovitz of Boskovitz & Associates Solicitors (Applicant) Mr A Seton of Marsdens Law Group (Respondent)
File Number(s):	2016/166856

Judgment

1. ACTING COMMISSIONER: This is an appeal under s 97 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application (No. DA 754/2015) by Randwick City Council (the Council) to construct a dwelling at 62 Raglan Street (corner Dacre Lane), Malabar (the site).

2. The key issues associated with the appeal relate to the height of the proposed dwelling at up to three levels within a Foreshore Scenic Protection Area as well as the location of the garage.

Background to application

3. Development Application (DA) 754/2015 was lodged with Randwick Council in October 2015.

4. The application sought consent for the demolition of an existing single storey dwelling and single garage on the site accessed from Dacre Lane and the construction of a part 1 and part 3 storey dwelling with a double garage accessed from Raglan Street, boundary fence, and associated site and landscape works.

5. The Council advised the Applicant in January 2016 that the DA plans should be amended due to non-compliances in relation to external wall height and the location of the garage and requested further information be provided in relation to potential acoustic impacts.

6. An appeal was subsequently lodged against the deemed refusal of the application.

7. The appeal was the subject of conciliation under s34AA of the Land and Environment Court Act 1979. Prior to the conciliation conference, amended plans were prepared by the Applicant in response to issues raised by the Council. Amendments included lowering the height to be of a similar height to that of the adjoining parapet at 58-60 Raglan Street and elevation of the stone feature with areas of solid wall replaced by glazing.

8. The parties agreed that resident issues raised on site at the commencement of the conciliation conference and matters heard and the views undertaken as part of the conference could be considered should the matter proceed to a hearing.

9. It was also agreed that the Applicant could rely on further amended plans tabled during the conference. This was subject to the Applicant agreeing to an order to pay the Council’s costs to assess the plans as agreed or assessed under section 97B of the Act. The Applicant agreed to this.

10. As agreement could not be reached, the conciliation was terminated and the matter proceeded immediately to hearing based on the plans amended for the conciliation conference.

The Site and Locality

11. The site is described as Lot 16 DP 5415 and is known as 62 Raglan Street, Malabar. It is a corner lot with a primary street frontage of 9.45m to Raglan Street and a secondary street frontage of 32.92m to Dacre Lane. The site is rectangular in shape with an area of 311m².

12. The site is adjoined to the south west at 58-60 Raglan Street by a two storey dwelling (with a commercial component occupying part of the ground level) built to the front and side property boundaries.

13. On the opposite site of Raglan Street to the south, at 59 Bay Parade, is a two storey mixed use development with a commercial component/café at the ground level and a residential component at the second level.

14. On the opposite side of Dacre Lane to the north east at 51-53 Dacre Lane, is a single storey dwelling with an attached garage built to the front and side property boundaries.

15. Development in the vicinity otherwise generally consists of a combination of single and two storey dwellings with dwellings up to three storeys in Victoria Street, which bisects Raglan Street approximately 40m south west of the site.

16. Cromwell Park and Long Bay Beach are located to the east of the site.

Relevant Statutory Controls

17. The site is subject to the provisions of the Randwick Local Environmental Plan 2012 (the LEP). Under the LEP, the site is zoned R2 Low Density Residential and the proposed use is permissible in that zone.

18. The site is also located within a Foreshore Scenic Protection Area (FSPA) under the LEP.

19. Development of the site is subject also to the provisions of the Randwick Comprehensive Development Control Plan 2013 (the DCP).

20. The relevant controls under the LEP and DCP are considered in dealing with the individual issues raised in the appeal.

Resident objections

21. The development application was notified and submissions were received from five (5) properties; three (3) in Victoria Street and three (3) in Raglan Street including from the adjoining residents at 58-60 Raglan Street.

22. The submissions detailed concerns with the original DA proposal relating to:

• Incompatibility with the streetscape character, particularly in relation to bulk and scale and number of storeys proposed;

• The proposed garage dominating the Raglan Street elevation and subsequently compromising streetscape character;

• Potential conflict between vehicles and pedestrians and loss of on street parking as a result of the garage position and driveway onto Raglan Street;

• Potential loss of views to bay and headland areas from primary outdoor and indoor living spaces;

• Impact on acoustic amenity due to proximity of proposed dwelling, ie. no side setback to south west property boundary;

• Likelihood that the proposal will perpetuate rising damp issues experienced by the neighbouring dwelling;

• Potential loss of sea breezes to primary living spaces and subsequent impact on amenity; and

• Loss of sunlight and overshadowing, specifically to the rear yard of adjoining development and to the outdoor eating area of the café on the opposite side of Raglan Street.

23. During the conciliation conference, the Court heard evidence from residents of 55 and 65 Victoria Street and 56 and 58-60 Raglan Street. Visits to these properties were undertaken and the site viewed from a number of locations.

24. The adjoining resident to the south west, at 58-60 Raglan Street, raised concerns: that there may be a natural drainage line under both properties and the development could cause damp interiors; with the impact of a full height adjoining wall at a nil setback in terms of privacy and overshadowing, particularly of the rear yard area; and with the total loss of view. There was also concern with the possible noise impacts of the proposed lift adjacent to her north eastern wall.

25. Other residents in the vicinity raised concerns with the FSR and height in terms of bulk and scale and the visual and amenity impacts particularly given the development’s proximity to the water and its FSPA location. Concern was also expressed in terms of view loss, loss of breezes and sunlight, and the precedent that allowing a 3 storey development would have for the area, and for the FSPA in particular.

Evidence

26. The Court heard expert evidence from:

For the Applicant

Mr Betros, town planner

For the Council

Mr Gilll, town planner

Mr Flanagan, engineer

Issues in Contention

27. The contended grounds for refusal of the DA given by the Council and dealt with in the appeal relate to:

1. Building height

2. Garage location and configuration

3. Foreshore Scenic Protection Area impacts

4. Precedent

5. Public Interest

6. Acoustic Impact.

Height

28. The Council contended that the development should be refused because the height of the proposed external wall of the dwelling was excessive and was inconsistent with the objectives of and controls in Clause 3.2 of Part C1 of the DCP. This was notwithstanding that the Council agreed that the overall height of the dwelling complied with the LEP permissible maximum height of 9.5m.

29. The objectives for the DCP height control are as follows:

• To ensure development height establishes a suitable scale to the street and contributes to its character.

• To ensure development height does not cause unreasonable impacts upon the neighbouring dwellings in terms of overshadowing, view loss, privacy and visual amenity.

• To ensure the form and massing of development respect the topography of the site.

30. Control (i) of clause 3.2 states that the maximum external wall height, being the vertical distance measured from the ground level (existing) to the underside of the eaves, is 7m, or 8m for steeply sloping sites. The experts agreed this was not a steeply sloping site and therefore 7m was the relevant control.

31. Variations to the external wall height are permitted under Control (iii) of clause 3.2 of Part C1 of the DCP as follows:

(iii) An alternative design that variates from the above external wall height controls may be acceptable having regard to the following consideration:

- Site topography

- Site orientation

- Allotment configuration

- Allotment dimensions

- Potential impacts on the visual amenity, solar access, privacy and views of the adjoining properties.

32. The external wall height for the proposed development in the DA plans was 9.2m thus exceeding the maximum DCP external wall height by 2.2m.

33. The amended plans reduced the external wall height to 9.01m resulting in a reduced non-compliance of 2.01m. However, the Council still considered this height to be excessive as it would result in a building in the FSPA which would visually dominate, rather than contribute to and compliment, the character of the street. The Council contended that the amendment made no substantive difference to the development in terms of reducing the extent of non-compliance or establishing a suitable scale to the street.

34. The parties agreed that the building at 58-60 Raglan Street has a parapet wall on the street elevation which is bookended by ornamental vertical elements that project above the top of the parapet. Also that the survey indicates that the top of the ornamental elements is at RL22.87 and the proposed development has an external wall height of RL23.05, measured to the underside of the eaves. It is therefore higher than both the parapet wall and the vertical ornamental elements projecting above the wall.

35. No. 58-60 Raglan Street has a skillion roof form that is concealed behind the parapet wall when viewed from directly in front of the building however is visible when viewed from elsewhere in the vicinity. The site survey indicates that the top of the roof at its highest point (adjacent to the parapet wall) is at RL22.01. This tapers down to RL20.73 at the rear of the upper level. The upper level of the proposed development has a consistent external wall height which is at RL23.05. As such the proposed development would be higher than the adjoining development.

36. Both planning experts agreed that there have been instances of external wall height variations in the area but that each site has its own circumstances and relationship with the streetscape and neighouring properties.

The Applicant’s Argument

37. Mr Betros advised that the design met the needs of the Applicant who had elderly parents and who wanted them to live with her in a dwelling which had a high level of amenity including a northerly aspect, lift access and accommodation for a live in carer. He and the Applicant acknowledged however, that the consent would run with the property and the Court was advised that the Applicant did not rely on this reason for the design as the basis for approval.

38. Instead Mr Betros argued that the wall height was supportable in the circumstances as the design responded to and aligned with the street frontage and side wall of the adjoining built form to the south west at 58-60 Raglan Street. 58-60 Raglan Street is unique in the streetscape as it is built to the street frontage with a front parapet approximately 9m in height and a blank wall along its side (north eastern) boundary which adjoins the subject site.

39. Mr Betros explained that the upper level of the dwelling had been designed to be recessive by providing differences in materials and corner balconies at both upper levels to provide a desirable transition from the corner to the adjoining neighbour. In his view, the objectives of the control were satisfied by providing a suitable scale to the street which positively contributes to the character of Raglan Street.

40. Mr Betros also pointed out that a DCP compliant form of building could include a 2 storey element extending further into the property which would have far greater amenity and visual bulk impacts for the adjoining neighbour as well as resulting in an unusually long building. He noted that this neighbour has an elevated first floor terrace and openings at the rear which would be detrimentally affected by a development compliant with the wall height which extended further into the site. Such an alternative design would remove the visual aspect the neighbours had towards the coast and would compromise solar access to their rear elevated terrace.

41. Mr Betros relied only on the last consideration in Control (iii) of the DCP for the height non-compliance sought; namely the potential impacts on the adjoining properties arising from a development which complied with the control but only by providing the proposed floorspace at the rear of the site which he said would have greater impacts particularly in terms of solar access, privacy and views. Instead the proposed design minimised view loss and overshadowing to neighbours whilst still complying with the LEP in terms of height and FSR. Specifically, by limiting the second and third storeys to the front of the site, extra bulk and scale was avoided at the rear, maximising instead the area of open space and deep soil landscaping.

42. Mr Betros noted that the immediate locality included a mix of 1, 2 and 3 storey dwellings. Immediately opposite the site is a cafe at the ground floor of a 2 storey building with a high parapet whilst further to the east are 3 storey attached dwellings. There is also an approved dwelling to the south west across Raglan Street within 30m of the site which has a broad wall height variation and numerous 3 level dwellings along Victoria Street (within 70m of the site to the south) and throughout Malabar in general.

43. In Mr Betros’ view, therefore there are a range of factors which demonstrate that the wall height variation is reasonable in the circumstances. In this regard, he was of the opinion that the proposed wall height, despite being above the 7m height control, satisfied the objectives of the DCP provision, noting that Clause 3A(b) under Section 79C of the Act allows for a flexible alternative which satisfies the intent/objectives of the control. He re-iterated that the only breach relates to a DCP provision.

44. In summary the Applicant argued that the design cue for the development had come from the adjoining over height building, that the wall lengths of the non-compliant components were not excessive, and that the dwelling design compared more favourably than a compliant but longer 2 storey dwelling in terms of impacts to neighbours and in responding to the corner location.

45. Nevertheless, the Applicant agreed to further lower the height by 300-400 mm so that it did not exceed the height of the adjoining parapet but contended that 65m² of floorspace would need to be reallocated from upper levels to the rear of the dwelling to comply with the required DCP external wall height of 7m. This would see the loss of the entire third storey. It was argued that this would result in a significant loss of landscaped open space, reduce northerly aspect for the proposed dwelling and result in at least a partial second storey in the rear yard which would have adverse impacts visually and on the neighbour.

The Council’s Argument

46. The Council whilst sympathetic with the Applicant’s intent for her elderly parents argued that this can't be given any weight in a planning decision and noted that the Applicant accepted this.

47. The Council also understood the rationale for the design and Mr Gill agreed it made sense to concentrate the bulk at the front of the site which was why the Council had not raised an issue with non-compliances in terms of the front setback and nil side setback to the south west. However the external wall height remained unacceptable and the Council was not convinced that the proposed design was not the only or best option to achieve the FSR sought for the site

48. The Council acknowledged that there were examples of 3 storey dwellings in Malabar (including in nearby Victoria Street) however considered that these buildings are distinctly different to the proposed development in terms of their configuration, position on their respective sites and presence in the streetscape. Mr Gill argued that these buildings are typically set back from the street and are therefore less imposing than a development that is built to the property boundary of the primary street frontage. In his view, it was therefore inappropriate to make a direct comparison between the external wall height of the proposed development and non­compliant external wall heights that may have been approved elsewhere in Malabar.

49. He contended that the immediate locality is characterised by single and 2 storey dwellings with only the occasional 3 storey dwelling with garages at ground level. He argued that most dwellings in the locality have front and side setbacks with landscaped front yards and noted that the mixed use development on the corner of Raglan Street and Bay Parade was only 2 storeys.

50. In terms of the Applicant’s claim that the development takes design cues from the neighbouring building at 58-60 Raglan Street, Mr Gill considered that development to be an anomalous element in the streetscape in its scale, built form and location and not characteristic or typical of the streetscape. He did accept that it was appropriate for the development of 62 Raglan Street to respond to or reflect, to some degree, the development at 58-60 Raglan Street. However, in his view, the proposed development was of a bulk and scale that dominates, rather than compliments, the building at 58-60 Raglan Street as a result of the non-compliant external wall height.

51. In Mr Gill’s opinion, the proposed development would have a significantly larger scale (in terms of its presentation to the street) than the adjacent building at 58-60 Raglan Street.

52. The Council accepted that the wall height breach did not raise any amenity impacts in terms of unreasonable view loss, privacy or overshadowing but Mr Gill considered that the variation to the external wall height was inappropriate in the circumstances as the resulting development would be of a scale that was unsuitable in the context of the street and which would visually dominate rather than contribute to its character.

53. The Council indicated they would consider an external wall compatible with the roof height of the adjoining 2 storey building but not with the parapet wall height. Although the Applicant argued that the roof height behind the parapet was irrelevant when viewed from the street, this was disputed by the Council who considered it could be viewed from various locations.

46. The Council noted that the proposed private open space in the rear yard was well in excess of what Council required and was in addition to upper level terraces to the dwelling.

47. Mr Gill believed that the site was constrained and that his advice to the Applicant throughout was that the dwelling size sought may not be achieved and the dwelling may need to be reduced in size. The Council argued that the maximum FSR permissible was not an entitlement and LEP and DCP objectives still needed to be met.

Garage Location

56. Initially the proposed double garage was to be situated on the primary street frontage (Raglan Street) rather than the secondary street frontage (Dacre Lane).

57. The Council argued that this location, along with the configuration of the proposed garage, was inconsistent with the objectives of and controls in Section 6 of Part C1 of the DCP, in particular,

1. the first objective of Section 6 "to ensure car parking and access facilities do not visually dominate the properly frontage or streetscape".

2. The fourth objective of Section 6 "to ensure the location and design of parking and access facilities do not pose undue safety risks on building occupants and pedestrians".

3. Control (ii) of Clause 6.1 of Part C1 which states that parking facilities are to be located off rear lanes, or secondary street frontages in the case of corner allotments, where available.

4. Control (iv) of clause 6.1 of Part C1 which states that a single width garage facing the primary street is to be provided where the site frontage has a width of less than 12m (i.e. double garages are not permitted on sites with a frontage width of less than 12m). The subject site has a frontage width of 9.45m with the proposed development including a garage door width of 5m.

58. Furthermore, the location and width of the garage presenting to Raglan Street was considered by the Council to visually dominate the property frontage and the streetscape, further exacerbated by the limited setback of the proposed development along the Raglan Street frontage.

59. At the conciliation conference, the Applicant provided amended plans showing the garage relocated to Dacre Lane in response to the Council’s concerns relating to DCP compliance.

60. However, the Council then raised concerns that vehicles accessing or egressing the garage would have reduced sightlines (due to the proximity of the garage to the Raglan Street intersection and its close proximity to the property boundary) and would likely pose a potential safety risk to pedestrians using both the lane and Raglan Street as well as reduce the available parking in the lane.

61. Mr Betros argued that the amended garage location improved the streetscape presentation of the development to the primary street (Raglan Street) and was in the general location of the existing garage on site (albeit this is a single garage). He also noted that there were numerous garages along Dacre Lane.

62. The Applicant advised that the rationale for locating the garage at the front of the site was that this would maximise the amount of private open space and solar access in the rear yard whereas a double garage at the rear would compromises these benefits. Mr Betros argued that the location of the garage at the front also provides a buffer to the pedestrian and vehicular traffic impacts (which includes bus movements) and a high level of pedestrian activity associated with the cafe opposite which operates from early morning into the evening.

63. Mr Gill agreed that the garage presenting to the secondary street (Dacre Lane) is a requirement of the DCP and that positioning the garage off the lane instead of Raglan Street would improve the presentation of the building to Raglan Street. However, he was of the view that it would be preferable to locate the garage at the rear of the property and replace it with a habitable space as this would improve the relationship between the building and the public realm even if this resulted in some areas of non-compliance in terms of setbacks and extent of deep soil landscaping, stating that the Council would likely accept this, if it reduced the dwelling’s bulk and scale particularly at the laneway frontage.

64. Council’s engineer, Mr Flanagan, gave evidence that he was concerned with the revised garage location in terms of proximity to the intersection, sight lines, and turning paths. Whilst he acknowledged that there was an existing single garage on the property close to the corner of Raglan Street and Dacre Lane in the general location of the proposed double garage, he noted this garage appeared not to have been used for some time.

65. Irrespective, Mr Flanagan considered that the driveway to access the garage was located too close to the Raglan Street intersection and this location would not comply with the Australian Standard (AS2890.1). He was concerned that cars exiting the garage would have to reverse close to pram ramps in Raglan Street and considered the short distance of the garage from the intersection would be dangerous. Furthermore it would require parking to be removed in Dacre Lane with the loss of at least one if not more on street parking bays. He agreed with Mr Gill that a better outcome would be if the garage was moved to the rear of the site further from the intersection and where this was no parking in the lane opposite.

66. The Applicant conceded that it may be desirable to move the garage further from the intersection but claimed the proposed location met the requirements of the DCP, that the lane had adequate width to manoeuvre to and from the garage and that it was a low speed environment. Furthermore, relocating the garage would still result in loss of parking in the laneway and it was an improvement on the existing garage location. Relocating to the rear would result in a loss of deep soil landscaping and increased site cover resulting in potentially non complying private open space. Finally, the Applicant argued that 2 additional bays would be provided on site which would result in a neutral parking position.

67. The Applicant did not provide any expert engineering evidence as to the compliance of the garage with the Australian Standard. A letter was sought to be tendered from an expert in this area but I accepted the Council objection to this document on the basis that the author was not available for cross-examination. The Applicant indicated acceptance of a condition that the garage location needed to comply with AS2890.1 however the Council was concerned that, if it didn't, the relocation of the garage could require a complete redesign of the dwelling

68. In submissions the Applicant argued that both the bulk and the garage can't go to the rear of the site and the following cases were cited as Court decisions which accepted a condition requiring compliance with AS2890.1 rather than demonstrated compliance as a pre-condition to approval: Trueclad Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 252, Pam Grant v Ku-ring-gai Council [2005] NSWLEC1 and Matouk v Ku-ring-gai Council [2004] NSWLEC 654.

Foreshore Scenic Protection Area (FSPA)

69. The Council considered that the proposal should be refused as it was contrary to Clause 6.7 "Foreshore scenic protection area" of the LEP and the objectives of and controls in Section 8.10 in Part B of the DCP.

70. Clause 6.7 of the LEP 2012 provides as follows:

"6.7 Foreshore scenic protection area

1. The objectives of this clause are as follows:

1. to recognise, protect and enhance the natural, visual and environmental qualities of the scenic areas of the coastline,

2. to protect and improve visually prominent areas adjoining the coastal foreshore,

3. to protect significant public views to and from the coast,

4. to ensure development in these areas is appropriate for the location and does not detract from the scenic qualities of the coast.

2. This clause applies to land identified as "Foreshore scenic protection area" on the Foreshore Scenic Protection Area Map.

3. Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development:

1. is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas, and

2. contributes to the scenic quality of the coastal foreshore."

71. An objective of the FSPA specified in the DCP is "to encourage high quality designs for dwellings that are sensitive and sympathetic to the natural landform, colours and landscape character of the foreshore areas".

72. Control (i) of Section B10 of the DCP states that "the design of buildings must consider their visual presentation to the surrounding public domain, including streets, lanes, parks, reserves, foreshore walkways and coastal areas. All elevations visible to the public domain must be articulated”.

73. The experts agreed that there is no specific issue with the proposed materials and finishes of the new dwelling, but disagreed as to whether the bulk and scale would be detrimental to the FSPA.

74. In the Council’s view, the proposed development was of an excessive height which contributed to its bulk and scale when viewed from the street and nearby public places and would have a visually prominent built form inappropriate in the context of the FSPA.

75. Mr Betros re-iterated his earlier comments as to the design rationale in terms of wall height, streetscape and built form and his opinion that the proposed dwelling will be compatible with the adjoining built form and would present an attractive design providing a positive visual outcome when viewed from coastal areas softening the large blank wall of 58-60 Raglan Street that is currently in view from these locations.

76. The Council considered that the height should slope and reduce towards the rear and, as a minimum, not exceed the wall height of 58-60 Raglan Street. The Applicant argued this was not necessary as it could not be seen and the proposed height would not have any adverse amenity or streetscape impacts from not sloping. In contrast, the Council argued there would be less bulk and that a wall height of 9m rather than 7m would be discernible

77. The Council argued that any non-compliances about 7m in the R2 zone were generally for roof elements and there were no new dwellings in the FSPA as high as 9m.The Council accepted there may be some justification of a 7.8m height similar to the height of 58-60 Raglan Street at the street frontage, but that this height should not be extended to the laneway frontage which is visible from various vantage points in the FSPA. The Council would not be opposed to a 2 storey development and some floorspace in the roof form but not a 3 storey component along the laneway which would be clearly visible from roads, the footpath and local parks.

78. Mr Betros agreed that no buildings in the FSPA had an external wall height of 9m but argued that the Council was not considering the adverse impacts that a complying development would have relative to the proposed application. However, the Council argued such a scheme was not presented to verify what these impacts would be.

Precedent

79. The Council argued that the development application should be refused because approval of the proposed development would set a precedent for similar undesirable development whereas the Applicant argued that each proposal should be considered on its merits as each site has its own context and characteristics.

80. Mr Betros noted that the site is located next to a particular building which is atypical in regard to its street wall height with nil front and north eastern side setbacks. A traditional dwelling house response would include a 900-1200mm setback from the south western neighbour and would create a poor streetscape outcome that would also leave a south-facing 'dead' space between the respective properties. In contrast, he argued, the proposal appropriately adopts its front and southern side setback treatment to the adjoining development and achieves a desirable and suitable relationship which is appropriate for this site. Given the unique circumstances of this case, Mr Betros considered that the subject circumstances couldn’t be relied upon as a precedent for wall height variations.

81. He also noted that Council's DCP acknowledges that there may be appropriate circumstances to vary from the wall height control, stating that the proposal satisfies these criteria by achieving an appropriate streetscape outcome whilst also reducing potential view and shadow impacts that would otherwise be associated with a complying form of development.

82. Conversely, Mr Gill was of the view that approval of the proposed development would set a precedent for similar undesirable development in the locality as it was inconsistent with numeric external wall height controls and with controls relating to the configuration and location of garages. In his view, these controls work to define a built form that is representative of the desired future character of a locality. Accordingly, he argued that the proposed development is inconsistent with the desired future character of the locality and, if approved, future development in the FSPA may rely on the precedent set by the approval to seek similar variations to controls which had the potential to fundamentally change the scale and form of development in the FSPA and create a character contrary to that implied by the DCP controls.

Public Interest

83. The Council argued that the development was not in the public interest having regard to the contentions raised and submissions received in relation to the development.

84. Mr Gill noted that the development contravenes development controls relating to external wall height and garage location and configuration and he considered it to be also inconsistent with objectives and controls relating to the FSPA. In his view, Council's Environmental Planning Instruments and Development Control Plans reflect the expectations of the community in relation to planning and development in the locality. Contravention of these controls is therefore in conflict with community expectation and contrary to the public interest.

85. The Council noted that their position was reinforced by comments made in submissions to the DA which refer to, among other things, concern that the bulk and scale attributed to the number of storeys and the position of the garage was incompatible with the streetscape character.

Acoustic Concerns

86. The Council contended that insufficient information had been provided to demonstrate that the development wiould not have an adverse impact on neighbouring properties in terms of acoustic amenity. In particular, a potential noise-generating facility, namely a lift, was proposed in close proximity to the wall of 58-60 Raglan Street.

87. The Applicant provided the Court with an acoustic report from Acoustic Logic to address this contention.

88. It was agreed that a condition of consent requiring assessment of the acoustic engineering report provided to the Court would address the Council’s concerns regarding acoustic amenity.

Remaining issues raised by residents

89. The parties did not accept that there would be an issue with dampness or drainage associated with the development which, in any event, could be conditioned to require appropriate drainage treatment.

90. In terms of view loss, this was also not an issue contended by the Council noting that a complying development would also likely impact existing views. The development complied in terms of solar access, breeze access, privacy and overshadowing and it was agreed that, in terms of these issues, a complying development could also potentially have impacts.

Findings

91. The location of the site provides both benefits and disbenefits to the Applicant. The site benefits from an adjacent tall building which exceeds the DCP external wall height on one boundary but it is also situated on the corner of a lane in a Foreshore Scenic Protection Area with lower density single storey dwellings on the opposite side of the lane. This provides both opportunities and constraints in designing a new dwelling and garage on the site.

92. I appreciate that the Applicant seeks a design which accommodates herself, her elderly parents and their carer with a high level of amenity. Whilst I sympathise with her position, her parents’ plight is not the basis of making planning designs which she and all parties acknowledged.

93. I also accept that the development complies with the LEP controls for height and FSR. However it also needs to meet the LEP and DCP objectives for the area and needs to have regard to the DCP controls particularly given the FSPA location.

94. I note the Applicant’s offer to lower the height at the Raglan Street frontage to match the maximum height of the adjoining building at 58-60 Raglan Street and also that the design has sought to match materials of the neighbour and have recessive elements to the corner.

95. On balance however, I am not convinced that there are sufficient grounds to vary the DCP external wall height control for the entire dwelling resulting in an external wall height of up to 9m fronting the intersection and Dacre Lane.

96. Whilst I agree with the Applicant that there are sound planning grounds to vary the control along the south western boundary to reflect the wall height of the adjoining building at 58-60 Raglan Street and concentrate the bulk in this location, I accept the Council’s position that the height should be reduced at the rear elevation and adjoining the Dacre Lane frontage.

97. I do not accept the Applicant’s argument that the site should necessarily be able to be developed to the full FSR noting that the Council has accepted reduced front and south western (side) setbacks and would consider an external wall height of up to 7.8m at the Raglan Street frontage adjoining 58-60 Raglan Street. I understand and appreciate why the design is as it is but it is still too high in its presentation to the north east, to the corner and towards foreshore areas. In this regard, it was agreed that the dwelling would be visible from at least both the cafe opposite and areas of the foreshore reserve and a lower and more sensitive presentation to the intersection and the lane is warranted accordingly.

98. I agree with the Council that a dwelling on this site should be of a scale which contributes to the Scenic Foreshore Protection Area not impose a new dwelling of the bulk and height proposed and that a DCP wall height exceedance in the order of 2m in the Foreshore Scenic Protection Area is not what would be expected or desired

99. I find that the height of the building next door does not provide sufficient justification to allow a similar height for the full extent of the dwelling nor, in my opinion, does the design meet the LEP objective for development in the FSPA which should be located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas.

100. In this regard, the parties agreed that there are no other new dwellings with wall heights to 9m in the Foreshore Scenic Protection Area and I believe it could create a precedent for similar height requests, notwithstanding I do accept the somewhat unique circumstances of the dwelling next door.

101. I don't accept the Applicant’s contention that the Council is simply requiring strict compliance with one numeric control. The Council has conceded some height variation is justified adjoining the existing dwelling to the south west and has not opposed reduced setback at the front and to one side boundary.

102. The provision of clause 3.2 relied on by Applicant to vary the height control provides the justification for exceeding the height adjoining the south eastern boundary but not for the Dacre Lane frontage.

103. As a complying application has not been provided for comparative purposes, I can’t accept the Applicant’s claim that there will be unacceptable adverse impacts on the neighbours but do accept that more development in the rear of the yard could have some adverse impacts. There will still however, be a requirement in any redesign to meet DCP amenity controls including overshadowing and privacy compliance for neighbours.

91. In summary and having regard to all of the factors I do not believe the variation to the external wall height under the DCP is warranted. A floorspace redistribution including relocation of the garage (discussed below) appears feasible particularly given the Council has offered to consider wall height exceedance to match the adjoining building and other non-compliances with setbacks and landscaping to achieved reduced bulk and scale and a relocated garage.

92. In terms of the garage, on the evidence available to the Court, I am not convinced that it is in an appropriate or safe location or that the location does or could comply with the required Australian Standard (AS2890.1) given its close proximity to the intersection with Raglan Street.

93. I am not satisfied that there was sufficient expert evidence in this regard and it was opposed by the Council’s engineer for various reasons including safety grounds. Therefore, simply applying a condition of approval requiring compliance with AS2890.1 would not be appropriate given the ramifications for the design of the development if compliance could not be achieved.

94. I accept the Council’s argument that the Court is obliged to deal with the evidence and the only engineering evidence stated that the garage did not comply with the Australian Standard and would create a potentially and unnecessarily unsafe environment. Furthermore, private parking on site does not replace the loss of public parking in the laneway and, notwithstanding the existing garage is close to the intersection, a new development should comply with contemporary safety standards and adverse impacts on the streetscape should be capable of being avoided.

95. In this regard, I agree with the Council that there is no necessity to potentially impact on the safety of adjoining streets, or indeed of future occupants of the dwelling, when an alternative location for the garage is readily available off the lane further to the rear of the site.

96. The cases relied upon by the Applicant deal with approvals where conditions are imposed requiring compliance with AS2890.1. I do not know the circumstances in which the conditions were sought or imposed. However, the safety of offstreet parking facilities was not raised by the Councils in any of the cases cited. In fact in Matouk at para 19 the engineers recommend approval of the application subject to engineering conditions. In Pam Grant at para 6 the issue of compliance with AS2890.1 was raised, but only in terms of insufficient information having been provided on grades, headroom and the entry dimensions. These issues were resolved by the engineering experts through amended plans (refer para 53) so that the issue was no longer pressed subject to conditions requiring AS2890.1 compliance.

97. In this regard, I am aware that a standard condition may often be imposed, as indicated in the three cases cited, requiring the design of parking facilities to comply with AS2890.1 but this does not necessarily infer such conditions are imposed to rectify a proposed parking arrangement considered unacceptable. Rather they are to give guidance as to detailed design requirements. The cases cited would seem to confirm that finding.

98. Given I do not find the overall design of the dwelling acceptable, any redesign in my view would benefit from relocation of the garage further to the rear of the site and away from the Raglan Street intersection irrespective of whether or not the current location complied with the Australian Standard. I say this noting that the Council has indicated a preparedness to consider non-compliances with setbacks and the percentage of deep soil landscaping and private open space if necessary to relocate the garage.

99. In summary, I have formed the view that a garage situated further from the intersection would be desirable for future occupants of a dwelling on the site, for users of the lane, and for pedestrians in Raglan Street.

100. Finally, in terms of the other issues raised by residents, namely drainage, loss of views and breezes, and overshadowing, I accept there will be some impact in terms of these issues in any redevelopment of the site, even fully compliant. I therefore do not consider them to be grounds for refusal of this application.

Orders

114. The orders of the Court are:

1. The appeal is dismissed.

2. DA 754/2015 for demolition of existing structure and construction of a new three level dwelling is refused.

3. The Applicant is to pay the Respondent’s reasonable costs under s.97B of the Environment Planning and Assessment Act 1979 for assessment of the amended plans, as agreed or assessed.

4. The exhibits, except Exhibits A and 2, are returned.

__________________________

Jenny Smithson

Acting Commissioner of the Court

Decision last updated: 16 June 2016