Carrano v Randwick City Council

[2017] NSWLEC 1410

Land and Environment Court

New South Wales

Medium Neutral Citation:	Carrano v Randwick City Council [2017] NSWLEC 1410
Hearing dates:	1-2 August 2017
Date of orders:	08 August 2017
Decision date:	08 August 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 565/2016 for the demolition of existing structures and construction of a new dwelling, at 42 Wolseley Road, South Coogee, is refused. 3. The exhibits, other than exhibit 3, are returned.
Catchwords:	DEVELOPMENT APPLICATION: construction of a new dwelling; non-compliance with site coverage, rear setback and excavation controls; impacts on views and privacy.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mr Antonio Carrano (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr P. Clay barrister (Applicant) Mr A. Seton solicitor (Respondent)   Solicitors: Joseph P Saad & Co, Solicitors (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2017/87856

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 565/2016 for the demolition of existing structures and the construction of a new dwelling (the proposal) at 42 Wolseley Road, South Coogee (the site) by Randwick City Council (the Council).

2. The appeal was subject to mandatory conciliation on 1 August 2017, in accordance with the provisions of s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated pursuant to s 34AA(2)(b)(i) of the LEC Act and a hearing held forthwith. The applicant amended the proposal to adjust the floor levels, reduce the overall height of both pavilions and delete the rooftop pool.

Issues

3. The Council’s remaining contentions following the amendments made to the proposal can be summarised as:

• The non-complying rear setback does not respect or respond to the existing character of the locality;

• The site coverage of the proposal is excessive and the proposal does not provide adequate deep soil permeable surfaces;

• The proposal will have unacceptable amenity impacts on neighbouring dwellings, including impacts on visual privacy, views and overshadowing;

• The extent and location of excavation is excessive and will result in adverse impacts on neighbouring properties; and

• The front setback of the upper floor of the front pavilion should match the 8m front setback of the uppermost levels of 44 and 46 Wolseley Road.

The site and its context

4. The site is on the western, high side of Wolseley Road and has an area of 408sqm and a frontage of 10.06m. The site slopes steeply from the rear towards the street. The highest level at the south-western corner of the site is RL 47.47 and the lowest level at the north-eastern corner of the site is RL 30.96.

5. Wolseley Road runs north to south, adjacent to the ocean cliff face. The site and its neighbours enjoy panoramic ocean views to the east and views of Coogee and the coast across Coogee Bay to the north.

6. 44 Wolseley Road is to the south of the site and 40 Wolseley Road is to the north of the site. The northern views from 44 and 46 Wolseley Road are across the front of the site. 11 Garnet Street is to the west and rear of the site. The pool deck of 11 Garnet Street is raised above ground and there is a screen on the rear boundary of the site approximately 5m high concealing the underside of the pool and deck of the neighbouring property to the rear.

The proposal

7. The proposal is to demolish all existing structures on the site and construct a multi-level dwelling which consists of two pavilions, wrapped around a courtyard separating the pavilions. The proposal includes a double garage and storage area at the front boundary and at the approximate level of the footpath, RL 31.35.

8. The front pavilion is a single storey building with a height of RL 44.9 and an entry foyer on the level below. The eastern end of the pavilion cantilevers out over the entry foyer supported by pilotis on the southern side of the entry foyer. The ground floor of the front pavilion is at RL 40.2 with a floor to ceiling height of 3.9m and is setback 7.05m from the front boundary. The side setbacks of the front pavilion are 900mm. The courtyard between the pavilions, to the rear of the front pavilion, is at the same level as the ground level of the front pavilion.

9. The rear pavilion is three storeys high and is located directly adjacent to the rear boundary, with a height of RL 50.45. It is 8.725m deep, excluding balconies. The ground level of the rear pavilion is RL 41.4 and is an open space identified as a loggia, with a laundry and circulation at the rear of the pavilion. The first floor of the rear pavilion is at RL 44.1 and contains two bedrooms and a bathroom. The upper floor of the rear pavilion is at RL 47.2 and contains a master suite. The two pavilions are connected by an enclosed link on the northern side of the site. The rear pavilion has side setbacks of 900mm and 1500mm on the upper level. There are balconies on the centre of the first floor and across the upper level of the rear pavilion and the parties agreed to screens on the decks to mitigate overlooking of neighbouring properties from the rear pavilion.

Planning framework

10. The site is zoned R2 Low Density Residential pursuant to the Randwick Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The relevant objectives of the R2 zone, to which regard must be had, are:

• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

11. The parties agreed that the amended proposal complies with the FSR development standard of 0.75:1 (cl 4.4(2A)(a) of LEP 2012) and maximum building height of 9.5m (Height of Buildings Map -Sheet HOB_007 LEP 2012).

12. The objective of cl 6.2 Earthworks of LEP 2012 is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The consent authority must consider, before granting consent for earthworks, the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, the effect of the development on the existing and likely amenity of adjoining properties and any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

13. The site is within the foreshore scenic protection area pursuant to cl 6.7 of LEP 2012.

14. Building line or setback is defined in the dictionary of LEP 2012 as follows:

building line or setback means the horizontal distance between the property boundary or other stated boundary (measured at 90 degrees from the boundary) and:

(a) a building wall, or

(b) the outside face of any balcony, deck or the like, or

(c) the supporting posts of a carport or verandah roof,

whichever distance is the shortest

15. Randwick Development Control Plan 2013 (DCP 2013) includes, at 1.5 Interpretation, that terms in the DCP have the meaning ascribed to them in the dictionary to LEP 2012 or EPA Act.

16. The site coverage control for the proposal is 55%. Site Coverage at 2.3 of DCP 2013 includes the following:

Explanation

Site coverage in conjunction with setback controls determine the extent and location within which a building may be developed. It aims to reserve sufficient unbuilt upon areas on a site for accommodating private open space, deep soil planting, permeable surfaces and open recreational and service areas.

Site coverage is expressed as a percentage to describe the proportion of a site that could be built upon. The allowable site coverage generally decreases as allotment size increases, so that the mass and scale of any building will not form a detracting feature compromising the streetscape character.

Objectives

To ensure new development and alterations and additions to existing dwellings reserve adequate unbuilt upon areas for the purpose of private open space, deep soil planting, permeable surfaces and ancillary development.

“Site coverage”, for development, does not include any of the following:

(a) an access ramp,

(b) any part of an awning, blind or canopy that is outside the outer wall of a building,

(c) a balcony, deck, patio, pergola, terrace or verandah attached to the dwelling that is not enclosed by a wall higher than 1.4m above the floor level,

(d) the eaves,

(e) a driveway,

(f) a fence or screen,

(g) a pathway or paving,

(h) a rainwater tank that is attached to the dwelling,

(i) a swimming pool or spa pool.

17. The landscaping and permeable surface control for the site is 25%. Landscaping and permeable surfaces, at 2.4 of DCP 2013, includes the following:

Definition:

Deep soil permeable surfaces include areas used for the growing of plants (including grasses, shrubs and trees) and areas occupied by loose gravels upon soil at the ground level of the site. Deep soil permeable surfaces do not include swimming and spa pools, paved areas, planter boxes, or planted areas above basements, podiums, roofs or slabs.

Objectives

To ensure landscaped areas are effectively distributed on the site to achieve a visual balance between building structures and open space.

Controls

ii) Deep soil permeable surfaces must have a width of not less than 900mm.

iii) Maximise the amount of permeable surfaces in the front yards of new development.

18. The planning experts agreed that the amended proposal, except for a very minor non-compliance on the north-eastern corner, complies with the wall height control of 8m.

19. The objectives of the setback controls at 3.3 of DCP 2013 are:

To maintain or establish a consistent rhythm of street setbacks and front gardens that contributes to the character of the neighbourhood.

To ensure the form and massing of development complement and enhance the streetscape character.

To ensure adequate separation between neighbouring buildings for visual and acoustic privacy and solar access.

To reserve adequate areas for the retention or creation of private open space and deep soil planting.

To enable a reasonable level of view sharing between a development and the neighbouring dwellings and the public domain.

20. The controls for the front setback include that the front setback must be consistent with the average setbacks of the adjoining dwellings.

21. The minimum rear setback must be 25% of allotment depth or 8m, whichever is the lesser, at 3.3.3 of DCP 2013.

22. Building design, at 4 of DCP 2013, includes the following:

Explanation

Following the establishment of the permissible building envelope (defined by site coverage, setbacks, FSR, overall building height and external wall height), the form and mass of development need to be modelled to respond specifically to the site characteristics and the surrounding natural and built context.

Objectives

To ensure the form, scale, massing and proportions of dwellings recognise and adapt to the characteristics of a site in terms of topography, configuration, orientation and surrounding natural and built context.

To ensure building facades are articulated to complement or enhance the existing streetscape and neighbourhood character.

Controls

i) Built form must respect and follow the natural topography of the site. On sloping sites, the building mass must be modelled or stepped in response to the land gradient and avoid concentrating the structural bulk on the uphill or downhill side of the allotment.

23. Earthworks, at 4.6 of DCP 2013, includes the following:

Objectives

To maintain or minimise change to the natural ground levels.

To ensure excavation and backfilling of a site do not result in unreasonable structural, visual, overshadowing and privacy impacts on the adjoining dwellings.

To enable the provision of usable private open space for dwellings with adequate gradient.

To ensure earthworks do not result in adverse stormwater impacts on the adjoining properties.

Controls

i) Any excavation and backfilling within the building footprint must be limited to 1m at any point on the allotment, unless it is demonstrated that the site gradient is too steep to reasonably construct a dwelling within this extent of site modification. These requirements do not apply to swimming or spa pool structures.

ii) Setback the outer edge of any excavation, piling or subsurface walls a minimum of 900mm from the side and rear boundaries.

viii) For sites with a significant slope, design dwellings to minimise the height and extent of any exposed undercroft areas.

24. Amenity, at 5 of DCP 2013, includes the following:

Explanation

Natural sunlight is critical to the health and amenity performance of dwellings and their private open space, especially during the winter seasons. Access to sunlight also reduces reliance on artificial heating and lighting and consequential consumption of energy. It is therefore important that new development is sited and designed to capture appropriate levels of sunlight, and without unreasonable overshadowing on the neighbouring dwellings.

25. Solar access and overshadowing, at 5.1 of DCP 2013, includes the following:

Objectives

To ensure development retains reasonable levels of solar access to the neighbouring dwellings and their private open space.

Solar access to neighbouring development:

iii) A portion of the north-facing living area windows of neighbouring dwellings must receive a minimum of 3 hours of direct sunlight between 8am and 4pm on 21 June.

iv) The private open space of neighbouring dwellings must receive a minimum of 3 hours of direct sunlight between 8am and 4pm on 21 June. The area covered by sunlight must be capable of supporting passive recreation activities.

vi) Any variation from the above requirements will be subject to a merit assessment having regard to the following factors:

- Degree of meeting the FSR, height, setbacks and site coverage controls.

- Orientation of the subject and adjoining allotments and subdivision pattern of the urban block.

- Topography of the subject and adjoining allotments.

- Location and level of the windows in question.

- Shadows cast by existing buildings on the neighbouring allotments.

26. Visual privacy, at 5.3 of DCP 2013, includes the following:

In the urban context, complete privacy between dwellings is often not achievable or practicable, and some limited glimpses between neighbours can add to safety and social well being. The emphasis of the control is on minimising cross viewing and overlooking from the indoor and outdoor living areas of dwellings to maintain the amenity of the neighbours.

27. View sharing, at 5.6 of DCP 2013, includes the following:

Many dwellings and public places in Randwick City enjoy views to the ocean, coastline, parks and distant skyline of Sydney CBD and Bondi Junction. Some elements are recognised as prominent natural features (such as Wedding Cake Island) or significant manmade artefacts, and carry scenic and iconic values.

Controls

i) The location and design of dwellings and outbuildings must reasonably maintain existing view corridors or vistas from the neighbouring dwellings, streets and public open space areas.

ii) In assessing potential view loss impacts on the neighbouring dwellings, retaining existing views from the living areas (such as living room, dining room, lounge and kitchen) should be given a priority over those obtained from the bedrooms and non-habitable rooms.

v) Adopt a balanced approach to privacy protection and view sharing, and avoid the creation of long and massive blade walls or screens that obstruct views from the neighbouring dwellings and the public domain.

Public submissions

28. Four resident objectors provided evidence at the commencement of the conciliation conference on site. Their concerns can be summarised as follows:

• The roof of the rear pavilion at the rear of the site will be visible from the pool deck of 11 Garnet Street to the rear of the site and impact on the amenity of the ocean views from the pool deck;

• The proposal, including the fencing of the pool deck on the roof, will impact on the northern views across Coogee Bay and the beach from 44 and 46 Wolseley Road;

• The pool deck on the roof of the front pavilion will impact on the privacy and amenity of surrounding properties;

• The size, bulk and scale of the three storey rear pavilion will impact on the privacy and amenity of surrounding properties;

• The architectural drawings include errors, inconsistencies and lines that may represent elements that are unidentified;

• The proposal will unreasonably overshadow the living rooms and rear open space of 44 Wolseley Road;

• The extensive excavation required for the rear pavilion of the proposal will potentially impact on the vegetation in the rear setback of 44 Wolseley Road;

• The excavation required for the construction of the proposal may impact on the structural integrity of surrounding dwellings and structures.

Expert evidence

29. The applicant relied on the expert planning evidence of Mr Tony Tuxworth and the Council relied on the expert planning evidence of Mr Jeffrey Mead. The experts prepared a joint report (exhibit 5) and an addendum to the joint report regarding amendments made to the proposal (exhibit 6).

Consideration

Rear setback

30. The rear pavilion has no setback to the rear boundary. The applicant submits that the rear pavilion has been positioned so as to conceal the 5m high screen on the boundary to the underside of the pool deck of 11 Garnet Street. The Council’s contention is that this locates built form at the rear of the site which results in amenity impacts on neighbouring properties.

31. It is an inappropriate response to the opportunities and constraints of this site to locate a three storey building on the rear boundary. The rear pavilion results in significant amenity impacts on neighbouring properties; the extent of excavation required for the rear pavilion is excessive; and the layout of the proposal leaves insufficient unbuilt upon areas for outdoor recreation and service areas, deep soil planting and permeable surfaces.

Site coverage and deep soil calculations

32. The experts agreed that the proposal does not comply with the site coverage control for the site of 55%. The site coverage of the proposal is 71% according to Mr Tuxworth and 73% according to Mr Mead. I accept their agreement that the proposal significantly exceeds the numerical control.

33. The experts disagreed on whether the proposal achieves the landscaping and permeable surface control for the site of 25%. According to Mr Tuxworth, the proposal achieves 103sqm of deep soil landscaped area, as demonstrated by the coloured areas shown on the Level 2 plan (exhibit F), which complies with the 25% control. According to Mr Mead, the coloured areas include paved areas and stairs in the central courtyard which are excluded from the calculation. In addition, much of the 900mm side setbacks, shown coloured on exhibit F, are unlikely to meet the minimum 900mm width required by the control to be included in the calculation because there are existing retaining walls and new retaining walls required and not shown on the drawings within the side setbacks.

34. I accept Mr Mead’s evidence that the backfill over the garage, at the front of the site and beneath the front pavilion, does not contribute to the landscaping and permeable surface area calculation.

35. I accept and prefer Mr Mead’s evidence that the proposal does not achieve the required numerical control for landscaping and permeable surfaces. I am not satisfied that the proposal achieves the objective of reserving adequate unbuilt upon areas for the purpose of private open space, deep soil planting and permeable surfaces. The layout of the proposal with the single level front pavilion unnecessarily maximises site coverage.

Amenity impacts on neighbours

36. The experts agreed that screening added to the balcony on the bedroom levels of the rear pavilion would assist with mitigating some of the privacy impacts caused by the floor to ceiling glazing on the eastern elevation of the rear pavilion.

37. The experts agreed that the overshadowing of 44 Wolseley Road, caused by the front pavilion, is acceptable. Mr Mead is of the view that the overshadowing of 44 Wolseley Road by the rear pavilion is unacceptable, as the rear pavilion is a non-compliant element being within the minimum 8m rear setback control.

38. I accept and agree with Mr Mead’s evidence that the three storey substantial rear pavilion is a built form that is inconsistent with the pattern of development envisaged by DCP 2013 and the existing pattern of development in the locality. The rear pavilion will result in adverse visual privacy impacts which are a result of the siting of the rear pavilion at the rear of the site, overlooking the site and both neighbouring properties. For this reason, the additional overshadowing of the rear open space of 44 Wolseley Road during the afternoon of the winter solstice by the rear pavilion is unacceptable.

39. I agree with Mr Mead’s criticism of the shadow diagrams in exhibit D. The shadows are shown as axonometric projection drawings and not angle of sun perspectives and so the shadows created by the proposal on the winter solstice are not adequately quantified.

Excavation

40. The rear pavilion, with a floor level at RL 41.4, requires over 6m of excavation on the rear boundary of the site, where the highest level at the south-western corner of the site is RL 47.47. The extent of excavation required does not, in my view, demonstrate that the proposal is a comfortable fit with the topography of this site.

Front setback

41. It is the applicant’s submission that the 7.05m front setback of the front pavilion meets the DCP 2013 control requiring the front setback to be consistent with the average setbacks of the adjoining dwellings, on the basis that the Statement of Facts and Contentions (exhibit 3) states that the average setback of adjoining dwellings is 7m. The applicant submits that a requirement for a greater front setback would be in breach of s 79C(3A)(a) of the EPA Act.

42. The Council submits that the front setback of the front pavilion should match the front setbacks of the uppermost levels of both 44 and 46 Wolseley Road, in order to maintain northern views from the upper level terraces of both dwellings.

43. I do not accept the applicant’s submission regarding the front setback. Building line or setback is defined by LEP 2012 as the shortest distance between the property boundary and, in this case, a building wall, which is the eastern façade of the garage, with a nil setback. The setbacks of upper levels are then relative to the front setback established by the eastern façade of the garage.

44. A decorous response to the context of the site would respect the upper level setbacks established by the relatively recent renovations to the two dwellings to the south and maintain their northern views from their upper level terraces.

Findings

45. This is a challenging site. It is steeply sloping; somewhat constrained on approximately 400sqm; and sits among dwellings that jostle for their share of the panoramic coastal views over surrounding properties. The FSR development standard and DCP controls for the site are generous in comparison to many low density residential areas.

46. I do not accept the applicant’s submission that the inevitable alternative to this proposal is another storey added to the front pavilion in lieu of the accommodation provided in the rear pavilion. The single level front pavilion is raised approximately 6m above the ceiling slab of the garage below and the floor to ceiling height within the entire front pavilion is a very generous uniform 3.9m. There is ample space for a skilful design to accommodate the client’s brief and capture the view, while responding appropriately to the steeply sloping site, without necessarily creating “cave-like” bedrooms on a lower level. This can be achieved with a decorous response to the constraints presented by the existing surrounding development.

47. I am satisfied that each of the remaining contentions raised by the Council, following the amendments made to the proposal, have been made out by the evidence.

Orders

48. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 565/2016 for the demolition of existing structures and construction of a new dwelling, at 42 Wolseley Road, South Coogee, is refused.

3. The exhibits, other than exhibit 3, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 08 August 2017