CE Coogee Development Pty Ltd v Randwick City Council

[2021] NSWLEC 1125

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CE Coogee Development Pty Ltd v Randwick City Council [2021] NSWLEC 1125

Hearing dates:

24 February 2021

Date of orders:

16 March 2021 and amended on 18 March 2021

Decision date:

16 March 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification application DA/138/2019/A as approved on 18 November 2020 to modify Development Consent DA/138/2019, is approved, subject to the deletion of Condition 2(b).

(3) All exhibits are returned, except for Exhibit 1.

(4) Development Consent DA/138/2019 is subject to the consolidated, modified conditions of consent set out in Annexure “A”.

Catchwords:

MODIFICATION APLICATION – appeal against imposition of condition – whether substantially the same development – visual privacy – daylight and ventilation

Legislation Cited:

Architects Act 1921

Architects Act 2003

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000 cll 3, 115

Randwick Local Environmental Plan 2012

Texts Cited:

Apartment Design Guide

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

CE Coogee Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
R White (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/331152

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against certain conditions imposed by the Randwick City Council (the Respondent) in respect of Development Application No. DA/138/2019/A (modification DA) that seeks to modify Development Consent DA/138/2019 (original consent) at 190-192 Oberon Street, Coogee NSW (the site).

2. As a consequence of discussions between the parties prior to the hearing, a number of the issues in dispute were resolved, leaving only two issues for the Court to determine:

1. Whether Condition 2(b) as sought to be imposed by the Respondent is reasonable, or should be deleted.

2. The appropriate use of an area within Unit G02 which becomes available as a result of the agreement between the parties that air conditioning plant may be relocated to the roof.

The site and its context

3. The site comprises 2 lots of land that are legally described as Lot 6 and Lot 7 in DP 5174 and which, together, comprise a total area of 1,459m² having a frontage to Oberon Street of 25.46m.

4. The proceedings commenced with an onsite view during which the Court attended the rear yard of the property owned by Mr Gary Gordon at No. 262 Rainbow Street, Coogee whose primary concerns may be summarised as follows:

• Overlooking and privacy in the event of plantings failing in the proposed planter beds, or the obverse which is the profusion of plantings obscuring natural daylight from the south-facing bedrooms in the development.

• The ‘monolithic’ form of the rear elevation as proposed by the Applicant is improved by the setting back of balconies that is the consequence of the condition imposed.

5. The Court also attended the rear yard of No. 264 Rainbow Street, Coogee at the invitation of Ms Clare Petre and Mr Wayne Golding who provided a written submission dated 16 February 2021.

6. A written submission was also received by the Court from Ms Lyndall and Mr Jonathon Mulcrony, 1/174-178 Brook Street, Coogee opposing the modification application, primarily on the grounds of privacy.

7. A further written submission from Con Argyropoulos, who is the owner of the adjoining residential flat building No.194 Oberon Street was received during the proceedings. In summary, Mr Argyropoulos supports the relocation of air conditioning to the rooftop with appropriate acoustic treatment, which is the subject of the agreement between the parties at [2(2)].

Chronology of the appeal

8. Development Application No. DA/138/2019 (the original DA) was lodged by CE Coogee Pty Ltd (the Applicant) on 14 March 2019 seeking demolition of an existing dwelling at 190 Oberon Street, and the partial demolition of an existing residential flat building on 192 Oberon Street, for construction of a new residential flat building with semi-basement car parking.

9. Development consent was granted on 14 July 2020.

10. Prior to the grant of consent, the Applicant lodged a modification application on 25 May 2020 (Modification Application No.1) which sought the following:

“modification of approved development including reconfigured basement layout and deletion of car stackers, increased size of units on lower ground and addition of a communal room, alterations to ground/first/second floors including new south-facing balconies, addition of privacy screens and pergolas, modified planter boxes, reconfigured units, addition of solar panels and air conditioning units on roof, changes to windows and correction to ARH contribution amount”.

11. Also prior to the grant of consent, the Applicant lodged another modification application on 11 June 2020 (Modification Application No. 2) seeking approval for certain methods of excavation.

12. The Respondent granted consent to Modification Application No. 2 on 20 July 2020.

13. The Respondent granted consent to the original DA on 5 March 2020, subject to conditions of consent, including Condition 2(b) which stated:

“The south-facing balconies and balustrades to Units G04, 104, and 202 shall be deleted with the remaining area to be landscaped and non-trafficable, accessed for maintenance purposes only.”

14. The Applicant submits that it sought to address the underlying concerns of the Respondent expressed in Condition 2(b) by amending the balconies to Units G04, 104 and 202 to provide access for maintenance purposes only, and a landscape planter bed.

15. These modifications were incorporated into the Modification Application No.1. However, the Respondent determined Modification Application No.1 with Condition 2(b) worded in such a way as is now.

Expert evidence

16. The Court was assisted by a joint expert report prepared by Mr Anthony Betros, planner for the Applicant, and Mr Sohail Faridy, planner for the Respondent (Exhibit 3), filed with the Court on 17 February 2021.

17. In the case management listed prior to the commencement of the hearing, the Court ordered that mechanical engineers should confer so to file and serve a short joint report on two matters initially identified by mechanical engineering advice received by the Applicant.

18. However at the commencement of the hearing, the parties advised the Court that agreement had been reached on the acoustic issues and further reports were not relied upon.

The two issues

The south-facing balconies

19. The Applicant appeals the imposition of condition 2(b) by the Respondent. Condition 2(b) is in the following terms:

Condition 2(b)

“The south-facing balconies, balustrades and the associated landscaped areas to Units G04, 104, and 202 shall be deleted and replaced with Juliet-style balconies, with details to be submitted to Council's Manager Development Assessment prior to the issue of a Construction Certificate.”

20. The Applicant submits that the proposed balconies achieve the intent of the condition as originally expressed in the conditions of consent imposed with the original DA.

21. That is, an area of 600mm is provided for maintenance access to a 1500mm wide landscaped planter bed.

22. Together these elements form a balcony that is setback from the rear boundary by 10m, which exceeds the dimension required by the Design Criteria at 3F-1 of the Apartment Design Guide (ADG) which, at Figure 3F.5 requires a setback of 9m in circumstances where, as here, the subject site adjoins a zone permitting lower density residential development.

23. Furthermore, the depth of the planter bed affords privacy to rear neighbours by limiting the downward sightline into the rear yards of properties in Rainbow Street to the rear of the site.

24. In support of its application, the Applicant cites the assessment undertaken by the Respondent for the purposes of advising the Randwick Local Planning Panel meeting held on 12 November 2020. The assessment states, relevantly:

“Assessment: At the outset, the original assessment and determination included condition 2b to address privacy impacts from the 1.15m deep balconies due to their accessibility off living rooms, the reduced necessity for secondary balcony areas and the potential for large groups of people to use these balconies for entertaining purposes…

The fact that these are secondary balconies with a limited depth also means a reduced potential for use for lengthy periods given they are also alongside low use bedrooms…

Overall, it is not considered that the size of location of these balconies to the rear of units G04, 104 and 202 will pose any adverse privacy impacts beyond that envisaged by the ADG or the RDCP controls and the proposed deletion of condition 2b is supported.”

25. It is commonly held by the parties in submissions that condition 2(b) as proposed by the Respondent in the Notice of Determination (Exhibit 2, tab 8) leaves open the question of what is precisely meant by the term ‘Juliet-style’ balcony in the circumstances of this case.

26. In the joint expert report, Mr Faridy acknowledges that a Juliet balcony may not be appropriate given the overall design of the proposal and the design of other balconies on the same elevation in particular.

27. Mr Faridy proposes what he describes as a ‘middle ground’. I understand this comprises a 600mm wide zone to provide access for maintenance to a planter bed that is 500mm in width.

28. At the outset of the expert evidence, the Respondent sought to adduce Mr Faridy’s position on images contained behind Tab 15 of the Applicant’s bundle (Exhibit C). In summary, the images depict 3D view of options that the Applicant says are the implications of the condition sought to be imposed by the Council, and the modification proposed by the Applicant.

29. During the experts’ evidence it became evident that the implications of the balcony described by Mr Faridy in the joint report would be to expose the Unit LG02 to weather, given the balcony to Unit G02 forms the roof of that unit below.

30. To avoid this, the solution proposed by Mr Faridy is to permit the balcony slab to continue to extend over Unit LG02 in addition to the ‘middle ground’ described at [27].

31. According to Mr Betros, the result would be an unbalanced façade that fails to conform to the preference for good design as stated in Section 4.1 of the Randwick Development Control Plan 2013 (RDCP).

32. The wording of Condition 2(b) requires the deletion of balconies, balustrades and the associated landscaped areas to Units G04, 104 and 202, to be replaced by Juliet-style balconies.

33. As I understand Mr Faridy’s proposed solution, the balcony to Unit G02, located over LG02, would not be deleted, but would remain, albeit with amendment.

34. The alternative would appear to require amendment to the design of Unit LG02 below, most notably the setting back of the façade to this unit by around 1000mm.

The appropriate use of Unit G02

35. As a result of the consent granted by the Respondent for Modification Application No.1, air conditioning units that had been located within a lower portion of the building in the original DA were relocated to the roof of the proposed development.

36. This made available the area formerly allocated to the air conditioning plant for other purposes.

37. The Applicant proposes a bedroom, bathroom and study area in this location, that is connected to Unit G02 by a stair.

38. The Respondent submits the area offers poor internal amenity to future residents, and is located too close to the southern portion of the proposed development to offer appropriate natural ventilation or light.

39. In particular, Mr Faridy notes the proximity of a planter bed and privacy screen to the glazing serving the rooms in Unit G02 which is likely to obstruct natural light, as does the projection of the building over resulting in an ‘undercroft’.

40. Together, these are not conditions that satisfactorily address Part C2, Section 5.2 of the RDCP, and so the best use of the area is for expanded communal facilities.

41. The Applicant relies upon a letter prepared by Mr Peter Dix, from Building Code Assistance, dated 9 February 2021 advising that the arrangement proposed by the Applicant is capable of achieving compliance with relevant sections of the National Construction Code (NCC) in respect of natural light and ventilation. (Exhibit C, Tab 12)

42. Additionally, the Applicant submits that no aspect of the proposal contravenes the ADG, Randwick Local Environmental Plan 2012 (RLEP) or the RDCP as shown in Appendix 2 and 3 of the Assessment Report for Modification Application No.1 (Exhibit 2, folios 102-124).

43. Mr Betros also draws my attention to drawing DA 3100 which suggests a ceiling height in the order of 3.7m.

Statutory framework

44. The site is within the R3 Medium Density Residential zone according to the RLEP in which residential flat building development is permitted with development consent, and wherein the objectives of the zone are in the following terms:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage revitalisation, redevelopment and housing choice in a residential area.

45. The modification application the subject of these proceedings has been made under s 4.55(2) of the EP&A Act, which relevantly provides:

(2) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

46. Sections 4.55(3) and 4.55(4) are also relevant to this appeal, and provide:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

47. Section 4.15(1) of the EP&A Act requires the Court to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

Finding

48. It is commonly held by the parties that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, satisfying the jurisdictional requirement of s 4.55(2) of the EPA Act. I concur.

49. The modifications proposed are, in my view, when considered in both qualitative and quantitative terms, substantially the same development having regard to the developments in their proper context.

50. In respect of the south-facing balconies, I note that there is no proposal to modify the setback of the overall form of the development from the rear boundary, notwithstanding the competing positions on the preferred form of the balconies themselves.

51. In respect of the modification proposed to the lower floor rooms to Unit G02, I note that minor re-alignment of certain walls are proposed in the vicinity of the common stair, and new glazing to those rooms now the subject of the proposed modification. This re-alignment is wholly within the footprint of the original DA for which consent was granted.

52. The Respondent has notified the application (Exhibit 2, Tab 9), and public submissions have been received.

53. The particular focus of public submissions in respect of the south-facing balconies is the protection of visual privacy to the rear of those properties fronting Rainbow Street.

54. I accept the Applicant’s submission that the effect of a 600mm wide access zone, combined with a 1500mm wide planter bed is a more effective visual barrier between the bedrooms of the respective units, and the properties in Rainbow Street than that proposed by the Respondent.

55. A 500mm wide planter bed has clearly lesser volume of growing material to support landscape planting than that proposed by the Applicant. The more shallow width also, in my view, fails to provide the same degree of horizontal obstruction to the downward sightline of a person standing in the 600mm wide access zone, or indeed immediately within the bedroom itself.

56. The only advantage I can see in the balcony proposed by Mr Faridy is to increase the setback of the balcony from the rear boundary which already exceeds that required by the ADG.

57. However, for this setback to be increased at each level of the building would expose the Unit LG02 in the manner described at [29], unless the gross floor area (GFA) of Unit LG02 is also reduced. An amendment to the GFA is not proposed by the Applicant, nor is it envisaged by operation of the condition proposed by the Respondent.

58. For the reasons set out by the Applicant at [22]-[24], I conclude that the balconies as proposed by the Applicant in Exhibit A, Tab 10 are acceptable and I find Condition 2(b) should be deleted.

48. I also find that the use of the lower area to Unit G02 is acceptable in the manner proposed by the Applicant on drawing DA 2001. In arriving at my conclusion, I observe that there is no specific level of natural daylight prescribed in the RDCP but I note that the area of glazing, when viewed on drawing DA 3100, appears sufficient to generate natural daylight in the rooms.

49. I also accept that the glazing, which I am advised is openable, is capable of ventilating the rooms. I note the rooms have the benefit of generous internal height and are at a lower level of a two storey unit that should be capable of some cross ventilation by virtue of the stair void and openings at the upper level.

Directions

61. At the conclusion of the hearing, the parties advised that further time was required to settle the final form of the without prejudice draft conditions of consent.

62. I directed that parties should file and serve the final form of the conditions by 4pm Friday 26 February 2021.

63. I also observed that the design statement required by cl 115 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) with the Class 1 application as prepared by the architect, Mr Brian Meyerson, contains certain errors and an omission.

64. It is helpful here to re-produce the applicable part of cl 115 of the EPA Regulation:

…

(3) In addition, if an application for the modification of a development consent under section 4.55(2) or section 4.56(1) of the Act relates to residential apartment development and the development application was required to be accompanied by a design verification from a qualified designer under clause 50(1A), the application must be accompanied by a statement by a qualified designer.

(3A)  The statement by the qualified designer must—

(a)  verify that he or she designed, or directed the design of, the modification of the development and, if applicable, the development for which the development consent was granted, and

(b)  provide an explanation of how—

(i)  the design quality principles are addressed in the development, and

(ii) in terms of the Apartment Design Guide, the objectives of that guide have been achieved in the development, and

(c)  verify that the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted.

65. The design statement prepared by Mr Meyerson (Exhibit A, Tab 5) incorrectly cites subcl 115(1A), and not subcl 115(3A), as the provision requiring a statement by the qualified designer, and cites the Architects Act 1921, which was repealed in 2003, as the basis for his registration as an architect (noting here that the definition at cl 3 of the EPA Regulation requires registration under the Architects Act 2003).

66. Furthermore, the statement does not provide the attestation required by subcl 115(3A)(b)(ii), or subcl 115(3A)(c). In lieu of an explanation from the qualified designer as to how the objectives of the ADG have been achieved, the Court was in the unusual position of relying on the assessment prepared by the Respondent, as cited earlier.

67. That said, the Respondent’s assessment of the objectives does not appear comprehensive when considered against Part 3 and Part 4 of the ADG.

68. I directed that a statement by the qualified designer be prepared in a complying form, and for this to be filed and served along with the final conditions of consent at 4pm Friday 26 February 2021.

69. The Court received the conditions and the statement by the qualified designer on 5 March 2021.

70. The statement by the qualified designer is consistent with the requirements of cl 115(3A) of the EPA Regulation, and appears to raise no issue of dispute between the parties.

71. Accordingly, I see no reason that the appeal should not be upheld.

Orders

72. The Court orders that:

1. The appeal is upheld.

2. Modification application DA/138/2019/A as approved on 18 November 2020 to modify Development Consent DA/138/2019, is approved, subject to the deletion of Condition 2(b).

3. All exhibits are returned, except for Exhibit 1.

4. Development Consent DA/138/2019 is subject to the consolidated, modified conditions of consent set out in Annexure “A”.

……………………

T Horton

Commissioner of the Court

Annexure A (478058, pdf)

**********

Amendments

19 March 2021 - Pursuant to UCPR r 36.17, and by consent of the parties, an additional Order (4) is to be added to the Judgment, which reads:

(4) Development Consent DA/138/2019 is subject to the consolidated, modified conditions of consent set out in Annexure “A”.

Decision last updated: 19 March 2021