Clarendon Homes (NSW) Pty Limited v Randwick City Council

[2008] NSWLEC 1267

Land and Environment Court

of New South Wales

CITATION:

Clarendon Homes (NSW) Pty Limited v Randwick City Council [2008] NSWLEC 1267

PARTIES:

APPLICANT
Clarendon Homes (NSW) Pty Limited

RESPONDENT
Randwick City Council

FILE NUMBER(S):

11332 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- subdivision of a dwelling, landscaping, height, solar access, private open space

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
Randwick Development Control Plan
Detached Dwelling and Dual Occupancy Development Control Plan

DATES OF HEARING:

9/4/2008

EX TEMPORE JUDGMENT DATE:

9 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Galasso, barrister
Instructed by Ms P. Adraskelas
of Mallesons Stephen Jaques

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

9 April 2008

11332 of 2007 Clarendon Homes (NSW) Pty Limited v Randwick City Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 This is a Class 1 Appeal No. 11332 of 2007 between Randwick City Council and Clarendon Homes (NSW) Pty Limited. In regard to condition 10 of development consent DA/719/2007 for a house at No. 7 Clonard Way, Little Bay.

2 The allotment is vacant and it is within a new residential area called Baybrook where some homes have been built, however in this group of six allotments, this will be the first to be developed.

3 The hearing was attended by; Mr Galasso for the applicant with a town planning report from Mr R Chambers and an energy assessment report from Dr Deeble. For the respondent was Mr Rigg supported by Mr D Chesterman, architect and town planner.

4 The development of the Baybrook area had been first consented to via council by the adoption of a master plan known as the Baybrook Master Plan in 2003. For reasons not entirely explained during the hearing but of no real relevance to the final decision, the council decided that the master plan should have only a five year life and it has expired on 25 March 2008. This leaves the applicable development control plan in the Randwick area as the Dwelling Houses and Attached Dual Occupancies Development Control Plan (DCP) adopted under the Randwick Local Environmental Plan 1998.

5 Within the Baybrook Master Plan the floor to ceiling height is noted as having been set at 2.7 metres for the ground floor and 2.6 metres for the first floor. The proposal seeks 2.4 metres ceiling height on both floors. In the consent because of the council’s weighting of the now expired Baybrook Plan, condition 10 was imposed.

6 The applicant says that the condition should be deleted. The subject plans in Exhibit A show 2.4 metres ceiling height on both the ground and the first floors. The respondent in the joint conference of its experts and the applicant’s experts have agreed that it is reasonable for the upper storey to have 2.4 metres ceiling, however, the respondent says the ground floor should remain at 2.7 metres. They both agree that the last sentence of condition 10 which set the overall building height of 9.5 metres does not need to remain since the overall building height will be well below this limit.

7 Pursuant to cl 40A of the Randwick Local Environmental Plan, consent for the original subdivision which comprised a site area of more than 4,000 square metres was predicated upon the adoption of the master plan.

8 The master plan was prepared and the only reference to ceiling heights is found in some typical elevations of plans within the document which show 2.7 metres ground floor ceiling heights and 2.6 metres for the first floor. Within the text there is no direct requirement for those heights other than the mere nomination of the dimensions.

9 The environmental sustainability section of the master plan contemplates an option for air conditioning of dwellings but does not relate ESD to floor and ceiling heights or more specifically as arose during this hearing, having sufficient space or headroom for ceiling fans.

10 The master plan did say in places that all buildings should be designed to achieve cross-ventilation, that landscaping, orientation, siting and dwelling layout are to ensure solar access to living areas and private open space, and maximised use of cooling breezes. Internal rooms reliant on artificial lighting and mechanical ventilation should be minimised.

11 The subject plans in Exhibit A demonstrate these qualities and the respondent does not cavil with that fact. The master plan itself has quite a number of provisions to do with the layout of the original subdivision and the later construction of dwellings to provide for environmentally sustainable design. In the applicant’s submission without any serious contradiction from the respondent, the Baybrook area under construction complies with those provisions. It is clear that the only issue standing between the parties at the time of this hearing is whether or not the ground floor should have a 2.4 metre or a 2.7 metre ceiling height.

12 It is to be noted from the plans that the ground floor comprises a single open plan living area with a kitchen, meals, family and games area all leading through glazed doorways onto al fresco areas in several positions on the site. It provides in that form cross-ventilation in accordance with the matters specifically identified in the master plan.

13 Mr Chesterman said that the ceiling height should remain at 2.7 metres for a ceiling fan for maximum cooling in the summer, and by having a reverse direction fan, heating in the winter, the ceiling height needed to remain at 2.7 metres. This is due to the fact that the blades ideally should be no closer than 24 inches to the ceiling which is a dimension of about 0.6 metres. He was cross-examined on this requirement because even with a 2.7 metre ceiling height, it would leave only 2.1 metres floor to fan height. When added to his stated safety head clearance for persons beneath the fans being from 600 to 900 millimetres, a person can simply not stand below a ceiling fan in a room with 2.7 metres height. Mr Chesterman said there was the ability to install what is called a hugger ceiling fan which is set 300 millimetres from the ceiling, but these are less efficient.

14 There is reference to the New South Wales Residential Flat Design Code that does recommend 2.7 metre ceiling heights for habitable rooms of flats. That is not quite relevant to the circumstances of a stand alone dwelling. Amenity and room volume in a residential unit are quite different to those of detached dwellings particularly one as designed in exhibit A. In the Residential Flat Design Code the objectives of ceiling heights include, to increase the sense of space, promote the penetration of daylight, contribute to the flexibility of use, and to achieve quality interior spaces whilst considering the external building form requirements. There might also be an element to compensate somewhat for the lesser likelihood of cross-ventilation in flats that can be more easily designed into a detached house.

15 The New South Wales Model Code in terms of energy efficiency and ventilation provides for building design to assist air movement within dwellings to provide acceptable thermal conditions. Buildings should be oriented to catch cooling summer breezes, windows and openings located in opposite sides of the dwelling, in line with each other and doors and windows and other openings having adequate draught control, whilst also allowing cross-ventilation.

16 There was no argument put to me that the design in Exhibit A did not meet these requirements and in the model code there is no mention of ceiling fans. In the Better Living Guidelines for Urban Housing in New South Wales addressing ceiling height, the objective is to ensure room heights in urban housing allow adequate ventilation and natural light access and can cater for other uses within residential buildings. It illustrates a minimum of 2.4 metres for habitable rooms provided the depth of the room is less than fourteen metres.

17 Mr Chambers notes the provisions of the Building Code of Australia set out the minimum floor to ceiling height for habitable rooms as 2.4 metres and other rooms, not habitable rooms, may be lower, as low as 2.1 metres.

18 Mr Chambers also noted that this locality, now the Baybrook Master Plan has expired, it simply becomes an integrated sub-precinct within the respondent’s local government area and subject to the ordinary statutes and controls.

19 He also noted advice from his client of a preference by purchasers to have a lower ceiling height of 2.4 metres if given the option because of the increased cost of providing the greater height. His client advised that the estimated cost is some $10,000 for both storeys or given the council’s concession of 2.4 metres on the upper floor, $5,000 for the ground floor.

20 He said that the reduction in floor to ceiling height will have a consequential reduction in embodied energy and greenhouse emissions associated with the reduced volume of building, and this aspect is addressed in the report of Dr Deeble. In his report, Dr Deeble made an assessment of the additional resource requirement and additional greenhouse gas emissions for the additional building materials and construction required for the higher ceiling height of 2.7 metres. It will be a higher resource demand. However, the experts all agreed that the actual construction cost in terms of energy requirements represents possibly only ten per cent of a building energy demand and that ninety per cent of energy demand comes with the operation of the building and its occupation after construction.

21 Dr Deeble made an assessment table showing both through the NatHERS rating of the proposal and by his calculations on energy loadings and heating and cooling requirements to illustrate that the 2.7 metre ceiling height would require substantially more energy over many years than would the 2.4 metres.

22 It was pointed out, however, by Mr Chesterman that the estimates of Dr Deeble assumed some form of mechanical air conditioning to keep the rooms within an acceptable temperature range summer and winter. Mr Chesterman’s practise gives a wider temperature range than air conditioning for rooms and the use of fans when necessary at the extremes of either heating or cooling. The importance of Mr Chesterman’s estimate is the difference in operating costs of fans versus mechanical air conditioning. Fans are reported, for the same floor area of room, to cost about one cent an hour whereas mechanical ventilation of ducted air conditioning can cost up to one dollar an hour to operate.

23 During the hearing I do not think these aspects of mechanical air conditioning versus fan cooling were brought to a final conclusion. However, it seems to me that the case can rely partly on the applicants evidence on the additional energy costs required both to build the 2.7 metres ceiling height and to operate any form of heating or cooling thereafter, and partly on the fact that the council saw fit to terminate the Baybrook Master Plan, it being the only control that required the 2.7 metre ceiling height.

24 The controls of development in Randwick now reside in the council’s Detached Dwelling and Dual Occupancy Development Control Plan and the other statutes that have no specification for ceiling height and appear to rely on the Building Code of Australia for the minimum ceiling heights allowable. That really sets the controls for the future in Randwick until council determines some other control.

25 There is no disagreement between the parties that in other respects, the Baybrook development area has been constructed so far, and it is expected would be constructed in the future, in conjunction with the environmentally sustainable principles applicable both under cl 2 of the LEP and under the general provisions of its other development controls. Therefore condition 10 can simply be deleted.

26 Therefore the Orders of the Court are:

1. The appeal is upheld.

2. Development Consent No. DA/719/2007 by Randwick City Council for a house at No. 7 Clonard Way, Little Bay is amended by the deletion of Condition 10..

3. The exhibits are returned except Exhibit A.

___________________

K G Hoffman
Commissioner of the Court
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