Dermatis v Randwick City Council
[2007] NSWLEC 496
•17 July 2007
Land and Environment Court
of New South Wales
CITATION: Dermatis v Randwick City Council [2007] NSWLEC 496
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
Paul Dermatis
Randwick City CouncilFILE NUMBER(S): 10432 of 2007 CORAM: Hoffman C KEY ISSUES: Section 96 Application :- modification of development consent, construction of a dwelling house, height, views, LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
State Environmental Planning Policy Building Sustainability Index 2004,
Development Control Plan,
Dwelling Houses and Attached Dual Occupancies
Building Code of AustraliaCASES CITED: Tenacity v Warringah (2004) NSWLEC 140 ;
Pafburn v North Sydney (2005) NSWLEC 444DATES OF HEARING: 17/07/2007 EX TEMPORE JUDGMENT DATE: 17 July 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr R. Graham, solicitor and
Mr J. P. Merlino, solicitor
of Home Wilkinson LowryRESPONDENT
Mr M. Staunton, barrister
Instructed by Ms T Litt, solicitor
of Shaw Reynolds Bowen & Gerathy
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
17 July 2007
JUDGMENT10432 of 2007 Paul Dermatis v Randwick City Council
1 COMMISSIONER: This is a s 96 Appeal Number 10432 of 2007 between Paul Dermatis and Randwick City Council in regard to a s 96 application to amend development consent DA/1114/2004 approving a house at 351 Rainbow Street, South Coogee.
The house is under construction and is almost up to putting the roof on. The roof is approved as a concrete slab flat structure required by condition of consent to be at a finished level of RL 51.45. Also required by condition of consent was the removal of a proposed continuation of the same roof over the balconies to bedroom No’s. 1, 2 and 3 as shown on the plans. There is a fourth bedroom called a master bedroom. It is unaffected.
2 The site is on a steep hill that drops down to the coastal reserve at South Coogee and the shoreline. The hill is steep enough that most houses get ocean views from their east-facing side windows. The street runs east west so the houses on the same side of Rainbow Street as 351 get views to the north from their front windows as well.
3 The statutes and controls applicable are the site is zoned 2(a) Residential (A) zone under the Randwick Local Environmental Plan 1998 and the proposal is permissible with council’s consent. The applicable statutory planning instruments and city council controls are the Environmental Planning and Assessment Act 1979, Randwick Local Environmental Plan 1998, State Environmental Planning Policy Building Sustainability Index 2004, Development Control Plan, Dwelling Houses and Attached Dual Occupancies and the Building Code of Australia.
4 The relevant clauses for consideration in the Local Environmental Plan are cl 2 Aims of the Plan, cl 10 the Zone 2(A) Residential (A) Zone Objectives and cl 29 Foreshore Scenic Protection Area controls. The issues in the case are:
- 1. The proposed development seeks modification of development consent for the demolition of an existing dwelling and the construction of a two-storey dwelling house including basement garage and a roof terrace which is partially constructed by:
- 1.1 increasing the floor-to-ceiling height of the first floor bedrooms to 2.675 metres,
- 1.1.1 the increase in ceiling height will increase the height of the building from RL 51.45 to RL 51.65, an increase of 200 millimetres,
- 1.1.2 the height of the building at RL 51.45 was imposed per condition 2(iii) of the original development consent DA/1114/2004 which stated:
- “The overall height of the building shall be lowered by 300 millimetres with the top of the roof being RL AHD of 51.450.”
- 1.2.1 the roofing was required to be deleted as per condition 2(v) of the deferred commencement consent of the original consent DA/1114/2004
- 1.3 including three cut-out portions 500 millimetres by 715 millimetres in the proposed roofing over the eastern first floor balconies
5 The respondent’s evidence was heard from
- Mr Rock of 3 Garnet Street who represented Messrs C and N Stoker of 1 Garnet Street, objectors who are currently overseas. Mr Rock showed the parties through both levels of No. 1 and its rear private open spaces and deck. No. 1 is the immediate southern neighbour of the proposal.
- Mrs Tadros, who is an objector and resident of 349 Rainbow Street, is the neighbour immediately uphill of the site on the west. Due to language problems she was represented by Ms S Hill, Solicitor.
- Mr PG La Bon, Town Planner and Assessment Officer for the Council, gave evidence.
6 The applicant’s evidence heard was from Mr B Kirk, Consultant Town Planner.
7 At the on-site hearing, I was told and various reports were tendered to show that the council conditions on the height of the roof and removal of part of it actually required lowering by 300 millimetres compared to the original drawings. They form part of a suite of deferred commencement conditions in consent DA/1114/2004.
8 These conditions arose, as I was told, from a consideration of the total development by the council and by its officers. The approval took into account that the maximum wall height under the council’s statutes and controls is 7 metres. At the north-east corner the proposal is, as approved, 10 metres high. The s 96 application asked for 10.2 metres height. The approval allowed a floor space ratio of 0.98:1 when the applicable maximum is 0.6:1. The approval allowed a rear setback adjoining 1 Garnet of 3 metres when the applicable requirement is 4.5 metres.
9 The approved maximum height of RL 51.45 and the removal of the roofs over the balconies of bedroom No’s 1, 2 and 3 were required to reduce bulk and to provide acceptable view sharing for No. 349. The view sharing requirement is set out in the council’s statute and controls under each of the categories of wall height, floor space ratio and setbacks.
10 On being shown the impact on 1 Garnet Street, I would say the proposal adds only minor additional shadow to their private open spaces and minor additional bulk above the same areas.
11 In being shown the Tadros’ property I was taken first to the pool deck at the rear that looks towards the ocean above proposed bedrooms one, two and three. The applicant had erected height poles and Mr Kirk had produced photo montages that showed the proposal as approved and with the s 96 amendment taken from the living rooms of the Tadros’ house.
12 Apart from the height poles the applicant advised it had put three or four extra courses of bricks on the walls of the top floor because it was easier to knock the courses off if the appeal is lost, versus re-erecting scaffolding if it is approved. I was told the raising of the roof by 200 millimetres was to get that much extra ceiling height in the upper bedroom level, that currently is approved with 2.45 metre ceilings.
13 From the pool deck and family room of the Tadros’ the additional height, even though small in apparent difference, the extra height could be seen to eliminate inclusion of the water and shoreline interface in the view looking across bedroom No’s. 1, 2 and 3.
14 From the family room of the Tadros’ the view from the north-east included Wedding Cake Island just off the coast. From some positions, with the increased height proposed, the island would only be seen just above the roof of the proposal, whereas the approved height enabled the island to be seen with some water between it and the roof.
15 Mr Kirk and Mr Le Bon considered the Wedding Cake Island view to be that of a local iconic item. Ms Hill said it should be seen within the ocean context, not just above the roof. Mr Le Bon gave the same evidence. Mr Kirk thought as an iconic view it was not in the same league as the Opera House and Harbour Bridge and that just being able to see it is enough.
16 In looking at the montages in Exhibit C, I noticed it did not show sewer line roof vents or bathroom and kitchen exhausts. It did show a fireplace flue without any directional cowl and two skylights. The proposal is in fact to raise the whole roof so it becomes higher and more prominent in the foreground of the Tadros’ view as well as screening out the portions of the view already mentioned.
17 The sewer roof vents et cetera will hardly be adornments to the outlook and would have to be proportionately higher as well. They would intrude more into the view line and the rooftop itself. I was told all the exhaust vents would be through the western wall of the subject house.
18 I was shown the Tadros’ bedrooms on their lower floor that also faced east and therefore would face all these exhaust fans. They used to have ocean panorama views from the bedroom windows but that could not be retained with a two-storey house on the subject site.
19 A studio also at the Tadros’ lower level and at the rear of their property had lost most of its ocean view, partly because of the reduced rear setback allowed the applicant. At the approved height, standing near the Tadros’ bedroom windows, one could still see about one-third of the window height to blue sky. This would be further reduced if the height is raised.
20 In coming to a conclusion on this appeal I am reminded of Tenacity v Warringah (2004) NSWLEC 140 and Pafburn v North Sydney (2005) NSWLEC 444. In those cases significant views include water views, especially the water and shoreline interface and views of iconic features of a panorama, be it natural or built environmental elements.
21 Also my assessment should take into account whether a development is complying or not with the council’s statutes and controls and if not complying then even small impacts on views or other aspects of a proposal should not be permitted.
22 It seems to me the raising of the whole roof of the building and its extension over the balconies of bedroom No’s 1, 2 and 3 has been shown to have impacts on view sharing considered small in the applicant’s mind but significant according to Tenacity and the Pafburn tests and in the evidence of the respondent. The tests show that the impacts are on the water, shoreline interface and an iconic view of a natural feature. Whether large or small it should not be permitted on a structure that already exceeds the height limit by three metres, the floor space ratio by about 50% and reduces the rear setback by 33%.
23 The applicant appears to think the council’s approval created a new status quo and that the change proposed, being minor, is reasonable. In a s 96 application the Court must consider the original application and the original consent that is sought to be changed. The council’s decision originally gave major concessions in return for minor requirements that it felt achieved a satisfactory planning outcome under its statutes and controls for the development and its neighbours. In this case there is no justification for changing the approval as granted by the council.
24 Therefore the Orders of the Court are:
1. The appeal is dismissed; and
2. The exhibits are returned to the parties except exhibits A, B, C, 2, 7 and 8.
________________________
- K Hoffman
Commissioner of the Court
DK
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