Domingues v Randwick City Council

[2018] NSWLEC 1610

Land and Environment Court

New South Wales

Medium Neutral Citation:	Domingues v Randwick City Council [2018] NSWLEC 1610
Hearing dates:	21 November 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	(1)   The appeal is dismissed. (2)   The exhibits are returned with the exception of Exhibit 2.
Catchwords:	MODIFICATION of Development Consent to include a rooftop terrace – amenity impacts – overlooking and privacy – unacceptable precedent
Legislation Cited:	Randwick Local Environmental Plan 2012
Cases Cited:	Super Studio v Waverley Council [2004] NSWLEC 91 Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited:	Randwick Comprehensive Development Control Plan 2013
Category:	Principal judgment
Parties:	Isabel Maria Domingues (First Applicant) Licinio Catre Dos Santos Domingues (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Applicants)   Solicitors: Tsolakis Solicitors (Applicants) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/151482
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. The applicants are constructing a new home at 13 Sackville Street, Maroubra pursuant to a development consent (DA/480/2016) issued by Randwick Council (Council) on 2 November 2016.

2. They now seek approval from the Court to modify the approved dwelling to incorporate a 27m² rooftop terrace and glass balustrade on the north-eastern section of the main roof of the dwelling. The proposal can be understood from the amended plans which were substituted in the appeal (with the consent of the Council) on the morning of the hearing. They are marked Exhibit A.

3. In summary, the amended proposal introduces an aluminium and glass structure (referred to in the evidence as the box) onto the main roof and extending approximately 1.3m above the parapet located on the western side of the dwelling. The box is made from obscured glass panelling on its western elevation and clear glass on each other elevation. The roof is comprised of three clear glass panels, which slide open and operate as a hatch in order to allow entry onto the terrace from the stair below. A storage cupboard is also proposed within the box.

Facts

4. The background to the application is set out in the Council’s Statement of Facts and Contentions (SOFC) filed on 2 July 2018 and the applicants’ Statement in Reply. The essential facts are:

5. The site is located on the corner of Sackville and Bellevue Street, Maroubra and close to Maroubra Beach. It has a rectangular shape and a land area of 411m². Although, generally level from Sackville Street on the western side to the northern frontage the site does contain a slight cross fall of approximately 1m from the north-western corner to the south-eastern corner.

6. Consistent with my observations of the site at the start of the hearing, the locality is aptly described in the SOFC as predominately characterised by low density residential development comprising single and double storey dwellings. Relevantly, there are no roof top terraces on any of the dwellings in Sackville Street or within the immediate area of the site.

7. The Council has approved 6 balconies and terraces on the dwelling at this site and I was taken to these areas at the hearing principally in order to observe the available ocean and beach views. The applicants’ planner, Mr Anthony Betros believes that 4 of these outdoor spaces are a useable proportion (with the terraces off the first floor bedrooms offering the best available ocean and beach views). That said, Mr Betros does not believe that it is unreasonable for the applicants to seek to obtain more extensive ocean views from the proposed rooftop terrace and he supports the application on that basis.

8. The site adjoins an older style part 2 storey dwelling on its western elevation at 11 Sackville Street. The owner of that property, Ms Jennifer Perkins, is an objector to the application. She attended the site view at the commencement of the hearing and expressed a concern about the safety of the terrace. The neighbour at No. 9 Sackville Street, Melinda Winborne, also addressed the Court at the site view. Ms Winborne, who also lodged a written objection, said onsite that she was particularly concerned about noise and privacy for her property which is some 15m from the dwelling. She believes that the introduction of a rooftop terrace is inconsistent with the existing streetscape and a foreign element. Lisa Ranson, who resides near opposite at 22 Sackville Street, endorsed the objections raised by the other submitters and also opposes the rooftop terrace.

9. The planners’ joint report (Exhibit 5) details the experts’ opinions about the acceptability of the proposal. Noting that in the hearing Mr Betros said that a smaller 16m² terrace further setback from the boundary would be a better alternative. The amended design is outlined in the plan marked Exhibit C.

Overview of the Council’s position

10. The Council contends that the construction of the proposed rooftop terrace is contrary to cl 4.4 of the Randwick Comprehensive Development Control Plan 2013 (DCP). Relevantly, Control (i) of the DCP provides that:

“terraces, decks or trafficable outdoor spaces may be provided in stepped buildings, but must not be provided on the uppermost or main roof of the building (including the principal dwelling and any outbuilding).”

The dwelling at issue in this case is not stepped and terrace is proposed to be constructed on the main roof of the dwelling.

11. Furthermore, based on the evidence of Mr Brewer , the Council’s planner the Council contends that box on the roof will be read as part of the western wall at a height above the 7m wall height control in cl 3.2 of the DCP. Consequently, the structure and balustrade will be visually prominent and highly visible from opposite the site in Sackville Street and down that street.

12. The Council also submits that the design and positioning of the rooftop terrace will not maintain a suitable relationship to the objectors’ dwellings at Nos 9 and 11 Sackville Street - insofar as it will allow direct overlooking to their properties and have the potential to adversely impact upon their existing privacy and amenity. And, this unacceptable amenity impact, it submits will be entirely inconsistent with the R2 Low Density Residential zone objective, set out in Randwick Local Environmental Plan 2012 (LEP), in that the proposed activity and built form will not protect the amenity of the local residents. And, while the applicants have suggested a requirement for a privacy screen along the western boundary to impede overlooking of the adjoining properties, there is no design detail for this element before the Court.

13. Ultimately, the Council maintains that because the development fails to ensure trafficable roof space is integrated with the built form, it cannot maintain a satisfactory privacy relationship with the neighbouring dwellings – which is an objective to cl 4.4 of the DCP. If approved, the Council submits that this rooftop terrace will set an unacceptable precedent in the area, contrary to the public interest.

Overview of the Applicants’ position

14. The applicants invite me to consider this case on its facts. Appreciating that the approved dwelling and the proposed box sits 1.2m below the maximum height limit for the site. In fact, they contend that the proposal before the Court is less bulky than a building built to the maximum height or the permissible integrated rooftop terrace design.

15. Mr Betros describes the development as a modest design. He thinks that it will be barely perceivable from the east and just visible from higher up Sackville Street. Moreover, he believes that any discernible additional height will not generate any inconsistencies with the zone objectives or offend the desired future character of the area generated by the suite of controls in the LEP and DCP.

16. Mr Betros told the Court that in his view the proposed box is akin to a Clerestory window. As such, it is a permissible element under cl 3.2 of the DCP. For that reason, the box must be read and dealt with as separate to the outer wall of the dwelling and not generating a breach of the 7m wall height control. Rather, he is of the opinion that this lightweight transparent box should be viewed as an improvement because it allows more natural light to penetrate into the internalised areas of the dwelling (p 29 of the DCP).

17. At the site, Mr Betros directed my attention to the number of 2 and 3 storey new and newly renovated dwellings within the street which contain balconies and terraces off roofs which, in his opinion, provides excellent amenity and contribute positively to the streetscape. While Mr Betros concedes that there are presently no roof top terraces within the street he does not believe that this fact alone is a reason to refuse this application. Particularly, in circumstances where the proposed development is in his opinion not out of character in the streetscape and does not generate any concerns associated with visual or acoustic privacy. In giving this evidence Mr Betos pointed out the Council’s recent approval of a very similar rooftop terrace at 7 Torrington Road allowed under the same DCP controls. He believes that this recent approval demonstrates flexibility in the application of the DCP controls by the Council. With that in mind, the applicants submit that this is proposal falls squarely within the planning principle articulated by the Court in Super Studio v Waverley Council [2004] NSWLEC 91 at [5]. Accepting that it is not an objectionable development, it should not be refused on the basis of some undesirable precedent.

18. In summary, the applicants’ case is that the design before the Court is reasonable and modest. It is compliant and at least 1.2m below the maximum height control and a much less bulky proposal than a roof element built to the maximum height with a rooftop terrace incorporated. As such, the design generates no unacceptable impacts and achieves the objectives of the DCP controls and the zone and therefore does not set an undesirable precedent.

Conclusion

19. Having appreciated the site in its context at the view and the objectors’ concerns in light of the expert evidence and the planning controls, it is my considered opinion that the proposal is objectionable for the reasons articulated by the Council and its expert Mr Brewer.

20. The proposal, in my assessment, should be refused because the external wall height of the proposed development is excessive. It does not comply with the objectives and controls of the external wall height in cl 3.2 in Part C1 of the DCP.

21. As a result, the dwellings bulk and scale is incompatible with the old and new dwellings in the locality. In forming this view, I do not accept that the proposed box is akin to a clerestory window as understood in the DCP controls or that the wall height should be varied following a consideration of the matters referred to in Control III of the DCP.

22. Rather, as Mr Brewer suggests, the box will be read as an extension of the wall height above the parapet in exceedance of the 7m maximum wall height control. As such, I am not satisfied that the proposal meets the objectives of the building height control in the DCP. In particular, it does not ensure that the development’s height does not cause unreasonable impacts upon the neighbouring dwellings in terms of privacy and visual amenity.

23. The applicant has proposed privacy screen (if necessary) at a height of 1.5 – 1.6 m on the western elevation to address any overlooking, however, there is no specific design before the Court which can be assessed. In any event, as the Council submits, any privacy screen design has the potential to exacerbate the height and bulk of the structure and unreasonably interfere with the amenity of the residence at No. 11.

24. I am also concerned about aural privacy from the use of the terrace. The neighbours have raised this matter and while the applicants submit that the terrace will be used infrequently because of its disconnect to the kitchen and living area in the dwelling it must be recognised that the terrace is accessed from the central hall and stair with a lift operating to the second floor of the dwelling – providing easy access to the rooftop. The terrace is a fair size at 27m² and will allow a large number of people to congregate on it and no doubt generate noise which has the potential to interfere with the amenity of the immediate neighbours in my view. Coupled with the fact that the approved dwelling already has 6 balconies and terraces – 4 of which are considered to be useable and 2 terraces (albeit off bedrooms) providing views to the beach and ocean in varying degrees, I do not think it is reasonable to allow this development given its potential impacts. The available open space within the dwelling as approved is, in my assessment, more than reasonable.

25. The site is visually prominent on a corner lot. The three storey existing dwelling is extensive considering the land area is only 411m² - albeit compliant in terms of FSR. Despite the variation of the height standard being minor in numerical sense, I accept Mr Brewer’s evidence that the development remains inappropriate in a physical sense having regard to the context of the surrounding locality and built form. It is the case that this minor numerical variation, if approved would translate into a built form that is inconsistent with the existing and desired future character of the locality. In that regard, the proposal does not recognise the desirable elements of the existing streetscape and built from (such as integrated roofs and terraces) and, as consequence would not contribute to the desired future character of the immediate locality, or protect residential amenity. Rather, it is at odds with relevant zone objectives and DCP controls that clearly discourage rooftop terraces on this site.

26. I do not accept as the applicants suggest that the Council has abandoned its DCP controls in relation to rooftop terraces by the approval of the terrace at 7 Torrington Road. The context of that development adjoining properties containing rooftop terraces approved under different controls can be distinguished on its facts. Accordingly, the current DCP must be a central focus in my assessment of this application: Zhang v Canterbury City Council [2001] NSWCA 167.

27. With that in mind, it is my considered opinion that an approval of this rooftop terrace would set an undesirable precedent in the immediate locality of the site and this would not be in the public interest.

Orders

28. Accordingly, the orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned with the exception of Exhibit 2.

…………………………………..

S Dixon

Senior Commissioner of the Court

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Decision last updated: 30 November 2018