Lasky D and Milston J v Randwick City Council

[2004] NSWLEC 202

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Lasky D and Milston J v Randwick City Council [2004]  NSWLEC 202

PARTIES:
APPLICANTS
David Lasky and John Milston

RESPONDENT
Randwick City Council

CASE NUMBER:     11184 of        2003

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act
Local Government Act 1919
Randwick Local Environmental Plan 1998

CORAM:        Tuor C.

DATES OF HEARING:        25 - 26/02/2004

EX TEMPORE DATE:          27/02/2004

LEGAL REPRESENTATIVES

APPLICANTS
Mr C McEwen, barrister
SOLICITORS
Kasim and Associates

RESPONDENT
Mr M Fraser, barrister
SOLICITORS
Bowen & Gerathy

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11184 of 2003

Tuor C

27 February 2004

Lasky D and Milston J
Applicant

v

Randwick City Council
Respondent

Judgment

1. This is an appeal against the refusal by Randwick City Council (council) of a development application for alterations and additions to an existing residential flat building at 53 Helena Street, Randwick.  The background to the proposal and a detailed description of the site and its context is contained in the statements of evidence of Mr King, for the council, and Mr Player, for the applicant.

1. The site is zoned residential 2(a) under Randwick Local Environmental Plan 1998 (LEP 1998). A residential flat building or multi-unit housing is prohibited within this zone, however, the proposal gains permissibility by virtue of existing use rights under section 108 of the Environmental Planning and Assessment Act 1979 (EPA Act).

1. Although the question of existing use rights was raised in the Statement of Issues (Issues 2 and 3), the parties agreed that the site enjoys existing use rights and that the provisions of the planning instruments that would derogate from these rights do not apply. Similarly, the proposal’s consistency with the objectives of the 2(a) zone was raised in the Statement of Issues (Issue 1), but the parties agreed that the objectives were only relevant as indicative of the likely future character of the area and that the application is required to be assessed on its merits under section 79C of the EPA Act. 

1. The Court heard expert planning evidence from Mr King, for the council, and Mr Player, for the applicant, and had the benefit of a site inspection where evidence from a number of residents was provided.  The evidence is summarised in Exhibit 9 and supplements the submissions in Exhibits 2 and 5.

1. The key issues raised by the residents and council are:

1.              Whether the proposal to add an extra floor containing two units over part of the existing building will result in a building of appropriate height, bulk and scale for the site and its context.

2.              Whether the additional floor and other changes would have an acceptable impact upon the amenity of the residences to the east of the site across Canberra Lane, fronting Canberra Street, and the residential flat building to the west of the site, 41-59 Helena Street.

1. In relation to the issue of height and the resultant bulk and scale, the experts agreed that the area is characterised by a mixture of detached housing and older style three to four storey residential flat buildings.  They disagreed on whether the proposal was an appropriate response to this mixed character.

1. In Mr Player's opinion, the increase in height by about 2.5 m (ridge height RL 65.13m) formed an appropriate transition between the two adjoining properties in Helena Street, namely: the townhouses to the east (ridge height RL 62.5 m) and the residential flat building to the west (ridge height RL 66.6 m).  In his opinion the proposal was also consistent with the character of the immediate locality, which contained other flat buildings across Helena Street.

1. The relationship between the dwellings in Canberra Lane and the proposal was acceptable to Mr Player due to the separation between the buildings and the increase in height being only over part of the building. He said that this did not significantly add to the bulk of the development when viewed from the properties off Canberra Lane as they already view the bulk of 49-51 Helena Street.  The proposed addition would effectively screen this building and was therefore acceptable in his opinion.

1. While Mr King accepted that the proposal was consistent with the established character of the locality he did not consider that the development would form an appropriate transition in Helena Street.  He also expressed concern that the proximity of the proposal with 49-51 Helena Street was uncharacteristic of this area as there would generally be greater separation between two flat buildings of the height proposed.

1. In relation to the development being an overdevelopment of the site, Mr King held the view that the reduction in landscaped area to provide garages and the additional height would result in an overdevelopment of the site. 

1. Mr King's opinion and that of Mr Keeley, the owner of 28 Canberra Street, Randwick, was that the existing building on the site was the maximum that would have been permissible under the applicable planning controls at the time of its approval being Sch 7 of the Local Government Act 1919.  The conclusion they drew from this was that the proposed additional storey represented an overdevelopment of the site. I do not accept that this automatically follows. Under the current planning framework, the existing use rights that the parties agree the site enjoys, require an assessment of the merits of the application within the context of the site and the likely impacts of the development.  I find that the addition of extra storey is consistent with its context and does not represent an overdevelopment of the site.

1. In reaching this conclusion I note that there are other residential flat buildings in the immediate vicinity, including the one next door at 49-51 Helena Street.  I accept that the proposal forms a transition in height between the townhouses and the flat building and, when viewed from Canberra Lane, it will not result in a material increase in the perception of bulk due to the existing backdrop of 49-51 Helena Street.

1. The reduction in landscaping does not result in an overdevelopment of the site when balanced against the landscape improvements that will occur to soften and screen the building. The current use of the landscaped area to be removed is a drying area, and its location is off East Lane where the height of the building is not being increased.  I therefore find the bulk and scale of the proposal to be acceptable.

1. The main amenity issues raised by council and the residents were: overlooking; overshadowing; traffic and parking; loss of views or outlook.  In relation to overlooking, the applicant suggested conditions to address the concerns expressed by the residents about the potential for increased overlooking into their properties, particularly the outdoor areas, balconies and the rear of the houses off Canberra Lane.  The experts agreed that these conditions ameliorated the overlooking impacts of the proposal.  These conditions include the deletion of the Juliet balconies, the addition of screening to the east side of the south-east balcony, screens to the east and west of the balcony off unit 9 and the garage roof terrace, and angled louvres to the additional windows or increased openings that will prevent overlooking.

1. The applicant also agreed to screening to the north of the garage roof terrace, if I found this to be necessary. No planter box is proposed adjacent to the stairs of this terrace, which is a few metres from the main bedroom to unit 1.  The roof terrace over the existing garage proposes a planter box to the north but the terrace still looks directly into the balcony and living area of unit 1.  I therefore agree that the screen to the north should be provided and have amended the condition accordingly.  I am satisfied that these measures adequately address the likely overlooking impacts of the proposal.

1. In relation to overshadowing, the experts agreed that the increased height of the building would result in additional morning overshadowing from around 9.00 to 9.30 of some windows at 49-51 Helena Street and afternoon overshadowing of the open space of some properties on Canberra Street from around 3 pm.  The experts agreed that this additional overshadowing was minor and not a reason to refuse the application.  I accept their conclusions.

1. The existing residential flat building provides one garage for each unit which is accessed off Canberra Lane. Due to the slope of the land from north to south, five garages are at ground level at the southern end of the building, three garages are provided in a separate single storey structure at the south-east corner of the site.  Two additional garages are proposed off East Lane and three existing garages are to be widened.  The evidence of residents was that these three garages, due to their small width, were not used, other garages were also thought not to be used.

1. The residents expressed concern that the occupants and visitors to the residential flat building already parked in the lane and blocked their driveway or made it difficult for them to access their garages.  They considered that the traffic generated by the two additional units would exacerbate a situation that already caused problems.

1. The experts agreed that the existing and proposed development did not provide the amount of parking that would be required under council's DCP, were it to apply.  They did not agree on the extent of the shortfall or on its likely impact.  Mr King's opinion was that the shortfall in parking would result in traffic management problems, such as, manoeuvring and traffic conflicts in Canberra Lane and East Lane.  Mr Player held the contrary view that the minor shortfall in onsite parking for the proposal can be readily accommodated in local streets, particularly Helena Street.

1. Neither party provided expert traffic evidence on this issue.  The main question before the Court is whether the proposed development is likely to exacerbate any parking problems that already exist. In answering this I accept that the widening of the three existing garages and the installation of automatic opening doors to all the garages is likely to result in the existing garages being used, which are currently not used.  The addition of two extra garages to address the extra demand generated from the two additional units is reasonable considering that it is an existing building, the constraints on the site and the availability of parking in Helena Street.

1. I therefore accept the development is not likely to worsen the existing parking situation and may improve it.  The installation of "No Parking" signs in Canberra Lane is a matter that may be appropriate for council to consider to address the issues raised by the residents about parking and manoeuvrability in the lane that already exist.

1. The additional storey will impact on the views or outlook enjoyed by some units in 49-51 Helena Street.  The units most affected are those on the northern end of the top floor, units 5 and 6, and to a lesser extent, unit 7.  The layout of these units is that the kitchens and dining areas face east and the living areas face west.  These areas are contiguous and therefore have windows on both sides.  Unit 5 also has windows from its living area to the north.

1. The proposed additional storey and roof will impact on the outlook or views from these units to the east.  These views are currently over the roof of 53 Helena Street to the properties in Canberra Avenue and beyond to the buildings and trees of the locality.  I do not accept the distinction between a view and outlook proffered by the experts or that the impact is minor because it is only an outlook and not a view, that is enjoyed.

1. Essentially the outlook or view from these apartments is something that adds to the amenity and enjoyment of the occupiers.  It is therefore valid to assess the impact on what currently exists and to assess if it is reasonable.  In doing this I consider that the planning principles that generally apply to view sharing are relevant.  The proposal will remove almost all the view to the east from these two apartments with the top of the trees, some rooftops and the sky remaining in the distance.  However, the units will still enjoy their views to the west and, in the case of unit 5, to the north.

1. While I consider the loss of views to the east to be a negative feature of the proposal, of itself it is not sufficient to warrant refusal, particularly as the impact cannot be mitigated except through the removal of the additional floor.  The experts agreed that the replacement of the proposed pitch roof with a flat roof would not provide any significant improvements to the outlook of these units and I have therefore not pursued this option.

1. The proposal does not have any real impact on the units at level 2 of 49-51 Helena Street, as these already look into the subject building.  The additional height results in a minor loss of sky view but I accept the experts' opinion that this impact is minimal and can easily be balanced against the improvements to the units’ outlook through the proposed landscaping and upgrading of 53 Helena Street.

1. The residents also raised the issue that in purchasing their properties it was reasonable to expect that further development of the existing residential flat building, which increased its height, would not occur due to its residential 2(a) zoning and the planning controls.  The evidence of Mr King was that if planning advice were sought the residents would be advised of the existing use rights enjoyed by the property and the implications for future development.

1. Mr McEwen's submission, for the applicant, was that the residents' expectations that the building had maximised its development potential was unreasonable.  I do not accept the submission on the basis that seeking planning advice, other than a section 149 certificate when purchasing a property, is not the norm and that it is reasonable to expect that a 2(a) zoning would generally indicate the type and intensity of development permissible within the zone. 

1. Nonetheless, while I understand the residents' frustration, the planning framework under which the application must be assessed is one where the proposed development is permissible and on its merits I have concluded has an acceptable impact. The changes to the building, particularly the landscaping, are likely to improve the existing building and benefit the area.  The only real impact of the proposal is to the two units at 49-51 Helena Street and this is not of such magnitude to warrant refusal of the application.

1. I accept Mr McEwen's submission that approval of this application does not of itself establish a precedent for other residential flat buildings in this zone, as any application would need to be assessed on its merits with regard to its context and impacts.  However, if council were concerned, it may consider the permissibility of the existing residential flat buildings within the 2(a) Zone as it is only by the prohibition of a use that existing use rights are created. Presumably it is feasible to prohibit the development of new residential flat buildings within the zone while maintaining the permissibility of those that already exist and therefore ensure that future development of the existing buildings is within a framework that is clearly articulated and publicly exhibited.
   
   Order

1. The orders of the Court are therefore:

1.The appeal is upheld.

2.Development application No. 1219/02 for alterations and additions to an existing residential flat building at Lot 28 DP512443, known as 53 Helena Street, Randwick, in accordance with plans numbered issue B of DA1/6 - DA3/6, DA5/6 and DA6/6, stamped and received by Council on 12 June 2003, and Issue A, G1/1, project No. 02:270, is determined by the grant of development consent subject to the conditions as set out in Annexure “A”.

3.The exhibits, except Exhibits B, E and 6, may be returned.

_______________
Annelise Tuor
Commissioner of the Court