Leroma Pty Ltd v Randwick City Council

[2018] NSWLEC 1073

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Leroma Pty Ltd v Randwick City Council [2018] NSWLEC 1073

Hearing dates:

15-16 February 2018

Date of orders:

15 March 2018

Decision date:

20 February 2018

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

 The orders of the Court are:

1.    The appeal is upheld.

2.    Development Application No. 13/2017 for the demolition of all existing structures on the site and construction of a residential flat building including a component of affordable rental housing at 43-45 Dudley Street, Coogee, is approved, subject to the conditions of consent at Annexure A.

3.  The exhibits, other than exhibits 1 and G, are returned.

Catchwords:

DEVELOPMENT APPLICATION: residential flat building; component of affordable rental housing; whether proposal is compatible with the character of the locality; setbacks; wall height; and visitor parking.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Leroma Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
Mr A. Galasso SC (Applicant)
Mr R. O’Gorman-Hughes (Respondent)

  Solicitors:
Hones Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2017/95359

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 13/2017 for the demolition of all existing structures on the site and construction of a residential flat building including a component of affordable rental housing (the proposal) at 43-45 Dudley Street, Coogee (the site) by Randwick City Council (the Council).

2. The appeal was subject to mandatory conciliation on 9 August 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 8 September 2017, pursuant to s 34(4) of the LEC Act.

3. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to rely on an amended proposal (exhibit B). The Council was satisfied that the amendments made to the proposal satisfactorily addressed the issues regarding the quantity of parking provided, drainage and flooding and safety. A further set of plans was tendered (exhibit M) which reflected the planning experts’ agreement regarding external privacy screening on the eastern elevation and increased the plantings in the rear portion of the eastern side setback.

Issues

4. The Council’s contentions can be summarised as:

• Two car parking spaces should be dedicated to visitor parking;

• The proposal is incompatible with the character of the local area for the following reasons:

- The side and rear setbacks are insufficient and do not comply with the planning controls. As a result, the visual bulk of the proposal is excessive and the proposal provides inadequate building separation to the adjoining building to the east;

- There is insufficient soft landscaping provided in the western and northern setbacks;

- The external wall height does not comply with the planning control, which contributes to the overall bulk and scale of the proposal;

• The proposal results in privacy impacts to the residential flat building to the east as a result of the location of windows and balconies;

• It has not been demonstrated that the proposal will not have an unacceptable impact on views from nearby properties towards Coogee Bay;

• Approval of the proposal will establish an undesirable precedent.

The site and its context

5. The site is on the northern side of Dudley Street, Coogee, on the block bounded by Brook Street to the west and Asher Street to the east. The rear boundary of the site fronts Havelock Avenue.

6. The site is comprised of two allotments, irregular in shape, with a total area of 847.2m2. The existing allotments each contain a two storey building.

7. There is a three to four storey contemporary residential flat building on the adjoining site to the east.

8. The site adjoins the boundary of 41 Dudley Street and the rear boundary of 135 Brook Street to the west.

Background and the proposal

9. The proposal is for a four storey residential flat building with two levels of basement car parking for 19 cars, accessed from a driveway from Dudley Street.

10. The proposal consists of the following accommodation:

• Ground floor units 1 – 5, including two 1 bedroom units and three 2 bedroom units;

• First Floor units 6 – 9 and the living area of unit 5, including one 1 bedroom unit and three 2 bedroom units;

• Second Floor units 10 – 15, one studio, two 1 bedroom units and three 2 bedroom units;

• Third Floor bedrooms of units 11 – 13.

11. Units 2 (1 bed), 4 (2 bed), 5 (2 bed), 6 (2 bed), 7 (1 bed), 8 (2 bed), 9 (2 bed), 14 (1 bed) and 15 (studio) are affordable rental housing units (exhibit 5, condition 2) and comprise 49% of the total gross floor area of the proposal (exhibit F).

Planning framework

12. The development application is made pursuant to cl 10 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”).

13. The relevant aims of SEPP ARH are as follows:

3 Aims of Policy

The aims of this Policy are as follows:

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

14. The relevant terms of cl 13 of SEPP ARH are as follows:

13 Floor space ratios

(1) This clause applies to development to which this Division applies if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20 per cent.

(2) The maximum floor space ratio for the development to which this clause applies is the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which the development is to occur, plus:

(a) if the existing maximum floor space ratio is 2.5:1 or less:

(ii) Y:1—if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent,

where:

AH is the percentage of the gross floor area of the development that is used for affordable housing.

Y = AH ÷ 100

15. Clause 14 of SEPP ARH is in the following terms:

14 Standards that cannot be used to refuse consent

(1) Site and solar access requirements

A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(b) site area

if the site area on which it is proposed to carry out the development is at least 450 square metres,

(c) landscaped area

if:

(ii) in any other case—at least 30 per cent of the site area is to be landscaped,

(d) deep soil zones

if, in relation to that part of the site area (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed:

(i) there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area (the deep soil zone), and

(ii) each area forming part of the deep soil zone has a minimum dimension of 3 metres, and

(iii) if practicable, at least two-thirds of the deep soil zone is located at the rear of the site area,

(e) solar access

if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.

(2) General

A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(a) parking

if:

(ii) in any other case—at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom, at least 1 parking space is provided for each dwelling containing 2 bedrooms and at least 1.5 parking spaces are provided for each dwelling containing 3 or more bedrooms,

(b) dwelling size

if each dwelling has a gross floor area of at least:

(i) 35 square metres in the case of a bedsitter or studio, or

(ii) 50 square metres in the case of a dwelling having 1 bedroom, or

(iii) 70 square metres in the case of a dwelling having 2 bedrooms, or

(iv) 95 square metres in the case of a dwelling having 3 or more bedrooms.

(3) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

16. Clause 16A of SEPP ARH is as follows:

16A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area

17. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (“SEPP 65”) applies to the proposal at cl 4(1)(a)(i). The Apartment Design Guide (“ADG”) is a relevant consideration at cl 28(2)(c) of SEPP 65.

18. The aims for building separation, at 2F of the ADG, are as follows:

• ensure that new development is scaled to support the desired future character with appropriate massing and spaces between buildings

• assist in providing residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook

• provide suitable areas for communal open spaces, deep soil zones and landscaping.

19. According to the ADG at 2F, half the separation distance between buildings is to be applied to the site, measured from the side boundary. Consideration is to be given to separating buildings up to four storeys by 12m between habitable rooms and balconies, 9m between habitable and non-habitable rooms and 6m between non-habitable rooms.

20. According to the ADG at 3F, new development adjacent to existing buildings should provide adequate separation distances to the boundary in accordance with the design criteria.

21. According the ADG at 4A, a maximum of 15% of apartments in a building should receive no direct sunlight between 9am and 3pm at mid-winter.

22. The site is zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (“LEP 2012”). Residential flat buildings are permissible in the R3 zone with consent. The relevant zone objectives for the R3 zone are:

• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

• To encourage housing affordability.

23. The floor space ratio (FSR) development control for the site is 0.9:1 (Floor Space Ratio Map Sheet FSR _007 LEP 2012) and the height of buildings development standard for the site is 12m (Height of Buildings Map Sheet HOB_007 LEP 2012).

24. Randwick Comprehensive Development Control Plan 2013 (DCP 2013) includes, at C2 Medium Density Residential, the following relevant objectives and controls:

3.4 Setbacks

Side and rear setbacks are devised to ensure an adequate level of building separation, and to provide for access, landscaping, privacy and natural lighting and ventilation for both the new development and the adjoining properties.

Measurement Rules:

Setback distances are measured perpendicular (that is, at 90 degrees angle) from the boundary to the outer face of the building elevation…

Objectives

• To define the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that contributes to the local character. • To ensure adequate separation between buildings for visual and acoustic privacy, solar access, air circulation and views.

• To reserve contiguous areas for the retention or creation of open space and deep soil planting.

3.4.2 Side setbacks

Controls

Residential flat buildings

(i) comply with the minimum side setback requirements stated below for residential flat buildings

3.4.3 Rear setbacks

Controls

(i) For residential flat buildings and multidwelling housing, provide a minimum rear setback of 15% of allotment depth or 5m, whichever is the greater.

iii) The required rear setback may be varied in the following scenarios:

Allotments with an irregular shape.

Allotments with the rear boundary abutting a laneway.

4.3 Habitable Roof Space

Controls

i) Habitable roof space may be considered, provided it meets the following:

• Has a maximum floor space of 65%of the storey immediately below.

• Wholly contain habitable areas within the roof space.

• When viewed from the surrounding public and private domain, the roof form (including habitable roof space, associated private open space and plant and machinery) has the appearance of a roof. A continuous flat roof with habitable space within it will not satisfy this requirement.

4.4 External wall height and ceiling height

Explanation

In addition to the RLEP maximum building height, which sets out the absolute height of the development including roof and all plant equipment, the following wall height and ceiling height controls supplement the LEP to ensure that development provides for a suitable number of storeys and encourages interesting roof forms suitable to the streetscape.

Definition:

“Wall height” is the vertical distance as measured from the ground level (existing) to the topmost point of an external wall.

Objectives

• To ensure that the building form provides for interesting roof forms and is compatible with the streetscape.

• To ensure ceiling heights for all habitable rooms promote light and quality interior spaces.

• To control the bulk and scale of development and minimise the impacts on the neighbouring properties in terms of overshadowing, privacy and visual amenity. Controls

i) Where the site is subject to a 12m building height limit under the LEP, a maximum external wall height of 10.5m applies.

5.3 Visual Privacy

Objectives

• To ensure a high level of amenity by providing for reasonable level of visual privacy for dwellings and neighbouring properties.

• To ensure new development is designed so that its occupants enjoy visual and acoustic privacy, whilst maintaining the existing level of privacy of adjoining and nearby properties.

Controls

i) Locate windows and balconies of habitable rooms to minimise overlooking of windows or glassed doors in adjoining dwellings (whether part of the development or on adjoining properties). Refer to the figure above on techniques to protect privacy.

ii) Orient balconies to the front and rear boundaries or courtyards as much as possible. Avoid orienting balconies to any habitable room windows on the side elevations of the adjoining residences.

Public submissions

25. Five resident objectors provided evidence at the commencement of the hearing on-site, and the Court in the company of the parties viewed the site from an apartment on the southern side of Dudley Street that looks across the site to the north-east and an apartment in the adjoining residential flat building at 53 Dudley Street, to the east of the site. The concerns of the residents can be summarised as:

• LEP 2012 and DCP 2013 should not be overridden by SEPP ARH;

• SEPP ARH is flawed because it permits more dense development that does not provide affordable housing;

• The proposal is incompatible with the character of the local area due to its bulk;

• The proposed parking is inadequate as parking in the street is in high demand;

• Older development should not be used to justify the bulk and scale of new development;

• The proposal will impact the privacy of the western apartments in the neighbouring residential flat building at 53 Dudley Street to the east of the site;

• The proposed windows facing Dudley Street are too large;

• The non-trafficable roof areas can be converted to trafficable areas in the future with a modification application.

Expert evidence

26. The applicant relied on the expert evidence of Mr Anthony Betros (planning) and Mr Oleg Sannikov (traffic). The Council relied on the expert evidence of Mr Steven Layman (planning) and Mr Jason Rider (traffic).

27. The parties’ arboricultural experts, Mr Kyle Hill for the applicant and Mr David Meredith for the Council (joint expert report, exhibit 4) agreed on conditions of consent for the protection of the Bangalay (T3) at the rear of the site and they were not required to give oral evidence.

Consideration

Affordable Rental Housing

28. The parties agree that cl 13(2)(ii) of SEPP ARH applies to the proposal permitting a bonus FSR of 0.49:1, as 49% of the gross floor area (GFA) of the proposal is used for affordable housing, subject to the requirements of SEPP ARH being met. GFA does not include any car parking, at sub-cl (3). The proposal complies with the total FSR of 1.39:1.

29. Standards that cannot be used to refuse consent are included in the terms of cl 14 of SEPP ARH. The consent authority may consent to development which does not meet the standards set out in cl 14, at sub-cl (3). It was uncontroversial that the proposal meets the following standards:

• The site is at least 450m2 at (1)(b);

• 32.6% of the site area is to be landscaped (exhibit B, DA27), which exceeds the requirement at (1)(c)(ii);

• 19.9% of the site area (exhibit B, DA27) meets the requirements for the deep soil zone at (1)(d), including having a minimum dimension of 3m and at least two-thirds being located at the rear of the site;

• 19 car parking spaces are provided, which meets the requirement at (2)(a)(ii); and

• The dwelling sizes meet the minimum areas at (2)(b).

30. I accept the applicant’s submission that the provision of parking for a proposal made under SEPP ARH is the minimum to meet the requirements at cl 14(2)(a) applied to the whole residential flat building development, and if cl 14(2)(a) is met, then the provision of parking cannot be used to refuse consent.

Visitor parking

31. The Council accepts that the parking requirement under SEPP ARH is met by the proposal with 19 car parking spaces accommodated in the basement and the dispute centres on the allocation of those car parking spaces. The Council contends that 2 of the 19 car parking spaces should be dedicated to visitor parking.

32. According to Mr Sannikov, the parking demand by residents is longer in terms of timing than that of visitors, so all the car parking spaces should be allocated to residents, as visitors can park on the street where there are parking restrictions.

33. According to Mr Rider, the parking requirement for a residential flat building without a component of affordable rental housing would include 4 visitor parking spaces. Mr Rider concedes that as there is public transport close by, two or three visitor car parking spaces would suffice.

34. I prefer and accept Mr Sannikov’s reasoning. The 19 car parking spaces are to be allocated such that each unit has at least one car parking space and four of the two bedroom units have two car parking spaces.

Eastern side setback

35. The minimum side setback control at 3.4.2 of DCP 2013 is provided in the table, reproduced at paragraph 23 above. The minimum side setback is based on the site frontage width. The site frontage width of the site is 15.24m, which requires a minimum side setback of 2.5m (for a regular allotment).

36. The Council submits that the site is an “irregularly shaped allotment”, so there should be some relaxation of the control where the site is not 20m, however, a 4m setback should be provided where the site is at least 20m wide.

37. The applicant submits that the site frontage and the eastern side boundary are not irregularly shaped, so the minimum 2.5m side setback based on the width of the site frontage should be applied as a minimum side setback on the eastern side.

35. The Council’s argument would be tenable if the table stated “Site Width”. However, as the minimum side setback control is based on the dimension of the site frontage, one cannot then apply the site width progressively along the site to determine the side setback relative to the varying width of the site, because the width of the site is not the determinant of the minimum side setback, instead it is the width of the site frontage that determines the minimum side setback. I accept the applicant’s argument that the site frontage is the Dudley Street frontage and the Havelock Avenue boundary is most accurately characterised as a rear boundary.

36. The category for “Irregularly shaped allotments” is highly ambiguous, given that the control is based on a site frontage dimension. Nevertheless, I accept the Council’s argument that the site is most appropriately described as an irregularly shaped allotment because the Dudley Street boundary is 15.24m, the Havelock Avenue boundary is 29.665m, the eastern boundary (which is very close to a right angle to the front boundary) is 38.8m at an approximate angle of 180 degrees and the western boundary is 39.685 at an approximate angle of 323 degrees (exhibit D). The minimum site setback is therefore subject to a merit assessment.

37. The proposal is appropriately orientated to Dudley Street and therefore parallel to the eastern boundary, which reflects the orientation and front setback of the adjoining residential flat building at 53 Dudley Street. The buildings to the west of the site have a frontage to Brook Street. The proposal has an eastern side setback on the ground level of 3.69m for the front portion of the development, to accommodate the driveway access to the basement, and 3m for the rear portion of the development. The proposal has an eastern side setback on the first and second floors of 3m for a section of the front portion of the development and 3.5m for the rear portion of the development. The uppermost floor is a roof like element setback behind the parapet of the primary form of the development, with an eastern side setback of 6m and a non-trafficable roof on the eastern side.

38. I accept that the eastern side setback is an important factor in assessing the appropriateness of the overall scale of the building envelope. I am persuaded that the eastern side setback is acceptable, for the following reasons:

• The frontage width of 53 Dudley Street is 36.5m with a western side setback of 3.9m, which is consistent if not strictly compliant with the control for side setbacks at 3.4.2 of DCP 2013;

• The site has a much narrower frontage of 15.24m, which would require a minimum side setback of 2.5m for a regular allotment. The proposal directly fronts Dudley Street (as the front façade is parallel to the street boundary), so the front elevation of the proposal is of a scale commensurate to the dimension of the frontage width. Therefore a narrower side setback, when compared to 53 Dudley Street, is consistent with the intention of the table at 3.4.2 of DCP 2013 to provide a more generous setting to allotments with wider street frontages;

• The orientation of the proposal to Dudley Street results in the proposal aligning in orientation with the eastern boundary, making the western boundary the splayed boundary, where the proposal steps out behind the street façade progressively towards the rear of the site;

• I am satisfied that the amendments made to the proposal in exhibit M ameliorate any privacy impacts to the residents in the units on the western side of 53 Dudley Street;

• The 4m sought by the Council for the eastern side setback would not provide any advantage over the 3.5m proposed eastern side setback for the first and second floors in terms of privacy impacts on 53 Dudley Street;

• The proposal fulfils the relevant aims of SEPP ARH quoted above at paragraph 13 and the relevant zone objectives quoted above at paragraph 22. The bonus FSR under SEPP ARH is accommodated by the proposal without breaching the height development standard and the envelope of the proposal is consistent with the scale of development in the locality.

Other setbacks

42. I am satisfied that the proposed rear and western setbacks are acceptable.

43. The rear setback need not be consistent with the rear setback of 53 Dudley Street because 53 Dudley Street does not have a rear boundary to Havelock Avenue. The rear setback of the proposal is consistent with the established character of Havelock Avenue. The mature trees at the rear of the site are retained by the proposal and the rear setback is landscaped. The rear façade of the proposal complies with the rear setback control at 3.4.3 of DCP 2013 requiring a minimum rear setback of 15% of the allotment depth. The encroachment of balconies into that rear setback is acceptable because the rear boundary is Havelock Avenue, so the balconies at the rear of the proposal do not pose a potential amenity impact on any existing or future development to the rear of the site.

44. The western side setback varies along the western façade of the proposal as the proposal is orientated to the front boundary and aligns in orientation with the eastern boundary. The adjoining properties to the west front Brook Street and currently have hard surfaces at the rear of each lot. The western façade is further setback from the side boundary at the entry to the building to create a sense of arrival and denote the building entry with an external paved court. The western side setback is landscaped around the pedestrian entry path to the site. I am satisfied that the western side setback is appropriate and although there are some small encroachments into a 3m side setback, the overall mass of the building provides a generous sense of separation on the western side between the development and the buildings fronting Brook Street.

Privacy

45. Amendments made to the proposal in exhibit M successfully address the overlooking and privacy impacts on the units on the western side of 53 Dudley Street. Those three units on each level orientate to the front and rear of the building, with windows in the western façade to secondary bedrooms, bathrooms and kitchens. The vulnerable location for privacy impacts at 53 Dudley Street is the rear courtyard of the ground floor unit and the balconies at the rear of the building on the first and second levels. The exhibit M proposed vertical fixed louvres to the eastern elevation, including the living room windows and rear balconies of unit 8 on the first floor and unit 12 on the second floor, and the vertical fixed external louvres to the living room window of unit 13 on the second floor, successfully ameliorate the risk of occupants of those dwellings overlooking the rear balconies and rear courtyard of 53 Dudley Street, whilst maintaining an outlook from those units towards the north-east.

46. The 4m sought by the Council for the eastern side setback would not provide any advantage over the 3.5m proposed eastern side setback for the first and second floors in terms of privacy impacts on 53 Dudley Street, because the proposal would still require some screening for the windows and balconies of the rear portion of the western elevation to protect the privacy of the rear courtyard and balconies of 53 Dudley Street.

47. I am satisfied that there are no privacy impacts to 53 Dudley Street caused by the proposal on the ground floor level, because there is a dividing fence at ground level and generous plantings existing on the 53 Dudley Street side and proposed on the site.

48. The addition of the planter to the balcony of unit 13 successfully ameliorates any privacy impacts between the proposal and the western façade of 53 Dudley Street, because the balcony is setback 6m from the side boundary, in excess of the 4m sought by the Council. It would be an unnecessary imposition on the amenity of unit 13 to add screening to the balcony.

49. The proposed window over the kitchen bench added to unit 9 in exhibit M to ensure the unit receives solar access on the winter solstice does not pose a significant privacy issue, because the units on the western side of 53 Dudley Street primarily orientate to the front and rear of the site. Inevitably there will be some overlooking between adjoining residential flat buildings, and views of the adjoining building from or to bedrooms and kitchens can be obstructed with window coverings if desired.

Solar access

50. I accept Mr Betros’ evidence that the proposal achieves the ADG threshold of a maximum of 15% of apartments receiving no direct sunlight between 9am and 3pm at mid-winter. Unlike the objective and criterion 1, this criterion specifies that 85% of apartments in a building are to receive direct sunlight, but does not require access to sunlight in any particular room or space. Therefore the receipt of sunlight through the kitchen window of unit 9 between 9am and 3pm at mid-winter means that unit 9 is excluded from the tally of units that receive no sunlight at mid-winter. The more onerous requirement in criterion 1 requiring 3 hours of direct sunlight to specific areas of each apartment has a lower threshold of 70% of the total number of apartments. The purpose of the criteria are to ensure that at least 70% of apartments in a development meet criterion 1, and a further 15% of those apartments that do not meet criterion 1 at least have access to some sunlight on the winter solstice.

External wall height control

51. The maximum external wall height is 10.5m, at 4.4 of DCP 2013.

52. The proposal has an uppermost level, clad in metal sheeting and setback behind a small parapet to the masonry base of the primary building form. The uppermost level contains bedrooms to three units on the levels below and has a floor area which is 39% of the floor area of the level immediately below. I am satisfied that the uppermost floor is consistent with the controls for habitable roof space in DCP 2013 at 4.3, as it has the appearance of a roof form and occupies a significantly smaller floor area than the floor area of the level immediately below.

53. Although the proposal does not strictly comply with the prescriptive terms of the external wall height controls at 4.4 of DCP 2013, I am satisfied that the proposal meets the objectives of the controls for external wall height and ceiling height for the following reasons:

• The proposal has an interesting roof form and is compatible with the streetscape, as it is clad in a roofing material and forms a pop up element towards the rear of the building envelope;

• The bulk and scale of the proposal is acceptable;

• The proposal, including the uppermost level, complies with the height of buildings development standard of 12m;

• The uppermost level is sited approximately 7.5m behind the Dudley Street façade, in order to maintain views from the opposite side of Dudley Street towards Coogee Bay, across the site.

• The height of the small parapet to the masonry base of the primary building form is significantly lower than the external wall height control in DCP 2013, which assists in maintaining views across the site from apartments on the opposite side of Dudley Street;

• A more conventional roof form that strictly complied with the controls in DCP 2013 would have added additional bulk to the building envelope of the proposal and obstructed a greater portion of the views from apartments on the opposite side of Dudley Street.

View impacts

54. Changes made to the position of the uppermost floor in exhibit B successfully ameliorated the impact of the proposal on views of Coogee Bay from apartments on the opposite side of Dudley Street. I accept Mr Betros’ evidence that any impact on those views by the proposal will be minor.

Conclusion

55. The statutory regime under SEPP ARH provides additional floor space for proposals that include the required portion of affordable rental housing for a period of 10 years. I am satisfied that the additional floor space permitted under SEPP ARH is accommodated by the proposal within a building envelope that is compatible with the character of the local area, because the proposal complies with the height development standard in LEP 2012 and is scaled to support the desired future character of the locality with appropriate massing and spaces between buildings.

56. I am satisfied that the proposal is consistent with the aims of SEPP ARH and the R3 zone objectives.

Directions

57. The applicant is to file and serve the following architectural plans, including a pdf copy, by Monday 26 February 2018:

• Architectural plans as shown in exhibit M, with the red dotted lines “extent of DA envelope” deleted and red and blue dotted lines indicating sun angles deleted; and

• Revised landscape plan exhibit N to include the additional vegetation along the rear portion of the eastern boundary shown in exhibit M.

58. The Council is to file agreed conditions of consent by Monday 5 March 2018.

59. Liberty to restore on two days’ notice. Orders will be made in chambers.

Addendum 15 March 2018

60. Directions were handed down on 20 February 2018 requiring the following amendments to the proposal:

• Architectural plans as shown in exhibit M, with the red dotted lines “extent of DA envelope” deleted and red and blue dotted lines indicating sun angles deleted; and

• Revised landscape plan exhibit N to include the additional vegetation along the rear portion of the eastern boundary shown in exhibit M.

61. The applicant filed the amended plans on 13 March 2018 and the Council filed agreed conditions of consent on 14 March 2018.

Orders

62. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 13/2017 for the demolition of all existing structures on the site and construction of a residential flat building including a component of affordable rental housing at 43-45 Dudley Street, Coogee, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibits 1 and G, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (283 KB, pdf)

**********

Amendments

20 March 2018 - Addendum made on 15 March 2018

Decision last updated: 20 March 2018