Martin and Spork Pty Limited v Randwick City Council

[2015] NSWLEC 1018

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Martin & Spork Pty Limited v Randwick City Council [2015] NSWLEC 1018
Hearing dates:	18 November and 15 December 2014 and 27 January 2015
Decision date:	13 February 2015
Jurisdiction:	Class 1
Before:	Whelan AC
Decision:	See (53) to (55)
Catchwords:	DEVELOPMENT CONSENT: modification application; amenity; parking; prohibition of use; use of covenant in favour of Council
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Sheer Property Group Pty Ltd & anor v Randwick City Council [2013] NSWLEC 1168
Category:	Principal judgment
Parties:	Martin & Spork Pty Limited (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister (Applicant) Mr N Eastman, barrister (Respondent) Solicitors: Lawson Plowes Lawyers (Applicant) Norton Rose Fulbright Australia (Respondent)
File Number(s):	10695 of 2014

Judgment

Introduction

1. This is an appeal pursuant to section 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against a condition imposed by Randwick City Council (the Council) in the Council’s approval of a modification application made pursuant to s 96AA of the Act. The modification application concerns premises at 143-145 Mead Street, Coogee. The modification application sought consent to internal modifications to the layout of units 3 and 4 of the approved development. The internal modifications for which approval was sought were for the conversion of the approved dining space to a media room/study for each unit.

The contested condition

2. The condition that is sought to be deleted through these proceedings is condition 2(b) attached to the approval of the modification application. This condition is in the following terms:

Plan number: 1217-DA-04, by Martin & Spork Pty Ltd, dated 29/4/14, revision J must be amended to delete of the sliding doors to the media/study spaces of units 3 and 4 and the deletion of the nib walls along the hallway. The internal dimension of the media/study spaces shall be reduced to a maximum of 2m including any cupboards. This must be achieved by shifting the western wall of the kitchen to each apartment to the west by the distance required to provide for a 2m internal width dimension to the media/study space. These changes are shown in red on the approved set of plans. Details are to be submitted to the Manager Development Assessment for approval prior to the issuing of a construction certificate.

3. The reason given for condition 2, in its totality, was:

This is to ensure that the living and media/study spaces are of adequate dimension to be used for their purpose and to ensure that the media/study spaces are not capable of use as bedrooms.

The hearing and site inspections

4. The hearing commenced on the first day with an inspection of the site and its immediate surrounding streetscape. The hearing was adjourned at the end of the first day (18 November 2014); recommenced on 15 December and, as it was not concluded that day, was adjourned to permit completion of submissions from the advocates for the parties, Mr Staunton, barrister for the applicant, and Mr Eastman, barrister for the Council.

5. Prior to the final stage of the hearing on 27 January 2015, I indicated to the parties that I would be benefited if I undertook a further brief site inspection before the completion of closing addresses and such an inspection took place before we returned to court for finalisation of the submissions.

The competing positions of the parties

6. Although the dispute between the applicant and the Council is of a comparatively limited nature, it is convenient to set out, first, the underlying positions of the parties and, second, what each side says is the appropriate way that the concerns of the Council that underlie the dispute are capable of being remedied.

7. Put simply, the Council's concern is that, despite the fact that the modification application form (a copy of which was appended to the Class I appeal papers) clearly states that the purpose of the modification is to permit the creation of each space to be used as a media room, there is a real risk that the spaces so created will be, in fact, used as bedrooms. If either of the spaces is used as a bedroom, the Council says that this will increase the demand generated by the development for parking spaces and that this is an unacceptable outcome in light of the current heavy demand for parking in the vicinity of the development.

8. The development, itself, was approved as a result of a successful appeal to the Court (Sheer Property Group Pty Ltd & anor v Randwick City Council [2013] NSWLEC 1168) and one of the conditions imposed as part of that outcome was that a space for a vehicle under the shared vehicle scheme had to be established in conjunction with the development and a number of shares for use of that shared vehicle for five years had to be purchased as part of the arrangements for occupation of units in the development.

9. The Council also says that the rearranged internal layout of each of the units results in a combined lounge/dining/kitchen space that will be cramped and will provide, as a consequence, poor amenity to future residents.

10. The Council does not oppose the creation of a media space/study but says that condition 2(b) is a necessary response - as compliance with it will prevent the space being used as a bedroom and also increase the level of amenity in the composite living areas of the unit to an acceptable standard.

11. On the other hand, it is the applicant's position that the application is, in practice as well as in form, an application that is confined to the creation of a media space/study and that there is no intention to use the space that has been created as a bedroom.

12. In response to the concerns of the Council, the applicant has offered an alternative approach to the conditions. This approach, the applicant says, will also ensure that the space will not be used as a bedroom. To do this, the applicant says that, in addition to the deletion of condition 2(b), this should be replaced with two new conditions [2(b) and 2(c)] which, the applicant says, should be in the following terms:

(b)   The space designated as a media space/study shown on plan DA 103 revision C in each of units 3 and 4 is not to be used as a bedroom; and

(c)   Prior to the issue of an occupation certificate for units 3 and 4 section 88E restriction as to user shall be registered on title of units 3 and 4 in favour of Randwick Council notifying the existence of conditions 2(b) and requiring compliance with it. The person with the power to release, vary or modify the restriction as to user shall be Randwick Council.

13. The applicant says that the first of these conditions would render it unlawful to use the space as a bedroom whilst the second condition would specifically draw the attention of any proposing purchaser of either of the units to the prohibition on use of either media space/study as a bedroom.

14. This approach, the applicant says, will prevent the creation of a second bedroom in either of the units and that, as a consequence, there would be no possibility of any increase in parking demand. In addition, the applicant says that the amenity of the combined living/dining/kitchen area is acceptable.

The evidence

15. I heard evidence from Mr Blyth, a consultant town planner retained by the applicant, and from Mr Mead, a consultant town planner retained by the Council, and Mr Flanigan, a Council traffic engineer. Between them, they prepared a joint expert report which addressed the contentions raised by the Council as reasons why the condition requiring changes in condition 2(b) to the media space/study was necessary in order to prevent that space being used as a bedroom.

16. A useful summary of the relevant positions concerning the proposed media space/study is set out by each of the planning experts in the joint expert report. The Council's position was described in the following terms (at 2.1.13):

JM [Mr Mead] notes that the proposal provides for a media/study space within the subject apartments that has dimensions of 3150 mm x 3765 mm. The space has a cupboard along its eastern wall providing for a clear internal dimension of 2550 mm. The media/study spaces have windows to the northern and southern elevation is respectively the glazed area of 1400 mm wide and are therefore provided with light and ventilation. The rooms are provided with doors and as such could be closed off from the remainder of the dwelling. Therefore, in JM's view, other than the room label on the spaces, they could easily and comfortably be used as bedrooms.

17. On the other hand, the applicant's position was put as being (at 2.1.14):

CB [Mr Blyth] notes that the proposed cupboard in the study represents a relocation of the cupboard originally approved in the hallway adjacent to the kitchen/dining room and is a requirement of the RFDC. The clear width of 2.55 m is required in order to provide sufficient space such that furniture can be positioned against the wall opposite the storage cupboard with enough width of space centrally for efficient circulation and manoeuvring. The doors are desirable in order that the space can be closed off and activities connected with the media/study/work/hobbies et cetera screened for privacy and tidiness as per Part 3 of the RFDC. There is no proposal to use the room as anything other than a media/study space and the use of the space can be controlled by a positive covenant on title.

Parking impacts

18. The present approved development and its response to parking generation was discussed by the experts in their joint report at 2.1.2 in the following terms:

It is noted by the experts that the approved development provides no car spaces. Condition 4 of the original approval required that a car share pod be applied for adjacent to the property prior to the issuance of a Construction Certificate providing that six occupants may use the car share vehicle for a minimum of five years. The conditions states that if approved the applicant is to provide evidence of such to Council prior to issue of an Occupation Certificate.

19. It is my understanding that, if neither proposed space is used as a bedroom, there is no need to revisit the earlier parking conclusions.

The issue

20. The parties are in agreement that:

• The proposal to create a media space/study is, in itself, not objectionable; and

• Preventing such a space from being used as a bedroom is also the appropriate outcome to follow from the creation of such a space.

21. I also understand that, if this is effective, the concern that the Council has relating to increased parking demand does not become an impediment to the modification as sought by the applicant.

22. What is in issue, fundamentally, is whether the configuration of the space should be rearranged in a fashion that renders it physically impossible for the space to be used as a functional bedroom (addressing the Council's amenity concerns in the process) or whether the proscriptive, non-physical intervention approach adopted by the applicant is sufficient to address these issues (given the agreed desired outcome that such a created space not be used as a bedroom).

Consideration

Amenity of the various proposed spaces

Living spaces

23. Mr Mead criticised the dimensions of the living/kitchen spaces that would result if the proposed dimensions of the media space/study areas were approved. In particular, he expressed a concern with respect to unit 4 as a consequence of this unit having an island kitchen bench located in it. Mr Mead was of the view that the inadequacy he considered existed in the living spaces of the units would be exacerbated in each instance if either unit were to be used as a two-bedroom dwelling.

24. It was Mr Blyth's evidence that the creation of the proposed spaces would remove activities of a home office/computer nature into the new spaces and thus lessen activity pressure on the general living spaces. It was also his evidence that there would be a very modest increase in the dimensions of the living/kitchen areas by the creation of the media space/study rooms.

25. Their evidence on this point is in the transcript (18 November page 28 line 3 to page 31 line 6). It was in the following terms:

STAUNTON: What's wrong with the living/dining space, Mr Mead?

WITNESS MEAD: The living/dining space, in my view, is it has not been demonstrated that it can serve the functions of such a space. The application includes no detail of how the space would in fact be furnished. If we then go to what is an adequate space in my view it's reasonable, given that it applies to the application, to go to the RFDC. The RFDC looks at layouts for units and includes living areas. It suggests a larger space than what's proposed and in my view, particularly for unit 4, the southern unit, when you take into account the location of this kitchen bench, you're left with the clear dimension in the order of 3.3 metres which in my view, for a living/dining area is well below a standard that could be used to provide for flexible layout of furniture which is one of the key objectives of the DCP and the RFDC.

STAUNTON: There's no requirement in relation to room sizes in the RFDC for living rooms or kitchens, is there?

WITNESS MEAD: The RFDC has recommendations on unit layouts that assist with interpreting the objectives. The objectives of the RFDC talk about the ability to furnish spaces and provide layouts that add to amenity and accommodate a variety of household activities and so on. It then provides a series of diagrams that show layouts that achieve those types of that achieve those objectives. As I said, in the absence of, in this application, any evidence to suggest how this particular unit 4 would in fact be laid out, I defer to that for some guidance as to a suitable layout.

STAUNTON: You're not seriously suggesting to the Court that the living/dining/kitchen area can't accommodate a variety of furniture

arrangements, are you?

WITNESS MEAD: It hasn't been demonstrated to me how it would be achieved. Particularly, as I said, in terms of unit 4, it's my view that if we take the same approach as we do to the media/study where we consider things like the ability to move chairs in and out and put tables and things in a room, that equally applies to the living/dining. And I think the living/dining area, the width 4.765, can achieve some of those purposes. But the dimension from the glass line on the balcony back to the island bench is minimal and I'm not how that would be laid out.

STAUNTON: Mr Mead, there's been an increase in the area of the living room as a result of this application. Because in the original approval the living area and the kitchen dining area were separated by a wall, weren't they?

WITNESS MEAD: I don't accept there's been an increase in the living area. There's the when you do the comparison between the original application you had a 4.8 metre wide living area but you had a 4.29 metre wide dining/kitchen area. So in totality, when we consider living/dining/kitchen, we had a dimension of approximately 9 metres. We now go to the modification and that 9 metres becomes 4.9 or in fact 5.74 metres

STAUNTON: Mr Mead, they were two separate rooms divided by a wall.

WITNESS MEAD: Yes.

STAUNTON: Now they are one open plan room.

WITNESS MEAD: Yes.

STAUNTON: With the kitchen along the western wall, that leaves the rest of the space open other than where you're considered about the island bench.

WITNESS MEAD: The

STAUNTON: Correct?

WITNESS MEAD: As I said, the purpose of this space under the modified application is to serve three room purposes. We have a kitchen, a living and a dining area. The area, whether you look at it dimension wise or area wise, is less than the space that was dedicated to those three room types under the original approval.

STAUNTON: There's still plenty of room to put a table and chairs and some lounges and a television in that combined area, isn't there?

WITNESS MEAD: I don't agree. I it hasn't been demonstrated that that is possible.

STAUNTON: When you say it hasn't been demonstrated, what, no one's

drawn a picture for you. You're unable to do that with your experience

WITNESS MEAD: Well

STAUNTON: as a town planner. Is that what you're telling the Court?

WITNESS MEAD: I'm telling you that nobody's drawn that picture and to the applicant hasn't drawn that picture. I've considered the dimensions of the room and, again, looking at unit 4, as I said before, you're looking at a 3.3 metre dimension between the island bench and the balcony. Now, if that island bench is to be used for dining purposes and so on and I'm not sure if that's the suggestion or not that island bench would have seats that require moving in and out, I would expect, that would take, if we apply Mr Blythe's logic for the study I think it was indicated that took up about a metre or so that leaves us with 3.3 metres to the glass line of the balcony. Even if furniture was to be placed right against the glass line to the balcony, which would not allow for circulation around it, you're left with 2.3 metres if you take into account moving seats around the island bench. So in my view, when you start to look at those numbers and dimensions, I think it would be difficult to provided high amenity layout.

STAUNTON: Mr Blythe, what do you say?

WITNESS BLYTHE: My opinion is that the space has plenty of amenity. It has been increased in terms of the length by 1.1 metres over the original approval. And of course the kitchen has been moved into the living/dining room. Previously we had a kitchen/dining room, which is unusual room in apartments these days. Normally you find your kitchen incorporated into an overall living area, which is what this amendment has sought to do. The provision of the kitchen bench seems to have raised some concern but I mean the kitchen itself, as well as the island bench, their social spaces. People could sit at the bench and have their meals, for example. People stand in the kitchen and have a cup of coffee. At least that happens at my place, I think it's quite common.

In visiting the site this morning I with Mr Martin, the architect, measured the distance from the glass line to where the island bench is proposed and remembering that it's only unit 4 that has the island bench there's no proposal in unit 3 for that but the dimension was about 3.6 metres. So even if you have a couple of stools on that side of the island bench you've still got, I would suggest, in the order of 3 metres between the back of a stool and the glass line position; perhaps another table and chairs, perhaps a sofa. You know, I and then you've to take into account the width of the room which is quite generous, of 4.75 or is it 4.75?

STAUNTON: 4.765.

WITNESS BLYTHE: 4.765, so and my view is there's plenty of room there. And I think it needs to be remembered as well that the media/study room is also a living room. The room proposed as the media/study room is part of the living space offered by this unit, so the functions that would have been accommodated in the living room as approved, such as you know, storage of book cases, perhaps filing cabinets, perhaps your computer table, perhaps your table for your printer. You can relocate those into the media/study room. So the actual area available for living in this unit, or these two units, it hasn't changed. It's just what I would regard as a more flexible disposition.

26. Whilst I understand the criticism that has been made by Mr Mead of the living/kitchen space that would result from the present proposed configuration of the media space/study, I prefer the opinion of Mr Blyth that this space is sufficient and adequate for these combined purposes for the following reasons:

• In Unit 4, there will still be room for furniture in the living space and the island bench can be used as an informal eating space; and

• For both units, the relocation of computer use and the like from the living area will, itself, free up space and create areas for separate uses that would previously have had to share the same space.

Media space/study

27. In his disagreement with the requirements of condition 2(b), Mr Blyth said (in the joint report at 2.2.10) that condition 2(b):

….. is unreasonable as it would not permit efficient or comfortable functioning of the room. As conditioned at 2 m total in width, only 1.4 m would remain clear of the cupboard. Given that desks and study/office furniture is commonly at least 600 mm in width only 800 mm would be left to provide access space to the cupboard, to manoeuvre an office chair back and forward from a desk or to provide a small table and chairs for meetings, hobbies or other living functions.

28. This criticism of the utility of the space that would result if condition 2(b) were complied with is, in my view, well founded. The dimensions of the proposed media space/study, in each instance, are, in my assessment, appropriately functional for the proposed purpose whilst that which would result from compliance with the Council's condition would not be so.

29. I accept that it is desirable that the proposed spaces be able to function effectively and that the various aspects of likely future use discussed by Mr Blyth are reasonable. The location of a desk and the inclusion of the relocated cupboard will make the dimensions proposed appropriately functional.

30. As a consequence, I have concluded that the amenity matter raised by the Council does not warrant a reduction in area able to be utilised for the purposes of a media space/study.

Stopping the space being used as a bedroom

31. That conclusion leads me to turn to the issue of ensuring that any space approved for and designated as a media space/study will only be used for this purpose and will not be transformed into a second bedroom.

32. I accept that it is necessary to do this effectively as failure to do so would create a sufficient likelihood of creation of additional parking demand to have an unacceptable impact on others living in the vicinity of the development.

33. In considering this aspect, it is first appropriate to observe that it is long established that there is a presumption that anybody who is given a development consent subject to conditions (including ongoing conditions that run with the land) will abide by those conditions. It is also similarly long settled that it may be appropriate to adopt some functional, physical measures, from time to time, that operate in a fashion that will ensure observation of particular conditions of consent.

34. In this instance, the Council proposes the imposition of physical restrictions by requiring construction of the space in each of units 3 and 4 in a fashion that complies with condition 2(b) thus providing what the Council says is the appropriate physical constraint in effecting a functional prohibition on use of the space as a bedroom.

35. I have earlier outlined the evidence given by Mr Blyth about what he considered was the lack of functionality or amenity that would attach to the space that would result if the restrictions in condition 2(b) were to be implemented.

36. I agree with Mr Blyth’s opinion that the utility and amenity of a media space/study is to be preferred to the view expressed by Mr Mead that the space and configuration that would result from compliance with the condition would be adequate and attractive.

37. However, I am also concerned that, given the dimensions of the space and the ability to enclose it using the sliding doors that are presently proposed to be fitted, it would nonetheless be possible, despite any condition of consent, to use the space for the purposes of an illegal bedroom.

38. During the course of the evidence given in court, Mr Blyth was asked why it was necessary to have the ability to shut off the space. The transcript (18 November page 33 line 1 to page 35 line 17) in the following terms:

EASTMAN: Also that it provides doors that can be closed to seal it off from the remainder of the dwelling.

WITNESS BLYTHE: Yes.

EASTMAN: You know that his conclusion is that that can therefore be comfortably used as a bedroom. You would agree, you don't express whether or not you agree with that but you'd have to agree with that, I'm sure, Mr Blythe.

WITNESS BLYTHE: If someone was of a mind to sleep in that room then, yes, they could. But I that is what consent is sought for.

EASTMAN: No, but it's what it's designed for because it's got the ability to sealed off from the remainder of the unit.

WITNESS BLYTHE: No. It's not designed for that. That just happens just be his characteristics. It is designed to be a media/study room.

EASTMAN: One of the benefits in it being designed in this particular way is that it can be sealed off and used for a bedroom if someone designed to do so.

WITNESS BLYTHE: That is not the design. That's not what is sought.

EASTMAN: No, I know, but it can happen.

WITNESS BLYTHE: As i said, if someone wanted to sleep in a room or anywhere for that matter you could you know, put up a bed in the dining room if you want to. You can't physically stop someone sleeping in a room if they were of a mind to.

EASTMAN: On the old proposal, if you put a bed in the dining room you couldn't seal it off, could you

WITNESS BLYTHE: No.

EASTMAN: It would be an open area, which is

WITNESS BLYTHE: That's right.

EASTMAN: of significantly lesser amenity to have two co tenants in a unit of that size.

WITNESS BLYTHE: I don't believe there's any lesser likelihood that someone might sleep in it.

EASTMAN: But one of the great benefits of course of being able to seal it off is that that's exactly what can happen. You've got to accept that, Mr Blythe. I just want to get that and move on.

WITNESS BLYTHE: I don't think it increases the likelihood, is my opinion. The reason for having the doors there is so that you can provide some privacy and tidiness to your functions that you may be carrying out in the media/study room, which is the benefit of it. That's the benefit of it.

EASTMAN: That's what I wanted to test. You draw the conclusion that it's actually for in the paragraph below 2.1.14, about for lines from the bottom, you say that

WITNESS BLYTHE: Yes.

EASTMAN: Or five lines. "The doors are desirable in order"

WITNESS BLYTHE: Yep.

EASTMAN: "that the space can be closed off and activities connected with media/study/work/hobbies can be screened for privacy and tidiness."

WITNESS BLYTHE: Correct.

EASTMAN: What I'm suggesting to you is that the Court's got a weighing exercise, doesn't it; which is to say, what are the benefits of screening it off for the purposes of an office versus what are the disbenefits that might occur by making this capable of being used for a second bedroom. Do you accept that's part of the consideration for the Court?

WITNESS BLYTHE: No.

EASTMAN: Just assume for me at the moment that it is and that in that weighing exercise, that if a consequence of having this effectively as capable of being used for a second bedroom has a parking impact and I just want you to assume that, we'll come back to that later that is significantly more detrimental for this proposal than the benefit of being able to close the door in an office.

WITNESS BLYTHE: Could you repeat that, please?

EASTMAN: I'll start it from the beginning. The benefit that you get of closing off your office is relatively insignificant, Mr Blythe. Do you agree with that?

WITNESS BLYTHE: No.

EASTMAN: When that's compared to the detriment that occurs by effectively converting this easily into a two bedroom apartment then that detriment significantly outweighs the benefit of being able to close the door in an office.

WITNESS BLYTHE: I don't agree.

EASTMAN: Why not? Why is screening and tidiness to the office so important, Mr Blythe?

WITNESS BLYTHE: Well, because the functions you have in there may be untidy, for example. If you have a home office you may want to just be able to close your office off from your living space. If you have guests coming, there may be activities in there, whether it's sewing, you know, whatever you may have to have, that you prefer to close the door on. Because, you know, maybe in various stages of production or the, you know, any number of reasons.

39. This evidence from Mr Blyth does not provide, in my view, a sufficient reason to permit that the portion of each of these units proposed to be set aside as a media space/study to be capable of being completely enclosed. The reason given in the exchange quoted above is, in my view, unconvincing. There is no particular privacy or any other necessity, in a dwelling of this modest and limited size, to provide for a space designated for these uses to be capable of being completely shut off from the remainder of the dwelling.

40. As a consequence, whilst I accept that the general approach advocated by the applicant of a prohibitory condition coupled with the creation of a covenant in favour of the Council, I am also satisfied that it would be appropriate to require the removal of the sliding doors. Doing this will ensure that there could be no creation of a separated space of sufficient size and with appropriate privacy that would permit it to be utilised as a second bedroom (if occupants of either of the units were tempted to do so despite the prohibition of such a use).

Use of a covenant to prevent use as a bedroom

41. I do not understand there to be any disagreement between the parties about the power of the Court to impose a requirement for a covenant in favour of the Council that would have the effect of putting any future owner of either of these units on notice of the prohibition on use of either of the media space/study areas as a bedroom. It is unnecessary for me to set out any of the cases that deal with that proposition.

42. At 2.2.11 of the joint expert report, the question of use of a covenant was discussed by the planning experts. This discussion was in the following terms:

CB has indicated that the applicant would be prepared to accept a positive covenant that the media/study space could not be used for a bedroom. JM has not seen this mechanism used for the use of an individual room within an apartment and is of the view that it would be very hard to enforce. A more practical approach to this issue would be to make physical changes to the designed to promote the desired use outcome.

43. However, the Council's position is that mere notice of such a prohibition would not be sufficient and, given the likely adverse parking impacts on other nearby residents if the prohibition were to be ignored, it was not appropriate to rely on such an approach. The Council also expressed the view that a mere prohibition in circumstances where the physical layout was conducive to use of the spaces as second bedrooms potentially imposed an unacceptable enforcement burden on the Council.

44. In response to this latter concern, Mr Blyth said:

CB notes that application of a positive covenant is a technique routinely used in his experience by councils to control for example the occupation of seniors living development is to persons over 55yrs or with a disability. CB is unaware that there have been any issues of enforceability raised by councils in relation to the operation of such a condition. CB also notes that in his experience over the past 10 years the level of council inspection of all types of properties to check compliance with conditions of development approval has increased dramatically noting that councils have separate apartments with designated compliance officers to carry out these functions. The fact that the covenant is an actual restriction on the title further aids enforceability in his opinion.

45. I accept that it is a general responsibility for councils to inspect for compliance of conditions of consent and, if necessary, consider whether enforcement action was necessary to rectify breach and ensure compliance. In the Council's bundle (Exhibit 1 behind tab 9) the Council provided marketing material from a real estate agent which showed that unit 3 had been marketed as having two bedrooms. I also note that on the second page of this material (folio 42) the description includes:

Generous bedroom with balcony and b/ins

Media room or potential guest accommodation

46. Whether or not these words were provided to the agent by the developer, it is, in my view, irrelevant. That with which I am required to deal in these proceedings is the achievement of two complimentary outcomes. Those outcomes are:

• Permitting the creation of a functional media space/study in each of units 3 and 4; and

• Ensuring that neither of the spaces so created will be used, in future, as a bedroom.

47. In this instance, I am satisfied that restrictions on enclosure of the spaces and the widened prohibition in a covenant are a sufficient approach.

48. If, in future, the Council considers it appropriate to undertake any compliance inspection (whether prompted by complaint or otherwise) that will be a matter for the Council. Overall, however, I am satisfied that an appropriately broad and framed prohibition, backed up by a covenant, is an appropriate response to ensure that the spaces at the dimensions proposed by the applicant will not be used as second bedrooms.

Conclusion

49. I therefore concluded that it is appropriate to permit the presently proposed media space/study areas to remain with their dimensions for which application was made, an outcome which necessitates the deletion of condition 2(b).

50. I also accept that it is appropriate to impose the two conditions proffered by the applicant as the elements that are appropriate as going part way to ensuring that the media space/study in each unit will not be used as a second bedroom.

51. However, in addition to the conditional prohibitions designed to prevent such an outcome, I also consider that it is necessary to impose a further condition that mandates the removal of the sliding doors to the media space/studies spaces in order to ensure that they are rendered incapable of being used for such a bedroom purpose.

52. Given that the applicant has offered the imposition of a covenant in favour of the Council with respect to the prohibition of the use of either of these spaces as a bedroom and given that I have concluded that the removal of the proposed sliding doors is appropriate to ensure that such a proposition is adequately affected, it seems to me that it would be entirely consistent with the position adopted by the applicant also to include those measures in the covenants.

Orders

53. It therefore follows that, subject to the process discussed below, the orders of the Court will be:

1. The appeal is upheld;

2. Development consent 2013/194 is modified by:

1. Deletion of condition 2(b); and

2. Insertion of the following new conditions in lieu thereof (as conditions 2(b), (c) and (d):

1. The space designated as a media space/study shown on plan 1217-DA-04 revision J in each of units 3 and 4 is not to be used as a bedroom;

2. The sliding doors are deleted; and

3. Prior to the issue of an occupation certificate for units 3 and 4 section 88E restriction as to user shall be registered on title of units 3 and 4 in favour of Randwick Council notifying the existence of conditions 2(b) and (c) and requiring compliance with them. The person with the power to release, vary or modify the restriction as to user shall be Randwick Council.

3. Development Consent 2013/194 is now subject to the consolidated modified conditions of consent in Annexure A; and

4. The exhibits, other than Exhibits A, B and 2, are returned.

Process to give effect to the decision

54. The proposed orders will only be made when a set of consolidated amended conditions reflecting this decision is filed and made available electronically to permit the orders to be made.

55. The Council is directed to file and email such a set of consolidated modified conditions to the Court by the close of business on Wednesday 18 February. The matter is listed before the Registrar on 20 February but the orders will be made in chambers and the listing before the Registrar will be vacated if the conditions are provided as directed.

Michael Whelan

Acting Commissioner of the Court

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Amendments

23 February 2015 - Revision of plan numbering orders

Decision last updated: 23 February 2015