Pinnacle Design Company Pty Ltd v Randwick City Council

[2024] NSWLEC 1365

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pinnacle Design Company Pty Ltd v Randwick City Council [2024] NSWLEC 1365

Hearing dates:

23 April 2024

Date of orders:

02 July 2024

Decision date:

02 July 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Consent No DA/490/2015/D is modified in the terms in Annexure A.

(3)   Development Consent No DA/490/2015/D as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – residential development – modification of consent – sufficient articulation – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 113

Randwick Local Environmental Plan 2012, cl 6.7

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 2.11

Cases Cited:

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Pinnacle Design Company Pty Ltd ABN 27 637 530 600 (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
R White (Applicant)
M Harker (Respondent)

Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/306919

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of modification application DA/490/2015/D seeking to modify DA/490/2015/C by deletion of conditions regarding the first floor balcony enclosure, stairwell void window, and kitchen deck privacy screen (Mod D) (the Proposed Modification) at 5 Ahearn Avenue South Coogee legally described as Lot 5 in DP 29787 (the Site).

2. The consent sought to be modified is for the demolition of existing dwelling, construction of new four level dwelling including double garage, swimming pool and studio to rear, landscaping and associated works and that consent has been previously modified twice by Modification B (DA/490/2015/B) and Modification C (DA/490/2015/C) as detailed out in the Statement of Facts and Contentions filed by the Respondent on 24 October 2023 (SOFAC) (Ex 3) at p 8 Mod D seeks the deletion of the three conditions arising from Mod C pursuant to s 4.55(2) of the EPA Act.

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 23 April 2024. I presided over the conciliation conference which was terminated on the same day as the parties were unable to reach agreement. The hearing commenced forthwith in accordance with s 34AA(2)(b)(i) of the LEC Act and the parties agreed that the evidence for the hearing would include what occurred at the conciliation conference.

4. The proceedings commenced on site and the Court heard submissions from a neighbour and a former neighbour both in support of the proposed ‘infil’. A copy of written submissions are included in the Respondent’s Bundle of Documents (Ex 1) and letters in support were tendered by the Applicant (Ex D). The Court also attended the rear of the premises of an adjoining neighbour and heard submissions regarding privacy and overlooking concerns.

5. The modification, as originally sought by the Applicant, would result in the deletion of conditions regarding the first floor balcony enclosure, stairwell void window, and kitchen deck privacy screen and is referred to as “Mod D” and is detailed in the SOFAC p 2 as follows (emphasis added):

“3. Modification C (DA/490/2015/C) was approved by the Randwick Local Planning Panel (RLPP) on 8 June 2023 subject to a number of conditions (Mod C). Mod C sought a number of changes to account for the Sydney Water pipeline being located in a different depth to previously advised, and to account for additional support required to adjacent lands. Various other modifications were requested including (relevantly) that both the approved eastern balconies on the ground and first floor be enclosed. Conditions of consent required a number of changes to the approved plans, including that the enclosure of the balcony of the first floor was not approved.

4. Mod D seeks to:

(a) Delete condition 2d which is as follows: For the purpose of ensuring adequate articulation to the front façade which is compatible with the balcony enclosures in the streetscape, and for the purpose of reducing gross floor area and the appearance of bulk for the site, the enclosure of the balcony on the first floor to the dining room and living room is not approved. The privacy screening to the balcony on the northern side must remain. The front (eastern) glazing to the first floor living and dining area may comprise sliding doors, fixed glass or a combination of these, but must include at least one door (sliding or standard) to the balcony;

(b) Delete condition 2e which is as follows: For the purpose of ensuring adequate ventilation to the family room on the ground floor an operable window must be included in the eastern façade other than above the stairwell void

(c) Delete condition 2g which is as follows: The first floor deck off the kitchen is to have a privacy screen on the northern side having a height of 1.6m (measured above the finished floor level) constructed with either:

• Fixed lattice/slats with individual openings not more than 30mm wide, or

• Fixed vertical or horizontal louvres with the individual blades angled and spaced appropriately to prevent overlooking into the private open space or windows of the adjacent dwellings.”

6. The parties rely on the evidence of expert town planners in the Joint Expert Report (JER) prepared by Anthony Betros for the Applicant and Ros Read for the Respondent filed 26 March 2024 (Ex 2).

7. The town planning experts agree that condition 2(e) can be deleted provided the Applicant can demonstrate that the operable window over the stairway void on the northern side can be made operable despite its location (JER, par 16).

8. In relation to impacts of the privacy to the rear yard of 21 Cairo Street South Coogee the Applicant provides revised fence details at Fig 1A (JER, par 17) and privacy screens were reinstated by the Applicant, therefore I am satisfied that the objector’s concerns have been appropriately addressed (Tcpt, 23 April 2024, p 5(29)).

9. The parties agree that there are no non-compliances resulting from the Proposed Modification and that the outstanding issue for determination by the Court is whether consent condition 2(d) of DA/490/2015/D (the Consent) should be deleted as sought by the Applicant. The Respondent agrees with the balance of the modification sought by the Applicant however, the Respondent contends that condition 2(d) should remain but submits that if the Court were to approve the proposed modification to allow the ‘infil’ of the balcony, then Council is content with the drafting of condition 2(d) in accordance with the Proposed/Draft Condition of consent filed by the Applicant (Ex C). Final Proposed/Draft Conditions of Consent Annexure A and Annexure B were filed by the Applicant on 24 April 2024 showing the alternate wording in accordance with my direction and is marked Exhibit H.

10. The question or issue for determination can be framed as answering a subjective question as to whether the Proposed Modification results in sufficient articulation of the façade in order to complement or enhance the existing streetscape and neighbourhood character as sought by the third objective of Section 4.1 of Part C1 of Randwick Development Control Plan 2013 (RDCP) (folio 308 Respondent’s Bundle of Documents) (Tcpt, 23 April 2024, p 28(39)). Or put another way, “this case ought to be decided solely on issues of streetscape character and … visual bulk” (Tcpt, 23 April 2024, pp 30 – 31(50)).

11. The Court had the benefit of the site view and the parties rely on the agreed “Streetscape analysis map” at Figure 1 in JER p 12 which identify the streetscape sites being within the red boundary. Figures 2 to 13 in the JER accurately depict the neighbouring dwellings referred to by the experts in the evidence before the Court.

12. The contention pressed by the Respondent in the SOFAC filed 24 October 2023 (Ex 3) is contention 4 Building design and public domain and the following controls:

1. RDCP, objectives of Section 4.1 of Part C1 Low Density Housing, in particular the objective “To ensure building facades are articulated to complement or enhance the existing streetscape and neighbourhood character.” (emphasis added).

2. Randwick Local Environmental Plan 2012 (RLEP), cl 6.7 which relates to Foreshore scenic protection area and at cl 6.7(3) requires the consent authority to not grant consent unless satisfied that the development:

(a)  is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas, and

(b)  contributes to the scenic quality of the coastal foreshore.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), Ch 2 – Coastal Management, and s 2.11 relates to development on land within the coastal use area and the Respondent relies on s 2.11(1)(c) which requires the consent authority to take into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

13. The Respondent contends in the SOFAC that:

“(f) The proposed deletion of condition 2(d) to allow for the infill of the first floor balcony will reduce the articulation to the front façade which complements the articulation of 3 and 4 Ahearn Avenue. This will impact upon the bulk, scale and size of the proposed development, including in comparison to its neighbours. It will impact the visual amenity and scenic qualities of the coast, particularly from the coastal foreshore walkway due to the reduction in articulation arising from the infill and non-compatibility with the immediate neighbouring development.

(g) The impacts on the streetscape and coastal use area will cause the proposal to be inconsistent with the objectives of the built design controls in section 4.1 of Part C1 of RDCP 2013. The impacts will mean that the consent authority cannot be satisfied of the matters required to be satisfied under clause 6.7 of RLEP 2012 relating to the foreshore scenic protection area, and under section 2.11 of Chapter 2 of SEPP (Resilience and Hazards) 2021.” (SOFAC, p 15)

14. The Applicant’s case is that, when read as a whole, the Proposed Modification is consistent with the controls and objectives of the RDCP resulting in a dwelling that has sufficient articulation.

15. RDCP, Part 4 deals with Building Design and Part 4.1 headed General contains the objectives and controls. The objectives are reproduced in full below together with a relevant control requiring articulation of the external facade:

“Objectives

• To ensure the form, scale, massing and proportions of dwellings recognise and adopt to the characteristics of a site in terms of topography, configuration, orientation and surrounding natural and built context

• To ensure building facades are articulated to complement or enhance the existing streetscape and neighbourhood character

• To encourage contemporary and innovative designs that contribute to neighbourhood character in new and transitional residential areas.

Controls

…

iii) Articulate the external facades of the dwelling to reduce the apparent mass and to present a human scale to adjoining properties, public areas and from key vantage points. This may be achieved by design measures such as:

- Window openings

- Balconies or terraces

- Entry porches

- Staggered wall planes

- A combination of materials and finishes

- Decorative architectural elements.”

16. RLEP cl 6.7 is a jurisdictional prerequisite to be satisfied before the grant of consent however this appeal relates to a modification application. As such I will take into consideration the matters in cl 6.7 of the RLEP in accordance with s 4.55 of the EPA Act.

17. Similarly, the Resilience and Hazards SEPP, Ch 2 – Coastal Management, s 2.11(1) provides a jurisdictional prerequisite to be satisfied before the granting of consent and I will likewise take into consideration the matters set out below:

2.11   Development on land within the coastal use area

(1)  Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a)  has considered whether the proposed development is likely to cause an adverse impact on the following—

(i)  existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)  overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)  the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)  Aboriginal cultural heritage, practices and places,

(v)  cultural and built environment heritage, and

(b)  is satisfied that—

(i)  the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii)  if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii)  if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c)  has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

18. Section 4.55(3) of the EPA Act provides that in determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

19. I have considered the Notice of Determination for the Consent (Respondent’s Bundle of Documents, Tab 4, Ex 1) which does not include any express reasons for the grant of consent.

20. In taking into consideration the matters referred to in s 4.15(1) of the EPA Act, the relevant matters are as contended in the SOFAC, as outlined above at [13], being the terms of the RDCP (s 4.15(1)(a)(iii)) together with the submissions made by the neighbours (s 4.15(1)(d)). I have considered the submissions above and I now consider the terms of the RDCP as contended in the SOFAC.

What is the existing streetscape and neighbourhood character?

21. The objectives and controls of the RDCP particularised in the SOFAC require an assessment of the existing streetscape and neighbourhood character. Where there is no neighbour character statement provided in the RLEP or the RDCP Mr Betros and Ms Read provide assistance to the Court in determining what the streetscape character is at par 54 and 55 of the JER including the series of photographs at Fig 1 through to Fig 13. I find that the character is “extremely diverse” and “exclusively residential” (Tcpt, 23 April 2024, p 21(45)). The Court also had the benefit of seeing the existing relevant local area.

22. Ms Read states that “the emerging character of this area is demonstrably large dwellings with open balconies” (JER, p 20 at par 60) whereas Mr Betros says that the “analysis also shows that large expanses of fixed glazing are common, as are large expanses of glazing set behind frameless glass balustrading. When considered in conjunction with these dwellings and such characteristics, it is confirmed that the proposed balcony enclosure would not cause any ‘adverse’ impact nor would it generate an incompatible outcome.” (JER, p 21 at par 71).

23. Mr Betros was cross examined on the number of dwellings that did or did not have a balcony and was asked:

“So, within this essentially local area that you and Ms Read have identified, although there are varied building forms, use a unifying feature isn't there of balconies within most of the buildings?” (Tcpt,23 April 2024, p 24(32)).

24. Mr Betros did not agree that balconies are a unifying aspect and explained as follows:

“They're, they're commonplace I would say. I don't know if having it actually unifies the designs. They're so different, and I think you've got to read the third objective of that with it, which calls for contemporary and innovative designs. So, on that basis, there's anticipation of change and individuality which could be the applicant's want for a different design. There's no adherence to any that you must have a balcony or you, there's, there's no unified streetscape character, I couldn’t say that the balconies tie the designs in, even looking at all that, even though they do, the majority do have balconies, I wouldn’t say it's a unifying aspect.” (Tcpt, 23 April 2024, p 24(36)).

25. In any event, the objective is not to unify. The objective is to complement or enhance the existing streetscape and neighbourhood character, not to retain similarity. This is consistent with the planning principle relied on by the Respondent, Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) and in that case, Roseth SC said at [26] in relation to compatibility:

“26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal’s assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.”

26. The Applicant refers to Project Venture at [22]:

“22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.”

Is there sufficient articulation of the façade of the dwelling to complement or enhance the existing streetscape and neighbourhood character?

27. A photomontage of the Proposed Development as sought to be modified is reproduced below at Fig 1

Fig 1: Photomontage Ex E

28. It is my view that there is sufficient articulation of the building facade to complement or enhance the existing streetscape and neighbourhood character. I give my reasons below.

29. The control does not prescribe the design measures which need to be achieved in order to demonstrate articulation. Balconies is just one example.

30. Ms Read said in cross examination that “the principal issue arising is whether or not there is sufficient articulation to meet the streetscape objectives and controls in the LEP and the DCP” (Tcpt, 23 April 2024, p 13(33)). Ms Read did agree that “it would be open to the Court, … to reach the opinion that the form of enclosure which is proposed is a way of seeking to meet those particular controls” (Tcpt 23 April 2024, p 13(27)) and that if the Court found that the design was a sufficient articulation, then the modification should be approved. (Tcpt, 23 April 2024, p 13(45)).

31. Mr Betros at p 9 of the JER at par 39 states that

“…

The front façade is highly articulated, both horizontally and vertically. The series of angled forms to the façade and horizontal slabs achieve a desirable level of articulation which provides for a dwelling that will sit comfortably in the streetscape.

It is considered that the provision of a balcony is not necessary to achieve articulation and notes that there is no requirement in the planning controls for a street facing balcony.”

32. Mr Betros’ evidence in relation to articulation in cross examination is that:

“In my opinion, the combination of the three angled elements forms a distinct level of articulation as does the horizontal banding and the overhang on the level below and then you have the differences in materials and finishes as well.” (Tcpt, 23 April 2024, p 27(8)).

33. The Respondent submits that “Mr Betros has pointed out and as the controls themselves say, there is no prescription as to the design measures which need to be achieved in order to demonstrate articulation.” (Tcpt, 23 April 2024, p 29(15)).

34. There was evidence of and submissions made regarding the requirement to use materials which are capable of properly withstanding deterioration and weathering accelerated by coastal conditions (RDCP, Part 4.5, Control vii)). The Applicant and objectors also spoke about the impact of the weather on their homes and the desire to achieve waterproofing. There is a note at the end of Part 4 of the RDCP which refers to the controls under B10 Foreshore Scenic Protection Areas for dwellings located in the defined coastal area which includes the following control:

“v) Finishing materials to buildings must be capable of properly withstanding deterioration and weathering accelerated by the coastal conditions.”

35. Although the Respondent refers the Court to the Construction Certificate plans CC-05.00 the Applicant clarifies that it is not the case that the approved design cannot be built but rather that an open balcony in this particular location would not be as usable a space as the space would be if it was enclosed and the proposition of the Applicant is that the Proposed Modification is an appropriate design response to the elements (Tcpt, 23 April 2024 p 34(16)).

36. I have not given much if any weight to the reason or motive for the design change. I have not relied on the durability or otherwise of the materials and finishes of the Proposed Modification to reach my conclusion regarding the remaining contention for determination relating to ensuring that articulation of the façade of the building complements or enhances the existing streetscape and neighbourhood character.

37. The Respondent agrees that there are multiple means by which articulation can occur, but in focusing on the streetscape, the Respondent submits that:

“That streetscape character is varied as I said previously, the common element is balconies and it is not contained here the depth articulation that is produced by balconies throughout the immediate streetscape context is not replicated in the design. Mr Betros accepted that there was a reduced depth articulation, but his position was the articulation was provided for in other ways. But ultimately what is the appropriate articulation needs to take cues from the streetscape.” (Tcpt, 23 April 2024, p 32(42)).

38. I conclude that there is sufficient articulation, notwithstanding the absence of balconies, because the building achieves articulation in a number of ways:

1. Setbacks to the top level and to the basement,

2. Combination of finishes and different use of different materials,

3. Use of different glazing elements,

4. Differences in the window treatments within the first and second floor,

5. The presentation of three different planes of glazing over the middle two levels, also referred to as the ‘wave element’.

39. I find that in consideration of cl 6.7 of the RLEP and s 2.11(1)(c) of the Resilience and Hazards SEPP, the Proposed Modification would provide for an outcome which is appropriate for the location without detracting from the scenic qualities of the coast.

40. I find that the modification as sought in the Draft/Proposed Conditions of Consent filed 24 April 2024 (Ex H) with the wording proposed by the Applicant can be approved.

41. The Court notes:

1. the Respondent council as the relevant consent authority, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to modification application DA/490/2015/D made on 23 April 2024 to rely on the documents and plans specified as follows:

1. Amended plans AP 07.00 Rev 1 dated 21 March 2024 and AP 06.25 Rev 1 dated 21 March 2024 (Ex F).

Orders:

42. The Court orders:

1. The appeal is upheld.

2. Development Consent No DA/490/2015/D is modified in the terms in Annexure A.

3. Development Consent No DA/490/2015/D as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

306919.23 (Annexure A)

306919.23 (Annexure B) 

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Decision last updated: 02 July 2024