Pinnacle Developments Pty Ltd v Randwick City Council

[2016] NSWLEC 1559

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pinnacle Developments Pty Ltd v Randwick City Council [2016] NSWLEC 1559

Hearing dates:

24 November 2016

Date of orders:

25 November 2016

Decision date:

25 November 2016

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal upheld

Catchwords:

CONSENT ORDERS: residential flat building, amended plans address contentions in the case, view loss.

Legislation Cited:

Land and Environment Court Act 1979; Randwick Local Environmental Plan 2012; 16 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment; Environmental Planning and Assessment Act 1979

Cases Cited:

Wehbe v Pittwater Council [2007] NSWLEC 827; Tenacity Consulting v Warringah [2004] NSWLEC 140

Texts Cited:

Randwick Development Control Plan 2013; Apartment Design Guide

Category:

Principal judgment

Parties:

Pinnacle Development Pty Ltd (Applicant)

  Randwick City Council (Respondent)

Representation:

Counsel:
Mr I Hemmings (Applicant)

 

Solicitors:
Ms R McCulloch
Pikes & Verekers Lawyers (Applicant)

  Mr A Hudson
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

157617/2016

Judgment

1. Pinnacle Developments Pty Ltd (Pinnacle) lodged Development Application DA/695/2015 with Randwick City Council seeking consent for demolition of existing structures, site consolidation and construction of a new residential flat building in 2 forms over basement parking with associated landscaping and strata subdivision. The council refused consent and Pinnacle is appealing that decision.

2. The appeal was subject to mandatory conciliation before another Commissioner of this Court in accordance with the provisions of s 34 of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated. As the result of discussion held during that process the applicant prepared amended plans and has been granted leave by the Court to rely on those plans.

3. Those amended plans are said to address the contentions in the case and the parties are seeking Consent Orders from the Court.

The site and its context

4. The application seeks to amalgamate two sites known as Nos 325 and 327 Arden Street, Coogee. No 325 is a rectangular shaped allotment whilst No 327 is and ‘L’ shaped allotment with frontage to both Arden and Oberon Streets. The site is located on the eastern side of Arden Street and the northern side of Oberon Street with frontages of 23.74m and 15.47m to each street respectively. Total site area is 1555sqm and the land slopes steeply to the north-eastern corner of the site, as well as sloping steeply down Arden Street to the north.

5. No 325 is currently occupied by a two storey residential flat building containing 4 units and No 327 contains a single storey dwelling house with a tennis court occupying the Oberon Street portion of the land. That tennis court is excavated well below street level providing a clear view over what has the appearance of a vacant site when viewed from the opposite side of Oberon Street.

6. The site is adjoined by residential flat buildings with the locality comprising a mix of housing options including detached and semi-detached dwellings and multi-unit developments. The southern side of Oberon Street consists of several semi-detached dwellings and dwelling houses, the eastern and western sides of Arden Street as well as the northern side of Oberon Street characterised by residential flat buildings. Oberon Street is the boundary of the medium density residential zone with the low density residential zone and this is obvious when viewed from the site.

7. Blenheim Park is located diagonally opposite the site and runs through from Oberon to Rainbow Street.

Background and the proposal

8. The plans originally before the council proposed the construction of a four storey residential flat building above basement garages with a total of 17 dwellings and parking for 29 vehicles. The development exceeded the relevant development standards for building height and floor space ratio.

9. The plans now before the Court (Exhibit A) propose basement storage and plant areas with parking for 29 cars and 12 bicycles and two buildings above containing a total of 16 apartments. The building fronting Arden Street would contain four apartments on each of the first three levels and a single apartment on level four whereas the building fronting Oberon Street would contain single apartments on levels one and two with a two storey apartment on levels three and four.

10. The main changes made to the proposal are the reduction in the building footprints of both buildings. The footprint has been reduced on all sides of the Oberon Street building on level 2 and to level 3 of the Arden Street building. The effect of the reduced floor plate is to open up view corridors through the centre of the site, particularly benefitting the adjacent flat building at No 329 Arden Street. The Oberon Street building has been increased in height and this issue is discussed later in my judgment.

The planning controls

11. The site is zoned R3 Medium Density Residential under the provisions of Randwick Local Environmental Plan 2012 (LEP) and the proposed development is permissible with consent. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• 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.

• To enable small-scale business uses in existing commercial buildings.

12. Part 4 of the LEP contains Principal development standards with clauses 4.3 Height of buildings and 4.4 Floor space ratio (FSR) relevant to the application. Pursuant to the maps that apply to those clauses, a maximum building height of 12m and FSR of 0.9:1 is permitted.

13. The plans provide for the two buildings which are compliant with the maximum height of with the exception of the lift overrun which results in a variable non-compliance up to a maximum of 750mm for an area of less than 7sqm on each building. The FSR proposed is 1:1 which also exceeds the development standard.

14. The applicant has filed a written objection to these development standards pursuant to the provisions of clause 4.6 of the LEP.

15. Randwick Development Control Plan 2013 (DCP) applies to the site with Part A – Preliminary Information and Part C2 – Medium Density Residential particularly relevant to the proposal.

16. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65) and the associated Apartment Design Guide (ADG) applies to the application.

The issues

17. The Statement of Facts an Contentions has not been amended since the original was filed on 19 April 2015 and the contentions detailed are:

1. Overdevelopment, particularly in relation to building height;

2. Roof design and features inconsistent with the provisions of clause 4.2 of the LEP;

3. Floor space ratio exceeds development standard;

4. Inadequate side boundary setbacks;

5. Development fails to satisfy the design quality principles of the Apartment Design Guide;

6. The development is inconsistent with the objective of the Foreshore Scenic Protection Area set out in clause 6.7 of the LEP;

7. The development results in unreasonable impact on views contrary to the objectives and controls in the DCP;

8. The development is contrary to the public interest.

18. Contentions in relation to affordable housing and lack of information were said to be issues that could be resolved by conditions of consent and have been addressed through the draft conditions included in the Consent Order sought which forms Exhibit 3. The council has amended the conditions from those notified to residents through inclusion of reference to the updated BASIX certificate and amendment to the conditions relating to the landscape plans to reflect the recommendations of the planning experts.

The evidence

19. The hearing commence on site with evidence heard from a number of objectors to the proposal. The view included observation of the site from within a number of properties, those being Nos 234, 236, 238 and 240 Oberon Street and units 2, 5 and 6 No 329 Arden Street, where the owners/representatives of those properties explained their concerns in relation to the proposal.

20. The issues raised by objectors are summarised as follows:

• View loss;

• Overshadowing of adjacent properties and Blenheim Park;

• Excessive height and scale, overdevelopment of the site;

• Privacy/overlooking;

• Traffic and parking impacts;

• Concerns about possible damage to property during construction/excavation.

21. Dr R Lamb provided an Expert Report, Exhibit A, Tab 6, dealing with view impacts. That report concluded that the amended plans resolve the contention of view loss and view sharing. Dr Lamb was not required for cross examination.

22. Expert town planning evidence was heard from Ms A McCabe for the applicant and Mr K Kyriacou for the council. They had prepared a Joint Report, also included in Exhibit A at Tab 7, which considered each of the contentions in the cases and concluded that the amended plans satisfactorily address each of those matters.

23. In relation to the issue of view loss, they refer to Dr Lamb’s analysis and generally agree with his conclusions. Their agreed position is as follows:

Views enjoyed from 236, 238 and 240 Oberon Street are from the ground and first floor of dwelling on the southern side of Oberon Street and across what is essentially a vacant lot – being Lot 4 DP155011. There is an existing tennis court on this lot.

The planning framework provides for a development having a maximum building height of 12 metres. A two (2) storey development would interrupt views enjoyed from these properties. The side setbacks of the Oberon building are compliant and there are no other opportunities to increase the corridor view between the buildings and still achieve a functional building form.

While the degree of view loss is severe, it is considered reasonable, because it is one anticipated by the planning framework.

Views enjoyed from 336 Arden Street, specifically those enjoyed from Unit 6 being the topmost unit at the front of the building are from a balcony, living and dining area, across the existing building and through gaps between buildings.

The location of proposed level 4, being the level which has most impact on view, is in excess of Council’s minimum setback control and complies with the height controls. The built form proposed is consistent with the scale and siting of adjoining development. In this instance, it is the experts’ opinion thar the view impacts are reasonable, particularly as the depth of the building at the upper level has been reduced as a result of design amendments.

Views enjoyed from varying levels of 329 Arden Street are enjoyed across side and rear boundaries. They are currently enjoyed across a vacant parcel of land and an existing built from that is significantly lower than any surrounding development. Any development of the subject site will impact upon the views currently enjoyed.

Views are retained from the balconies of Units 4 and 5 because of the setback of the fourth floor of both buildings and the siting of the building which aligns with adjoining buildings.

The building height and siting is consistent with buildings that adjoin and surround the site.

The view impacts to Unit 6, third level at the rear of 329 Arden Street, that could reasonably expect to maintain views is moderate. Impacts to Unit 9 are assessed as minor.

The design of the building has minimised the extent of the upper floor of both the Oberon Street block and Arden Street block such that they represent about 60% of the building footprint below.

To maximise views the building has been setback at the upper level from the rear boundary so that view lines from balconies can be maintained.

As previously stated this is a building form that is compatible with surrounding development in that tis height, setbacks and siting reflects that of adjoining buildings.

The design as now amended has protected through skilful design the degree of views enjoyed across side and multiple rear boundaries from the upper level units of 329 Arden Street, such that the views of Wedding Cake Island are retained.

The landscape plan provided with the application proposed 3 x 10m high trees along the south eastern boundary of 329 Arden Street that will significantly impact on view. As such it is recommended that alternative species that will not exceed a maximum height of 3-4m at maturity be selected from the following list and a suitable condition imposed on any consent: Banksia ericifolia; Grevillea hybrids; Acmena or Syzygium hybrids.

It si the experts’ opinion that subject to the recommended change to the landscape plan the proposal meets the principles of view sharing in Part C2 of RDCP and that the view impacts are reasonable and acceptable.

Conclusion and findings

24. For consent to be granted, I must be satisfied that the written objection that seeks to justify the contravention of the development standards to the FSR and Building height firstly demonstrates that that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. In addition, I must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

25. The written objections to each development standard form part of Exhibit A, Tab 7 (Joint report). The author of those objections has used, amongst others, the methods detailed by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 to address the issue of whether application of the development standards is unreasonable or unnecessary in the circumstances of the case and submits that there are sufficient environmental planning ground to justify the variations proposed.

26. The reasons for those conclusions are that the variation to the height standard is minor in nature and limited to the lift overrun; the bulk and scale of the proposal remains consistent with the character of surrounding development on both Arden and Oberon Streets; the degree of variation would not be discernible when viewed from the street; the proposed development meets the landscape area requirements; the massing of the development is essentially that contemplated by the suite of planning controls and the proposal will not result in significant adverse impacts upon the locality or adjacent residential properties by way of overshadowing, view loss, privacy and bulk and scale.

27. The environmental planning grounds said to justify contravening the development standard are: the proposal remains consistent with the objectives of the R3 Medium Density Residential zone and clause 4.3 of the LEP, despite minor non-compliance with the height of buildings control; non-compliance with the standard does not contribute to adverse environmental, social or economic impacts; the bulk and scale of the proposal remains consistent with the character of surrounding development; the proposed development substantially complies with the controls in the DCP and is consistent with the provisions of orderly and economic development and provides for an equal to if not better planning outcome than a development that strictly complies.

28. Similar reasons were provided to justify variation to the FSR controls.

29. As required under the provisions of clause 4.6 I am satisfied that compliance with the development standards would be unreasonable and unnecessary in the circumstances of the case, that there are sufficient environmental planning grounds to justify contravening those standards and that the written requests have adequately addressed the relevant matters. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standards and the objectives for development within the R3 zone.

30. As upholding the 4.6 written objections is a precondition to consent being granted, a merit assessment of matters relevant to the application as prescribed in s79C of the Environmental Planning and Assessment Act 1979 is required.

31. Having regard to the evidence of the planning experts, I am satisfied that the proposal achieves the objectives of the LEP and DCP and the provisions of SEPP65 and the ADG, the impacts of the development are acceptable and the site is suitable for the development.

32. In relation to those issues raised by objectors I accept the expert evidence that the impacts of the development are acceptable and not a reason to refuse consent.

33. Whilst I agree that the impact of the proposal on views from those properties on the southern side of Oberon Street is severe, I have regard to the DCP and the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 where Roseth SC provided an explanation of how to assess the notion of view sharing. In that case, he was faced with a local environmental plan that required “development is to allow for the reasonable sharing of views”. In this case the DCP states at clause 5.5 of Part C2:

The concept of view sharing concerns with the equitable distribution of views between developments and neighbouring dwellings and the public domain. View sharing control aims to achieve a balance between facilitating quality development and preserving an equitable amount of views for the surrounding properties as far as is practicable and reasonable.

View sharing does not prescribe the total retention of all significant views and vistas. In established inner metropolitan areas like Randwick City, developments would inevitably cause varying degree of view loss. The intent of the DCP is to ensure developments are sensitively and skilfully designed, so that a reasonable level of views is retained for the surrounding areas.

34. In Tenacity Roseth SC states:

25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

35. Having the benefit of the site view I am satisfied that the impacts on views from the apartments at No 329 Arden Street are acceptable.

36. In assessing whether the development should be allowed in the form proposed, I adopt the steps in Tenacity in assessing the impacts to the properties in Oberon Street. The view available from each property varies however all enjoy some form of water view and therefore it would be classified as a valuable view. That view is available from the living areas of some of the dwellings and in other cases from bedrooms. All front verandahs currently have a view towards the water and that view is from the front of the property.

37. The extent of impact is severe as in the majority of cases the view will be totally lost. Finally, the reasonableness of the proposal that is causing the impact must be assessed. Whilst I accept that the buildings do not fully comply with the development standards for building height and FSR, the variations, particularly to building height are minor and in no way result in any additional view impacts. It is the agreed position of the experts that the lift overruns only contribute to loss of sky views.

38. FSR is a crude tool and in the circumstances of the case the Oberon Street building is sited so as to comply with the front and side boundary setbacks with greater setbacks provided to Level 3. The development satisfies the DCP controls for landscaped area and therefore the footprint of the building would be compliant. I accept the evidence of the planning experts that the distribution of floor space across the site has been skilfully designed and accordingly do not consider that the breach of the FSR controls contributes to the view loss.

39. I also accept Mr Kyriacou’s evidence that a dwelling house could be erected on the site to within 1.5m of the side boundaries and to a maximum height of 8.5m as Complying Development and therefore, a similar impact to view loss would occur. The council’s assessment of the original application also noted the difficulty associated with retaining views from the Oberon Street properties and stated:

It should be noted that views obtained from the Oberon Street developments at ground and first floor level will be detrimentally impacts if not totally lost within any two storey development. It is considered that view loss from both the single level semi-detached dwellings and the two storey dwelling is unavoidable with any fully compliant development fronting Oberon Street.

40. This fact weighs heavily in my determination of the matter. So too does the fact that the building is only 9.5m above the footpath level in Oberon Street, the result of the tennis court sitting well below street level.

41. For these reasons, I accept that any form of development on the site will result in total loss of views from those properties on the opposite side of Oberon Street and that this will have devastating impacts on the views from those properties. However the development of what is in effect a vacant site, save for it being a tennis court, is one that is anticipated by the planning controls and achieves the objectives of the R3 Medium Density Residential zone. I accept the evidence that a fully compliant development will have the same impacts and consider that the development as proposed is one that is appropriate for the site and is skilfully designed to protect those views that are capable of protection whilst still meeting the planning controls for the site.

42. In relation to other issues raised by objectors, I note that the parking to be provided is in excess of that required under the DCP, that a separation of at least 20m is provided between the balconies of the proposed Oberon Street building and the front verandahs of the dwellings on the opposite side of the street, that distance being well in excess of what is required under the ADG and therefore adequate to address any privacy concerns.

43. The shadow diagrams prepared show that all affected properties will continue to enjoy the minimum solar access anticipated under the DCP and in most cases will exceed that requirement.

44. The conditions of consent have been amended to address the concerns of residents in relation to the timing of demolition, excavation and construction to provide for notification (see condition 32). Condition 31addresses the need to prepare a dilapidation report to assess whether any damage is caused through construction and condition 34 calls for a Construction Noise & Vibration Management Plan and condition 45 addresses the need for support of adjoining land.

45. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are:

1. The appeal is upheld.

2. Development application DA/695/2015 for the demolition of a residential flat building, a dwelling house and a tennis court and the construction of a four storey residential flat building in two building forms and strata subdivision at 325-327 Arden Street, Coogee is approved subject to the conditions set out in Annexure A.

3. The exhibits, other that exhibits A and 2 are returned.

______________________

Sue Morris

Commissioner of the Court

157617.16 - Annexure A - Conditions of Consent (203 KB, pdf)

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Decision last updated: 25 November 2016