Scarf v Randwick City Council

[2010] NSWLEC 1205

Land and Environment Court

of New South Wales

CITATION:

Scarf and Ors v Randwick City Council [2010] NSWLEC 1205

PARTIES:

1st APPLICANT
Dr Michael Scarf

2nd APPLICANT
Dr Charles Scarf

3rd APPLICANT
Mrs Patricia Woods

RESPONDENT
Randwick City Council

FILE NUMBER(S):

10970 of 2009

CORAM:

Murrell C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Residential flat building

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
Randwick Development Control Plan
State Environmental Planning Policy No 1

CASES CITED:

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

DATES OF HEARING:

21 - 22 June 2010 and 29 June 2010

EX TEMPORE JUDGMENT DATE:

29 June 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Robson (SC)
SOLICITOR
Mallesons Stephen Jaques

RESPONDENT
Mr P Rigg (solicitor)
SOLICITOR
Norton Rose

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

29 June 2010

10970 of 2009 Dr Michael Scarf, Dr Charles Scarf, Mrs Patricia Woods v Randwick City Council

This determination was given extemporaneously
and has been edited prior to publication
JUDGMENT

1 The applicant in these proceedings is seeking to erect a residential flat building on the property known as No. 92 Alison Road, Randwick. The subject site is approximately 1,522 square metres with a frontage to Alison Road of 22.8 metres. It is irregular in shape in that the rear portion forms a triangle.

2 Currently on the site, there is a dwelling house to be demolished as part of the development application, and a residential flat building is to be erected with 16 apartments, 21 parking spaces for the units, and four visitor car parking spaces. The proposal is some four storeys in height. The surrounding area is depicted clearly in the aerial photographs that were tendered to the Court as well as the model that became Exhibit E in the proceedings.

3 It is noted that the subject site is adjoined at No. 90 by a single storey residential dwelling, and that at No. 94 there is a residential flat building of some eight to nine storeys in height over two levels of parking at grade and above. The site is also surrounded by a number of other residential flat buildings built over various eras and with different architectural treatments and styles.

4 The subject site is some five kilometres in a direct line from the centre of the Sydney CBD. The area also has the advantage of extensive open space areas with Moore Park Racecourse directly opposite and other extensive public open space areas. Alison Road forms a main arterial road into the CBD.

5 By way of background, these proceedings commenced as a s 34 conciliation conference. There was no agreement reached between the parties and they consented to the Court determining the matter, with a further hearing. The Court had the opportunity of hearing from resident objectors on the two occasions that it visited the site and carried out site inspections. The Court has had regard to the evidence of the objectors and submissions made on their behalf by various representatives.

6 There have been amendments to the development application plans to narrow the issues from the first occasion that the Court met the parties on site. On the second occasion that the Court revisited the site the contentions had been narrowed to that of view impact for two units in the apartment block at No. 94 Alison Road. That is unit No’s. 2A and 2E.

7 It is noted that council officers as well as the design review panel of the council assessed the original application, and there has also been a s 82A review. The development application that is relevant for the Court in its assessment are the plans contained in Exhibit B, and the height of the proposal and the configuration of the units as shown Exhibit B.

8 The proposal must be assessed against the relevant planning framework, which includes the Randwick Local Environmental Plan and the Development Control Plan for multi-unit development.

9 As I stated, the contentions were somewhat narrowed, and the issues in the Amended Statement of Facts and Contentions, Exhibit 1, can be summarized as:

the proposal’s building height and wall height exceeds the maximum prescribed under cll 33(2) and 33(4) of the Randwick Local Environmental Plan 1998. (This is a height control of 12 metres in cl 33(2) for the maximum height of the building, and the subclause 4 of cl 33, has a 10 metre wall height restriction)
the proposal does not satisfy the State Environmental Planning Policy No 1 - development standards. Council contends the proposal is inconsistent with the objective of the maximum building height the and external wall height, and that the SEPP 1 objection for the variations are not well founded.
the proposal has an inappropriate bulk and scale , having regard to the character of the area. However, the focus is on the height, that is, the wall height and the absolute height of the development and the SEPP 1 objection in terms of the impacts of the proposal.
the proposal will result in unreasonable loss of views from neighbouring properties, particularly at No. 94 Alison Road . (units 2A and 2E.)

10 The issue, however no longer pressed by the council, relates to landscaping. The landscaping plan has subsequently been amended, such that it is of no concern to the council. The other issue when the matter first came to the Court was in respect of a SEPP 1 objection for the floor space ratio contained within the LEP. However with a condition attached to the proposal, it is agreed between the experts that the proposal complies with the 0.9:1 floor space ratio as provided for in the LEP.

11 The Court had the benefit of expert advice both on the site inspections as well as concurrent evidence when the hearing resumed in Court.

12 Mr Stuart Harding, a consultant town planner, gave evidence on behalf of the council and provided a statement of evidence. For the applicant expert written and oral evidence was given by Ms Gabrielle Morrish, urban designer and architect, Mr James Harrison, a consultant planner, and the architect of the proposal, Mr Frank Stanisic.

13 On the amended plans the Court also received additional submissions, and there was a bundle of objections as a result of notification provided to the Court by the respondent. The residents had the opportunity of also making submissions in respect of the amended proposal.

14 I preface my assessment to describe the fact the site has a stepped topography with a slope from the north-west corner of the site such that it drops from the rear to the street frontage by some nine metres and this provides for a benched site. It is important to note that the exceedence in both the 10 metre and the 12 metre height standards is shown on the architectural drawings, , and it is important also to note that the benching of the site or the change in topography over the site from the front to the rear, means that the variations or the exceedence in the height limits varies over the site, and this becomes important in an assessment of the application.

15 The Randwick Local Environmental Plan 1998, December 2008 version, must be taken into consideration. There is a later gazetted version of January 2010 that has a savings provision and the determination of this application is as if the 2010 plan had been exhibited but not made. As such the development application must be considered under the LEP in force when the application was submitted.

16 The aims of the Randwick LEP (2008) include:

(c) to create a broad framework of planning controls and council may prepare development control plans for detail policies and guidelines,
(l), to encourage the provision of housing mix and tenure choice including affordable housing in the City.

17 The LEP provides for objectives in cl 9, saying that council may grant consent, when it has considered the extent to which the proposal is consistent with the general aims of the plan and the specific objectives of the zone. In the Randwick LEP, there are the residential zones of 2A; 2B; 2C; and 2D.

18 The subject site is in zone Residential 2C, and the objectives include:

(a) to allow a variety of housing types within residential areas;

(c) to enable residential development in a variety of medium density housing forms where such development does not compromise the amenity of surrounding residential areas; and

(e) to enable a mix of housing types to encourage housing affordability.

19 Other provisions in the LEP, although no longer issues pressed by the respondent relate to landscaped area, and the floor space ratio, which is now compliant.

20 The relevant building height provisions are contained at cl 33 in the 2008 LEP. Clause 33(2) states that:

(2) the maximum height for a building other than a dwelling house within zone 2C, is 12 metres, measured vertically from any point on ground level.
(4) the maximum height for any external wall of a building other than a dwelling house within zone 2C, is 10 metres, measured vertically from any point on ground level.
(6) for the purposes of this clause, chimneys, vents and other service elements may exceed the specified height limits, but only where the Council is satisfied that it will not adversely affect the amenity of adjoining or nearby land”.

21 The Multi-unit Development Control Plan is also relevant, and the development application is one that is generally consistent with its provisions.

22 The threshold question or the precondition that the Court must consider is the objection under State Environmental Planning Policy No 1 to vary the height standards.

23 The respondent referred the Court to the decision of the Chief Judge of this Court, his Honour Preston CJ. In this case of Wehbe v Pittwater Council [2007] NSWLEC 827 the Chief Judge provides a number of methods by which standards may be varied, bearing in mind first that one must have regard to the question of whether in fact the development standard is one that can be varied. It is agreed that this is a development standard capable of variation under SEPP 1, but in assessing a development application against the provisions of a development standard, one must have regard to the objectives, the purpose or the underlying purpose of that standard.

24 I recognise the fact that the SEPP 1 objection, as I stated, is a precondition to a general merits assessment of the development application. During the proceedings, it seemed that there was a blurring of the merit assessment with the SEPP 1 threshold question, so while there was considerable focus on the merits of the application, I must go back to what the SEPP 1 objection requires. That is, to focus my attention on the object of the standard itself, and in this regard, I asked questions of the experts to state what the underlying objective(s) are, given there are no stated objectives. A summary of their comments became exhibit O in the proceedings.

25 Mr Harding, the expert for the respondent, said that he considered the underlying objective or purpose of the standard to be:

“When combined they seek to constrain built form to ensure a multitude of things including overshadowing, privacy, view issues and streetscape. Within a suite of controls, they provide a maximum building footprint.”

26 And Mr Harrison for the applicant said:

"It seems to me that the height controls are intended to operate with other controls to guide an appropriate building with both amenity and character. The stated of purpose does not distinguish between 10 and 12 metre height control. My view is that the 10 metre control is more about shadowing than view. When looking at the 12 metre control, that is more about potential view loss.”

27 Ms Morrish agreed with Mr Harrison and stated:

The controls are there to get appropriate bulk and scale, when combined with other controls. It is important to look at the unique characteristics of the site. The 10 metre control is more about overshadowing privacy and view. There is also a separate definition for wall height, which to me says it’s different.

28 Mr Harding considers that “the wall height is determinative in terms of the foreground. The wall height becomes the leading edge. All it does is facilitate some roof forms. The controls operate as a group.”

29 If I go back to the LEP, after cl 33 although it is a note to the LEP as opposed to setting standards or parameters or setting objectives. The note states:

Purpose: to set upper limits for the height of buildings in residential zones that are consistent with the redevelopment potential of land in those zones given other development restrictions, such as floor space and landscaping, and having regard to the amenity of surrounding areas.

30 It is important that one addresses what the underlying objectives /purposes of the standard are and if I take Mr Harding's position when combined they seek to constrain the built form to ensure a multitude of things, which is privacy, view loss, streetscape… I accept Mr Harding’s purpose of the standard and this clearly includes the bulk of the building and its relationship with adjoining development.

31 I now go to Mr Harding's assessment of the view loss, and the assessment of the view loss in his opinion is one that, with a more skilful design, the views could be retained from those units. First of all, it is important to understand what the views are of the two affected properties. In Mr Harding's opinion, “the views from the kitchen and bedroom of unit 2A are towards the front of the site, and across the front section of the building on the adjacent property. The views from this unit are views from a standing position in the kitchen”. It could be seen when we were on the site that the view is from the window standing at the kitchen sink at the narrow end of the long galley kitchen.

32 Mr Harding states “the proposed development will remove the views from the kitchen and bedroom of unit 2A..the view loss would be devastating”. Mr Harding had photomontages prepared with the assistance of a firm to plot the various 10 and 12 metre height lines, and he considers that the leading edge of the proposed development determines the maximum view loss and in this location, the building exceeds the wall height control by 4.9 metres, and the photomontages he had prepared show that if the flat roof building was compliant with the wall height controls, views would be retained. He also says the photomontage also confirms that if the building were a complying development with a 10 metre wall height and a pitched roof form, the top of that pitched roof would coincide with a small retention of the view of the Centrepoint Tower. He then says, the question is, would an adjustment to the design allow the view to be retained?

33 Mr Harding comments that for unit 2E, a compliant 12 metre building would obscure the view from this unit. The question then remains, could a more skilful design maintain that view? I note that the view for unit 2E is obtained from a portion of the living room, towards the wall nearer the balcony and on the balcony itself at one end of that balcony.

34 The views towards the city skyline, from the two units over the side boundary of the subject site, have been depicted in photomontages and examined extensively by the experts in these proceedings. There was some disagreement as to the reliability of where the parties drew their view loss lines and the accuracy at which that was provided. The applicant’s experts in their evidence noted that the photomontages of Mr Harding did not accurately depict the views, having regard to the height poles that are also shown in those same photographs.

35 The Court also had the opportunity of seeing the extent of the current views from the two units, and understanding with the benefit of the height poles and with the assistance of the experts the extent of the view loss.

36 The respondent’s expert maintains that the views are iconic, and the applicant's experts do not consider them iconic, although they do note that they are views that would be valued by the owners of those units.

37 The Court must also have regard to the context of the views, but before I go into my findings, the applicant's experts’ evidence (in Exhibit C p.10) states that:

“the proposal has no effect on the primary views of the units in the apartment block known as No. 94 which is oriented towards the racecourse, and that where view loss occurs in the case of unit 2A and 2E, the view loss is not the result of non-complying aspects of the proposal. The same view loss would occur whether or not the proposed building complies with the maximum 12 metre height control, and therefore, the proposed view loss is reasonable. The reasons for this opinion are outlined in the specific response to the points made by Mr Harding in Section 4 of this statement”.

38 I note the applicant’s experts also state at p.13:

The views from unit 2A towards the CBD are obtained from a narrow galley kitchen which can be used by one person at a time, (there is no room for a table where people could sit and enjoy their meal and view from the kitchen). This view is obtained from the left side panel of the window and is only obtainable when standing near the window. The view is also obtained from the smaller of the two bedrooms. Both views are obtained over a side boundary. These windows are set a considerable distance from the side boundary, approximately 14 metres from the proposed development. The primary views of unit 2A are from the main living room, balcony and main bedrooms towards the racecourse.
The view from Unit 2A kitchen contains a significant amount of vegetation, adjoining roofs in the immediate foreground and part of the city skyline.
The view from the living room of unit 2E is not of the city, rather it is a local view of the adjoining buildings and vegetation. The Sydney CBD skyline is only visible from the balcony or at the extreme north-eastern corner of the living room. At that point, the view contains vegetation, numerous roofs, TAFE building, adjacent development to north in Cowper Street, and a portion of the city skyline.

39 The experts for the applicants further state that:

“Mr Harding does not acknowledge that all the views towards the Sydney CBD are obtained over the side boundary of the property and across the subject site, and as noted in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, the protection of views from side boundaries is more difficult”.

40 In terms of the extent of the impact, they note that :

“The impact is generated by the complying element of the building and not the elements which exceed the 12 metre height control. With regard to unit 2E, the city view skyline is not available from the majority of the living room, and that the view is only available standing close to the sidewall of the balcony”.

41 They note at pages14 of their report that Mr Harding discusses a number of theoretical design changes in paragraphs 21 –23 which in his opinion would result in an appropriate view being retained. They state:

“however, he has not discussed the consequences of these changes on the floor space of the development or the design quality of the building… and the urban scale of the important streetscape of Alison Road”. They state that to adopt Mr Harding's suggestion would result in a loss of fourth floor of the front section of the proposed building, in the case of 2E, potentially some of the third floor. This would be equivalent to approximately 250 square metres, approximately 15 per cent of the floor space, and in their opinion, this is not what the more skilful design context provides for.”

Of the two height controls, they say that the 12 metre control determines the extent of view loss, not the 10 metre height control, and therefore compliance with the 10 m control is unnecessary and unreasonable…
The consequence of reducing height to strictly comply with the 10 metre wall height and 12 metre ridge height control would not achieve a better outcome, as a compliant building would still result in a similar view loss of the city…”

42 Appendix G to the report, Exhibit C shows the 12 metre and 10 metre height lines, and one can see in the locations of where units 2A and 2E are, there is very little exceedence in the 12 metre height, although a greater exceedence clearly in the 10 metre line.

43 The subject site in terms of its relationship with number 94, has some 12 to 20 metres separation, and while I accept Mr Harding's evidence that the leading edge is the 12 metre wall height, at the same time, if one designed a roof, a gable roof or a pitch roof, and having regard to the best case scenario put forward by Mr Harding, the view loss may not be to the same degree as the proposal but nonetheless, one then has to look at what very limited view would then be retained with a compliant development and the importance and context of the view retained. It is not just a matter of looking at the view today, and clearly, I do appreciate the owners of properties appreciate any view that they may have. The question is with a complying building what would be the importance of the view retained, the extent of the view and the context of the view. One must also have regard to the extent and distance to the view and the visibility or prominence of same and from where it is obtained.

44 It is agreed between the experts that view loss, is amongst other things (overshadowing and bulk) one measure of impact on amenity of adjoining properties, and part of the underlying objectives. The subject wall height of the proposed development in my assessment satisfies the underlying purposes/ objectives, and the SEPP 1 objection is well founded. I have determined that the variations to the 10 metre and 12 metre controls in terms of the underlying objectives articulated by both parties experts, are justified in the circumstances of this case.

45 SEPP 1 also requires the Court to have regard to the aims and objectives of the Policy which is to provide for flexibility in circumstances where strict compliance is unreasonable or unnecessary. One must also have regard to any regional or state issues, and I am satisfied that these are not called up in the variation to the standard in the circumstances of this case.

46 Clause 6 of the SEPP also states that where development could but for the standard be carried out, must be supported by written objection, and in this regard, exhibit L was provided to the Court which is the written objection, and I am satisfied together with the evidence from the Court, including that of the experts, that the objection is one that is well founded, and the SEPP 1 objection should be upheld.

47 When I look at the photographs that have been provided from both the applicant and the respondent while there will be a view loss, in my assessment the 10 metre wall and 12 metre roof heights do not retain a significant view, and I accept the evidence of the applicant that it is not a case of just a more skilful design.

48 Even if I have regard to the fact the 12 metre control would not be the leading edge but with a pitched roof, in the circumstances of this case, and this includes the fact that the two units at No. 94 are currently afforded a view over the side boundary of the subject site, but also in terms of the suite of controls which the experts agreed, are matters that one must have regard to in my assessment it would be unreasonable to require a redesign because of the impact on the development potential of the subject site. And I say this by way of reference to Mr Harding's photo-montages that the view that would be retained, even with a 12 metre pitched roof as opposed to a wall height of that height is one that would not be meaningful in the true sense of the word, and the impact on the development potential of the subject site, as I said, would be unreasonable and unnecessary.

49 I do not believe that it is a matter of a more skilful design. The respondent provided the Court with a copy of an assessment of No. 120 Alison Road, Randwick, and while there was a variation or a design amendment to provide for increased sharing of views the circumstances of that case are different to the facts in this appeal.

50 The other impacts question relate to the dwelling house No. 90. The Court had the opportunity of viewing this property on two occasions. The subject development is designed to provide for a residential flat building, consistent with the zone and its objectives. The separation distances from the boundary of No. 90 provide for 10 metres to the wall of the proposed development, and 7 metres to the balcony with privacy screen treatment provided. It is agreed between the experts that this would not warrant refusal of the development application, and I agree with this assessment.

51 Clearly, the subject site is in an area that is experiencing change and transition. The property at No. 90 together with other properties, is also zoned to permit residential flat buildings, and while change will be experienced and expected in the area, the amenity for the occupants of number 90 should be reasonably considered and I am satisfied that the amenity and privacy has reasonably been addressed in the application now before the Court. It is often a balancing exercise where there are dwellings within a residential flat zone where in the future, not perhaps the immediate future, these dwelling house sites will also be redeveloped to take advantage of the proximity to the city and the existing infrastructure. However in the interim change will not always be embraced.

52 The test or the question for the Court is whether the change brought about by a proposed redevelopment is reasonable or not, and I am satisfied that the design of the proposal has had regard to maintaining reasonable amenity for No 90.

53 I note that the proposed development has been assessed in terms of State Environmental Planning Policy No. 65 ­ Urban Design and there are 10 design principals that have been addressed by the applicant. I am satisfied that in terms of the context, the scale, built form, the density of the proposal, the landscaping proposed and the amenity, that is, the external amenity afforded to other properties and the internal amenity of the units themselves, the principle of energy and efficiency and the other principles that the proposed development is well designed, and is worthy of approval.

54 In many respects the merits assessment of the application in terms of s79C of the Act overlaps with the SEPP 1 assessment. In this case there has been a relatively narrow focus of the contentions on the view loss from two units at No. 94 and in my assessment this would not warrant refusal of the application. I am also satisfied in terms of s79C there are no outstanding matters that would warrant refusal of the application, and the proposal will sit appropriately in its context. Clearly, existing developments from previous eras must be taken into account in the design of new buildings, both to provide for amenity of the occupants of new developments, and to maintain a reasonable level of amenity for surrounding developments and I am satisfied the proposal achieves this.

55 In my overall assessment I am satisfied that the proposal is worthy of approval and the appeal should be upheld.

ANDREWS: Commissioner, may I just clarify, there was only one condition in dispute between the parties.

COMMISSIONER: There is, yes and I should have addressed it.

56 The one condition in dispute is the condition requiring the undergrounding of the overhead electricity and cables. On the basis of the evidence to the Court, council commenced a policy initiative some years ago , 2005 from memory, to provide for undergrounding of overhead cables in the event of when properties are redeveloped.

57 The Court considered the status of this policy direction, which from the council’s minutes was to be confirmed and fleshed out further. Unfortunately, this has not been done to date. It also appears that the conditions require a s 94 contribution, although I am not saying that this would pay for the cost of undergrounding generally.

58 During the proceedings questions were asked as to the cost to the applicant and advice was this would be considerable. Also I must have regard to what is a practical way of undergrounding cables in the local government area, not just for the 22 metre boundary of the subject property with Alison Road, but then what occurs either side. Clearly, the property at number 94 is highly unlikely to be redeveloped. The advantage of providing undergrounding at various points with no overall strategy is a matter that no doubt the council will be considering in a further review of this policy initiative anticipated in the report that was put up to the council on the first occasion.

59 In the circumstances I have deleted the condition requiring undergrounding of electricity and cables because I do not believe that there is a nexus with this development application to impose such a condition and in these circumstances where redevelopment is most unlikely at No 94 little would be achieved overall to require undergrounding for the frontage of this property.

60 Accordingly the formal orders of the Court are:

1. the appeal in respect of the property known as No. 92 Alison Road, Randwick, is upheld;
2. the development application submitted to Randwick City Council and as amended, shown in Exhibit B, is approved subject to the conditions, Exhibit 8 in the proceedings.
3 the exhibits are returned to the parties except for B, C, G, H and L, and Exhibits 1 and 5.

___________________

J S Murrell
Commissioner of the Court
ljr