Williamson v Randwick City Council

[2021] NSWLEC 1460

Land and Environment Court

New South Wales

Medium Neutral Citation:

Williamson v Randwick City Council [2021] NSWLEC 1460

Hearing dates:

3-4 August 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 231/2020 for the demolition of existing structures and the construction of a four storey residential flat building over basement parking and associated landscaping works, is approved, subject to the conditions of consent at Annexure A.

(3) The Respondent is to register the development consent granted in relation to DA/231/2020 on the NSW planning portal within 14 days of these orders.

(4) The Respondent is to publish a notice of the development consent granted in relation to DA/231/2020 on its website in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) within 14 days of the date of these orders.

(5) The exhibits, other than Exhibits 2, A, B and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION – demolition of an existing residential flat building and construction of a four storey residential flat building over basement parking – the proposed development will not reduce the availability of affordable housing in the area – exceedance of the external wall height control

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, s 6.7

State Environmental Planning Policy (Affordable Rental Housing) 2009, Pt 3

Texts Cited:

NSW Department of Planning, Affordable Rental Housing SEPP Guidelines for Retention of Existing Affordable Rental Housing, (October 2009)

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Darren Williamson (First Applicant)
Joanna Williamson (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicants)
R White (Respondent)

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

File Number(s):

2020/270559

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 231/2020 for the demolition of an existing residential flat building and construction of a four storey residential flat building comprising 3 units, basement car parking, landscaping and associated works (the proposal) at 12 Severn Street, Maroubra (the site) by Randwick City Council (the Council).

2. The appeal was subject to conciliation on 11 February 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated, pursuant to s 34(4) of the LEC Act, as agreement was not reached.

3. Leave was granted by the Court on 1 June 2021 for the applicant to amend the application by relying on amended architectural drawings (Ex B), subject to an order that the applicant pay the Council’s costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act.

Issues

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

• The demolition of the existing building will result in loss of affordable housing from the local area.

• The proposal is inconsistent with the objectives for the R3 zone under Randwick Local Environmental Plan 2012 (LEP 2012).

• The proposal will result in an adverse visual impact in the foreshore scenic protection area.

• The proposed fourth storey does not present sufficiently as a habitable roof space and does not create an interesting roof form, contrary to the future desired character for medium density development in the area.

• The external wall height of the proposal is excessive.

• The view analysis provided by the applicant is inconsistent with the Court’s requirements. A more skilful design, compliant with the external wall height control would give the occupants good levels of amenity without compromising the amenity of neighbours towards the north-west.

The site and its context

5. The site is located on the north-eastern side of Severn Street, at the end of the cul-de-sac. Hereward Reserve Playground is a reserve at the end of the cul-de-sac and provides pedestrian access from Hereward Street to Severn Street.

6. The site is relatively flat with a slight fall across the site. The site has a reduced level (RL) at the northern, rear corner of the site of 19.8 and RL 18.97 at the diagonally opposite, southern corner of the site, which is the lowest point on the site.

7. The site has an area of 617.3m², with a frontage to Severn Street of 15.24m.

8. The site contains a two storey residential flat building with four units. The site is very close to Maroubra Beach, accessed via a short walk down Severn Street and across Marine Parade. The site is also a short walk from the neighbourhood shops opposite the beach.

The proposal

9. The proposal is designed by Madeleine Blanchfield Architects, and includes the following:

• Basement: parking for 5 cars, vertical circulation, plant and storage;

• Ground Floor: living areas of Unit 1;

• First Floor: 4 bedrooms and living room of Unit 1;

• Second Floor: 3 bedrooms and living areas of Unit 2;

• Third Floor: 3 bedrooms and living areas of Unit 3.

10. The uppermost level of the proposal is setback from the façades below by 300mm and the façades of this level are clad in lightweight timber replica non-combustible cladding. The roof is concealed behind the parapet of the uppermost level. The façades of the middle two levels are constructed in off form concrete and the ground floor façades are clad in brickwork. The proposal includes external louvres (Ex B, Dwg DA.902 Rev C).

Planning framework

11. Part 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the proposal at cl 49(1)(a).

12. The parties agreed that the existing Units 3 and 4 meet the definition of a “low-rental dwelling”, as defined (cl 47(1), SEPP ARH):

low-rental dwelling means a dwelling that was let at a rental not exceeding the median rental level at any time during the relevant period, as specified in the Rent and Sales Report, in relation to a dwelling of the same type, having the same number of bedrooms and located in the same local government area.

13. The “relevant period”, under cl 47 of SEPP ARH, means the period commencing 5 years before the day on which the development application involving the building is lodged and ending on that day. The application was lodged on 27 May 2020.

14. The “Rent and Sales Report” is not in evidence, however, an agreed rental schedule, showing median rental level (in relation to a dwelling of the same type, having the same number of bedrooms and located in the same local government area) and the actual rents for the four apartments in the existing building during the relevant period, is attached to the planners’ joint report (Ex 3, Annexure 2).

15. A person must not demolish a building to which Part 3 of SEPP ARH applies except with development consent, at cl 50(1). In determining a development application referred to in sub-cl (1), the consent authority (or the Court exercising the functions of the consent authority) is to take into account the guidelines (Affordable Rental Housing SEPP Guidelines for Retention of Existing Affordable Rental Housing October 2009, Ex 5) and each of the following, at cl 50(2):

(a) whether there is likely to be a reduction in affordable housing on the land to which the application relates,

(b) whether there is available sufficient comparable accommodation to satisfy the demand for such accommodation,

(c) whether the development is likely to cause adverse social and economic effects on the general community,

(d) whether adequate arrangements have been made to assist the residents (if any) of the building likely to be displaced to find alternative comparable accommodation,

(e) the extent to which the development contributes to any cumulative loss of affordable housing in the local government area,

(f) the structural soundness of the building, the extent to which the building complies with any relevant fire safety requirements and the estimated cost of carrying out work necessary to ensure the structural soundness of the building and the compliance of the building with the fire safety requirements,

(g) whether the imposition of a condition requiring the payment of a monetary contribution for the purposes of affordable housing would adequately mitigate the reduction of affordable housing resulting from the development…

16. The Council did not raise an issue in relation to (b) to (e) of the criteria, and the applicant conceded that there is no pressing justification for demolition, pursuant to criterion (f). The dispute between the parties centres on criterion (a) and the Council pressed for a condition of consent pursuant to criterion (g) on the basis that there is likely to be a reduction in affordable housing as a result of the demolition of the existing building.

17. The site is zoned R3 Medium Density Residential pursuant to LEP 2012. The objectives of the R3 zone, to which regard must be had, 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.

18. The proposal complies with the height of buildings development standard of 12m (cl 4.3 and Height of Buildings Map - Sheet HOB_008 of LEP 2012) and the floor space ratio (FSR) development standard of 0.9:1 (cl 4.4 and Floor Space Ratio Map - Sheet FSR_008 of LEP 2012).

19. Clause 6.7 of LEP 2012 applies to the site at sub-cl (2) because the site is within the area identified as being the foreshore scenic protection area (Foreshore Building Line Map Foreshore Scenic Protection Area Map – Sheet CL1_008 of LEP 2012). Sub-clause (3) is in the following terms:

(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is 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.

20. Randwick Development Control Plan 2013 (DCP 2013) applies to the site at Part A Section 1.4. Part C2 of DCP 2013 contains objective and design controls which apply to development for the purpose of medium density housing. The Council raised contentions in this matter regarding Part C2 Sections 4.1 Building façades, 4.3 Habitable roof space, and 4.4 External wall height and ceiling height, as follows:

“4.1 Building Facade

Explanation

The treatment and detailing of building facades has a significant impact on the apparent scale and proportion of developments and contribution to the streetscape. A skilful façade design requires the appropriate disposition of building elements, textures, materials and colours, which reflect the function, internal layout and structure of a development.

Objective

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

• To encourage contemporary and innovative design to establish a preferred neighbourhood character in new and transitional residential areas.

…

4.3 Habitable Roof Space

Objectives

• To broaden the dwelling mix by creating opportunities for larger sized units on the uppermost storey.

• To promote high amenity apartment design with flexible layout and good natural ventilation.

• To provide opportunities for creating interesting roof forms that contribute to the streetscape and neighbourhood character.

Controls

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

- Optimises dwelling mix and layout, and assists to achieve dual aspect or cross over units with good natural ventilation.

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

- Wholly contain habitable areas within the roof space.

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

- Design windows to habitable roof space as an integrated element of the roof.

…

4.4 External Wall Height & Ceiling Height

Explanation

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

The external wall height control has been devised to ensure that adequate floor to ceiling height, realistic floor slab and roof construction and basement or semi4basement car parking could be achieved under different topographical conditions.

Definition:

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

Objectives

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

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

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

Controls

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

Public submissions

21. One resident objector gave evidence at the commencement of the hearing, via MS Teams. Their concern is that the construction of the basement, setback 5m from the shared rear boundary with 425 Maroubra Road, may result in damage to the hardstand areas at the rear of 425 Maroubra Road. In response to this concern, the conditions of consent include a requirement that a dilapidation report for 425 Maroubra Road, including the hardstand areas at the rear of the property, be prepared, prior to the issue of a construction certificate (condition 31, Annexure A).

Expert evidence

22. The applicant relied on the expert planning evidence of Andrew Darroch and the Council relied on the expert planning evidence of Sohail Faridy. The experts prepared a joint report (Ex 3) and gave oral evidence.

The proposal will not result in the loss of affordable housing

23. The parties agreed that Part 3 of SEPP ARH applies to the proposal because two units within the existing residential flat building, Units 3 and 4, are low-rental dwellings within the meaning of the definition at cl 47 of SEPP ARH, because they were each let at a rental less than the median rental level during the whole of the relevant period.

24. The applicant submitted, notwithstanding that the two units each meet the definition of a low-rental dwelling, that those units are not genuinely low-rental dwellings because they have been let during the relevant period at a rental rate below the market value for each unit. For this reason, the demolition of the existing building will not result in the loss of affordable rental housing. Alternatively, the imposition of a condition requiring a monetary contribution for affordable housing is discretionary, pursuant to cl 50(2) of SEPP ARH, and the Court should not impose such a condition on the consent.

25. The Council submitted that the proposal will result in a reduction in affordable housing on the land, pursuant to cl 50(2)(a) of SEPP ARH, and that a condition requiring the payment of a monetary contribution for the purposes of affordable housing, pursuant to cl 50(2)(g) of SEPP ARH, would adequately mitigate the reduction of affordable housing resulting from the development.

26. The parties agreed that the contribution amount is $163,500.00, as determined by the formula at cl 51(3) of SEPP ARH, should I be minded to impose a condition pursuant to cl 50(2)(g) of SEPP ARH.

27. I accept the applicant’s submission that the two units, Units 3 and 4 in the existing residential flat building, are not genuinely affordable rental housing and therefore the demolition of the existing building will not result in a reduction in affordable housing on the land to which the application relates, for the reasons that follow.

28. I accept Darren Williamson’s evidence, the owner of the property, as follows:

• Mr Williamson let Unit 3 in July 2012 at an agreed rental rate of $490 and that rate has remained unchanged since, because the tenant assisted with maintenance in and around the building; the tenants became close friends; and the tenants were happy to live in the same building as the landlord.

• Mr Williamson let Unit 4 in December 2014 at an agreed rental rate of $571 and that rate remained unchanged because the tenant became a close friend; and the tenant was happy to live in the same building as the landlord.

• Mr Williamson did not engage a real estate agent to manage the tenancies and managed them himself.

• The market rents for the two units, at 3 August 2021, are $740/per week for Unit 4 and $720/per week for Unit 3, based on the estimate given by a property manager of a local real estate agency (Ex E, Annexure B).

• Mr and Mrs Williamson occupied Units 1 and 2 from 2007 until August 2018. Following the owner vacating the units, the units were rented for $1,500/per week, for the remainder of the relevant period.

29. Units 1 and 2 were rented for an amount exceeding the median rental level for the whole time they were rented during the relevant period. As Units 1 and 2 are on the ground floor, and Units 3 and 4 are on the first floor of the existing building, and all four units are two bedroom units, the numerically significant exceedance of the median rental level by Units 1 and 2 demonstrates that Units 3 and 4 were let at rates that were below the market rental rate during the same period.

30. The property manager of a local real estate agency, in estimating the current market rents for Units 3 and 4, described the units as being “in an unbeatable location” (Ex E, Annexure B). I take this to mean that the location of the site, so close to Maroubra Beach and the local shops, is highly desirable to tenants. It is inconceivable that such a desirable location will result in a market rental rate that is below the median rental rate for a comparable two bedroom unit in the same local government area. No evidence was adduced to suggest that any of the units are in a condition that would depress their rental market value when compared to a dwelling of the same type with the same number of bedrooms. A two bedroom unit which is a hop, skip and a jump from the surf at Maroubra Beach is not affordable housing when it is let at a market rent.

31. The applicant proposed a condition requiring the consent holder to give the tenants of Units 3 no less than 60 days’ notice before they are required to vacate the site and that the applicant provide those tenants with assistance in locating suitable alternative accommodation if required including obtaining a written agreement with a local real estate agent giving those tenants first option for comparable accommodation that comes onto the market at that time. On the basis of the evidence of those tenants (Ex E, Annexure C), the condition proposed by the applicant is not necessary because the tenants are aware that the existing building is to be redeveloped and are confident they will be able to find alternative accommodation.

The form of the uppermost storey

32. Control (i) of Part C2, Section 4.4 of DCP 2013 limits the external wall height to 10.5m for sites subject to a 12m height of buildings development standard, which includes this site. The external wall height is measured from the existing ground level to the “topmost point of an external wall”. In construing this control, I have had regard to the explanations and diagrams in this section of DCP 2013. The “topmost point of an external wall” is not limited to external walls that form the outermost façade of the building’s footprint but include all external walls that make up the building’s envelope. The parapet of the uppermost storey is an external wall and is part of the building envelope. That the walls of the uppermost storey are setback 300mm from the façades below does not exclude those walls from the 10.5m external wall height control. The measurement is to be taken from existing ground level directly below the parapet, within the proposed building footprint. I accept the Council’s submission and Mr Faridy’s evidence that the proposal breaches the external wall height control for medium density development with a 12m height of buildings development standard in DCP 2013.

33. The Council did not raise a contention regarding the proposal’s ceiling heights. The floor to floor heights across the four levels of the proposal are 3.05m.

34. Section 4.15(3A)(b) of the EPA Act requires that the consent authority (or the Court exercising the functions of the consent authority) be flexible in applying a provision that sets a standard with respect to an aspect of the development if the application does not comply with that standard, and allow reasonable alternative solutions that achieve the objects of that standard. The relevant objectives for the external wall height control in DCP 2013 are to ensure that the building form provides for interesting roof forms and is compatible with the streetscape; and to control the bulk and scale of development and minimise the impacts on the neighbouring properties in terms of overshadowing, privacy and visual amenity.

35. I accept the applicant’s submission that the proper construction of the terms of the provision for habitable roof space for medium density development in DCP 2013 make the provision of accommodation within a roof space the prerogative of the applicant and do not mandate a particular roof form for medium density development.

36. The Council pressed for a greater setback of the uppermost storey from the façades below, citing the habitable roof space control requiring a maximum 65% floor area of the storey immediately below. However, increasing the setback of the external walls of the uppermost storey from the façades below would not result in a proposal that complies with the external wall height control, because the wall height of the parapet walls would remain more than 10.5m above the existing ground level directly below. The proposal complies with the FSR development standard and so an uppermost storey with a smaller footprint would not only not comply with the external wall height control but would also displace the volume removed from the uppermost storey to elsewhere on the site. A pitched roof maintaining the same volume would likely result in greater amenity impacts on surrounding development when compared to the proposal by increasing overshadowing and impacting on views across the site. For these reasons, I find that the architectural solution has successfully titrated the opportunities and constraints of this site and the applicable standards and controls, and realised an elegant, restrained and reasonable solution which will contribute positively to the architecture and character of the Maroubra Beach precinct.

37. I do accept that successful architectural compositions can include setting back upper storeys and that can ameliorate bulk and amenity impacts, however, a number of the neighbouring developments cited by the Council as being “good examples” of setting back uppermost storeys, including contemporary developments in Severn Street, are in fact examples of very mediocre architecture that do not, in my view, make a positive contribution to the urban character of the Maroubra Beach precinct. Furthermore, the Council seeks to conflate the external wall height control and the habitable roof space control requiring a maximum 65% floor area of the storey immediately below to achieve a building envelope which includes a setback of the uppermost storey, despite the fact that further setting back the uppermost storey from the façades below will not result in a proposal that complies with the external wall height control. There is no control actually requiring the uppermost storey to be setback from the façades below. The external wall height control is to allow for a pitched roof form. It does not address a roof concealed behind a parapet.

38. I accept Mr Darroch’s evidence that the proposal is compatible with the existing development in the locality, which is dominated by 3 and 4 storey residential flat buildings. The more contemporary residential flat buildings have flat roofs.

39. The uppermost storey of the proposed development is distinguished as a roof-like element by its materiality and detailing. The uppermost storey is consistent with the subtle and refined expression and contemporary detailing of the form of the proposed building. I am satisfied that the proposal provides for an interesting and articulated form that is compatible with the streetscape.

40. I accept the agreed evidence of the planning experts that the proposed building envelope provides compliant solar access to dwellings in the vicinity of the site (Ex B, DA.917 Rev A). There is no unreasonable impact on views from dwellings to the north-west of the site, because those views are already impacted upon by the long western wall of the residential flat building at 10 Severn Street, which has a parapet of RL31.04 (Ex B, site survey), compared to the parapet of the proposal of RL31.19 (Ex B, DA.404 Rev F) and the proposal substantially sits within the portion of the view already obstructed by 10 Severn Street for views to the south-east across the site; and the front setback of the proposal is compliant with the prevailing setback established on the northern side of Severn Street. Setting back the uppermost storey on the eastern and western sides, or adding a pitched roof, would not improve the views obtained from existing dwellings to the north-west of the site, when compared to the proposal. Further setting back the southern extent of the uppermost storey would not significantly improve the views obtained from surrounding dwellings, as the same view angle is obstructed by development on the southern side of Severn Street (see Ex B, DA.1004 Rev A). The windows and balconies of the units include external louvres. I am satisfied that the proposal sufficiently minimises the impacts of the building envelope on the neighbouring properties in terms of overshadowing, privacy and visual amenity.

41. I have given weight to the building envelope’s compliance with all the applicable standards and controls (excluding the external wall height control) including the height of buildings development standard, the FSR development standard, setback controls, and the landscaped area and deep soil controls, in exercising the flexibility mandated by s 4.15(3A)(b) of the EPA Act in regard to the external wall height control for medium density development in DCP 2013. I am satisfied that the proposal is consistent with the objectives for external wall height.

42. I am satisfied that the façades are suitably articulated and that the very small portion of the building that will be able to be seen from Marine Parade and the foreshore area will contribute to the scenic qualities of the coastline.

43. The proposal represents an accomplished work of architecture that, when realised, will make a very positive contribution to the quality of architectural design in the Maroubra Beach precinct.

Conclusion

44. I am satisfied that there will not be a reduction in affordable housing on the land to which the application relates and for this reason it is not appropriate to impose a condition requiring the payment of a monetary contribution for the purposes of affordable housing.

45. The proposal is consistent with the R3 zone objectives because it recognises and responds to the desirable elements of the existing streetscape and built form that contribute to the existing and emerging character of the area; and it protects the amenity of existing and future residents in the vicinity of the site.

Orders

46. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 231/2020 for the demolition of existing structures and the construction of a four storey residential flat building over basement parking and associated landscaping works, is approved, subject to the conditions of consent at Annexure A.

3. The Respondent is to register the development consent granted in relation to DA/231/2020 on the NSW planning portal within 14 days of these orders.

4. The Respondent is to publish a notice of the development consent granted in relation to DA/231/2020 on its website in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) within 14 days of the date of these orders.

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

____________

Susan O’Neill

Commissioner of the Court

Annexure A (528276, pdf)

**********

Decision last updated: 13 August 2021