Woodbridge v Randwick City Council

[2024] NSWLEC 1270

Land and Environment Court

New South Wales

Medium Neutral Citation:

Woodbridge v Randwick City Council [2024] NSWLEC 1270

Hearing dates:

30 April 2024

Date of orders:

28 May 2024

Decision date:

28 May 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA/315/2020 is modified by consent in the terms set out in Annexure A.

(3) Development Consent DA/315/2020 is subject to the consolidated conditions as modified by the Court and described in Annexure B.

Catchwords:

MODIFICATION APPLICATION – improved amenity to an adjoining resident – privacy screening attached to dwelling – optimised view sharing

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, ss 98, 113

Randwick Local Environmental Plan 2012

Cases Cited:

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Randwick City Community Engagement Strategy

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Dean Joseph Woodbridge (First Applicant)
Yasmin Noni Woodbridge (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
O’Gorman-Hughes (Applicants)
Astill (Respondent)

Solicitors:
G Hartley (Applicants)
V McGrath (Respondent)

File Number(s):

2024/21692

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal relating to Modification Application DA/315/2020/B (MA) seeking to amend conditions attached to Development Consent DA/315/2020 (the Consent), for the demolition of existing structures and construction of a dwelling on CP, Lot 1, Lot 2 and SP14795, also known as 7 Inman Street, Maroubra (the site).

2. The Consent was approved by Randwick City Council (hereafter the Council) on 6 January 2022, and subsequently modified by consent of Modification Application DA/315/202/A on 2 May 2022, pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The MA under appeal was lodged and approved by Council on 19 October 2023 and January 2024, respectively. The Consent was modified relating to Conditions 2 (a-n).

4. The Applicants appeal relates to the amendments made to Conditions 2(a), (b) and the addition of Condition 2(n), as described in the Statement of Facts and Contentions, dated 4 March 2024. The appeal is made pursuant to s 8.9 of the EPA Act, under consideration of s 4.55(2). The conditions that are assessed are described below:

Condition 2a:

a. A privacy screen having a height of 1.6m (measured above finished level) shall be provided to the northern side of the front, ground level terrace. The width of the screen shall measure 1.7m starting from the front building elevation towards the western front boundary.

The privacy screen must be constructed with either:

• Translucent or obscured glazing (The use of film applied to the clear glass pane is unacceptable);

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

• 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.

Condition 2b

b. The following window/s must have a minimum sill height of 1.6m above floor level, or alternatively, the window/s are to be fixed and be provided with translucent, obscured, frosted or sandblasted glazing below this specified height:

• Ground level TV room (WG-01b)

• First floor bedroom 3 window (WF-03b).

Condition 2n:

n. The planter box to the northern side of the rear terrace must be fixed and shall be planted with a landscape screening species with a minimum mature height of 1.6m.

5. The Land and Environment Court (the Court) agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (Court Act), starting with an onsite view. The site view included a streetscape walkover, attaining oral submission from an adjoining resident at 5 Inman Street, including a view from this dwelling, and a walk through the new dwelling (under construction), specifically focusing on the TV room, balcony and Bedroom 3, the subject of the assessment.

6. The objector’s oral submission relates to rooms in her existing dwelling at 5 Inman Street, located north of the site. The relevant rooms are at the front of the building on the ground and first floors. These rooms have windows directly facing (south) onto the site, which are identified by the resident as being used for a (future) dressing room and study, on the ground and first floors, respectively. There are also bedroom windows that face onto the street, being in close proximity to the (northern) site boundary. The resident at 5 Inman Street was not agreeable to privacy screens being fixed to the fence.

7. At the conciliation conference, the parties were unable to reach an agreement, therefore the conciliation was terminated, and a hearing was held forthwith, pursuant to s 34AA(2)(b) of the Court Act. The parties agree that the Court can rely on the observations and resident submission made during the (conciliation conference) site view for the purpose of the hearing.

8. It was observed during the site view that the new dwelling on the site offers (northerly) water views extending towards Wedding Cake Island. This is observed throughout the dwelling, including from the subject rooms (TV room on ground floor and Bedroom 3 on first floor), and ground floor front balcony (off the TV room).

9. The streetscape was observed as being dominated a variety of architectural styles, with one and two storey dwellings that generally orient their living spaces, windows and balconies to optimise the water view towards the north (east and west). There is limited reliance on privacy screening for dwellings in the street, with screens generally attached to balconies and windows. The land/water interface is visible along the length of the street.

10. The Applicants have made no formal application, by way of a Notice of Motion, to the Court to amend the MA, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). As explained to the Court, the Applicants seek that Conditions 2(a), (b) and (n) are amended to ensure that the views are retained from the TV room, front balcony and Bedroom 3. They agree that privacy screening to provide amenity to the resident of 5 Inman Street is reasonable.

11. At the hearing, it was explained that the planning experts, Messers Turisi and Betros, for the Respondent and Applicants, respectively, agree on the style, length, height and form of louvers as a privacy screen, to provide amenity (privacy) to the front south facing windows of 5 Inman Street. The experts agree that the view towards the water should be optimised by the use of angled louvers, that also provide the desired privacy of the adjoining resident.

12. In oral evidence it was explained that the experts were in agreement with a glazing option to the TV room and ground floor balcony, as explained in their joint expert report, Exhibit 2. However, their oral evidence states that, after observations made during the site view, angled louvers would provide a better option for both the retention of views from the site and amenity to the adjoining property.

13. The dispute between the experts relates to the fixing location of the privacy screen to shield the direct line of sight from the northern TV room window and adjoining balcony. The parties refer to the Applicants preferred fixing location of the privacy screen on the retaining wall as Option B, and the Council’s preferred fixing location on the building as Option A, shown in Exhibit D. The experts agree to the fixing location of the privacy screen to Bedroom 3 (north) windows attached to the outside of the building.

14. The views attained from the windows and balconies of the new dwelling on the site are agreed by the experts as being important to retain, consistent with the planning principles for view sharing established in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140. These views are capable of being retained without being at the expense of causing amenity impacts to the adjoining residents. This can be achieved by skilful design and careful placement of the privacy screens. The issue between the parties, and that the Court has considered to resolve, is the potential for the privacy screens fixed to the retaining wall to cause adverse bulk and scale in the streetscape.

15. The requirements of ss 4.55(2) and (3) of the EPA Act are considered in granting consent to the modification of the Consent, as follows:

4.55 Modification of consents—generally(cf previous s 96)

….

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

….

(3) 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.

16. There is no dispute that the planter box to the north of the rear terrace provides an effective screening, as described in Condition 2(n), which is accepted by the Court.

17. The modifications to the Consent and specifically Conditions 2(a) and (b), as described in Annexure A, that are adopted by the Court, are consistent with ‘option A’ described in Exhibit D. These modifications are substantially the same as originally approved under the Consent, specifically with regards to the built form consideration of the existing dwelling, the streetscape or providing amenity to the adjoining resident.

18. The original Consent always sought to ensure a form of privacy screening to the subject locations on the dwelling, as described in Conditions 2(a) and (b). The amended Conditions 2(a) and (b) described in Annexure A are consistent with the intent of the original Consent, and provide for a more skilful design and form of the screening, that protects and enables view sharing.

19. The requirements of s 4.55(2)(a) are considered satisfied by the amendments made to Conditions 2 (a) and (b), and adoption of Condition (n) of the Consent. There are no concurrence requirements, therefore s 4.55(2)(b) is not relevant in consideration of the MA.

20. The Council confirms that the notification of the MA was made, pursuant to the requirements of the Randwick City Community Engagement Strategy and the Randwick Development Control Plan 2013 (RDCP), with three submissions received. The (objector) submissions have been considered in the Courts merit assessment of the MA, which are provided in Exhibit 1. The oral submission of the resident at 5 Inman Street is also considered by the Court, with notes provided in Exhibit G. The proposed privacy screens, as explained to the Court, are agreed by the experts to provide an improved amenity to the adjoining resident at 5 Inman Street. Retaining the adjoining resident amenity, specifically privacy, has been addressed by the proposed design and placement of louvered privacy screens accepted by the Court, and described in Conditions 2(a) and (b), in Annexure A. Sections 4.55(2)(c) and (d) of the EPA Act are satisfied.

21. I accept the experts’ evidence, that the proposed screens, described in options A and B of Exhibit D, will retain the iconic views to the prominent natural features, as sought by residents of the site. I do not accept that the placement of a privacy screen on the retaining wall lessen the retention of views, as posed by Mr Turisi. There is no view analysis in evidence, therefore I rely on my own observations and understanding of the proposed design. I am of the opinion that the placement of the privacy screens on the building for the ground and first floors of the building (described in Exhibit D as option A) are a more skilful design, suitable for the site and streetscape, do not impede view sharing and provides an appropriate amenity to adjoining resident.

22. I am satisfied that the amendments made to the Consent, as described in Annexure A, will cause no (further) environmental impact. I am satisfied that the placement of the privacy screen attached to the dwelling, adjacent to the north facing TV room window, ground floor (front balcony), and north facing Bedroom 3 window, would not be perceived as bulky in the streetscape. The expert evidence states that the privacy screen attached to the retaining wall would be up to 1.4 m (visible) above the top of fence. When attached to the retaining wall, the privacy screen would not be perceived as an extension of the fence, rather a bulky structure in the streetscape. I accept the louvers are to be angled, with the full width of the blade unlikely to be visible in the streetscape or by the adjoining resident.

23. The amendments to the Consent described in Annexure A address all relevant jurisdictional requirements and are consistent with the provisions of the Randwick Local Environmental Plan 2012.

24. The relevant requirements of the RDCP are achieved. I am satisfied that the provisions described in Part C1, and specifically in Sections 3.3, 5.3, 5.6 and 7.3 of the RDCP, which the parties explain are relevant to the consideration of the MA, are addressed. I find that the proposed privacy screen structures are a ‘minor projecting feature’ as described in Section 3.3, and subject to setback controls. The attachment of the screens to the building is consistent with the side setback requirement of 0.9m, described in Section 3.3.2, and achieves the objectives described in Section 3.3, specifically:

• To ensure the form and massing of development complements and enhances the streetscape character and maintains a two storey street frontage

• To ensure adequate separation between neighbouring buildings for visual and acoustic privacy and solar access

…

• To enable a reasonable level of view sharing between a development and the neighbouring dwellings and the public domain.

25. The attachment of the privacy screens to the building attains the objectives and of Sections 5.3 and 5.6 of the RDCP. Visual privacy and view sharing to the site and adjoining property is provided by the amendments to the Consent, as described in Annexure A. I do not find that Section 7.3 is relevant for consideration, based on the attachment of the screens to the building rather than the retaining wall or fence.

26. In satisfaction of the requirements of s 4.15(1) of the EPA Act, the Consent remains substantially unchanged with regards to environmental impact, provides an improved amenity and view sharing, and is consistent in the streetscape. The requirements of s 4.55(3) are addressed.

27. I am satisfied, based on the evidence before the Court, that pursuant to s 4.55(2) of the EPA Act, there are no jurisdictional impediments to the modification to the Consent, as described in Annexures A and B. I have considered the evidence of the experts.

28. All works and actions relied on by the MA are specific to the site and the Applicants are the owners of the site, pursuant to s 98(1)(a) of the EPA Reg.

Amended Conditions of Consent

29. The Respondent’s preferred conditions described in Annexure A and B are provided in Exhibit 4, which by agreement of the Applicants and Court was amended and filed on 6 May 2024.

30. The Applicants preferred conditions for Annexure A are provided in Exhibit E, which by agreement of the Respondent and Court were amended and filed on 2 May 2024.

31. The parties agree to Condition 2(n), described in Annexures A and B, Exhibit 4, which is adopted by the Court.

32. For reasons provided above, I accept and adopt the version of Conditions 2(a) and (b) described in Exhibit 4, relevant to Annexures A and B, and provided below:

a.   Ground floor front balcony/TV room

A fixed angled louvre privacy screen having a minimum height of 1.4m (measured above the finished floor level) shall be provided along the northern side of the front ground floor terrace for a length of 1.3m (measured from the western external wall of the TV room). The TV room window on the northern elevation shall be provided with a fixed angled louvre privacy screen or fixed obscure glazing (the use of film applied to the clear glass pane is unacceptable) to a minimum height of 1.4m above the finished floor level and is to be attached to the building of the ground floor level from a point in the order of 1.3metres westward/forward of the front façade of the subject property and must directly align with the front façade of No 5 Inman Street, to a point which aligns with the eastern/rear side of the northern TV room window. If individual blades are to be used, they are to be angled and spaced to prevent overlooking into the south facing ground floor window opposite at 5 Inman Street. The width of the louvres are to be no wider than 100mm and be attached no further than 100mm off the face of the building.

b.   First floor north-facing bedroom window (Bedroom 3)

A fixed angled louvre privacy screen or fixed obscure glazing (the use of film applied to the clear glass pane is unacceptable) to a minimum height of 1.4m above the first floor level is to be provided to the north facing glazing of window of Bedroom 3 (WG- 03B). Such screening or glazing is to start from a point 600mm east from the northwestern corner of the windows corner with the building front façade to the eastern side of the window. If individual blades are to be used, they are to be angled and spaced to prevent overlooking into the south facing first floor window opposite at 5 Inman Street. The width of the louvres are to be no wider than 100mm and be attached no further than 100mm off the face of the building.

Orders Made

33. Accordingly, the Court orders that:

1. The appeal is upheld.

2. Development Consent DA/315/2020 is modified by consent in the terms set out in Annexure A.

3. Development Consent DA/315/2020 is subject to the consolidated conditions as modified by the Court and described in Annexure B.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 28 May 2024