Woodbridge v Randwick City Council

[2023] NSWLEC 1472

Land and Environment Court

New South Wales

Medium Neutral Citation:

Woodbridge v Randwick City Council [2023] NSWLEC 1472

Hearing dates:

14 July 2023

Date of orders:

23 August 2023

Decision date:

23 August 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA 592/2022 for alterations and additions to an approved new dwelling at 7 Inman Street, Maroubra, is determined by the grant of development consent subject to the conditions set out in Annexure A.

(3) The exhibits, apart from Exhibit 3, are returned.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – amended plans – view loss – privacy.

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7,
Land and Environment Court Act 1979, s 34AA
Randwick Local Environmental Plan 2012, cll 2.3, 4.3, 6.4, 6.7, 6.10
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards), s 4.6

Cases Cited:

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

Texts Cited:

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:
A Pickles SC (Applicants)
M Astill (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/42277

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Dean and Yasmin Woodbridge (Applicants) against the respondent’s refusal of Development Application No. DA/592/2022 lodged with Randwick Council on 18 November 2022. The application was determined by way of refusal by the Randwick Local Planning Panel on 8 June 2023.

2. This development application seeks development consent for proposed alterations and additions to a new dwelling that was subject to an approval, issued pursuant to DA/315/2020, at 7 Inman Street, Maroubra. The proposed development involves the following works:

1. Removal of the raised parapet on the roof.

2. Construction of a rooftop terrace, above the dwelling, with clear balustrades along the edges.

3. Extending the internal stairs from the first floor to access the proposed roof terrace.

4. Extending the Cabana at the rear of the site to the west.

5. Reconfiguration of the layout of the WC and pool pump at the rear of the Cabana.

3. The Court arranged a conciliation conference between the parties, under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act), which was held on 13 July 2023. An agreement between the parties was not able to be reached and therefore the conciliation conference was terminated and the matter proceeded to hearing on 14 July 2023. I presided over the hearing and this judgment reflects the outcomes of that process.

4. I have concluded, because of the reasons set out below, that the merits of the matter warrant the appeal being upheld and development consent should be granted to the development application.

The site and locality

5. The site is formally identified as Lots 1 and 2 in SP 14795 within Lot 8 in DP 9106 and is located on the south-eastern side of Inman Street, Maroubra. The site has an area of 531.7m². The site is rectangular in shape and has an approximate frontage of 11.885m to Inman Street and side boundary depths of 45.16m and 45.175m.

6. The original building has now been demolished and construction of the new dwelling has commenced. Adjoining the site to the north is a 2-storey dwelling with a garage beneath. This property is known as No 5 Inman Street. Adjoining the site to the south is a 2-storey building. This property is known as No 9 Inman Street.

7. The site is located within a residential area characterised by mixture of detached one to three storey dwelling houses including dual occupancy developments of varying scale and architectural design.

Issues

8. The parties rely on the joint expert reports as follows:

1. Town Planning – Joint expert report prepared between Mr A Betros (town planner for the applicant) and Mr G Turrisi (town planner for the respondent) (Ex 2).

2. Town Planning – addendum joint expert report (also prepared by above experts) (Ex B).

9. The addendum report was prepared in response to the on-site view process. The on-site view process included oral submissions by representatives from adjoining properties. The agreed outcomes of the addendum report of the planners resulted in the applicant making further minor amendments to the proposal. The respondent did not oppose the filing of the minor amendments with the Court. The town planning experts agree that adjustments satisfactorily address the merit issues raised in the contentions before the Court. During the hearing, neither party contested the evidence provided by the town planners and cross examination was not required.

10. The amendments, which were minor, included:

1. A further reduction in the area of the roof terrace.

2. The deletion of all but a small section of the awning proposed for the roof terrace.

3. The provision of privacy screening as part of the roof terrace solution.

4. A reduction in the western extension of the Cabana.

11. Notwithstanding the above, the respondent maintains the position that the Court determine the matter.

Public Submissions

12. The development application was notified from 25 November 2022 to 9 December 2022 for 14 days. Thirteen (13) individual submissions were received by the respondent. The submissions predominantly raised concerns relating to building height, roof terraces, visual and acoustic privacy, overshadowing, adverse character and an overdevelopment of the site.

13. The parties undertook a site view at the commencement of the Court process,. The parties heard oral submissions from neighbours regarding the proposed development. Whilst a number of issues were raised; view loss, visual and acoustic privacy and solar access, were key aspects of the oral submissions.

The Assessment Framework

The Randwick Local Environmental Plan 2012

14. The site is zoned R2 Low Density Residential under Randwick Local Environmental Plan 2012 (RLEP 2012) and development for the purposes of dwellings is permissible in the zone. The relevant objectives of the zone, to which regard must be had in determining the development application (cl 2.3(2) RLEP 2012) are:

•   To provide for the housing needs of the community within a low 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.

15. The issue of compliance with the maximum height of buildings development standard, contained in cl 4.3 of the RLEP 2012, was raised as contention 1 in the proceedings. The town planning experts agree, as a result of deletion of the lift tower, that the proposal now complies with the maximum height requirement of 9.5m.

16. As the site is located within a Foreshore Scenic Protection Area, cl 6.7 of the RLEP 2012 applies to the development. Clause 6.7(3) requires the consent authority to be 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.

The Randwick Development Control Plan 2013

17. The Statement of Facts and Contentions (SOFACS) raised several areas of non-compliance with the provisions of the Randwick Development Control Plan 2013 (RDCP 2013). This included the main merit issues of roof design, view loss and privacy (both visual and acoustic). Visual and acoustic privacy considerations are covered by Part C1, Sections 5.3 and 5.4. View loss and view sharing are covered by Part C1, Section 5.6 View Sharing.

18. A key issue before the Court relates to the proposed roof terrace. The design outcomes of the roof terrace are to be assessed against the requirements of Part C1, Section 4.4 of RDCP 2013, Roof Design and Features. The section reads as follows:

“4.4 Roof Design and Features

Objectives

• To ensure roof design integrates with the form, proportions and façade composition of the building.

• To ensure trafficable roof space is integrated with the built form and maintains satisfactory privacy relationship with the neighbouring dwellings.

Controls

Rooftop Terraces:

i) Terraces, decks or trafficable outdoor spaces may be provided in stepped buildings, but must not be provided on the uppermost or main roof of the building (including the principal dwelling and any outbuilding).

For stepped buildings on sloping sites, a terrace may be provided on the roof (not the uppermost roof) above the storeys below

Terrace or deck must not be provided above the topmost or main roof of the building

ii) Roof terraces above garages may only be provided in sloping sites, where the garages are located in the downhill side of the sites fronting the street.

[…]”

Consideration of the Issues

The Roof Terrace

19. As part of the site view process the parties pointed to a number of existing roof terraces in the immediate vicinity of the site. The joint report of the planners (Ex 2) also provided photographic and locational evidence of a number of roof terraces. A relatively consistent element of the examples was that the staircase intrusion to the upper level was minor and there were few, if any, ancillary structures (such as awnings). I note that the amended roof terrace, in terms of area and structures, is now genrally consistent with the roof terraces in the immediate vicinity of the site.

20. The planners agree that the extent of built form is now limited to a stairwell and small awning which is consistent with the predominant form of roof terraces in the local area. The evidence of the planning experts also confirms that “the amended plans are compliant with the LEP height limit and DCP wall height limit and that the changes to the built form aspects suitably integrate the roof terrace with the approved dwelling house” (p 4, Ex B).

21. The SOFAC’s raised issues of acoustic and visual privacy (Contention 4). It is the evidence of the planners that these issues are resolved by the changes to the extent and design of the roof terrace area, including screening. It is because of these changes, and after the benefit of a site view, that I agree with the planners that the issues of visual and acoustic privacy are adequately resolved by these changes. This is reinforced by proposed conditions of development consent that limits the hours of usage of the roof terrace to between of 7:00am and 10:00pm and that amplified music is prohibited.

22. I accept the evidence of the planners that the amended proposal adequately integrates with the built form and façade composition of the building. This is because the trafficable roof space has been reduced to a size that minimises the visual presence of the terrace area, the reduced built form integrates with the existing building and maintains satisfactory privacy relationships with neighbouring dwellings. As a result, the proposal now achieves the objectives for Roof Terraces and Privacy in the RDCP 2013.

The Cabana

23. The proposal provided for an extension, in a westerly direction, of the previously approved cabana building. As a result of the site view process, the applicant provided amendments that reduced this extension to preserve existing views from the rear yard of the adjoining property. The amendments to the plans form part of the amended material before the Court.

24. The RDCP 2013 sets out criteria for the sharing of views. Part C1, Section 5.6, includes the approach in the Planning Principle found in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140. The RDCP 2013 controls are based on acknowledging the value of different views and ensuring skilful design maintains a reasonable amount of those views and thereby achieving view sharing.

25. In the planner’s supplementary joint report (Ex B), the planners agree that the change to the Cabana was necessary and that the change has allowed for a reasonable extent of view sharing. The planners agree that the Cabana can be extended by a lesser amount, rather than rejected outright, as some of the views from the adjoining property are already interrupted by vegetation and/or structures on other sites. The minor amendments to the application reflect this reduced cabana extension as agreed by the planners.

26. The applicant’s position is that the amendments have satisfactorily addressed the requirements of the RDCP 2013 with respect to view sharing. In considering those outcomes, the applicant notes the previous agreement to a lower boundary fence height of 1.5m to protect views afforded to the neighbour.

27. I am satisfied, based on the photos and evidence supplied by the planners and the site view, that a reasonable sharing of views has been achieved in accordance with the RDCP 2013 controls. Views from various locations in the adjoining yard, over the dividing fence, are maintained.

Other matters

28. Pursuant to the RLEP 2012, the subject site is R2 Low Density Residential. In determining the development application, I have had regard to the objectives of the zone.

29. The requirements in cl 6.4(3) of RLEP 2012 concerning stormwater management are satisfied. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

30. The requirement in cl 6.10 of RLEP 2012 seek to ensure that services that are essential for the development are available or that adequate arrangements have been made to make them available when required. This development application seeks only minor alterations to the already approved dwelling house which has the required services.

31. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

32. Consideration has been given to whether the site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The proposed works are minor changes to the recently approved dwelling house on the site. The site has a long history of residential use.

33. Consideration has been given to the requirements of cl 6.7 – Foreshore Scenic Protection Area (FSPA) of the RLEP 2012 as the site is within a FSPA. The planners agree that the amended proposal further reduces any visual presence and that the proposal is consistent with other development in the area. It is for these reason that I am satisfied that the development has considered, and responded to, the requirements of cl 6.7(3) of RLEP 2012.

Conclusions

34. The communication between the parties, particularly prior to the hearing, has enabled an airing of the contentions and issues. In this instance, this has allowed the applicant to provide information and solutions to address the merit issues outlined in the contentions before the Court. The expert material prepared by the planners has canvassed solutions to the merit issues before the Court. The applicant has made minor amendments to the application to respond to these issues.

35. As a result of the above outcomes, I am satisfied that the proposal before the Court has adequately addressed the merit issues that require consideration prior to the granting of any development consent and that the application is not inconsistent with the relevant planning controls. This includes adequately addressing the merit issues raised by adjoining and nearby residents in respect to privacy and views.

36. The Court orders that:

1. The appeal is upheld.

2. Development Application DA 592/2022 for alterations and additions to an approved new dwelling at 7 Inman Street, Maroubra, is determined by the grant of development consent subject to the conditions set out in Annexure A.

3. The exhibits, apart from Exhibit 3, are returned.

S Harding AC

Acting Commissioner of the Court

Annexure A 

**********

Decision last updated: 23 August 2023