Land and Environment Court New South Wales Medium Neutral Citation: 38 Bond St Partnership v Randwick City Council [2020] NSWLEC 1491 Hearing dates: 7-8 September 2020 Date of orders: 15 October 2020 Decision date: 15 October 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is granted leave to amend the application and rely upon amended plans referred to in Condition 1 of the conditions of consent at Annexure 'A'. (2) The appeal is upheld. (3) Development consent is granted to Development Application No. DA/556/2019 seeking consent for demolition of existing structures, construction of 4-storey residential flat building containing four dwellings, basement car parking for 8 cars, 4 bicycles, storage and plant, landscaping and associated works (the proposed development) at 38 Bond Street, Maroubra subject to conditions of consent at Annexure 'A'. (4) All exhibits are returned except for Exhibits A, D and J. Catchwords: DEVELOPMENT APPLICATION – residential apartment development – State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – meaning of qualified designer under Environmental Planning and Assessment Regulation 2000 – cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000 – statement by designer – habitable roof space – loss of views Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Mutual Recognition Act 1992 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Texts Cited: Apartment Design Guide Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Randwick Development Control Plan 2013 Category: Principal judgment Parties: 38 Bond Street Partnership (Applicant) Randwick City Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) M Gracie (Respondent) Solicitors: Mills Oakley (Applicant) Randwick City Council (Respondent) File Number(s): 2019/396663 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council (the Respondent) of Development Application No. DA/556/2019 seeking consent for demolition of existing structures, construction of 4-storey residential flat building containing four dwellings, basement car parking for 8 cars, 4 bicycles, storage and plant, landscaping and associated works (the proposed development) at 38 Bond Street, Maroubra (the site). 2. The site is close to the intersection of Bond Street and Marine Parade, from where there is a commanding view of a panorama that spans from Maroubra Beach and Malabar headland in the south-west, to the horizon formed by the Pacific Ocean to the east and north-east. Aspects of this panorama are visible from properties in the immediate vicinity of the subject site, and view loss is a contention in the proceedings. 3. At the commencement of the hearing, the Applicant sought leave of the Court, unopposed by the Respondent subject to costs thrown away, to amend the application and rely upon amended drawings and other documents that were marked as follows: * Amended architectural drawings, marked Exhibit A * Amended landscape drawings, marked Exhibit B * Drawings, reports and other documents in an Applicant's bundle marked Exhibit C. 1. I granted the Applicant leave and heard brief submissions from the parties on the matter of costs thrown away before reserving judgment on the matter to be incorporated in my decision, which is dealt with at [130]-[134]. The approach to proceedings 1. On 29 June 2020, the Court listed the matter to be heard on 7-8 September 2020. On 1 July 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) that set out arrangements for the staged return to face-to-face attendances in Court and on-site. 2. The parties sought an onsite view prior to the hearing. The Court granted the request and directed that the onsite view proceed subject to those attending being limited to seven (7) people. 3. I attended the site and in the presence of the parties and the experts, I viewed the subject site and the water views, headland and beach from the following dwellings: 1. At 34-36 Bond Street: * Unit 4. * Unit 7. 1. At 9-11 Beaumond Avenue: * The rear terrace of Unit 4. * The rear balcony, living areas and a bedroom of Unit 5. * The rear balcony and living areas of Unit 8. * The rear balcony, and front balcony of Unit 9. * The rear balcony, living areas and roof top terrace to Unit 10. 1. Public submissions were heard from residents concerned at matters that may be summarised as, firstly, view loss and secondly solar access and thirdly, overlooking and privacy. 2. I was also taken to a number of properties in the local area said to be relevant because of recent development consent, or assessment that is currently pending. These properties included: * 122-124 Marine Parade, a mixed use development recently the subject of a development application. * 126 Marine Parade, a residential flat building. * 90-92 Marine Parade, a residential flat building. * 3 Severn Street, a residential flat building. * 12 Severn Street, an existing residential flat building the subject of a recent development application. The site and its context 1. The site sits above street level, with a fall of around 3m from the rear of the site to its frontage on Bond Street according to the Survey in the Class 1 Application (Exhibit D). 2. A further fall of around 2m from the site frontage to the kerbline of Bond Street is evident in an existing driveway that is cut through a large wall of natural sandstone rock face resulting in the elevation of the site above street level. 3. As a result of its elevated position, the site has views to the south-east towards Maroubra Beach. 4. The site area is 600.7m2 (by survey) and 604.8m2 (by calculation). Relevantly, the dimensions of the site are recorded in the Amended Statement of Facts and Contentions as follows: * South eastern boundary (eastern boundary on plans): 39.625m. * South western boundary (Bond Street frontage): 15.24m (by title) and 15.265m (by calculation). * North western side boundary (western boundary on plans adjoining 34-36 Bond Street): 39.625m. * North eastern rear boundary (adjoining 9-11 Beaumond Avenue and 120 Marine Parade): 15.24m (by title) and 15.265m (by calculation). 1. Medium density development predominates in the immediate vicinity of the subject site, varying in scale, form and age. 2. The north western boundary adjoins a part-three, part-four storey residential flat building at 34-36 Bond Street. 3. The south eastern boundary adjoins an older two-storey residential flat building at 40 Bond Street. 4. The north eastern boundary adjoins the open space associated with a residential flat building at 9-11 Beaumond Avenue, and a tennis court at 120 Marine Parade. 5. More distant from the site, at the corner of Bond Street and Marine Parade is a mixed use development at 122-124 Marine Parade that is agreed by the parties to be the subject of a recent development application. 6. On the opposite corner of Bond Street and Marine Parade to the south-east of the subject site is a 4-storey residential flat building completed around 2004-2005 with a large curved and louvred sun screen. 7. More residential flat buildings are located on the opposite side of Bond Street, and southwards along Marine Parade. 8. According to the Amended Statement of Facts and Contentions (Exhibit 1), the local area is characterised by a mixture of low density and two-storey detached dwellings, a range of medium density developments comprising residential flat buildings of brick and rendered cement construction ranging in age and scale, from 2 to 4-storeys in height usually responding to the fall of the land, set within landscaped front setbacks and garaging. Roof forms vary with the range of residential building forms and age of development. Planning framework 1. The site is located within the R3 Medium Density Residential zone identified in the Randwick Local Environmental Plan 2012 (RLEP). 2. The objectives of the R3 zone are in the following terms: • 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. 1. The provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP65) applies to the proposed development. Clause 28 sets out matters that the Court must take into consideration, including relevantly: 28 Determination of development applications (1) After receipt of a development application for consent to carry out development to which this Policy applies (other than State significant development) and before it determines the application, the consent authority is to refer the application to the relevant design review panel (if any) for advice concerning the design quality of the development. (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. (3) However, if the relevant design review panel fails to inform the consent authority of its advice concerning the design quality of the development to which this Policy applies within 14 days after its first meeting to deal with the application concerned, the consent authority may determine the development application without considering any such advice and a development consent so granted is not voidable on that ground. (4) The 14-day period referred to in subclause (3) does not increase or otherwise affect the period within which a development application is required to be determined by a consent authority. … 1. Clause 30 of the SEPP65 contains standards that, if complied with, cannot be used as a basis for refusal: 30 Standards that cannot be used as grounds to refuse development consent or modification of development consent (1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note— The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. (3) To remove doubt: (a) subclause (1) does not prevent a consent authority from refusing an application in relation to a matter not specified in subclause (1), including on the basis of subclause (2), and (b) the design criteria specified in subclause (1) are standards to which section 79C (2) of the Act applies. Note— The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant or modify development consent. 1. A note at the introduction to Pt 4 of the SEPP65, is in the following terms: Note— The Environmental Planning and Assessment Regulation 2000 also contains provisions dealing with the application of the design quality principles and the Apartment Design Guide in connection with development to which this Policy applies. See, for example, clauses 21A, 50, 115, 143A and 154A. 1. Clause 50 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) provides, relevantly: 50 How must a development application be made? (cf clause 46A of EP&A Regulation 1994) (1) A development application must— (a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and (b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and (c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and (d) be lodged on the NSW planning portal. (1A) If a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, the application must be accompanied by a statement by a qualified designer. (1AB) The statement by the qualified designer must— (a) verify that he or she designed, or directed the design, of the development, and (b) provide an explanation that verifies how the development— (i) addresses how the design quality principles are achieved, and (ii) demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved. 1. The Applicant's bundle contains a statement pursuant to cl 50(1A) of the EPA Regulations (design statement) (Exhibit C, Tab viii). However as originally submitted, it does not conform to the requirements at subcl 50(1AB) of the EPA Regulations. Specifically, while the design statement is signed "Magy Makramallah, Registered Architect 20069", a statement verifying that he or she designed, or directed the design, of the development is not made. 2. Mr Hemmings SC, counsel for the Applicant, stated that the signatory of the design statement was the author of the design and, to this end, undertook to prepare a design statement that was in a complying form. 3. Upon being so advised, I noted to Mr Hemmings that, to my knowledge, the registration number that appears in the design statement does not appear to be a registration number known in NSW and for this reason, a certificate of currency may assist in verifying the author of the design statement is a qualified designer as defined by cl 3 of the EPA Regulations. 4. For clarity, cl 3 of the EPA Regulations defines 'qualified designer' to mean a person registered as an architect in accordance with the Architects Act 2003. 5. On the second day of the hearing, Mr Hemmings advised the Court that Ms Makramallah was an architect registered in the State of Victoria. The effect of which is that, without registration also held in NSW, the person does not answer the description in cl 3 of the EPA Regulations and so cannot make the attestation in accordance with subcll 50(1A) and (1AB) of the EPA Regulations. 6. However, the profession of architecture is regulated in every state and territory, and is subject to the Mutual Recognition Act 1992. 7. A note contained at s 17 of the Architects Act 2003, refers to an entitlement for a person to be registered as an architect in NSW if the person is registered in another State or a Territory for an equivalent occupation, in accordance with s 20 of the Mutual Recognition Act 1992. 8. An entitlement to mutual recognition is created once a person lodges a notice under s 19 of the Mutual Recognition Act 1992 and the person is then deemed, by s 25, to be registered, pending the grant or refusal of registration by the relevant authority. 9. To this end, Mr Hemmings advised me that Ms Makramallah had lodged an application with the NSW Architects Registration Board overnight, in accordance with s 19 of the Mutual Recognition Act 1992 and so, by operation of s 25 of the Mutual Recognition Act 1992, is considered to be registered as an architect in NSW and therefore meets the definition of 'qualified designer' at cl 3 of the EPA Regulations. 10. The Applicant tendered a revised design statement, signed by Ms Makramallah in the complying form dated 8 September 2020 (Exhibit J). 11. While I accept Mr Hemmings' submissions on the matter, I directed that an affidavit from the architect, Ms Makramallah, attest to the lodging of the application for mutual recognition in NSW that was filed on 15 September 2020 and which I consider to satisfy the requirements of cll 3 and 50 of the EPA Regulations. The expert evidence 1. The experts in this matter are Mr Louis Coorey for the Respondent, and Mr Anthony Betros for the Applicant. Both are experts in town planning. 2. The amended plans at [3] were filed with the Court on 3 September 2020 and necessitated further conferencing of the town planning experts, which occurred at the direction of the Court and gave rise to a supplementary joint expert report marked Exhibit 3 that was filed on the morning of the hearing. 3. Following the tendering of the parties' exhibits, the Respondent sought a short adjournment, which I granted, in order to clarify the effect of Exhibit 3 on the contentions in this matter. The contentions 1. The contentions are numbered as they appear in the Amended Statement of Facts and Contentions, as follows: * Contention 1 - The proposed development does not satisfy the design quality principles in Schedule 1 of the SEPP65, and does not comply with the objectives and guidance contained in the Apartment Design Guide (ADG). * Contention 2 - The proposed development does not satisfy the objectives and guidance of the ADG, and in particular Part 3 and Part 4. * Contention 3 - The aims of the RLEP are not achieved for the reasons set out in the particulars. * Contention 4 - The proposed development exceeds the height permitted under the RLEP and the proposed external wall height exceeds that permitted under Randwick Development Control Plan 2013 (RDCP), and the resultant building scale does not align with that anticipated by the planning controls. * Contention 6 - The proposed development will result in an adverse visual impact in a Foreshore Scenic Protection area. * Contention 7 - The building facade does not provide adequate articulation to complement and enhance the streetscape and neighbourhood character and does not satisfy the relevant objectives and controls under Section 4.1 of Part C2 of the RDCP. * Contention 8 - The application should be refused because it is not satisfactory for the purposes of the objectives and controls for visual privacy in Section 5.3 of Part C2 of the RDCP for Medium Density Residential Development. * Contention 9 - The proposed roof design does not integrate with the overall form, proportions and façade composition of the building and will not contribute to the streetscape and silhouette of the local area so will detract from the character of the local area. * Contention 10 - The proposed third floor level does not present sufficiently as a habitable roof space, does not create interesting roof form and does not integrate with a human scale of development in the existing and desired future character in the area. * Contention 11 - The external wall height exceeds the control in the RDCP. * Contention 12 - The proposed development results in view loss for adjoining development. * Contention 13 - The proposed development is not in the public interest resulting from the impacts on streetscape character, and on surrounding properties. 1. The contentions, as set out by the Respondent in Exhibit 1, were later suggested by the Applicant to be distilled into three general categories comprising each of the contentions agreed by the parties to remain. 2. The parties agreed to adopt the Applicant's thematic categorisation of the issues in contention as follows: 1. The top floor is over-sized. 2. The east facing balconies impose adverse impacts. 3. The impact on views from adjoining properties. 1. As the built form of the top floor is agreed to be the cause of the impact on views, I propose to consider these two issues first, and then to consider the east facing balconies after that. 2. In broad terms, the Applicant submits that, notwithstanding some minor aspects of non-compliance, the proposed development is designed to be consistent with Council's desired future character as it complies with controls in the RLEP for floor space ratio and height of buildings, setbacks to the front, side and rear of the site, and with deep soil, landscaped area, solar access and car parking requirements. 3. Furthermore, the matters said to offend the RDCP are either complied with, or are guidance only that should be applied flexibly in accordance with s 4.15(3A)(b) of the EPA Act. The top floor apartment is over-sized 1. As I understand the contentions, the Respondent is of the view that the top floor of the proposed development, referred to in the drawings as the third floor, fails in the following respect: * The footprint of the third floor apartment should be reduced (Part C2, Section 4.3 of the RDCP), with greater setbacks at the front and sides to reduce both its visibility from the street, to create a 'base, middle and top' (Part C2, Section 4.1), and reduce the external wall height (Part C2, Section 4.4 of the RDCP) to minimise the impacts on views from neighbouring properties and the public domain (cl 6.7(3) of the RLEP, and principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity). * As the third floor apartment is the uppermost floor in the development, the Habitable Roof Space provisions apply (Part C2, Section 4.3 of the RDCP) which favours a pitched roof in preference to the flat roof that is proposed (Part C2, Section 4.2 of the RDCP). 1. In particular, the parties dispute whether the Habitable Roof Space provisions are universally applicable, as held by the Respondent, or are 'opt-in' provisions for medium density development in the Randwick local government area as held by the Applicant. 2. In support of its position, the Applicant submits that nowhere in the RDCP is a requirement for the third floor to be recessed further than that shown. Reference to achieving a 'base, middle and top' at Part C2, Section 4.1 of the RDCP, at Control (iii), is one of ten design solutions outlined under Control (iii) that are said not to be exhaustive. 3. Furthermore, the requirement for the third level to be 65% of the area of the level below is found under Part C2, Section 4.3 Habitable Roof Space, Control (i) which is best described as an 'opportunity' to be taken up if the circumstances of the site permit, but is not mandatory, and nowhere is the top level of a building required to conform to the Habitable Roof Space provisions at Section 4.3 of the RDCP. 4. As it was put by Mr Betros, the proposed development complies with the FSR and height of buildings control and so has no need of the incentives contained in the Habitable Roof Space provisions of the RDCP. 5. Furthermore, where pitched roofs are evident in the vicinity of the subject site, such as at 40 Bond street, it is likely that those sites will be redeveloped. As the predominant roof form type is flat, a flat roof is likely to be adopted as it is better suited to retaining views over from adjoining and neighbouring properties. 6. The objectives of Section 4.3 of the RDCP are in the following terms: • 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. 1. According to the Respondent, the objectives clearly relate to the uppermost storey which is a term with broad application. In this case, the uppermost storey is the third floor apartment. 2. Also relevant to the application of Section 4.3 of the RDCP is the note in the margins of the provision which reads: "Note: Any design seeking the inclusion of habitable roof space must allow for adequate floor to ceiling heights, and floor slab and roof construction. The design should fully meet the building height and FSR controls contained in the RLEP and this DCP, and take into account the topographical conditions of the site." 1. According to Mr Coorey, provisions at Section 4.1, Section 4.2 and Section 4.4 of the RDCP also have the intent of requiring the third floor apartment to be recessive. Consistent with these provisions, a flat roof at this level would be acceptable, but only where it relates to a smaller footprint of the uppermost storey. 2. Mr Coorey suggests an additional setback of 2m is preferred to the Bond Street frontage but acknowledges in his oral evidence that this is a preference and not a requirement drawn from the RDCP. 3. However, it would assist to reduce the excessive size of the third storey apartment which is 133.2m2 in area. As such, it exceeds the 95m2 area for a three-bedroom apartment with additional bathroom, set out in the design criteria at Objective 4D-1 of the ADG. 4. The Applicant notes the assessment report for a like development at 90-92 Marine Parade (Exhibit C, tab xxii) determined compliance with the Habitable Roof Space provisions despite no evidence that an attempt was made to rely upon it. The assessor's note reads, at folio 426: "The proposal does not include a habitable roof space as part of the subject application" 1. Mr Coorey's view is that the assessing officer may have given weight to the rear portion of the uppermost floor which is in the form of a roof and which presents, at the rear, as three and a half storeys. 2. Likewise, the reliance placed on the development at 3 Severn Street is distinguished by Mr Coorey for its address to the east as distinct from the south eastern aspect of the proposed development which is diagonal across a front setback. 3. The Applicant submits that even if it proposed a third floor apartment that is 65% of the area of the apartment below, there are no controls that would prevent its position being at the southern frontage of the site to take advantage of the south eastern aspect and so would impose the same view impact on neighbouring properties. The impact on views from adjoining properties 1. As I understand the Respondent's contentions, the proposed development is said to fail in protecting the local amenity, being an objective of the R3 zone, as it results in view loss from adjoining development. 2. In particular, the proposed development has not been designed to minimise view loss and so is contrary to Part C2, Section 5.5 of the RDCP which, at Control (vi), provides that a development must: "Clearly demonstrate any steps or measures adopted to mitigate potential view loss impacts in the development application." 1. For reasons similar to those set out earlier, the Respondent contends that it is the combination of non-compliances that contribute to the view loss, including provisions at Section 4.2, Section 4.3 and Section 4.4 of the RDCP. 2. Mr Hemmings submits that Units 9 and 10 at 9-11 Beaumond Avenue cannot be expected to retain the views to Maroubra Beach or the Malabar headland as those views are only achieved by being diagonal across a site that is historically under-developed according to the relevant planning controls. 3. That said, from the outset, the Applicant has identified the eastern views to the Pacific Ocean horizon as being of value and are retained for the benefit of neighbours by a substantial rear setback that has been evident from the first revision of the plans. 4. Additionally, the roof is flat, which is consistent with the guidance at Part C2, Section 4.2 of the RDCP to "use a similar roof pitch to adjacent buildings, particularly if there is consistency of roof forms across the streetscape". 5. However, according to Mr Coorey, the easterly views are of relatively little value when compared to the quality of views to Maroubra Beach as they are gained across the top of 122-124 Marine Parade, and would be maintained even if the rear setback of the proposed development was reduced. 6. Mr Coorey is of the opinion that the view loss to Maroubra Beach experienced by Units 9 and 10 can be lessened if an additional setback to the Bond Street frontage were adopted. 7. As designed, Mr Betros accepts that views of Maroubra beach, the water and Malabar headland from Units 9 and 10, at 9-11 Beaumond Street are impacted by the development, however views from Unit 9 are from a balcony off bedrooms, and not the primary living area which is a relevant consideration in an assessment in accordance with the planning principle at Tenacity, and with Section 5.5, Control (ii) of the RDCP. 8. A wireframe view analysis of the impact on the view from Unit 9 is shown at p14 of Exhibit 3, and is re-produced below: 1. A wireframe view analysis of the impact on the view from Unit 10 is shown at p15 of Exhibit 3, and is re-produced below: 1. Furthermore, both Unit 9 and 10 enjoy a wide aspect to the east which includes a view of the horizon formed by the Pacific ocean which Mr Hemmings describes as a 'view corridor' that is preserved by a rear setback that is more than twice that required by the Part C2, Section 3.4 of the RDCP when measured to the primary building line. 2. An image of the view taken from Unit 9 looking in an easterly direction is contained in Exhibit 2, at p34 and re-produced below: 1. I note that in the supplementary joint report at Exhibit 3 the experts are agreed that there are no adverse or unreasonable view impacts to the units at 34-36 Bond Street. 2. The Applicant also submits that the external wall height provision, at Part C2, Section 4.4 of the RDCP appears to support a greater height and profile to the roof than that proposed and, if taken up, would impact neighbours views more significantly. The definition of the external wall height is in the following terms: "… The topmost point of an external wall is taken to be the underside of the eaves or the highest point of a parapet, and excludes gable ends and clerestory windows. For skillion or butterfly roofs, the highest point of the external wall is measured to the underside of the eave of the lower end of the roof. For dormer windows that protrude horizontally from the roof by 2m or more, external wall height is measured to the underside of the dormer eaves. …" 1. The effect of which is that, should the Applicant amend the proposal to include a clerestory window in the location of the external wall height exceedance, which is agreed between the experts to be a maximum of 665mm, the exceedance would be resolved as clerestory windows are excluded from the calculation of wall height. 2. As designed, the height of the proposed development is around 2.5m below the maximum height permitted by cl 4.3 of the RLEP at the rear. 3. However, a complying development could be designed with a much reduced rear setback, a butterfly or pitched roof that is within the RLEP height control, and even be reduced in footprint from that proposed, and the result would be a more imposing form that impacts further on the views of neighbouring properties. 4. The difference between the complying development described above, and the proposed development, the Applicant submits, is that skilful design has been employed to ensure consistency with the relevant controls while appropriately sharing views. The east facing balconies impose adverse impacts 1. There are two east-facing balconies proposed. These appear at the first and second floor and in respect of which three issues arise, including: * Visual privacy to 40 Bond Street * Acoustic privacy to 40 Bond Street * Perception of the balcony from Bond Street 1. Part C2, Section 5.3 of the RDCP, at Control (ii), provides guidance as to the location of balconies in the following terms: "Orient balconies to the front and rear boundaries or courtyards as much as possible. Avoid orienting balconies to any habitable room windows on the side elevations of the adjoining residences." 1. Furthermore, the Respondent contends that the lack of such a void or recessed elements and breaks in the walls fails to provide a 'solid base, middle, and top' identified in the RDCP, and results in massive or continuous unrelieved blank walls that are not divided into sections, bays or modules, and so the wall planes are not staggered as required by Part C2, Section 4.1, Control (iv) of the RDCP. 2. The Respondent cites advice from the Design Review Panel (DRP) (Exhibit C, Tab xiv) to the effect that the east facing balconies could be filled-in to form additional gross floor area and would exceed the site's current FSR control. However, the DRP considered there to be a role for a void in this location to provide solar access to the primary living space and ameliorate its south facing orientation. 3. In response, the Applicant submits that the east facing balconies are secondary balconies by virtue of their limited size, of 2.8m x 2.8m, and they are consistent with the objective of the provision, at Part C2, Section 4.8, in that they are 'integrated into the overall architectural form and detail of residential flat buildings'. 4. This is also desirable in an exposed coastal location, and the enclosure of a balcony requires consent should it be proposed sometime in the future. 5. Mr Betros notes the guidance at Section 5.3, Control (ii), is qualified by the words "as much as possible", while Mr Gracie, counsel for the Respondent, emphasises the direction in the second sentence which clearly states "avoid orienting balconies to any habitable room windows on the side elevations of the adjoining residences". 6. While I have some sympathy for the advice of the DRP to the effect that the balconies may perform more of a role if they were deleted in preference to a void, the conundrum that arises from a condition to this effect is that a void also has the potential to create a conflict as the apartments in the proposed development seek sunlight and view and would require a form of privacy screening of the like now shown on the east facing balconies which sufficiently address any visual privacy concern. 7. I also accept Mr Betros' view that the larger balconies to the south west are likely to be the primary external space, and particularly so when numbers are present that would likely generate noise. Consideration 1. While the Court is generally constrained to consideration of the principally contested matters identified by the parties, in this matter, it fell to the Court to bring to the attention of the parties one precondition to the grant of consent that has not been addressed in contentions, or by the experts in joint conference. 2. A note at the introduction to cl 28 of the SEPP65 draws attention to certain provisions in the EPA Regulations, including those at cl 50. 3. A design statement, prepared by a qualified designer, is a requirement of subcl 50(1A) of the EPA Regulations. 4. The design statement originally prepared in support of the proposed development fails in two respects. Firstly, it omits the verification required at subcl 50(1AB)(a), and secondly that Ms Makramallah was not a qualified designer, being an architect in NSW. 5. For the reasons set out at [27]-[37], the parties are now agreed, and I accept, that a complying design statement is now in evidence. This is particularly relevant as, for the reasons that follow, I consider the application warrants the grant of consent. The top floor is not over-sized 1. In my view there are three principal grounds on which the Respondent relies to support its contention that the third floor apartment should be reduced. 1. Firstly, the Habitable Roof Space provisions at Section 4.3 of the RDCP require the uppermost floor to be no more than 65% of the storey immediately below. 2. Secondly, to reduce or remove the exceedance of the external wall height provision at Section 4.1, Control (i). 3. Thirdly, so as to define a base, middle and top section related to the overall scale and mass of the building in accordance with Section 4.1, Control (i) of the RDCP. 1. I accept the Applicant's submission that the Habitable Roof Space provisions are available to proponents, but do not read as mandatory. The control itself is worded such that "Habitable roof space may be considered, provided it meets the following:…" (emphasis added). The margin note adjacent to the control reads similarly: "Any design seeking the inclusion of habitable roof space must allow for adequate floor to ceiling heights, and floor slab and roof construction" (emphasis added). 2. When read together with the third objective of the provision, the above suggests the provision is a benefit to be sought, under certain conditions and in the interests of "creating interesting roof forms that contribute to the streetscape". For reasons I will detail shortly, the application of this provision, had the Applicant sought its benefit, would likely impose greater view loss on neighbouring properties than that now proposed by the flat roof that does not seek the benefit of the Habitable Roof Space provision. 3. I also accept the Applicant's argument that the breach of the external wall height could be cured by the insertion of a clerestory window in the area above the dashed red line indicating the wall height on drawing DA6.10, and re-produced below. 1. As the definition of external wall height is the vertical distance as measured from the existing ground level to the topmost point of an external wall, which is taken to be the underside of the eaves or the highest point of a parapet, and excludes clerestory windows, a clerestory window between the external wall and the underside of the flat roof would be excluded from the measurement of the external wall height. 2. When considered in tandem with the Habitable Roof Space provision, it is entirely plausible that a proposal that complies with the external wall height, and seeks the benefit of the Habitable Roof Space provision may well offer an interesting roof form that more aptly fits the description of a 'top' to complement a 'solid base and middle', but which extends further into the envelope defined by the height of buildings control in the RLEP and would result in greater view loss to neighbours. 3. Instead, the proposed development is a flat roof atop the third floor apartment, which is a similar roof pitch to adjacent buildings, at 34-36 Bond Street, and 122-124 Marine Parade which is consistent with Part C2, Section 4.2 of the RDCP, and with a further setback from the Bond Street frontage than the levels below. 4. While the third floor apartment does not have a maximum floor space of 65% of the storey immediately below, for the reasons stated at [98]-[99], I find the control does not apply as the benefit of the provision is not sought. 5. I am also of the view that as the internal area for a three bedroom unit set out at Objective 4D-1 of the ADG is a minimum and not a maximum, an area larger than the minimum cannot be grounds for refusal. The impact on views is acceptable 1. The sharing and loss of views to the south east and east is a significant aspect of the dispute between the parties. Section 5.5 of the RDCP deals with view sharing, and cites the Court's planning principle in Tenacity as a complementary framework for assessment. 2. The objectives of Section 5.5 of the RDCP are in the following terms: • To acknowledge the value of views to significant scenic elements, such as ocean, bays, coastlines, watercourses, bushland and parks; as well as recognised icons, such as city skylines, landmark buildings / structures and special natural features. • To protect and enhance views from the public domain, including streets, parks and reserves. • To ensure developments are sensitively and skilfully designed to maintain a reasonable amount of views from the development, neighbouring dwellings and the public domain. 1. At this point it is also convenient to set out the four tests in Tenacity, which are, in brief: * To assess the views to be affected, * To consider from what part of the property the views are obtained, * To assess the extent of the impact, * To assess the reasonableness of the proposal that is causing the impact 1. The views to be affected are set out at [72]-[76], and are most acute on the east facing balconies of Units 9 and 10 of No 9-11 Beaumond Avenue. 2. At Unit 9, the balcony is accessed through bedrooms. From inside the bedrooms, the easterly view to the horizon formed by the Pacific Ocean is direct, while the view to the beach and headland to the south west is gained by stepping out on the balcony (which I accept accommodates the family's dining table). 3. At Unit 10, due to the slight variation in apartment layout, the views to the south-west are gained from the internal living area and the balcony. An almost 360 degree view of the area, including headland, beach and horizon, is gained from the rooftop terrace that is accessed from the living area of Unit 10. 4. Mr Coorey is of the opinion that the views to Maroubra Beach are of greater value than the view to the easterly horizon to the Pacific Ocean as it is of a land water interface. 5. While the third floor apartment is the cause of view loss to adjoining properties at 9-11 Beaumond Avenue, I accept the Applicant's submission that the views lost are gained from a sightline obtained diagonally across the side boundary of an adjacent site that is substantially below the height permitted by the RLEP. 6. An additional setback to the south face of the third floor apartment of 2m as preferred by Mr Coorey would, in my view, offer little view back to Units 9 and 10. 7. Meanwhile there is no suggestion that the proposed development will compromise the direct view of the horizon formed by the Pacific Ocean shown at [76], being a view somewhat similar to the subject of Tenacity that was described by Roseth SC as he was then, as "highly valuable, what most people would describe as magnificent." (Tenacity at [30]). 8. In considering the reasonableness of the proposal causing the impact, I note that the flat roof design minimises the impact described above when considered against Council's preferred approach which is a pitched roof benefiting from the Habitable Roof Space provisions. 9. When considered against the objectives of Section 4.2 of the RDCP, Roof Design, I am satisfied that the flat roof integrates with the overall form, proportions and façade composition of the building. 10. I also consider the engineering certification at p11 of Exhibit 3 and the detailed section on drawing DA5.10A, forming part of Exhibit A, to provide sufficient certainty that the internal ceiling height of 2.7m required by Objective 4C-1 of the ADG can be achieved, subject to falls in the roof slab over and locating of downpipes that will require close attention given the revelation that the ceiling of the third floor apartment is now to be exposed concrete. The east facing balconies are acceptable 1. I note the provision of 1.6m high visual screening to the east facing balconies has substantially, if not completely, resolved the matter of visual privacy from the east facing balcony. 2. In respect of the potential for the balconies to impose adverse acoustic impacts, I reject the Applicant's submission that the contentions did not raise issues of acoustic impact from the east facing balconies. However, I acknowledge that no acoustic evidence was put before me and I accept Mr Betros' position that a balcony measuring 2.8m x 2.8m and enclosed on three sides, and likely to function as a 'secondary' balcony is unlikely to be the source of noise and nuisance. 3. While I also accept the Respondent's position that Section 5.3 of the RDCP, at Control (ii) clearly prefers balconies to be oriented away from any habitable rooms on the side elevation of adjoining properties, for the reasons above, I do not consider the adverse impacts usually associated with side balconies to arise. In arriving at this view, I note the balcony is a recessed and not a projecting form. 4. For this reason, and after careful consideration of the plans, elevations and photomontage at p6 of Exhibit 3, I do not consider the visual perception of the east facing balconies to be a reason to refuse consent. Other considerations 1. I am satisfied that the application is accompanied by a BASIX Certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulations. 2. I have considered objector submissions in respect of 9-11 Beaumond Avenue. I have already noted that the experts are agreed that any view loss from 34-36 Bond Street is a consequence of development on the site. However, I also note here that I have considered the concern of the owner of Unit 4 of 34-36 Bond Street in respect of solar access to the private open space to the rear of the dwelling. I consider the substantial rear setback of the proposed development to be reasonable in providing for solar access to this area that would otherwise be adversely affected by a complying setback to the rear of 38 Bond Street. 3. I am also satisfied that the proposed development has been located and designed to minimise its visual impact on public areas of the coastline, and contributes to the scenic quality of the coastal foreshore as required by cl 6.7 of the RLEP. 4. In arriving at this state of satisfaction, I note the amendments to the third floor setback and materials evident in the Revision 5 plans go some way to addressing the view of the DRP in November 2019 in respect of the top of the building. 5. I understand the Revision 1 drawings that accompany the Class 1 Application were the basis of the DRP comments which I must consider under subcl 28(2)(a) of the SEPP65. 6. I note amendments evident in the Revision 5 drawings at Exhibit A were not further referred to the DRP, and so it is for the Court to consider the advice of the DRP against the amended plans the subject of the appeal. 7. I have considered the DRP advice, and I conclude that those amendments evident in the plans at Exhibit A sufficiently address the issues raised by the DRP, where those comments are actionable, and notwithstanding errors evident in the DRP report at Exhibit C, tab xiv. The amendments to the application are minor 1. In respect of the plans the subject of leave at [3], the Respondent submits that the parties have been required to engage with three revisions during the course of the proceedings, being Revision 3 plans the subject of the Application, Revision 4 plans the subject of joint conferencing, and finally the amended plans that are marked Revision 5. 2. Costs have been incurred by late amendments that are dated after the joint conferencing, necessitating additional conferencing and resulting in consideration of a cl 4.6 request that was not relied on in the final Revision of the plans. 3. The Applicant submits the amendments are minor and, in summary, comprise the following: * Change in the shape of the east facing balconies * Change in the glazing to the bathrooms * Roof reduced in height by 150mm * Roof thickness reduced from 500mm to 250mm. 1. The question of whether amendments are minor pursuant to s 8.15(3) of the EPA Act is commonly held to be a matter of fact and degree. In considering the extent of amendments in the context of the overall scale and intent of the proposed development, there is no question that the amendments were responsive to the joint conferencing, and with the purpose of narrowing or removing contentions in support of the overriding purpose of the Court to resolve the dispute between the parties in a manner that is just, quick and cheap. 2. I consider the degree of amendment to be minor in both quantitative and qualitative terms. The reduction in height and structural depth of the roof may have the effect of extinguishing the exceedance with the height control and so remove the need for consideration of a cl 4.6 request, but the minor numerical change does not materially alter the overall scale, form or concept of the proposed development. For these reasons, I concluded the amendments are minor. Orders 1. The Court orders that: 1. The applicant is granted leave to amend the application and rely upon amended plans referred to in Condition 1 of the conditions of consent at Annexure 'A'. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA/556/2019 seeking consent for demolition of existing structures, construction of 4-storey residential flat building containing four dwellings, basement car parking for 8 cars, 4 bicycles, storage and plant, landscaping and associated works (the proposed development) at 38 Bond Street, Maroubra subject to conditions of consent at Annexure 'A'. 4. All exhibits are returned except for Exhibits A, D and J. ………………………. T Horton Commissioner of the Court Annexure A (377089, pdf) Plans (4590915, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2020