Land and Environment Court of New South Wales CITATION : Galati v Randwick City Council [2006] NSWLEC 363 APPLICANT Vince Galati PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10154 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and additions to residential flat building, floor space ratio, building and wall height, overshadowing and loss of light, excessive bulk and scale, loss of outlook, loss of privacy. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Randwick Local Environmental Plan 1998 Randwick Development Control Plan - Multi-Unit Housing State Environmental Planning Policy No. 1 – Development Standards DATES OF HEARING: 19/06/2006 EX TEMPORE JUDGMENT DATE : 06/19/2006 APPLICANT Mr Conomos, solicitor SOLICITORS LEGAL REPRESENTATIVES: Pike Pike and Fenwick RESPONDENT Mr R O'Gorman Hughes, barrister SOLICITORS Bowen and Gerathy JUDGMENT: - 6 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 19 June 2006 10154 of 2006 Vince Galati v Randwick City Council JUDGMENT This decision was given extemporaneously on site. It has been revised and edited prior to publication. 1 This appeal relates to Development Application No. 193/2005 which is for alterations and additions to the existing residential flat building at No. 50 Dolphin Street, Coogee. More particularly the additions comprise a new upper floor level to existing Unit 3 so as to provide a living/kitchen area, a bathroom and a deck ("the extension"). The extension is to have a flat roof although there was some discussion during the hearing as to whether a hipped pitched roof consistent with the roof form of surrounding development might be preferred. For the most part the extension is setback an additional one metre beyond the existing building's footprint such that on the east side the setback is 2.145 m and on the west side it is 2.5 m. The existing building itself is otherwise setback from these side boundaries 1.5 m. 2 The site comprises Lot 1 in DP 84718 and is located on the southern side of Dalton Street between Carrington Road and Melody Street. It has a frontage width of 10.515 m, a depth of a little over 31 m and an area of approximately 354 sq m. The site slopes steeply from the rear towards its Dalton Street frontage, a fall of about 8 m. 3 Development in the vicinity of the site generally includes detached dwelling houses, semi-detached developments as well as two storey multi-unit housing development and four storey multi-unit housing development. 4 The site is zoned Residential 2B under Randwick Local Environmental Plan 1998 (the LEP") in which zone the proposal is permissible with development consent. Clause 32 of the LEP relevantly sets a maximum floor space ratio of 0.65:1 for development in this zone. The stated purpose of the floor space ratio development standard is to establish reasonable upper limits for development and to help reduce the potential for adverse impacts on the nearby and adjoining development whilst still providing for reasonable levels of development and redevelopment. 5 Clause 33 sets a maximum building height of 9.5 m measured vertically from any point on ground level. It also sets the maximum height for any external wall of a building at 7 m, again measured vertically from any point on ground level. The stated purpose of these development standards is to set upper limits for the height of buildings that are consistent with the re-development potential of land taking into account other development restrictions such as floor space and landscaping. Regard is to be given for the amenity of surrounding areas. 6 Also applicable to the site is council's Development Control Plan Multi-Unit Housing ("the DCP"). Section 3.3 of the DCP sets a minimum setback of 2.5 m with an average minimum side boundary/building setback of 4 m. In addition there is a maximum length for any one section of wall without articulation of 10 m. 7 The side boundary setback performance requirements are to: ensure that there is adequate separation between buildings to maintain reasonable levels of solar access and minimise overshadowing; to provide reasonable levels of privacy between neighbouring dwellings and their open spaces; to provide opportunities for landscaping and the provision of private open space; and the maintenance of an appropriate level of streetscape amenity. More generally the objectives of these setback controls are to reduce the impact of development on adjoining land. 8 The application was advertised and four objections were received. An additional fifth objection was received as part of the review process that followed the council's initial refusal of the application. Matters of concern to the neighbours who objected to the proposal include: · overshadowing and loss of light; · excessive bulk and scale; · loss of views and outlook; · loss of privacy in terms of overlooking and · noise impact associated with the use of the proposed balcony. 9 Whilst on site the Court had the benefit of hearing from: § Mrs Sadleir of No. 223B Carrington Road § Mrs Rule of Unit 1, No. 225 Carrington Road § Mrs Simos of Unit 2, No. 225 Carrington Road and § Mr & Mrs Bassin of No. 52 Dolphin Street 10 I had the benefit of visiting their properties to better understand their concerns. Notwithstanding the report of the council officers that recommended approval of the application, the council decided to refuse it for reasons relating to: non-compliance with the floor space ratio development standard in the LEP and the resulting adverse impact in terms of bulk and scale; non-compliance with the wall height and overall height development standards in the LEP; amenity impacts on neighbouring properties in terms of overshadowing, privacy and visual bulk and scale; and as a consequence the proposal represents an overdevelopment of the site. 11 A subsequent review under s 82A of the Environmental Planning and Assessment Act 1979 also concluded that the application should be approved but, notwithstanding this recommendation, the council again refused the application for essentially the same reasons as on the previous occasion. 12 The Court was assisted in its deliberations by the town planning evidence of Mr S McDonald, the expert appointed by the Court on behalf of the parties. Having reviewed the proposal in appropriate detail Mr McDonald concluded that it was an overdevelopment of the site and would have unacceptable impacts on adjoining properties particularly those to the west and east in terms of its visual bulk and its potential for noise and loss of privacy. As a consequence it was his opinion that the departures from the floor space ratio and building height controls are not supported. 13 It is now agreed that the proposal has a floor space ratio of 0.9:1 by comparison with the applicable development standard maximum of 0.65:1. The existing building already exceeds this maximum having a floor space ratio of 0.734:1. 14 According to Mr McDonald, the proposal exhibits wall height non-compliances varying between approximately 1.35 m and 1.93 m. Along the eastern boundary the non-compliances vary up to approximately 2.45 m. The overall height of the proposal now taking into account its proposed flat roof, variously represents a non-compliance of up to 700 mm and a compliance of up to about 500 mm. 15 In relation to the non-compliances with these development standards, objections under State Environmental Planning Policy No. 1 – Development Standards have been provided. In essence these objections reach the conclusion that the consequences of the non-compliances in terms of amenity impacts and the like are not such that the standards need be strictly applied. 16 It was also pointed out that the eastern wall of the building exceeds the maximum unarticulated wall length standard in the DCP. 17 There was little, if any argument that the proposal would have any adverse impacts on the streetscape, particularly taking into account that the proposed additional storey is setback approximately one-third behind the front most element of the building. Up to a point I agree, although given the character of buildings in the locality, the majority of which have pitched and hipped roofs, it seems to me that a flat roof structure would be out of place and a pitched roof version of what is proposed would have been preferable. 18 In his report, Mr McDonald states that: In the form proposed, the additional floor space does add unacceptable visual bulk and impact on the visual amenity of adjoining properties, particularly from the rear rooms and gardens at Nos. 223B and 225 Carrington Road as well as from the rear garden of 52 Dolphin Street. This impact arises directly from the development not complying with the floor space ratio and height controls. The additional floor space results in additional bulk above the height controls and setback only 1.5 m from the boundary with the Carrington Road properties. 19 Here I note that the amended proposal increases this 1.5 m setback to 2.5 m for the most part. 20 It was submitted on behalf of the applicant that notwithstanding the extent of the breaches in relation to floor space ratio, height and setbacks, the impacts on neighbouring properties are minimal. In this context I was invited to take into account the comparative heights of a number of close by buildings that are as high or possibly higher than that here proposed. Also, given the provision of privacy screens and appropriate glazing, there would be little if any loss of privacy and taking into account the shadow diagrams as best they could be re-interpreted for the site, there would be significant impacts resulting from overshadowing. It was acknowledged that the skylight at No. 52 would be overshadowed but this skylight would, together with other windows in the associated living room, still have sufficient illumination from daylight and that other rooms in this house would otherwise get full sunlight. 21 Notwithstanding these submissions, I agree with the submissions presented on behalf of the respondent council. The non-compliances with the floor space ratio and the wall height controls are significant and commensurate weight needs to be given to these. I also agree with the neighbours concerns about loss of outlook and the excessive bulk and scale that the building as extended would present to them. Whilst acknowledging that the overshadowing impacts to the west would be insignificant the overshadowing of the skylight at No. 52 would be contrary to the requirement in the DCP that living areas of neighbouring dwellings should not have access to sunlight reduced to less than three hours per day throughout the year. Clearly in relation to this skylight, the proposal would not meet this requirement. 22 I was also invited to take into account the benefits that would ensue to the owners and occupiers of this dwelling. There can be no doubt that this would be the case were this extension to be approved, but this benefit is not such as to overwhelm the more fundamental concern that I have about the significant breaches to the wall heights development standard. Conversely I have no overwhelming concern about the non-compliance with the floor space ratio taking into account that there are a number of other buildings in the locality that have floor space ratios similar to what is here proposed and some even greater. It is however, mainly the effect of the excessive wall height that is the problem. 23 As for the suggestions that there are other buildings nearby that are higher than the proposal, I found this difficult to take into account without knowing whether or not those buildings that are, in terms of relative levels, taller than the proposal and whether they exceed the development standards in terms of wall or overall building height. 24 Finally, this decision should not be seen as precluding any extension to this building at all. It would seem to be that a more carefully developed design possibly incorporating rooms in the roof might achieve the applicant's intention of having some additional living space in the building, where such a design would not have the bulk and overshadowing impacts that I have discussed. 25 The Orders of the Court are therefore: 1. The appeal is dismissed. 2. Development application No. 0193/2005 for alterations and additions to the existing residential flat building at No. 50 Dolphin Street, Coogee, is determined by refusal. 3. Exhibit A is retained. ___________________ T A Bly Commissioner of the Court Rjs/tab 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.