Land and Environment Court of New South Wales CITATION : St Jude Property Investments Pty Limited v Randwick City Council [2007] NSWLEC 508 APPLICANT St Jude Property Investments PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10414 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- construction of a new rooftop terrace area on an existing three-storey multi-unit residential building - amenity impacts - streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 CASES CITED: Super Studio v Waverley 2004 NSWLEC 91 DATES OF HEARING: 24/07/07 DATE OF JUDGMENT: 25 July 2007 APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms P Hudson, solicitor SOLICITORS Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 25 July 2007 10414 of 2007 St Jude Property Investments Pty Limited v Randwick City Council JUDGMENT 1 COMMISSIONER: This is an appeal against a refusal by Randwick City Council (the council) of Development Application 30/2007. The proposed development involves the construction of a new rooftop terrace area on an existing three-storey multi-unit residential building at 134 Brook Street, Coogee (the site). 2 The terrace will be accessible from the rooftop stair access structure which can be accessed from the ground, first and second floors although the proposal provides for access only to be available from the second floor unit. As I understand, gates will prevent access to this area by other unit occupiers. 3 The site has a frontage width of 10.3 metres, a side boundary depth of 56 metres and an overall site area of 579.1 square metres. Neighbouring the property to the south is a multi-unit residential townhouse development comprising six units. To the north is a three-storey multi-unit residential building and to the rear is a three-storey multi-unit residential building. The surrounding area is residential in character and consists predominantly of multi-unit residential development with some detached and semi-detached dwellings. 4 The site is located within zone 2C-(Residential C Zone) under Randwick Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with council consent. Randwick Development Control Plan-Multi-Unit Housing (the DCP) also applies. 5 The issues in the proceedings relate to: 1. whether the additional rooftop terrace area will create unacceptable amenity impacts on surrounding residential properties, and, 2. whether the additional rooftop terrace area will have an unacceptable impact on the streetscape. 6 The issue of whether the additional rooftop terrace area is gross floor area for the purposes of assessing floor space ratio under LEP 1998 and, if so, whether the State Environmental Planning Policy No 1 - Development Standards objection is well founded, was not pressed by the council. 7 Mr Anthony Betros, a town planner, provided evidence for the applicant, and Mr Patrick Le Bon, a town planner with the council, provided evidence for the council. Mr Betros and Mr Le Bon provided a joint statement. Their evidence related to an amendment to the original plans. This involved the deletion of the proposed planter boxes around the edge of the terrace and changes to the proposed balustrading. It is now proposed that the northern balustrading will be set back from the northern edge of the building a distance of 1 m. The balustrading will be 1.4 m in height and constructed of frosted glass. Mr Betros states that the balustrading can be raised to 1.5 m or 1.6 m if there was a concern over overlooking to the adjoining residential flat building. The balustrading to the east and looking towards Coogee Beach is to be set back 1 m and have a height of 1 m, and be constructed of clear glass. The western balustrading is set back 0.5 m and is of the same construction as the eastern balustrading i.e., clear glass. 8 Put simply, the evidence of Mr Betros was that the setbacks, different balustrade construction and restrictions on activities on the terrace through the Strata Plan By-laws address any potential impacts on adjoining properties in relation to overlooking and noise impacts. Mr Le Bon comes to the opposite conclusion in relation to overlooking and noise impacts. His conclusions were supported by Mr Michael Stevens of 6/130 Brook Street, Mr Kevin Nixon of 47 Carr Street, and Mr Robert Innocenti of 1/26 Kidman Street. These properties were inspected on the site view. 9 The planning regime provides, in part, that any development must not be approved unless it is consistent with "the specific objectives of the zone". Relevantly, objective (c) provides that development "does not compromise the amenity of surrounding residential areas." 10 The DCP does not place any restrictions on roof terraces, but Mr Le Bon relies on the provisions of cl 4.2-Privacy of the DCP for his opposition to the proposal. This deals with both overlooking and acoustic privacy. The relevant objectives require a development to "respect the existing level of privacy of adjoining and nearby properties." Clause 4.2.4 (P1) provides that, "….balconies of main living areas located to avoid overlooking of similar windows in adjoining dwellings and areas of private open space…." 11 The unit that is to have exclusive use of the terrace and the area of the proposed rooftop terrace were inspected on the site view. The unit currently has a deck located off the living area of the unit that faces towards Coogee Beach. It has an area of some 30 sq m. The proposed rooftop terrace area has a similar area. The unit also has an additional balcony area at the rear off a bedroom. While the views towards Coogee Beach are similar from the existing deck and the proposed rooftop terrace, the latter provides greater views of Coogee Beach because of its increased elevation. 12 With the benefit of the site view and balancing the evidence of Mr Betros and Mr Le Bon, I am satisfied that the proposed rooftop terrace is inappropriate for a number of reasons. Firstly, and in line with the planning principle in Super Studio v Waverley 2004 NSWLEC 91, "the reasonableness of and the necessity for the development" needs to be considered. In this case, the unit has an existing balcony that is generous in size and already affords the occupants of the unit extensive views. I accept that these views would be enhanced with the rooftop terrace however, balancing the advantages and disadvantages; the community disadvantages in my view clearly outweigh the private advantages of the unit owner. I note Super Studio suggests that a rooftop terrace would only be appropriate if its impacts were minor or negligible. For reasons following, I am not satisfied that this is the case. 13 Secondly, the potential exists for overlooking and acoustic impacts on adjoining properties. The area is predominantly developed with multi-unit housing and some overlooking and acoustic privacy issues must be expected in this environment. The existing balcony does not provide total privacy for the occupant of the unit or adjoining residential development. In my view, it would be unreasonable to do so. I however do not accept that potential amenity impacts on adjoining properties should be exacerbated by the proposal. In my view, the terrace will provide greater opportunities for overlooking than currently exist. With the need to maintain view lines from adjoining properties, there is no acoustical treatment of the roof terrace. 14 Overlooking opportunities will increase to those properties to the south, including Mr Nixon's property but to a larger extent to the adjoining townhouse development. To the north, the proposed 1.4 m high frosted glass balustrade would need to be increased to at least 1.5 m to provide an appropriate screening to the adjoining property. 15 It was also put to the Court that the rooftop terrace was a secondary viewing area, with the existing deck being the principal outdoor area because it adjoins the living area of the unit. If this is the case then it supports the proposition in Super Studio that the consideration of "necessity" would support its inappropriateness. 16 Thirdly, I am not satisfied that the imposition of controls on the use of the rooftop terrace through the Strata Plan By-laws can properly address amenity impacts. I am unsure how an adjoining owner addresses breaches of any By-laws, particularly when relatively immediate action is required. 17 Fourthly, the additional bulk created by the need to provide the frosted glass balustrade on the northern edge of the building is, in my view, unacceptable. While the wall height and overall building height controls are not breached, the proposal is already in excess of the 0.65:1 floor space ratio (FSR) requirement. At the time of approval, the FSR was calculated at 0.96:1. I see no reason why the perceived bulk of the building should be increased when there is already a breach of the FSR requirements, the FSR control being, in part, a control to address bulk. 18 For these reasons the proposal is inconsistent with zone objective (c) and, as such, development consent cannot be granted. 19 The other issue relates to streetscape. Putting aside the previous comments on amenity impacts and bulk, I am satisfied that the impact when viewed from Brook Street would not be significant as it would be largely screened by the existing building. The impact on streetscape would not, in my view, be a reason by itself to refuse the application. 20 The orders of the Court are: 1. The appeal is dismissed. 2. DA30/2007 for the construction of a rooftop terrace area to the existing multi-unit residential building at 134 Brook Street, Coogee is refused. 3. The exhibits are returned. ___________________ G T Brown Commissioner of the Court 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. 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