Land and Environment Court New South Wales Medium Neutral Citation: Boniface v Randwick City Council [2011] NSWLEC 1327 Hearing dates: 10 November 2011 Decision date: 11 November 2011 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Development Application: Impact on views, encroachment into building setback, bulk and scale, impact on streetscape. Legislation Cited: Land and Environment Court Act 1979 Randwick Local Environmental Plan 1998 (Consolidation) Local Government Act 1919 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Texts Cited: Dwelling Houses and Attached Dual Occupancies Development Control Plan Category: Principal judgment Parties: Christopher Boniface (Applicant) Randwick City Council (Respondent) Representation: Mr P Vergotis DLA Piper (Applicant) Mr S Patterson Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10811 of 2011 Judgment 1This is an appeal against the refusal by Randwick City Council (the council) of Development Application No DA/197/2011 (the application) which proposed the construction of additions above an existing garage to be used as a laundry and for storage at No 304 Rainbow Street, Coogee. It is a matter to be determined pursuant to s 34AA(2)(b) of the Land and Environment Court Act 1979 (the LEC Act) as there was no agreement during the conciliation phase of the process and the matter proceeded to an on-site hearing. The site and its context 2The site, known as No 304 Rainbow Street, (the site) is one of only two allotments which have frontage to that road on its northern side between Arden and Dundas Streets. The adjoining property to the west, No 302, is the other. A dwelling fronting Arden Street is located further to the west and Blenheim Park adjoins the site's eastern boundary. 3A three-storey residential flat building is sited on the south-eastern corner of Arden and Rainbow Streets and the remaining houses fronting Rainbow Street on its southern side comprise a mix of single and two storey detached dwelling houses of varied age, condition and architectural style. 4Parking for the dwellings in the section of Rainbow Street between Arden and Denning Streets is provided in a number of forms ranging from hardstand areas within the building setback area to garages incorporated within the main dwelling. Not all properties enjoy off-street parking. The setback of garages varies and ranges from nil to parking within the rear yard accessed from a driveway alongside the dwelling. 5The garages of Nos 302 and 304 are erected on a nil setback to Rainbow Street. Both are double garages and have flat roofs behind parapets. The residents of No 302 use the area above the garage as a recreation area however the roof of No 304 is not accessible or used. 6The existing dwelling house erected on the site is a two-storey structure setback approximately 6.5 m from the street boundary. Garaging is located between the street boundary and the southern facade with side passages providing access to the entry and rear yard area. The dwelling at No 302 is setback further than the dwelling at No 304. The proposal 7The application proposes the construction of a second storey above part of the garage. That addition would be used as a laundry and for storage purposes and would be located across the whole width of the garage and to within approximately 1.2 m of the Rainbow Street boundary. 8The plans before the Court vary from those originally considered by the council, having reduced the roof pitch, changed its structure from a gable to a hipped formation, reduced the footprint of the proposed first floor level and introduced a new stairway along the western side of the garage so that access between the dwelling and the garage can be maintained. 9Whereas the original plans provided for an attic and laundry area, the current plan, due to the reduced ceiling height, proposes use of the area as a laundry and for storage in those areas where the head-height does not comply with the requirements of the Building Code of Australia. 10The roof of the existing garage is at RL67.4. The side walls of the garage would be increased in height by approximately 1.3 m and the new ridge height would be at RL70.715. That equates to an increase in height of 3.315 m in the centre of the structure. The issues 11The contentions in the case relate to view loss, the impact of the application on the streetscape and the public interest. 12The amended plans under consideration of the Court have, in part, addressed the issue of view loss from those properties on the southern side of Rainbow Street however the impact on views lost from No 302 is pressed by the council. The planning controls 13The site is zoned Residential 2(a) pursuant to the provisions of Randwick Local Environmental Plan 1998 (Consolidation) (the LEP). 14The council's Dwelling Houses and Attached Dual Occupancies Development Control Plan (the DCP) applies to the site and provides development controls for the construction of alterations and additions or new dwelling houses and attached dual occupancy development and ancillary structures. 15The LEP has, at cl 9, a requirement that, for consent to be granted to the carrying out of development, consideration of the objectives of the plan and specific objectives of the zone within which that development is proposed must be made. 16The relevant objectives of the Residential 2(a) zone are: (b) to maintain the desirable attributes of established residential areas, and (c) to protect the amenity of existing residents, and 17The DCP provides controls for the construction of dwelling houses on the site and operates on a hierarchy of controls using a "performance" approach to design guidance and development control. To gain approval, developments must fulfil the relevant objectives for each control. The performance criteria provide the means by which a development will achieve the objectives. Preferred solutions are offered and illustrate how the performance requirements may be achieved in the design of developments but are not compulsory, rather, they are a guide of what would deemed to be compliant. 18Relevant parts of the DCP as they relate to the contentions are Part 2 - Designing in Context and Part 4 Building Design and in particular the controls for floor area, height, form and materials and building setbacks. Floor area 19The objective of the floor area control is: To ensure developments are not excessive in bulk or scale but are compatible with the existing character of the locality. 20The performance requirement is : Building bulk must be compatible with surrounding built forms and must minimise adverse effects of bulk on neighbours, streets and public open space. 21The preferred solution for the site is expressed as a floor space ratio (FSR) and is 06:1. Height 22Relevant objectives are: + To ensure developments are not excessive in height & scale but are compatible with the existing character of the locality. + To ensure buildings preserve privacy and natural light access for neighbouring residents and allow a sharing lf views. + To ensure additions to dwellings do not detract from the individual character and appearance of the existing dwelling . + To ensure buildings enhance the predominant neighbourhood and street character. 23Relevant performance requirements are: P1 The height of buildings relate to those in the surrounding streetscape , with higher buildings located to minimise impacts on neighbours and the streetscape. P2 Buildings are designed to enhance the existing desirable built form character of the street by adopting, where relevant, existing characteristics of: + Mass and proportion; + Materials, patterns, textures, colours and decorative elements; + Roof form and pitch; + Facade articulation; + Window and door location and proportions; + Verandahs, eaves and parapets. P6 Buildings are designed to allow a sharing of views. Building setbacks 24The relevant objectives are: + To integrate new development with the established setbacks of the street and maintain the environmental amenity of the streetscape. + To ensure dwellings have adequate access to natural light, daylight and fresh air. 25With regard to front setbacks, the performance requirement is: Front building setback generally conforms with the setback of adjoining development of the dominant setback along the street. 26The preferred solution for front setback is the average of the adjoining dwelling houses and where there is no adjoining dwelling house, the front setback is 6m. A note details certain building elements that may encroach the setbacks and they are eaves, gutters, pergolas, screens, sunblinds, light fittings, electricity or gas meters, and unroofed terraces, landings, steps or ramps not more than 1m in height. Buildings may be setback less than the preferred solution where the proposal would not have an adverse impact on the streetscape or adjoining premises providing other relevant standards are met. The evidence 27The matter commenced on site and a view of the proposal and the adjoining locality was carried out in the company of the parties and their experts. Height poles and stringlines that had been erected to identify the precise location and extent of the work proposed by the application assisted the view. Evidence was heard from the occupant of the adjoining property, No 302 Rainbow Street. A view of that property was also undertaken including observations from an existing rooftop terrace above the garage of that dwelling and of views available to that property from the rear at ground and first floor level. The resident objected to the proposal on the grounds of it fully obstructing available water views and views of Blenheim Park from the front terrace, and what he said were the adverse impacts of the additions in relation to light, bulk and scale. 28Mr Vergotis, for the applicant, tendered plans approved in 1981 by the council as a building approval under the Local Government Act 1919 for the garage at No 302 (Exhibit E). He submits that, because the existing stairs that provide access to the roof of the garage were not shown on the approved plans, the use of the rooftop as a terrace is unauthorised. For that reason, he says that the issue of view loss cannot be sustained. 29Expert evidence was heard from Ms Higgins for the applicant and Mr Van Son for the council. Views 30The experts agree that the contention of view loss from those properties on the southern side of Rainbow Street had been addressed by the amended plans however, the additions would block the view currently enjoyed from the terrace at No 302. Ms Higgins considers the view impact in terms of the tests in Tenacity Consulting v Warringah [2004] NSWLEC 140 and says that the available view is limited due to mature trees and vegetation located along the common boundary which obstruct the outlook to the east towards Blenheim Park, that the water view is not visible at the interface between the land and the water and is therefore of lesser value, that the view is over a side boundary making it more difficult to protect compared to views from front and rear boundaries, that the view is not from a living room and the terrace is not the primary open space of the users of the dwelling, that the view loss is negligible and at worst minor. She concludes that the additions over the existing garage will not cause any unreasonable view loss to adjoining and nearby properties. 31Mr Van Son disagrees and says that the height of the proposed ridge would unreasonably impact views of Blenheim Park and the Pacific Ocean obtained from the trafficable roof terrace above the garage at No 302. He says this impact is due to non-compliance with the FSR and setback controls and objectives of the DCP, that this fails the test in Tenacity, that currently the views are available from seated and standing positions, the development would block the majority of views currently obtained from the existing terrace at No 302 and concludes that the view loss to that property would be unreasonable. Streetscape 32The experts agree that the preferred solution allows for a maximum FSR of 0.6:1 and that the existing development inclusive of the last approval for development on the site has a gross floor area of 237 sq m which is equivalent to a FSR of 0.603:1 and therefore exceeds the maximum FSR under the DCP. The proposed development seeks to provide an additional 20.5 sq m, which is equivalent to a FSR of 0.65:1. 33Ms Higgins says that the amended design includes a stepped, hipped roof to complement the hipped roof design of the dwelling house as viewed from Rainbow Street and is similar in design to the approved rear addition of the dwelling house, that the additions have an irregular setback of between 1.1 m and 2.1 m from the front boundary and will not be flush with the existing garage parapet wall and therefore the wall height to the street will be maintained as evidenced during the view. She says the height controls are met, that the approval issued by the council in 2001 for the garage allowed the zero setback and this was considered acceptable by the council, that the design will maintain a single storey presentation at the Rainbow Street front facade and whilst breaching the FSR controls, she says that the variation is minor as the bulk and scale of the proposal will not unreasonable impact on the solar access, light, acoustic privacy, visual privacy or views available to nearby and adjoining properties and therefore the proposal would be consistent with the objectives of the control and the performance requirements. She says that the proposal should only be tested against the existing character of the two dwellings on the northern side of Rainbow Street as, in her opinion, it is very different from that of the southern side and whilst that character should not be ignored, she is satisfied that the objectives of the controls are met. As there are already garages within the setback area, Ms Higgins submits that it is not unreasonable to put an attic above them. In terms of character, she says the DCP anticipates a wide variety of character and concedes that the maintenance of that character is envisaged in the DCP. She concludes that the proposal in terms of streetscape is acceptable. 34Mr Van Son says that the front setbacks of dwellings in proximity to the site are well established and contribute to a uniform character of development and that the proposal would disrupt the established pattern of development by extending the existing dwelling to within 1.3 m of the front boundary of the site. He notes that there are no habitable structures ancillary to the main dwelling that are located within the front yard on the site or sites within the vicinity of the site. He says that the locality is larger than that expressed by Ms Higgins and takes into account both sides of Rainbow Street and says that the proposal will visually dominate the streetscape. He accepts that the garages are within the required setback area but says the dwelling setbacks are consistent along the street and that there are no two-storey elements within the setback. He says the proposal is unacceptable as it would add to the FSR of the building increasing its bulk, would appear as an extension of the dwelling forward of the building alignment and would be visible form the majority of the street. Conclusion and findings 35As the controls contained within the DCP are not prescriptive, it is necessary to undertake both a quantitative and qualitative assessment of the application and determine whether the objectives of the controls are met. 36In terms of view loss, I agree that the impact of the proposal on views obtained from the terrace of No 304 is substantial. There is dispute between the parties as to whether the use of that area is authorised by the building approval. There is no condition on the approval that requires the roof to be non-trafficable and the evidence of the occupant is that it has been used as a terrace as long as he could recall, having lived at the property for his entire life. It is not necessary for the Court to determine that issue. The view is currently available from the terrace and whilst it is across a side boundary, the area is within an area in which the council's controls do not contemplate any buildings and therefore, it would not be unreasonable to expect the view would be maintained. The application has not been designed to facilitate the sharing of views. 37Garaging for the site and some of the adjacent sites has been approved by the council within the prescribed setback zone however, all components of the dwellings are setback in accordance with the controls. In this regard, I prefer the evidence of Mr Van Son, that there is an established setback on both the northern and southern side of the street and that the application proposes a significant structure within that setback area at first floor level and to a height of 5.815 m above ground level. Whilst this height does not exceed the 7 m preferred solution, it is adding bulk to an area where the DCP does not contemplate any structure. 38I cannot accept that the consideration of the application and its character impact is limited to the two adjoining properties, Nos 302 and 304. The character of the locality is not limited to those sites and extends to the visual catchment including the adjacent park. 39I consider that bulk and scale is excessive and inappropriate and note that it exceeds the controls contained within the DCP, in particular those that relate to FSR. I find that the application does not satisfy the objectives of those controls because that bulk and scale is not compatible with the surrounding built form and character of the locality and is inconsistent with the setback of adjoining development and the dominant setback along the street. The application introduces a second storey element to the setback area and that element is foreign to the established streetscape. It is excessive in terms of height and scale and has not been designed to minimise impacts on neighbours and the streetscape. 40It is also necessary to consider that the impact of the bulk of the work when viewed from Blenheim Park (DCP cl 4.2.2) and in this regard, I conclude that this is also unacceptable. 41Accordingly, I find the application will have an adverse impact on the streetscape and should not be allowed. The issue of view loss is a secondary consideration and alone would not be a reason to refuse consent. Orders 42The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application No DA/197/2011 which proposed the construction of additions above an existing garage to be used as a laundry and for storage at No 304 Rainbow Street, Coogee is refused consent. (3)The exhibits, other than exhibits A and C, are returned. Sue Morris 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2011