Land and Environment Court New South Wales Medium Neutral Citation: Bentom Pty Ltd v Randwick City Council [2013] NSWLEC 1042 Hearing dates: 29 and 30 January 2013 Decision date: 30 January 2013 Jurisdiction: Class 1 Before: Moore SC Decision: Directions for revised plans and conditions to permit appeal to be upheld (see [31]) Catchwords: Merits of unapproved modifications Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Bentom Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Ms A Pearman (Applicant) Mr A Seton (Respondent) Gadens Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 11162 of 2012 Ex tempore Judgment 1SENIOR COMMISSIONER: The building that has been constructed at 55 Dudley Street, Coogee, departs in a number of respects from the development that has been approved for erection on that site. The nature of the development as a mixed commercial and residential development remains unchanged, but a number of departures from the plans were identified and have been the subject of an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to Randwick City Council (the council) to regularise the departures from those plans. 2The matter commenced with an extensive onsite inspection, where I was accompanied by the legal representatives of the parties and those advising and instructing them. 3During the course of that site inspection, a number of potential matters of further change in order to render the otherwise unapproved modifications acceptable to the respondent were canvassed. 4As a consequence of that and further joint conferencing between Mr Betros, the town planner for the applicant, and Mr Ongkili, the town planner for the council, broad agreement has been reached between them on the outcome of a range of matters - leaving it to me to determine only four of what had originally been a very long list of departures from the approved plans resulting in matters capable, in the eyes of the council, of being undertaken to render those departures acceptable. 5Before turning to deal with each of the remaining matters that are in dispute (and how I am satisfied it would be appropriate to resolve them so that the overall nature of the resultant development is satisfactory), it is appropriate that I make two separate observations about the way that I should (or in fact should not) approach this matter. 6First, it should be made clear, as I did during the course of the site inspection, that I am not making any judgment of moral turpitude or otherwise, about the fact that, that which has been constructed departs in a number of respects significantly from that which was approved - even having regard to the extensive range of modification applications that have been put to the council leading to modification to the original approval of the building. 7Second, I should observe that although Mr Betros observed, with respect to one of the areas in dispute, that resolving it in the fashion proposed by Mr Ongkili would be difficult in a structural engineering sense and also expensive, that latter element (that is the question of the expense of any or all of the items that are remaining for my determination) is a matter of absolute irrelevance in my determination. 8I am obliged to proceed to determine each of the remaining matters that are in dispute on the appropriate statutory basis having regard to the objectives of the Act; the assessment matters set out in s 79C of the Act; and any matters to which it might be appropriate that I have regard in the objectives of any of the council's planning instruments. 9In that context, I turn to address the four remaining elements that are in dispute. They are: * First, whether a space that will be created on the upper basement level (as a consequence of the relocation, in agreed terms, of the entrance to the car park area) should be permitted to be inclosed and turned into a meeting room capable of being used for some hypothetical future body corporate - if the building were to be subject to strata titling, there being no such application before me in the present proceedings or any related proceedings; * Second, what should be the overall treatment of the revised version of the internal courtyard for some planter beds that are proposed to assist with privacy and landscaping for two areas of private open space that have been created contrary to the original approval; * Third, whether windows at each end of the first and second level of apartments at the outer ends of the levels facing Havelock Avenue should be required to be inserted to what are currently solid masonry facades; and * Finally, what should be the appropriate treatment to the eastern breezeways on the first and second floors in the vicinity of the internal access staircases. 10I note that, in the agreement between the parties, there was also an agreement that mechanical ventilation should be mandated to the solar tube natural light provision facilities in the bathrooms to Units 13 and 12. Although that was not dealt with in the joint report that was provided from the planners, it was subsequently agreed to by Mr Betros during the course of his oral evidence. 11I now proceed to deal with each of the four issues in the order I have outlined - first, the proposed meeting room/storage space on the upper basement level. This space is created as a result of the relocation of the car park entry from the southern end of the Asher Street frontage to the northern end of the Asher Street frontage. It currently is constructed as a ramped access and would require to have a floor provided to it. The agreement that has been reached between the parties about the façade treatment to the Asher Street frontage and the slotting and the like for the apertures is something that informs my consideration of this area. It is a comparatively small area and will have limited head height if it has a floor created to it. 12The use to which it is proposed to be put as a meeting room for some future body corporate is one, in my view, that it is unnecessary for me to permit at this stage in the utilisation of the overall structure of the building. There is no body corporate. A future body corporate may not wish to have a meeting room. The meeting room would be of, at best, very, very modest amenity even for the purposes of holding meetings. 13I accept, as Ms Pearman has put to me, that consistent with the objectives of the Acts, orderly use should be permitted of the space. It would be appropriate in these proceedings (without precluding some future development application on behalf of some future putative body corporate, for a meeting room) as an interim measure pending such an application being made to permit that area to be used for the purposes of caged storage (as one, two or three storage spaces at the discretion of those who might wish to construct such space). It is however, in my view, not appropriate to permit use as a meeting room as an outcome in these proceedings given the uncertainty of future use and necessity for such a space and the poor amenity that would be provided to it. 14I now turn to the question of the planter boxes in the common courtyard area. The present plans, as constructed, have created private open space areas for Units 1 and 5 that intrude into the area that would otherwise have been a common open space area. That has arisen, in part, as a consequence of the creation of an additional sunroom space in Apartment 5 that intruded into what had otherwise been the balcony of that apartment and, with respect to Apartment 1, by the creation of a doorway into the study for that apartment and the creation of an entirely new secondary private open space on the southern side of that element of the building. 15The dispute that arises between Mr Betros and Mr Ongkili is one of quite limited scope. They agree as to the height of the planter box - that is that it should come to the height of the current masonry construction and they agree that it should be L-shaped around the outer edges of the present masonry balustrades. The difference between them is that Mr Ongkili says that it should be 900 millimetres wide, whilst Mr Betros says that it should be 600 millimetres wide. 16The planter box and the plantings to be put in it, which it is accepted should be the subject to a condition requiring the planting to be of shrubs that will obtain a height of 1 to 1.2 metres in height, are necessary for several reasons. They are necessary to provide privacy between these two proposed private spaces and the communal area that is at the same level. They will also provide a degree of assistance, but not an entire remedy to, overlooking from the fenestration proposed for the upper level breezeways for the private open space to Unit 1, the balcony to Unit 10 and (subject to some later consideration by me), to a limited extent, to the private open space of Unit 5 from the balcony of Unit 10. 17I am satisfied that the wider planter boxes would be an appropriate and desirable outcome. They provide a greater degree of separation between the communal open space and the private open space. Although of a modest dimension, it will enable a more intense planting to provide visual privacy of the style that has been discussed. 18Coupled with this, accepting that, particularly for Unit 5, there will also be the opportunity for direct and closer almost vertical overlooking from the private open space of Unit 10. Thus, it is also necessary to provide that the present clear glass hood that has been erected as an adjunct to the balcony above the private open space area of that unit should be replaced so that the present clear glass is replaced with translucent or opaque glass so that there is still some light provided through to the private open space below but that the overlooking is eliminated (except to the extent of a small area that would be visible from the balcony to Unit 10 between the outer edge of the hood and the wide planter boxes now required). 19The third matter to which I need to turn my attention is the presentation of the building to Havelock Avenue. The appearance as approved by the council is shown on an image that formed folio 119 of the council's bundle. This depicts small windows at the outer ends of the apartments having a direct and not setback frontage to Havelock Avenue. They also show large fenestration to the bedroom immediately adjacent to the aluminium sliding windows (there are somewhat wider) that provide access to the balcony of each of the units. 20There are two changes that have relevantly occurred in the "as built" form compared to that which is depicted on the streetscape elevation reproduced. First, the outer windows at each level have been replaced with continuous masonry. Second (and of some importance, in my view) is the fact that the other windows immediately adjacent to the aluminium sliding doors have been made narrower and shorter - they being the windows that are provided to the bedrooms in each of those corners of the units. 21It was the position put to me on behalf of the council, by Mr Ongkili, that initially the windows that are shown as the outer windows should be required to be inserted in the masonry façade. It was Mr Betros's position that that was unnecessary in a streetscape presentational sense but that if it were to occur the windows should be of the same dimensions as the windows that have already been provided as this would, amongst other things, provide better design consistency and also provide greater amenity to the bedroom. 22In support of the council's position, the general question of broad consistency with the streetscape to the east, that is downhill in Havelock Avenue, was relied upon and, on behalf of the applicant, the question of broad consistency with the higher development to the west, uphill, was relied upon. 23I observed during the course of the site inspection that that western development was in fact set back significantly from the Havelock Avenue frontage and, indeed, that there was a single storey commercial development that appeared to be interposed between that development and the streetscape. If not, it is sufficiently removed from and separated by the structure on the corner of Asher Street and Havelock Avenue to provide, in my view, a lesser streetscape influence for the present building than that which is located downhill and to the east and within the block to which the development is more likely to relate. 24It is, as depicted in the image, a development that has greater fenestration elements than are provided for in the present as constructed view. Certainly in my view, it is desirable in a streetscape presentational sense, that there be additional fenestration provided to enhance the consistency in the streetscape. I accept, however, Mr Betros's proposition, which was not significantly cavilled with by Mr Ongkili, that if there were to be a requirement for additional fenestration, as I have determined is appropriate, that that fenestration should replicate the existing bedroom window - thus providing a greater degree of amenity to that bedroom in each of those four units. 25The final matter that remains for my determination is the question of the treatment to the breezeways, being the eastern façade of the central portion of the building. At the present time, that which has been constructed is an upper glazed aperture surrounded by masonry elements but with a masonry element below what would be a conventional balustrade height. That which is proposed by Mr Ongkili is the deletion of not only these masonry elements but the removal of the entire central masonry column and the replacement by all of that by a glazed element below a balustrade. 26The appearance of the balustrading, however, is intended, if there is to be balustrading to whatever length, to be consistent with the nature of the balustrading that will be provided to the balcony to Unit 10 and to the lower half of the fenestration to be provided to the lift lobby for weather protective purposes. 27Mr Betros took the view that it was unnecessary to remove any of the masonry elements whatsoever, whilst, as I have indicate, Mr Ongkili's position was that the entirety of the masonry elements below the present apertures and the central element should be removed. I have hearsay evidence, which is not contested, from the builder of the premises, that it would be difficult to remove the central divide as it is a structural element. The difficulty, I accept, is a matter that goes to my discretion but is not, in my view, determinative in this matter. 28However, I am satisfied that a combination of the difficulty of removing a structural element coupled with the desirability of visual consistency in the vicinity both to the south and to the north by the balustrading to Unit 10 and the treatment to the lift lobby makes it desirable that the lower masonry elements be removed and replaced with glass. 29I accept that, if that occurs, those apertures will be entirely visually thematically consistent with the lower elements of both the balustrading to the lift lobby and to elements of the balustrading on Unit 10. I do not consider that it is necessary to require the removal of the central masonry structural pillar. 30It will, however, be necessary for there to be plans prepared that reflect not merely the outcome of my determination in those four matters but also a number of other matters I observed. For example, the plans that have been provided for assistance (as MFI A in these proceedings) continue to show two angled small car spaces in the basement and continue to show a number of other matters that need to be attended to. It is desirable, as well as there being consolidated conditions of consent, that there be an accurate set of plans prepared that will enable anybody in future who needs to pay any attention to this matter, as I suspect it would be the desire of all those involved in these proceedings not be the case, that the plans are accepted as being accurate. 31So I therefore give the following directions, (1)The applicant is to file and serve revised plans reflecting my decision and those matters agreed by the close of business on 15 February. (2)Orders and such revised conditions as are necessary to give effect to this decision by the close of business on the 15th and the orders and conditions in both matters should come electronically. (3)The matter as set down before the Registrar on 12 March at 9am. (4)Leave on two days if needed. (5)If direction 1 is complied with, I will make orders in chambers and vacate the call-over before the Registrar. (6)The exhibits, other than Exhibits A and 1, are returned. Tim Moore Senior 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: 14 March 2013