Land and Environment Court New South Wales Medium Neutral Citation: Ideal Coogee Pty Limited v Randwick City Council [2015] NSWLEC 1142 Hearing dates: 30 April 2015 Decision date: 13 May 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: Residential flat building Legislation Cited: Randwick Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Ideal Coogee Pty Limited (Applicant) Randwick City Council (Respondent) Representation: Counsel: Mr M Staunton (Applicant) Solicitors: Ms J McKelvey, Andrews & Holm (Applicant) Mr A Seton, Marsdens Law Group File Number(s): 10538 of 2014 Judgment 1. Ideal Coogee lodged Development Application DA/88/2014 with Randwick City Council on 27 February 2014 seeking consent to demolish an existing two storey dwelling house and construct a residential flat building at No 137 Carrington Road, Coogee. 2. The council refused consent on 12 August 2014 and Ideal Coogee is appealing that decision. 3. The plans before the Court vary significantly to those determined by the council and arose from a conciliation conference conducted by another Commissioner of the Court. The applicant was granted leave to rely on those amended plans. Those plans have addressed the majority of contentions in the case with the main issue remaining relating to matters raised by an objector to the application, in particular solar access. The site and locality 1. The site is located on the eastern side of Carrington Road between Glebe Street and Alison Road and has a frontage of 13.41m, depth of 59.18m/63.36m and site area of 822sqm. 2. Topographically, the site falls sharply in a south-easterly direction, such that an 11 metre level difference occurs from the north-west and south-east corners. 3. To the immediate north of the site is residential flat building development of up to four storeys and to the immediate south is a low sitting flat building 9.5m in height. To the south-east and east single dwelling development front Raleigh Street and Pauling Avenue respectively. 4. Surrounding development comprises a mix of residential flat buildings (RFBs) and single dwellings. To the north and north-west is a predominance of RFBs of three to five storeys. Immediately to the south, east and south-west is a predominance of single attached and detached dwellings of one and two storey scale. 5. The site contributes to a continuous green corridor that runs to the north through the rear setback of development fronting Carrington Road, Pauling Avenue, Ritchard Avenue and Marcel Avenue. Background and the proposal 1. At the time the council determined the application, the plans provided for the construction of two separate buildings, a four storey building towards the front and a two storey building in the lower rear portion of the site. The plans now before the Court contain 8 dwellings over 5 floors with basement parking for 14 cars and bicycle and general storage in a building that covers the western portion of the site. A unit mix of 1 x 1 bedroom, 2 x 2 bedroom, 4 x 3 bedroom and 1 x 3 bedroom + study is provided. 2. The proposed building would be erected on a 5.73m setback to Carrington Road at the entry level (level 3) with level 4 cantilevered to within 4.715m of that boundary and the top level, level 5 setback 7.33m. 3. Advantage is taken of the slope of the land with the building stepping up the site. The lower two levels are setback some 19m from the rear boundary providing a large landscaped rear yard, part of which is allocated as at grade open space to the lower two units and the remainder as communal open space. The siting of the building allows for the retention of the green corridor. The issues 1. Through the amendments made to the plans the contentions detailed in the Council's Statement of Facts and Contentions (Exhibit1) have been reduced. Contentions 1, 4, 6, 7, 8, 10 and 11 were resolved in full and contentions 2, 3 and 9 are considered satisfactory and therefore not pressed by the council. This was supported by the expert planning report (Exhibit 4). Contention 5 – solar access remains the only contention in the case and is one of public interest as it relates to an objection received by the owner of land in the vicinity of the site regarding the access that would be provided to that site. The planning controls 1. The site is zoned R3 – Medium Density Residential under Randwick Local Environmental Plan 2012 (LEP). Clause 2.3 requires a consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the R3 zone are: • 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. RFBs are permitted with consent in the R3 zone. 2. Part 4 of the LEP provides principal development standards. Those relevant to the application are clauses 4.3 Height of buildings and 4.4 Floor Space Ratio (FSR). The site has a maximum building height of 12m and FSR of 0.9:1. It is the southernmost site subject to these standards, the sites to the immediate south being restricted to 9.5m building height and 0.75:1 FSR. 3. As the height of the proposed building exceeds the height control, the applicant relies on a written objection to that development standard pursuant to the provisions of clause 4.6 of the LEP. The FSR, at 0.88:1 is compliant. 4. Neither the site nor those in its vicinity are identified as an heritage item or are within a heritage conservation area. 5. Randwick Development Control Plan 2013 (DCP) applies to the site with Part A Introduction and Part C Residential particularly relevant to the application. In terms of solar access provisions, they are contained in Section 5.1 and, for surrounding development the following controls apply: 1. Living areas of neighbouring dwellings must receive a minimum of 3 hours access to direct sunlight to a part of a window between 8am and 4pm 21 June (mid winter). 2. At least 50% of the landscaped areas of neighbouring dwellings must receive a minimum of 3 hours direct sunlight to a part of a window (sic) between 8am and 4pm on 21 June (mid winter); 3. Where existing development currently receives less sunlight than this requirement, the new development is not to reduce this further. The evidence 1. A site view was conducted at the commencement of the hearing and evidence heard from one objector, the part owner of land at No 28 Raleigh Street, Coogee (No 28). That land is located to the south of the site and is separated by two dwellings that also front Raleigh Street. At the view, the objector urged the Court to adjourn proceedings in order that he could assess amended shadow diagrams and additional survey details that had been provided to him the night before the hearing. Access to No 28 was not provided to the Court during the view and the objector was unable to assist the Court in identifying the use of the rooms serviced by the windows in the northern elevation. 2. An opportunity for the applicant to explain the amendments made was provided at the view and arrangements made for the plans to be provided both in hard copy and also electronically in order that the objector could digitise them to allow further assessment and comment. Whilst not usual practice of this Court, he was allowed time to assess those plans and lodge written submissions. 3. Those submissions object to the proposal because of the impact of the proposed development on sunlight to window W14 which he says has a deleterious effect. According to the submission W14 provides light to the lounge room/living area and W10 to an eat-in kitchen. No details of the use of the intervening windows W11-13 has been provided by the objector. 4. Expert town planning evidence was heard from Mr J Mead for the applicant and Mr K Kytiacou for the council. In addition, the architect for the project, Mr C Houghton, provided evidence in Court in regard to the shadow modelling and survey data applied that accounted for the amended shadow diagrams and discrepancies in plan numbering and dates shown on those plans, which were brought about due to the limited time available to prepare information. 5. The most recent survey information that addresses the solar access to No 28 was tendered as Exhibit P with other tenders providing details of the site and its surrounds going back to 2006. The Exhibit P survey identifies the location of windows in the northern wall of No 28 and its curtilage. Mr Houghton advised the Court that the shadow diagrams in Exhibit Q reflect the most recent survey information and accurately indicate the extent of shadow cast by existing buildings, the impact of the proposed RFB and that part of the shadow that is the result of the building where it exceeds the building height development standard. The changes arose from obtaining additional information in relation to the dwelling at No 30 Raleigh Street and these details have now been input into the model that produced the updated shadow diagrams. 6. The exhibit T documents assist the Court in identifying the use of the rooms associated with windows W11-13. According to that document which is based on the council's records for No 28, W11 is a bathroom window. W12, W13 and W14 all provide light to the living/dining area. The 3 westernmost windows that are in the eat-in kitchen, bathroom and west part of the living/dining area currently enjoy 3 hours of solar access (the latter between 11.30am and 2.30pm) and these windows are not impacted by the proposed development. The pair of windows in the east part of the living/dining area currently enjoy approximately 2 hours of sun and the proposal impacts marginally one of those windows (W14) for approximately half an hour. 7. Mr Houghton also took the unusual step of preparing hypothetical plans for a first storey addition to No 28 and modelled the shadow impact on that addition. That information is provided in Exhibits S and T. Those plans indicate that the northern wall of any addition would receive well in excess of 3 hours sunlight as would the roof of any addition in the event solar panels were installed. 8. Prior to the Court hearing, the planning experts were requested to further review all survey plans and the updated shadow diagrams. They agreed that the diagrams were now true and correct. 9. In their joint report they had agreed that there was a need for additional shadow diagrams to be prepared in relation to No 28. They also agreed that the development would have no impact to the private open space areas at No 28 and that the impact to W14 would be to a minor extent only and that impact would be negligible. They confirmed their position had not altered as the result of further reviewing the updated shadow diagrams. The additional shadowing to W14 represented approximately 10% of the window surface. The experts considered the shadow impacts on No 28 were acceptable and did not warrant refusal of the application. 10. The experts have also considered the written objection to the building height development standard and agree that the request should be supported. That is because they agree that the massing of the built form is an appropriate planning outcome for a site that is challenged by its width, topography and relationship with neighbouring properties, particularly to the south. Conclusion and findings 1. Having regard to the evidence, I am satisfied that the shadow diagrams accurately address the shadow impacts of the proposal. The contention that remains is whether solar access to No 28 is compliant with the relevant planning controls. 2. The DCP requires that living rooms of neighbouring dwellings must receive a minimum of 3 hours access to direct sunlight to a part of a window between 8am and 4pm on 21 June. From the evidence provided W12, 13 and 14 provide sunlight to the living/dining room of No 28. W12 will retain 3 hours sunlight and is not impacted by the proposal. Accordingly, the control is met. Similarly, if the eat-in kitchen was considered to be a living room, a position advocated by the objector during the site view, it too would satisfy the control. The exhibit Q plans show sun hits W13 just prior to 12 noon and remains in part sun until after 3pm whereas W14 currently enjoys 2 hours (prior to 1pm until after 3pm). The development will impact around 10% of W14 at 3pm with the existing situation of no sun at 3.30pm continuing. 3. As the living/dining area of No 28 is serviced by three windows, and one of those windows currently receives 3 hours sunlight and will continue to receive sunlight for that period, the control is met. Importantly, the other two windows also receive sunlight for in excess of 2 hours and that will continue to be the case. The loss of sunlight at 3pm to 10% of W14 is therefore not grounds for refusal of the application. This would be the case even if only W13 and W14 were considered. The impact of the proposed development on solar access to No 28 is acceptable and compliant with the DCP controls. 4. For consent to be granted, I must be satisfied that the written objection to the building height development standard satisfies the provisions of clause 4.6 of the LEP. That objection considers all of those matters required under the clause and I consider the request has justified variation to the control as it has demonstrated that compliance with the standard is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the standard. Having regard to those matters that would be considered by the Director General in granting concurrence to the variation, there are no matters of significance for state or regional environmental planning nor any public benefit of maintaining the development standard. There are no additional matters requiring consideration. For these reasons it is appropriate to vary the development standard. 5. In view of my conclusions regarding the remaining contention in the case, the evidence of the experts and consideration of those matters under s79C of the Environmental Planning and Assessment Act 1979, there is no reason why consent should not be granted. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA/88/2014 for the demolition of an existing two storey dwelling house and construction of a residential flat building containing 8 dwellings at No 137 Carrington Road, Coogee is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B, C and 1, are returned. _____________ Sue Morris Commissioner of the Court 10538 of 2014 Morris (C) (213 KB, 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: 13 May 2015