Land and Environment Court New South Wales Medium Neutral Citation: DBK Development Pty Limited v Randwick City Council [2015] NSWLEC 1464 Hearing dates: 13 November 2015 Decision date: 17 November 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: CONSENT ORDERS: modification of consent for residential flat building; amended plans address council's contentions in the case, resident objections Legislation Cited: Randwick Local Environmental Plan 2012; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Texts Cited: Randwick Comprehensive Development Control Plan 2013; Apartment Design Guide Category: Principal judgment Parties: DBK Development Pty Limited (Applicant) Randwick City Council (Respondent) Representation: Solicitors: Ms R McCulloch Pikes & Verekers Lawyers (Applicant) Ms V McGrath Norton Rose Fulbright Australia (Respondent) File Number(s): 10648 of 2015 Judgment 1. DBK Development Pty Limited had obtained a development consent from Randwick City Council that authorised the construction of a residential flat building at No 3 Severn Street, Maroubra (Development consent No 552/2103). On 15 May 2015 DBK lodged Application DA/552/2013/B which sought to modify that consent. The Council had not determined the application within the prescribed period and DBK is appealing its deemed refusal. 2. Following a conciliation conference held 21 September 2015, the applicant has prepared amended plans. Those plans were submitted to the council and, with leave having been granted to the applicant to rely on those plans at the commencement of the hearing, the contentions in the case have now been resolved and the parties are seeking Consent Orders from the Court. The site and its context 1. The site is legally described as Lot 14 in DP 5760 and is known as No 3 Severn Street, Maroubra. It is located on the southern side of Severn Street, a cul-de-sac which runs off Marine Parade and has a frontage of 15.24m, depth of 54.86m and site area of 828.4m². To the east of the site is a two storey residential apartment development and to the west is a single story residential dwelling house. To the south, the rear boundary is adjacent to a newly developed residential apartment building at 38 McKeon Street, which is part of the Maroubra Beach Centre. 2. A small local park is located at the western end of Severn Street and provides pedestrian access to Hereward Street. 3. A recent four and five storey residential flat building is located opposite the site with a variety of housing types including single storey semi-detached dwellings and 2 to 4 storey residential flat buildings in the street. 4. The approved development has commenced on site. Background and the proposal 1. Development consent 552/2013 granted on 25 February 2014 authorised demolition of an existing dwelling, removal of Norfolk Island pine tree, construction of part 3/part 4 storey residential flat building in two building forms containing 10 units, basement parking for 14 vehicles, strata subdivision and associated works. 2. On 23 September 2014, Council approved a Section 96 application, modifying the approved development. The proposal was described in the Council's assessment report as follows Section 96 modification of the approved development by altering the internal layout of the building, increase the size of the dining/living rooms for units 1 to 6 and 8, increase the wall height of the rear portion of the front building by 900 mm, changes to window openings on elevations, convert front and rear courtyards to private courtyards for units 1 and 7, changes to external materials and finishes. 3. The subject application when originally lodged with the council sought further modification of the approved plans through increasing the number of units to 11 (by adding an additional storey to the front building) and car parking to 16 spaces through the provision of two cars stackers within one of the basement areas. 4. As a consequence of the changes to the built form, the height of the front building had been increased as had the lift overrun. The maximum building height proposed in the original modification application was at RL31.71 at the lift overrun and this section of the building and a portion of the rear section of the front building exceeds the 12 height development standard. 5. Following a conciliation conference, the applicant prepared further amended plans and sought leave to rely on those plans. The council did not oppose the motion and leave was granted to the applicant to rely on those plans at the commencement of this hearing. The changes made to the plans originally lodged with the council are: * Reduced footprint of building and terraces of the proposed level 3; * Conversion of the proposed additional apartment into a second level of unit five below, with consequential rearrangement of living and sleeping areas; * Additional screening to windows and terraces, deletion and rearrangement of windows; * Lantern roof element to building 2; 1. The effect of the changes is that the number of units remains as 10 with an additional level added to part of the front building. The planning controls 1. The site is zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (LEP). Residential flat buildings are permissible with consent in the R3 zone. Pursuant to the provisions of clause 4.3 of the LEP, the maximum height of buildings permitted on the site is 12m. Clause 4.4 provides for a maximum Floor Space Ration (FSR) with a maximum of 0.9:1 applicable to the site. The proposed development exceeds both the height and FSR development standards, as did the most recently modified consent. 2. Randwick Comprehensive Development Control Plan 2013 (DCP) applies to the site with the General Controls in Part B and the Medium Density Residential provisions of Part C2 relevant to the application. The issues 1. The contentions in the case were the application was not substantially the same development as originally approved; it was inconsistent with the objectives of the R3 zone; did not comply with the development standards for Building height and Floor space ratio (FSR) or the design principals in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65); the external wall height exceeded the 10.5m control in the DCP and the proposal was said to be contrary to the public interest due to privacy and bulk impact as set out in submissions received by the Council which objected to the proposal when notified. The evidence 1. The Court had undertaken a view of the site, the locality and observed the property from two adjoining residential flat buildings in the company of the owners of those properties at the commencement of the Conciliation Conference. Both of those persons had objected to the proposal and continue to object despite the changes made in the plans now before the Court. 2. The owner of 4/10 Severn Street provided details of his continued objection during the hearing. The Court had attended that property during the original site view and notes that it is a two level apartment with a large balcony area on the upper southern level (Severn Street frontage) in a part four and part five storey residential flat building, the upper level forming part of Unit 4 and providing access to a small office area and the roof top terrace. 3. The objections raised are summarised as follows: * General overdevelopment of the street and locality; * Exceeds the FSR; * More units within the building than in other unit developments in the street; * Development will exacerbate existing parking problems; * Privacy concerns due to overlooking of living and deck areas from the development, proposed privacy treatment does not deal with this issue as too much of the balcony area remains open; * View loss; * Modification of consent has seen incremental increases in extent of non-compliance and impacts and a line must be drawn at some point. 1. The Council tendered an assessment report prepared by its consultant planner, Mr S Harding (Exhibit 3) which considered the amended plans. That report addresses all of the contentions in the case and concludes that the development now proposed is appropriate for the site. 2. In particular, he says the proposal, through the conversion of the development back to 10 units and the other changes made ensure the development would be substantially the same development. The reduction in gross floor area and the extent of the variation to the development standard for building height, minimises the variation to those standards and achieves appropriate amenity outcomes and addresses the objectives of the standards and the zone of the land. 3. Importantly, the reduction in gross floor area will remove excess bulk and scale at the upper level and address the resultant impact provided the proposed screening along the western wall is replaced with louvres. The council has prepared a condition reflecting this change and it is agreed (draft condition 2h). 4. Mr Harding also assesses the building height and says that because the exceedance is greatest to the south of the lift well, the addition would not result in any unreasonable view impacts and in most cases would be beyond the existing upper level windows of the residential flat buildings to the west. In addition, it is the west elevation that is mostly compliant with the height standard and most views would be side views. The reduced upper level extension and corner location would minimise the additional overshadowing impact on the west elevation of the building at 5 Severn Street and the additional setback on the eastern side will also improve view corridors from the upper level apartment immediately opposite the site (Unit 4/10 Severn Street). 5. In regard to the external wall and ceiling height controls, he notes the plans approved under the original development consent did not comply with this control and the amended plans now ensure the outcome will be consistent with the objectives of the control, add vertical articulation to the roof form to benefit the design without unduly impacting on any neighbouring properties, particularly in terms of overshadowing and privacy. The 2.7m requirement for floor to ceiling height is now met. 6. In relation to the design principles of SEPP65, Mr Harding says the amended plans are satisfactory and the alteration of unit 5 to being a three bedroom apartment responds to a desire to improve the apartment mix and is a positive outcome. 7. In terms of visual privacy, Mr Harding says the changes made either address the contention or, subject to the imposition of suggested conditions of consent which require the installation of the louvres, as discussed at [19] will address the concern. The separation distance from properties to the north (across the road), which the parties agree was at least 20m, is of such an extent that it exceeds planning criteria on this issue and will result in an arrangement that meets the required planning criteria for maintaining privacy. 8. The council accepts that the additional bedroom to be included within Unit 5 increases the parking required to comply with its DCP requirement from 14.3 to 14.6 spaces with only 14 spaces provided and says that provided space No 3 is designed to accommodate both a car and a motor bike (see condition 12), parking is not a reason to refuse consent. Submissions 1. Ms McGrath, for the council, submits that the amended plans result in an application that is now appropriate to approve subject to the conditions sought to be imposed so as to ensure the issues originally raised in the contentions are addressed. 2. Ms McCulloch, for the applicant advises that all of the conditions are agreed including those changes proffered by Mr Harding in his report, Exhibit 3 in these proceedings. Findings and orders 1. Having regard to the evidence, I am satisfied that the amended plans satisfactorily address the contentions in the case. In regard to the issues raised by objectors, I note that the western elevation of the building has been amended from that notified and the window of concern to the resident of 7/11 Hereward Street has been deleted and Mr Harding's requirement to replace the solid walls and associated windows in the walls adjacent to the balcony areas of unit 5 will also ensure the no adverse privacy impacts arise. 2. The amended plans do propose a development that exceeds the relevant standards for building height and FSR however the council agrees that the extent of variation is acceptable and reasonable in the circumstances of the case. I agree. 3. I also accept Mr Harding's evidence that the separation distance provided between the upper level balcony and that of 4/10 Severn Street is appropriate to address privacy concerns, being in excess of 20 m and therefore well in excess of the recommended minimums of 12m and 18m for buildings up to four storeys and from five to eight storeys respectively as detailed in the Apartment Design Guide. 4. For these reasons and those outlined above, it is appropriate to allow the modifications proposed subject to the conditions proposed by the council and agreed by the applicant. 5. By Consent, the Orders of the Court are: 1. The appeal is upheld. 2. Modification Application DA-552/2013-B to modify Development consent DA-552/2013 for the replacement of the approved clerestory window on the building fronting Severn Street with an additional level to accommodate a two storey apartment (Unit 5), the replacement of the clerestory window on the building at the rear with a lantern style roof form and an increase in the height of the two lift overruns to the two approved buildings, at 3 Severn Street, Maroubra, is determined by approving the modifications as set out in Annexure A; and 3. As a consequence of order (2), Development Consent No DA-552/2013-B is now subject to the consolidated, modified conditions of development consent set out in Annexure B. 4. The exhibits, other than exhibits A and 1, are returned. ________________ Sue Morris Commissioner of the Court 10648 of 2015 Morris_Annexure A (C) (190 KB, pdf) 10648 of 2015 Morris_Annexure B (C) (401 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: 17 November 2015