The Architecture Company Pty Ltd v Randwick City Council [2012] NSWLEC 1250

Land and Environment Court New South Wales

Medium Neutral Citation: The Architecture Company Pty Ltd v Randwick City Council [2012] NSWLEC 1250 Hearing dates: 22-23 August 2012 Decision date: 04 September 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No 926/2010 for a residential flat building at 96 Maroubra Road, Maroubra is approved, subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 1, C, D and H, are returned. Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of a 7 storey residential apartment building, bulk and scale, design quality, impact on surrounding area. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Zhang v Canterbury City Council (2001) 115 LGERA 373. Category: Principal judgment Parties: The Architectural Company Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Mr Gary Green (Solicitor) (Applicant) Mr Adam Seton (Solicitor) (Respondent) Solicitors Pikes & Verekers Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 11240 of 2011

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 926/2010 (the application) by Randwick City Council (the Council) to construct a 7 storey residential apartment building, at 96 Maroubra Road, Maroubra (the site). 2The appeal was subject to mandatory conciliation on 22 March 2012, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 11 May 2012 pursuant to s 34(4) of the LEC Act.

Issues 3Council's contentions in the matter can be summarised as: * The proposal will have an adverse impact on the surrounding area, due to an inadequate setback from its eastern neighbour and its form and scale; * The design quality of the proposal does not meet the requirements of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65); * The proposed communal open space is insufficient; and * The number of parking places is insufficient and all spaces rely on mechanical car stackers.

The site and its context 4The site is on the corner of Maroubra Road and Hannan Street. The site frontage to Maroubra Road is 10.06m and the site frontage to Hannan Street is 42.685m and the area of the site is 429.41m2. The site contains a single storey dwelling fronting Maroubra Road and a two storey brick warehouse building at the rear of the site. The site is approximately 3m above the kerb level of Maroubra Road. 5There is a nine storey residential flat building on the adjoining site to the east. There is a five storey residential flat building adjoining the site to the north, currently under construction. There are multi-storey residential flat buildings and single dwellings in the area.

The proposal 6The proposal is to construct a six storey residential flat building over a basement car park, accessed from Hannan Street. The basement car park level is to have an office area fronting Maroubra Road, connected via a stair to the apartment over. 7The building is designed with a curved wall on the eastern side and is configured in an almost semi-circular form, with two large studio apartments per floor facing west on either side of the central lift/stair core. The lower two residential levels include three, two storey 1 bed apartments on the northern side of the six storey tower. 8The proposal is for 3 x 1 bed apartments, 12 studio apartments (including one home/office apartment) and 15 car spaces (utilising mechanical car stackers) in the basement.

Planning Framework 9The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) and the Residential Flat Design Code (RFDC). 10The site is located within the 3(a) General Business Zone, pursuant to the Randwick Local Environment Plan 1998 (LEP 1998). 11The objectives for the 3(a) General Business Zone, at clause 13 of LEP 1998, are: (a) to maintain the viability of existing business centres, and (b) to facilitate the orderly and economic development of land as business centres, for commercial, retail, residential and community purposes by: (i) introducing controls for the bulk and scale of buildings, and (ii) encouraging economically viable retail cores which are centrally located and in close proximity to public transport, and (iii) improving employment opportunities, and (iv) servicing the needs of the local and regional community, and (v) encouraging the provision and use of public transport, and (vi) providing and improving pedestrian and public open space areas for shoppers and workers, and (vii) maintaining and improving the environmental and aesthetic qualities of the City of Randwick, and (c) to minimise the impact of development on adjoining and nearby residential zones, and (d) to encourage housing affordability. 12Clause 42D of LEP 1998, Maroubra Junction Town Centre, includes: (1) This clause applies to the land comprising the Maroubra Junction Town Centre, as identified by heavy black edging on the map marked "Randwick Local Environmental Plan 1998 (Amendment No 33)", deposited in the office of Randwick City Council. (2) The Council must not grant consent to the carrying out of development on land within the Maroubra Junction Town Centre unless it is satisfied that the proposed development is consistent with the zone objectives for the land and the following objectives for the Maroubra Junction Town Centre: (a) to achieve high quality design in all new developments and improvements undertaken in the public domain, (b) to encourage a vibrant and active town centre that provides a range of facilities and services that benefit the locality and local government area, (c) to provide opportunities for residential development in the town centre that complement the primary business function of the town centre, (d) to encourage a variety of housing forms that complements development within the town centre and do not impact adversely upon the amenity of surrounding residential areas, (e) to ensure that social and cultural needs are considered with any development proposals in the town centre, (f) to encourage and facilitate the provision of vehicular access and off-street parking to support businesses in the town centre, (g) to ensure that public transport and associated facility needs are considered and promoted with any development proposals and public domain improvements in town centre, (h) to require and encourage environmentally sustainable approaches to future land use and development, and (i) to improve the overall environmental quality of the Maroubra Junction Town Centre. (4) The maximum number of storeys requirement of the Maroubra Junction Town Centre Development Control Plan adopted by the Council on 18 November 2003 applies to the development of land within the Maroubra Junction Town Centre as if it were incorporated into this plan. (5) For the purpose of subclause (4), the maximum number of storeys must correspond with the building height as set out in the Table to subclause (6). 13Subclause 42D(6) of LEP 1998 provides a table for number of storeys and maximum building height. Six storeys are permitted on this site and the maximum height for a six storey building is 21 metres. Subclauses 42D(7) and (8) specify that building height is to be measured vertically from the ground level at each point on the boundary of the site to the underside of the ceiling of the uppermost flor and 'storeys' means habitable floor, excluding underground car parking. 14Relevant Development Control Plans for the site include: * Maroubra Town Centre Development Control Plan (DCP 2004) * Development Control Plan Parking 1998 (Parking DCP) 15DCP 2004 provides a framework for development in the Maroubra Junction Town Centre and is divided into four parts, as follows: * Part 1 is an introduction; * Part 2 contains an analysis of the study area; * Part 3 contains development controls, including building envelope, height, depth, separation, articulation, setbacks and block controls; and * Part 4 contains design controls. 16The site is located at the far western extent of the Maroubra Town Centre. 17Section 3.1.3 of DCP 2004 provides controls for the building envelope. The building envelope defines the maximum extent of the building in any direction and buildings are to be designed so that the gross floor area achieved occupies no more than 70% of the maximum building envelope. The building envelope plan and height key for the site is shown in section 3.2.6, 'Block 6'. The plan illustrates the building footprint for the site as a rectangular building 6 storeys high, occupying the full extent of the southern half of the site. The building footprint of the neighbouring residential apartment building at 98 Maroubra Road is indicated on the block 6 plan, as the neighbouring building was constructed prior to the preparation of DCP 2004. 18Section 3.1.4 of DCP 2004 provides controls for the height of buildings. The control for building height is consistent with the development standard for building height in LEP 1998. The objectives for building height are: To ensure future development within the town centre responds to the desired scale and character of the street and the town centre. To ensure development at the edges of the town centre respond to the scale and character of development and the streets surrounding the town centre. To allow reasonable daylight and solar access to all developments and the public domain. 19Section 3.1.5 of DCP 2004 provides controls for the depth of buildings. Building depth is defined as the horizontal cross section dimension of a building, generally from front to back. The depth of a building has significant impact on residential amenity for the building's occupants. The performance criteria for building depth is a maximum allowable depth for residential building envelopes of 22 m (maximum 18 m glass line to glass line). This dimension control is consistent with the RFDC development controls. 20Section 3.1.6 of DCP provides controls for building separation. The objectives of the building separation controls are: To ensure that the scale of new development is consistent with the desired character of the area as identified in this DCP (Parts 2 and 3). To provide visual and acoustic privacy for existing and new residents. To control overshadowing of adjacent properties and private and shared open space. To allow for the provision of usable open space between buildings. To provide deep soil zones for stormwater management and tree planting where site conditions allow. 21The performance criteria for building separation for a building five to eight storeys is 18 m between habitable rooms/balconies and habitable rooms/balconies; 13 m between habitable rooms/balconies and non-habitable rooms; 9 m between non-habitable rooms and non-habitable rooms. These distances are consistent with the RFDC development controls. 22Section 3.1.8 of DCP 2004 provides controls for street setbacks. No setback is required from Maroubra Road, in order to maintain an urban street edge along Maroubra Road. 23Section 3.1.9 of DCP 2004 provides controls for side and rear setbacks. The objectives of side setbacks are: To minimise the impact of development on light, air, sun, privacy, views and outlook for neighbouring properties. To retain or create a pattern of development that positively defines the streetscape so that the area between buildings is not just "left over" space. 24The performance criteria for side setbacks requires developments to comply with the building separation requirements of section 3.1.6 and the side and rear setback requirements of the block controls. Developments fronting Maroubra Road may have a zero side setback, unless otherwise specified in block controls. The block controls in section 3.2.6 specify a nil setback from Maroubra Rad and a 3 m setback from Hannan Street. Side setbacks for properties fronting Maroubra Road are to be nil. Side setbacks for properties fronting Hannan Street, with a side boundary shared with an existing strata title lot, are to be nil. Lots fronting Hannan Street are to have a rear setback of 6m. 25The building use, in Section 3.2.6, requires all floors on the site to be residential. 26Part 4, section 4.1.4 provides objectives, performance criteria and controls for communal open space. 25% of the total site area is to be provided as a communal open space. The objectives for communal open space are: * To provide an area on site that enables soft landscaping and deep soil planting. * To ensure that communal open space is consolidated and designed to be usable and attractive. * To provide a pleasant outlook. * To provide residents with passive and active recreational opportunities. 27The following requirements are included in the performance criteria for communal open space: - be located so that it forms a focus of the development and provides a landscape buffer between buildings - provide a pleasant outlook - be located so that solar access is maximised be consolidated into usable areas - demonstrate that its size and dimensions allow for variety of uses, including active and passive recreation 28Part 4, section 4.2.1 provides objectives, performance criteria and controls for parking. The relevant performance criteria for parking specifies that the parking provision is to be in accordance with Council's Parking DCP and subbasement parking is not to be more than 1.2 m above existing ground level. 29Section 4.4.5 provides objectives and performance criteria for corner buildings. Buildings on the corner of two streets/roads are identified as 'corner buildings', with address and visibility from two streets. 30The Parking DCP includes the following statement at section 2.1.2: The importance of parking must be kept in perspective in the overall development assessment process. There may be circumstances where it may not be physically possible or aesthetically desirable to provide parking (eg provision of off-street parking for a heritage item or in areas of significant streetscape value). 31The table at section 2.3 of the Parking DCP specifies the number of car parking spaces required for various land uses. For multi unit housing, 1 space is required per 1 bedroom dwelling or bedsitter unit over 40 sq m and 1 visitor space is required per 4 dwellings.

Public submissions 32Six resident objectors provided evidence at the commencement of the hearing on site. Five of the resident objectors are residents of the neighbouring residential flat building at 98 Maroubra Road and the parties and their experts viewed the site from two apartments on level 5 of 98 Maroubra Road. Their concerns can be summarised as: * The proposal will obstruct views from the windows and balconies on the western elevation of 98 Maroubra Road; * The proposal will obstruct sunlight to the rooms and balconies on the western elevation of 98 Maroubra Road and require the residents to have their lights on for longer periods; * The proposal will result in a loss of privacy and acoustic impacts on the residents of 98 Maroubra Road; and * The proposal is an overdevelopment of the site. 33The sixth objector is an architect, who has been engaged by the owner's corporation of the neighbouring residential flat building at 98 Maroubra Road to speak on behalf of the residents. In his opinion, the separation between the two buildings is inadequate and the curved wall is not articulated. He said that should the proposal be approved, the curved wall facing the western elevation of 98 Maroubra Road should be painted in a light colour to maximise reflected light into the rooms on the western façade of 98 Maroubra Road.

Expert evidence 34Expert evidence was provided on behalf of the applicant by Ms Gabrielle Morrish (urban design), Ms Deborah Laidlaw (planning), Ms Narelle Sonter (landscape) and Mr Tim Rogers (traffic). 35Expert evidence was provided on behalf of the Council by Mr Stuart McDonald (planning) and Mr Garry Kennedy (traffic).

Building envelope and side setback Evidence 36The experts agree that the gross floor area of the proposal is less than 70 percent of the building envelope and that the proposal complies with the performance criteria requirement for residential floors in section 3.1.3 of DCP 2004. The experts disagree about the way the gross floor area is distributed on the site. According to Ms Morrish and Ms Laidlaw, the first and second residential levels of the proposal extend beyond the building envelope to the north, in order to locate a larger proportion of the floor space on these levels, when compared to the upper levels, as the upper levels have a greater impact on 98 Maroubra Road. According to Mr McDonald, the extension of the first and second residential levels beyond the building envelope to the north reduces the consolidated communal open space area. The experts agree that the first and second residential levels of the proposal extend beyond the building envelope prescribed by DCP 2004 for the site. 37The experts agree that a nil setback from Hannan Street is appropriate, in order to maximise the setback from the eastern boundary shared with 98 Maroubra Road. 38The experts agree that the curved eastern elevation of the proposal successfully maintains good view corridors from the western side balconies of 98 Maroubra Road and optimises solar access to 98 Maroubra Road. They agree that the curved wall is a skilful design that minimises the visual bulk of the residential flat building when viewed from the western balconies and rooms of 98 Maroubra Road. 39In Mr McDonald's opinion, the curved form of the eastern elevation is a monotonous single plane that would be articulated by the form of the lift shaft being expressed externally. 40The experts agree that the controls for building separation in the RFDC and DCP 2004, which require 13 m between habitable rooms or balconies and non-habitable rooms, cannot be achieved on this site. They agree that the building envelope for the site in DCP 2004 provides a nil setback from the eastern boundary and that this is not appropriate and a setback from the eastern side boundary is necessary. They agree that an appropriate setback from the eastern boundary becomes a subjective matter and they disagree on the extent of the setback required. According to Ms Laidlaw and Ms Morrish, the proposed 1.4 m setback at the apex point of the curved wall is appropriate, as the curved wall increases its setback from the side boundary along its length. In Mr McDonald's opinion, the proposal should be set back 3 m from the eastern boundary on either side of the lift shaft. 41The experts agree that the proposal does not compromise the privacy of 98 Maroubra Road, as there are only highlight windows in the bathrooms and bed space on the eastern elevation of the proposal. Findings 42I understand and am sympathetic to the considerable distress of the residents of 98 Maroubra Road, who have rooms and balconies on the western elevation from which they currently enjoy panoramic views across the top of the single storey dwelling at 96 Maroubra Road. The location of living rooms and balconies adjacent to a side boundary shared with an adjoining allotment means that the amenity enjoyed by the residents on the western side of 98 Maroubra Road is extremely vulnerable to the development of the adjoining property. 43I accept that the provisions of DCP 2004 must be a central focus of my consideration and assessment of the merits of this application. I must therefore give significant weight to the development envisaged by DCP 2004 for this site. The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of judgements on this issue. Relevantly, at par 87, his Honour states: A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning. 44His Honour further states, at par 87, the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to given to the development control. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making. 45The emphasis to be given to a DCP is also addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decisionmaking process but it is not in itself determinative. 46The building envelope for the site, proposed by DCP 2004, occupies the full extent of the southern half of the site and is 6 storeys high. Building envelopes are a large scale, master-planning device to determine the overall block form of the town centre. It is appropriate for the architect to take the building envelope described by DCP 2004 and to further develop and design the building form in response to the opportunities and constraints of the site. The proposal is a considered response to the constraints of this site and the minor adjustment of the building envelope to extend the first and second floors further to the north in order to reduce the size of the upper four floors is an appropriate adjustment of the building envelope, because it has been made to ameliorate the impact of the proposal on its neighbour at 98 Maroubra Road. As the proposal occupies no more than 70 percent of the gross floor area of the maximum building envelope, as required by Section 3.3.1 of DCP 2004, it has achieved the scale envisaged by DCP 2004 for this site. 47I understand the evidence of the experts that it is not possible to achieve the RFDC 13 m separation between the proposal and the existing residential flat building at 98 Maroubra Road, because the width of the site is 10.6 m and the existing residential flat building at 98 Maroubra Road has been constructed with balconies setback approximately 2 m from its side boundary. I am satisfied that the privacy concerns of the residents of 98 Maroubra Road are addressed by the orientation of the proposal and the provision of highlight windows in the eastern façade. 48I agree with the experts that the curved eastern elevation of the proposal successfully maintains good view corridors from the western side balconies of 98 Maroubra Road and optimises solar access to 98 Maroubra Road. I agree with Ms Morrish that the proposal is a skilful design and the curved form minimises the visual bulk. I disagree with Mr McDonald that expressing the lift shaft in the form of the eastern façade would somehow articulate that elevation. The curve of the eastern elevation preserves the maximum solar access and views of the city to the north-west and views to the south-west from the rooms and balconies on the western side of 98 Maroubra Road and it minimises the bulk of the building when viewed from 98 Maroubra Road. 49In my view, the proposal satisfies the relevant requirements of DCP 2004 in relation to the building envelope and setbacks.

Building height Evidence 50There was agreement that the proposed development breaches the development control in LEP 1998 for the number of storeys permitted on the site and the applicant submitted a State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection to the development standard. 51The experts agree that the proposal would be compliant if the home office space fronting Maroubra Road is deleted, as the proposal would then be 6 residential levels over a basement parking level. The experts agree that the home office fronting Maroubra Road provides a better urban design outcome, as it activates the Maroubra Road frontage. 52The experts agree that deleting the unit on the top floor on the southern side, which would also make the proposal compliant, is undesirable. In Mr McDonald's opinion, it is preferable to retain the height of the proposal and increase the set back from the eastern side boundary. Findings 53When tested against the relevant objectives of LEP 1998, the planning experts agree that the breach of the number of storeys development standards is consistent with the aims of SEPP 1. I have read the SEPP 1 objection to the number of storeys development standard prepared by Ms Laidlaw and I agree with the expert planners. It follows that compliance with the number of storeys development standard is unnecessary in this case and that the SEPP 1 objection is well founded.

Communal open space Evidence 54The experts agree that 25 percent of the site is required as communal open space and this is equal to 107 sq m. They agree that in total 127 sq m of unbuilt upon area is provided by the proposal, which includes the consolidated communal open space area at the northern end of the site and the eastern side setback. The area of the consolidated communal open space area at the northern end of the site is 86 sq m, which, according to the Council, is a shortfall of 21 sq m, because Council excludes the eastern side setback from the calculation. Ms Sonter maintains that the communal open space requirement is fulfilled by adding together the area of the eastern side setback and the consolidated communal open space area at the northern end of the site. 55The experts agree that eastern side setback is 23 m long and 1.8 m wide, is adjacent to the setback from 98 Maroubra Road and serves as the principal route to the entry foyer for three units and access to the consolidated communal open space area at the rear of the site. They agree that the eastern side setback will receive little direct solar access. The experts disagree whether the eastern side setback should be included in the communal open space area calculation. 56According to Mr McDonald, a reduced building footprint, consistent with the building footprint indicated in Section 3.2.6 of DCP 2004 would provide an adequate consolidated area at the northern end of the site for communal open space, which would meet the DCP objectives for communal open space. 57In Ms Sonter's view, it is reasonable to include the area of the eastern side setback in the communal area calculation because it provides access to the consolidated area at the northern end of the site intended for communal open space and access to a consolidated area is generally included in the calculation. In her opinion, the landscape setting, including the eastern side setback, provides amenity to the development as a whole and the proposal meets the objectives and performance criteria in Section 4.1.4 of DCP 2004. Findings 58As previously explained in the judgment, the building footprint extends further to the north than what is envisaged by the DCP 2004 building envelope, in order to maximise the floor area over the first two levels of the development and I agree that this is a reasonable trade off to reduce the floor areas of the upper four floors. 59I agree with Ms Sonter that the eastern side setback contributes to the overall landscape setting and that it is reasonable to include the eastern side setback in the communal open space calculation. The performance criteria for a communal open space (at section 4.1.4 of DCP 2004) includes a requirement that the communal open space 'form a buffer between buildings' and the eastern setback forms a buffer between the proposal and 98 Maroubra Road, while the consolidated communal open space area forms a buffer between the proposal and the residential flat building currently under construction to the north. The performance criteria specifies that the communal open space is to be 'consolidated into usable areas', where areas is plural, implying that communal open space can be provided by a number of areas and not a single consolidated communal open space.

Basement car park Evidence 60The basement car park area of the proposal provides 15 spaces, which are all reliant on mechanical car stackers. According to Mr Kennedy, the table at section 2.3 of the Parking DCP result in a requirement for 19 spaces for this development (15 x 1 bed/bedsitter units and 4 visitor spaces). 61According to Mr Rogers, the Parking DCP provides for flexibility in determining the number of spaces required. In Mr Roger's opinion, the dimensions of the site are limited and it is not physically possible to provide more spaces. 62According to Mr Rogers, the development is not likely to have a great demand for off street parking as the area is well serviced by buses and occupants of studio apartments will be singles or couples and are more likely to rely on public transport because studio apartments provide an affordable housing option. Findings 63I agree with Mr Rogers that studio apartments will have a reduced demand for off street parking spaces when compared to larger apartments and that the site is well serviced by public transport and within walking distance of shops. 64I accept that on grade car parking is more convenient, however I also accept the evidence of Mr Rogers that the 10.6 m width of the site presents a significant constraint to the provision of basement parking on this site. The use of car stackers on this site substantially increases the capacity of the parking area. 65I am satisfied that 15 parking spaces, reliant on mechanical car stackers, are acceptable.

Conclusion 66Having regard to the relevant planning controls and the evidence provided, I find that the proposal is acceptable and the application should be approved.

Orders 67The orders of the Court are: 1.The appeal is upheld. 2.Development Application No 926/2010 for a residential flat building at 96 Maroubra Road, Maroubra is approved, subject to the conditions in Annexure A. 3.The exhibits, other than exhibits 1, C, D and H, are returned. ____________ Susan O'Neill 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: 04 September 2012