45 Grosvenor St Pty Limited v Woollahra Council
[2014] NSWLEC 1090
•20 May 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: 45 Grosvenor St Pty Limited v Woollahra Council [2014] NSWLEC 1090 Hearing dates: 19 May 2014 Decision date: 20 May 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Conditions of consent Legislation Cited: Environmental Planning and Assessment Act 1979; Woollahra Local Environmental Plan 1995; State Environmental Planning Policy No 1 - Development Standards; Environmental Planning and Assessment Regulation 2000 Cases Cited: Whebe v Pittwater Council NSW LEC 827 Texts Cited: Woollahra Heritage Conservation Area Development Control Plan 2003 Category: Principal judgment Parties: 45 Grosvenor St Pty Limited (Applicant) Woollahra Council (Respondent) Representation: Mr V Conomos
Mr T Flaherty
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 11008 of 2013
Judgment
The applicant, 45 Grosvenor St Pty Ltd, was granted development consent (DA 288/2013) by Woollahra Council (council) on 5 December 2013 to carry out alterations and additions to the existing building including additions to the rear, new garage with a loft over, attic level with dormer and the use of premises at 45 Grosvenor Street, Woollahra as a dental surgery (medical consulting rooms).
The applicant is appealing one of the conditions of consent pursuant to s97(2) of the Environmental Planning and Assessment Act 1979 (EPAAct). That condition required amendments to the design and layout of the development.
The site
The site is a rectangular allotment on the eastern side of Grosvenor Street and is serviced from a rear lane, Dyson Lane. It has a frontage to each roadway of 5.03m, depth of 33.48m and site area of 170.7sqm with slope from south to north across the site by approximately 0.5m.
There is a two storey Victorian terrace house on the site previously used as a medical centre and a metal carport to the rear accessed off the lane.
Surrounding development comprises residential and commercial development predominately two storey Victorian terraces used for professional services. Developments to the immediate north and south of the site are dwelling houses.
Buildings are built at or near the front boundary and there are no consistent rear building lines in the locality at ground or first floor levels.
Bondi Junction Interchange and commercial precinct and Syd Enfield Drive overpass is located a short distance to the south.
Background and the proposal
DA 288/2013 provided for amendments to the plans to address certain heritage and built form requirements of the council. These were included in condition C1 which reads as follows:
C.1 Modification of details of the development (s80A(1)(g) of the Act)
The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments:
a) The deletion of surgery room 2 (and hallway to the east of the OPG room) at the rear of the ground floor and the retention of the space as private open space
b) An additional setback of 0.5m to the rear of the first floor for a minimum setback of 13.65m
c) The deletion of the two outer windows to the laboratory at the rear of the first floor
d) The lowering in the height of the entrance to Dyson Lane by 0.4m
e) The relocation of the southern wall of the rear addition to the first floor so that it is wholly within the subject site and not protruding across the boundary with 43 Grosvenor Street
The applicant is appealing the imposition of that condition and seeks its deletion.
In accordance with the practice of the Court, the matter commenced as a conciliation conference before another Commissioner of this Court. Whilst no agreement was reached during that process, the applicant prepared amended plans which reflected some but not all of the Council's requirements as described in condition C1. Leave to rely on those plans was granted on 28 March 2014.
Those plans deleted part of the ground floor addition so that a 10.007m setback was provided from the rear boundary. Condition C1a would require an approximate setback of 11.225m.
The setback of the first floor to the rear boundary is 13.146m and the windows that are required to be deleted to comply with condition C1c remain.
The applicant, prior to the council's determination of the application, deleted the proposed garage and loft structure so there is now no covering over the proposed parking space and bin store. A garage door and two gates would be constructed on the lane boundary line. The height of that structure would be a maximum of 3.4m above ground level so non-compliant with condition C1d.
The existing northern boundary fence would be retained between the bin store/adjoining garage and the proposed ground floor addition.
Condition C1e is met with no boundary encroachments proposed.
The planning controls
The site is in Zone No 2(b) - (Residential "B" Zone) under Woollahra Local Environmental Plan 1995 (LEP). The proposed use would be medical consulting rooms, a use that is permitted only with development consent. Clause 11 applies to floor space ratio (FSR) with a FSR of 0.625 applying to the site. The proposed FSR is 1.23 so exceeds the development standard. The existing buildings on the site have a FSR of 0.8:1 so already exceed that standard.
The objectives of the development standard are contained in clause 11AA of the LEP as follows:
a)to set the maximum density for new development,
b)to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities,
c)Ito minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and
d)to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point.
The applicant has lodged an objection to the development standard pursuant to the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP1). The council, in its original determination of the application, assessed the objection and found it to be well founded. An amended objection (Exhibit B) has been prepared to reflect the plans now before the Court. The council supports the objection and says the objectives of the control are met.
Woollahra Heritage Conservation Area Development Control Plan 2003 (DCP) applies to the site, which is within the Grafton Precinct of the Woollahara Heritage Conservation Area (HCA). Those matters relevant to the application are contained in Part 3.2.4 - Traditional building elements; the Table to Part 3.4.9 - Parking and Garages and Part 3.4.12 - Acoustic and visual privacy.
The issues
The contentions in the case relate to visual privacy and height of the rear access structure and were matters identified as being capable of being resolved by conditions. In addition, the council sought additional information in relation to survey and solar access diagrams. The latter had been provided and is deemed to be acceptable to the council.
The visual privacy contention related to the first floor, rear windows to the laboratory, the form those windows take in relation to heritage issues and the impact of those windows on the privacy of adjoining dwellings.
The evidence
The hearing commenced on site with evidence heard from the owners of the adjoining property to the north. That evidence was taken from within the rear yard of their property. The issues raised by them is summarised as follows:
- Concerned works will damage the charged drainage system that runs along the common boundary and dwelling structure;
- Object to the height, bulk, proximity to boundary and scale of the ground floor addition but except the further changes proposed by the council to the first floor addition;
- Questions the use of fibrous cement in a heritage conservation area.
Expert planning evidence was heard from Mr L Adey for the council and Mr Taylor for the applicant. Mr Adey is also a heritage expert. They agree that, subject to the imposition of conditions, consent to the development should be granted. Those conditions propose changes to the shape, size and form of the laboratory windows and the decrease in the height of the rear access wall on the boundary with Dyson Lane and have been incorporated into the proposed consent conditions (Exhibit 3). In addition, in response to the concerns raised by the neighbours, a condition (A7) has been included to ensure the protection and support of the adjoining building as required by clause 98E of the Environmental Planning and Assessment Regulation 2000 (Regulation).
In relation to the height of the proposed ground floor addition adjacent to the objectors' property, the experts were asked whether this height could be decreased and whether it was considered to adversely impact on the amenity of that property.
Mr Adey says that this issue had been considered in the design of the development, particularly from a heritage perspective and agreed that whilst it would be possible to reduce the height of the roof structure above the ramp area and therefore the wall by approximately 500mm, this would not be appropriate from a heritage viewpoint. That is because the proposed skillion roof is more typical than an irregularly pitched roof that would arise if the alternate height reduction was pursued. He said the roof form is particularly important because the reduction in height of the laneway structure will result in the additions being read from that lane.
He notes that the height of the wall has been slightly reduced (by 181mm) from that approved by the council and says that the additional length (approximately 1m) does not cause any impact to the property to the north as it adjoins the area currently planted with bamboo and that planting would provide an appropriate screen to the wall. It is his opinion that the proposed design and the additional 1m wall length will have no impact and makes for a better outcome, both architecturally and from a heritage perspective.
Mr Taylor agrees and says that whilst the wall will have some impact, that impact is acceptable.
Conclusion and findings
For consent to be granted, I must be satisfied that the objection to the FSR development standard is well founded and in this respect, I have regard to the written objection included in Exhibit B, the objectives of the standard included in clause 11AA of the LEP and the principles outlined by Preston CJ in Whebe v Pittwater Council NSW LEC 827. I also note that the DCP contains provisions in the case of residential development that would provide for development with a higher FSR, that being 0.98:1 and that the surrounding development primarily exceeds the development standard.
Having regard to the evidence, I accept that the development, subject to the agreed conditions of consent, would be acceptable in terms of compliance with the council's planning controls and heritage outcomes and that the objection to the FSR development standard is well founded, satisfying the objectives of that standard.
That is because the scale of the development is consistent with that of the locality and the desired future character and relate to the existing character when viewed from the streetscape. The impacts of the proposed development are mitigated through the reduction in size of the upper floor windows and the existing stand of bamboo within the adjacent property that would screen the proposed wall for the approximate 4.3m length along the common boundary with the existing fence retained to the east of the wall. The experts agree that the solar diagrams result in no adverse overshadowing of properties to the south.
The form of the proposed development, subject to the proposed consent conditions, is also acceptable having regard to the DCP controls for the conservation area.
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development application DA 288/2013 for alterations and additions to the existing building including additions to the rear, attic level with dormer and the use of premises at 45 Grosvenor Street, Woollahra as a dental surgery (medical consulting rooms) is approved subject to the conditions included in Annexure A.
(3) The exhibits, other that exhibits A and 1, can be returned.
Sue Morris
Commissioner of the Court
Annexure A
Decision last updated: 20 May 2014
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