577 New South Head Road v Woollahra Municipal Council
[2005] NSWLEC 247
•05/16/2005
Land and Environment Court
of New South Wales
CITATION: 577 New South Head Road v Woollahra Municipal Council [2005] NSWLEC 247
PARTIES: APPLICANT
577 New South Head RoadRESPONDENT
Woollahra Municipal CouncilFILE NUMBER(S): 10682 of 2004
CORAM: Tuor C.
KEY ISSUES: Development Application :- Self care units
Excavation and impact on heritage item
SEPP 1 Objection - height
View sharing
Impact on treeLEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy - Seniors Living
State Environmental Planning Policy No 1- Development Standards
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours
Woollahra Local Environmental Plan 1995CASES CITED: 577 New South Head Road v Woollahra Municipal Council [2004] NSWLEC 526
DATES OF HEARING: 13 & 14/12/04
DATE OF JUDGMENT:
05/16/2005LEGAL REPRESENTATIVES: APPLICANT
Mr D Wilson, BarristerSolicitors
Stone & PartnersRESPONDENT
Solicitors
Mr M Connell, Solicitor
Michell Sillar
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
16 May 2005
10682 of 2004 577 New South Head Road Pty Ltd v Woollahra Council
JUDGMENT
1 COMMISSIONER: This is an appeal against the deemed refusal by Woollahra Municipal Council (the council) of a development application (DA 236/2004) to construct ten self care units with basement parking for 20 cars under the provisions of State Environmental Planning Policy – Seniors Living (Seniors SEPP) at 577 New South Head Road (1A Rose Bay Avenue), Rose Bay (the site).
2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused.
The site and its context
3 The site is located on the southern side of New South Head Road on the corner of Rose Bay Avenue, with views over Rose Bay. It has a frontage along New South Head Road of about 61m and a depth of about 37m with an overall area of 2265sqm. The site falls about 3.5m from west to east and 8m from south to north, with a steep cut along its southern boundary.
4 Until recently the site was developed with a two storey house which was demolished and the site cleared in accordance with the development consent for DA 262/2002 approved by Council on 28 January 2003 (the 2003 consent). A number of trees have been retained as part of this consent including a stand of Brush Box trees on the northern boundary of the site.
5 The western boundary of the site adjoins Cranbrook Lane, a pedestrian thoroughfare. Development to the east of this lane is residential flat buildings of varying age, form and styles. Adjoining the lane is a five storey inter war flat building, 285 New South Head Road. Its site has been excavated to accommodate ground level parking.
6 Across New South Head Road to the north are Rose Bay Park and a foreshore walkway with substantial street trees. To the west is the landscaped road reserve of Rose Bay Avenue and the Cranbrook College oval. Adjoining development to the south is 1 Rose Bay Avenue; a house built in 1923-1924 and designed by Professor Leslie Wilkinson. It is listed as a heritage item in the LEP, but is not on the State Heritage Register. It is on a number of other lists, including the Register of the National Estate, and while this is not a statutory listing, it indicates that the item is of state and national significance.
The proposal and its history
7 The application was lodged on 22 April 2004 and was notified to adjoining and nearby residents. Council received four objections, some outside the objection period. At the time of the hearing council had not determined the application.
8 The application is similar to the 2003 consent; the key difference that is relevant to this appeal is the provision of light wells/court yards to the southern side of the building to provide light and air to habitable room. This results in excavation closer to the southern boundary than previously approved.
9 Commissioner Nott dismissed an appeal against council’s refusal of a s96 application to modify the 2003 consent (577 New South Head Road Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 526) on 21 September 2004. The current application is essentially the same as the s96 application. The main issues in that appeal were:
· whether the proposed modified development is substantially the same as that for which consent was granted;
· whether the increased excavation of the subject site and method of retention of the excavated land might adversely impact upon the stability of the adjoining property at 1 Rose Bay Avenue; and
· the amenity of the adjoining residents at 1 Rose Bay Avenue.
Planning Framework
10 The site and land to the south is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is not permissible within the zone. Land to the east is zoned Residential 2(b) which permits residential flat development. Approval for the application is sought under the provisions of the Seniors SEPP. The 2003 consent was granted under the provisions of State Environmental Planning Policy No 5 (SEPP 5).
11 The application does not comply with the height standards in the Seniors SEPP and the applicant has submitted applications under State Environmental Planning Policy No 1 - Development Standards (SEPP1). The proposal has an FSR of 1.12:1 with approximately 50% of the gross floor area being below existing ground level. Cl 81 of the Seniors SEPP specifies that an application cannot be refused on the grounds that it has an FSR of 0.5:1 or less. The Seniors SEPP does not specify a maximum FSR control.
12 The provisions of LEP 1995 and Woollahra Residential Development Control Plan 2003 (DCP) apply to the extent that there is no inconsistency with the Seniors SEPP. Particularly relevant is cl 18 of LEP 1995:
18 Excavation of land
(1) When considering an application for consent for development involving the excavation of any land, the Council shall have regard to how that excavation may temporarily or permanently affect:
(a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process, and
(b) public safety, and
(c) vehicle and pedestrian movements, and
(d) the heritage significance of any heritage item that may be affected by the proposed excavation and its setting, and
(e) natural landforms and vegetation, and
(f) natural water runoff patterns.
(3) Consent for an excavation may be granted when consent is granted for any other development proposal for the carrying out of which the excavation is necessary.(2) The Council may decline to grant such a consent unless it has considered specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and dilapidation reports of properties, which may be affected by the proposed excavation.
13 The adjoining site, 1 Rose Bay Avenue, is listed as a heritage item under LEP 1995. A group of Canary Date Island Palms in the adjoining road reserve to the west of the site are listed as landscape heritage items. Cl 27 requires that the likely effect of the proposed development on the heritage significance of the item and it setting must be considered.
14 The controls in the DCP of relevance include:
C5.2.15 - The building footprint is designed to minimise cut and fill.
C5.2.17 - To minimise cut and fill on sloping sites and to encourage good quality internal environments, any habitable room must have at last one external wall fully above existing ground level.C5.2.16 - The outer edge of excavation, piling and all sub-surface walls shall not be less than 1.5 m from a front, side or rear boundary.
15 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours (SREP23) are also relevant.
16 A covenant applies to the land which relevantly states that no building erected on the land shall:
Exceed in height a distance of Fifty-three feet (15.148m) above the level of the top of the kerb on the South Western side of New South Head Road at a point where it is intersected by the prolongation of the South Eastern boundary of the said land (RL 21.184)
17 This covenant was placed on the title to protect the views of 1 Rose Bay Avenue but it not an impediment to granting consent to the development.
The evidence
18 Mr C Young, the Court Appointed Expert, Mr D Booth, for the council and Mr B Kirk, for the applicant, provided planning evidence. The Court heard geotechnical evidence from Mr G Mostyn, geotechnical engineer, for the council, Mr R Green, structural engineer for the applicant and Mr T Gourlay, geotechnical engineer on behalf of the residents. Mr D Shiels, for the council and Ms L McLellan, for the applicant provided arborial evidence.
19 The court heard evidence from the following residents:
· Ms J Fletcher and Mr A James, 1 Rose Bay Avenue
· Mr S Fonteyn, for the owners of 5 Rose Bay Avenue
· Mr J Ormaechea, 587 New South Head Road.
20 The main concern of the residents was the height and extent of excavation and its likely impact on their properties. They also raised concern about vehicle access to the site, particularly during construction. The owners of 1 Rose Bay Avenue were concerned about the impact on the heritage significance of their property due to the excavation, height, and proximity to the boundary and view loss.
The issues
21 The Statement of Issues before the Court contained 13 issues which can be categorised as:
i) Whether the extent of excavation is likely to have an adverse impact on adjoining properties, particularly 1 Rose Bay Avenue.
ii) Whether the height of the proposal is acceptable and the objection under SEPP 1 is well founded.
iii) Whether the proposal achieves appropriate view sharing and does not adversely impact on the heritage significance of 1 Rose Bay Avenue.
iv) Whether the proposal will impact on the health of the Canary Island Date Palm.
Excavation
22 Mr Mostyn and Mr Green were the experts who appeared in the appeal before Commissioner Nott. They both agreed that the extent and method of excavation in both appeals was essentially the same and that the difference between the s96 application and the current proposal was the detail of the proposed conditions and the inclusion of a deferred commencement condition. The deferred commencement condition required a report, including detailed calculations and drawings, on matters such as existing footings, method of excavation and likely impacts. The proposed conditions approve the concept design subject to the further design work required by the deferred commencement condition. They include independent proofing of the proposed method of excavation and a system of checks and reporting during the construction period.
23 The concept design proposed by Mr Green is for contiguous bored piles braced with walers and anchors. The experts agreed that 1 Rose Bay Avenue, adjoining the southern boundary, is the structure most sensitive to the excavation works. Along the southern boundary, the concept design proposes 600mm diameter bored piles that extend to a depth of about 20m with the inside face of the piles 2m from the boundary (the outside face would be 1.4m, although with detailed design the diameter of the piles may increase). The depth of excavation in front of the wall is proposed to be about 11m. Temporary anchors up to 16m in length are proposed under 1 Rose Bay Avenue. This will require the consent of the owners or a Court order. The owners indicated that they were opposed to granting consent for the anchors under their property.
24 Mr Green recognised that a different system of contiguous piles may result from proofing and detailed design. Both Mr Mostyn and Mr Gourlay stated that they did not consider the concept design to be the optimum solution due to the risk of sand blowing out between the piles, the potential for deflection of the wall and vertical settlement of the ground behind the wall. However, they agreed that there were feasible alternate systems that could minimise potential damage to 1 Rose Bay Avenue.
25 The experts recognised that while it is technically possible to design a system it can be difficult to ensure that the system is correctly implemented. Mr Mostyn referred to “the designer’s intent” which he considered on this site to be a “difficult but achievable target”. He stated that it could be “foiled in any number of ways” as it is reliant on the competence of the builder and is difficult to condition. In his opinion the proposed conditions sought to provide a vigorous monitoring and inspection regime during construction to minimise risk. Mr Green explained that the concept was a fairly common one that was used in many sites in Woollahra.
26 The experts agreed that the extent of excavation was not “trivial” and not without risk but that “it can be done if it is done in the right way”. They also agreed that the further the excavation was from the adjacent structure the less risk of causing damage. Mr Gourlay considered that as 1 Rose Bay Avenue was an older building and a heritage item the risk of damage and the consequences if damage occurred were greater. He raised concerns about installing ground anchors under the property.
27 Mr Mostyn raised the lack of further detail in light of Commissioner Nott’s decision. Mr Green’s opinion was that the information was sufficient for the development application stage and that detailed design documentation would be provided at the construction certificate stage.
28 The question before me is whether the concept design and conditions satisfy the requirements of cl 18 of the LEP. In particular, cl18(d) which requires a consideration of the permanent or temporary affect of excavation on the heritage significance of any heritage item that may be affected by the proposed excavation and its setting. In considering the s96 application, Commissioner Nott considered that the depth and proximity of the proposed excavation posed a greater risk to the adjoining heritage item than the development approved under the 2003 consent. He concluded that the s96 application was not substantially the same as the approved development, but in doing so he considered both the qualitative and quantitative merits of the application.
29 I do not accept Mr Wilson’s submission, on behalf of the applicant, that the only issue before Commissioner Nott was whether the application was substantially the same and not the merits of the application. In his judgment at para 14 Commissioner Nott states:
One of the problems that confronted the Court was that the council had refused the s 96 application solely on the ground that the proposed modification would result in a development substantially different from that which was approved. There was no detailed consideration of the impact of the proposed additional excavation and structures near the common boundary of 1 Rose Bay Avenue, because (according to the council) that matter in effect did not arise for consideration because the modification could not be approved if the proposal was substantially different. After the site inspection on the first day, I indicated that I would like to have evidence presented from the council’s engineer or from a consulting engineer engaged by the council relating to whether the extent of excavation and manner of retaining it was appropriate, if the Court came to the view that the proposed development would be substantially the same as what was originally consented to.
30 The Commissioner then provided, in considerable detail, the evidence and his concerns about the likely risk. He states at para 30 that:
But on the evidence, it would still appear that there might be less risk if properly designed retaining structures for the originally approved development (subject to the approved condition 96), or for a modified smaller development, were constructed.
31 While this is a new application and it must be considered on its merits, the evidence of the experts is that the excavation, design concept and conditions are essentially the same as the proposal considered by Commissioner Nott. His judgement and merit consideration is therefore a relevant consideration in this matter. I acknowledge that his consideration involved a comparison of the impact of the excavation in the 2003 consent to the increase in excavation proposed in the s96 application, which he found would be likely to have a greater affect. Whereas this appeal is a new application and therefore such a comparison is of little relevance. The applicant can act on the original consent regardless of the outcome of this appeal. What is of relevance is the likely affect of the excavation.
32 In considering this question it is important to understand why the excavation is required and then to determine whether, on balance, the risk of the excavation is outweighed by the need for it. Approximately 50% of the gross floor area is located below natural ground level and the excavation is required to provide light and air to this floorspace. On the southern boundary the excavation will provide:
· Level 2: 2.2m wide light wells to bedroom 3 of the terrace apartments at RL 8.650m. The light well is not accessible from the bedroom.
· Level 3: there is the light well and a 4m wide courtyard off the casual lounge areas of the terrace apartment building at RL10.915m. This lounge area is part of an open plan space with views to the north. In the tower building there are accessible courtyards off bedrooms.
33 Mr Young considered the light wells to be an improvement upon the approved design and stated that:
The excavation in this proposal is an integral part of the design to reduce building height and respond to access for vehicle entry from the New South Head Road level as well as achieving natural ventilation and light to the levels. The resultant courtyards and light wells are not considered an adverse amenity impact to the rooms and usage of the rooms that they serve.
34 It is also proposed to excavate along the eastern boundary to provide light and air to the rooms that are below natural ground level. This excavation was proposed under the previous application but council imposed a condition that limited the extent of excavation from the outside face of the pile to the eastern boundary to 850mm. As I understand it, this was done to retain the slope of the land adjoining the public walkway. It is unclear how satisfactory amenity would be achieved to these rooms if this condition were implemented. The current application proposes a setback of 1800mm. This excavation changes the landform and while it may be similar to other buildings along New South Head Road it is clearly not what the planning controls seek to achieve.
35 Commissioner Nott found that many of the habitable rooms were below existing ground in both the approved development and the s96 application which is inconsistent with the DCP control C5.2.17 - To minimise cut and fill on sloping sites and to encourage good quality internal environments, any habitable room must have at last one external wall fully above existing ground level. While he considered that the increased excavation would improve the amenity of these rooms to that in the 2003 consent, he stated that this was an unacceptable method of achieving a desirable amenity objective.
36 The proposal provides about half it floor area below natural ground level. The Seniors SEPP does not specify a maximum FSR. The proposal has an FSR of 1.12:1. No evidence was provided on the FSR that is permissible in the Residential 2(a) zone or the adjoining Residential 2(b) zone under the LEP and the proposal must therefore be assessed against its compatibility with its existing context. Mr Young considered that the height and bulk of the development was acceptable as it formed a transition between the residential flat buildings, residential dwellings and Cranbrook oval. While I accept this argument, I do not accept that it is appropriate to achieve an appropriate bulk of development by placing a substantial part of the building below natural ground level thereby necessitating excavation of the site to provide light and air to habitable rooms. The amenity of these rooms cannot be considered as a “good quality residential environment” and they do not justify the extent of excavation in close proximity to 1 Rose Bay Avenue.
37 The setting of 1 Rose Bay Avenue will also be affected as the excavation limits the extent of landscaping that can be provided along the southern boundary. For most of its length, about a 1.5m wide strip is proposed between the retaining wall of 1 Rose Bay Avenue, the light wells and the proposed building. While it is not clear from the evidence to what extent this interface between the proposal and 1 Rose Bay Avenue will be visible, the altered landform and extent of soft landscaping is not a desirable relationship with a heritage item.
38 The evidence of the engineering experts is that the excavation is not trivial and with a degree of risk but with careful design, construction and monitoring it can be achieved without damage to the adjoining building. However, there is little certainty in the design as the consent proposes a deferred commencement condition which requires further information on the proposed method of excavation and could result in a different concept design to that proposed. Both Mr Mostyn and Mr Gourlay did not endorse the design concept. The conditions of consent require independent proofing, monitoring and reporting. The evidence of the experts is that the design and these conditions are essentially the same as were considered by Commissioner Nott, although the conditions are more rigid in that they require not just the procedures but that they be carried out independently.
39 I accept that the excavation may be technically feasible but on balance the risks to the adjoining heritage item outweigh the benefits of light and air to a limited number of rooms in the development. For this reason and pursuant to cl 18(d) of the LEP, I find that the proposed development may affect the heritage significance of the heritage item at 1 Rose Bay Avenue.
40 I also find that the proposed development is inconsistent with the DCP control C5.2.17, in that it does not minimise cut on sloping sites. On this basis the appeal must fail.
Other Issues
41 For the reasons mentioned in the proceeding paragraphs the appeal must fail and consequently it is not necessary to deal with the other issues. However, for completeness, I accept the evidence of Mr Young that in other respects, the impact of the proposal is the same as the 2003 consent and that the issues relating to height, view sharing and its impact on the heritage significance of 1 Rose Bay Avenue and the potential impact on the health of the Canary Island Date Palm would not substantiate refusal of the application, either individually or collectively.
Orders
42 For the above reasons the Orders of the Court are:
1. The appeal is dismissed.
2. The development application (DA 236/2004) to construct ten self care units with basement parking for 20 cars under the provisions of State Environmental Planning Policy (Seniors Living SEPP) at 577 New South Head Road (1A Rose Bay Avenue), Rose Bay, is refused.
3. The exhibits may be returned.
__________________4. No order as to costs
Annelise Tuor
Commissioner of the Court
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