Aldred v Woollahra Municipal Council

[2007] NSWLEC 472

Land and Environment Court

of New South Wales

CITATION:

Aldred v Woollahra Municipal Council [2007] NSWLEC 472

PARTIES:

Applicant
Michael Aldred

Respondent
Woollahra Municipal Council

FILE NUMBER(S):

10239 of 2007

CORAM:

Murrell C

KEY ISSUES:

Section 96 Modification :- streetscape, impact on adjoining property.

DATES OF HEARING:

13 July 2007

 
DATE OF JUDGMENT: 

13 July 2007

LEGAL REPRESENTATIVES:

Applicant
Mrs. M. L. Taylor, Solicitor
of Bartier Perry Solicitors

Respondent
Mr. S. Simington, Solicitor
of Lindsay Taylor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

13 July 2007

10239 of 2007 Michael Aldred v Woollahra Municipal Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act1979 (“the Act”) against Woollahra Council's refusal of a development application for the property known as No. 15 Olola Avenue Vaucluse.

2 The appeal this morning has been heard as an onsite hearing under s 34(b) of the Land and Environment Court Act that allows for s 96 applications as well as 97 appeals to be heard and determined on site.

3 The Court met on site this morning with the parties and also heard from the resident objector who resides next door to the west at No. 14 of the subject property. The Court has the benefit of hearing expert evidence from:

• Mr Michael Neustein on behalf of the applicant.
• For the council Mr Economo, an assessment planner with Woollahra Council.
• On behalf of the resident objector Miss Robinson provided evidence to the Court.

The experts also provided a joint written statement.

4 The subject site is zoned residential under the Woollahra Local Environment Plan and council also has a development control plan known as the Woollahra Residential DCP 2003 (“the DCP”). It is important to understand the development application in the context of council's current planning regime, including the DCP. The Court of Appeal Judgment of Zhang v Canterbury establishes the authority to give real, proper and genuine consideration to the guidelines provided in a development control plan. In this judgment the Chief Justice of New South Wales, Spiegelman CJ, notes that DCP’s are discretionary and must be taken into consideration having regard to the circumstances of the case.

5 On behalf of the council the provisions within the DCP that I must have regard to have been pointed out this morning. In particular I will just briefly state the more relevant provisions. However, I have given ‘real, proper and genuine consideration’ to the DCP, and it has been a fundamental focus in my assessment. The DCP describes the Vaucluse west precinct as

Sited along the foothills of the Harbour foreshore between Rose Bay and Watson's Bay and the precinct contains a wide range of housing forms and styles. The dominant development of detached houses within garden settings is highlighted by common street setbacks and side setbacks that allow for views between buildings and the precincts landform, street trees, domestic gardens and substantial foreshore parklands create a dominant visual impression of a well treed landscape.

6 The location of this street adjacent to the Harbour provides for water and parkland views and this street fits neatly into the description of the west Vaucluse precinct.

7 There are a number of desired future character objectives within the DCP and for the Vaucluse west precinct these include:

1. to retain the scenic qualities provided by the dramatic topography, natural vegetation,

2. to reinforce the precincts landscape setting by minimising alterations to the landform and preserving the existing tree canopy, and

3. to maintain mature trees, garden plantings.

8 The subject dwelling is a large home on a very large parcel of land with appropriate setbacks from the street consistent with, and in some cases greater than, other adjoining dwelling houses. The subject dwelling itself is setback further than either of the adjoining houses and the side setback of the dwelling house itself to the property to the west ranges from between approximately 2 to 4m to the wall of the dwelling noting that there is a porch/portico to the front door entrance which is located on the western side of this dwelling.

9 The desired future character of the West Vaucluse precinct also talks about the precinct character. That is “the rich mixture of residential architectural styles and their emphasis on their connection to the landform.” Clearly this site is steeply sloping and has been terraced and that is to be maintained with the application.

10 The proposal is for relocation of the stairs as approved by the council. By way of background, the original application submitted to the council provided for stairs on the boundary. Council in its determination of the application and in a s 82(a) review reinforced the fact that the staircase leading up to the terrace, the elevated terrace that adjoins the dwelling house, be relocated 1.5 m from the western boundary and the proposed amendment in terms of the s 96 modification application before me, is to of relocate the stairs such that they are on the boundary.

11 The control in the DCP for side boundary setbacks is at C4 13.3 and where the lot is equal to or exceeds 18m at the front alignment, and the subject site does, development has a minimum side boundary setback of 2.5m. The setback controls objectives are “protect the visual and aural privacy of residents in adjoining buildings, provide side access, avoid buildings encroaching on adjoining properties, enable opportunities for screen planting, protect significant vegetation and avoid an unreasonable sense of enclosure, safeguard privacy and minimise noise impacts for dwellings.”

12 There are controls with respect to fences, however it is contended by the council that the proposal is not a fence and in fact represents a building or a structure. For the purposes of my assessment in terms of the definitions of the Act and in terms of whilst there would appear to be some ambiguity, but for the technical purpose of considering this s 96 amendment I have regarded it as a structure or building. Nonetheless in terms of looking at the controls in the residential DCP I am also guided by the guidelines for fences and walls, bearing in mind that they are not strictly the provisions under which I consider the matter. The objectives include

• to ensure that fences and walls are in sympathy with the topography;
• to ensure that the materials in walls and fences are of a high quality in keeping with the existing streetscape and dwelling type
• and that fences provide visual privacy without affecting the amenity of allotments in terms of views, sunlight and air movement and fences improve amenity of existing and new residences.

13 I emphasise that I have considered the modification application as a building or structure in terms of the definition of the Act under s 4. I note that setbacks in terms of the dictionary of the DCP means the horizontal distance between a building, a site boundary perpendicular to the site boundary. The building includes all parts of the building from the lowest point including where it extends below ground level to its highest point.

14 It was submitted on behalf of the respondent that the proposed wall on the boundary that is some 3.9m at its highest point is equivalent to a single storey house. It is important in assessing the application that I have regard to the circumstances of the case. In my assessment, the proposed sandstone wall will not appear as a single storey dwelling as such. While I have considered it to be a structure/building in the technical sense, one must have regard to the circumstances of the application.

15 The Court has had regard to, as I stated, the residential development control plan and in particular has looked at the intent and the purpose of the various standards. Council's DCP requires a 2.5m setback from the boundary. In the circumstances of this case it can be seen that the existing dwelling is generally located much further off the western boundary with a minimal setback to the eastern boundary of approximately a metre and the dwelling house itself will have an extensive front terrace.

16 In my determination and balancing exercise that I must undertake in my assessment, I must consider the intentions of the control and also have regard to the impacts. Where variations are sought I must have regard to the impacts that have been pointed out to the Court this morning. The adjoining property owner at No. 14 is concerned about a sense of enclosure, imprisonment in terms of the wall proposed on the boundary and is of the opinion that the 2.5m guideline in council’s DCP should not in any way be changed and that it is a community expectation and a community standard which has been developed through consultation. In my assessment, consistent with the authority of Zhang v Canterbury the purpose of DCPs is to provide guidelines consistent with controls of the LEP. The LEP being an instrument for the purposes of the Act and development control plans are to provide further guidelines. Other judgments in this Court have clearly stated that one does not necessarily blindly adhere to the numeric controls but a merit based assessment is required and in this regard DCPs are discretionary guidelines.

17 The Court as I said must have regard to the DCP in terms of providing a central focus and I have done this. In terms of the impacts on the adjoining property, the Court has the opportunity of viewing this property and in terms of the study area downstairs the Court agrees with the experts in that sunlight/ light would not be interfered and the wall will not be perceived from the study except if one stands in one small corner. I acknowledge it would be visible from outside the study on the paving area but it would not represent an overwhelming impact.

18 Similarly in terms of the upstairs balcony off the family room and the balcony off the main formal living area of No. 14, the proposed wall is not one that would be overwhelming. However in terms of council's controls to provide appropriate landscaping and softening between properties I am of the view that a 750mm setback will provide for an adequate landscaping width to soften the proposed sandstone wall. The current brick boundary fence that is currently erected on the property at No. 14 is to be retained and the proposed sandstone wall with a setback of 750mm, I am satisfied that the sandstone wall will not be overwhelming and it will not create “an unreasonable sense of enclosure” in the words of the DCP. I am satisfied ith the landscaping will provide an appropriate setting and will ameliorate or mitigate any adverse effects the subject on property No. 15, as opposed to being ameliorated by landscaping on No. 14. As such the development will be self-contained in terms of its impacts.

19 I appreciate that people do not embrace change and the test for the Court though is whether the impact that would be created by development would be unreasonable. Having regard to the provisions of the planning regime of council, I am of the view that the impact would not be unreasonable and indeed minimal on No. 14 with a landscape width of 750mm.

20 The Court in its determination of this application is to assess the application before it. I am of the view that the stairs built on the boundary would not be in keeping with the streetscape and intentions of the DCP. Council's front setback requires an averaging between the two adjacent properties. The wall will extend approximately 2.2mm forward of No. 14 and of the adjoining property to the east is slightly behind the adjoining property setback from the street. As I stated earlier the wall of the subject the house is setback considerably more with the extended balcony it will be slightly forward of No. 14 but behind No. 16.

21 In terms of precedent, there was concern raised by the council and Mr Reeves that the Residential Development Control Plan should be strictly adhered to otherwise it would fall into disrepute and that it would negate the development of such guidelines. However, I do not consider that my approval of this structural wall 750mm from the boundary would represent a precedent because the circumstances of the case must clearly be taken into consideration. My approval of this modification application to be 750mm from the common boundary can in no way be interpreted as to allow dwellings to be erected within such close proximity in the west Vaucluse precinct. The proposal is for the wall to be sandstone, no change to the common boundary wall from the face of the bay window back to the south and that the sandstone wall be forward of that point.

22 The proposal is also for landscaping, the Court does not agree with the council's current condition which calls for “a maximum height of screen planting to five metres within one year”. Such plantings would only lead to further neighbourly problems in the future, they would end up blocking light for adjoining properties and the condition is, in the Court's assessment, not only unworkable it is totally impracticable. Therefore the conditions for the 750mm width garden bed will be appropriate landscaping to soften the sandstone wall rather than to provide a screen as such. This will allow the dwelling house to continue to be read in a vegetated setting commensurate with the dwellings that we see in the area today.

23 The Court will issue formal orders on the receipt that reflects the Court's determination. The details with relevant heights clearly must be shown on such a plan together with appropriate landscaping in the garden bed and the condition will be amended accordingly.

24 On receipt of an amended plan which will provide for certainty in the planning process the formal orders of the Court will then be made.

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25

1. The appeal under s 96(6) of the Environmental Planning Assessment Act is upheld in part.

2. The s 96 modification application submitted to Woollahra Council and as amended, is determined by the granting of consent and subject to conditions. The conditions initially attached to the development consent, except for where they are to be varied for this modification application, continue to apply to the development.

3. That the Exhibits are returned with the exception of Exhibit A and Exhibit 7

J Murrell
Commissioner of the Court

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