Arbib v Waverley Council

[2018] NSWLEC 1475

Land and Environment Court

New South Wales

Medium Neutral Citation:	Arbib v Waverley Council [2018] NSWLEC 1475
Hearing dates:	30-31 August 2018
Date of orders:	07 September 2018
Decision date:	07 September 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 569/2016 for alterations and additions to an existing residential flat building at 19 Dellview Street, Tamarama, is refused. (3) The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing residential flat building including an additional level; contravention of the floor space ratio development standard; impact on views from nearby residential flat buildings; interpretation of the maximum external wall height control in the Waverley Development Control Plan 2012.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Arnott v City of Sydney Council [2015] NSWLEC 1052 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Tenacity Consulting v Waringah [2004] NSWLEC 140 Wingecarribee v De Angelis [2016] NSWCA 189 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	David Arbib (Applicant) Waverley Council (Respondent)
Representation:	Counsel: P McEwen SC (Applicant)   Solicitors: Bartier Perry (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/283222
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 569/2016 for alterations and additions to an existing residential flat building to remove the existing pitched roof and add an additional level to the existing building and replace the existing garages with new garages (the proposal) at 19 Dellview Street, Tamarama (the site) by Waverley Council (the Council).

2. The appeal was subject to mandatory conciliation on 23 February 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As an agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 6 April 2018 for the applicant to rely on an amended proposal. Leave was unopposed and granted at the commencement of the hearing for the applicant to rely on a further amended proposal that incorporated changes to the proposal agreed upon by the planning experts (Exhibit A).

Issues

4. The Council’s contentions can be summarised as:

• The proposal exceeds the floor space ratio (FSR) development standard for the site, which results in a building envelope that is inappropriate in its bulk and scale;

• The excessive wall height of the proposal results in a development that is inappropriate in its bulk and scale and causes unacceptable adverse amenity impacts on neighbouring properties;

• The proposal will have unacceptable impacts on the views obtained from neighbouring properties fronting Carlisle Street to the east of the site;

• The proposed terrace on the second floor results in unacceptable privacy impacts on neighbouring properties and the proposal has unacceptable amenity impacts on adjoining and nearby development;

• The bulk and scale of the proposal will have an unacceptable impact on the streetscape character of the locality;

• The proposal is not in the public interest.

The site and its context

5. The site is legally described as Lot A DP 308653.

6. The site is on the south-western corner of Dellview Street and Carlisle Street, Tamarama, with a northern frontage to Carlisle Street of 25.25m and an eastern frontage to Dellview Street of 18.975m. The site is rectangular in shape with an area of 496m2. The site falls from the north-west to the south-east.

7. There is a two storey residential flat building on the site with a separate structure at street level housing four garages accessed from Dellview Street.

8. There is a variety of residential development in the locality of the site, including residential flat buildings, semi-detached dwellings and detached dwellings.

9. The topography of the locality forms a natural amphitheatre around Tamarama Beach and the site is on the northern side of this natural amphitheatre, on a hill that falls steeply to the south, towards the beach. The properties around the site and including the site enjoy dramatic views to the south across Tamarama and towards Bronte Beach and out to sea.

The proposal

10. The proposal is for alterations and additions to an existing residential flat building, including the following works:

• Removal of the existing pitched roof and construction of a new level (“second floor” Exhibit A, DA-06) to provide new living areas and terraces for units 3 and 4. The existing first floor ceiling is to be demolished and the floor to ceiling height on the first floor is 2.5m and the floor to ceiling height on the second floor is 2.7m (Exhibit A, DA-12).

• Minor internal reconfiguration of the existing units.

• Removal of the existing garages and replacement with four new garages to accommodate six cars.

• New landscaping and terraces at ground level, over the proposed garages.

Expert evidence

11. The applicant relied on the expert planning evidence of Ms Jeannie Askin and the Council relied on the expert planning evidence of Mr Jeffrey Mead. The experts prepared a joint report tendered in the proceedings as Exhibit 3.

Planning framework

12. The site is zoned R3 Medium Density Residential pursuant to Waverley Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The R3 zone objectives, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

13. The relevant aim of LEP 2012 is:

(d) to provide an appropriate transition in building scale around the edge of the commercial centres to protect the amenity of surrounding residential areas,

14. The height of buildings development standard for the site is 9.5m (Height of Buildings Map - Sheet HOB_004 of LEP 2012) and the parties agreed that the proposal complies with the height of buildings development standard.

15. The FSR development standard for the site is 0.6:1 (Floor Space Ratio Map - Sheet FSR_004 of LEP 2012).

16. The development application was lodged on 23 December 2016. Waverley Local Environmental Plan 2012 (Amendment No 10) “Amendment No 10” commenced on 17 December 2017. Amendment No 10 amended LEP 2012 including the following amendment in Schedule 1:

[4] Clauses 4.3 (1) (d) and 4.4 (1) (c)

Omit “existing” wherever occurring. Insert instead “desired future”.

17. It was the parties agreed submission, following the hearing, that the version of cl 4.4 of LEP 2012 in force at the time of judgment should be applied because Amendment No 10 had no savings provision and took effect on the date of promulgation (Wingecarribee v De Angelis [2016] NSWCA 189 [12]).

18. Therefore, the relevant objectives of the FSR development standard cl 4.4 of LEP 2012 are:

(b) to provide an appropriate correlation between maximum building heights and density controls,

(c) to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality,

(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.

19. Clause 4.6 of LEP 2012 is in the standard instrument terms and provides for development consent to be granted despite a contravention of a development standard.

20. The objectives and controls for multi-unit and multi-dwelling housing at C2 of Waverley Development Control Plan 2012 (DCP 2012) are a relevant consideration in this matter.

21. The relevant objective and control at 2.2 Site, Scale and Frontage of DCP 2012 are as follows:

Objectives

(a) To ensure lot size and dimension are able to accommodate the appropriate building envelope, landscaping and service requirements.

Controls

(a) The maximum floor space ratio (FSR) is set by Clause 4.4 of WLEP 2012 and the FSR Map.

22. The relevant objectives for 2.5 Setbacks in DCP 2012 for street setbacks are as follows:

(a) To integrate new development within the established setback character of the street.

(b) To provide a transition between public and private space.

23. The relevant objective and control for 2.7 Building Separation of DCP 2012 are as follows:

Objective

(a) To provide visual and acoustic privacy for residents.

Control

(a) The building separation for internal courtyards and adjoining sites increases in proportion to building height in accordance with the following minimum dimensions:

Height: Up to 4 storeys

Between habitable rooms and balconies: 12m

Between habitable rooms and non-habitable rooms: 9m

Between non-habitable rooms: 6m

Interpretation of the maximum external wall height control in DCP 2012

24. The relevant objective and control at 2.3 Height of DCP 2012 are as follows:

Objectives

(a) To ensure future development responds to the desired scale and character of the street and local area.

Controls

(b) Development must comply with the LEP maximum building height and the maximum external wall height (refer to Figures 17 - 19), as set in Table 2 below:

Zoning    Overall Height    Max external wall height

R3       9.5m          7m

R3       12.5m          9.5m

Table 2 Height Requirements

25. The site is in an area within the R3 zone with a height of buildings development standard in LEP 2012 of 9.5m, so the maximum external wall height control in C2 of DCP 2012 is 7m. DCP 2012 includes the following diagram at Figure 19 as an explanation of how to measure wall height on sloping land:

26. I accept the agreement of the planning experts that the site is on sloping land.

27. The planning experts stated the following point of agreement in relation to measuring the external wall height of the proposal (Exhibit 3, par 1.1):

“The DCP does not identify how wall height should be calculated where a vertical plane of wall is broken by a set in, as occurs on the southern and eastern elevations. The experts agree that the diagrams in the DCP would support that the wall height is measured in a vertical plane…”

28. I interpret Figure 19, in the context of Section 2.3 Height of C2 in DCP 2012, to mean that external wall height is measured from the eave (top diagram) or the top of the parapet (lower diagram) to the existing ground level directly below the wall, regardless of whether or not the wall continues to the ground. This is demonstrated by both diagrams in Figure 19, where the wall height is measured, on the left hand side of the uppermost level, from the underside of the eave or the top of the parapet to existing ground level directly below that wall, despite the wall on the left hand side of the uppermost level not continuing to the ground.

29. I understood from the agreed explanation given by the planning experts during their concurrent oral evidence that they both interpreted Figure 19 to mean that the wall height is measured from the eave or top of the parapet to the ground level at the base of a continuous vertical wall that extends to the ground. It was their agreed view that if the uppermost level is setback from the existing façade of the levels below, the vertical wall height of the uppermost level does not contribute to the external wall height dimension. Both experts measured the wall height of the existing façade, from the top of the existing cornice to the ground level at the base of the footprint of the existing building, and excluded the vertical height of the proposed uppermost level, where the uppermost level is setback from the façade of the existing building. This interpretation of Figure 19 in Section 2.3 of C2 in DCP 2012 applied to the proposal is, in my opinion, incorrect. The wall height is instead measured from the eave or the top of the uppermost parapet to existing ground level directly below that wall, and not to the ground level at the base of the façade of the existing building excluding the vertical height of a wall that is setback from the façade.

30. Based on my interpretation of Section 2.3 Height in C2 of DCP 2012, the maximum external wall height of the proposal is measured from the eave height in the south-western corner of the proposed uppermost level to the existing ground level directly below, which falls within the storage room in the south-western corner of the existing basement. The maximum wall height of the proposal is therefore the distance between the eave height in the south-western corner of the uppermost level, RL 42.95 (Exhibit A, DA-12), and the finished level of the floor in the storage room directly below, RL 32.17 (Exhibit A, DA-03), which is 10.78m.

Public submissions

31. No resident objectors gave evidence at the commencement of the hearing onsite, however, the Court, in the company of the parties and their experts, viewed the site from unit 1 on the ground floor and unit 5 on the second floor of the residential flat building at 5 Carlisle Street, Tamarama. The submissions made by resident objectors were included in the Council’s bundle, Exhibit 2, at tab C. The submissions are from residents in the residential flat building at 5 Carlisle Street, to the north of the site, and their primary concern is the impact of the proposal on their views south towards Bronte Beach.

Contravention of the FSR development standard in LEP 2012

The applicant’s written request to contravene the FSR development standard in LEP 2012

32. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) of LEP 2012 have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) at [25]). The applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

• that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2012); and

• that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

33. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe) [42]-[51] and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

1. The objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. The underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. Underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. The development standard has been abandoned by the council; or

5. The zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

34. The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). The applicant provided a written request seeking to justify the contravention of the FSR development standard, pursuant to cl 4.6(3) of LEP 2012 (exhibit A). The applicant’s written request to contravene the FSR development standard seeks to demonstrate that compliance is unreasonable or unnecessary because: (1) the objectives of the development standard are achieved, and (2) the underlying objectives of the development standard would be thwarted, if numerical compliance with the development standard is required.

35. The planning experts agreed that the FSR of the proposal is 0.76:1, which represents an additional 82.1m2 of floor area or 28% contravention of the FSR development standard (Exhibit 3, par 3.3). The applicant’s written request justifies the contravention of the FSR development standard on the following bases:

• Objective (b) of cl 4.4 of LEP 2012 is achieved because the proposal complies with the height of buildings development standard; the height of the proposal is reasonable and appropriate within its context in the streetscape; there are no environmental or amenity impacts on adjoining developments in terms of overshadowing and view loss; the proposed building envelope is a result of the correlation between the appropriate height and setbacks for the site such that there are no amenity impacts; and the proposal does not alter the existing density on the site of four apartments.

• Objective (c) of cl 4.4 of LEP 2012 is achieved because the proposal is a feasible redevelopment of the site that improves the amenity of existing apartments; the proposal is compatible with the size and shape of the allotment and increases the off-street parking from four to six spaces; the proposal results in an articulated building form that minimises perceived bulk and scale impacts when viewed from the surrounds of the site; the height of the proposal relates to the topography of the site and the street character and does not unreasonably impact on the amenity of neighbouring and nearby properties in terms of overshadowing, privacy and view loss; the proposal does not alter the existing density on the site; the proposal is compatible with the R3 Medium Density Residential zoning of the site.

• Objective (d) of cl 4.4 of LEP 2012 is achieved because the proposal seeks to preserve environmental amenity and minimise adverse impacts; the proposal has no adverse overshadowing of adjoining properties and has no impact on views.

• The environmental planning grounds that justify the contravention of the development standard are that the envelope, bulk and scale of the proposal is compatible with development in the vicinity of the site; there are three storey residential flat buildings in the vicinity of the site; the proposal does not unreasonably impact on the amenity of neighbouring and nearby properties in terms of overshadowing, privacy and view loss; the proposal will improve the amenity of the existing building and provide open space and additional off-street parking; and the proposal is a better planning outcome because it improves the existing accommodation on the site.

36. I am not satisfied that the written request has adequately addressed that compliance with the FSR development standard in LEP 2012 is unnecessary or unreasonable in the circumstances of this proposal, because the objectives of the development standard are not achieved by the proposal and because the written request does not establish sufficient environmental planning grounds to justify the aspect of the proposal that contravenes the FSR development standard.

37. The written request justifies the contravention of the FSR development standard by stating that the proposal, “has also been designed to ensure no environmental or amenity impacts on adjoining developments in terms of overshadowing and view loss” (Exhibit A, p 32); however, the planning experts agreed that the proposed second floor results in a small increase in overshadowing of the adjoining dwelling and the diminution of existing coastal views from some units on the opposite side of Carlisle Street.

36. The second floor addition of the proposal results in increased overshadowing of the eastern windows of the living room on the adjoining dwelling at 21 Dellview Street between 9am and 9.30am on the winter solstice (Exhibit A, DA-23). I accept the agreement of the planning experts that the proposal complies with the solar access controls in DCP 2012 because the affected windows are not north-facing windows. Nevertheless, while the additional overshadowing of the adjoining property at 21 Dellview Street may be acceptable because it complies with the controls in DCP 2012, the proposal cannot be described as resulting in no amenity impacts on adjoining development in terms of overshadowing.

37. The view from the living area and balcony of unit 5 on the top level of 5 Carlisle Street is a dramatic and likely to be a highly valued view of the coast and ocean to the south towards Bronte. The view from unit 1 on the ground level of 5 Carlisle Street is a pleasant vista with water glimpses. It is my opinion, as expressed to the parties during the hearing, that it is appropriate to consider the residential flat building as a whole in assessing view impacts and in determining the appropriateness of the proposal’s building envelope (Arnott v City of Sydney Council [2015] NSWLEC 1052 [72]).

38. The planning experts agreed that the extent of the impact on the view by the proposed second floor will be minor, using the qualitative descriptors in the Tenacity planning principle (Tenacity Consulting v Waringah [2004] NSWLEC 140 (Tenacity) [28]). The proposed second floor will obstruct a greater amount of the foreground of the view and a small portion of the view of the ocean when compared to what can now be seen from unit 5 and depending on the precise position of the viewer. The planning experts disagreed on the qualitative descriptor for the impact of the proposal on the view from unit 1; Mr Mead considered that the impact is minor and Ms Askin considered that the impact is negligible. The planning experts agreed that the proposal has the greatest impact on views from unit 3 of 3 Carlisle Street. They also agreed that unit 1 of 3 Carlisle Street is likely to gain an improved view resulting from the removal of the roof on the eastern side of the existing building on the site.

39. I accept Mr Mead’s position that even though the proposal’s impact on the views from 5 Carlisle Street is minor, the impact is caused by the increase in the building envelope of the development, and the entire increase in the building envelope consists of floor space that is in contravention of the FSR development standard, making even a minor impact on the existing views from 5 Carlisle Street difficult to justify (Tenacity at [29]).

40. The claim in the applicant’s written request that the proposal has been designed to ensure no environmental or amenity impacts on adjoining developments in terms of view loss is refuted by the agreed evidence. For this reason, I am not satisfied that the proposal is consistent with objective (d) of cl 4.4(1) in LEP 2012, “to preserve the environmental amenity of neighbouring properties”.

41. I do not accept that objectives (b) and (c) of cl 4.4 of LEP 2012 are achieved because the proposal complies with the height of buildings development standard. Objective (b) seeks an appropriate correlation between the two development standards to achieve a building envelope proportionate to the site area. Compliance with the height of buildings development standard does not address the issue of the correlation of the development standards, which seek to impose a constraint on the building envelope on the site.

42. There are two different density precincts in the R3 zone in LEP 2012 within the area that can be broadly described as the headland between Bondi and Tamarama Beaches. The precinct within the R3 zone around Bondi Road and extending to the western end of Fletcher Street permits a higher density, with a maximum FSR of 0.9:1 and a maximum building height of 12.5m. The other less dense precinct within the R3 zone extends to the south to Tamarama Beach and to the east towards Marks Park and has a maximum FSR of 0.6:1 and a maximum building height of 9.5m. The site is located centrally within the second, less dense precinct of the R3 zone, with a maximum FSR of 0.6:1 and a maximum height of 9.5m. The existing residential flat building on the site has a gross floor area that achieves the maximum of the FSR development standard under the current planning regime; and therefore the existing building envelope is commensurate with the density envisaged by the development standards for this less dense precinct within the R3 zone. In order to achieve the maximum height of 9.5m on this site, the correlation of the development standards envisages a less bulky building envelope on the lower levels than the existing building. The proposal is not compatible with the desired future character of the locality because it seeks a significantly greater density on this site than the development standards envisage.

43. “Sufficient environmental planning grounds” is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26]). The environmental planning grounds relied on in the written request under cl 4.6 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

44. The applicant’s written request has not identified sufficient environmental planning grounds that focus on the addition of floor space on the second floor and justify the contravention of the FSR development standard. The applicant’s written request looks in isolation at the reasonable height of the proposal in comparison to surrounding development, but does not address the proposal’s increase in the bulk of the building envelope as a whole.

Clause 4.6(4) of LEP 2012

47. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority (or the Court exercising the functions of a consent authority) can exercise the power to grant development consent (Initial Action at [13]). The consent authority must form two positive opinions of satisfactions under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]).

48. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

Conclusion

49. I am not satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2012 and for the reasons given at [42]-[44] of this judgment, I am not satisfied that the proposal is in the public interest because it is not consistent with objectives (b), (c) and (d) of cl 4.4 of LEP 2012.

Orders

50. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 569/2016 for alterations and additions to an existing residential flat building at 19 Dellview Street, Tamarama, is refused.

3. The exhibits, other than exhibits 1 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 07 September 2018