Bastas Architects v Willoughby City Council

[2008] NSWLEC 1360

Land and Environment Court

of New South Wales

CITATION:

Bastas Architects v Willoughby City Council [2008] NSWLEC 1360

PARTIES:

APPLICANT
Bastas Architects

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

10326 of 2008

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Deemed refusal, heritage conservation area, site adjoining one heritage item and near 2 others, special characteristics of conservation area and heritage items, view loss, non-compliance with building height planes and wall articulation.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995
Willoughby Development Control Plan
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

CASES CITED:

Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING:

29/07/2008, 30/07/2008 and 31/07/2008

 
DATE OF JUDGMENT: 

4 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Shaw, solicitor
of Shaw, Reynolds, Bowen and Gerathy

RESPONDENT
Ms H. Irish, barrister
Instructed by S. Puckeridge
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

4 September 2008

10326 of 2008 Bastas Architects v Willoughby City Council.

JUDGMENT


1 Commissioner: This is a class 1 appeal No. 10326 of 2008 between Bastas Architects and Willoughby City Council in regard to a deemed refusal to demolish an existing house and build a new one at No. 14 Rockley Street, Castlecrag. Rockley Street runs down parallel to and near the ridge of a spur in the topography that ends at Mowbray Point in Sailors Bay, Middle Harbour.

2 The site is around 2,500 sq m in area and is a battle axe lot behind No. 12 Rockley. The lot runs from the street with an axe-handle driveway over the crest of the spur and connects with the main part of the lot that slopes down to the waterfront of Sailor’s Bay. Generally, it faces south towards Northbridge across Sailors Bay.

3 There is a garage at the end of the drive where the axe-handle enters the main part of the allotment. There is to be a new garage on the same position with an entry porch to stairs leading down through a courtyard to the new house.

4 From the end of the driveway down to the water the lot is about 21m wide and 122m long and falls about 40m. The majority of the fall is from about the halfway point of this main section of the lot. Where it begins to slope steeply there are some boulders near a large Cheeze Tree. Not far below the boulders is contour level AHD30m, and that contour is the designated Foreshore Building Line.

The Contentions
The Council contends that the Development Application should be refused for the following reasons:
1 View loss
The proposed development will block views from the dwelling at 8 The Barbette.
Particulars
The development would cause the loss of existing views of part of Middle Harbour and Seaforth from a courtyard adjacent to a dining room across a side boundary approximately mid-way along the eastern side of the dwelling at No. 8 The Barbette and from within that room itself..
Controls
(a) SREP (Sydney Harbour Catchment) 2005 - Clauses 25 and 26;
(b) WLEP specific objectives of the Residential (A2) Scenic Protection Zone and clause 17(2);
(c) WDCP:
(i) Part D.1 `Locality 2 - Desired Future Character';
(ii) D.2.3 `Building Height Planes and Setbacks'; (iii) D.2.4 `Height';
(iv) Part D.2.12.1 `Residential 2(a2) Zone Special Controls: Landscape and Scenic Amenity'.
2 Height, bulk and scale
The height, bulk and scale of the proposed development is excessive in the context of the applicable controls and having regard to the characteristics and location of the subject site. As a consequence, the proposed development would have an overbearing presentation to surrounding residential properties and an adjoining public reserve and would cause unacceptable scenic impacts.
Particulars
The proposed development would present as a visually massive structure to private open space areas to the rear of the dwelling house at 2 The Barbette; to rear terrace and swimming pool areas at 10 Rockley Street; and to the public reserve to the south-west of the subject site. As a consequence, the quality of the areas of recreational open space and of the public reserve would be diminished.
Controls
(a) The proposed development does not comply with the general objectives of the WLEP and the specific objectives of the Residential (A2) Scenic Protection Zone - clauses 2(b)-(e), 2(g), 13(D), 14C(1).
(b) The proposed development does not comply with Control 1 of Part D.2.3 `Building Height Planes and Setbacks' of WDCP in terms of the building envelope to the eastern side.
(c) The proposed development is not compliant with Control 9 of Part D.2.3 `Building
Height Plane and Setbacks' of WDCP in terms of the unbroken wall length.
(d) The proposed development does not comply with the WDCP, specifically:
(i) Part D.1 `Locality 2 - Desired Future Character';
(ii) Part D.2.12.1 `Residential 2(a2) Zone - Special Controls: Landscape and Scenic Amenity'.
3 Impacts upon natural site features
The proposed swimming-pool and associated decking would result in the destruction of part of a natural rock ledge within the subject site that warrants protection because of its visual significance.
Particulars
At its western end the proposed swimming-pool and associated decking would cause the loss of part of a natural rock outcrop in that area.
Controls
(a) WLEP - Clauses 14C(1) and 17(2);
(b) WDCP Part D.2.12.1 `Residential 2(a2) Zone - Special Controls: Landscape and Scenic Amenity'.
4 Heritage impacts
The proposed development would unacceptably impact upon the setting of the Items of Environmental Heritage at 2, 4 and 8 The Barbette and would unacceptably impact upon the significance of the Griffin Conservation Area. Those impacts would arise from the bulk and scale of the proposed development and from the impact of the proposed development upon views from 2, 4 and 8 The Barbette.
Particulars
The upper level of the proposed development would be prominent in view from areas of private open space to the rear of the main dwelling at 2 The Barbette, from an eastern side­facing balcony at 4 The Barbette and from views from the original Griffin designed section of the house at 8 The Barbette. As a consequence, the proposed development would be detrimental to the natural setting of those dwellings and would adversely impact upon their heritage significance.
The heritage significance of the Items of Environmental Heritage at 2, 4 and 8 The Barbette
includes their location in a natural setting and includes the availability of views of the environs of Middle Harbour from those dwellings and from areas within the curtilage of those dwellings. The proposed development would present excessive bulk to parts of those dwellings and their environs and would block or interfere with certain significant views from those dwellings. Therefore the proposed development would diminish their heritage significance.
As a consequence of its bulk and scale in presentation to surrounding properties and to the public reserve to the south-west of the subject site, the proposed development would diminish the significance of the Griffin Conservation Area and would be contrary to the management policies for the Griffin Conservation Area.
As a consequence of its bulk and scale the proposed development will impact on the view of the Conservation Area when viewed from points in Northbridge such as Kameruka Road, Minnimurra Road, Couralie Road, Sailor's Bay Road and Northbridge Baths.
Controls
(a) WLEP - Clauses 2(h), 56, 57 and 58.
(b) WDCP:
(i) Part H.2. 1:
(B) A - requirements (v) - (vii);
(C) B - requirements (i) and (iii);
(D) C - requirement (ii);
(v) Part H.2.6 requirements (ii) and (ix); and
(vi) Part H.3.2 F.
There are no matters which are appropriate to be dealt with by way of condition of consent.

The Evidence
5 The existing house is just below the garage on a part of the site that slopes down about 3m. There is a swim pool just below the house.

6 The new house covers about the same footprint including the existing pool that is to be cut down and used as an underfloor stormwater detention tank. From there down to the boulders is about 22-24m. The new house in being built over the existing pool is moved south of the existing house. This is said by the architect, to enable winter sun into the new house even though the land is on a southern slope. This is a good design principle, but the height of the proposal moved south has impacts for other matters.

7 A new swim pool and deck is located between the boulders near the Cheeze Tree with a timber deck under the tree.

8 The appeal was against deemed refusal, but since then council has formally refused the proposal. The reasons are to do with the site being in the Griffin Conservation Area, and next to a Walter Burley Griffin house at No. 2 The Barbette and near Nos. 4 & 8 The Barbette, also Griffin houses and all registered heritage items under councils LEP. No. 8 is also on the State Register of heritage items. The council says the proposal fails to meet acceptable compliance with a number of statute and development control plan requirements.

9 After hearing the evidence, including the objectors, the principal issues are:
• The eastern part of the top floor of the 4-level house (2-storey at any one point), and part of the 3rd level intrude into the building height plane and cause impacts of:
  • not fitting into the desired future character of the conservation area,
  • creating bulk and overlooking impacts upon No. 10 Rockley St, the next door neighbour,
  • increasing visibility of the house from the distance when the Griffin character of the conservation area is for buildings to be subservient to the landscape, and
  • blocking the last water view available to No. 2 The Barbette when the unique Griffin design philosophy of the heritage item house is for it to be part of the landscape and the outdoor areas to be “outside rooms” that enjoy the ambience of bushland, filtered water views and distant glimpses of landscape and harbour. This is why the house and its allotment are included as the heritage item. To experience the heritage value one needs to see beyond the site. Ms Claridge said, as a child at No. 2 she could see The Spit and Middle Harbour as Griffin intended. But that view and others have gone due to houses built in her lifetime, the only water view left is from the garden terrace above the detached pavilion dual occupancy on her land.
  • It was demonstrated during the hearing that the proposal would entirely obscure that last water view.
  • partially blocking the distant water view of No. 8 The Barbette, the State registered heritage item. The particular view was the subject of special consideration in the design and approval of a recent pavilion extension of No. 4 The Barbette, another heritage item.
• Both the east and the west elevations of the proposal contribute to these impacts by having wall lengths greater than 6m long with little articulation.
• The new swim pool is non-compliant with the conservation area character of keeping natural bushland features especially rocky outcrops and scarps. The pool and deck should be further uphill from the boulders and the Cheeze Tree and leave them to have a more natural setting.
  

Conclusions
10 No. 8 The Barbette is on the State Register of heritage items and as a Griffin house, it particularly should keep unaffected its distant view to The Spit and Middle Harbour from its central courtyard. Contrary to Mr Rappoport’s memory, the view can be seen from that location, and the non-compliant parts of the new house will be seen and actually block a portion of the water in the view.

11 Even though the view loss might be small in an assessment under Tenacity v Warringah [2004] NSWLEC 140, the Council’s statutes and DCP controls are so detailed they over-ride Tenacity. The Court principles are only intended to be activated when a state or council statute and/or control are inadequate to deal with a particular dispute.

12 No. 8’s view has heritage value implicit in the heritage item, and due to the bushland, is the item’s only distant water view and should be saved from incremental loss especially when that loss is caused by non-compliant parts of the new house.

13 Overall the new house fails to grasp the true philosophy of the Griffin design principles of the heritage items and to take appropriate recognition of them. Nor does it comply with the statutes and controls for new buildings in the conservation area, as required by the applicable statutes and controls and, as a consequence, is an unsuitable design.

14 The applicant’s evidence is that Rockley Street and Nos 12 and 14 eastwards was not part of the original Griffin development, and therefore its need to comply is less. But Rockley Street and the subject site and those eastwards to Mowbray Point have been included in the conservation area and the same provisions apply.

15 It seems from the evidence part of the Griffin philosophy is to have smaller houses than persons in Castlecrag want today. Smaller houses enable his philosophy of indoor and “outdoor rooms” and merging the buildings into the landscape to be achieved on small lots and to preserve views from the outdoor spaces to the water and bushland distant and near. The philosophy also enables reasonable privacy in the “outdoor rooms” to be maintained.

16 In regard to No. 2 the Barbette, although the garden “outdoor rooms” are not well maintained, I accept the evidence that the terrace above the detached pavilion is one of the “outdoor rooms” and the view from that position is important. The interior of the heritage house itself does not particularly feature the views, it is from the garden “outdoor rooms” that they could be perceived.

17 The new garage of the proposal raises the height of the existing garage that apparently blocked another view to Middle Harbour from another “outdoor room” of No. 2. The owner of No. 2 has since grown vegetation to screen the garage, but that does not necessarily justify increasing the bulk of the new building. The screening was done because of the affect on the heritage significance of No. 2.

18 The statutes and controls for the conservation area do allow people to have large houses as is the contemporary want. However, given the importance of the conservation area and its very specialised character it is necessary to apply the statutory and control requirements in order to conserve it into the distant future. One submission in the hearing is to the effect that most persons who move into the Griffin conservation area do so in order to enjoy its unique character and to abide by its controls.

19 The applicant sought an opportunity, if my opinion is against the proposal, to be permitted an amended design. During the hearing no amended designs were available for assessment, and the only amendment referred to was in questions to Mr Sanders about cutting back the top (4th level) and the 3rd level from the east elevations. I do not think those questions give sufficient grounds for an adjournment for amended plans.

20 In the end I agree with the council’s contentions, and consider the evidence of the respondent to carry the determining weight.

21 Therefore the Orders of the Court are:
1. The appeal is dismissed.
2. The exhibits are returned to the parties except for Exhibits 2, 4, B, E and G.
_______________________
K G Hoffman
Commissioner of the Court
ljr