Bega v Woollahra Municipal Council

[2006] NSWLEC 170

Land and Environment Court

of New South Wales

CITATION:

Bega v Woollahra Municipal Council [2006] NSWLEC 170

PARTIES:

APPLICANT
Peter Bega

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11416 of 2005

CORAM:

Bly C

KEY ISSUES:

Appeal :- Dwelling house, height, bulk, scale, overshadowing, overlooking, view loss, excavation

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003

CASES CITED:

Tenacity Consulting Pty Ltd v Warringah Council 2004 NSWLEC 140

DATES OF HEARING:

23/03/2006

EX TEMPORE JUDGMENT DATE:

03/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms V McGrath, solicitor
SOLICITORS
Deacons

RESPONDENT
Mr J Webster, barrister
Instructed by: Ms H MacFarlane
Of Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 March 2006

11416 of 2005 Peter Bega v Wollahra Municipal Council

This decision was given extemporaneously on site and has been revised and edited prior to publication

JUDGMENT

1 This appeal relates to development application No. DA 606/2005/1 that is for the demolition of existing dwelling and the construction of a new dwelling at 54 Kings Road, Vaucluse.

2 The rectangular shape site comprises Lot 1 DP 334904 and has an area of about 641 sq m and a frontage to Kings Road of about 15 m. The locality is characterised predominantly by two storey dwelling houses with pitched roofs.

3 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 ("the LEP") in which zone the proposal is permitted with development consent. Also applicable is Woollahra Residential Development Control Plan 2003 ("the DCP").

4 The original application was notified and a number of objections were received expressing concerns in relation to:

• excessive height and excessive number of storeys in building,
• excessive floor space ratio and overdevelopment of the site,
• out of character with the streetscape,
• overshadowing and reduced solar access,
• loss of privacy and loss of views.

5 The application was subsequently amended and renotified and as a result two letters of objection were received.

6 The statement of issues identifies building height, view loss, excavation, floor space ratio, building height and resident objections as being issues requiring the refusal of the application.

7 Having considered the evidence of the town planners, Mr Ingham for the applicant and Mr Taylor for the council and taking into account the Statement of Issues and the letters and oral evidence of the neighbour objectors, I am satisfied that the relevant issues for determination by me fall into two categories: height, bulk and scale; and amenity impacts on neighbouring properties.

8 In terms of height, bulk and scale, the relevantly applicable standard in the local environmental plan is the 9.5 m building height development standard which standard is complied with by the proposal. The objectives of that standard include the minimisation of impacts on views, compatibility with adjoining residential neighbourhood as well as matters of visual privacy, sunlight access and the amenity of the public domain. My attention was drawn to the note in cl 12AA that indicates that the building height is not “as of right” and to achieve this maximum, development must satisfy other relevant controls applicable to the land. Those other controls are contained in the DCP and in particular comprise a maximum floor space ratio (“FSR”) of 0.55:1, a maximum of two storeys and building setbacks. The proposal exhibits numerically a significant non-compliance with the FSR standard and exceeds the storeys limit by one storey.

9 Whilst it is unclear as to what the objectives of the FSR standard are, given that this standard is contained within the section of the DCP under the heading General Controls, the general objectives in that section would appear to be of assistance in understanding the standard. Those objectives include a requirement to achieve housing forms of a scale and character in keeping with the desired future character for the locality and also require that streetscapes be cohesive and that new development should recognise predominant streetscape qualities.

10 The desired future character objectives contained therein include a requirement for low style built elements in the precinct and the evolution of low rise residential building styles through the introduction of good contemporary buildings. These objectives are also relevant in relation to the maximum two-storey height control.

11 Whilst the non-compliance with the floor space ratio and the storeys control can have adverse impacts on neighbouring properties in the manner of overshadowing, overlooking and view loss. Those are matters that I will deal with in terms of the residents’ objections. As for what I will call the urban design considerations of the proposal, having considered the bulk and scale of the proposal in its context, that is to say, the bulk and scale of surrounding properties particularly those on the same side of the street, I have reached the conclusion that coincides with that of both Mr Ingham and Mr Taylor that the proposal, despite the non-compliances, would be appropriate.

12 I thus accept that the proposal meets the relevant objectives of the LEP and the DCP, those objectives including excessive height and overdevelopment and inappropriate character.

13 In relation to objectives relating to overshadowing, loss of privacy and loss of views, it is clear that having visited a number of residents’ properties and heard from them, that their principal objections in this regard have all but evaporated as a result of the amended building being effectively one storey lower.

14 In relation to the matter of view loss it is nevertheless clear that there will still be some impacts particularly for the property at the rear, No. 48 Kings Road. However, having considered Mr Ingham’s consideration of this, and Mr Taylor’s comprehensive application of the planning principle in Tenacity Consulting Pty Ltd v Warringah Council 2004 NSWLEC 140, I agree that the impacts are within reason and should not be a reason for refusal of the application. In this regard, particularly note that Mr Taylor’s analysis, as is required by Tenacity, takes into account the non-compliance with the applicable standards.

15 I have also considered the faintly pressed concerns of the neighbours in relation to privacy and overshadowing and again take into account the advice of Mr Taylor and Mr Ingham and I do not accept that these are matters of any significant concern.

16 This brings me to the most vigorously expressed resident concern that being from Mr Constantine whose property at 56 Kings Road adjoins the site to the west. He had two concerns being stormwater drainage and possible impacts associated with excavation these being matters covered by the objectives of the DCP.

17 In relation to drainage, I understand that in the past stormwater has found its way from this site onto his property as a result of modification to the topography of the subject site. However, having considered the applicant's drainage concept plan and the relevant draft conditions of consent I am satisfied that these concerns will be satisfactorily resolved.

18 In relation to excavation, the proposal involves excavation to a depth of possibly up to more than 3 m, 1.5 m from the boundary of No. 56 and much of this will be in rock. The applicant’s engineering report dealing with this matter expresses concern to ensure that appropriate techniques are used to avoid potential damage not only of Mr Constantine’s property but also other adjoining properties.

19 The council has now proposed conditions in relation to excavation and the applicant has agreed to these. These conditions require the preparation of dilapidation survey reports for the adjoining properties at Nos. 52 and 56 Kings Road, being the closest buildings to the excavation and that the works are to be undertaken in accordance with the recommendations of the applicant’s geotechnical engineers. In addition the excavation works are to be overseen and monitored by a qualified practising geotechnical engineer and in accordance with a hydro-geological and geotechnical monitoring programme that is to be prepared before a construction certificate is issued. Importantly, a vibration monitoring programme is required and implemented.

20 Whilst it cannot be disputed that neighbouring properties are at some risk of damage as a consequence of the kind of excavation involved, taking into account the conditions of consent I do not accept that the risks would be beyond reason. In this context I note that Mr Constantine argued that a reduced garage size which occupies much of the basement would result in a reduced non-compliance with the FSR requirement and would reduce the risk but given my conclusions that I have already reached I do not accept that this should change the outcome of the application.

21 Mr Constantine was also concerned that the size of the garage being capable of accommodating four cars would adversely affect his amenity having bedrooms on the same side as the garage. In this regard I do not accept that the traffic generated by this house notwithstanding the availability of four car parking spaces would be any different to most other dwelling houses in this locality and is therefore not the matter of determinative concern.

22 Finally, I have concluded that the suite of controls and objectives contained within the planning instruments, notwithstanding the particular non-compliances are effectively met by the proposal that should make a handsome contribution to the streetscape and is worthy of approval.

23 I therefore decided to uphold the appeal and grant the development consent as sought subject to the mostly agreed conditions.

24 Two of those conditions were in dispute. Firstly Condition 4 requires an extension of the planter box along the western edge of the upper ground floor level balcony. This condition was said to be required to provide privacy for No. 56 Kings Road although Mr Constantine did not have any particular concern about this. Taking into account that this balcony will provide overlooking opportunities, little different to what presently exist and taking also into account the significant benefit that would be available to the applicant in terms of views, I have decided that this condition should not be imposed.

25 The second condition in dispute, Condition 11 requires the provision of a positive covenant to indemnify the council from any claims or actions and the ongoing maintenance of the on-site detention pump and sump system in the development. This is said to be a standard condition that the council imposes in relation to developments of this kind. It seems to me that the matters that council seeks indemnification for are matters which it would not normally be responsible for, although this is not something that I can determine. Despite this I do not think that the condition should be imposed. If there is an area of responsibility that the council is, at law, required to accept, a condition of consent should not attempt to deny this.

26 Exhibit A is to be retained on Court's file.

___________________
TA Bly
Commissioner of the Court
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