Bensen and Partner Pty Ltd v Woollahra Municipal Council

[2003] NSWLEC 247

>

Land and Environment Court

of New South Wales

CITATION:

Bensen & Partner Pty Ltd v Woollahra Municipal Council [2003] NSWLEC 247

PARTIES:

APPLICANT
Bensen & Partner Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10441 of 2003

CORAM:

Nott C

KEY ISSUES:

Development Application :- proposed residential flat building containing three units - narrow lot - breach of development standard relating to frontage width - amenity impacts of overlooking and overshadowing

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, ss 79C and 97
Woollahra Local Environmental Plan 1995, cll 10A and 10B

CASES CITED:

Megron Developments Pty Ltd v Woollahra Municipal Council [2003] NSWLEC 242;
Mobil Oil Australia Ltd v Baulkham Hills Shire Council [No. 2] [1971] 2 NSWLR 314;
Winchester City Council v Secretary of State for the Environment (1980) 39 P&CR 1 (CA) per Lord Denning MR

DATES OF HEARING:

13-15 October 2003

DATE OF JUDGMENT:

10/23/2003

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Hill (solicitor)

RESONDENT
Mr M Connell (solicitor)
SOLICITORS
Mitchell Sillar

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10441 of 2003

Nott C

23 October 2003

Bensen & Partners Pty Ltd
Applicant
v

Woollahra Municipal Council
Respondent

Judgment


Overview

1 This is an appeal against the council’s refusal of a development application to demolish an existing two-unit residential flat building at 642 Old South Head Road, Rose Bay, and to erect a new three-unit residential flat building. Each proposed unit has a double garage facing a common driveway that runs along the southern side boundary of the site. Above the garage level, each proposed unit has two habitable floors, with three bedrooms being on the upper floor.

2 The main issues at the hearing were:


(1) The non-compliance with a development standard requiring the width of the site at the front alignment to be 15 m or more and whether the applicant’s objection in respect of that standard under State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”) should be allowed.

(2) Whether the proposed development would cause unacceptable overshadowing and privacy impacts for the adjoining semi-detached dwelling at 640 Old South Head Road.

(3) Whether the setbacks of the proposed building from the side and front boundaries are acceptable.


3 Mr G. Shiels, consultant town planner and traffic engineer, gave evidence for the applicant. For the council, evidence was given by consultant town planner Mr H. Sanders. Evidence was also given by Mr B. Fallon, who is one of the executors of his late mother’s estate. The executors are now the registered proprietors of the Fallon family home at No 640. There was also evidence from Ms P Masyon, who owns a unit at 23 Fernleigh Avenue. In addition, I have considered the documentary evidence and have had a view of the site and locality.

4 For the reasons given below, I have concluded that the amenity impacts of the proposed development on the adjoining property at No 640 by way of overshadowing and overlooking are unsatisfactory, and the applicant’s objection under the SEPP 1 is not well founded.


The site and its existing residential flat building

5 The eastern boundary of the subject land is the angled frontage to Old South Head Road. This frontage has a length of 13.29 m. However, as the shape of the subject land is like a parallelogram, the perpendicular width between the side boundaries is generally 12.2 m. The site has a depth from its front boundary to its rear or western boundary of about 57 m. The area of the site is 697 m2, and the site has a crossfall from north to south.

6 The existing residential flat building on the subject land contains two units over a garage having its vehicular entrance at the front of the building. Although the proposed development involves the demolition of this building, it is relevant to have regard to the height, size and setbacks of the existing building in comparison with the proposed building.

7 As scaled from the survey plan (ex A), the front south-eastern corner of the existing building is 7.7 m from the street alignment (measured in a straight line along the prolongation of the southern sidewall of the existing building). The southern sidewall itself is 2.3 m from the common boundary with No 640. The roof-gutter of the existing building is a RL 45.72 and its ridge is at RL 48.34. The southern sidewall of the existing building (including the rear balcony at each level) has a length of 16 m.


Proposed building

8 The proposed building for which development consent is now sought is shown on the amended plans dated October 2003 issue B.3 (ex H). The length of the southern facade, parallel to the common boundary with No 640, is 35 m. That is, the proposed facade is 19 m longer than the southern facade of the existing residential flat building on the site. The setback of the south-eastern corner of the proposed building from the street alignment is 6.2 m (measured along the prolongation of the main line of the southern sidewall of the habitable floors). There will be some excavation for the garages but on the southern elevation the entries to the garages will be fully visible from the adjoining property at No 640. The proposed garage level is at RL 36.97; the first floor, RL 39.77, the second floor, RL 42.57; and the ridge at RL 46.47. There will also be a visitor car space provided in front of the building line.

9 The driveway along the southern boundary of the proposed development is constrained. For access by furniture-removal vans, there would just be enough room for the van to move safely down between the proposed overhanging first floor and the small proposed landscape beds. The width of this driveway between the side boundary and the overhanging first floor is 3 m, with the landscaping at three places extending into that width by 750 mm. As regards access to the carparking spaces, the width of the driveway plus manoeuvring area between the southern side boundary and the garages is about 5 m. The width of the rear double garage is 6.7 m, and for each of the other two double garages the width is 6.9 m.

10 However, the depth of the proposed garages is only 5 m. This is because the proposed northern wall of the garages is a retaining wall 450 mm thick, containing piles. To meet a requirement in the council’s DCP, this retaining wall was set back from the northern side boundary by 1.5 m. With such a setback, there is inadequate length for the car spaces, bearing in mind that for safety reasons, in order to avoid accidental damage to the front or rear end of a vehicle, at least 300 mm clearance would have to be allowed for at each end of a parked car. During the hearing it was suggested that the internal space within the garages could be increased by 150 mm if the thickness of the northern garage wall was reduced to 250 mm. It was also suggested that the garage doors could be deleted.

11 The inadequate length of car spaces results from the attempt, on a narrow site, to comply with the council’s various controls. Measured perpendicularly between the side boundaries of the site, the width is only 12.2 m.


Planning controls

12 The subject site is zoned residential 2(b) under the WoollahraLocal Environmental Plan 1995 (“LEP”), and the erection of a residential flat building is permissible with consent, subject to compliance with development standards in the LEP.

13 The subject site is also affected by Woollahra Residential Development Control Plan (“DCP”). The proposed development complies with controls in the DCP relating to floor space ratio, height, rear setback, footprint and landscaped area. However, there is non-compliance with the controls relating to front and side setbacks, overshadowing and solar access.

14 The application also has to be considered under the general provisions of s 79C(1) of the Environmental Planning and Assessment Act 1979, which includes “(c) the suitability of the site for the development.”


Council does not accept favourable planning report

15 In respect of the original development application, the council retained a consultant to prepare an assessment report, and there was apparently no town-planning report by an officer of the council. The consultant recommended the granting of development consent, subject to conditions. At the hearing of this appeal, the applicant’s evidence included a statement that “the public interest may well be served with council approving an application that has a favourable recommendation from an independent assessor.”

16 However, in determining a development application, a council is not bound to adopt the recommendation of a reporting officer or consultant. In matters of residential amenity and in respect of many other matters, minds may differ. Through their local knowledge and experience, councillors are particularly capable of judging matters relating to amenity. In order to properly determine an application, a council need not necessarily act on expert opinion: cf. Mobil Oil Australia Ltd v Baulkham Hills Shire Council [No. 2] [1971] 2 NSWLR 314; and Winchester City Council v Secretary of State for the Environment (1980) 39 P&CR 1 (CA) per Lord Denning MR.

17 In considering by way of rehearing all the evidence relating to the amended development application, I have taken into account the views expressed in the consultant’s report on the original application. However, I have also taken into account that an inspection committee of the council inspected the subject site on 9 September 2002. The committee did not accept the consultant’s recommendation but resolved (presumably under delegated authority) to refuse the application. Nine reasons for refusal were given, including the following:

2. The proposal does not comply with the minimum side setback requirements of Performance Criterion P9 of Part 5.2.3 of the Woollahra Residential Development Control Plan

5. The proposal will result in excessive of overshadowing of the building and private open space of the building to the south, No 640 Old South Head Road, contrary to the requirements [of] Performance Criterion P16 of Part 5.2.3 and Performance Criterion P8 of Part 5.6.3 of the Woollahra Residential Development Control Plan.

6. The proposal does not comply with the minimum front setback requirements of Performance Criterion P2 of Part 5.3.3 of the Woollahra Residential Development Control Plan.

7. The proposal does not comply with the minimum frontage width requirement of Clause 10B of Woollahra Local Environmental Plan 1995, and the objection under State Environmental Planning Policy No 1 is not supported.

Non-compliance with frontage width; SEPP 1 objection

18 Clauses 10A and 10B of the LEP are in the following terms:


10A Objectives of site area and site frontage standards for residential flat buildings
The objectives of the minimum site area and frontage standards set by clause 10B are as follows:
(a) to achieve compatibility between the scale, density, bulk and landscape character of buildings and allotment size,
(b) to provide sufficient space between buildings, to maximise daylight and sunlight access between buildings, to ensure adequate space for deep soil landscaping and to preserve view corridors,
(c) to prevent permanent barriers to sub-surface water flows,
(d) to ensure that there is sufficient land for car parking on site,
(e) to encourage consolidation of allotments in appropriate locations to enable the development of a diversity of dwelling types.

10B Site area and frontage standards

(1) A site must not be developed for the purpose of a residential flat building containing 3 dwellings or fewer unless the width of the site at the front alignment is 15 metres or more.
Note. No minimum site area requirements apply.

(2) A site must not be developed for the purpose of a residential flat building containing 4 or more dwellings unless:

(a) the site area is 930m2 or more, and
(b) the width of the allotment at the front alignment is 21 metres or more.

19 As mentioned earlier, the width of the site at the front alignment is 13.29 m . However, width of the site measured perpendicularly between the side boundaries is only 12.2 m.

20 The effect of clause 10B is that where the front alignment of the site is less than 15 m (as in this case), no residential flat building may be erected under the LEP, not even one containing only two units. If the site is 15 m or more in width but less than 21 m, a residential flat building containing no more than three units may be erected with consent. Four or more units may be erected if the width is 21 m or more and if the site has an area of at least 930 sq m.

21 However, the requirements of clause 10B are development standards. Accordingly in this case, development consent may be granted if the applicant’s objection under SEPP 1 in respect of the 15 m development standard is well founded.
22 Clauses 10A and 10B have been the subject of at least one other decision by this Court: Megron Developments Pty Ltd v Woollahra Municipal Council [2003] NSWLEC 242. In that case, development consent was refused because of the overshadowing and loss of outlook that would occur to adjoining residential flat units on each side of the land to be developed. The parties were not able to refer me to any other decided case on those clauses.

23 In the present case, in order for the objection under the SEPP 1 to be upheld, consideration needs to be given to whether the proposed development meets the objectives of the development standard that are set out in clause 10A.

24 As appears from par (a) of clause 10A, one of the objectives of the development standard is to have a site that provides for a landscaped character for the proposed building. Although a relatively large landscaped area is proposed at the very rear of the lot, the narrow width of the site means that there is limited opportunity for landscaping along the southern side boundary. The landscape plan shows three garden beds abutting the southern boundary that have an external maximum width of 750 mm. The internal area available for planting in these beds would be reduced by any retaining wall or boundary fence that has to be constructed on the subject land. The landscaping cannot be extended along the whole of the southern side boundary adjacent to the dwelling at No 640, because there would be inadequate width in the proposed driveway for cars to manoeuvre in and out of the proposed garages.

25 While the quantity of proposed landscaping is adequate, the distribution or allocation of that landscaping to more important parts of the site is unsatisfactory. The narrow width of the site allows for inadequate landscaping along the proposed driveway adjoining the southern boundary. The landscaping, particularly in the bed opposite the proposed rear unit, could be affected by accidental damage from manoeuvring cars, because the turning areas for cars is tight, and the canopy spread of any landscaping extending outside and above those beds could also be affected.

26 Although there is now little landscaping along the southern boundary adjacent to the existing residential flat building on the subject site, the proposed building is in excess of twice the length of the existing building.

27 The proposed building provides greater opportunities for overlooking from the proposed elevated first and second floors towards the main northern windows of the semi-detached dwelling at No 640 and into the rear yard of that property. As well, there would be overlooking into the rear sunroom of No 640 through the large western-facing windows of that room, because the proposed building, besides extending beyond the rear alignment of the existing residential flat building on the site by 19 m, also extends beyond the rear alignment of the dwelling at No 640.

28 While the impacts on the privacy of the occupants of No 640 might not be sufficient by themselves to warrant a refusal of the application, I am of the opinion that those impacts are not minor. When taken in conjunction with the overshadowing of No 640 (considered below), I am of the opinion that the adverse effects of the proposed development on the amenity of No 640 are such that the application should be refused.

29 Paragraph (b) of clause 10A of the LEP actually contains four separate objectives, one of which is to maximise daylight and sunlight access between buildings.

30 The overshadowing from the existing residential flat building on subject site and from the proposed larger residential flat building can be seen in the shadow diagrams, exhibits H and 12. At midwinter, the whole of the northern side of the ground floor of No 640, which has six northern-facing windows, will be overshadowed between 9 am and 3 pm. This is a significantly greater impact than the overshadowing from the existing building.

31 At the upper level of the northern side of No 640, the four northern-facing windows will be partially overshadowed at all times between 9 am and 3 pm in midwinter. Although the existing residential flat building overshadows certain windows of the upper level at different times of the day, the existing building is much shorter in its rearward extension than the proposed building. With the existing building on the subject site, three of the windows at the upper level of No 640 would at different times of the day be fully in sunlight. Overall, considering only the upper level, the proposed development would create a greater overshadowing impact than the existing building.

32 As regards the overshadowing of the rear yard of No 640, at 9 am in midwinter the proposed building would cause a shadow to extend across the whole width of the yard and extend down the yard for an additional 17 m beyond the shadow that is presently cast by the existing residential flat building. I infer from the shadow diagrams that by about 10 am there would be no overshadowing of the rear yard from the existing residential flat building but only some overshadowing from the common boundary fence and from No 640 itself, but the proposed building will cause a significantly greater overshadowing of the rear yard of No 640. By 12 noon when there is no overshadowing of the rear yard from the house at No 640 itself, the overshadowing from the proposed development will affect the whole width of the yard for a distance of 8 m from the rear sunroom, which is probably the most important area of the rear yard. The fact that the common boundary fence will overshadow part of the rear yard is not a justification to allow a total overshadowing of the whole width of the rear yard for the distances previously mentioned.

33 On the southern side of the proposed building, there is a breach of the setback control of the DCP. This control is illustrated in figure 5.11 at p 91 of the DCP. Although only the upper part of the building would have to be setback a little further (between 250 mm and 500 mm) to comply with the setback control, the non-compliance means that the shadow cast on the upper windows of No 640 is higher than it would be if there were compliance. However, even if proposed building complied with the setback control, the combined overshadowing of the ground-floor northern windows and of the western sunroom windows of No 640, together with the overshadowing of its rear yard, would still be substantial.

34 The existing building on the subject site is also in breach of the side setback control. However, as mentioned earlier, the southern elevation of the proposed building will extend generally parallel to the southern side boundary (there are two small indents in the elevation) for over double the length of the existing building.

35 While the overshadowing from the proposed building of the property at No 640 at the equinoxes would be acceptable, the overshadowing at midwinter, and perhaps for a period of about one or two months before midwinter and one or two months after midwinter, would be unacceptable.

36 Mr Fallon in his evidence referred to another residential flat development at No 624 Old South Head Road, which he said would cause less overshadowing of the adjoining property to the south, because that development was not elevated as much over the garage level as the proposed development and because the rear section of the building at No 624 was single storey. The expert town planners in the present case did not make a comparison of the proposed development with the development at No 624, and I am unable to form a concluded opinion as to whether such a development would be appropriate for the subject site. However, from the photographs tendered by Mr Fallon, No 624 would appear to have a lesser impact on the property to its south than the proposed development has on No 640. It is also not known whether the development application for No 624 was lodged before the coming into effect of the recently adopted clauses 10A and 10B of the LEP.

37 In the assessment report to the council the consultant said:

“It is considered that the objectives of the site frontage standard are satisfied in the circumstances of the case. The width of the site is consistent with the subdivision pattern of the locality and the proposed development is of comparable bulk and scale to surrounding development.”

38 However, the mere fact that other lots in the locality have a similar width to the subject site is not a reason to allow the objection under SEPP 1. There are other localities within the 2(b) zone where the width of lots would meet the development standards in clause 10B. Moreover, objective (e) in clause 10A is to encourage the amalgamation of narrow lots. I was not referred in the evidence to any other residential flat building in the locality that was erected in breach of clause 10B after the coming into force of that clause.

39 The evidence does not disclose whether the development application for the residential flat building immediately to the north of the subject land at 23-27 Fernleigh Avenue was lodged prior to the coming into effect of the current DCP. It is not clear that clause 10B of the LEP applied to that building at the time of its approval. Furthermore, the width of the site frontage to Fernleigh Avenue appears to comply with the relevant development standard in that clause. Nevertheless, that residential development significantly overshadows the subject land, as well as causing privacy impacts. (In contrast, a positive feature of the applicant’s development is that it does not cause unacceptable amenity impacts for the residential flat building at Fernleigh Avenue.) The adjoining development at Fernleigh Avenue would be an unfortunate precedent to follow.

40 The intent of clause 10B of the LEP in respect of a site having a frontage of less than 15 m is that no residential flat building should be erected on the site. Clearly for such a site, a suitably designed dwelling house could have far less impact than the proposed development. It is true, as Mr Shiels said, that the subject site is already in breach of clause 10B, due to the fact that there is an existing residential flat building on it. However, that building has only two units and has significantly less amenity impacts on the adjoining property to the south than the proposed three-unit development.

41 Mr Sanders was of the opinion that compliance with the development standard was neither unreasonable nor unnecessary and that the proposal should not be approved.

42 Having regard to the adverse amenity impacts on No 640 of the proposed development by way of overshadowing and to a lesser extent by way of overlooking, I am not satisfied that the applicant’s objection under SEPP 1 is well founded.

43 In the light of the above findings, it is not necessary to express a definite view on the non-compliance with the front setback control in the DCP. The application of this control for an angled street frontage, where the buildings have frontages that are not parallel to the street alignment, is not clear. Having regard to the high courtyard wall in front of the building immediately to the north, it seems to me that it would not the unreasonable for the south-eastern corner of a proposed development to be located at about the same setback from the road alignment as the existing building on the subject land. However, any future the development proposal would have to be assessed on its own merits.


Orders

44 Accordingly, the orders of the Court are:


1. The appeal is dismissed.

2. The exhibits, other than exhibits A, C, H and F, may be returned.
____________
A J Nott
Commissioner of the Court