Bird v Waverley Council

[2016] NSWLEC 1589

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bird v Waverley Council [2016] NSWLEC 1589

Hearing dates:

17,18 November 2016

Date of orders:

09 December 2016

Decision date:

09 December 2016

Jurisdiction:

Class 1

Before:

Dickson, C

Decision:

The orders of the Court are:
1. The appeal is dismissed.
2. Development Application DA/573/2015 for alterations and additions to an existing semi-detached dwelling at 36 Dudley Street, Bondi is refused.
3. The exhibits are returned with the exception of Exhibit 2, B and C.

Catchwords:

DEVELOPMENT APPEAL: Deferred commencement condition – semi-detached dwelling – uniformity with adjoining semi – streetscape and visual impact of upper level balcony in front façade.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Cases Cited:

Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC1001

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151

Zhang v Canterbury City Council [2001] NSWCA 167

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jon Bird (Applicant)
Waverley Council (Respondent)

Representation:

Solicitors:
Mr M McMahon, M. E. McMahon & Associates (Applicant)
Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2016/00223628

Publication restriction:

No

Judgment

1. COMMISSIONER: In April 2016 Waverley Council approved alterations and additions to an existing semi-detached dwelling at 36 Dudley Street, Bondi. In approving the works the Council imposed conditions that required the applicant to make changes to the design before the consent could be acted on. In assessing the application the Council also relied on these changes to the design to support a variation to the maximum allowable height for the subject site, which was breached by the proposed design.

2. The appeal before the Court (s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) seeks to remove these conditions which require, in summary:

1. The removal of the upper floor balcony fronting Dudley Street, and for the upper floor addition to be further setback from the street;

2. A reduction in the depth of the rear balcony to 1.5m;

3. Changes to the roof design to match the roof of the approved alterations on the adjoining semi-detached dwelling; and

4. The addition of a window at the upper floor fronting Dudley Street to match the approved alterations on the adjoining semi-detached dwelling

3. Prior to the commencement of the hearing it was agreed by the parties that the changes required by conditions 2 and 3 above are resolved by the amendments that have been made to the design and agreed conditions. These changes are incorporated in an updated set of architectural plans that the Court has allowed the applicant to rely on.

4. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.

5. The issues for the Court to determine are:

1. Whether the requested variation to the height controls is acceptable; and

2. Whether the proposed design, and in particular the streetscape elevation, is compatible with the streetscape.

The site and its context

6. The subject site has an area of 192.2m² and is legally described as Lot C in DP 106695. The site contains an existing semi-detached dwelling with a common boundary with 38 Dudley Street, which is to the south. The two properties, 36 and 38, form a pair of semi-detached dwellings.

7. The locality is characterised by low and medium density residential developments, including predominately semi-detached dwellings with a few residential flat buildings.

Public submissions

8. The development application was notified in accordance with the Waverley Development Control Plan 2012 (DCP 2012) and three submissions were received.

9. Resident objections received during the exhibition and Councils assessment of the application was tendered (Exhibit 1). In summary the residents raised the following concerns with the application:

1. The upper floor living spaces will result in acoustic impacts that will affect the privacy of the adjoining property;

2. The front, western balcony will create noise impacts and smoke emissions from its use;

3. The front balcony is visually inconsistent with the streetscape as there are no other street facing upper floor balconies on the eastern side of Dudley Street;

4. If the balcony is approved a solid wall should be provided on along its southern edge.

The preceding issues were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Planning framework

10. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.

11. Waverley Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2(2)):

…

(c) to provide for a range of residential densities and range of housing types to meet the changing housing needs of the community,

…

12. Pursuant to LEP 2012 the site is zoned R3 Medium Density Residential. The objectives of the R3 zone are as follows:

• 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 proposal is defined as alterations and additions to a semi-detached dwelling and is permissible, with consent, in the zone.

14. Pursuant to cl 4.3 Height of Buildings, the maximum height for buildings on the site is 9.5m. The proposal has a maximum height of RL 63.43, which results in a maximum height above natural ground level of 10.17m, an exceedance of 670mm.

15. The objectives of cl 4.3 Height of Buildings are:

(a)  to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties,

(b)  to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

(d)  to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space.

The objectives relevant to the appeal are (a) and (d).

16. Pursuant to cl 4.4 the allowable floor space ratio (FSR) for the site is 0.894:1. The proposal complies with the FSR control.

17. LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.

18. However, Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

19. The following definition in the dictionary of LEP 2012 is relevant:

building height (or height of building) means:

(a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like..

20. The site and its current improvements are not identified as a heritage item and Dudley Street is not within a heritage conservation area.

21. The Waverley Development Control Plan 2012, amendment number 3 (DCP 2012) applies to the proposal. The clauses of DCP 2012 relevant to the appeal are in Part C: Residential Development.

22. In addition to the maximum height control at cl 4.3 in LEP 2012, the DCP at cl 1.1 Building Height identifies that the maximum height may not be appropriate in all cases and should not be considered as prescribed or allowable regardless of circumstances. The relevant objectives of this control are:

…

(b) to ensure the height and scale of development relates to the topography and street character

..

With the relevant control being:

(a) For a building with a pitched roof the maximum overall height is 7m above existing natural ground level

23. DCP 2012 at cl 1.4: Setbacks relevantly states that: setbacks influence the size and shape of buildings and ensures that their bulk and appearance in the streetscape and relationship to adjoining properties is appropriate to the locality, uniformity in setbacks provides rhythm and character to residential streets.. This intent is expressed in objective (d):

To ensure the siting of buildings is consistent with surrounding buildings and does not visually detract from the streetscape.

24. Relevantly cl 1.4.1: Front Building Line provides the following controls relevant to the proceedings:

(a) new buildings and extensions to existing buildings are to extend no further that the predominant front and rear building lines of buildings in its vicinity.

…

(c) where it is proposed to build beyond the predominate front and/or rear building line, then greater consideration must be given to the following:

(i) compliance with the applicable development standards, including Floor Space ratio and Building Height;

(ii) compliance with the landscaped and open space controls;

(iii) compliance with side setback controls;

(iv) Emergence of a new front and/or rear building alignment beyond the dwellings either side of the subject site (note that any reliance on an emerging front and/or rear building alignment as a precedent can only be justified where the emerging alignment is itself based on compliant development with respect to building height, FSR and side setback controls);

(v) Location and retention of existing significant vegetation;

(vi) Visual aspect of the bulk and scale as viewed from the private open space and living areas of adjoining properties;

(vii) Acceptability of amenity impacts on adjacent properties with regard to solar access, and visual and acoustic privacy;

(viii) Views available from the subject site and adjoining properties including an assessment against the Land and Environment Court “Tenacity” Planning Principle;

(ix) In areas of heritage significance, the importance of preserving the front portion of the building by providing an additional setback from the front building line.

25. Section 1.4.3 of DCP provides additional controls for semi-detached dwellings and terraces in relation to common or party wall controls as follows:

Clause 1.4.3 Side Setbacks provides additional controls for semi-detached dwellings and terraces.

At (a) it states The common (or party) wall between a pair of semi-detached dwellings or terraces can be built with no side setback along the common boundary where it abuts an existing wall to the neighbouring property or where it can be reasonably expected that a wall to the neighbouring property would be constructed in the future.

Sub cl (b) states that the extension should not encroach beyond the predominant rear building line and no openings are permitted in the side wall with nil setback.

26. Clause 1.5 Streetscape and Visual impact states that in general, development should complement the existing character of the streetscape in terms of scale, architectural style and materials. Where buildings of contemporary and non-traditional architectural styles are proposed, they should not diminish the established character of the street or area. The objectives of this clause are as follows:

(a) To encourage and facilitate dwelling house and dual occupancy development of a high architectural and aesthetic standard, that acknowledges and responds to the architectural style and character of the existing built environment.

(b) To encourage alterations and additions to existing attached and semi-detached dwelling houses to maintain design integrity and ensure that they visually present as pairs or groups of dwellings.

(c) To allow contemporary architectural styled alterations and additions to semidetached dwellings where appropriate, without diminishing the integrity and character of the streetscape.

These objectives are supported by the following controls relevant to the proceedings:

(a) New development should to be visually compatible with its streetscape context. It should contain or at least respond to essential elements that make up the character of the surrounding area.

Aspects to be considered include:

(i) Height and bulk;

(ii) Setbacks;

(iii) Landscaping; and

(iv) Architectural style and materials.

(b) Alterations and additions should maintain the established setting of the building in terms of significant landscaping and topography.

(c) Consideration must be given to the aesthetic appearance of any building or work when viewed from a public place including park, reserve, beach or from the ocean.

…

(e) The bulk, scale and proportions of new buildings shall be consistent with the predominant character of the surrounding buildings.

…

27. Additional controls for semi-detached dwellings and terraces are provided at cl 1.5.1, which states:

(a) Upper levels of semi-detached dwellings (including alterations & additions and new semi-detached dwellings) should:

(i) Be designed to allow for an addition of similar design, scale and bulk to the adjoining (attached) semi.

(ii) Be setback from the front of the existing roof structure so that the additional storey does not dominate the appearance of the pair when viewed from the street.

(iii) Be either designed to complement the existing character of the pair of semi-detached dwellings or, if a modern design, be setback so as to not visually dominate or detract from appearance of the pair when viewed from the street.

(b) First floor level additions or extensions should not result in the creation of a blank dividing wall along the boundary between semi-detached dwellings and are to be located behind the front roof hip of the existing semi-detached dwelling.

(c) Upper level balconies at the front and side of semi-detached dwellings are generally not appropriate.

28. The relevant provisions of DCP 2012 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.

29. The Court heard expert planning evidence from Mr John McFadden, for the applicant, and Mr Ben Magistrale for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 2.

Is the clause 4.6 variation for height accepted?

Evidence

30. The role of the Court, is defined in cl 39 of the LEC Act is, in summary, to determine the matter a fresh with all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

31. The Council, in originally determining the application relied on the application of the deferred commencement condition (and its ultimate satisfaction) in assessing the application, and ultimately applied to condition for the purpose of reducing the bulk and scale of the balcony and the addition as a whole. The assessment report concludes that the application was acceptable subject to the following main design changes:

1. Front, western boundary is to be deleted and the front building setback of the upper floor addition align with that of the approved addition to the upper floor of level of the adjoining semi at 38 Dudley Street; and

2. Reduction of the depth of the rear, eastern balcony of the upper floor addition. (Exhibit 1)

32. It follows that without the changes sought by the deferred commencement condition Council was not satisfied the application was acceptable and that the deferred commencement conditions were central to its assessment and determination of the cl 4.6 variation request.

33. Mr McFadden (for the applicant) provided a written request under cl 4.6(3) which seeks to justify the contravention of the height standard (Exhibit 1). The written requests states that the variation to the height standard can be supported because:

1. Compliance with the LEP, cl 4.3 height control (9.5 m) is unreasonable given the neighbouring dwelling at 32 Dudley Street contravenes this standard, as does the active DA of the adjoining neighbour at 38 Dudley Street (DA 305/07/A). The proposal aims to match the profile, pitch and height of its neighbours and to maintain a mirror to the adjoining properly as outlined in Waverley DCP.

2. The proposal meets all other environmental planning objectives. The contravening of the height limit is to the rear of the property whether natural landscape falls away dramatically. The Street frontage meets the height control limits.

3. The proposed development is consistent with the development standards when viewed from the Street. Matching the height of the neighbouring adjoining property will maintain a consistent frontage and with their first floor additions. The zoning is R3. The height of the proposal meets the objectives of the zone at the front of the property.

4. Contravening the development standard to the rear of the property, where there is no effect on the public area, is not seen as a matter of significance to the State or regional planning. There is an established pattern on the street and the new proposal is maintaining this pattern.

5. There is no public benefit in maintaining the development standard for this proposal as the contravening of the standard is at the rear of the property. Consistency in Street pattern and rhythm should be maintain and should supersede this standard.

34. As the application relied on a cl 4.6 variation, which is a precondition to consent, it is necessary for me to assess the variation request prior to considering the merit issues that are in contention between the parties. A negative finding for the precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

35. As outlined in Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC1001, cl 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). I have applied these tests to the current application in the following.

- Consistency with the zone objectives:

36. On the basis of the evidence of the planning experts, in the variation request and the Council assessment report (exhibit 1), I accept that it can be reasonably argued that the proposed development is consistent with the objectives of the zone in that it will provide for the housing needs of the community and assist in achieving a variety of housing types within a medium density residential environment.

37. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is consistent with the zone objectives.

- Consistency with the objectives of the standard in question:

38. The objectives of cl 4.3: Building Height are:

(a)  to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties,

(b)  to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

(d)  to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space

In the circumstances of the case objective (a) and (d) are the most relevant.

39. During the proceedings, in the planning evidence, and the reasoning of the clause 4.6 variation request, there is reliance on the adjoining owner (at 38 Dudley Street) completing their consent to demonstrate the current proposal achieves compliance with the objectives of the Councils controls. The adjoining owner’s (38 Dudley Street) development consent involves a significant alteration to the front façade, roof form, fenestration and materials of the existing semi.

40. It was confirmed in the proceedings that the development consent for the approved works at 38 Dudley Street are commenced, and therefore capable of being completed by the adjoining owner. A construction certificate has been issued for the works proposed to the rear of the dwelling, however a construction certificate for the remaining works (in particular those to the front façade) has not been issued. (Exhibit 1).

41. Whilst it is clear that the works could proceed, no evidence was provided to the Court indicating that the intent of the adjoining owner is to proceed. In his evidence it was noted by Mr McFadden that the form of development, if it was to proceed, on the adjoining property may well be different to the current approval.

42. The relationship of the proposed development with the existing, and the approved, built form at 38 Dudley Street (its pair) is significantly different. This is detailed in the following extracts from the Street elevations (Exhibit B).

43. Clause 4.3 (d) of LEP 2012 has the objective of ensure that buildings are compatible with the existing character of the locality. This objective is emphasised in the DCP, and particularised for semi-detached dwellings in cl 1.5.1 (a)(ii) which requires alterations to be designed to complement the existing character of the pair of semi-detached dwellings or, if a modern design, be setback so as to not visually dominate or detract from appearance of the pair when viewed from the street . This raises the question for the Court of against which adjoining building form should the assessment of compatibility be made, the existing building or the proposed form of the approved alteration.

44. The drafting of the controls emphasise that the existing character of the locality is the reference point for such assessment. Whilst it is appropriate to consider and give weight to the approved additions on adjoining properties, and in particular the adjoining semi, such weight should not be determinative as there is no evidence before the Court of the intentions of the adjoining owner and therefore no certainty that the building form approved will eventuate.

45. In his evidence Mr McFadden concluded that the following elements of the proposal ensured that the development maintain integrity in form with its adjoining semi-detached dwelling, as required by the controls:

• Symmetry in roof height;

• Skillion roof design; and

• Alignment with the predominant upper floor setback.

It was also his assessment that the streetscape presentation is acceptable and coherent and the development proposed is acceptable irrespective of the development progressing at 38 Dudley Street.

46. In Mr McFadden’s assessment of the streetscape he relied on a visual catchment of the development that was able to be seen from the subject site. In particular he identified 32 and 34 Dudley Street (adjoining to the north of the site) as key in assessing streetscape being in proximity to the site. In addition he drew the Courts attention to the development at 13 Dudley Street which was a location in which Council had determined that an upper floor balcony was acceptable, and that this development formed part of the relevant streetscape for the assessment of the proposal and established an appropriate building line for the set back of the upper floor balcony.

47. Mr McFadden’s evidence was that the upper level building line and associated setback to the front boundary was set by both the existing and approved semi-detached dwellings to the north of the site which are aligned with the proposal. He concluded that the development as proposed provides an acceptable streetscape impact with respect to bulk and scale, and that the balcony design in the plans before the Court (Exhibit B) satisfy cl 1.5.1 (a) as the western elevation indicates that it is similar in design, scale and bulk with the adjoining attached semi and the main façade/ glazing is setback in line with the approved first floor addition at 38 Dudley Street (Exhibit 2).

48. It was his assessment that when combined with the large residential flat building to the and other corner development to the south of the site located on reduced front setbacks, it is highly likely that a DA representing the highest and best use of 38 Dudley Street (that was more consistent with the proposal before the Court for 36 Dudley Street) would be constructed in the future (Exhibit 2).

49. It was Mr McFadden’s evidence that the development meets the DCP control at 1.5.1(a)(ii) in relation to modern design as the street front façade is setback so as not to visually dominate, achieving the requirements of the control.

50. In relation to the extension of the party wall as a part privacy screen, part architectural feature forward of the existing dividing wall it was Mr McFadden’s view that this anticipates future development at 38 Dudley Street. The applicant also tabled with the Court alternative treatments to the wall in response to Councils concerns about its blank presentation to the street. These alternatives were sketched options to insert a section of glass blocks or a batten screen element (Exhibit E) to provide additional articulation to the wall.

51. Mr McFadden felt that, whilst in his view they were they were not necessary, they could be considered by the Court given it is agreed between the experts that the proposal breaches cl 1.5.5.1 (b) which states: First floor level additions or extensions should not result in the creation of a blank dividing wall along the boundary between semi-detached dwellings and are to be located behind the front roof hip of the existing semi-detached dwelling.

52. In relation to the upper floor western balcony Mr McFadden concluded this was appropriate in the circumstances of the case for the following reasons:

1. The open balcony design softens the appearance of the façade when viewed from Dudley Street and is a positive contribution to the streetscape;

2. The balcony allows for casual surveillance and safety of the public domain associated with Dudley Street;

3. The proposed upper floor balcony promotes ecologically sustainable development (ESD) principles by enhancing cross-flow ventilation and natural light while improving the function of the adjoining living room area and reducing the need for mechanical ventilation.

53. It was the evidence of Mr Magistrale that in assessing the streetscape and visual impact of the development he relied on the development consent for 38 Dudley Street and that this approval should dictate the front setback of any upper floor addition on the subject site. It was his evidence that the proposed alterations and additions at the first floor (living room wall, and western balcony) should be further setback to align with the adjoining setback and that this was the purpose of the deferred commencement condition.

54. It was Mr Magistrale’s evidence that the assessment of streetscape is focussed on the rhythm and character of the street with particular emphasis on the characteristics of other pairs of semi-detached dwellings in Dudley Street. Additional emphasis is required by the controls on the characteristics and form of 38 Dudley Street as forming the second part of the pair of semi- detached dwellings with the subject property. It was the conclusion of his assessment that the proposal does not meet cl 4.4 (c) and that the proposal is not compatible with the existing character of the locality.

55. It was Mr Magistrale’s evidence that utilising 32 and 34 Dudley Street as the starting point for achieving compatibility as required by the controls is an incorrect approach as they are not representative of the dominant character. He argues that this is particularly relation to cl14.1(a) where these properties should not be used to establish the front building line, as they are not representative of the predominant building line.

56. In relation to the western balcony Mr Magistrale’s evidence was that such a structure is not characteristic in Dudley Street, and is discouraged by Councils controls (s1.5.1(c)). Further it was his view that the balcony has the effect of accentuating the bulk and scale of the building and obscuring the prominence of the existing roof structure which is sought through the DCP controls to be retained. It was his assessment that the design before the court is visually dominant or detracts from the appearance of the pair when viewed from the street. In relation to the applicant relying on the approval an upper level balcony at 13 Dudley Street as a precedent he identified that the controls that apply to the proposal before the Court did not apply when the development at number 13 was approved.

57. In the alternative Mr McFadden’s view was that the controls foresee some circumstances where a street fronting balcony on the upper floor is appropriate, which in his view it is on this occasion as the streetscape is characterised by variety and the balcony has potential to present as a pair with the approved development at 38 Dudley Street.

58. In relation to the stated benefits of the balcony by the Applicant [52] it is Mr Magistrale’s evidence that an appropriate window in the front façade is capable of achieving each of these outcomes without the negative impact on streetscape, and that these reasons did not establish that a variation was warranted.

59. Mr Magistrale’s assessment of the proposed party wall extension is that it is unacceptable, and provides a poor urban design element in the streetscape. Further it does not comply with the controls at 1.4.3 (below) in that it does not anticipate the approved development, but extends beyond it.

(a) The common (or party) wall between a pair of semi-detached dwellings or terraces can be built with no side setback along the common boundary where it abuts an existing wall to the neighbouring property or where it can be reasonably expected that a wall to the neighbouring property would be constructed in the future.

(b) The extension should not encroach beyond the predominant rear building line and no openings are permitted in the side wall with nil setback.

60. In relation to the proposed roof form, Mr Magistrale’s evidence was that whilst the skillion roof was inconsistent with the current gable roof form of 38 Dudley Street it was compatible with the new roof form of 32 Dudley Street and the proposed roof forms of 34 and 38 Dudley street [refer 42] and will achieve adequate uniformity and symmetry with the approved roof form of the adjoining semi. However the front balcony precludes a window being provided in the front façade of a size, sill height and proportion consistent with the adjoining semi. It was his conclusion that the front balcony detracts from the appearance of the pair of semi-detached dwellings and causes adverse streetscape and visual impacts. He concludes that the proposal is inconsistent with objectives (b) and (c) of cl 1.5 of DCP 2012.

Findings

61. The issue of compatibility of a proposal within an existing context has been considered by the Court on many occasions. Roseth SC in Project Venture Developments v Pittwater Council[2005] NSWLEC 191 provided guidance in the assessment of whether a development would be compatible and considered that for a development to be compatible it is to be capable of existing together in harmony and is different to sameness. He stated at [22] it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, the harmony is harder to achieve. He suggests there are two tests, one is whether a proposal’s physical impacts on the surrounding area are acceptable and the second is if it is in harmony with the buildings around it and the character of the street. He states:

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal’s assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural styleexpressed through roof form, fenestration and materials

I have utilised the above framework in assessing the compatibility of the proposal in the context of the site in the consideration of the objectives of cl4.3 Building Height which in part seeks to ensure buildings are compatible with the existing character.

- Physical impacts

62. It is accepted by both parties that the only issue of impact on the surrounding properties is the potential for overlooking or visual privacy impacts from the western balcony and any effect of the extension of the party wall, and the proposed balcony on the future development potential of 38 Dudley Street. Whilst there was an original concern raised by Council in relation to acoustic impacts it is agreed by the experts that this is capable of being resolved by the requirement for an acoustic screen as a condition of any consent.

63. On the basis of the evidence and the site view I am satisfied that any overlooking or acoustic impact to the adjoining neighbour can be satisfied by the proposed masonry party wall and conditions to implement the recommendations of the acoustic report. Therefore having regard to the evidence, I am satisfied that the physical impacts of the development are satisfactory.

- Harmony

64. On balance when considering if the development is in harmony with the buildings around it and the character of the street I prefer the evidence of Mr Magistrale and concur with his assessment that the development proposal before the Court does not meet the objectives of the controls. I have formed this view for the following reasons:

1. LEP 2012 contains a building height control which, in part (objective (d)), seeks to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space. If the proposal is considered against this clause, in particular the front streetscape elevation, does not achieve this objective. The elevation presents in contrast to the existing development at 38 Dudley Street and the front balcony, the extension of the solid party wall and roof forward of the building line, and the choice of materials detract from the appearance of the pair of semi-detached dwellings and causes adverse streetscape and visual impacts.

2. If the proposal is considered against cl 1.5 Streetscape and Visual impact, and 1.5.1 Additional controls for semi-detached dwellings and terraces I can comfortably concludes that the development does not meet the control as it is not setback from the front of the existing roof structure so that the additional storey does not dominate the appearance of the pair cl 1.5.1 (a)(ii) and is not designed to complement the existing character of the pair of semi-detached dwellings or, if a modern design, be setback so as to not visually dominate or detract from appearance of the pair when viewed from the street as required by cl 1.5.1 (a)(iii).In addition the development will result in a blank dividing wall along the boundary in breach of control cl 1.5.1 (b).

3. The DCP as has a specific control for semi-detached dwellings identifying that upper level balconies at the front and side of semi-detached dwellings are generally not appropriate. In considering Section 79C(3A)(b) of the Act, whilst it is clear that the development does not meet a number of the prescriptive controls, the consent authority must apply these controls flexibly where alternatives meet the objectives of the controls. In this case the relevant objectives are cl 1.5: (b) To encourage alterations and additions to existing attached and semi-detached dwelling houses to maintain design integrity and ensure that they visually present as pairs or groups of dwellings; and (c) To allow contemporary architectural styled alterations and additions to semi-detached dwellings where appropriate, without diminishing the integrity and character of the streetscape. Based on the evidence before the court I do not accept that the proposal is compatible with the character of the streetscape or designed to visually present as a pair with the adjoining semi, thus the proposal does not meet the objectives of the LEP Height standard control (d) or the DCP controls which would allow such flexibility to be applied.

1. There is a clear intent and emphasis in the hierarchy of the planning controls for development to be compatible with the height, bulk and scale of the existing character of the locality.

2. In its assessment of the proposal the applicant relies on the compatibility of the development with the proposed development at 38 Dudley Street which is not certain. The proposal does not achieve compatibility in architectural style, roof form, setback, or fenestration with the existing semi-detached dwelling to which it adjoins.

3. For completeness I am satisfied that if the adjoining development was completed (therefore in part addressing the controls desire to maintain design integrity between pairs of semis) the proposal does not warrant approval on the basis of: its lack of align with the adjoining setback; the impact of the party wall on the streetscape; and the extension of the balcony roof forward of the building line. I consider that these elements breach objective (d) of the control, which seeks to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality, and are sufficient to warrant refusal of the application.

4. The proposed party wall extension is unacceptable, and provides a poor urban design element in the streetscape and is uncharacteristic of the locality.

65. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is inconsistent with objective (d) of the height standard.

Is it established that compliance is unreasonable or unnecessary?

66. The applicant argues that Compliance with the LEP, cl 4.3 height control (9.5 m) is unreasonable given the neighbouring dwelling at 32 Dudley Street contravenes this standard, as does the active DA of the adjoining neighbour at 38 Dudley Street (DA 305/07/A). The applicant argues that their proposal aims to match the profile, pitch and height of its neighbours and to maintain a mirror to the adjoining property. The applicant notes that the breach of the height standard is at the rear of the property.

67. For the reasons in [66] I do not accept that the applicant has sufficiently justified the contravention of the height standard be demonstrating that compliance with the development standard is unnecessary or unreasonable in the circumstances of the case.

68. The breach of the height standard is at least in part generated by the skillion roof form, and a breach of the DCP 8.5m pitched roof height control and facilitates a bulk and scale that is inconsistent with objective (d) of the standard which seeks to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space. A roof form more characteristic of the locality may result in a compliant scheme, or a lesser breach.

69. I find that I cannot be satisfied that the applicant’s written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP.

Are there sufficient environmental planning grounds to justify the variation?

70. For the reasons in [66] and [70] I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard.

71. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the height control in cl 4.3 of the LEP and the application must fail.

Merit issues

72. Irrespective of the findings above in relation to the cl4.6 variation request, after consideration of the evidence and considering the relevant matters under s 79C(1) of the Act, and LEP 2013 I consider: the visual impact of the proposed balcony; the conclusion that the proposed development is incompatible with the streetscape; and the visual impact of the extension to the common party wall in the front elevation significant, and sufficient to warrant the refusal of the application for the reasoning detailed in [64].

Conclusion

73. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA/573/2015 for alterations and additions to an existing semi-detached dwelling at 36 Dudley Street, Bondi is refused.

3. The exhibits are returned with the exception of Exhibit 2, B and C.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 09 December 2016