Blank v Woollahra Council

[2011] NSWLEC 1111

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blank v Woollahra Council [2011] NSWLEC 1111

Hearing dates:

3 May 2011

Decision date:

17 May 2011

Before:

Tuor C

Decision:

1. The appeal is upheld.

2. The application under s 96 of the Environmental Planning and Assessment Act 1979 is approved. The development consent to Development Application No. 777/2008 part 12 for the demolition of an existing dwelling house and ancillary structures and erection of a new dwelling house and ancillary structures, landscaping and siteworks on land at 23 Victoria Street, Watsons Bay, is modified as set out in Annexure A

3. The exhibits, except Exhibit 2, may be returned.

Catchwords:

APPEAL:- Section 96 Application - modify conditions of consent. Visual impact of boundary wall when viewed from public domain. Resident concerns.

Legislation Cited:

Woollahra Local Environmental Plan 1995

Category:

Principal judgment

Parties:

APPLICANT
Vaughan Blank

RESPONDENT
Woollahra Municipal Council

Representation:

APPLICANT
Ms S Hill, solicitor

RESPONDENT
Mr P Rigg, solicitor

File Number(s):

10140 of 2011

Judgment

1. This is an appeal against the refusal by Woollahra Municipal Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (777/2008) for a new dwelling at 23 Victoria Street, Watsons Bay (the site).

The site and its locality

1. The site has a frontage to Victoria Street and Camp Cove Beach and an area of 1929sqm. It slopes approximately 2 m from the street to the beachfront. A new dwelling is partially constructed on the site.

1. Adjoining development includes a two storey dwelling to the north east (21 Victoria Street) and a single storey dwelling to the south west (25 Victoria Street).

Planning controls

1. The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (WLEP) . The proposal is permissible with consent. Camp Cove Beach is identified as a heritage item under WLEP and the site is within the Watsons Bay Heritage Conservation Area.

1. The Watsons Bay Heritage Conservation Area Development Control Plan (DCP) is also relevant.

Background and the proposal

1. On 13 May 2009, council approved the development application subject to conditions including C.1, which relevantly provides:

(f) Existing ground heights and topography at the front level of the site adjacent to Camp Cove shall not be altered except as detailed in the amended architectural plans submitted by Bruce Stafford Associates and conditions contained herein.

(g) The existing concrete and stone garden steps on the sloping lawn facing Camp Cove are to be replaced with a series of low profile turf steps encased in timber sleepers with maximum dimensions of the steps limited in plan to 7.5 metres by 6.0 metres.

(h) The existing Phoenix Palms on the lower lawn area are to be encased in planters constructed of timber sleepers to match the proposed steps, vertical dimension of the planters shall be limited in height to the highest portion of exposed roots, with horizontal size of the planters limited in dimension necessary to enable encasement of the existing root system.

(i) Except as detailed in conditions f, g, and h, excavation or altering of the remaining topography of the site shall be limited to excavation necessary for the proposed basement, swimming pool, steps to Camp Cove Beach, and for the reduction of the top portion of the site to RL 5.2 necessary to construct the ground floor of the proposed dwelling.

(j) The existing retaining wall facing Camp Cove Beach is to be replaced in bolstered sandstone, or faced in bolstered sandstone, the maximum height of the retaining wall to match the maximum height of the existing wall or 100mm above existing ground on the upper side of the wall whichever is the greater.

(k) Should a balustrade be required above the retaining wall facing Camp Cove Beach to meet BCA requirements, the balustrade shall be to a maximum height of 1.2 metres and constructed in vertical and horizontal steel bars with 50% of the vertical face of the balustrade being transparent, and otherwise meeting the requirements of Section C27 of the Victoria Street Precinct Controls of the Watsons Bay DCP .

1. The s 96 application is seeking consent for amended plans and to delete sub conditions (f), (g), (h) and (i). The amendments proposed are summarised in the Statement of the Facts and Contentions as:

...to level off the ground level adjacent to the Camp Cove frontage by raising the sloping ground level (lawn private open space area) by 0-1.7 m. A 1.7 m high (above existing ground level) concrete retaining wall is proposed to the northern elevation of the proposed elevated ground level, set back 1 m from the approved wall to the Camp Cove frontage. The 1 m setback is proposed to be elevated 700-800 mm above existing ground level and planted with a hedge in order to screen the proposed retaining wall from Camp Cove.

It is also proposed to construct 4 m x 3.5 m timber decking around 2 existing Canary Island Date Palm trees adjacent to the Camp Cove frontage.

The evidence

1. The appeal was to be a Consent Orders hearing, however, council resolved on 2 May 2011, the day before the hearing, to defend the appeal. The key contention raised by council being that the proposal would have an unacceptable bulk and visual impact when viewed from Camp Cove. Council provided no expert evidence. Mr G Shiels, a planner and urban designer, provided expert evidence for the applicant.

1. The matter commenced on site and the Court heard evidence from a number of residents who objected to the proposal. Their main concerns were also the visual impact of the proposal from the beach and the headlands. They also considered that the increased height of the stepped boundary wall and the loss of the sloping landform would adversely impact on the heritage significance of the beach and the conservation area. They were particularly concerned about the appearance of the level garden and the wall when viewed from the headlands at the Marine Biological Research Station and the Sydney Harbour National Park.

1. The residents considered the approved development to be an overdevelopment of the site, which would be further exacerbated by the proposed amendments. They stated that the wall would extend the existing sea wall of 19 and 21 Camp Cove, which already adversely impacted on the beach.

1. Further, the residents were concerned about the health and visual impacts of increasing the ground level and providing raised decking around the two Palm trees, which are important features of the site.

1. Mr Rolfe, on behalf of the Sydney Harbour Association, supported the proposed changes on the basis that the nature, bulk and scale of the original approval would have an adverse visual impact on the public open space of Camp Cove Beach and that the proposed wall would have less impact than the wall approved under condition C.1(k) of the development consent.

1. Mr Shiels also considered that the proposed wall would have less impact than the wall approved under condition C.1(k). He referred to a section (Exhibit B), which he stated reflected the approval in accordance with condition C.1(k). It provides a boundary wall approximately 2.2m high (RL 4.5 to the top of wall) with a 1.2 m high open metal balustrade above. This section and the proposed amendments (Exhibit A) were presented to the residents on site. They considered that the section did not accurately reflect the approval under condition C.1(k), on the basis that the balustrade was to only be provided if required to satisfy the Building Code of Australia (BCA).

1. No evidence from a BCA expert was provided to the Court. Although Mr Shiels relayed his understanding of the advice from the applicant's BCA consultant that a balustrade would be required if a change in level exceeded 1 m. He acknowledged that if the approved ground level adjoining the boundary wall (RL 3.6) were retained, only a minimal increase in the height of the wall (RL 4.5) would be required to satisfy the BCA. If the ground level were reduced, no increase in the wall height or a balustrade would be required.

1. Ms Hill, for the applicant, interpreted the condition to mean that if a balustrade were required, it could be 1.2 m above the top of the wall, even if this height were not necessary to satisfy the BCA.

1. Mr Shiels considered that even if no balustrade were required, the proposal was acceptable and an improvement on the approval as:

• it provided 'robust' landscaping of Coastal Rose, which would soften the appearance of the wall;
• it is consistent with the pattern of development along the beachfront which provides a stepped presentation of boundary walls of similar height to what is proposed; and
• the existing height of the boundary wall prevents views from the beach into the site of the sloping landform. The landform and the proposed changes, from other vantage points, would be imperceptible.

1. Further, Mr Shiels considered that the proposal's non compliance with the boundary wall height control (1.2m to 1.8m) in C27 of the DCP was acceptable as the approved boundary wall does not comply with this control. In his opinion, the additional wall was a retaining wall, not a boundary wall, as it was setback 1 m from the boundary and therefore C27 of the DCP does not apply. Further, the retaining wall was only 700 mm higher than the boundary wall and would be screened by landscaping; therefore it would have an acceptable visual impact.

1. Mr Shiels also considered the filling of the land to provide a level garden to be acceptable, given that significant changes to the topography of the site had already been approved. Further, the level garden will provide increased amenity for the residents of the dwelling by increasing the area of usable open space. Mr Shiels referred to the opinion of Mr Brooks, the applicant's heritage consultant that the landform of the site and the locality was significantly altered and was not of heritage significance and did not contribute to the conservation area.

1. Ms Hill referred to the report to council of 7 February 2011 (council report), which recommended approval of the s 96 application. The compliance table in the report identifies that the approved wall height (2.2m) and the proposal (2.9m) do not comply with the boundary wall height control in C27 of the DCP. The council officer considered the non-compliance to be acceptable because it replaced an existing boundary wall and was of a similar height to the adjoining boundary wall (21 Victoria Street). Due to the setback, screening and materials the proposed wall would have an acceptable visual impact from Camp Cove.

1. Council's heritage officer's assessment of the proposal in the council report stated "removal of the embankment would not have a negative heritage impact from the public domain". However, she raised concerns about the visual impact of the proposal and recommended that either the proposed ground level be reduced or the retaining wall be setback further from the boundary.

1. Council's tree management officer's assessment in the council report accepted the recommendations of the applicant's arborist's report that no fill is to occur within 2 m of the base of the palms and that the decking around the palms is to be permeable to allow free movement of water and soil.

Findings

1. The slope of the site is not visible from the beach and while it is visible from the headlands, it has been significantly altered by the approval. Further, the council officers' assessment of the proposal generally did not raise issue with the changes in landform or the treatment and health of the palm trees. In the absence of any expert evidence to the contrary I accept that sub conditions C.1(f), (g) (h) and (i) can be deleted from the consent and that the landform within the site can be altered. However, it does not automatically follow that the proposed 'retaining wall' is acceptable.

1. The 'retaining wall' is necessitated by the fill required to increase the height of the garden to provide a level area of open space and a green 'infinity' edge. I accept that this will increase the amenity enjoyed by the residents, however, the desire for an increase in the area of level open space would not justify the proposed changes, as the level area of open space adjoining the house is large and clearly of adequate size to meet the reasonable requirements for the occupants.

1. The principal contention raised by council is that the changes to the 'retaining wall' will have an adverse visual impact when viewed from the Camp Cove.

1. The DCP for Watsons Bay came into force on 15 October 2003. It provides specific controls for different precincts in Watsons Bay. The site is located within Precinct H - Victoria Street Waterfront Precinct. This precinct includes a small number of properties along Victoria Street, which front Camp Cove Beach. The character statement for the precinct states:

Buildings are viewed from the water against a deep backdrop of coral trees and national Park vegetation.....

The setting of the houses is also enhanced by cultural plantings (including Norfolk Island pines and palms) within the walled front yards facing the beach and occasionally in the rear or Victoria Street garden areas.....

1. The controls relevantly include:

C27 Wall heights facing Camp Cove Beach are to be a maximum 1.2m, or up to 1.8m maximum with 50% visual permeability above 1.2m where privacy from the Beach is an issue. They should be softened by landscaping. (Materials: sandstone or rendered/painted masonry to minimise its visual impact on the Beach. Glazing or reflective materials are not to be used).

1. The proposed 'retaining wall' is setback 1m from the boundary wall. However, it will read as part of the boundary wall and should be assessed under the requirements of C27 of the DCP. The approved boundary wall does not comply with C27 and the proposal will further exacerbate this non-compliance. It will increase the perceived height of the boundary wall when viewed from the beach and surroundings. I do not accept that the screen planting will reduce the impact to the extent that the perception of increased height and bulk is eliminated.

1. The approved boundary wall replaces an existing wall of the same height (RL 4.5). The approved wall has now been constructed but has not yet been faced with the bolstered sandstone required by Condition C.1(j) nor has any balustrade been constructed as permitted under condition C.1(k), if required by the BCA.

1. Even if a balustrade is required to meet the BCA this could be addressed by reducing the approved ground level or a minimal increase in the height of the boundary wall. I do not accept Ms Hills' interpretation of condition C.1(k) that a balustrade of 1.2 m can be provided even if this height is not required to meet the BCA or that Exhibit B accurately reflects what is approved under condition C.1(k). A 1.2 m high screen balustrade above the boundary wall, as illustrated in Exhibit B, would impact on the views out from the property and is unlikely to be built. I therefore do not accept that the proposal is appropriate on the basis that it would have less impact than what has been approved.

1. Ms Hill submits that the proposal is consistent with other approvals in the precinct (Exhibit E). In her submission, this indicates not that council has abandoned its controls in the DCP, but that it has accepted that variations to the controls are appropriate. The information in Exhibit E is inadequate to reach any definitive conclusions, although it would appear that, other than 9 Victoria Street, the approvals are for development applications submitted prior to the operation of the DCP, given its savings clause, or are for s96 applications or a construction certificate which relate to development applications approved prior to the DCP.

1. I acknowledge that there are a number of properties which have walls that are similar to what is proposed, but it would appear that these were in existence at the time the DCP was made as they are in photos in the DCP. The character statement also refers to walled front yards facing the beach. Clearly, given the tidal nature of the beach, sea walls are required. However, the controls in the DCP seek to keep the sea walls low and softened by landscaping.

1. The proposal provides a wall that is higher than the approved boundary wall and although softened by vegetation, it will increase the perceived height from the beach and will have an unacceptable visual impact.

1. The frontage of the property is one of the largest facing the beach and together with the walls of 19 and 21 Victoria Street, the proposal will have an unacceptable visual impact and change the character of this part of the beach. It also does not relate to the adjoining property at 25 Victoria Street, which currently has only a small wall and sloping grass to the beach. Approval of the proposal establishes a precedent for future redevelopment of this property.

1. In considering the proposal I have concluded that a further setback of the 'retaining wall' from the boundary wall is required to provide sufficient space to enable the retaining wall not to be perceived as part of the boundary wall. Rather than this being imposed as a condition, the applicant has been provided the opportunity to submit plans to address the concerns raised above.

1. Amended plans were filed on 9 May 2011 that set back the retaining wall to south east of the palms (about 5.5m to 7.5m from the boundary). Between the palms, the retaining wall is setback 2.480m from the boundary. The area between the retaining wall and the boundary wall is to be landscaped to screen the retaining wall and soften the boundary wall. Further a condition has been imposed which limits the height of the boundary wall to RL 4.5 and requires that no balustrade is to be erected on top of the boundary wall or between it and the retaining wall. With these changes, I am satisfied that the proposal will have an acceptable and lesser visual impact than the approval, when viewed from Camp Cove and the headlands.

Orders

1. The appeal is upheld.

2. The application under s 96 of the Environmental Planning and Assessment Act 1979 is approved. The development consent to Development Application No. 777/2008 part 12 for the demolition of an existing dwelling house and ancillary structures and erection of a new dwelling house and ancillary structures, landscaping and siteworks on land at 23 Victoria Street, Watsons Bay, is modified as set out in Annexure A.

3. The exhibits, except Exhibit 2, may be returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 19 May 2011