Bluebank Properties Pty Limited v Willoughby City Council

[2009] NSWLEC 1287

Land and Environment Court

of New South Wales

CITATION:	Bluebank Properties Pty Limited v Willoughby City Council [2009] NSWLEC 1287
PARTIES:	APPLICANT Bluebank Properties Pty Limited RESPONDENT Willoughby City Council
FILE NUMBER(S):	10036 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of an existing dwelling and other site improvements and the construction of two dwellings - SEPP 1 objection to height standard - bulk/scale - view loss - overshadowing - excavation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Willoughby Local Plan 1995 State Environmental Planning Policy No 1 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
CASES CITED:	Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
DATES OF HEARING:	27, 28 July 2009
EX TEMPORE JUDGMENT DATE:	29 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport, barrister SOLICITORS Doyles Construction Lawyers RESPONDENT Ms M Carpenter, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 July 2009

10036 of 2009 Bluebank Properties Pty Limited v Willoughby City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA No. 824/2008 by Willoughby City Council (the council) for the demolition of an existing dwelling and other site improvements and the construction of two dwellings at 70 Sugarloaf Crescent, Castlecrag (the site).

The site

2 The site is located on the eastern side of Sugarloaf Crescent and includes two allotments being Lot 304 forming the northern part of the site and Lot 305 forming the southern part of the site. The lots are approximately of equal size with a boundary between the lots running in an east-west direction approximately through the centre of the site.

3 The site is between 111 m and 126 m in depth with each lot having a 6.095 m wide frontage to Sugarloaf Crescent. The combined width of the rear boundary is 50 m. There is a change of level within the site from the street frontage to the rear of approximately 48.5 m. The site falls significantly from the front boundary at RL 53.7 m to the foreshore building line (FBL) at RL 34 m to RL 37.74 m.

4 There is an existing dwelling house on the site that spans both lots and is located towards Sugarloaf Crescent. There is a single garage forward of the dwelling house and located on the northern boundary. At the rear of the dwelling there are sandstone retaining walls. The site is well vegetated towards the rear and the locality is characterised by low density residential development. The adjoining group of three allotments to the north of the site are collectively known as 72 Sugarloaf Crescent and three dwelling houses are currently being constructed on these lots.

The proposal

5 The proposed development provides for the demolition of the existing dwelling and the construction of two attached 5 level dwellings each with a single car garage to be accessed off Sugarloaf Crescent. Each dwelling will require excavation of the site. The proposed dwellings have generally the same layout with a pool, rumpus room and amenities at ground level, two bedrooms and amenities at Level 1, two bedrooms, amenities and a study on Level 2, living room, dining room and kitchen on Level 3 and a garage and gallery on Level 4. A lift and stair connects all levels.

Relevant planning controls

6 The site is zoned Residential 2(a2) - Scenic Protection under the provisions of Willoughby Local Plan 1995 (LEP 1995). Clause 2 provides aims and objectives for the plan. The aims and objectives relevantly seek to “allow development at a scale that is sensitive to environmental and planning constraints” (cl 2(b)), “maintain and enhance the amenity of residential areas, for example, by protecting these areas from inappropriate development” (cl 2(d)), and “ensure that residential development conforms with the scale and character of the individual residential development areas” (cl 2(e)).

7 Clause 13(3) requires the consent shall not be granted unless the proposal is consistent with one or more of the aims of the plan and at least one specific objective of the zone within which the development is to be carried out.

8 Clause 13D requires consideration of the likely adverse impacts on adjoining or nearby properties in relation to loss of privacy, loss of views and loss of sunlight.

9 Clause 14A contains additional requirements for the Residential 2(a2) zone. Relevantly it seeks to “maintain the scale, character and streetscape of individual localities” (cl 14A(b)), and “retain and enhance residential amenity including views, solar access, aural and visual privacy and landscape quality” (cl 14A(c)).

10 Clause 14C(1) provides a specific objective for the 2(a2) zone. It states:

To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas including foreshores and bushland areas are maintained by protecting the land in the zone from overdevelopment or visually intrusive development by minimising the impact of hard surfaces on the ecological characteristics of the locality including nearby and adjoining bushland and by ensuring that the new development does not dominate the natural scenic qualities of the locality.

11 Clause 16 identifies the site as being subject to a FBL and cl 16(2) provides objectives for the FBL although there was agreement that the proposed development does not breach the FBL.

12 Clause 17 states that land in a 2(a2) zone is within a Scenic Protection Area and provides requirements.

13 Clause 18 addresses height and states that a person shall not erect a dwelling more than two storeys in height within the Residential 2(a2) zone. “Storey” is defined in cl 5. It was agreed that the proposed development does not satisfy this development standard. An objection pursuant to State Environmental Planning Policy No 1 -Development Standards (SEPP 1) was submitted to show why compliance with this standard is unreasonable and unnecessary in this instance.

14 Willoughby Development Control Plan (the DCP) provides further controls. Section D.1 Locality 2 identifies the future character of Castlecrag, Section D.2 provides controls for single dwelling houses and relevantly character, design and streetscape, building height planes and setbacks, height, and solar access and Section D.2.12 provides specific requirements for the 2(a2) zone.

15 Sydney Regional Environmental Plan(Sydney Harbour Catchment) 2005 also applies. The relevant clauses are 13, 25 and 26.

The contentions

16 The contentions raised by the council relate to:

1. whether the SEPP 1 objection to the height development standard is well founded, including whether the proposal is visually acceptable and creates unacceptable view loss and overshadowing,
2. whether the proposed development is acceptable in terms of bulk and scale,
3. whether the impact on Tree 1 warrants the refusal of the application, and
4. whether the extent of excavation is acceptable including whether the rooms in the excavated area have sufficient solar access and ventilation.
The evidence

17 Mr Gary Chapman, a town planner, and Mr Guy Paroissien, an arborist and horticulturalist, provided evidence for the council. Mr Neil Kennan, a town planner, and Mr Andrew Simpson, an arborist and horticulturalist, provided evidence for the applicant.

18 A number of local residents provided evidence on site and the dwellings at 64 and 66 Sugarloaf Crescent were inspected on the site view. The issues raised by the local residents are generally addressed through the contentions raised by the council although the residents of 64 and 66 Sugarloaf Crescent raised the issue of overshadowing. The residents of 64 Sugarloaf Crescent also raised the issue of view loss.

Breach of the height requirement
The assessment framework

19 The appropriate manner of dealing with an SEPP1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 at par 26 where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the object or purpose of the standard. The third question asks whether compliance with a development standard is consistent with the aims of SEPP1. The aims state:

This policy provides flexibility in the application of planning controls operating by virtue of development standard in circumstances where strict compliance with those standards would in any particular case be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in 5(a)(i) and (ii) of the Act.

20 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5 of the Environmental Planning and Assessment Act 1979. The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The fifth and final question asks whether the objection is well founded.

The evidence

21 Clause 18 of LEP 1995 does not identify an objective for the height development standard so the SEPP1 objection adopts the intent of the height requirement in Section D.2.4 of the DCP. The intent is stated as:

• To control the height of new dwellings, additions to existing dwellings and dual occupancies so that new development is in harmony with the bulk and scale of surrounding buildings in the streetscape.
• To ensure a high visual quality of the development when viewed from the street, waterways, public reserves or foreshores,
• To minimise the disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development,
• To maintain reasonable solar access and minimise overshadowing of adjoining properties.

22 The underlying purpose of the development standard is summarised in the SEPP1 objection as:

• to create a harmonious streetscape;
• to create a high visual quality;
• to minimise reduction to existing views; and
• to maintain reasonable solar access to adjacent properties.

23 The SEPP1 objection supports of the variation of the height standard because there are many different features in the Sugarloaf Crescent streetscape including small setbacks and garages near the street boundary. The proposed garages are consistent with the streetscape and present as a single storey building.

24 Further, the visual quality of the proposed development is not detrimentally affected by the variation to the two-storey height control. It is single storey at the street frontage and has a similar form to the development at 72 Sugarloaf Crescent to the north. The southern elevation steps down the site and does not exceed three storeys. Also, any loss of views is considered to be reasonable in the context of view sharing and consistent with the reasonable development of the site. The adjoining properties will be largely unaffected by overshadowing notwithstanding the partial exceedence of the two storey requirement.

25 Mr Chapman agrees with the objectives identified in the SEPP1 objection but disagrees with the conclusions reached. He states that the proposal is not similar in height to the neighbouring dwellings at 64, 72, 74, 76 and 80 Sugarloaf Crescent. The differences in height do not provide for high visual quality and the water views available from Sugarloaf Crescent across the site will be lost in total. The non-compliant upper levels will result in additional shadow cast onto 64 and 66 Sugarloaf Crescent beyond what would be expected for a two storey dwelling.

26 For these reasons, Mr Chapman states that the SEPP 1 objection is not well founded and the appeal should be dismissed.

Findings

27 In considering the SEPP 1 objection there was a fundamental difference in the approach taken by Mr Kennan and Mr Chapman. Clause 18 provides a maximum height requirement of two-storeys. Clause 5 of LEP 1995 defines, storey, in part as,

a space between any 2 successive floors or the space between natural ground level and any floor immediately above that level or the space between any floor and its ceiling or roof above. Any such space that exceeds 3.5 metres in height is counted as 2 storeys. The following spaces are not counted as storeys for the purposes of this definition.
(a) spaces where the ceiling of that floor is less than 1 metre above natural ground level.

28 Natural ground level, is defined in cl 5 as,

in relation to land, means the level of the land as if no development had taken place on that land .

29 Mr Kennan and Mr Chapman adopt different natural ground levels for their calculation of the number of storeys. Mr Kennan uses the existing survey details but adopts a generally consistent grade over the site. Mr Chapman on the other hand, uses a number of spot levels from the survey plan and produces a natural ground level that has a number of small but relevant variations to Mr Kennan’s more consistent grade.

30 In considering the definitions of “natural ground level” and “storey” and the different approaches of Mr Kennan and Mr Chapman, I am more inclined to accept Mr Kennan’s approach. While it is clearly difficult to accurately determine what the natural ground level was prior to the significant benching of the site to allow for the construction of the existing dwelling, I am generally satisfied that it would be more likely to reflect the more consistent grades shown by Mr Kennan. The consequence is that the breach of the two storey height requirement is less than shown by Mr Chapman on his diagrams attached to the Further Amended Statement of Facts and Contentions.

31 For the northern elevation, the breach of the two storey requirement is not four storeys but three storeys and located towards the centre of the building. For the southern elevation, the three storey component is limited to an area of about 5 m in length on Level 4 and a smaller area of about 0.5 m on Level 3 towards the balcony area.

32 From the site view, the effect of any height exceedence has a far greater impact to the south where 64 and 66 Sugarloaf Crescent are located. To the north, the form of the proposed building is similar to that of the partially constructed building at 72 Sugarloaf Crescent.

33 When the exceedence of the height requirement is tested against the objective of the development standard (that is, the intent of the height requirement in Section D.2.4 of the DCP), I am satisfied that the SEPP 1 objection is well founded and that strict compliance is unnecessary and unreasonable in the circumstance of this case for the following reasons.

34 First, I accept that the proposal provides a harmonious streetscape. The single storey appearance of the two garages is consistent with a number of similar structures in the Sugarloaf Crescent streetscape on the low side of the street where the land falls sharply from the street. It is a practical and reasonable method of providing car parking for a dwelling that is located below the street level.

35 The appearance of the building, even from an oblique angle in Sugarloaf Crescent satisfies the test of a building that has a harmonious appearance in the streetscape. In coming to this conclusion it must be remembered that while the proposed buildings are different to many of the existing buildings in the immediate area, the appropriate test of harmony in the streetscape should not necessarily be against the form of the existing buildings. The proper test is against the council’s planning controls for the 2(a2) zone, otherwise these planning controls would be largely irrelevant given the older and smaller style of dwellings in the area.

36 Second, there is compliance with many of the requirements of LEP 1995 and the DCP. I did not understand there to be any disagreement over the architectural style of the buildings. Consequently, I accept that the proposal will provide a high visual quality when viewed from locations around the site. The limited areas of the building where the two storey height requirement is exceeded do not, in my view, unacceptably impact on the visual quality of the area.

37 I find the proposal consistent with the intent of Section D2.5 Character, Design and Streetscape of the DCP.

38 Third, I am satisfied that existing views are not overly disrupted by the proposed development considering the not unreasonable expectation that the site could be developed in accordance with the requirements of LEP 1985 and the DCP. I find no warrant in any of the council planning controls that support Mr Chapman’s view that the existing views over the existing dwelling to the water and adjoining bushland should be maintained. While there is a public benefit in maintaining these views, this benefit must be balanced against the applicant’s reasonable expectation that the site can be developed in a manner consistent with the council’s planning controls. Some view corridors will be maintained and will be enhanced with some modifications of the proposal (see pars 40 to 42). I accept that this is sufficient to satisfy the test of reasonable view sharing. With the benefit of the site view I also accept that the proposal will not unacceptably impact on views from any adjoining residential property.

39 Fourth, overshadowing from the proposed development potentially impacts on 64 and 66 Sugarloaf Crescent. Both properties were inspected on the site view and the Court had the benefit of two sets of shadow diagrams that indicated the shadow cast by the proposed buildings. Both showed essentially the same impact with only a small difference in the extent of shadow. Overshadowing was not an issue raised by the council but was an issue raised by owners of the two adjoining properties. Based on the shadow diagrams, the overshadowing of the adjoining property is minimised. While there will be additional shadows cast by the proposed buildings I accept that the shadows are what could be reasonably expected for a development consistent with that anticipated by the council planning controls.

40 The extent of overshadowing created by the breach of the height standard does not significantly add to the additional shadow to the point where it would be a reason to refuse the application. The amount of overshadowing, in my assessment, will be further reduced by the modification to Level 4.

41 I find the proposal consistent with the intent of Section D2.9 Solar Access of the DCP.

Bulk and scale

42 Mr Kennan and Mr Chapman provided sketches that showed the extent of non-compliance with the building height plane (BHP) requirements in Sec D.2 of the DCP. At the request of the Court, Mr Kennan and Mr Chapman provided amended sketches showing the extent of the breach of the BHP with the removal of the gallery area on Level 4 and the removal of part of the dining room on Level 3. These were the areas where the more significant breaches of the BHP occurred.

43 The amended sketches of Mr Kennan and Mr Chapman indicated a greater compliance with the BHP requirements but also importantly, in terms of bulk and scale, provided greater setbacks to the boundary, particularly on the southern elevation. The amendments also had the positive effect of increasing setbacks with height and providing no walls greater than two storeys in a vertical plane.

44 With these amendments I am satisfied that the perceived bulk and scale of the building has been improved to the point where it is acceptable given the relatively steep topography and the need to step the building down the site. The amendments can be included as conditions of consent.

Tree loss

45 Tree 1 is located near the street alignment and adjoining the access driveways to the garages. The driveways will require the removal of a major limb and some 35% of the canopy of the tree.

46 Mr Paroissien and Mr Wilson agreed that work, such as mulching and ongoing watering of the tree will ensure its survival, however they disagreed on the extent of risk to the tree, and consequently its longevity.

47 In my view, the retention of the tree should form part of the approval and every endeavour made to ensure its maximum longevity through conditions agreed by the experts. While the tree adds to the streetscape and bushy qualities of the area, the risk of premature failure would not be a reason to refuse the application.

48 There was agreement between the experts that Tree 3 located to the east of the buildings could be retained, subject to appropriate conditions. There was also agreement that two existing trees near the southern boundary could be retained to provide screening of the building from the adjoining residential properties.

Excavation

49 Mr Chapman saw the amount of excavation as being excessive, measuring some 6.8 m at it’s greatest point. Mr Chapman also saw the use of this area as having poor solar access and natural ventilation. This was not a conclusion accepted by Mr Kennan. In accepting that there is a significant amount of excavation, I note that there is no specific limit on the amount of excavation in the DCP beyond a general statement that it should be minimised. Given the relatively steep topography of the site, I do not accept that the amount of excavation is a matter that would support the refusal of the application.

50 Similarly, I accept that the use of the ground level for a swimming pool and rumpus room is acceptable even though the solar access and natural ventilation is not optimal towards the rear of this level. The plans indicate, however, a number of other areas over different levels where adequate solar access and natural ventilation is available to the future residents, if required.

51 Overall there are no matters in LEP 1985, the DCP or SREP 2005 that would warrant the refusal of the application.

Conditions

52 A number of conditions were in dispute between the parties with a number involving the use of a private certifier to authorise certain works. As submitted by Mr Newport there are instances where a private certifier may not be the certifying authority and instances where a private certifier may fulfil this role. The conditions should reflect the legal requirements.

53 The only other condition in dispute is whether the concrete driveway over the footpath should be constructed at 90 degrees to Sugarloaf Crescent as required by the council or at an oblique angle and consistent with the orientation of the internal driveways as suggested by the applicant.

54 As it involves a matter of safety I accept that the condition should remain, that is requiring the driveway to be at 90 degrees to Sugarloaf Crescent.

Orders

55 For these reasons the Orders of the Court are:

1. The appeal is upheld.
2. DA No. 824/2008 for the demolition of an existing dwelling and other site improvements and the construction of two dwellings at 70 Sugarloaf Crescent, Castlecrag is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1 and A.

___________________

G T Brown
Commissioner of the Court