Bluebank Properties v Willoughby City Council

[2008] NSWLEC 1417

Land and Environment Court

of New South Wales

CITATION:	Bluebank Properties v Willoughby City Council [2008] NSWLEC 1417
PARTIES:	APPLICANT Bluebank Properties Pty Ltd RESPONDENT Willoughby City Council
FILE NUMBER(S):	10228 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of an existing dwelling and other site improvements and the construction of two dwellings - breach of height requirement and SEPP 1 objection - breach of building height plane requirements - bulk, scale, character - amenity impacts - tree loss
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 1995 State Environmental Planning Policy No 1
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	30/09/08, 01/10/08
EX TEMPORE JUDGMENT DATE:	2 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle, solicitor 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

2 October 2008

10228 of 2008 Bluebank Properties Pty Ltd v Willoughby City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA No. 19/2008 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 the boundary between the allotments, running along an east-west alignment in the centre of the site. The site is between approximately 111 m and 126 m in depth and around 12.2 m wide with each lot having a 6.095 m wide frontage to Sugarloaf Crescent. The combined width at the rear of the site is 50 m. There is a change of level within the site from the street frontage to the rear of approximately 48.5 metres. The site falls significantly from the front boundary at RL 53.7 to the foreshore building line at RL 34 m - 37.74 m, being the location of the proposed building envelope at the rear of the site.

3 There is an existing dwelling house on the site that spans both lots and is located toward the front of the site. 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.

4 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 the three lots.

The proposal

5 The proposed development provides for the demolition of the existing dwelling that straddles both Lots 304 and 305 and the construction of two attached five-level dwellings, each with a single car garage to be accessed off Sugarloaf Crescent. Each dwelling will require excavation into the site in order to accommodate ground and Level 1. A terrace and swimming pool are to be constructed at the rear of the ground floor of each proposed dwelling. The swimming pool structures would project up to 5 m above the natural ground level.

6 The amended plans change the configuration of the pool on Lot 304 to show the retention of Tree 3 at the rear of the dwelling. The proposed dwellings on Lot 304 and Lot 305 have generally the same floor area and contain a rumpus room at the ground floor, six bedrooms and a study at Levels 1 and 2, open plan living rooms and kitchen plus home theatre at Level 3, and the uppermost Level 4 contains a single garage, entry gallery, and formal lounge room. The dwellings have lift access to each level.

Relevant planning controls

7 The site is zoned Residential 2(a2) - Scenic Protection under the provisions of Willoughby Local Environmental 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)).

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

9 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.

10 Clause 14A contains additional general 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)).

11 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.

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

13 Clause 17 states that land within a 2(a2) is within a Scenic Protection Area. The clause provides requirements for a Scenic Protection Area.

14 Clause 18 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 clause 5 of LEP 1995. 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.

15 Willoughby Development Control Plan (the DCP) provides further controls. Section D.1 - Locality 2 identifies the desired 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. Section D2.12 provides specific requirements for the 2(a2) zone.

16 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 also applies.

The issues

17 The contentions raised by the council relate to:

1. The height, bulk, scale and character of the proposed development and specifically whether the SEPP 1 objection is well founded and the breach of the building height plane can be supported.
2. The unacceptable impacts on the amenity of adjoining properties in relation to privacy, views, and solar access.
3. The loss of significant trees;
4. The impact on adjoining bushland created by the need to address bushfire safety and;
5. The impact on adjoining bushland created by the disposal of stormwater and the disruption of existing subsurface drainage patterns.
The evidence

18 Mr Gary Chapman, a town planner, Mr Guy Paroissien an arborist and horticulturist, Mr Barry Eadie, a bushfire consultant and Dr Daniel Martens, a civil and environmental engineer, provided evidence for the council. The applicant provided no expert evidence but cross-examined each of the council's expert witnesses with the exception of Dr Martens (see par 45).

19 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.

Height – SEPP 1 objection
The assessment framework

20 The appropriate manner of dealing with an SEPP 1 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 asked is 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 asked what is the underlying object or purpose of the standard. The third question asked whether compliance with a development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards 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 section 5(a)(i) and (ii) of the Act.

21 The question also asked 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 asked whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The fifth and final question asked whether the objection is well founded.

The underlying objective

22 Clause 18 of LEP 1995 does not identify an objective for the 2 storey development standard so the SEPP 1 objection adopts the intent of the height requirement in the DCP. The intent is:

• 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 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.

23 The SEPP 1 objection identifies the key objective as a limit to the bulk and scale of the built form. Mr Chapman accepted that the DCP intent for height satisfactorily encapsulates the underlying objective of the height development standard.

24 I accept that this is a reasonable assessment of the underlying objective of the height development standard for the purposes of the SEPP 1 objection. For convenience, the underlying objective can be summarised as maintaining the existing built form or that anticipated by the council's planning controls when viewed from the street, waterways or other public areas, and at the same time minimising amenity impacts on adjoining properties.

The SEPP 1 objection

25 The SEPP 1 objection raises the following matters in support of the variation to the height development standard:

• compliance would hinder the attainment of the relevant objects of the Act,
• the location and existence of the FBL restricts development on the site,
• compliance would not result in a development in accordance with the intentions of the standard,
• the development standard is not suitable for the subject land,
• compliance would not result in a development of 2 storeys but would still provide 6 storeys, and
• the proposal would result in less excavation than a complying development.

Chapman evidence

26 Mr Chapman rejects the SEPP 1 objection as providing insufficient justification for the variation to the development standard. He states that the degree of non-compliance is contrary to the specific objectives in cl 14C of LEP 1995. In his opinion, the development has made little attempt to meet the topography of the site, is visually intrusive when viewed from adjoining properties and dominates the natural scenic qualities of the locality.

Findings

27 Mr Chapman helpfully showed the extent of the variation diagrammatically on a plan attached to the Further Revised Statement of Facts and Contentions although the area of non compliance was reduced by a small degree through some amendments at the area of the building near the street frontage during the hearing. With the benefit of the site view and an understanding of the relationship of the proposed development with adjoining development and the general area (and particularly taking into consideration the properties at 64 and 66 Sugarloaf Crescent), I concur with conclusions reached by Mr Chapman.

28 If the underlying object of the development standard is to maintain the existing built form or that anticipated by the council's planning controls when viewed from the street, waterways or other public areas, and at the same time minimising amenity impacts on adjoining properties, then the proposed development is clearly in conflict with this underlying objective. I acknowledge (as did Mr Chapman) that because of the relatively steep topography of the developable area of the site, that strict compliance may not be achievable however, the proposed exceedences of the height requirement in this case are excessive and create a situation where the bulk and scale of the building creates an overbearing and intimidating presence, particularly from the adjoining properties at 64 and 66 Sugarloaf Crescent.

29 The bulk and scale diminishes with distance from the site but, in my view, still creates an unacceptable visual impact from the viewing locations in Sunnyside Crescent; an area that was visited on the site view. The bulk and scale are less obvious from the bushland directly to the east, however, I agree with Mr Chapman that the breach of the height requirement manifests itself in the lack of association with the topography of the site and the unsatisfactory strong vertical elevation that would be better treated by stepping up the site.

30 I do not accept the submission of Mr Doyle that some leniency should be given to the development because of the location of the dwelling at 66 Sugarloaf Crescent. While it is located further from Sugarloaf Crescent than most dwellings in the area, there is no valid reason why it should be considered in a different way to other nearby dwellings. I also do not accept that any reliance can be placed on the location of the FBL. It is a constraint to the development of the land, as is the topography. Any design must take these matters into consideration and it may well be that a development cannot achieve the same yield when compared to a site on a flatter and less constrained site.

31 Under any assessment, 2 x 6 - bedroom dwellings with the large range of ancillary facilities contemplated in the application are excessive for the area of land that is capable of being developed. The need to locate the large dwellings on land constrained by lot size and configuration, topography and the FBL results in a development that is inconsistent with the bulk and scale of the built form contemplated by the height development standard and the 2 (a2) zone objectives. Put simply, the bulk, scale and form of the proposal is inconsistent with that contemplated by the zone.

32 In relation to direct amenity impacts, I am satisfied that visual privacy and loss of view impacts are not significant and would not be a reason for the refusal of the application, subject to some amendment.

33 The issue of overshadowing was not properly addressed at the hearing, with no agreed position on the amount of overshadowing created by the proposed building. As the proposed development is not to be approved for the reasons mentioned earlier, it is not necessary for any specific findings on overshadowing to be made however, the following comments are relevant based on submissions made at the hearing.

34 There is no doubt that the onus rests with the applicant to show that the proposed development is acceptable in terms of overshadowing. In this case, I do not accept that this onus was properly discharged. Mr Chapman correctly identified areas where he thought the applicant’s shadow diagrams were inaccurate. This is his role. His role is not to undertake the applicant’s task of providing a full overshadowing assessment. I have no doubts in accepting his conclusions based on his qualifications, experience and means of assessment, despite the submissions of Mr Doyle. The fact that a surveyor certified the applicant’s shadow diagrams is of little comfort when the surveyor was not available for cross-examination, particularly in light of Mr Chapman’s evidence. The accuracy of shadow diagrams was in contest since the start of the appeal. The applicant tendered further shadow diagrams during the hearing and this highlights the ongoing problem of the overshadowing issue.

35 Due to the location of 64 and 66 Sugarloaf Crescent to the south and at a lower relative level than the proposed dwellings, the issue of overshadowing is an important one. The fact that overshadowing of these properties is likely to occur even from a complying development makes the need for a proper assessment even more critical. The simple fact that the overshadowing of the properties to the south will result from a non-compliance with the height and building height plane controls is sufficient, in my view, to raise considerable doubt as to the acceptability of the overshadowing on the adjoining properties and consequently, the proposed dwellings.

36 I find that the SEPP 1 objection has not shown that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the relevant objects of the Act. Consequently, strict compliance with the development standard is not unreasonable and unnecessary in this instance and, as such, the SEPP 1 objection is not well founded. The appeal must fail for this reason, however, for completeness I will briefly deal with the other contentions.

Building height plane

37 Clause D.2.3 of the DCP provides that buildings should be sited within a building envelope measured by a projection of 45 degrees from a height of 3.5 m above natural ground level at the side boundaries to a maximum height of 9 m. The clause further states that the building envelope may not apply to sites with significant changes in level such as cliff faces. There was agreement that the proposed development does not satisfy the building height plane requirement on both side boundaries. Mr Chapman helpfully indicated the extent of these breaches diagrammatically on plans attached to the Further Revised Statement of Facts and Contentions. Clause D.2.3 identifies the intent and performance criteria for the building height plan and setbacks.

38 The consequences of the non-compliance with the building height plane are similar to those previously identified in the discussion on height. Again strict compliance may not be achievable, however, a more considered attempt should be made to properly consider the impacts of bulk, scale and overbearing appearance to the Sugarloaf Crescent area and the adjoining properties.

39 I have little trouble concluding that the proposal is in conflict with both the intent and performance criteria of cl D.2.3 of the DCP. This, in my view would, by itself would be a sufficient reason to refuse the application.

LEP 1995 and DCP objectives

40 The Court was taken to a range of objectives and considerations in LEP 1995 and the DCP that relate to residential development in the 2(a2) zone. They generally seek a sensitive and harmonious development of appropriate scale and character and seek to avoid inappropriate overdevelopment.

41 It is not necessary to individually address these matters, having found that the proposed development is unacceptable in bulk, scale and form. I can conclude that the proposed development is inconsistent with the identified objectives and considerations in LEP 1995 and the DCP, considering the existing forms of development in the area and the form of development contemplated by the council's planning controls.

Tree loss

42 Mr Paroissien addressed the issue of tree loss. Two Sydney Red Gums (angophora costata) were in dispute. One is located near the street frontage and directly adjoining the boundary with 64 Sugarloaf Crescent. The development application plans indicated the removal of this tree to allow for an access driveway to be constructed. Mr Paroissien stated that the tree should be retained as it is a significant tree in the streetscape. I accept that the tree contributes in a positive way to the streetscape and should be retained if possible. I am not, however, satisfied that the applicant fully addressed potential options to retain the tree. I agree with Mr Chapman that additional options should be considered before the tree should be considered for removal. If no other reasonable option can be formulated for access to the site, then the tree could be removed subject to appropriate replacement trees.

43 The second tree is located towards the rear of the site and is to be retained but surrounded by a deck and swimming pool. Mr Paroissien stated that if the tree survived the construction phase then it would require consistent maintenance to ensure its long-term viability. In his experience this could not be guaranteed. In concluding that the tree should be retained and could form part of the development, I accept that any future design should provide an outcome that requires a less rigorous maintenance regime than currently proposed to ensure that the long-term viability of the tree can be guaranteed. Again, I am not satisfied at this stage that the proper attention has been given to the long-term health of the tree in the design of the proposed development.

Vegetation within the foreshore building line

44 Mr Eadie addressed the issue of impact on the vegetation within the FBL. The council relied on advice from the Rural Fire Service for its bushland fire requirements. By letter dated 23 April 2008, the Rural Fire Service recommended a 35 m Inner Protection Zone (IPZ) and a 10 m Outer Protection Zone (OPZ), in addition to Type 3 construction for the proposed dwellings. Mr Eadie disagreed with these recommendations as he considered that the narrow band created by the IPZ and the OPZ would be ineffective, in isolation. He recommended a 15 m Asset Protection Zone, in conjunction with an evaluation of the construction of the building within a Flame Zone in accordance with Planning for Bushfire Protection 2006. This would provide sufficient fire protection irrespective of the fire reduction measures on adjoining properties. Mr Doyle for the applicant preferred the Rural Fire Service requirements but would accept the recommendations of Mr Eadie if thought appropriate by the Court.

45 In my view, Mr Eadie recommendations should be preferred. While it appears that the bushfire requirements for the adjoining property at 72 Sugarloaf Crescent provide for an IPZ and an OPZ, I am satisfied that a fire protection regime that provides a lesser disruption to the vegetation within the FBL area is appropriate, after considering the objectives contained within cl 16(2) of LEP 1995. The objectives seek the protection and regeneration of the vegetation within the FBL. I agree with Mr Eadie that this could have been adequately addressed through conditions.

Stormwater disposal

46 The issues over stormwater disposal and potential impact on existing vegetation was seen by Dr Martens as being able to be addressed through appropriately worded conditions. I agree with his conclusions.

Orders

47 The orders of the Court are:

1) The appeal is dismissed.
2) DA No 19/2008 for the demolition of an existing dwelling and other improvements and the construction of two new dwellings at 70 Sugarloaf Crescent Castlecrag is refused.
3) The exhibits are returned.


___________________
G T Brown
Commissioner of the Court