Bocce Pty Ltd v Woollahra Municipal Council (No 2)
[2013] NSWLEC 1169
•09 September 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Bocce Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 1169 Hearing dates: 8, 9, 14 August 2013 Decision date: 09 September 2013 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [65]
Catchwords: DEVELOPMENT MODIFICATION - Alterations and additions to dwelling house Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995Cases Cited: Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1151
Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 124
Houlton v Woollahra Municipal Council (1997) 95 LGERA 21
Veloshin v Randwick Council [2007] NSWLEC 428
Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299Category: Principal judgment Parties: Bocce Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel
Ms H Irish (Applicant)
Solicitors
Mr R Bennett, Pikes & Verekers Lawyers (Applicant)
Mr K Webber, Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 10533 of 2013
Judgment
This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of an application made by Bocce Pty Ltd (Bocce) under s 96AA of the Act to modify development consent DA706/2010 relating to a residential dwelling at 12 Olola Avenue Vaucluse (the site).
Development consent DA706/2010 approved the demolition of the existing dwelling and construction of a new residential dwelling at the site. That consent was granted on 5 August 2011 by the Court, in accordance with an agreement reached by the parties under s 34(3) of the Land and Environment Court Act 1979 in proceedings 10355 of 2011. The conditions included condition A.9: Modification of details of the development, which required amendments to the approved plans identified in condition A.3, including:
(d) The proposed kitchen windows located on the ground floor (living level) to the eastern elevation shall be highlight windows. These windows are to have a minimum sill height of 1.7m measured from the finished floor level.
(e) The first floor (bedroom level) of the building is to be set back 1.2m from the front alignment involving the following:
-A reduction in depth to the master bedroom, bedroom 2 and bedroom 3 of 1.2m respectively
-A reduction in depth of the roof overhang to the front first floor balconies by 1.2m
-The deletion of the side walls adjacent to the front first floor balconies with the exception of a 1m high glazed balustrade.
The application to modify development consent DA706/2010/1 was made under s96AA to the Council on or about 30 April 2013, after construction work had commenced on the site. The application was stated to be for "internal and external alterations and additions to an approved dwelling house development, including relocation of approved garage, raising of floor levels, provision of undercroft landscape area + external works". On 16 July 2013 Bocce commenced these Class 1 proceedings (the Modification Appeal). On 16 July 2013 the Council refused the application.
There are other proceedings before the Court relating to the construction work presently being undertaken on the site. On 2 April 2013 the Council received a copy of a Notice of Intention to give Order dated 27 March 2013 by the Principal Certifying Authority to Bocce, to the effect that the development consent DA706/2010 was not being complied with for various reasons. On 15 May 2013 the Council issued an Order (125/2013) in terms of item 19 of s 121B of the Act directing Bocce to cease carrying out works that ar[sic] not in accordance with Development Consent DA706/2010". Bocce lodged an appeal under s 121ZK(1) of the Act against the Order on 31 May 2013 (proceedings 10369 of 2013). On 12 June 2013 Bocce applied to the Council under s 149B of the Act for a building certificate (BC45/13). An appeal against the deemed refusal of a building certificate was lodged on 26 July 2013, proceedings 10571 of 2013 (the Building Certificate Appeal).
By Motion filed on 16 July 2013 Bocce sought an order that action on the Order be stayed until the later of the determination of the application to modify development consent DA706/2010, or the complete and final determination of any appeal pursuant to s 97AA of the Act in relation to the modification application. On 1 August 2013 Biscoe J heard the Motion, which was resolved on the basis that the three Class 1 proceedings (10396 of 2013, 10533 of 2013, 10571 of 2013) were to be brought forward for hearing together on 8 and 9 August 2013; that there be a consent interlocutory injunction including that the Council be restrained from taking action on the stop work order until final determination of the Modification Appeal; and an order that the applicant not carry out any work on the garage structure until further order. Biscoe J made orders for joint expert reports and other procedural directions to bring the proceedings to a final hearing: Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 124.
The hearing of the three appeals commenced on site on 8 August 2013 with a view. When the hearing resumed in Court on 8 August 2013 the parties handed up Consent Orders in proceedings 10396 of 2013, the appeal against the Order. On 9 August 2013 I made the orders (Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1151), by consent, revoking the Order, and noting the following assurance given on behalf of the applicant:
In any Class 4 proceedings commenced by Council arising from a determination of proceedings 10533 of 2013 and 10571 of 2013 which is adverse to the applicant, the applicant will not, for the purposes of the exercise of the Court's discretion under section 124 of the Environmental Planning and Assessment Act 1979, rely upon work done on and from 1 August 2013 in contravention of section 76A of that Act.
The parties agreed that the appropriate course is that the Modification Appeal should be determined first, and that resolution of the Building Certificate Appeal will depend on the outcome of that appeal.
The site and locality
The site is located on the southern side of Olola Avenue, opposite Vaucluse Park. The site, in common with other properties along Olola Avenue, slopes steeply up from the street to the rear. The surrounding development is a mix of older and newer dwellings, some of which have garages at the street frontage. The adjoining property to the west, No 11, is Weinreich House, a two storey rendered dwelling designed by Harry Seidler, which was listed as a heritage item under Schedule 3 to the Woollahra Local Environmental Plan 1995 (the LEP) on 14 June 2013. Immediately adjoining the site to the east is Macarthur Place, a pedestrian walkway incorporating stairs leading to Wentworth Road. On the other side of Macarthur Place is a two storey rendered dwelling, No 13.
Proposed modifications
The majority of the works the subject of the modification application have been constructed, or were, at the time of the view, in the process of construction and finishing. At the time of the view the garage walls had been constructed, however there was no slab or roofing over the garage. The balconies had been constructed, and balustrading erected.
The modifications for which approval is sought are identified in a letter prepared by GSA Planning dated 6 June 2013 provided to the Council, and in a Reply to Contentions prepared by Mr George Karavanas dated July 2013 (annexure C, exhibit 4), and include changes to each level of the new dwelling. In the letter of 6 June 2013 the modifications are described as being:
"...reflected in architectural plans prepared by John McKenzie & Associates Architects submitted separately and include, but are not limited to the following:
• removal of existing gate to garage
• relocation of the approved garage approximately 7m to the north, including reconfiguration and resultant change of garage level from 28.5AHD to 26.6AHD;
• internal reconfiguration of the basement level to include undercroft planting and provision of an art studio in the previous garage location, raising of the basement level from 28.5AHD to 29.29AHD, raising of the northern balcony from 28.45AHD; and provision of a new deck forming the roof over the relocated garage;
• internal reconfiguration to provide access from the garage level at 26.6AHD to the main entry level at 29.25AHD;
• internal reconfiguration of Living room level, including setting back of northern living room wall by approximately 1.95m, reshaping and squaring of northern balcony and change in internal RL from 31.50AHD to 32.33AHD;
• internal reconfiguration of Bedroom level, including reshaping of the northern and southern balcony and increase in internal RL from 34.50AHD to 35.36AHD;
• increase in maximum roof ridge from 37.75AHD to 38.73AHD, to match the maximum ridge of the previous dwelling located on the site;
• adjustment of the western side setback which due to the shape of the site will range between 2.04m and 2.16m;
• modification to the existing front setback, including amended landscaped pathway to the entrance and deletion of planters within the front setback;
• minor changes to fenestration throughout;
• modification of planters along the eastern and western boundary, modification of external stairs along the eastern boundary, excavation and new external stairs along the western boundary and reshaping of the rear yard.
The letter stated (at pp 3-4):
The modifications are necessary in order to simplify the construction, provide better functioning spaces as well as improve the general amenity within the building. Most notably, the proposed relocation of the garage to the north is necessary. The steep nature of the front setback, having a 2.5m rise from street to garage level, is not conducive to sound driveway design and the applicants have acknowledged this error. The intention is to lower the garage to a more suitable level and create a more level grading to the garage. In order for this to be achieved, the finished floor level of the basement would need to be raised in order to provide sufficient head height within the garage.
The floors above basement level would also be raised accordingly. The proposal would result in less excavation to accommodate the basement level of the dwelling house.
Issues
In its Statement of Facts and Contentions (exhibit 3) the Council contends that the additional bulk, scale and height overwhelms the adjoining heritage item at No 11 especially when viewed from Olola Ave from the west, contrary to the objects in cl 2(2)(g)(ii) and (v) and cl 27 of the LEP; that the impact of the development on the public walkway at Macarthur Place is contrary to cl 24(2) of the LEP; that the development is contrary to relevant provisions in the Woollahra Residential Development Control Plan (the DCP) relating to design and siting, desired future character, streetscape, building articulation, front setback, deep soil landscaping, location of the garage, visual privacy, and front fence; and that the development does not comply with the FSR and number of storeys provisions in the DCP.
The Council's position as submitted in the hearing is that the excess in the building size, bulk, scale and presentation of the development as modified is the main issue; then the exceedence in floor space ratio (FSR) and setbacks and the increased height (acknowledging the building is still within the height limit), and then the architectural design, are such that the development as modified is inappropriate for the site. The Council does not consider that of itself the impact of the proposal on the heritage item at 11 Olola Avenue would be such as to warrant refusal of the application, however it is an element in considering the excessive bulk and scale of the development.
Planning controls
Clause 2 of the LEP provides the objectives of the plan, which relevantly include:
(2) The objectives of this plan are:
...
(g) in relation to heritage conservation:
...
(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas,
...
(v) to provide for the detailed control of development associated with or in proximity to heritage items and heritage conservation areas,
...
(k) in relation to urban design:
...
(iii) to require that design and siting of new development enhance the attributes of its site and improve the quality of the public environment, and
Clause 8(5) of the LEP provides that the Council shall not grant consent to the carrying out of development on land to which the LEP applies unless the Council is of the opinion that the carrying out of the development is consistent with relevant objectives of the LEP and of the zone within which the development is proposed to be carried out.
The objectives of the Residential "A" zone are:
(a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses,
(b) to allow certain non-residential development of low intensity which is compatible with the residential character and amenity of the locality,
(c) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and
(d) to protect the environmental attributes of the coastal and foreshore lands.
The DCP includes Part 3 Site Analysis Controls; Part 4 Precinct Controls; and Part 5 General Controls. At 1.5 (p6) the DCP notes that where there is any disparity between the objectives and performance criteria in Parts 3, 4 and 5, the objectives and performance criteria in Part 4 take precedence.
The site is located in the Vaucluse West Precinct, and desired future character objectives are:
O 4.13.1 To retain the scenic qualities provide by the dramatic topography, natural vegetation and low scale built elements that provide an attractive setting on Sydney Harbour;
O 4.13.2 To reinforce the precinct's landscape setting by minimising alterations to the landform and preserving the existing tree canopy;
O 4.13.3 To maintain mature street trees, grassed verges and garden plantings;
O 4.13.4 To protect important views from the public spaces of the precinct to the harbour, the city skyline and to the surrounding districts;
O 4.13.5 To maintain the evolution of low rise residential building styles through the introduction of good contemporary buildings.
The desired Future Character Performance Criteria for the Vaucluse West Precinct include a statement of precinct character:
C 4.13.1 Development respects and enhances the existing elements of the local neighbourhood character that contribute to the Vaucluse West Precinct including:
• the relationship of the precinct to the harbour;
• the rich mixture of residential architectural styles, and their emphasis on their connection to the landform;
• buildings set within highly visible gardens;
• buildings addressing the street;
• the curvilinear street pattern;
• the harbour views available from the streets of the precinct.
Other relevant performance criteria include C4.13.3 Side boundary setbacks; C4.13.4 Location of garages; and C4.13.5 Vaucluse West Street Section. Clause 4.13.5 states "Development conforms to the requirements detailed in the annotated street section (below), indicating the existing landscape and street context and illustrating the desired future character". The Vaucluse West Street Section includes C4.13.5.3, specifying a maximum height of two storeys; C4.13.5.5 specifying that if solid a front fence is to be no higher than 1.2m; and C4.13.5.7 specifying that buildings are to have a maximum unarticulated length of 6m to the public street frontage, noting that "Building articulation is encouraged to a minimum depth of 0.6m from the front alignment and can be provided in the form of balconies, loggias and wall off sets".
In Part 5.1 Streetscape the objectives are:
O 5.1.1 To achieve housing forms of a scale and character in keeping with the desired future character for the locality.
O 5.1.2 To ensure development conserves or enhances items and areas of special architectural, social, cultural or historic interest.
O 5.1.3 To ensure development contributes to cohesive streetscapes and desirable pedestrian environments.
O 5.1.4 To ensure a safe environment by promoting crime prevention through design.
O 5.1 5 To ensure that development recognises predominate streetscape qualities.
Part 5.2 Building Size and Location provides front, rear and side setback controls. Clause 5.2.2 provides that unless otherwise indicated in Part 4 "the front setbacks are consistent with those of adjoining buildings". Clause 5.2.9 specifies FSR requirements, and C5.2.15-C5.2.17C provides for site excavation requirements.
Part 5.8 provides for Acoustic and Visual Privacy.
Evidence
The view on the first day of the hearing included a view from along Olola Avenue in both directions, and Macarthur Place. There were no objectors present on site. The Council's bundle of documents (exhibit 1) includes written submissions made to the Council on behalf of the owners of Nos 11 and 13 Olola Avenue in response to notification of the application. The objection made on behalf of the owners of No 11 stated that they objected to:
... the height, scale and impact of the construction at 12 Olola Avenue on the Weinreich House. 12 Olola Avenue now significantly dominates the streetscape relationship of the Weinreich House.
The height, bulk and scale of the construction relative to Weinreich House is dominant and inequitable in its adjacency to the common boundary.
The side set-back at the Weinreich House boundary is less than the requirements of the Woollahra Development Control Plan2003 and the apparent addition of a full floor of mass further contributes to the inequitable formal relationship.
The resulting architectural relationship of the two buildings now substantially demeans and devalues the architectural design of the Weinerich House and its setting in the streetscape.
...
The objection made on behalf of the owners of 13 Olola Avenue stated:
The objection is specifically focussed on the extension of the garage and associated deck above, located in the north east corner of the site and along the boundary with our client.
This proposed extension is in breach of the front setback line. The area of the extended deck over 45 m2 and the amount of landscaping along eastern boundary, which potentially could screen it, is minimal. The deck which one assumes can cater for large gatherings [parties] is located in proximity to our client's master bedroom, lounge and the pool. This juxtaposition would not only exacerbate issues with respect to audial but visual privacy, allowing for views from the extension into our clients pool area.
Expert heritage evidence was given by Mr Paul Fletcher on behalf of the Council and Mr Robert Staas on behalf of Bocce. Mr Fletcher and Mr Staas provided a joint report (exhibit 5) and gave oral evidence. Bocce also relied on a Statement of Heritage Impact (exhibit E) and affidavit (exhibit F) prepared by Mr Staas. Expert planning evidence was given by Mr George Fotis on behalf of the Council and Mr George Karavanas on behalf of Bocce. Mr Fotis and Mr Karavanas provided a joint report (exhibit 4) and gave oral evidence. Evidence on structural engineering issues was provided in the form of a joint report prepared by Mr Rade Radovancevic on behalf of Bocce and Mr Craig Jenner on behalf of the Council (exhibit 6).
Consideration
It was common ground between the parties that the development as modified is substantially the same as that for which development consent was granted, as required under s 96AA(1)(a) of the Act. I agree, and accordingly there is jurisdiction to modify the development consent. It was common ground that the fact that Bocce has carried out work not in accordance with the development consent does not preclude the Court considering the modification application on its merits: Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299.
The issue is whether, when considered against the relevant factors in s 79C(1) as required by s 96AA(1A) of the Act, the modifications should be approved.
The documentation provided to the Council in support of the modification application, and Annexure C to the planners' joint report, include extracts from plans purporting to provide a comparison between the approved and proposed dwelling plans with modifications circled. None of those extracts, however, incorporate the amendments to the plans required under condition A.9 of the development consent DA706/2010. Those amendments are marked on plans annotated by Mr Karavanas during the course of the hearing, which Mr Fotis agreed are an accurate representation of the development as approved (exhibit Q).
The Council's contentions 1.3 -1.13 (exhibit 3) deal separately with issues of design and siting, desired future character, FSR, number of storeys, streetscape, building articulation, front setback, deep soil landscaping, location of the garage, visual privacy, and the front fence, primarily by reference to the relevant provisions of the DCP. A considered analysis of those contentions indicates that in essence they identify various specific aspects of the primary concern with size, bulk, scale and presentation of the building. As put by the Council's representative in opening, the Council's position is that the main issue is the excess in the building size, bulk, scale and presentation of the development as modified; then the exceedence in FSR and setbacks and the increased height (acknowledging the building is still within the height limit); and then the architectural design.
The reasons which follow address first the specific impacts identified in the Council's contentions relating to the public walkway (contention 1.2) and the heritage item at No 11 Olola Avenue (contention 1.1), and then the development as modified in terms of its appropriateness for the site by reference to the considerations of height, bulk, scale, presentation, FSR, setbacks and design.
Impact on Macarthur Place
The Council's contentions include contention 1.2, that the development is contrary to cl 24 of the LEP by reason of its adverse impact on visual amenity of the public walkway, Macarthur Place, which adjoins the site on its eastern boundary. Clause 24 of the LEP provides:
24 Land adjoining public open space
(1) This clause applies to all land adjoining public open space.
(2) The Council shall not grant consent to an application for development on land which adjoins public open space unless it has made an assessment of the impact of the development on the amenity of the public open space and it has taken into consideration whether the development is in conflict with any plan of management for the public open space.
The LEP defines "public open space":
public open space means land used for public recreation purposes and includes public parks, recreation reserves, civic spaces, formal gardens, beaches, public playgrounds and bushland.
The planners agreed that the walkway would not fall within this definition. However, Mr Karavanas agreed that it would be part of "the public environment" referred to in cl 2(2)(k)(iii) of the LEP, and that regard should be had to that objective.
Based on the view and the photographs taken by Mr Karavanas (exhibit O) I agree with the planners that the part of the building most visible from the walkway is the upper level (bedroom level) including its balcony. Mr Fotis' evidence that the upper level and external wall would be less visible had the building complied with condition A.9(e) of the development consent (see [2] above) is consistent with photograph 1 of exhibit O. In considering the impact of the extension of the bedroom and balcony depth as constructed, the building as it appears in photograph 1 and as was apparent on the view is dominant when viewed from that part of the walkway. I agree with Mr Karavanas that the vegetation on the boundary provides some screening of the building once a person goes higher up on the walkway. However, having regard to the additional bulk of the building along its eastern side and at the upper level, I am not satisfied that the modification to the upper level and balcony is consistent with the objective in cl 2(2)(k)(iii) of the LEP to "improve" the quality of the public environment represented by that lower part of the public walkway.
Heritage item
Clause 27 of the LEP provides:
27 Development in the vicinity of heritage items, heritage item groups, heritage conservation areas, archaeological sites or potential archaeological sites
The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage item group, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.
11 Olola Avenue was listed as a heritage item on 14 June 2013. Its heritage significance was identified in the Statement of Significance in the Woollahra Heritage Inventory (appendix A, exhibit 5):
11 Olola Avenue is a Harry Seidler-designed residence dating from 1962, and reflects the culmination of his early, predominantly residential, career phase. As such, it embodies the themes that he continued to expand upon during the course of his prodigious career. These themes are reflected in the restrained austere expression; the building form as an elevated presence with a large outdoor space in front of the building; the strong geometrical composition echoed in the parts; and the simultaneity of rectilinear and curvilinear motifs.
The heritage experts agreed that the potential adverse impacts associated with the modification application relate to the setting of the heritage item in the residential context of Olola Avenue. In his contribution to the joint report Mr Fletcher stated:
The modified front setbacks and the increased building height are located in close proximity to and, in part, extent beyond the front setback of the item. The building will be more visible within the significant approaching views of the item and will appear more dominant than the building form that was conditionally approved by the Court.
The proposed non-compliant modified setback and height, together with changes to the front yard, will unreasonably impact on the setting of the heritage item. These modifications will result in a more visually dominant development than was originally approved. These modifications will adversely impact on the experience of seeing the heritage item.
...
The breaching of imposed front setbacks that recede successively from the setback of the level below has produced a harsh monolithic front elevation, readily apparent from the street, that is without finesse and without regard for its negative impact on the streetscape.
Mr Staas was of the opinion that the building "maintains substantially the same relationship with the adjoining house created by setbacks and the provision of articulated balcony areas", and
Views of the heritage item are limited by its own design and siting and the principal views are confined to the view up the central driveway o that site. It is not possible to appreciate any of the significant design character of the heritage item from the east where views of the proposed development are most visible from the public domain. Potential exists in these views for appropriate landscaping to be introduced along the common boundary to further separate the properties visually.
The contention is that the principal impact is to views from the west to the heritage item. In these views the large native tree within the heritage site acts to filter views of the north west balconies of the proposed development in any public views.
...
In oral evidence both experts identified the relevant modifications to the building in terms of impact on the heritage item. For Mr Fletcher, it is the location of the garage 7m beyond the front setback of the building and the fact that the building at its upper levels has no receding of planes one above the other so it presents a single monolithic front. For Mr Staas, it is the increase in height and in the relative height of the building in relation to the heritage item; the setback of the western boundary; the actual balcony as opposed to that approved; the impacts of relocation of the garage; loss of articulation across the front; and loss of the front fence.
The balcony on the upper (bedroom) level of the building on the western side of the building closest to No 11 has been reduced in depth from that approved in the development consent. It was common ground between the experts that that change to the balcony at the upper level is an improvement on the original consent in terms of its impact on the setting of the heritage item. In terms of the views of the heritage item, it was common ground that the principal view of the heritage item is when standing at the central driveway up that site, and that from the west of the heritage item, the views of the heritage item are oblique filtered views through the trees at the eastern boundary of No 11. Mr Fletcher agreed in cross examination that the heritage significance of No 11 is not materially affected in terms of its description in the Statement of Significance from the perspective of a person standing in front of No 11 and looking towards the site (photo 2, p 6 exhibit 5).
While it is correct that No 11 Olola Avenue was not listed as a heritage item at the time of the original development consent, its listing since that date requires consideration of the likely effect of the development as now proposed on its heritage significance. That consideration is required by cl 27 of the LEP, and does not constitute a reading down of the beneficial and facultative modification power so as not to be available where there has been a change in the relevant planning law following the grant of the consent in respect of which some modification is sought (see Houlton v Woollahra Municipal Council (1997) 95 LGERA 21).
I accept the agreed evidence of the heritage experts that landscaping on the boundary of the site could assist in returning some of the sense of enclosure for the heritage item when viewed from the east. I also accept the agreed evidence that in terms of its identification in the Statement of Significance, the modifications do not materially affect the heritage significance of No 11 when viewed from the perspective of a person standing in front of No 11. Having regard to those factors, I agree with the Council that the impact of the development as modified on the heritage significance of No 11 is not so substantial as to warrant refusal of the modification application; rather, consideration of that impact warrants approval of that part of the modification that has reduced the balcony on upper levels of the western side of the building, and approval of the proposed landscaping as now agreed in the amended landscape plan (drawing A.07 rev 9).
Height, bulk, scale and presentation of the building
The DCP adopts what it describes at p 3 as a "performance approach" to direct the design of housing development, which "allows flexibility for innovation and expression in building design while at the same time ensuring developments meet important neighbourhood character and site planning objectives". The precinct controls and general controls provide objectives that describe outcomes that proposed development is required to achieve, and performance criteria describing specific ways in which the objectives can be met (DCP pp6-7). While not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373.
The Streetscape objectives in Part 5.1 of the DCP are set out in paragraph [21] above, and include O5.1.1 "to achieve housing forms of a scale and character in keeping with the desired future character for the locality". The statement of precinct character for the Vaucluse West Precinct in the DCP refers to development that "respects and enhances the existing elements of the local neighbourhood character".
The planners were in general agreement that the reference to "scale" means "apparent size", in the sense identified in Veloshin v Randwick Council [2007] NSWLEC 428 at [29]. In Mr Fotis' opinion the numerical controls give guidance as to what is excessive bulk and scale. In Mr Karavanas' opinion scale is the apparent perception of size in the immediate surrounding of the street.
It was apparent on the view, and confirmed in the photographs provided by Mr Karavanas in Annexure C to the planners' joint report, that the part of Olola Avenue in which the site is located comprises a range of residential development, including some three storey dwellings, and some with garages located at the street frontage. There is a mix of architectural styles, and some of the more contemporary developments have garages forward of the building line.
The statement of precinct character in the DCP relevantly includes "the curvilinear street pattern". While that part of Olola Avenue in which the site is located is not as curved as other streets in the area such as Wentworth Avenue, it is not straight, and curves at No 13. That was accepted by Mr Karavanas, who noted that there is a curve along the road, but not at that part of the street. Mr Karavanas agreed that the design of the building as approved followed the street setback.
The original development consent, which approved a development of three storeys, departed from the maximum of two storeys specified in C4.13.5.3, and the development as modified does not increase that. However, based on the view, I agree with Mr Fotis that the relocation of the garage some 7m forward of the building line means that the building now presents at street level as three levels plus garage, especially on the eastern side. I accept Mr Karavanas' evidence that in some respects the building is not unlike the new development at No 17 Olola Avenue, however I also agree with Mr Fotis that that building is more articulated and has differentiation in glazing.
The development as approved in the original consent exceeded the FSR specified in C5.2.9 of the DCP of 0.55:1, at 0.75:1, and the development as modified increases that exceedance. Mr Karavanas (Annexure C to the planners' joint report) calculated the increase in gross floor area (GFA) as being from approximately 542 sqm to 745 sqm. Whether or not the resulting FSR is 0.89:1 (Mr Fotis' calculations) or 0.86:1 (Mr Karavanas' calculations), I accept the evidence of Mr Karavanas, which was not disputed by Mr Fotis, that a significant part of the increase in GFA resulting in the exceedance of FSR is located at the lower levels of the building. I accept that this is unlikely to have an adverse amenity or streetscape impact. However, to the extent that the increase in FSR is attributable to the increase in the building and balconies at the two upper levels, it contributes to the increased bulk and scale of the building when viewed from the street.
Mr Karavanas agreed that the original design of the building had the bulk on the western rather than the eastern side of the building. Based on the view, the modifications to the upper levels, in particular the extension forward of the bedroom level on the eastern side, and the consequential changes to the balconies, means that there is now a uniformity across the site. All of the balconies have been squared off, and the upper (bedroom) level has been extended forward. In Mr Karavanas' opinion, articulation is still achieved in the development as modified by stepping the bedroom level behind the living room level balconies. While it may be accepted that the building itself retains some articulation, the balconies and the roof do not, and the stepping referred to by Mr Karavanas is not apparent from the street. The modification to the balconies does not meet the numerical requirements of C4.13.5.7, which provides for a maximum unarticulated length to the street frontage of 6.0m. The development as modified is now 14.8m long, in comparison with the approved 8.4m. When viewed from the street, the forward extension of the bedroom and living room level at the eastern side of the building and the continuation of the balconies across the building result in an unarticulated, and dominant, front elevation.
The forward extension of the bedroom level and to a lesser extent that of the living room level also has impacts on privacy for No 13 Olola Avenue. Mr Karavanas agreed that the adjoining house at No 13, including a bedroom, can now be seen from the bedroom and living room levels, and he accepted that this would not occur with the original approved plans. While it is a bedroom, in his opinion visibility is filtered through the landscaping, and there is a 10m separation. I accept that some screening to mitigate this privacy impact is possible, and agree with Mr Fotis that an opaque glass screen might minimise additional bulk. The planners agreed that the original design with the planter was a good solution. The parties have agreed on a condition requiring 1.7m high translucent privacy screens on the bedroom and living room levels.
Having regard to the lack of articulation, the increased FSR and bulk, and the privacy impacts of the extension of the upper bedroom level, I am not persuaded that that part of the modification application relating to the balcony on that level should be approved. It would be appropriate to delete all that part of the front balcony and planter area shown heavier pink on drawing A.05 (rev 10), and reduce the height of the walls forward of the northern wall of the master bedroom to a maximum height of 1m above balcony level. The roof should be stepped back consistent with the reduction in the balcony, and would require a column for support.
The relocation of the garage forward of the building has increased the FSR, and reduced the setback on the eastern boundary to 1.8m, rather than the 2.5m sought by the DCP. The garage is now located forward of the 10m building line. Clause C4.13.4 of the DCP provides that garages are to be designed and located "so as not to dominate the streetscape", and that other than for specified circumstances, garages are to be provided behind the building line. Circumstances in which a garage may be permitted forward of the building line are C4.13.4(C) "where the gradient on the higher side of the street measured to a distance of 7 metres from the street frontage is greater than 1 in 3 (as measured from footpath level), and where there is minimal detrimental impact upon the streetscape". In those circumstances, a single storey structure may be permitted, limited "to a maximum width of 6 metres and a maximum height of 2.5 metres from footpath level".
Mr Karavanas agreed that the originally approved driveway grade was similar to that of No 11 Olola Avenue, and was achievable. While there are, as accepted by Mr Fotis and confirmed on the view, other garages located forward of the building line in Olola Ave, including some contemporary buildings, there was no evidence provided as to whether any approved under the present controls in the DCP are on sites sufficiently steep to fall within C4.13.4(C). In the absence of evidence as to topography of comparable locations, and in the context where it was accepted that the driveway grade as originally approved was achievable, I am not persuaded that it is appropriate to depart from the performance criteria provided in the DCP. Mr Karavanas was of the opinion that the relocation of the garage breaks up the perceived bulk and scale of the building from the street by stepping it back, which is characteristic of other development in the locality. I prefer the evidence of Mr Fotis, which was consistent with the view, that the location of the garage as modified, being significantly forward of the building line of both 11 and 13 Olola Ave, contributes to the bulk and scale of the building when viewed from the street. Further, even if, as Mr Fotis accepted, the relocated garage may fall within the circumstances identified in C4.13.4, it exceeds the 2.5m height specified in C4.13.4(C).
The agreement of Bocce to new condition A.9(k), requiring that the roof of the garage not be trafficable, addresses some of the concerns raised by the owners of 13 Olola Ave for visual and acoustic privacy. However, in the absence of justification for departure from the provisions of the DCP, the contribution of the relocated garage to bulk and scale of the building and consequent adverse impact on the streetscape mean that that part of the modification application seeking approval for relocation of the approved garage 7m to the north including reconfiguration and change of level should not be approved.
The Council submitted that the height of the garage roof should be reduced to ameliorate the impact of the relocation of the garage. There was some discussion between Mr Fotis and Mr Karavanas as to whether the garage could be reduced in height or depth, however while Mr Karavanas agreed that any reduction in height of the garage roof could assist in reducing perceived bulk, he considered that the requirement for adequate headroom and length in the garage, and the need to retain the internal steps up to the house, would limit any possible reduction in height or depth of the garage. Based on Mr Karavanas' evidence it would seem unlikely that any reduction in height or depth sufficient to address the impacts on streetscape of the relocated garage would be feasible or practicable. In those circumstances, and given that the circumstances specified in C4.13.4 of the DCP are not met, and given the impacts on the streetscape resulting from the bulk and location of the garage, I am not persuaded that that part of the modification application relating to relocation of the garage should be approved. That would have the consequence that the garage is incorporated within the building envelope as originally approved, and the further consequence that the proposed art studio on the basement level should not be approved. In fairness to Bocce, however, which submitted that it should have the opportunity to consider whether the garage roof could be lowered if that were the outcome, it is appropriate to provide an opportunity for Bocce to consider whether it would be feasible to reduce the height and length of the garage so as to overcome the adverse impact on streetscape.
The Council's bundle of documents (exhibit 1, tab 5) includes an email sent by Mr Fletcher to Mr Fotis on 16 July 2013, in which he states:
By exceeding the Court's setbacks, the front façade of the house is monolithic and overpowering, rather than receding successively from the ground floor to the upper floors and being sympathetic fo its neighbours. The house now lacks the ability to contribute positively to the character and setting of Olola Avenue. It also has a negative effect on the setting of the heritage item and its heritage significance. In a perverse way, the bulk and scale of the house at No 12 Olola Avenue reinforces the design quality and skill that went into the Seidler-designed house at No 11 Olola Avenue.
Bocce relied on the final sentence of this correspondence to support its submission that the evidence of Mr Karavanas concerning the increase in GFA should be accepted (written submissions, para [68]). I do not read this passage as an endorsement of the bulk and scale of the development as modified, but rather as a statement of the need to consider the proposed development in its context, in this case the immediate surroundings of the developments on both sides.
When considered against the objectives of the Part 5 General Controls, including achieving housing forms of a scale and character in keeping with the desired future character of the locality, and the Vaucluse West Precinct character in C4.13.1, I am not persuaded that the departures from the numerical requirements of C4.13.5.7 relating to building articulation, C4.13.4 location of the garage, C4.13.3 side boundary setback, and C5.2.2 front setbacks, are justified. The building as modified, in particular through its lack of articulation across the site and the location of the garage forward of the building line, does not reflect the curve of Olola Avenue and is of a scale that dominates the streetscape, particularly in the immediate context of the buildings at 11 and 13 Olola Avenue which are both well set back from the street, and to that extent is not consistent with objective (a) of the Residential "A" zone in the LEP, which is to "maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses".
Conclusion
I am not satisfied that the modifications relating to the location of the garage, and the building articulation and front balconies, should be approved. Those modifications, and the resulting bulk and scale and presentation of the building, are not consistent with objective 2(2)(k)(iii) of the LEP, the objectives of the precinct controls and general controls in DCP, and the DCP performance criteria describing ways in which those objectives can be met. The departures from the applicable performance criteria result in a development that is not consistent with objective (a) of Residential A zone; and consistency with the LEP and zone objectives is a requirement under cl 8(5) of the LEP before any modifications can be approved.
Consideration needs to be given, as discussed in [57] above, to whether reduction in height or depth of the garage is feasible or whether that part of the modification application seeking approval for its relocation forward of the building should be refused. The plan relating to the upper level on the eastern side needs to be amended as outlined in paragraph [53].
The development as modified is within the 9.5m height limit required under cl 12 of the LEP, and in my view the increased height across all levels of the building does not of itself contribute significantly to the adverse impacts on streetscape. The Council raised no issue as to the modifications to the rear balconies, and I agree that that part of the modification application can be approved.
The planners agreed that there is no issue in respect of excavation. Mr Fotis agreed that the modification reduced the amount of excavation at the rear of the building, however in his opinion the relocation of the garage increases excavation. The planners agreed on a redesign of the entry stairs and landscaping at the front of the dwelling (drawing A.07 rev 9, 8 August 2013). The design of the entry into the dwelling and the front landscaping depend on the location and design of the garage, and further amendments will need to be made to this plan.
I will make directions in consultation with the parties to provide an opportunity for Bocce to consider its position in relation to the location of the garage, and to make any consequential changes required to the basement level, entry stairs, and front landscaping; and to make the changes to the plans for the upper bedroom level. Directions will also be made for further progress in the Building Certificate Appeal.
Linda Pearson
Commissioner of the Court
Decision last updated: 10 September 2013
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