Bowden T v Willoughby City Council

[2004] NSWLEC 180

Land and Environment Court

of New South Wales

CITATION:	Bowden T v Willoughby City Council [2004] NSWLEC 180
PARTIES:	APPLICANT T Bowden RESPONDENT Willoughby City Council
FILE NUMBER(S):	11207 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Building Approval :- first floor extensions to existing house view corridor between houses from the public domain height of TV aerial colour of roof deferred commencement condition.
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	29/01/04
EX TEMPORE JUDGMENT DATE :	01/29/2004
LEGAL REPRESENTATIVES:	APPLICANT (Self Represented) Mr T Bowden, architect RESPONDENT Ms E Duenow, solicitor SOLICITOR Mallesons Stephen Jaques

JUDGMENT:

1

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11207 of 2003 C Hoffman 29 January 2004

T Bowden
Applicant

v Willoughby City Council
Respondent

Judgment

1 . This is a class 1 appeal No. 11207/03 between Thomas Bowden and Willoughby City Council in regard to conditions of consent granted by the council on 13 November 2003 for the first floor extension to an existing house at No. 1 Cheyne Walk, Castlecrag.

2 . Whilst there were a number of conditions objected to, most of them, by the time of the on-sight hearing, had been resolved.

3 . The principle dispute was deferred commencement condition No. 1 that required inter alia that the north wall of the kitchen of the new upper storey be set back 3 m from the existing north wall below it. The reason for this was to provide a view corridor to Middle Harbour from Linden Way, the street at the rear of No. 1 Cheyne Walk.

4 . The land was zoned Residential 2(A2) under the Willoughby Local Environmental Plan 1995 and was Foreshore Protection Area under Sydney Regional Environmental Plan No. 23.

5 . The site was steeply sloping down from Linden Way to Cheyne Walk. There was a row of houses below Cheyne Walk that fronted the water. The subject house was on the high side of the street.

6 . The house on the north of the subject property was No. 6 Linden Way on the corner of Cheyne and Linden. It was a three-storey house above a retaining wall on the Cheyne Walk side.

7 . As Linden Way rose behind the two houses, a pedestrian could glimpse down the side of No. 6 between it and the subject house to see the water quite close to the shore. As Linden Way rose higher a wider view occurred, such that at the upper southern corner of the subject property, a full view over Middle Harbour was seen by pedestrians or people in vehicles. This latter view would remain for about half the length of the Linden Way street boundary of the subject lot even with the proposed extra storey.

8 . It was the first glimpse of the water from Linden way that would be affected at the northern end of the site. One could see at the present across the whole roof of the existing subject house to the water but only in a restricted direction due to the proximity of No. 6 to its southern side boundary.

9 . The council in Development Control Plan No. 16 required houses to have 1.5 m side setback in theory to give a 3 m gap between buildings. The council tendered issues in Exhibit 5 that largely related to this view corridor. The issues were as follows:

1 Whether the proposed development ought to be approved in circumstances where development in height of more than 2 storeys is not permitted within the 2(a2) Scenic Protection zone (the “zone” ).
Particulars
a) Clause 18(a) of Willoughby Local Environmental Plan 1995 ( “WLEP”)
b) Clause 4.5 of Developmental Control Plan No. 16-Dwelling Houses, Dual Occupancy and Boarding Houses in Residential zones ( “DCP No. 16”)
2 Whether the objection made under State Environmental Planning Policy No. 1( “SEPP1”) ought to be upheld.
3 Whether the proposed development meets the aims and objectives of the WLEP.
Particulars
a) Clause 2(b), (c), (d) and (e) of the WLEP
4 Whether the proposed development meets the general objectives of the zone.
Particulars
a) Clause 14A(b) and (c) of WLEP
5 Whether the proposed development meets the specific objectives of the zone.
Particulars
a) Clause 14C(1) of WLEP
6 Whether the proposed development retains and enhances the desired future character of Castlecrag.
Particulars
a) Clause 2.2.2(1,2,3,4,11) of DCO No. 16
7 Whether the proposed development satisfies the special controls contained in the DCP No. 16.
Particulars

a) Section 3, 1 (Intent) of DCP No. 16;
b) Section 3 clause 3.1 A (ii) and (v)(Performance Criteria) of DCP No. 16.
8 Whether the proposed development ought to be approved having regard to its bulk and scale.
9 Whether the proposed development ought to be approved having regard to the objector’s concerns.
10 Whether the proposed development is in the public interest.

10 . The council’s evidence was the building was three-storey because the ceiling of the lower garage and entry level projected more than 1 m above the natural ground level of the site.

11 . Under the Local Environmental Plan the natural ground level was the natural ground formed before any development and that included excavation and in the applicant’s evidence before road construction adjacent the site.

12 . The Court heard evidence from Dr L P De Ambrosis, a geotechnical expert for the applicant. The applicant had prepared a cross-section of the site at the critical point being the projection from Linden Way to Cheyne Walk of the line of the north-west side of the house. On this, Mr Milner had shown the natural ground line that he had estimated.

13 . Dr De Ambrosis had assessed the survey on site and found points of correlation with the natural ground as far as it could be established due to earlier excavation to construct the two roads and original excavation to construct the existing house on No. 1 Cheyne Walk.

14 . The Court was satisfied with his evidence that the line drawn from the centre line of Cheyne Walk to the centre line of Linden Way was the most likely natural ground line of the land before development.

15 . That being the case, the proposed house was two-storey, not three-storey, as the garage ceiling is then less than 1 m above natural ground. Even if the Court is wrong in that, the area of the garage that may be just above that level is entirely below the balcony or loggia on the upper floor. And since they are not internal rooms with ceilings, the building is still only two-storey. Therefore, a State Environmental Planning Policy No. 1 objection to the height limit is not required.

16 . In regard to the view corridor, a Mr Czeref, planning expert for the council wanted the upper storey to be setback 1.5 m from the north-west façade.

17 . The Court has concluded as follows:

18 . The purpose of the setback, in summary, is to preserve views to the waterway for persons in the public domain, and to give separation between houses to preserve the scenic values of the area and the streetscape. The numeric control seeks to have houses set 1.5 m off the side boundary on at least one side. The existing house is actually 2.2 m setback on one side and 1.6 m on the other. It already complies numerically.

19 . The argument that the control leads to a 3 m gap between houses for view corridors to the water is not the result of the literal meaning of a control of 1.5 m side setback on at least one side.

20 . The council’s motivation in this case comes from No. 6 Linden Way being built right to the boundary at the street frontage on Linden Way, and only 1 m off the boundary for its lower two floors adjoining No. 1 Cheyne Walk. The third storey of No. 6 actually overhangs the lower two floors by about 600 mm at one point as seen on the view. The council therefore, seeks No. 1 to have the extra setback to compensate for a past approval of No. 6 at 3 storeys high, and the upper storey being only 400mm setback.

21 . The Court through the evidence and submissions must ask the question: is the gain of views to the public domain of any great benefit when one considers:

1. There is a wide view clear above the roof of the proposal to the water for about half the length of the Linden Way boundary of No. 1. Passers-by seeing that, can maintain ample access to the scenery even with the proposal as put by the applicant. A string line was erected to show the Court the maximum height of the roof and its position in the proposal, so this conclusion could be verified.
2. Linden Way has no footpath on the side of the road adjoining No. 6 Linden Way boundary, so pedestrians are not encouraged to walk there. If they do, walking uphill they cannot observe the view corridor between No. 1 and No. 6 until they come past the garage built on the street boundary of No. 6 and actually look across No. 1 Cheyne Walk. At that point the view corridor as proposed by the applicant gives about the same view width sought by Mr Czeref as shown in exhibit 8 as annotated by the applicant. As persons continue walking uphill the view corridor is more quickly cut off by the applicant’s proposal than Mr Czeref’s. But that is due to the proximity of No. 6 to its boundary, and in any case the observer’s attention is quickly overtaken by the wide view being revealed above the roof of the proposal as one progresses uphill.
3. Coming down Linden Way the wide view above No.1 is seen first and takes one’s attention. By the time one gets to the northern boundary, one’s concentration is taken by the intersection of Cheyne Walk and Linden Way, and not by the view corridor between the two houses.
4. The view between No. 1 and 6 would be there for those who may wish to see it or look downhill over the fence of No. 1 as they pass by. But it was of minor value compared to the wide view across the roof of No 1 as a person progresses uphill on Linden Way.


22 . On another aspect, whilst it is no justification for the subject case, the observation must be made that the same situation does not occur in other recent approvals of houses by the council along the Tor Walk in the vicinity of No. 5 and 7.

23 . The Court was shown new houses where the 3 m gap was kept between houses so that the water might be seen from the footpath. However, unlike No. 1 Cheyne Walk several of these new houses had high fences and masonry garbage bin enclosures. In one case a main electrical switchboard enclosure was built at the street boundary to such a height that an ordinary person could not see over it down to the view corridor between the houses. The views from the public domain to the water were not retained in spite of the 3 m gap between houses.

24 . In terms of the supposed bulk of the proposal at No. 1 Cheyne Walk and its fit into the streetscape, it was a fact that the proposal did not exceed the maximum floor space ratio, and that is one measure of bulk.

25 . Mr Milner had carried out a survey of other houses along the street in Exhibit F. It showed that the house extensions proposed were not as high above the footpath level as most, and that it had a greater front setback and vegetation in the front yard than any of the others, and it related well to the height of its immediate neighbours. Also, it was further set back than both its immediate neighbours from the street.

26 . Exhibit E showed that a penetration of the building envelope was de minimus and should not have any bearing on the Court’s decision.

27 . An existing carpark in the front yard of the proposed house was to be removed giving a greater landscaped area in the front setback.

28 . The proposed rainwater tank was to be installed completely under the southern end of the cantilevered lower floor balcony and hidden behind vegetation.

29 . The angle at which one would have to raise one’s eyes to look at the roof of the proposal was less than to look at its neighbours so it would appear less dominant than they do. It would be a bigger house than at present but not out of scale or bulky by comparison with its neighbours.

30 . The style of the extension was in keeping with the existing house post-World War II International Style and many houses in the locality were similar, with flat roofs, and similar or larger proportions.

31 . There were only two objectors who wished to give evidence at the hearing. Ms P Slezak of 9 Linden Way was concerned only about the likely height of the television aerial above the new roof. It was stated to be no more than the height of the existing aerial above the existing roof. She said she was satisfied.

32 . Mr Cohn of 11 Linden Way said he would prefer a pale green metal roof as he looked down on it and it would match No. 6 Linden Way. The council and the applicant pressed the original condition of grey roof and the Court saw no reason to change it.

33 . The other conditions sought to be amended by the applicant were to be negotiated between the parties at the end of the hearing. No revised wording for the other conditions was tendered. So the Court makes no determination on the existing conditions.

34 . In regard to the deferred commencement condition in relation to the rainwater tank, the parties forwarded to the Court an amended version of that.

35 . Overall, the Court could not find under Sydney Regional Environmental Plan No. 23 , the Willoughby Local Environment Plan 1995 or Development Control Plan No. 16 sufficient reason to justify the council’s deferred commencement conditions and condition 1 should be deleted and condition 2 should not be a deferred commencement condition.

36 . Therefore, the orders of the Court are:
1. The appeal is upheld.

2. Development application No. DA2002/1935 issued by Willoughby City Council on 13 November 2003 is hereby amended by the deletion of the Deferred Commencement requirement and thereby delete Schedule 1 of the consent.

3. Condition 2 of Schedule 2 of the consent is amended by the insertion after the words “… demolition work.) ” the following: “The proposed rainwater tank is to be located wholly within the undercroft of the existing north east facing ground floor balcony and is to be in accordance with Willoughby City council’s Policy for Rainwater Tanks. Furthermore the proposed rainwater tank is to be in the same colour as that of the surrounding section of the dwelling and is to be adequately screened by landscaping from the street. In this regard full details are to be provided to the satisfaction of council’s Planning Section PRIOR TO THE RELEASE OF THE CONSTRUCTION CERTIFICATE.”

4. The front page of the Notice of Determination of Development consent DA2002/1935 is also amended by the deletion of the words “deferred commencement” where ever occurring. Also the following words are deleted: “… with the condition set out in Schedule 1 to the satisfaction of Council and …” Also the “Note” in bold type that refers to Schedule 1 and occurs after the General Manager’s signature is deleted.

5. The Council shall within 28 days of the date of this Judgment re-issue the Notice of Determination and Conditions as amended herein.

6. The exhibits are returned to the parties except exhibits 1, 5, 8, and exhibits A, C, E, F, G and J.

_______________________
K G Hoffman
Commissioner of the Court
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