Brittain v Waverley Council

[2010] NSWLEC 1077

Land and Environment Court

of New South Wales

CITATION:	Brittain v Waverley Council [2010] NSWLEC 1077
PARTIES:	APPLICANT Sue Brittain RESPONDENT Waverley Council
FILE NUMBER(S):	10982 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of all existing structures and the construction of an attached dual occupancy dwelling with strata subdivision - floor space ratio - bulk - overshadowing - tree loss - whether proposal has appearance of a single dwelling
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006
DATES OF HEARING:	31 March 2010
EX TEMPORE JUDGMENT DATE:	31 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers RESPONDENT Ms C Morton, solicitor SOLICITORS Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

31 March 2010

10982 of 2009 Sue Brittain v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of Development Application No. 146/2009 for the demolition of all existing structures and the construction of an attached dual occupancy dwelling with strata subdivision at 49 Gardyne Street, Bronte (the site).

2 The contentions identified by the council relate to the bulk and scale of the proposed development through the exceedance of the floor space ratio (FSR) requirements, the unacceptable impact on the character of the area, the impacts of the proposed vertical car stacker and the public interest. Additional matters raised the hearing relate to the loss of an existing tree, overshadowing and whether the proposed development would have the appearance of a single dwelling from the street.

3 The matter was originally to be heard as a Court hearing however the parties agreed that given the limited number of contentions, the matter could be heard as an On Site hearing. The judgement reflects the matters contained within the Statement of Facts and Contentions, tendered documents and the reasons given on-site for the approval of the proposed development.

The site

4 The site is Lot 26 in DP 9777743. It is irregular in shape with a 4 m wide access handle to St Thomas Street. The site has a splayed frontage of 17.2 m to Gardyne Street and a depth varying between 31.1 m on the southern boundary to 49 m on the northern boundary. The total site area is 491 sq m.

5 The site is occupied by a single storey Californian-style bungalow cottage. The surrounding area comprises predominantly residential development of one and two-storey construction with older style dwellings, some with major alterations and additions and new dwellings. The dwellings reflect the relatively steep topography of the area.

Relevant planning requirements

6 The site is zoned Residential 2(a) - Low Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed development is permissible with consent within this zone. Clause 10(2) provides that consent shall not be granted unless the consent authority is satisfied that the development meets one or more of the objectives of the zone. The council raised no issue with satisfaction with this requirement.

7 Waverley Development Control Plan 2006, Part D1 - Dwelling House and Dual Occupancy Development–(Amendment No. 4) (the DCP) applies. Clause 4 addresses the Bronte Residential Character Study. The site falls within the Bronte Terraces Precinct. Section 4.4 provides objectives for this precinct and relevantly objectives for landscaping. These objectives include "minimising the loss of sloping landscaping, exposed bedrock, sandstone retaining walls and important remnant mature landscape species".

8 Control 5.1.2a provides for a height of 7.5 m for a flat roof construction. The proposed development has a maximum height of 7.8 m at part of the northern elevation with the remainder of the building satisfying the 7.5 m requirement. Control 5.1.3a requires a FSR of 0.55:1. The proposed development does not satisfy this requirement having an FSR 0.72:1.

9 Clause 5.2 provides objectives relating to the size and bulk of dual occupancy development. The objectives are:

( a) To ensure that new dwellings and alterations and additions to existing dwellings are of an acceptable size and bulk in relation to the size and shape of the allotment;
(b) To ensure there is no overdevelopment of sites;
(c) To ensure that any negative impacts on residents living in buildings on adjoining or nearby allotments are minimised and wherever possible, it eliminated;
(d) To ensure that dwelling houses and dual occupancy development adds to and does not detract from the existing streetscape and character of the area; and
(e) To ensure that the bulk of dwellings is in character with surrounding development.

10 Control 5.4.2a requires that:

Attached dual occupancy developments have the appearance from the street of a single dwelling.
The evidence

11 Mr Kerry Nash provided evidence for the council and Mr Anthony Betros provided evidence for the applicant. Their evidence can be grouped into the following main areas:

Floor space ratio /bulk /overshadowing

12 Mr Nash accepts that strict compliance with 0.55:1 FSR requirement is unreasonable given the form of surrounding development. He states that greater compliance with the FSR requirement could be achieved by two changes to the proposed development. Firstly, reducing the building in height. In his assessment, the building could be reduced in height by around 600 mm. This would necessitate a step in the floor level at the rear of one of the dwellings but would improve the appearance from street. Secondly, increasing the setbacks on the southern side of the proposed building to increase the solar access to the adjoining development at 2A St Thomas Street. Mr Nash states that the 1.9 m setback on part of the southern elevation should be extended for the full length of the dwelling where the setback is 900 mm. This has the effect of reducing the floor area (with a consequent reduction in the FSR) and increasing the solar access to the adjoining property.

13 Mr Betros states that the changes suggested by Mr Nash are unnecessary. First, the 7.8 m height of the proposed development satisfies the council's requirements with the exception of a small area on the northern side of the proposed dwellings. The height and FSR are similar to existing developments or developments recently approved by the council. He identifies the following nearby sites to support his position:

45 Gardyne Street (a height of 9.45 m and an FSR of 0.65:1),
47 Gardyne Street (a height of 8.5 m and an FSR of 0.72:1),
55 Gardyne Street (a height of 9.45 m and an FSR of 0.65:1),
13 St Thomas Street (a height of 7.5 m and an FSR of 1.38:1), and
455b Bronte Road (a height of 9.8 m and an FSR of 0.82:1).

14 The proposed height of 48.850 m AHD is also consistent with both adjoining properties with 47 Gardyne Street, to the north, having a height of 48.390 m AHD and 2A St Thomas Street, to the south, having a height around 48.9 m AHD.

15 Second, Mr Betros states that the proposal satisfies the council requirement for a 900 mm side setback. Also, the small breach of the height requirement is on the northern side of the building has no impact on overshadowing to the south. The increased setback suggested by Mr Nash would achieve no appreciable benefit for the adjoining property, and in any event, the owner of this property did not object to the proposed development.

16 On this issue, I agree with conclusions of Mr Betros. I am satisfied that the proposed development will sit comfortably in the streetscape and be consistent in height and form with recent development in the area when viewed from Gardyne Street. I see no reason to impose a reduction in height of the building given the consistency with adjoining developments and substantial compliance with the height requirement. Similarly, I see no reason to impose a increase in the side setback on the basis of improving overshadowing given the compliance with the councils side setback and building height requirements at this location and the minimal, if any, increase in solar access to the adjoining property brought about by the increased setbacks.

17 For these reasons, I find that there are no inconsistencies with the cl 5.2 objectives relating to the size and bulk of dual occupancy development.

Tree loss

18 An Araucaria columellaris (Cook Island Pine) is located approximately 6 m from the street frontage and directly adjoining the northern boundary. It is approximately 6 m in height and appears to be in good health apart from a significant bow in the trunk that sees the majority of a canopy overhanging the adjoining property to the north.

19 Mr Nash advocates the retention of the tree and to ensure its longevity he states that the proposed building adjoining the tree needs to be redesigned to provide a Tree Protection Zone. Mr Nash states that a minor redesign of the building near the tree could also reduce the amount of floor area and consequently reduce the exceedance of the FSR requirement and also improve the presentation from the street by having the appearance from the street of a single dwelling, in accordance with Control 5.4.2a

20 Mr Betros opposes the retention of tree on the basis that at least 90% of the tree overhangs the adjoining property and as the tree continues to grow it will create ongoing problems for the adjoining property. In his opinion, there is sufficient area within the front setback area to locate a replacement tree and at the same time maintain the important views to the north-east.

21 In the absence of any expert arborial evidence, I agree with Mr Betros. The tree has a significant lean over the adjoining property and in the medium-term this is likely to be exacerbated. There must also be some doubt over the long-term stability of the tree given the significant bow in the trunk and the proximity to the proposed dwelling on the site and the building on the adjoining property. In my view, the better long-term solution would be the removal of the tree and the amendment of the landscaping plans to provide a replacement tree within the front setback area.

The appearance of a single dwelling

22 Control 5.4.2a requires that an attached dual occupancy should have the appearance from the street of a single dwelling. Mr Nash was of the view that this requirement was not satisfied largely because the entrances to each of the dwellings were visible from Gardyne Street. This was not a conclusion accepted by Mr Betros.

23 On this issue, I agree with Mr Betros. While the entrances to the two dwellings can be viewed from Gardyne Street, I am satisfied that their locations are sufficiently separate and in different locations at their respective dwellings that it is not instantly discernible that the proposed building is a dual occupancy. When combined with the articulation of the building, the varied setbacks and the retention of the sandstone plinth, I am satisfied that the dual occupancy will have the appearance from the street of a single dwelling.

Car stacker

24 No acoustic evidence was provided on the car stacker however I accept that any noise issues are appropriately addressed through the council’s condition that requires any use and noise emanating from the car stacker system shall be in accordance with the requirements of the Building Code of Australia & relevant Australian standards. A test for noise attenuation to classify the performance on the National Star Rating table by an Australian Association Acoustic Consultant is also required.

Orders

25 The Orders of the Court are:

1. The appeal is upheld.
2. Development Application No. 146/2009 for the demolition of all existing structures and the construction of an attached dual occupancy with strata subdivision at 49 Gardyne Street, Bronte approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.
_____________
G T Brown
Commissioner of the Court