Burley Katon Halliday Pty Ltd v Woollahra Municipal Council

[2008] NSWLEC 37

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Burley Katon Halliday Pty Ltd v Woollahra Municipal Council [2008]  NSWLEC 37

PARTIES:
APPLICANT
Burley Katon Halliday Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):
10856 of 2007

CATCHWORDS:
Development Application :- 5-storey apartment building and garage, landscape, harbour foreshore, floor space ratio, foreshore setback, street frontage, retention of natural features existing built and natural character of precinct.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Rivers and Foreshores Improvement Act 1948
Woollahra Local Environmental Plan 1995:
State Environmental Planning Policy 2004
State Environmental Planning Policy 55
State Environmental Planning Policy 65
SREP (Sydney Harbour Catchment) 2005

CASES CITED:
Stromer v Woollahra [2006] NSWLEC 121
Notaras v Waverley & Anor [2007] NSWCA 333
Winten v North Sydney [2001] NSWLEC 46

CORAM:
Hoffman C

DATES OF HEARING:
13/12/2007 and 14/12/2007

JUDGMENT DATE:
30 January 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr N. Hemmings, QC
Instructed by S. Westgarth
of Allens Arhtur Robinson

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

30 January 2008

10856 of 2007  Burley Katon Halliday Pty Ltd v Woolllahra Municipal Council

JUDGMENT

1. This is a Class 1 Appeal No. 10856 of 2007 between Burley Katon Halliday Pty Ltd and Woollahra Municipal Council in regard to the refusal of DA573/2006/1, as amended, for a 5-storey apartment building containing 4 large units and a 9-car garage at Nos 42 and 42a Wolseley Road, Point Piper.

The site

1. The subject "battle-axe" site is comprised of two separate allotments, 42 and 42A Wolseley Road Point Piper, with absolute water frontage to Sydney Harbour and a shared driveway 6.1 m wide between other properties up to the street.  It also gives access to No. 50 Wolseley Road, a 3-storey house at the end of the driveway.

1. Collectively, the site, excluding the access handle, has an area of 1,364m2, a northern side boundary 33.1 m in length, a southern side boundary 35.8 m in length, a western harbour frontage 39.2 m wide and an eastern (rear) boundary 39.4 m wide.

1. The 6.1 m wide access handle located on the western side of Wolseley Road has a length of 39.6 m.  The site falls approximately 15.4 m from the eastern (rear) boundary to the water frontage.

1. Existing on 42 Wolseley Road is a part 2-part 3-storey dwelling-house with parking provided at the upper level.

1. Existing on 42A Wolseley Road is a 3-storey building currently being used as a 2 unit residential flat building. Parking is provided within a garage at ground level.

1. No. 42A has approval DA193/2003 for a new detached dwelling of 3-storey plus a roof-top covered terrace.  In that consent part of the rockface proposed for removal in this application was approved for removal.  The height of the new house is 11.3m (control 9.5m), and has non-complying north, south and east setbacks.  The approved FSR is 1.908:1 (control 0.55:1).  The approved FSBL setback is 12.3m (control 12m) with a terrace, stairs, pool and boatshed within the FSBL having setbacks of 9.4, 6.5, 2.6 and 2.5m respectively.

The Locality

1. The site is located within the Point Piper precinct under the Woollahra Residential Development Control Plan (WRDCP 2003).  The adjoining property to the north (50 Wolseley Rd) is occupied by a 3-storey (4-level) dwelling-house.  It has pool, boathouse and ramp inside the FSBL.

1. The adjoining property to the south (38 Wolseley Rd) is presently being redeveloped by a 6-level (4-storey) residential flat building.  It is 11.4m high (control 9.5m), has a lot frontage of 3.3m (control requires 21m) and an approved FSR of 1.49:1 (control is 0.625:1) the development contains 8 x 4-bed units and 22 car spaces.

1. The adjoining properties to the east (40, 44, 46 and 48 Wolseley Rd) are occupied by 3-4 storey residential flat buildings.

The proposal

1. The proposal involves the demolition of the existing dwelling-house & residential apartment building (2 units) and the construction of a 5-storey residential flat building containing 4 units distributed over the 4 lower storeys and 9 off-street car parking spaces, including 1 visitor space, occupying the top storey.

1. The ground and 1st floor levels contain a 1 x 5 bedroom unit and a 1 x 4 bedroom unit each split over the 2 levels.  The 2nd floor level contains a 1 x 5 bedroom unit and the 3rd floor level contains a 1 x 5 bedroom unit.

1. The proposed residential flat building has a flat roof, there is a central indentation to the western (harbour) elevation breaking the building into 2 distinct modules and a combination of copper, stone, glass and cement render external materials.

Applicable legislation

Statutory

SEPP 2004 (Building Sustainability Index: BASIX)

SEPP 55-Remediation of Land
SEPP 65 Design Quality of Residential Flat Development-Clauses 9-18 and the considerations contained in the publication "Residential Flat Design Code".
SREP (Sydney Harbour Catchment) 2005-Clauses 13 (f) and 25 (b)
Woollahra LEP 1995:
Clause 8 Development control tables
Clause 10B (site area and frontage standards for residential flat buildings) Clause 11 (floor space ratio-0.625:1)
Clause 12 (height-9.5 m)
Clause 18 (excavation)
Clause 19 HFSPA
Clause 22 (30 m foreshore building line)
Clause 25 (water, wastewater and stormwater)

Policy
Woollahra RDCP 2003-Point Piper Precinct performance criteria, Part 5 General Controls
Woollahra Access DCP
DCP for Advertising and Application of Development Applications and Applications to Modify Development Consents

The Contentions

1. The original application was for 5 units and 11 car spaces in a larger building with 5 habitable storeys.  The council deferred consideration of that proposal and raised a number of concerns with the applicant who amended the plans to the current proposal inter alia with 4 habitable storeys, and larger setbacks, smaller FSR, retention of more of the natural rock outcrops, reduced excavation and elimination of large cantilevered   balconies at the bottom level together with camouflaging the lower level with natural rock facings.  The council considered the amended application, but still refused it, and put the following contentions:

   1.Due to the excessive floor space ratio, excessive number of storeys and the proposed removal of the majority of the 2 main natural rock features, the proposal would result in significant adverse visual impacts upon Sydney Harbour and adjacent foreshore areas. In this regard, the proposal is unsatisfactory with the following planning provisions:

   clauses 9, 10, 11, 12 and 14 of SEPP 65-Design Quality of Residential Flat Development and parts 1 and 2 of the Residential Flat Design Code
   clauses 13 (f) and 25 (b) of SREP (Sydney Harbour Catchment) 2005
   Objectives 2 (a) (ii), (f) (i) & (iii), (h) (ii) & (vi), (I) (ii), and (e) of the Residential 2 (b) zone under Woollahra LEP 1995
   clause 11 AA (b) & (d) of Woollahra LEP 1995
   clause 19 (2) of Woollahra LEP 1995
   objective O 4.5.3 and performance criteria C 4.5.7.2 & C 4.5.7.9 of Woollahra RDCP 2003
   objective 5.11.1 and performance criterion C 5.11.3 of Woollahra RDCP 2003

   2.The proposal involves excessive excavation. In this regard, the proposal is unsatisfactory with the following planning provisions:

   objectives 2 (h) (ii), (I) (i) & (iv) under Woollahra LEP 1995
   clause 18 (a), (c) & (e) of Woollahra LEP 1995
   clause 19 (2) of Woollahra LEP 1995
   objective O 4.5.3 and performance criterion & C 4.5.7.9 of Woollahra RDCP 2003
   objective O 5.2.4 and performance criterion 5.2.15 of Woollahra RDCP 2003
   performance criteria C 5.11.1 & C 5.11.21 of Woollahra RDCP 2003

   3.The landscape plan and construction impact assessment and management plan submitted with the proposal does not satisfactorily address impacts upon the existing significant Ficus specimen located at the south-western section of the site, the existing significant Brush Box located adjacent to the southern boundary of 44 Wolseley Road and the existing significant Brush Box street tree.

Statutory compliance table

Site Area: 1364 m2	Original proposal	Amended proposal	Control	Complies
Site Area and Lot Frontage	1364 m2 6.2 m	1364 m2 6.2 m	930 m2 21 m	YES NO
Overall Height	10.04 m	9.1 m	9.5 m	YES
Floor Space Ratio	1.36:1 (1849.1 m2)	1.26:1 (1722.2 m2)	0.625:1 (852.5 m2)	NO
FSBL	8-21 m	8.8-22.2 m	30 m	NO

Policy Compliance table – Woollahra Residential Development Control Plan 2003

Site Area (1364m2)	Original proposal	Amended proposal	Control	Complies
Maximum Number of Storeys-RFB	4-5	4-5	3	NO
Building Boundary Setbacks (m)
Front (East) (Battle-axe allotment)	1.6-22.8	1.6-22.8	1.2-18.8	YES
Side (North)
Ground floor	3-5.2	3-5.2	3	YES
First floor.	3-5.4	3-5	3	YES
Second floor	3-5.4	3-5.8	3	YES
Third floor	3-5.4	3-5.8	3	YES
Fourth floor	3-7.2	4.6-9.6	3-4.65	YES
Side (South)
Ground floor	2.6-5	3-5.6	3	YES
First floor	2.6-5	3-5.2	3	YES
Second floor	2.6-5	3-5	3	YES
Third floor	2.6-5	3-5	3	YES
Fourth floor	3-6.2	7.35	3-4.5	YES
Setback from Significant Mature Trees >3m	>3m	3m	YES
Building Footprint	39% (536m2)	35% (477.4m2)	35% (477.4m2)	YES
Solar Access to Open Space of Adjacent Properties (Hrs on 21 June)	>35m2 2 hours +	>35m2 2 hours +	50% ~or 35m) for 2 hours	YES
Excavation Piling and Subsurface Wall	>1.5m	>1.5m	1.5m	YES
Setback
Deep Soil Landscaping -	44.7%	44.7%	40%	YES
RFB
>35m2 Min dimension 3m +	>35m2 Min dimension 3m +	35m2 Min dimension 3m
Private Open Space at Ground Level -	YES
Total
16m2+ Min dimension 4m+	16m2+ Min dimension 4m+	16m2 Min dimension 4mYES
Private Open Space at Ground Level -
Principal Area
Private Open Space at Ground Level - Maximum Gradient	<1 :10	<1 :10	1:10	YES

Site Area (1364m2)	Original proposal	Amended proposal	Control	Complies
>8m2 Min dimension >2m	>8m2 Min dimension >2m	8m2 Min dimension 2m
Private Open Space -	YES
Upper Floor Units in RFBs
Front Fence Height - Gate to Wolseley Road	2.1-2.5m	2.1-2.5m	1.5m	NO
Setback of Bedroom Windows from	>3m	>3m	3m	YES
Streets/Parking Areas of Other Dwellings
Location of Garages and Car Parking	Behind front	Behind front	Behind front	YES
Structures	building line	building line	building line
Car Parking Spaces - RFB	10 resident 1 visitor	8 resident 1 visitor	8 resident 1 visitor	YES
YES
Minimum Access Driveway Width	4.4	4.4	3.5-6	YES

The Evidence

1. The respondent’s evidence was heard from:

   Mr D Booth, Senior Assessments town planner for the council

2. The applicant’s evidence came from:

   Mr G Shiels, consultant urban design/town planner, surveyor.
   Prof P Webber, consultant urban design/town planner
   Ms M Blanchfield, architect of the proposal

3. I was told there are no objectors to the proposal as amended, and there are 3 letters of support from neighbours.

4. During the view of the site council’s and the applicant’s arborists showed the existing vegetation on the foreshore.  It is largely infested with weeds right down to the water, but there are a small number of trees, in particular a large fig near the southwest corner of the foreshore adjacent the new development on No. 38.  It is to be retained.  The foreshore landscape proposal was explained.  The boathouse, pool and ramp approved in DA193/2003 to be in the FSBL area are deleted in this proposal, and the applicant will accept a condition to surrender that consent if this development is approved.  

1. An existing terrace in the FSBL below the southern part of the building is to be rebuilt and kept.  A plunge pool approx. 4m x 2m is proposed above the terrace.  It is adjacent the south-west corner of the ground floor, a few steps down from the Unit 4 terrace.  It is uphill of the large fig tree to be kept.  An arborist report provides conditions for its protection as does Council’s addenda conditions in Exhibit 4.

2. Existing stairs along the northern boundary down to the water that serve uphill properties and this one are to be kept.  As well, some existing stairs giving access to the foreshore from the existing terrace are to be kept.  

1. Otherwise the FSBL is to be cleared of weeds and re-vegetated with endemic shrubs and trees.  The trees are proposed in line downhill with the side setbacks, and in line with the large recess in the proposed building that separates the two blocks.  This is in the hope they will have minimal effect on views and potentially survive to maturity.  Angophora sp are proposed as they have an open sparse canopy that tends to frame and enhance views rather than block views.

2. At the time of the Hearing, some of the existing shrubs/weeds had been cleared to allow limited access to the foreshore area, and to see the existing rockface that runs across the block generally parallel to the shore line.  This rockface has been used by the council and applicant to define the foreshore setback of the proposal.

1. The top metre or so of the rockface is intended to be excavated for the bottom floor of the development.  The building itself will be a little behind the rockface, and part of the remaining rockface is proposed to be used as the balustrade of the terraces to the bottom 2 units.  The units at the bottom level are to be clad in sandstone, and the large sliding glass doors deeply recessed about 1.5m behind thick stone piers to simulate, as far as possible, the removed section of the natural rockface.  

1. The top of this stone cladding that comes to about the floor level of the 2nd storey is said to be level with a similar stone faced terrace on the adjoining new development on No. 38.

1. Above this “podium” of stone cladding the building rises 3-storeys in two blocks of floor-to-ceiling glass doors/windows and concrete floors with circular concrete columns.  These comprise the 2nd, 3rd and 4th storeys.

1. Above the 4th storey is the 5th containing the garage.  It is setback from the harbour side of the 4th storey behind continuous landscaped planter troughs between 1m and 2m wide variable.  The walls and roof structure of the garage are copper sheathed so that it should look like a roof over the lower 4 floors.

1. The applicant said this case is unusual in the locality because the building complies with the 9.5m height limit above natural ground, has large side setbacks, and plants vegetation to soften the built form and separate adjacent buildings in the landscape.

2. The applicant says other unusual circumstance is that the issues are about the ground floor that is the least visible of the building’s façade and is largely below ground level.  The council only seeks the deletion of the ground floor, and does so on the basis of:

   The 3-storey limit
   The FSR exceedance
   The appearance from the water.

3. The appearance is the planning outcome that drives the refusal, but the applicant’s experts’ evidence is that the outcome is acceptable.    Close into the foreshore the ground floor would not be visible, and from further out on the water or from far away it will be almost indiscernible.

1. Even with the ground floor deleted the FSR will be 1:1 when the control is 0.625:1.  No. 38 approved recently by council is 1.49:1 with 6 visible levels as seen under construction from the water versus the proposal’s 4 levels.

1. To be aware of the ground floor of the proposed at Nos 42 and 42A, an observer would have to see the deeply recessed glass windows in the rock facings.  The proposal removes between 1.5 and 2m of the top edge of the rockface, leaving the majority intact.  The upper metre of the retained rockface becomes the balustrade for the ground floor terraces.  This reduces the visible façade of the ground floor by 1 metre, leaving a little less than a 2m high component to be seen.  This is camouflaged to some extent by the rock pillars between the windows and the rock facing of the 1st floor slab and parapet across the top of the ground floor windows.

2. The 1st floor parapet has behind it a planter trough the full width of the building between 0.5m and 1m wide.  The balustrade to the 1st floor balconies is behind the trough.  As a result the creeper-type vegetation in the trough is intended to grow over the stone-faced parapet and hang down towards the ground floor terraces.  This adds to the camouflage of the ground floor.

1. Part of the reason for the council refusing the proposal on the basis of its appearance from the water was the description in the council report of 2 natural rockfaces being demolished.  This was a mistaken impression partly due to the weed and shrub infestation that made it difficult to see the rockface at that time.  Mr Booth agreed in cross-examination that there is only one rockface, and that only the top edges of it are to be removed.

2. Also it should be understood that the existing development consent for the new house on No. 42A actually demolishes most of the rockface on its allotment because it is closer to the foreshore and has a swim pool at a level below the existing rockface and a boatshed.  These elements in the FSBL are eliminated by this proposal and the whole width of the foreshore across the two allotments will be restored with endemic vegetation.

1. Council’s Team Leader Urban Design report concluded that:

   Although the proposal does not comply with numeric controls, I consider that it is an appropriate development for this site.  The innovative architectural design of this proposal reduces the visual impact of its bulk and scale, so that it would be commensurate with the desired future character of the precinct.

2. Ms Zulaikha also said the proposal would achieve a markedly improved outcome than the new development on the adjacent site, No.38.  This conclusion was reached before the current amendments.

1. The applicant took the advices of Prof. Webber and Mr Shiels in making the amendments previously described.

1. Mr Shiels said part of his support for the proposal is the amendments, plus the fact that the council does not appear to have enforced the FSR limit on developments nearby in the last 10 years.  The No. 38 new development being a recent case in point.  It appears to him on this sloping site the FSR does not drive the achievement of the objectives of the applicable statutes including the Sydney Harbour SREP.  The constraints of the site and the existing context of adjoining and nearby development enable an appropriate profile and envelope to be designed.  Inside it, on this site, the 4 habitable floors and the carpark level have been designed, and can fit with acceptable impacts.

2. It was put to him it is only possible with excessive excavation.   He noted the huge excavations photographed for No. 34-38, and another development on No. 34-38’s south side being excavated right at the water level.   He noted No. 50 the relatively new house to the north of No. 42A is 3 habitable storeys above high foundations all excavated about 3-sotreys deep into the side of the hill and within the FSBL.  The proposal is much less excavation in proportion to them, he said.  And, its impact will be much less obvious being tucked behind the natural rockface, and with the ground floor clad in rock.

1. Prof Webber said he had not formed his recommendations until the existing weeds/shrubs had been cleared enough for him to see the foreshore.  The design responds to context and topographic character as well as adjoining and adjacent built environment.  He had kept more of the rockface by deleting the previous cantilevered balconies at the ground level.   It helped the building fit the foreshore.

1. It will be a better outcome than most of those in the local context.  He was aware of the non-compliances of the proposal with the Regional Plan the Local Environmental Plan and the Development Control Plan when considering his recommendations.  He said the requirement for the natural environment to be preferred over the built, in conserving the harbour foreshore, needs to be assessed on how to get the best result.   There is no room on this site, due to the small distance between the uphill boundary and the FSBL to “step the building down the slope”.  No other developments including the council approved No. 34-38 have a stepped design.  He said the amended design gets the best outcome for the foreshore, there is no need to delete the ground floor of the proposal.

1. Ms Blanchfield supplied an updated set of drawings with finished levels of the site and landscape details.  She had calculated and shown graphically the amount of the natural rockface that would be taken away.  It is 5% she said.

1. In cross-examination of Mr Booth he was asked about the council consent for No. 38.  He said he had not dealt with that DA and had never seen the plans.  He agreed from photos taken during its construction and the view of the site taken from the water that it had greater excavation than the proposal, and unlike this proposal, it appears as 6 levels, plus there is a substantial stone faced waterfront structure at the water level with a room in it.  

2. As seen at the time of the hearing nearly all of the foreshore setback was stripped back to rock.  It is assumed re-landscaping is required by the Council consent.

1. Mr Booth agreed his report to council quotes only the context component of the Urban Design report that favours the proposal but then disagrees with that opinion due to “the removal of two existing rockfaces, exceeds the number of storeys of adjoining development by one storey and involves insufficient side boundary setbacks”.  Those concerns are largely solved with the amendments or known not to be correct.

1. He agreed he had not quoted the Urban Design report as favouring the proposal on the important aspects of streetscape, foreshore conservation, FSR, building footprint site coverage, bulk reduction by breaking the building into two blocks, height and excavation as well as support for the SEPP No. 1 objections.   He said Ms Zulaikha’s report was attached to his for the council meeting.

2. On his report to the council that Stromer v Woollahra [2006] NSWLEC 121 must give determinative weight to the RDCP 2003, he said he had copied that from a previous report to save time.  He now realised it was about a previous application that has been withdrawn.  He was not sure of the legal meaning of “determinative weight” and withdrew that term.

1. He agreed that if the bottom storey is deleted to preserve all of the rockface he would support the proposal and the SEPP No. 1 objections without requiring the stepping provisions of RDCP cl. 5.4.1 for buildings on sloping sites, and would accept the FSR non-compliance.  

1. He still did not support the proposal due to his calculation that 70% of the rockface would be demolished.  Asked how he calculated that he said it was relative to the drawings of the facade of the ground floor only extended to the side boundaries, not the whole of the rockface visible from the water.   Keeping part of the rockface at and above the ground floor plane meant that only 30% of that upper part of the rockface remained.  On further examination, he agreed his calculation had been done before the Shiels/Webber amendments that kept more of the rockface as a balustrade to the ground floor terraces.

2. He did not dispute Ms Blanchfield’s calculation that only 5% of the total rockface would be removed, he had not done that calculation.

Conclusions

1. In the Stromer case, the last sentence in para 18 shows that a DCP is entitled to significant weight, but it is not necessarily determinative weight.   A more recent case Notaras Vs Waverley & Anor [2007] NSWCA 333 in para 38 shows that it is always open to a council to grant consent if the council forms the view that in a particular case a departure from a DCP is justified, even if it had not been demonstrated that the application of a particular control was unreasonable or unnecessary.  Nevertheless, in forming the view that compliance is unnecessary proper consideration must be given.

1. Part of the assessment must involve whether the future character of the precinct that might evolve out of the council’s statutes and controls is achievable.  In this case the applicant submits on the basis of the experts’ evidences that this precinct is “built out” and none, or very few buildings actually comply with the current FSR, height, and in the case of battle-axe lots…frontage.  This proposal is an infill site.

1. Mr Shiels had prepared amended SEPP No. 1 objections. The Foreshore Building Line of 30m is applicable to flats (the proposal and adjoining and adjacent developments of flats and houses comply with the 12m FSBL for houses). The Floor Space Ratio of 0.625:1 applies when the proposal is 1.26:1. The previous SEPP No. 1 objection by Mr W Long, town planner, to the minimum frontage requirement remains as tendered.

2. I note the council has not raised an issue in regard to WLEP 1995 cl 10B(2) minimum frontage requirement of the 21m standard.   The standard has its objectives in clause 10A of the WLEP:

   To achieve compatibility of scale, density, bulk and landscape character of buildings and allotment sizes
   To provide space between buildings for daylight access, deep soil landscape and to provide view corridors.
   To ensure there sufficient land for car spacing on site
   To encourage consolidation of lots to achieve these objectives.

3. The minimum lot size for units under the WLEP is 930 square metres.  The proposal has 1364 square metres exclusive of the battleaxe drive.

1. In this case the proposal will hardly be visible from the street, and people on the public footpath will be at least 6m above the roof of the proposal, with a primary view to the harbour and Double Bay occupying their attention.  The side boundary setback and vegetation proposed will separate the building from its neighbours, soften the building form and provide view corridors between buildings to the water as sought by the applicable statutes.  In this case I find compliance with cl 10B(2)(b) is unreasonable and unnecessary, and the SEPP No. 1 objection is upheld.

1. The underlying objective of the FSR standard is for a proposal to relate to its context under WLEP 1995 cl 11AA objective (d) namely surrounding built and natural environment, as viewed in the streetscape, or from the harbour or a panoramic viewing point.  I note that objective (b) is to control building density, bulk and scale to achieve the desired future character of each locality.

2. The council development committee, its Urban Designer, Prof. Webber and Mr Shiels all agree the objective of the FSR is achieved and the SEPP No. 1 should be supported.  

1. They also said that for this site and its context, the site constraints, the site coverage of the proposal and the appropriate envelope and profile are the important matters in regard to “fit” into context.  Mr Booth also agreed with that in oral evidence.

1. The NSW Maritime has been consulted and has indicated conditions of any Part 3A permit under the Rivers and Foreshores Improvement Act 1948.  No issue arises in that regard.

1. An interesting aspect of the respondent’s case is that it does not object to the foreshore setback or the overall height, width or depth of the proposed building.  It is the bottom floor that it says should be removed without lowering or otherwise changing or relocating the building.  The objective of this change is primarily to preserve all of the rockface as seen from the harbour.  A secondary consequence of the removal of the bottom floor is a reduced FSR to about 1:1, so it still would not comply with the FSR standard.

1. This circumstance supports the applicant’s submission that the experts’ evidences on both sides leads one to the conclusion that a numeric approach to the standards is not appropriate in this case.

1. The experts are in agreement that compared to the existing state of the foreshore, or that resulting from DA143/2003, the proposal is a far better result under the SREP (Sydney Harbour Catchment) 2005, and under SEPP No. 65, and under WLEP 1995. In understanding the amount of rockface lost by the proposal versus the respondents amendment, it is clear that Mr Booth’s method of numeric assessment is less reflective of the true visual impact than Ms Blanchfield’s.  The rockface as an important natural feature of the foreshore will be largely intact, and it forms a natural line of demarcation for the FSBL that has been recognised by the council in several nearby development consents.  

1. Possibly more important overall is the joining together of the foreshore areas of both Nos 42 and 42A so that a 38m length of foreshore and the slope up to the rockface, will be restored to endemic species vegetation and with only a small existing man-made seawall and landing at the waterline.  The latter are both made from natural rock laid many years ago, and weathered to blend into the foreshore.  Although some rebuilding of the seawall is proposed where it has worn away or become unstable, that work is considered acceptable by all experts.  Some existing stairs laid on the slope for foreshore access are to be restored also, and there is no objection from any experts.  The proposed small plunge pool upslope of the fig tree is also accepted by both parties.

1. The respondent put that the evidence on the SEPP No. 1 objections must start with the Winten tests of whether the standards are reasonable and what is their stated objectives or their underlying purposes.  The respondent said that the applicant’s error is going to the impacts first.

1. The applicant said in effect that in this case there are no objectors, and in fact 3 letters of support, and the only adverse impacts seen by the respondent are either the public interest of enforcing numeric standards, and alleged visual impacts on the foreshore and scenic values of the harbour.    The applicant has no quarrel with assessing the objectives of the standards as the important first step of the Winten tests in considering the non-compliances.

1. It seems to me that the experts’ evidences all show the objectives are achieved.  This includes reference to the FSR and FSBL that are primarily about controlling bulk of buildings and density, and scenic protection.   New development is required by objectives in cl 11AA(d) to relate to existing character of the built and natural environment as seen from the harbour and public view points.  The evidence shows that the existing character is more dense and set at the 12m FSBL than a strict application of the statutes would allow.  The long term outcome of this is that the “future character” envisaged by the council’s standards will never be achieved in this precinct. This is borne out by a consistent pattern of old and very recent approvals by council of developments that exceed the same statutes to a greater extent and with obviously more impact in some cases, than the proposal e.g. No. 38 Wolseley Rd adjoining.

1. The assessment of the objectives of the statutes in this case must involve the existing character or context of the proposal.  In this case, and due to the lack of impacts that may have made achievement of the objectives impossible, the primary Winten test is fulfilled and found not to warrant the imposition of the numeric standards.  The SEPP No. 1 objections are upheld.  There are no other reasons sufficient to justify refusal of the application.

1. In reading the draft conditions, I see that the parties had not inserted the updated drawing numbers as in Exhibits C and D.  Also the conditions regarding tree protection in Exhibit 4 adopt the updated report of the arborist that requires the appointment of a suitably qualified arborist with a recognised role in construction management as in cl 5.2 of the report.  This needs to be emphasised as a condition.  The respondent forwarded an electronic version of draft conditions combining Exhibits 3 and 4, the building and the landscape conditions.  The landscape conditions were inserted after condition 34 of Exhibit 3.  The inclusion in the electronic version of the section headings of Exhibit 4 created lack of clarity for the rest of the building conditions.  As a result I have moved the landscape conditions to the end of the document to avoid confusion.

1. Also I note that the applicant advised it would accept a condition that The existing development consent for No. 42A be surrendered should a consent be granted in the appeal.  The respondents draft conditions name DA 143/2003 in that regard however the applicant’s architects in Exhibit B tab 2 research letter September 2006 identify it as DA 193/2003.  Due to the lack of clarity this condition should be deferred commencement, prior to activation of this consent.

1. Therefore the orders of the Court are:

   1. The appeal is upheld.

   2. Deferred development consent is granted to four (4) apartments and a nine (9) car garage at Nos 42 and 42A Wolseley Road, Point Piper, as shown on drawings listed in Part B condition 1 of annexure A hereto all as amended by and built in accordance with Annexure A.  The consent shall not be activated until Part A of the conditions in Annexure A has been complied with.

   3. The exhibits are returned to the parties except Exhibits C, D, 3 and 4.

   ___________________

   K G Hoffman
   Commissioner of the Court

   ljr