Cape Cod Australia Pty Ltd v Willoughby City Council

[2004] NSWLEC 341

Land and Environment Court

of New South Wales

CITATION:	Cape Cod Australia Pty Ltd v Willoughby City Council [2004] NSWLEC 341
PARTIES:	APPLICANT Cape Cod Australia Pty Ltd RESPONDENT Willoughby City Council
FILE NUMBER(S):	11161 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Alterations and additions to a property
LEGISLATION CITED:	Environmental Planning and Assessment Act State Environmental Planning Policy No. 1 Willoughby Local Environmental Plan 1995
CASES CITED:	Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; Wright v Manly Council; Tenacity Consultilng v Warringah Council [2004] NSWLEC 140 ; Goldin & Ors v The Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 NSWLEC 75 of 2002; BP Australia v Campbelltown City Council
DATES OF HEARING:	11 & 12/03/2004
EX TEMPORE JUDGMENT DATE :	05/31/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J E Robson, barrister SOLICITORS Moody & Associates RESPONDENT Mr M Fraser, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

-

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

31 May 2004

11161 of 2003 Cape Cod Australia Pty Ltd v Willoughby City Council

JUDGMENT

1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Willoughby City Council’s refusal of a development application for alterations and additions to the property known as 60 The Bulwark, Castlecrag.

2 The issues the council identified as shown in Exhibit 10 in the proceedings, are:

1. whether the application should be approved having regard to a breach of cl 18A of the Willoughby LEP - the two storey maximum of two storeys.

2. whether the applicant’s objection pursuant to SEPP 1 should be upheld;

3. whether the application should be approved having regard to the breach of the building height plane and the height as contained in DCP 16;

4. relates to the building height plane and set backs contained in DCP 16;

5. whether the application ought to be approved given the impact on views currently enjoyed from the living rooms and the deck of No. 62 The Bulwark inconsistent with the cl 14A of the zone and the scenic protection area and the building height plane and set backs of DCP 16;

6. Scenic Protection Area - whether the application ought to be approved given the development proposal’s impact on the amenity of adjoining properties including loss of views to Sailors Bay foreshore and bushland and inconsistency with the desired future character of Castlecrag as contained in the DCP 16;

7. relates to the Griffin Conservation Area and whether the application should be approved in terms of the desired future character of the Griffin Castlecrag conservation area;

8. relates to the bulk and scale and whether the height bulk and massing and building form of the development, in particular its non compliance with the character design and streetscape performance criteria contained in DCP 16.

3 The proceedings commenced on site and a view was undertaken of the subject site and the surrounding area. The Court had the benefit of viewing the subject site with height poles and string lines erected from the dwelling at No. 62.

4 The area can be described as a vegetated bushland setting of relatively steep topography. It is known as the Griffin conservation area within Castlecrag and the road pattern follows the contours of the topography in an informal sense. The Griffin Conservation Area has been identified as such because Walter Burley Griffin and his wife designed the streets and a number of dwelling houses that are located therein.

5 The objective of the Development Control Plan No. 19 is that “the bushland setting is one that dominates over the built form”. On the heritage and conservation of the area the DCP provides comments on the desired and future character with aims and objectives to guide future development. Objective D, is to ensure that alterations and extensions to existing buildings respect those buildings and do not compromise the significant character of the individual items or of the conservation areas and objective E, is “to ensure that new development respects the context and is sympathetic in terms of form, scale, bulk, fabric, colours, textures and does not mimic or adversely affect the significance or heritage conservation areas”.

6 The Griffin Castlecrag area is described in the DCP as:

Walter Burley Griffin and his architect wife, Marian Mahony Griffin, founded the Greater Sydney Development Association in 1920 and set about establishing a residential development that was sympathetic with the natural environment and in sharp contrast to the red roofs and grid streets that characterised Sydney at the time ... the houses were designed to harmonise the landscape and were built of sandstone quarried from the site. Many sites had a house plan attached and houses were carefully located on the sites with steps, set backs from the road to respect the views and privacy of other houses and in terms of description the form of houses proposed by Griffin were single storey or in rare cases two storey buildings based on a series of projecting wings radiating from the central area.
The desired future character of the area is that new development should carefully follow the contours of the land to minimise bulk, cutting and filling … and the height, scale, bulk, massing and proportion, site cover location and visibility of new development should be such that built forms do not dominate the natural landscape. The spacing of buildings and rhythms of the streetscape are retained and primary views from nearby and adjoining dwellings and public reserves are not obstructed. Visibility of undercroft areas should be considered in this regard.

7 The other relevant controls are contained in the Willoughby Local Environmental Plan 1995 and the subject site is zoned residential 2(a2). The general aims and objectives of the plan include: “to allow development at a scale that is sensitive to environmental and planning constraints; to maintain and enhance the amenity of residential areas; to ensure that residential development conforms with the scale and character of the individual residential development areas”.

8 The general objectives for the residential 2(a) and 2(a2) zones include “to retain and enhance residential amenity including views, solar access, aural and visual privacy and landscape quality to retain the heritage values of particular localities”.

9 It is noted that cl 13(3) of the plan states that consideration must be given to development is consistent with one or more of the aims of the plan and at least one specific objective of the zone within which the development is proposed to be carried out. The specific objective for the 2(a2) zone, the scenic protection zone, is:

to accommodate housing such that the scenic qualities and ecological values including foreshores and bushland areas are maintained by protecting the land in the zone from overdevelopment or visually intrusive development...and by ensuring that the new development does not dominate the natural scenic qualities of the locality.

10 The other relevant development control plan is that known as DCP 16 for dwelling houses and this particular DCP sets out a number of criteria in terms of locality statements and special controls to be used in the assessment of development applications. For Castlecrag locality it is noted that the pattern of subdivision follows the contours of the land and this is a legacy of Walter Burley Griffin’s vision for a model residential garden suburb designed to take full advantage of its topography and natural features.

Roads are narrow and curvilinear responding to the nature terrain with front boundaries following the curvature of the carriageway.
A central portion of the Castlecrag peninsular is the Griffin conservation area. Development in this area must refer also to DCP 19. In the peninsula area the established older dwellings located on undulating terrain are designed to nestle amongst dense, lush, indigenous vegetation. Traditionally dwellings on the low side of the street are not more than one storey above the roadway and do not obstruct views of dwellings located on the high side nor vistas of distant views from the roadway.
Dwellings are generally stepped responding to the topography and the siting of buildings within the landscape and the dominance of the vegetation on the site. An integral part of the internationally recognised Griffin conservation area is the reserves and the character of the natural environment prevailing over the built environment.

11 With respect to the desired future character s 2.2.2 includes:

minimising the impact of the built environment by siting buildings sensitively integrating the built form with the natural landscape with the built forms subservient to the landscape and the predominance of natural landscaped areas on the site.
The encouragement of a variety of building designs with the built form relating to the topography of the site by following the contours of the land.
Siting of buildings to enhance amenity and privacy of the dwelling and the adjacent dwellings by using a variety of set backs.
Avoidance of dwelling heights which break the tree canopy.
Avoiding loss of vegetation.
Avoidance of imposing building forms with high wall facades.
Minimising areas of driveways.
Ensuring the preservation of remnant bushland.

12 The DCP also contains special control provisions within the 2(a2) zone. Once again referring to whether the development integrates well with the form and features of the local topography, whether the amenity of surrounding properties such as views to foreshore, bushland and waterways will be maintained. That is 3.1A(5) in the development control plan. There are provisions with respect to set backs from foreshore reserves and there are envelopes provided for a building height plane for land within the area and also there are criteria concerning view sharing. View sharing is No. L in 4.3 and it states:

The orientation and siting of new dwellings as well as alterations and additions to existing dwellings should protect significant views from surrounding properties and public spaces and where it is possible design for the sharing of views.

13 The view sharing also relates to built form in terms of the public domain when viewing to and from public reserves and roadways. As I stated there is a building height plane which applies to the subject site and there are provisions with respect to set backs. The proposed dwelling is set back some 25 m from the street and is generally located on a lower portion of the site than the adjoining dwelling houses.

14 Height is contained in 4.5 of this DCP and the intent includes to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public places with the height and bulk of the development. The performance criteria include:

Significant views from neighbouring dwellings are not unduly compromised; and

Buildings will not be overbearing in height and bulk when viewed from adjoining properties and the public domain and this is to be achieved by increasing set backs with increases in wall heights and relating buildings to topography. There is a height limit within the DCP of two storeys in height above natural ground level and the building foundation spaces that exceed one metre in height at any point above natural ground are counted as a storey.

15 There is also a storey limitation in terms of the LEP and as such a state environmental planning policy No. 1 objection was submitted for the assessment or consideration of the Court. In terms of height, it also notes the building height should be stepped to follow the land form and be broken into sections to avoid large unrelieved wall spaces.

16 Significant views are defined in the DCP, to mean “views of Middle Harbour and other waterways, bushland, valleys and escarpments, major skylines and important landmarks”. Storey in relation to a building, means “the space between two successive floors or the space between natural ground level and any floor immediately above the level or the space between any floor and its ceiling or roof above. Any such space that exceeds 3.5 in height is counted as two storeys”.

17 During the proceedings evidence was given to the Court by a number of resident objectors who attended and gave evidence on the view. This included the owners of many properties in the vicinity of the subject site as well as people expressing concerns about the conservation area and the special qualities of Castlecrag, Griffin conversation area.

18 On behalf of the applicant expert evidence was given to the Court by Mr Tony Moodie who is a consultant town planner and Mr Robert Staas who is a heritage architect.

19 On behalf of the respondent council Mr Chapman, a council assessment officer, gave evidence to the Court as did Ms Hill, a heritage consultant, Mr Robinson, a heritage consultant on behalf of Mr and Mrs Newton, who live at No. 62 The Bulwark. Mr Moffatt also gave evidence to the Court who is an architect and a local resident objector at No. 70 The Bulwark.

20 As I stated there are a number of people that took the opportunity of giving evidence on the view and I have had regard to all the evidence including that of the experts as well as the resident objectors.

21 The critical issue, it was agreed between the parties, is whether the view loss of the adjoining premises at No. 62 is such that would warrant refusal of the development application. Mr Moodie was of the opinion that the affectation on the view of No. 62 is such that the SEPP 1 objection is well founded and the standard is unnecessary and unreasonable in terms of the circumstances of this case and cl 18(a) of the LEP justifies a variation in the circumstances.

22 Mr Chapman for the council was of the opinion that the view loss or affectation of No. 62 is such that the development application does not warrant approval in terms of its merits. It was agreed between the experts that the impact of the proposed dwelling which is a two storey alteration and addition providing an additional floor to the existing largely single storey dwelling house on the subject site. Mr Moodie in his statement identified the controls which were contravened but he is of the opinion that in the circumstances it is a satisfactory development for the subject site.

23 In terms of the heritage significance Mr Staas deferred to the planner in terms of view loss. He did not consider that the view loss was something that related to the heritage of Griffin conservation area. Miss Hill on the other hand was of the opinion that the Griffin conservation area and the disposition of dwellings and their setting within the bushland was something that one should have regard to.

24 It is noted that in the Griffin conservation area the desired future character requires primary views from nearby and adjoining dwellings not to be obstructed. The applicant assisted the Court by providing string lines and height poles which were erected on top of the existing dwelling to indicate the extent of view loss that would result from the subject development on the premises at No. 62 The Bulwark.

25 There was evidence to the Court that No. 62 The Bulwark had been designed and constructed in accordance with council’s controls and to have regard to the view loss of other premises, in particular the adjoining property. The issue for the Court in these proceedings is whether the view loss is one that would warrant refusal of the development application and it is also coupled with an assessment of the SEPP 1 objection.

26 The SEPP 1 objection it was agreed relates to whether the development standard of a two storey height limit should be varied. Mr Moodie was of the opinion that the two storey height limitation should be varied. He identified a number of underlying objectives, that is height and bulk of the proposed dwelling as well as overshadowing impacts and view loss. There was no concern with respect to overshadowing of adjoining properties.

27 The SEPP 1 objection is a threshold question for the Court. In Winten v North Sydney his Honour Justice Lloyd provides a framework for the consideration of SEPP 1 objections and this was referred to by both parties. It is agreed that the height limit of two storeys is a standard and it is also agreed that the proposed dwelling contravenes this and provides for three storeys in the southern portion of the dwelling. The purpose of the standard, must be addressed – that is view loss, overshadowing height and bulk of a dwelling. The third question is compliance with the standard consistent with the aims of SEPP 1. Fourth is the compliance with the standard unnecessary or unreasonable in the circumstances of the case. Fifthly is the objection well founded.

28 Having regard to all the evidence to the Court I am not satisfied that a variation in terms of SEPP 1 is justified in the circumstances of this case as the objective, or the underlying objective, of the impact on views is not satisfied by the proposed development and I do not consider the objection is well founded. The view loss is one that is significantly impacted in terms of the living areas of No. 62. No. 62 main living areas enjoy views of the bushland and the valley and the water, Sailors Bay water body, and the proposed development will unreasonably impact on the view from the main living areas.

29 It is noted that there are extensive views gained from the rooftop of the proposed dwelling but this does not constitute the main living area but rather the living areas will be impacted and the main terrace on the southern side of that dwelling will also be impacted.

30 In my assessment in the circumstances of this case the view loss is raised in prominence and importance because of the intent and spirit of the Griffin conservation area. The Griffin conservation area clearly in the controls provides for views not only from public places, that is public reserves and the roadways, but also views from adjoining properties should not be unreasonably impacted.

31 I am not satisfied that the proposed development meets the objective of appropriate view sharing and in my assessment the view loss in the circumstances is unreasonable having regard to the conservation area as well as the principles of view sharing.

32 In terms of view sharing a case was handed up to the Court known as Wright v Manly Council, a judgment of his Honour Sugarman J of 1958 and whilst in many respects it is not argued that view sharing is now more clearly enshrined in the planning principles and controls, nonetheless in terms of providing a context in terms of expectations this particular judgment is still most relevant. To quote from this judgment:

Where a question arises as between neighbouring land holders both may be considered as more or less in the same case having acquired their respective lots for the purpose of erecting dwelling houses and enjoying the view and where unhindered enjoyment cannot be had by either consistently with the claims of the other the proper solution would appear prima facie to be one which secures to each a fair share, if that is possible, and subject always to a due consideration of all the circumstances of the particular case.

33 And of more recent time the Senior Commissioner in a matter known as Tenacity Consulting v Warringah NSWLEC 140 of 2004 handed down on 7 April of this year, the Senior Commissioner provides a number of steps to be considered in terms of view sharing. The instrument he was looking at was the LEP where the development is to allow for the reasonable sharing of views and clearly in terms of the controls I have cited view sharing is an objective or a principle that should be upheld in the Willoughby Castlecrag area.

34 The Senior Commissioner, Dr Roseth, said:

The first step is the assessment of the views to the affected. Water views are valued more highly than land views ...whole views are valued more highly than partial views eg a water view in which the interface between the land and water is visible is more valuable than one where it is obscured.
The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views, the expectation to retain side views and sitting views is often unrealistic.
The third step is to assess the extent of the impact. This should be done for the whole of the property just not for the view that is affected. The impact on views from living areas is more significant than bedrooms or surface areas...it is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non compliance with one or more planning controls even a moderate impact may be considered unreasonable with a complying proposal the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours.
If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

35 I do note that the current case is distinguishable on the facts from that of Tenacity Consulting. I also acknowledge that the view from No. 62 is an oblique view at some 45 across the boundary of the adjoining subject property but nonetheless having regard to the context of the Griffin conservation area, view loss in my assessment of this application, is one that is significant and does not warrant approval of the development application.

36 Of relevance in this case for the Court is the fact there are alternative design solutions. And I do understand the aspirations of the owners of the subject property in terms of wishing to upgrade the property and enlarge the dwelling to provide for family accommodation. At the same time there is non-compliance with council’s controls and the impact on view loss must be assessed. It is acknowledged, it is not just the area of the breach that causes the view loss. Nonetheless given that there are breaches of the controls possible alternative designs has lead the Court to conclude that the current application does not warrant approval.

37 Furthermore, in terms of the building bulk I am not satisfied that the proposal responds to the topography and this is a clear objective or aspiration in terms of the Griffin conservation area in particular. The proposed development when viewed generally from the public domain of the street will not present as a bulky dwelling but when viewed from No. 62 that is where the bulk of the dwelling will be most visible and therefore it is not consistent with the Griffin conservation area in this regard.

38 It was pointed out by the applicant that the alterations and additions make use of the existing footprint that is only some 23% of the site and an alternative design would in fact take up a greater footprint.

39 It is also noted that the current landscaped area is some 73% and the control provides for a 50% landscaped area. It is noted that the swimming pool has been constructed such that it is on supports which is largely out of the ground and then there would be a dwelling of two storeys and in parts three storeys from the southern elevation which would appear above that.

40 The access to the public domain area to view the subject site is not easy and therefore it is not critical or determinative but in the Court’s assessment the building could appear as a bulky form from the public domain area below the site. Clearly in the future there may be other public access paths but from the point of view of my assessment it is not something that I consider would warrant or contribute to the refusal of the application at this point of time.

41 The Griffin conservation area is one that specifically identifies views to and from adjoining properties as of significance as opposed to other residential areas. And it is also the bulk of the dwelling in the foreground that is impacted as well as the views from No. 62 of both bushland and the nearer water of Sailors Bay that in combination is fatal to this development application.

42 As with many SEPP 1 and merit assessments the assessment overlaps. The SEPP 1 objection, should not be allowed in the circumstances of this case and this is a threshold question. However, in combination the SEPP 1 objection together with the fact I do not consider the proposed development is responsive to the topography as well as the impact on views and the bulky presentation to No. 62 which together in my assessment means the application fails.

43 As I said clearly the subject site is one that does have potential for further development but the design solution as submitted with this development application is not one that warrants approval. That is not to say that there should be slavish adherence to all the controls but any future development application would also have to be assessed on its merits having regard to the principles in terms of view affectation and responding to topography.

44 Other non-compliances were identified that relate to side boundary set backs and other provisions of the development control plan and the building height plane. Precedent is also a relevant consideration, however, it has not been determinative in this case but nonetheless it is relevant and in that regard I cite the case of his Honour Justice Lloyd in Goldin & Ors v The Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 NSWLEC 75 of 2002. This was an appeal against a decision of the then Senior Commissioner where precedent was used for refusal and his Honour Justice Lloyd said: “the authorities relied upon show clearly that the precedent effect of a particular proposal is a valid consideration.”

45 The decision of the Court of Appeal in BP Australia v Campbelltown City Council is also binding upon me. Here it was held that the “risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration”. Lloyd J also cites that of the matter of Lord Wigery.

There is problem which has appeared in the administration of the planning law since its inception. There is no doubt whatever that human nature being what it is if permission is granted for a particular form of development it is difficult to refuse similar development.

46 As I said precedent has not been determinative in this matter but nonetheless it is also relevant in terms of the administration of planning regime of the council. And in this case I am of the opinion that the objectives are matters that should be upheld.

47 The Court agrees with the conclusion of Mr Chapman in his statement of evidence “the subject site does have site constraints, the development proposal could be designed to meet these controls stepping the dwelling with the natural topography and present an articulated building form potentially resolving amenity impacts with adjoining dwellings”.

48 However, I make it clear that the Court is assessing this development application because that is the application before it. At the same time it is recognised that there are alternatives for the site and no doubt the applicant may wish to pursue alternative designs to satisfy the intent or objectives of the controls.

49 The site does have constraints but the site also has opportunities and the opportunity is in terms of the natural topography and a building that respects that natural land form and the contours of the land. The site also has the constraint, which should also be seen as an opportunity, of being within the Castlecrag Griffin Conservation Area and development should make a commensurate contribution to those principles and qualities that give the area its special character.

50 Therefore on the basis of my assessment above the State Environmental Planning Policy No. 1 objection in respect of the storeys control as contained in the LEP is not allowed and the application on its merits also does not warrant approval.

51 The formal orders of the Court are:

1. The appeal in respect of the property known as No. 60 The Bulwark, Castlecrag, is dismissed.
2. The State Environmental Planning Policy No. 1 objection in respect of the storeys limitation is not allowed.
3. The development application submitted to Willoughby City Council and as amended for the above site is determined by the refusal of consent.
4. The exhibits are returned.

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J S Murrell
Commissioner of the Court
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