Chapman-Davies v Willoughby City Council
[2009] NSWLEC 1438
•30 December 2009
Land and Environment Court
of New South Wales
CITATION: Chapman-Davies v Willoughby City Council [2009] NSWLEC 1438 PARTIES: APPLICANT
RESPONDENT
Sally Chapman-Davies
Willoughby City CouncilFILE NUMBER(S): 10689 of 2009 CORAM: Brown C KEY ISSUES: CONSENT ORDERS :- construction of a new dwelling - resident objections to breaches of requirements relating to the number of storeys, floor space ratio, building height plane, setbacks and landscape area. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995
Practice Note – Class 1 Development AppealsDATES OF HEARING: 3 December 2009, additional evidence 21 December 2009
DATE OF JUDGMENT:
30 December 2009LEGAL REPRESENTATIVES: APPLICANT
Mr P Tomasetti SC
SOLICITORS
Simon Gates LawyerRESPONDENT
Ms N Zerial, solicitor
SOLICITORS
Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
30 December 2010
JUDGMENT10689 of 2009 Sally Chapman-Davies v Willoughby City Council
1 COMMISSIONER: This is an appeal against the refusal by Willoughby City Council (the council) of Development Application No. 2008/740 that is described in the development application as "alterations and additions to existing single dwelling" although ultimately accepted by the planning experts as the construction of a new dwelling at 4 Cheyne Walk Castlecrag (the site).
2 Following reconsideration by the council, the appeal now comes before the Court for consent orders. In accordance with the Practice Note – Class 1 Development Appeals (cll 35 and 36) the "consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account".
3 The site is irregular in shape with a southern boundary to Cheyne Walk of around 15.5 m, then narrowing to about 10 m and then expanding to around 16 m on its northern boundary to provide an area of 620.2 sq m. The site is a relatively steep and falls approximately 7 m from the southern to northern boundary, an average gradient of 15.9%. The northern boundary adjoins a public reserve known as Cheyne Walk Reserve that adjoins Middle Harbour. Extensive views are available from the site to the north over Cheyne Walk Reserve to Middle Harbour.
4 The consent order hearing commenced on-site on 3 December 2009. At this time, a view of the site, an adjoining property and the surrounding area was undertaken with the parties. An assessment of the impact on views from the street and adjoining properties could be undertaken through the placement of high poles on the site to depict the location of the proposed dwelling. The Court also heard from a number of residents who opposed the proposed development largely based on the non-compliances with the requirements of Willoughby Local Environmental Plan 1995 (LEP 1995) and Willoughby Development Control Plan (the DCP). The areas of departure relate to:
- the number of storeys,
floor space ratio (FSR),
building height plane (BHP),
setbacks, and
landscape area.
5 The consequence of the non-compliance was that the proposed development was considered to be an overdevelopment of the site that also unacceptably impacted on private and public views by the residents.
6 Following the site view and the resident evidence, the proceedings were adjourned, as there was no town planning report that addressed the non-compliances with the council planning controls. At a mention on 8 December 2009, directions were given for the filing of a joint town planning report by close of business on the 21 December 2009 following which the matter would be determined in chambers.
- The joint planning report
7 The joint planning report was prepared by Mr Kim Burrell, for the applicant and Ms Annie Leung, for the council. The areas of departure from the councils planning controls are individually addressed in the report. A summary of the evidence and conclusions of Mr Burrell and Ms Leung for these areas is set out below:
Storeys/height
8 Mr Burrell and Ms Leung agree that the proposed development involves the construction of a new dwelling (rather than alterations and additions to an existing dwelling) and the proposed attic level is consistent with the definition of an attic in cl 4 of LEP 1995 and as such the height of the proposed development is two storeys and complies with the height requirement in cl 18 LEP 1995.
- Floor Space Ratio
9 The calculation of the gross floor area (GFA) is required to determine the FSR. Mr Burrell and Ms Leung agree that the existing dwelling has a GFA of 245.6 sq m and the proposed dwelling has a GFA of 384.9 sq m. With a site area of 620.2 sq m this equates to an FSR of 0.4: 1 for the existing dwelling and 0.62:1 for the proposed dwelling. This needs to be compared to be applicable FSR of 0.3 9:1 from Part D, D.2.2 of the DCP.
10 Ms Leung states that the exceedance of the FSR control equates to an area role of 141.9 sq m. and can be attributed to the attic (90.5 sq m), the TV room (34.9 sq m) and the cellar room in the lower ground floor (18.27 sq m). Considered in the context of the existing 2 and 3-storey developments in the locality, Mr Leung states that the bulk and scale of the development is not incompatible with its surrounding development context and immediately adjoining neighbours. In her opinion that the increase in bulk of the proposed reform is minor and has insignificant impacts to existing views to Middle Harbour from adjoining properties. Also, the location of the components of the proposed dwelling, particularly the pavilion structure closest to the street, do not contribute to any greater view loss from adjoining properties or from the street.
11 Mr Burrell states that the area of the attic should be excluded from the calculations of GFA, based on the requirements in par 3 Part D, D.2.2 of the DCP. While this is not the agreed by Ms Leung, I did not understand Mr Burrell to disagree with his Leung's conclusions on the compatibility of the proposed development with surrounding development.
Building height plane
12 Mr Burrell and Ms Leung agree that the proposed development breaches the BHP requirements in D.2.3 of the DCP but accept that it is not a matter that would warrant the refusal of the application. It is agreed that the proposal penetrates the BHP on the north-west side at the far eastern end of the site and where the building is reasonably setback from the neighbour on the northern side as well as from the street. It is agreed that the proposal only penetrates the BHP on one side and can be attributed to the fall in slope of the site and is comparable to the penetration of the building envelope of the existing dwelling and is unlikely to create additional impacts to adjoining properties.
13 Mr Leung describes the breach of the BHP as being consequential to the special circumstances of the site and Mr Burrell states that it is consistent with the intent of the BHP because it provides an acceptable standard of amenity for the residents and adjoining properties as well as minimising overshadowing of adjoining properties.
- Setbacks
14 Mr Burrell and Ms Leung agree that the proposed development satisfies the intent of D.2.3 of the DCP despite being numerical non-compliant with the side and rear setback requirements. Ms Leung notes that privacy and other amenity considerations for the site and adjoining properties are mostly maintained by the natural differences in site levels between the properties and there are no apparent unacceptable adverse amenity impacts arising from the non-compliance. The view corridor to Middle Harbour from the street will not be affected by the non-compliance with the side setback requirements because of the steep topography of the site.
15 Ms Leung considers the breach of the rear setback requirement (but similar to the setback of the existing dwelling) to be appropriate in this case because the siting of the new dwelling outside the footprint of the existing dwelling will bring the bulk of the development closer to the street. This will have significant adverse impacts on both the existing streetscape as well as views to the foreshore from properties on the opposite side of Cheyne Walk. The reduced rear setback is considered to be acceptable when viewed from the waterways or Middle harbour.
16 Mr Burrell states that the side setbacks are generally consistent with the existing dwelling and the DCP provides discretionary provisions to allow the council to relax the setback requirements.
- Landscape area
17 Mr Burrell and Ms Leung agree that the existing dwelling has a landscape area of 66 sq m and the proposed dwelling has a landscape area of 150.2 sq m. With a site area of 620.2 sq m, a landscape area of 253.1 sq m is required by Part C, C.9 of the DCP. Mr Burrell and Ms Leung agree that the proposed development does not satisfy the landscaped area standard however the proposal provides for a substantially increased area of landscaped area than currently exists. Mr Burrell further states that the variation can be supported given the long and narrow site and the benefits of locating the dwelling at the rear and the widest part of the site.
18 Part C, C.9 of the DCP also provides that there should be natural/soft landscaping at the street frontage and this area should not be less than 70% of the area forward of the building line. Mr Burrell and Ms Leung agree that the existing dwelling provides an area of 35% and the proposed dwelling provides an area of 47%. Mr Burrell and Ms Leung agree that compliance with this requirement is difficult because of the narrow width of the site at the street frontage and while there is a non-compliance, the proposal minimises hard surfaces within the front setback area through the provision of a single width driveway and a pedestrian pathway. Also there is an improvement to the landscaped presentation of the site and the streetscape when compared to the existing development.
- Findings
19 With the benefit of the site view and an understanding of the particular characteristics of the site, I am satisfied that while some planning requirements have not been complied with, the variations can be supported largely for the reasons agreed to by Mr Burrell and Ms Leung. In coming to this conclusion I have taken into consideration the existing dwelling, the constraints imposed by the irregular shaped lot and the difficult site constraints. Where the variations have been tested against the relevant objectives of the planning requirements and an assessment made of the potential impact on the character of the area, the streetscape and the amenity of adjoining and nearby properties, then the conclusion reached by Mr Burrell and Ms Leung that the proposed development is acceptable notwithstanding the breaches of LEP 1995 and the DCP can be supported. Consequently, there is no reason to refuse the consent orders.
- Orders
20 The Orders of the Court, by consent, are:
- 1. The appeal is upheld.
2. The development application No. 2008/740 for " alterations and additions to existing single dwelling" on the land known as 4 Cheyne Walk, Castlecrag, being the land comprised in Lot X in DP 411039, is determined by the granting of consent subject to the conditions contained in Annexure A.
3. No order as to costs
G T Brown
Commissioner of the Court
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