Conway Properties v Woollahra Municipal Council

[2008] NSWLEC 1440

Land and Environment Court

of New South Wales

CITATION:	Conway Properties v Woollahra Municipal Council [2008] NSWLEC 1440
PARTIES:	APPLICANT Conway Properties Pty Limited RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10677 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of two existing dwelling houses and ancillary structures, the consolidation of the two lots into one and the construction of a new residential flat building - view loss
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995
CASES CITED:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140
DATES OF HEARING:	3, 9/10/08
EX TEMPORE JUDGMENT DATE:	9 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister SOLICITORS Spiegal & Associates RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

9 October 2008

10677 of 2008 Conway Properties Pty Limited v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against refusal of DA628/2007/1 by Woollahra Municipal Council (the council) for the demolition of two existing dwelling houses and ancillary structures, the consolidation of the two lots into one and the construction of a new residential flat building containing six units at 7-9 Conway Avenue, Rose Bay (the site).

2 The site is zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP 1995). This zone permits a range of dwelling types and tenures, including medium and high density residential developments. Woollahra Residential Development Control Plan Woollahra (the DCP) also applies. The site falls within the Rose Bay Precinct of the DCP.

3 The area consists of a mix of residential development of varying size and age including single dwellings (5 Conway Avenue) and residential flat buildings (1-3 Conway Avenue).

Background

4 The appeal was heard as a s 34 conference on site on 3 October 2008. At this time no agreement was reached and the conciliation conference was terminated. The parties consented to me disposing of the matter at a later date and on the basis of what had occurred at the conciliation conference.

5 The conciliation conference narrowed the contentions to a dispute over potential view loss created by the amount of floor space and setbacks of the upper level of the proposed development.

6 The parties agreed to the following directions at the conciliation conference:

1. Mr Fletcher and Mr McDonald are to file and serve a joint report on the remaining issue no later than 7 October 2008;
2. Leave is granted to approach the Manager Listings for a one hour hearing at 9am on 9 October 2008 for submissions only on the joint report;
3.The parties are to provide agreed conditions of consent and alternate conditions on the area still in dispute on 9 October 2008.

View loss

7 In their joint statement, Mr Fletcher and Mr McDonald confirmed the single remaining issue as to the potential view loss impacts on 1-3 and 5 Conway Avenue that might arise or be exacerbated by the floor space and setbacks of the upper level of the proposed development.

Areas of agreement

8 Mr Fletcher and Mr McDonald agree the there would be no benefit from the ground floor level of 5 Conway Avenue by any reduction of the top floor level of the proposed development. There would also be no significant benefit from the upper first floor level at the rear balcony of 5 Conway Avenue.

9 From the upper first floor level living room window of 5 Conway Avenue the only benefit by any reduction of the top level of the proposed development would be a slight increase in views of the end of Cremorne Point and part of Mosman Bay if the top floor level of the proposed development was set further back by approximately 1 m. The primary views from this location of the harbour, the Harbour Bridge, North Sydney and the Sydney CBD skylines are retained and unaffected by the proposed development.

10 From the upper floor bedroom window of 5 Conway Avenue, an increased setback of approximately 1 m to the rear of the top floor of the proposed development will result in a view retention of the northern section of the North Sydney skyline and sections of the foreshore and harbour below that point at North Sydney. The experts agree that there would be no benefit from any further increase in the rear setback of the top floor. Whether or not the removal of 1 m from the rear of the top floor of the proposed development occurs as assessed, the primary views of the harbour, the Harbour Bridge, the Sydney CBD skyline and the southern section of the North Sydney skyline are retained and unaffected by the proposed development.

11 For 1-3 Conway Avenue, the experts agree that the apartment most impacted is Unit 3. It located at the top floor at the front of the building. Based on the available evidence, the experts agree that for the unit to the rear of Unit 3 and from the kitchen window of Unit 3, the views will be improved as a consequence of the lower roof line of the proposed development compared with the roof line of the existing dwelling house at 7 Conway Avenue. The experts agree that the area of Unit 3 most affected will be the sitting and standing views from the front balcony, and probably the standing view from the living room behind that balcony, across the side boundary to the west towards the harbour. Approximately the front 5 m of the top floor of the proposed development would affect water views of a section of Rose Bay and to the foreshore of Point Piper. This is the only substantial water and land interface view from this section of the apartment. There are only limited views of the Harbour Bridge, the Sydney CBD skyline and the North Sydney skyline from this location, but those views would not be affected and would not benefit from any increased street setback of the top floor level.

12 The experts also agree on the wording of condition C1 pt (c) that deletes the roof terrace and balustrading.

Areas of disagreement

13 Mr McDonald is of the opinion that the view loss from the upper floor bedroom window of 5 Conway Avenue is avoidable and unacceptable. The view loss could be overcome by a reduction in gross floor area and/or an alternate design to increase the rear setback of the top floor level.

14 Mr Fletcher is of the opinion that the loss of view from the upper floor bedroom window of 5 Conway Avenue is very minor. Having regard to the fact that the primary view is of the harbour; the Harbour Bridge, North Sydney and the Sydney CBD skyline are retained and unaffected by the amended proposed development, together with consideration of the fact that it is a view from a bedroom window across a side boundary. The view loss, in his opinion, is acceptable having regard to the planning principle in Tenacity Consulting v Warringah Council [2004] NSWLEC 140.

15 Mr McDonald is of the view that the view loss from the balcony and living area of Unit 3, 1-3 Conway Avenue, is also avoidable and unacceptable. The view loss could be overcome by a reduction in gross floor area and/or alternate design to increase the front setback of the top floor level of the subject property. In response Mr Fletcher states that the loss of view to a section of Rose Bay and the foreshore of Point Piper from the balcony of Unit 3, 1-3 Conway Avenue is minor.

Findings

16 In considering the different opinions of Mr McDonald and Mr Fletcher, and with the benefit of the site view, I agree with the conclusions of Mr Fletcher for a number of reasons.

17 It was agreed that the proposed development does not satisfy the floor space ratio (FSR) requirements in cl 11 of LEP 1995. The proposed FSR is 1.1:1, whereas the LEP 1995 requirement is 1:1. The approach advocated by Mr McDonald was that the floor area beyond the 1:1 FSR, (some 120 sq m) should be removed from the upper level to improve views from the adjoining properties. While this may improve views, it does not necessarily follow that excess floor area should or would be removed solely from the upper floor level. Importantly, the proposal complies with the height requirement in cl 12 of LWEP 1995 after the removal of the roof terrace and balustrade. Also, the breach of the storey requirement in the DCP occurs at a location on the site where views are not affected. As suggested by Mr Fletcher, if floor space was to be removed it was likely to be removed from an area at the lower levels of the building where the expansive views available from the upper level are not disturbed.

18 The principles in Tenacity Consulting are relevant and were addressed by both experts. The applicant provided view analysis diagrams that indicated the impact of the proposed building from Unit 3, 1-3 Conway Avenue and 5 Conway Avenue. Considering the principles in Tenacity I accept that the view analysis supports the conclusions of Mr Fletcher. While Tenacity places less emphasis on side views, the side views are the principal views to the CBD skyline, the harbour, the Harbour Bridge, and North Sydney skyline. Even if the significance of side views are elevated in this instance, I am still satisfied that the loss of views to these features is not so significant as to warrant the refusal or amendment of the application, if considered in the context of a building that satisfies the council’s height control and has only a small departure to the storey requirements (and which has no effect on view loss).

19 The DCP adopts a building setback based on the consistency with those of adjoining buildings (C 5.2.1 of the DCP) however I see no valid reason to follow this approach given the large and uncharacteristic setback at 5 Conway Avenue. Strict compliance would likely result in a setback that would be inconsistent with new development in Conway Avenue and would likely unacceptably impact on the streetscape in the longer term. I did not understand Mr Fletcher or Mr McDonald to advocate strict compliance with the setback approach in the DCP.

20 While existing views are likely to be reduced from the existing buildings nearby, I am satisfied that the design properly addresses the concept of view sharing given the principles in Tenacity, the characteristics of the site, surrounding development, and the expectations of development based on the council’s planning controls.

21 I have reviewed the State Environmental Planning Policy No 1 – Development Standards (SEPP 1) objection to the FSR development standard as set out in the council officer’s report. I accept the conclusion that strict compliance with the standard in this instance is unreasonable and unnecessary and that the SEPP 1 objection is well founded.

Orders

22 The Orders of the Court are:

1. The appeal is upheld.
2. DA 628/2007/1 for the demolition of two existing dwellings and ancillary structures, the consolidation of two lots and the construction of a residential flat building at 7-9 Conway Avenue, Rose Bay is 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