CSA Architects Pty Ltd v Woollahra Municipal Council

[2005] NSWLEC 130

Land and Environment Court

of New South Wales

CITATION:

CSA Architects Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 130

PARTIES:

APPLICANT
CSA Architects Pty Limited

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11421 of 2004

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- residential flat building
SEPP 1 objection - height
impact on residential amenity
Adequacy of drainage

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
State Environmental Planning Policy No 1

CASES CITED:

Billgate Pty Ltd v Woollahra Municipal Council 2004 NSWLEC 436

DATES OF HEARING:

17, 18 and 28/02/2005

 
DATE OF JUDGMENT: 

03/02/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Baird, solicitor
Maddocks Lawyers

RESPONDENT
Mr J Bingham, solicitor
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Tuor C

2 March 2005

11421 of 2004 CSA Architects Pty Limited v Woollahra Municipal Council

JUDGMENT

1 This is an appeal against a deemed refusal by Woollahra Municipal Council (the council) of a development application (DA 651/2004) to construct a residential flat building comprising three by four bedroom apartments and parking for six cars at 159 Victoria Road, Bellevue Hill (the site).

2 A previous application (DA 827/2003) for a similar development was approved by council on 19 January 2004. The approved development, which has commenced, involved extensive excavation and was lower than the current proposal.

3 The site is zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP1995). Residential flat buildings are permissible with consent. Woollahra Residential Development Control Plan 2003 (DCP 2003) and Woollahra Advertising Development Control Plan (Advertising DCP) are also relevant.

4 A detailed description of the site, its context and the history of the applications is contained in the report of Mr D Booth, assessment officer, to the council meeting of 7 February 2005. The Court undertook a site inspection and heard evidence from the following residents:

• Mr and Mrs Vainzoff, 8/157 Victoria Road,
• Mr P Marr on behalf of Ms M Marr, 12/161 Victoria Road
• Mrs Fitzherbert 13/161 Victoria Road.

5 The Court appointed planning expert, Mr T Moody, prepared a Statement of Evidence which raised concerns about aspects of the proposal, particularly the setback of the uppermost floor and the encroachment of the fire stair into the setback area. The proximity of the proposal and the resultant loss of light, outlook and feeling of enclosure was also the primary concern of the residents.

6 During the hearing, in response to these concerns, the applicant amended the plans. Mr Moody, Mr Fletcher, town planner for the applicant, and Mr Booth agreed that the changes were beneficial and were not likely to result in an adverse impact. On this basis I found that the amended plans did not require notification under the requirements of the Advertising DCP. The applicant agreed to provide the amended plans to the residents who had previously commented.

7 Further submissions were received and the Court heard further resident evidence from Mrs Vainzof and Ms K Smith, 17/157 Victoria Road. Mr Moody also provided further evidence on the impact of the amended proposal. His position can be summarised as being that:

• The zone permits a residential flat building of the density proposed. The adjoining development to the north and south are residential flat buildings which are taller than the proposal and are set back approximately 1.5 m from their side boundaries. He stated that “accordingly a residential flat development is entirely appropriate for the subject site, depending upon the final design”.
• The apartments in the western end of the adjoining buildings have only one aspect and overlook the site. Consequently, in Mr Moody’s opinion these single aspect apartments are most sensitive to potential impacts from the proposal. In his opinion, the amended application has an acceptable impact on these units.
• The remaining non-compliance with the setback control and the lift lobby above the 12 m height limit are acceptable as they do not impact on overshadowing, views or visual impact in any material way.

8 Mr Moody acknowledged that additional setbacks would reduce the impact on the adjoining properties but considered this to be unnecessary. He stated that while the lift and lobby would be seen it would not affect the views to the east from the sunroom and living room of Ms Smith’s apartment. Mr Fletcher, on behalf of the applicant, prepared an objection under Mr Moody acknowledged that additional setbacks would reduce the impact on the adjoining properties but considered this to be unnecessary. He stated that while the lift and lobby would be seen it would not affect the views to the east from the sunroom and living room of Ms Smith’s apartment. Mr Fletcher, on behalf of the applicant, prepared an objection under State Environmental Planning Policy No 1 (SEPP 1) to the non-compliance with the height control of the lift and lobby and other minor areas of the building. Mr Moody accepted that the SEPP 1 objection was well founded.

9 The key issue before the Court can be summarised as whether the height and setback of the proposal are consistent with what is envisaged by the planning controls. Mr Bingham submission for the council was that the non-compliance of height and setback would have an impact and therefore the proposal was not what would be reasonably expected for the site.

10 I do not accept this submission. The evidence of Mr Moody, Mr Fletcher and Mr Booth is that the non-compliance with the height and setback controls would not result in any material impact. While the lift and lobby will be seen from some units, it is a small structure, approximately 5m long and 5.5m wide and is setback from the northern boundary approximately 5.8m and from the southern boundary approximately 3.7m.

11 Due to the topography of the site, part of the lift and lobby exceeds the 12 m height control. This exceedence varies from 0.8m on its western side to 1.5m on its eastern. The evidence before me is that this area will not result in any view loss, is compatible with the height of adjoining development, does not impact on visual privacy, sunlight access or views from the public domain. As such the proposal meets the objectives of the height control in LEP 1995 and the SEPP 1 objection is well founded.

12 In relation to the non compliance with the setback control of the lift and lobby and parts of level 5, Mr Moody summarised the purpose of the setback control in the DCP as being to enable opportunities for screen planting and avoid an unreasonable sense of enclosure. I find that the purpose of the setback control is met despite the non-compliance. The amendment suggested by Mrs Vainzsof would do little to reduce the sense of enclosure that she will experience from her apartment but this degree of enclosure is reasonable given the planning controls and is what is to be expected by development of a residential flat buildings on the site.

13 The only other issue that was pressed between the parties was the adequacy of the proposed pump out system. Cl 25(2) of LEP 1995 states that:

The council must not grant development consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop.

14. In Billgate Pty Ltd v Woollahra Municipal Council 2004 NSWLEC 436 Bignold J held that:

The Court may not grant development consent unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop in terms of cl 25(2) of the LEP.

In the present cases where it is proposed to utilise the existing easement over an adjoining property the question of the adequacy of the provision may legitimately include consideration of the legal capacity or competence to utilise the existing easement (in addition to any consideration of its physical capacity).

If on the hearing of the appeals it be held that the existing easement is not legally available for the proposed purpose the requirements of cl 25(2) of the LEP would not be capable of being satisfied by the imposition of a condition of development consent requiring such provision but those requirements would be capable of being satisfied by the making of an order pursuant to the Land and Environment Court Act, s 40 for the creation of any necessary easement if the Court, on the hearing of those appeals, determines to grant development consent.”

15 In this appeal the council submitted that a pump and sump system was not adequate and that a gravity feed system should be provided. This would require an easement to be obtained over the downstream property, 30 Benelong Crescent, Bellevue Hill. Council did not challenge the technical adequacy of the proposed pump and sump system but was concerned that such systems had proved to be unreliable in the past as the pump could breakdown and result in flooding of the downstream property.

16 Council is preparing a development control plan which would incorporate the requirement for a downstream easement. However, the provisions of s 5.7 of DCP 2003 do not include this requirement. Council’s Private Stormwater Code permits both pump and sump systems and gravity feed systems. Section 7.1 states that gravity feed systems are the preferred option but s7.2 recognises that alternatives can be considered where the downstream property refuses to grant an easement. In this case, the owner of the downstream property has refused to grant an easement.

17 For the reasons, which I provided during the hearing, I find that the proposed pump and sump system is adequate and satisfies the requirements of cl 25(2) and is therefore not an impediment to granting consent. These reasons can be summarised as being that:

• The pump and sump system, although not preferred, is an option available in the Stormwater Code.
• The applicant has sought an easement but this has been rejected by the downstream owner.
• The previous application, approved as recently as January 2004, permitted a pump and sump system
• There are no technical deficiencies with the system proposed.

18 I note that the applicant has given an undertaking to again seek an easement from the owner of 30 Benelong Crescent and, if unsuccessful, pursue this through the Court. While this would be a desirable outcome, the satisfaction of cl 25(2) is not depended upon it.

19 The parties were in dispute over the condition 38 requiring indemnification of council from any claims or actions and the ongoing maintenance of the onsite detention and/or pump and sump system in the development. I accept Mr Bingham’s submission that this condition may be imposed and in view of council’s objection to the pump and sump system and the potential unreliableness of such systems, which is acknowledged by the applicant, I find that the imposition of the condition is reasonable.

20 For the reasons given above, the orders of the Court are:

1 The appeal is upheld.
2 Development application DA 651/2004 to construct a residential flat building comprising three by four bedroom apartments and parking for six cars at 159 Victoria Road, Bellevue Hill, is approved subject to the conditions in Annexure A.
3 The exhibits, except exhibits 1, 2, 10, J, M, O and Q may be returned.
4 No order as to costs.

21 The Court notes the undertaking (exhibit Q) of Mr R Reid, Director of Botman Holdings Pty Ltd to seek a drainage easement over 30 Benelong Crescent, Bellevue Hill.

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