CSA Architects Pty Ltd v Woollahra Municipal Council

[2004] NSWLEC 303

Land and Environment Court

of New South Wales

CITATION:	CSA Architects Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 303
PARTIES:	APPLICANT CSA Architects Pty Ltd RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10240 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Measurement of height Impact on views .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan State Environmental Planning Policy No. 1 Woollahra Residential Development Control Plan .
CASES CITED:	Tenacity Consulting v Warringah 2004 NSW LEC 140; Zhang v Canterbury City Council 115 LGERA 373; .
DATES OF HEARING:	9 June 2004
EX TEMPORE JUDGMENT DATE :	06/09/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms M-L Taylor, solicitor Taylor Kelso RESPONDENT Mr M Connell, solicitor Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

Judgment

1 These proceedings commenced as an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Woollahra Municipal Council (the council) of development application 9701/03 for alterations and additions to an existing dwelling house located 81A Victoria Road, Bellevue Hill. The application was subsequently determined by the council refusing it by notice of determination made on 21st April 2004.

2 There are two matters which are pressed particularly by the council as the basis for refusal - the first being what council says is non compliance with the relevant hight control contained in Woollahra Local Environmental Plan (the LEP) and, secondly, concerns as to obstruction of the views enjoyed by a neighbouring property occupied by Mr and Mrs Watanabe to the south west of subject site.

3 During the course of the proceedings, I have had the opportunity to inspect the premises and the premises of the various objectors and hear evidence from them concerning the matters that they believe reflect inadequacies in the application.

4 The first matter that I am required to deal with is the issue of compliance or non-compliance with the height control. If there is, in fact, as submitted by Mr M Connell, solicitor for the council, a non-compliance with the height control there is then a necessity for me to consider the objection to compliance which has been made pursuant State Environmental Planning Policy No. 1 (SEPP 1).

5 The applicant lodged that objection pursuant to SEPP 1 with the council on 15 Dec 2003. I am satisfied, from my consideration of the relevant clauses in the LEP (that is the provision of cl 12 which relates to the Height of Buildings) and the agreement between the parties, that there is a 9.5 m height limit provided for at this site and that there is an exceedance of that in context of the definitions of how height is measured as set out in the LEP. This requires that height is the greatest distance measured vertically from any point on the building to the existing ground level immediately below that point.

6 When coupled with the definition of the existing ground level that requires the ground level to be the surveyed level of the ground existing immediately prior to the proposed development and prior to any associated excavation, development or site works, the non-compliance in this instance would arise if I were obliged to measure the existing ground level from the existing internal floor level of the garage which is on site.

7 Mr M Neustein, planning consultant for the applicant, in his statement of evidence, urges me to adopt what might be regarded as a commonsense approach to the LEP. This is an approach which would have me have regard to the external ground level of the site that is as close as one might find it to what would be regarded as the existing natural ground level.

8 On the other hand, Mr Connell urges me to adopt a strict construction of the document.

9 I accept that, no what matter the result that might flow from it, I am obliged to adopt a strict construction of such documents. I am, therefore, satisfied that there is an exceedance of the height limit that requires me then to consider whether I should sustain the SEPP 1 objection to compliance with it.

10 The primary relevant matter is that it is agreed that compliance with the height level by alteration of the plans by lowering the roof ridge or some other fashion would not provide any improvement to the otherwise extinguishment of the view from the Watanabe residence. I do not propose to deal with the question of why I would otherwise sustain the SEPP 1 objection in this case as I have come to the conclusion that it would not be appropriate to grant the present application on other grounds.

11 Therefore I would merely indicate that had I otherwise been minded to approve the present application, I am satisfied that I would be able, appropriately, to sustain an SEPP 1 objection – that being a preliminary matter that I needed to deal with before considering the merits as failure at that point would have been absolute prohibition to me, considering the matter further.

12 I have considered the various issues which have been put by the resident objectors and I am satisfied that the concerns that were raised by Mr Nugent with the respect to drainage are capable of satisfaction by the drafting of appropriate conditions and, in any event, would not be determinative of the application.

13 With respect to Mr Rothery’s concerns as to privacy to the adjacent property to the north east, the degree of separation between the proposed alterations and extensions and this property are significantly in excess of anything that would be required under any code standards or any other general planning principle and it would not provide any basis for refusal.

14 If agreed to, a modest improvement to this privacy might be achieved if the applicant were prepared to include obscure glazing in the glass balustrade to the proposed deck – however that is not in itself a matter that would want inclusion by condition if it were not acceptable for the applicant.

15 With respect to Mr Wolfenden’s property, he raises as an issue the degree of separation between his swimming pool and private open space and the proposed balcony. However, the fact that the northerly aspect of this balcony would require looking rearward from the balcony to these areas does not constitute an unreasonable intrusion into the privacy of that property.

16 I am also satisfied that the bulk and scale issues raised by him have been resolved to a sufficient extent by the amendments that had been recently incorporated in the plans.

17 With the respect to overshadowing in the winter, whilst I appreciate that Mr Wolfenden’s evidence is that he enjoys swimming in the pool early in the morning (including in winter), I am not satisfied that the degree of overshadowing that is involved, from the shadow diagrams, would constitute a basis for refusal.

18 Essentially, the matter turns on whether or not I find the impact on the views of Watanabe property to be acceptable.

19 I consider that the principles which were adopted by Roseth SC in Tenacity Consulting v Warringah 2004 NSW LEC 140 applied to view sharing which is not the position in the present case as what is proposed is the entire elimination of the harbour views from the Watanabe property.

20 I am obliged to give a dominant and focal consideration to the Woollahra Residential Development Control Plan (the DCP) although I am not required to have an exclusive regard to it – see Zhang v Canterbury City Council 115 LGERA 373.

21 The DCP sets out in 5.5 a number of objectives concerning views and view sharing. It makes it clear that there is a desire to encourage view sharing. The performance criteria relevant to private views make it clear that development is not to obstruct fully existing views from the habitable rooms of neighbouring residences.

22 The DCP also encourages, in the other performance measure for private views, a sharing of views with surrounding residences.

23 Although this matter does not, in fact, encompass view sharing I am satisfied that at least a number of the principles set out by the Senior Commissioner in Tenacity Consulting require my consideration. Particularly, I need to consider the fourth step – that is whether a more skilful design could provide the applicant the same development potential and amenity but reduce the impact on views of neighbours.

24 During the course of the site inspection, the applicant had in attendance a builder and a surveyor who were requested to erect stringlines on the roof that would demonstrate, when viewed from the Watanabe property, what might be the impact of a flat roof structure instead of that proposed.

25 Having observed those stringlines, I have no doubt that the impact of a flat roof structure would still result in view losses to Mr and Mrs Watanabe that they would not find acceptable.

26 However, in the context of the present case, it is sufficient that I note that those stringlines demonstrated that a significant amelioration of the impact on the views might be possible if a flat roof were to have been incorporated in the design.

27 I am therefore satisfied that a more skilful design is likely to ameliorate significantly the impact on the Watanabe’s property.

28 For that reason alone, I am not prepared to grant consent to the present design.

29 That leads me to the question of whether I should adopt the proposition advanced by Ms M-L Taylor, solicitor for the applicant, that, having reached this conclusion, I should indicate what might be an acceptable height and then adjourn the proceedings to permit the applicant to consider that and submit revised plans if it wished to do so.

30 However, both Ms Taylor and Mr Connell have submitted that the question of whether or not a flat roof should be incorporated in the design might involve significant issues as to the appropriateness of such a design – both in the context of the presently proposed structure and its consistency with the existing building and as to the consistency of a redesigned structure within the surrounding neighbourhood context in which it would find itself.

31 Both of the advocates endorsed the proposition that the proceedings should not involve undertaking “design on the run”.

32 Mr Connell, however, submitted to me that the appropriate course for me to follow would be to dismiss the appeal and enable the applicant to consider its position, on a tabula rasa basis, in light of the information obtained from the stringline assessment from the Watanabe property rather than me proposing some height limit guidance.

33 On balance, given the views expressed to me on behalf of both the applicant and the respondent with respect to the inappropriateness of me simply requiring a flat roof (views in which I concur), I am satisfied that it would not be proper for me to adjourn the proceedings to enable alternate plans to be drawn.

34 It would be more appropriate for the applicant to have regard to the information that has been obtained today from the view from the Watanabe property as a result of the various exercises undertaken by the builder and surveyor and consider its position prior to entering into the further discussions with the council.

35 As a consequence, it follows that the orders of the Court are:

1. The appeal is dismissed;
2. Development application DA 970/03 for the construction of alterations and additions to an existing residence at 81A Victoria Road, Bellevue Hill is determined by the refusal of development consent; and
3. The exhibits are returned.

Commissioner of the Court