Cullen v Waverley Council

[2008] NSWLEC 1215

Land and Environment Court

of New South Wales

CITATION:

Cullen v Waverley Council & Anor [2008] NSWLEC 1215

PARTIES:

APPLICANT
Sally Marwood Cullen

FIRST RESPONDENT
Waverley Council

SECOND RESPONDENT
Charles Wheeler

FILE NUMBER(S):

11324 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- Dwelling house, view sharing, privacy, building bulk

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

CASES CITED:

Tenacity Consulting v Warringah [2004] NSW LEC 140

DATES OF HEARING:

24/04/2008
02/05/08

 
DATE OF JUDGMENT: 

6 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor,
of Pike Pike & Fenwick

FIRST RESPONDENT
Mr S Patterson, solicitor
of Wilshire Webb Staunton Beattie

SECOND RESPONDENT
Ms H Irish, barrister
Instructed by Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

6 June 2008

11324 of 2007 Sally Marwood Cullen v Waverley Council & Charles Wheeler

JUDGMENT

Introduction

1 This appeal relates to a development application for the demolition of an existing two storey dwelling house and the construction of an essentially two-storey dwelling house at 34B Gardyne Street, Bronte. The proposed flat roofed four-bedroom house will have an integrated double garage, upper level terrace and a swimming pool. The second (topmost) floor level of the proposed building has an elongated (east-west) form that is set back 900/980 mm from the site's southern boundary and 8.1 m from its eastern boundary. It will have setbacks of 8.7 m, 9.8 m and 11 m from its northern boundary. Site works include the reconstruction of retaining walls and landscaping.

2 The hatchet shaped site has an area of 562 square metres, including the 27.4 m x 6.1 m access way to Gardyne Street. The main part of the site has a downwards slope, generally from west to east of about 5 m. The existing surrounding development predominantly comprises two-storey detached dwelling houses.

3 On 9 April 2008 the owners of the adjoining property at 32 Gardyne Street were joined as second respondent in the proceedings.

4 This judgment concludes that the appeal should be upheld and development consent granted.

Waverley Local Environmental Plan 1996

5 The site is zoned 2(a) Residential - Low Density under Waverley Local Environmental Plan 1996 and in this zone the proposed dwelling house is permissible with development consent.

6 Clause 10(2) of the LEP provides that consent shall not be granted unless the development meets one or more of the objectives of the zone. The objectives of the 2(a) zone are to allow for housing only in the form of dwelling houses and boarding houses and to maintain and improve amenity and existing dwelling house characteristics. Plainly, because the proposal comprises a dwelling house the associated zone objective is met. Relevantly applicable general objectives of the LEP seek to ensure that new housing is compatible with surrounding development and the improvement of amenity.

Waverley Development Control Plan 2006

7 Also relevantly applicable to the site is Waverley Development Control Plan 2006. The Generic Controls in the DCP in relation to size and bulk of dwelling houses are imposed so as to ensure that there is no overdevelopment of sites. To this end a maximum floor space ratio of 0.50:1 is applicable to the site and it is agreed that the floor area of the proposed building exceeds this standard by some 28 square metres.

8 The relevantly applicable building height objectives in the DCP are to minimise loss of views from other dwellings and to minimise loss of privacy. The associated strategy is to ensure that dwelling houses are not excessive in height and scale and are compatible with the existing character of the location. The applicable control requires that for a building with a flat roof the maximum overall building height is 7.5 m. But for a proportionately very small (and in my opinion insignificant) part of the southeast corner of the living room, the proposed building meets this standard.

9 Also applicable are set back requirements that are said to ensure the amenity of front and rear yards and permit the flexibility of the siting of dwelling houses. The associated strategy seeks to ensure that the distance between dwellings on adjoining properties is sufficient to allow adequate solar penetration and privacy and minimise bulk related impacts. The applicable control provides that the side setback for a one or two storey dwelling is 900 mm. Alternatively, if the height of the dwelling exceeds the applicable height standard (which is, for the most part, not the case here) the setback should be increased to 1.2 m. For a three-storey building the setback requirement is 1.5 m. But for a proportionately very small part of the southeast corner of the living room the proposed building complies with all of these requirements.

10 The aims in Part D - Residential of the DCP include the need to ensure that the scale of new dwelling houses is appropriate especially in relation to other dwellings in the vicinity and to ensure that they do not significantly detract from the amenity, privacy and views of other dwellings. Part D by reference to residential character studies requires that the design of dwelling houses should achieve the relevantly applicable Desired Future Character Objectives. Being situated in the Bronte Terraces Area the desired future character objectives relevantly seek to minimise the impact of new development on existing private views, especially panoramic landscapes and ocean views. The associated performance criteria mainly deal with views from public spaces and views exposed where sites drop below the street. Relevantly on steeply sloping sites there is a need to adjust the relative level and height of the building's envelope to follow the natural topography. Flat roofs can be used to avoid the obstruction of views.

Advertising

11 The application was advertised and eight submissions were received from neighbouring property owners, raising concerns mainly comprising amenity impacts such as excessive building height bulk and scale, loss of views and aural and visual privacy, and overshadowing. The proposal was also criticised for failure to comply with applicable planning controls including those relating to floor space ratio, building setbacks and open space.

12 The Council's contentions comprise, taking into account the applicable planning controls and notwithstanding recent amendments to the plans, essentially as follows:

• loss of views and loss of privacy for neighbours,
• excessive bulk and scale and insufficient setbacks,
• inappropriate character and built form.

13 These issues almost entirely involve impacts on the dwelling houses that surround the site, in particular Nos. 30, 32, 34 and 36 Gardyne Street . Whilst other properties further to the west (including No 28) might be affected to a degree, I heard no evidence to persuade me that this is of any determinative significance. I am also satisfied that the issue involving the reconstruction of the retaining wall along the accessway has, as a result of its redesign, been satisfactorily resolved.

Expert evidence

14 The Court was assisted by the expert town planning evidence of Ms A McCabe, (applicant), Mr N Kennan (council) and Mr H. Sanders, second respondent - 32 Gardyne Street in its consideration of this appeal.

Amenity Impacts - 36 Gardyne Street

15 The residents at 36 Gardyne Street are concerned that the bulk and scale of the two-storey eastern part of the proposed building would overwhelm their rear back yard, which is extensively used for outdoor living.

16 As a result of the building being lowered at its eastern end and the setback from the site's eastern boundary being increased I understand that this concern is essentially resolved. Taking into account the topography, existing and proposed landscaping along both sides of this boundary, compliance with applicable DCP's set back requirements and being some 1.5 m below the maximum building height I am satisfied that there is no unreasonable impact on 36 Gardyne Street.

Amenity impacts - 34 Gardyne Street

17 The residents at 34 Gardyne Street are concerned that they will suffer a loss of district views to the north and are unhappy with the bulk and height of the building particularly in terms of its southern two-storey presentation. The town planners have not expressed any concerns as to impacts from the proposed building on this property.

18 Whilst there can be no doubt that there will be some loss off of views to the north, views of the distant ridge line will continue to be available from 34 Gardyne Street above the proposed building. More importantly the higher quality views to the northeast and east are unimpeded. As for the bulk and height of the proposed building, whilst there is a minor non-compliance with the DCP's 7.5 m maximum height limit at its eastern end, at its western end it is more than 2 m below this limit and is to be further lowered. This southern wall largely meets the applicable set back requirements. Notwithstanding its limited articulation and fenestration I accept that the two-storey presentation is not unreasonable. Whilst I recognize that its appearance is significantly softened by existing vegetation on the affected neighbours property I give little weight to this consideration.

Amenity impacts - 30 Gardyne Street

19 The main concerns of the residents at 30 Gardyne Street include the height and bulk of the proposed building. This is of particular concern to the elderly resident who spends much of his time on the balcony enjoying the outlook towards Bronte Beach.

20 I recognize that the proposed building will have an impact on some views but distant views towards Bronte Beach, between the proposed building and 34 Gardyne Street will remain. The proposed building will also feature prominently, but bearing in mind what I have already said about its height, and what I will shortly say about floor space ratio I do not accept that the impact is unreasonable.

Amenity impacts - 32 Gardyne Street

21 The greatest impacts associated with the proposed building are plainly those involving building bulk, privacy and view loss for the residents at 32 Gardyne Street. In response to these (and other) concerns the applicant agreed, during the course of the proceedings, to a number of changes to the proposed building mainly comprising: the provision of a lowered flat concrete roof above the bedroom at the building's eastern end; a reconfiguration and reduction in the area of the terrace associated with the kitchen and living room; and the provision of privacy screens on and adjacent to the dining room window (Exhibit L).

Building bulk

22 In relation to building bulk as viewed from 32 Gardyne Street, Mr Sanders is of the opinion that the bulk of the proposed building was positioned too close to his clients' balcony even though it complies with the applicable height and setback controls. Mr Kennan believed that the floor area of the kitchen should be reduced to provide a greater set back from the western boundary of the site to the benefit of the neighbour.

23 Ms McCabe disagrees with them explaining that, taking into account the complying building height, the proposed landscaping and the view corridor that has been provided, the arrangement is satisfactory. Also, there would be little difference between a 900 mm setback and a 1.5 m setback. To this I would add the fact that the building comprises, at this point a single storey structure (3 m high), occupies about one third of the width of the site and extends about 2 m beyond the southern alignment of its neighbour's property.

24 In this regard I agree with Mr Kennan and Mr Sanders and have decided that the building should be lowered and the setback from the western boundary should be increased to 1.5 m. By doing this, additional landscaping can be provided and the proposed building will not present as having an unreasonable bulk or proximity to 32 Gardyne Street.

Privacy

25 As for the issue of privacy there is no doubt that occupants of the proposed terrace on the north side of the living room would, at distances of between 10m and 18m (taking into account the revised terrace design - Exhibit L) would be able to look up and see as well as being able to hear people on the deck at 32 Gardyne Street. The reverse is also true. Mr Sanders believes that the extent of trafficable area on the terrace should be reduced to the area adjacent to the living room. The revised design goes some way to achieving this but does not go far enough. Also the steps to the pool area should be relocated again in the interests of privacy. Mr Kennan has a similar opinion.

26 Ms McCabe acknowledged that overlooking of the terrace is difficult to avoid as the provision of landscaping and privacy screens would restrict views. She did not believe that the provision of a large planter box to restrict the usability of the terrace would be of much benefit especially given the orientation of the terrace towards the views and not towards 32 Gardyne Street.

27 In my opinion the now amended terrace design with its reduced area and effectively increased separation from 32 Gardyne Street provides a satisfactory outcome even considering that it is larger than would be permitted by the DCP. It is to be the principal open space area for the house and in this locality/coastal context, reciprocal overlooking between terraces and balconies is fairly common.

View sharing

28 In principle the notion of view sharing involves the equitable access to views from dwellings with the purpose of achieving a balance between facilitating new development and preserving as far as is practicable, access to views from surrounding properties. An important aspect of view sharing is that while one property may lose some of their views another property will realise some views. It is also important to recognise that no-one can own a view across private property.

29 In my opinion the starting point for the consideration of view loss and view sharing associated with 32 Gardyne Street begins with an understanding of the associated aims and objectives of the planning controls. Generally these controls provide for the maintenance and improvement of existing amenity that obviously includes views. More particularly new development should not significantly detract from or minimise the loss of the existing private views of dwellings, especially where panoramic landscapes and ocean views are involved, as is the case here. It is also relevant to note that the building height objectives in the DCP include the minimization of view loss.

30 In the absence of further particulars, the aims and objectives of the planning controls can be supplemented by the planning principle in Tenacity Consulting v Warringah [2004] NSW LEC 140 where the Senior Commissioner dealt with the assessment of impacts associated with the loss of views. In essence this principle suggests that such impacts may be considered in terms of whether:

• The extent of the impact is reasonable taking into account the nature and significance of the affected views and the parts of the property that the affected views are obtained from,
• The views are across side boundaries,
• The proposal is otherwise reasonable taking into account the applicable planning controls,
• A more skilful design might produce a better result,
• The view impact of a complying development would be acceptable and the view sharing reasonable.

31 It is not in dispute that the views available from the ground floor level (deck and living room) 32 Gardyne Street are valuable; comprising expansive ocean, beach and landscape/urban development views. These views vary depending upon the position of the viewer. The views from the first floor bedroom and balcony are even better and are largely unaffected by the proposal. At ground floor level the (amended) proposal will continue to allow significant ocean views but will reduce beach and urban development views somewhat. The effect of the proposal is greater as the viewer moves from the deck into the living room. The town planners initially agreed that the impacts on the views from the deck and living room were moderate to severe, although Ms McCabe believed this impact was somewhat mitigated by the amended proposal including the removal of the roof garden and the lowering of the parapet at the eastern end of the building to RL 49.93.

32 The properties at 34B and 32 Gardyne Street both comprise hatchet shaped lots and but for their accessways are landlocked, thus having common boundaries with several other neighbouring properties. They have no street frontage in the usual sense and in my opinion these common boundaries are side boundaries and should be treated as such when applying Tenacity. Bearing in mind that there is no ownership of views across private property, any expectation for the complete retention of views across the common boundary between these properties must be given less weight, especially if height and setback controls (effectively envelope controls) are complied with.

33 As described above the site is subject to a two-storey building restriction with a flat roof no higher than 7.5 m. For a building of this height side setbacks must be at least 900 mm. On this basis and subject to floor space ratio and other merit considerations, a hypothetical two-storey building about 14 m wide could be positioned as close as 900 mm to the common boundary and 900 mm from the north and south boundaries. Such a building would respond to its context by having an easterly orientation thus maximising view opportunities towards Bronte Beach and providing its own privacy.

34 Conversely this hypothetical building would, most likely, completely obliterate the existing views from 32 Gardyne Street of Bronte Beach and the ocean from the existing deck and living room at ground floor level. It would also be likely to have a similar effect on the existing views from first floor balcony and bedroom. It could also have a significant impact on 32 Gardyne Street by placing a bulky built form in front of the existing deck that is positioned on the common boundary. Plainly, such a complying development would not, in terms of the objectives in the planning controls and the Tenacity tests be acceptable and would not represent reasonable view sharing.

35 At the other extreme, if the view sharing test required the maintenance of the majority of the existing and best views from the deck at 32 Gardyne Street, the majority of built form on the applicant's site would need to be more than about 2.5 m (at the eastern end of the site) and more than about 4.5 m (at the western end of the site) below the 7.5 m maximum height limit for a flat roof building. If this test were to be applied to the proposed building the vast majority of the second floor would need to be removed as well as some of the first floor. Even more of the proposed building would need to be removed if these views were sought to be retained from the living room at 32 Gardyne Street.

36 This is the context in which the I understand that the applicant's architect developed the approach of positioning the house towards the south west of the allotment and creating a stepped or terraced form to facilitate extensive view retention for up-hill properties. This approach has resulted in a long and skinny building rather than the square and fat building that would result from simple compliance with the envelope controls. More particularly the second floor of the proposed building (that is only about 6.5 m wide out of a site width of 16.36 m) is set back 8.73 m from the site's northern boundary (compared to the minimum requirement of 900 mm) opening up a significant view corridor for the neighbour at 32 Gardyne Street.

37 This design (including the recent amendment to lower the top of the parapet at the eastern end of the building to RL 49.93 (about 2.5 m lower than the maximum allowable height) facilitates views across the site, of the ocean and breaking waves on Bronte Beach. These views are progressively reduced as the viewer retreats from the existing deck into the living room. The existing excellent views from the first floor balcony and bedroom will only be affected to a relatively minor degree and the town planners agreed that this is reasonable.

38 The strategy associated with the floor space ratio standard in the DCP effectively requires building bulk to be compatible with surrounding built forms and to minimise adverse effects of bulk on adjoining properties. Mr Sanders and Mr Kennan believed that the excessive floor space should be removed from the building at the upper levels to reduce its apparent bulk. They also argued that a concurrent narrowing of the width of the living room would provide additional views. I also note that in assessing building bulk, the floor space ratio non-compliance, taking into account the area of the site's accessway is included in the calculation, can be considered to be of greater significance than would otherwise be the case.

39 Ms McCabe does not believe that the upper level of the building needs to be reduced in size because the built form is reasonable and view sharing is achieved. Also, the excess floor space, if it were are required to be removed this could be achieved elsewhere in the building and would make no difference in relation to views.

40 In my opinion and in relation to view loss, the non-compliance with the floor space ratio standard in the DCP attracts little weight as I do not accept that there is a direct relationship between floor space ratio standard and view loss. Conversely, given the much more direct relationship between the building envelope (height and setback) controls in the DCP and view sharing, greater weight can be given to the fact that the building complies with these requirements (with one minor and irrelevant exception).

41 Consequently in relation to the suggestion that the setback of the alignment of the living room from the northern boundary be increased from 8.730 m to 9.790 m from the northern boundary, having concluded that the proposed design has resulted in a satisfactory view sharing arrangement, and taking into account the adverse internal layout consequences that would result I do not accept that the sought increase is justified.

42 As for the question of whether a more skilful design could be produced that would provide the same development potential and further reduce view loss from 32 Gardyne Street, there can be no doubt that a different design could achieve this, for example as suggested by Mr Sanders and Mr Kennan. However this consideration is but one aspect of the view loss analysis and in my opinion need only be applied if one were to conclude that there is no reasonable view sharing which is not the case here. Also one should not disregard the reasonable expectations of an applicant who has made substantial concessions as against the otherwise permissible built form.

Conclusions

43 During the course of the hearing the applicant agreed to a number of changes to the proposal and I am now satisfied that in the light of the objectives of the planning controls and as contended by Ms McCabe the proposed design successfully balances impacts across five neighbours. I also accept that even though the floorspace of the proposed building exceeds that permitted by the DCP this is not indicative of an overdevelopment of the site.

44 Whilst 32 Gardyne Street will have some of its views affected by this proposed building I have been persuaded that the arrangement now proposed represents a reasonable balance in terms of view sharing.

45 For the above reasons I have decided that the appeal can be upheld and conditional development consent granted in accordance with the plans Exhibits H and L.

___________________

T.A. Bly

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