David v Woollahra Council

[2006] NSWLEC 398

Land and Environment Court

of New South Wales

CITATION:	David v Woollahra Council [2006] NSWLEC 398
PARTIES:	Applicant: Rodric David Respondent: Woollahra Council
FILE NUMBER(S):	11603 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Control Plan - Development Standards :- non-compliance with floor space ratio standard
CASES CITED:	Stockland Development Pty Ltd v Manly Council [2004] LGERA 254
DATES OF HEARING:	22/06/2006
DATE OF JUDGMENT:	07/07/2006
LEGAL REPRESENTATIVES:	Applicant: Mr M Fraser, barrister instructed by Mr P O'Brien of Harris & Co Respondent: Mr M Connell and Ms M Vazquez, solicitors of Home Wilkinson Lowry

JUDGMENT:

- 9 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

7 July 2006

11603 of 2005 Rodric David v Woollahra Municipal Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Woollahra Council (the council) of a development application to demolish the existing house and construct a new three-storey house on lot 8 DP 315008, known as 10 Wentworth Road, Vaucluse.

The site
The site is on the southern side of Wentworth Road. It has an area of 1,617m2. It falls about 2m from the northwest to the southwest corner. The existing house is part two and part three-storey, set back about 30m from the street, hard against the rear boundary. There is a detached garage against the northwest boundary.

2 Adjoining the site to the northeast is 12 Wentworth Road, a two-storey building housing the Canadian Consulate. Adjoining to the southeast are 8 Wentworth Road (a two-storey house) and 6A Wentworth Road (a part two and three-storey house), the latter being a battle-axe allotment. Adjoining to the southwest is 6 Graylind Place, which is a two-storey house with a roof terrace. Adjoining at the south corner is 4 Graylind Place, which is a part one and part two-storey house.

3 The wider locality is a mixture of one, two and three-storey houses on large allotments, though few are as large as the subject site.

The proposal and its history

4 The applicant proposes to demolish the existing buildings on the site and to erect a three-storey house over basement parking with a roof terrace and toilet on top of the roof. The application drawings give the gross floor area as 1,075m2, though this takes no account of the six-car garage in the basement. When the garage area in excess of the council’s requirement (2 cars) is included, the gross floor area, the gross floor area is 1,277m2.

5 The ground floor contains a family room, bar, kitchenette, cinema room and gymnasium. The first floor contains a living room, two child and two guest bedrooms, master bedroom, guest retreat area and numerous bathrooms. The second floor contains a piano room, a cigar room, a library, formal and family dining rooms, a wine cellar and kitchen. The ground floor has a roof terrace over the garage, while the other floors each have several decks. The roof terrace has a spa and a toilet.

6 I note that the house has twelve toilets. I accept, of course, that an applicant can have as many toilets as it chooses, so long as it complies with the planning controls, which this house does not. I make the observation only in order to demonstrate that reducing the size of this house in order to bring it into compliance would not cause hardship.

7 The applicant lodged the development application in September 2004. Following notification, the council received two objections: from 20B New South Head Road and from 6A Wentworth Road. The council sought further information, which the applicant provided in October 2004. In March 2005 the council refused the application under delegated authority. Following a request for review, the council refused it again in February 2006. The applicant filed the appeal in December 2005.

Relevant planning documents

8 Local Environmental Plan 1995 (LEP 95) zones the site residential 2(a). Clause 12 deals with height. It establishes a maximum height of 9.5m for the site. LEP 95 defines gross floor area so as to exclude car parking, but only to the extent that it meets the requirements of the council and any access to the car park.

9 The Residential Development Control Plan (the DCP) provides detailed controls. The most relevant section is C5.2.9, which establishes a maximum FSR of 0.55:1 for sites of 400m2 or more.

The issues

10 The council submitted a Statement of Issues containing six issues. At the commencement of the hearing, the council’s advocate, Mr M Connell, identified the main issues as follows:

· The proposal exceeds the permissible FSR and, as a result, its bulk is excessive.

· The proposal is three storeys instead of the two as required by the DCP.

· The roof terrace and spa impact adversely on 20B New South Head Road.

The objectors

11 The Court heard the evidence of two objectors during the site visit. Mr S Linz, who lives at 20B New South Head Road, objected to the roof terrace and spa. The roof terrace is about 25m from Mr Linz’s property.

12 Mr I Honigstock, who lives at 6A Wentworth Road, objected to the impact of the part of the proposal that is outside the envelope of the existing house and is set back about 2m from the common boundary. Mr N Ingham, a planning consultant and by Mr T Hale, a senior counsel assisted the Court in explaining Mr Honigstock’s case.

The experts

13 At the request of the parties the Court appointed Mr M Harrison, an architect and urban designer, as an expert. It gave leave to the council to adduce evidence from its senior assessment officer, Mr D Waghorn.

FSR and bulk

14 Clause 11AA of LEP 95 contains the objectives of FSR standards:

a. To set the maximum density for new development;
b. to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities;
c. to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties; and to relate new development to the existing character of surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point.

15 The objectives are followed by a note to the effect that

the maximum permissible floor space ratio is not “as of right”. To achieve the maximum permissible floor space ratio, a development must satisfy other relevant controls applicable to the land concerned.

16 As mentioned above, C5.2.9 of the DCP provides for a maximum FSR for this site of 0.55:1. When measured according to the requirements of LEP 95, the proposal’s FSR is 0.79:1. Measured according to the same method, the FSR of the existing house in 0.63:1. (The above information derives from Exhibit 13, prepared and signed by Mr Waghorn and Mr Harrison.) The applicant also provided measurements of the aboveground FSR of the proposal, which is 0.66:1. Mr Harrison and Mr Waghorn agreed that the corresponding FSR for the existing house is 0.51:1. The applicant’s advocate, Mr M Fraser, submitted that the experts were wrong and the correct aboveground FSR for the existing house is 0.6:1 (not 0.51:1). I do not think much turns on this discrepancy for two reasons:

· the method of calculation is set out in LEP 95 and it is an error to calculate the FSR according to any other method; and

· the proposed aboveground FSR exceeds the existing aboveground FSR, whether the experts are correct or Mr Fraser is.

17 Mr Harrison, supported the non-compliance. He stated in his report:

The FSR calculated by the applicant is 0.66:1 (excluding the basement car park) which is 20% greater that the maximum. I have done a check of the FSR calculations and agree with the applicant. Given that the existing house exceeds the FSR and that the proposal is more beneficial to the area than the existing house, I support the FSR exceedence of the DCP control subject to the roof terrace modification as discussed in Section 2.2 above. (The applicant amended the drawings to comply with the suggested roof terrace modification.)

18 In the joint report of Mr Harrison and Mr Waghorn, Mr Harrison observed:

MH (Mr Harrison) does not understand the reasons for including basement car parking in FSR and considers the two reasons stated in the DCP to be invalid.

19 I do not accept Mr Harrison’s evidence because it is wrong in approach and wrong in fact. It is wrong in approach because it is inappropriate for an expert to substitute his or her value judgment for that of a local environmental plan or a development control plan, which represent the collective value judgments of a council and its community, usually arrived at after a long period of consultation. If the LEP or the DCP requires the inclusion of part of the basement garage in the gross floor space, then one must include it. Apart from cases where a planning document is internally inconsistent or results in an absurdity, its provisions must not be ignored only because an expert does not like them.

20 The evidence is also wrong in fact. If one calculates the FSR of the existing house in the same way as the FSR of 0.66:1 was calculated for the proposal (ie the aboveground FSR), then the result is 0.51:1 (according to Mr Harrison and Mr Waghorn), or 0.6:1 (according to the applicant’s advocate, Mr M Fraser). If Mr Harrison is right, then the aboveground FSR of the existing house is under the permissible FSR of 0.55:1, not above it. If Mr Fraser is right, then the aboveground FSR of the existing house breaches the permissible to a much lesser extent than does the proposed house.

21 (I should add that Woollahra is not alone in including parking in excess of that required by the council in the gross floor area. The planning controls of numerous other local government areas do the same. The provision is not internally inconsistent, nor does it lead to an absurdity. It appears to be motivated by a desire to reduce excavation and car ownership, both reasonable environmental objectives.)

22 I turn to the justification in the applicant’s submission for exceeding the maximum FSR. The first justification is that the proposal’s aboveground FSR is 0.66:1 against the existing house’s aboveground FSR of 0.60:1. As I have said before, the applicant must not ignore the definition of gross floor space in LEP 95. The correct comparison is 0.79:1 to 0.63:1. However, even if I accepted that the aboveground FSR is relevant, the proposed house should still be reduced by 10%.

23 The second justification is that the site is so large that “strict compliance with controls can be counter-productive (rear set back) and simply unfair (FSR) having regard to site area” and “there is an immediate tension in the controls particularly for FSR where the lots size is so exceptional” (Mr Fraser’s written submission dated 28 June 2006). On the contrary, a large site makes it much easier to comply with a maximum FSR as generous as the one in the DCP. Since the site area is 1,617m2, a FSR of 0.55:1 allows a house to have a total floor area of about 890m2 excluding a double garage. This is much bigger than the median house, even in Vaucluse.

24 The third justification is that the proposal complies with the height controls. This is not correct, since the proposal exceeds both the height and the number of storeys. I do not think that this matters greatly, however, it is not an argument for also exceeding the permissible FSR.

25 The fourth justification is that the FSR could be reduced without reducing the apparent bulk of the house. I have no doubt that, if the applicant tried hard enough, it could produce a design with less gross floor area, but with a similar bulk, for example by including a large void within the building. I have to be guided, however, by the assumption (true in most cases) that reduced floor space leads to reduced bulk, and that designers are motivated by goodwill rather than spite.

26 The fifth justification is that the proposal, despite exceeding the maximum FSR, has no adverse impact. The lack of environmental harm is not, by itself, sufficient to justify varying a development control. Moreover, the proposal does have an impact on 6A Wentworth Road. I do not think that the impact is so significant that it would justify refusal of a complying proposal. However, when a proposal is much larger than the development controls permit, the test of the impact is more stringent. The fact that the applicant could reduce floor space from a part of the building that does not affect No 6A is not a reason to allow the exceedence.

27 Finally, the applicant’s justification is that the only thing compliance with the maximum FSR would achieve is a tick in a “theoretical compliance table”. I do not accept this submission. I note that Vaucluse has a leafy open character. The DCP describes the desired future character of the Vaucluse West Precinct as:

To retain the scenic qualities provided by the dramatic topography, natural vegetation and low scale built elements that provide an attractive setting on Sydney Harbour.

28 The scenic quality of Vaucluse has been achieved because, despite the DCP’s maximum FSR of 0.55:1, most of the existing buildings date from an era when people did not aspire to such large houses, so that the actual FSR of Vaucluse is much less than 0.55:1. (This is based on my observations, not on evidence in the case.) Once the general FSR of a residential area exceeds 0.5:1, the open low-density character begins to disappear, to be replaced by something more urban and dense. Although exceeding the FSR of 0.55:1 in a single case is unlikely to affect the suburb’s character, exceeding it in many cases would eventually lead to a change in character. To uphold the FSR standard therefore achieves more than tick in a box.

29 In Stockland v Manly Council [2004] 136 LGRA 254 McClellan J discussed the principles that apply to the consideration of DCPs. According to those principles, in order to decide what weight to give to a development control in a DCP, one should have regard to three criteria:

1. the extent to which the DCP is a result of community consultation;

2. the consistency with which the DCP has been applied; and

3. the quality of planning outcome if the DCP is applied.

30 As regards the first criterion, while there was no evidence on the extent of community consultation that preceded the making of the DCP, I have no reason to assume that it was less than that usually accompanying the exhibition of DCPs. As regards the third criterion, I have already stated that anything higher than a FSR of 0.55:1 would destroy the character of Vaucluse. There remains the second criterion to consider, that of consistency of application. I have no reason to assume that the FSR has not been applied consistently since 2004 when the DCP was made. The corollary of the criterion is that every time the council, or the Court, permits a variation without good reason, a nail is driven into the coffin of the FSR control. The application of the control becomes increasingly difficult.

31 In my opinion, there is no justification in varying the maximum permissible FSR of 0.55:1 for this proposal, as calculated according to the definition of gross floor area in LEP 95. Since the FSR of the existing house (when calculated in the same way) is higher than that, there may be a case for the new house to be built to the FSR of the existing. This would require a reduction of about 260m2 in the gross floor space.

Number of storeys

32 Given my finding above, it is not necessary to decide the remaining issues. However, since they were discussed during the hearing and there is likely to be another application for the site, it is useful to deal with them here.

33 According to the DCP, development in Vaucluse West is to have a maximum height of two storeys. The proposal is a three-storey house, above a basement garage and with a roof terrace with a spa and toilet on top of the third storey. In Mr Harrison’s view, there are so many three-storey houses already around the site that it would be unreasonable to enforce this requirement. I agree with him on this issue, although I note that on this basis it will be difficult to restrict future development in the area to two storeys on any site.

Roof terrace and spa

34 I note that the proposed roof terrace is about 25m from the objector’s property at 20B New South Head Road. Given that distance, it would not be reasonable to refuse the roof terrace merely on the grounds of disturbance to the neighbours. However, I note that the roof terrace is on top of the third floor, which already requires a variation of the DCP’s requirement for two-storey buildings. Moreover, the roof terrace has a permanent building accommodating a toilet. I note that roof terraces often end up with shade structures that further add to the perceived height and bulk of buildings. In my opinion, a roof terrace on top of the third storey (which is already a concession) is inappropriate. If it were on top of the second storey, it would probably be acceptable.

Conclusions

35 This proposal has a FSR of 0.79:1 where the DCP establishes a maximum FSR of 0.55:1. It also significantly exceeds the FSR of the existing house. There is no justification for exceeding both of these benchmarks. The FSR control allows a house on this site with a gross floor area of 890m2, which is ample for a single-family house. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing house and construct a new three-storey house on lot 8 DP 315008, known as 10 Wentworth Road, Vaucluse is determined by refusal.

3. The exhibits are returned.

___________________
Dr John Roseth
Senior Commissioner