Disalvo v Woollahra Municipal Council

[2009] NSWLEC 1370

Land and Environment Court

of New South Wales

CITATION:

Disalvo v Woollahra Municipal Council [2009] NSWLEC 1370

PARTIES:

APPLICANT
Paul and Lucy Disalvo

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10182 of 2009

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT APPLICATION :- height and bulk of the proposal, adverse impact on streetscape, view loss and extent of excavation proposed.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003

CASES CITED:

Tsang v Canterbury Council 2001 52 NSW LR 589
Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING:

18 and 20 August 2009

EX TEMPORE JUDGMENT DATE:

21 August 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
Solicitors
Spiegel & Associates Pty Ltd

RESPONDENT
Ms M Hawley, solicitor
of Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

21 August 2009

10182 of 2009 Disalvo v Woollahra Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This is an appeal against the refusal by Woollahra Municipal Council (council) of a development application to demolish an existing house and construct a four level house with two double garages and a swimming pool at 13 New South Head Road, Vaucluse (the site).

2 The key issue between the parties is whether the height and bulk of the proposal will have an adverse impact on the streetscape and the amenity of the adjoining properties, particularly view loss, as well as the extent of the excavation proposed.

Site and its locality

3 The site is on the western side of New South Head Road. It has an area of 751.6 square metres and slopes approximately 13.9 metres from the rear to New South Head Road. There is a rock face wall with a single garage along this frontage. A single storey house with an under croft area is located above the rock face and set back from New South Head Road.

4 Ashgate Avenue public walkway adjoins the site to the south. A house (11 New South Head Road) is on the other side of the public walkway. A residential flat building (15 New South Head Road) adjoins to the north and a single dwelling (3 Ashgate Avenue) adjoins the site, across a public road, to the rear.

5 Development along New South Head Road is detached houses. Kincoppal School is on the opposite side of New South Head Road.

Planning controls

6 The site is zoned residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). Dwellings are permissible with consent. Residential flat buildings are not permissible in the zone. Clause 18 of LEP 1995 provides controls for excavation and cl 14 provides a height limit of 9.5 metres above existing ground level.

7 Woollahra Residential Development Control Plan 2003 (DCP 2003) is also relevant. The site is within Vaucluse East Precinct, which provides objectives and controls, including side boundary setback (C4.14.4) building height-storeys (C4.14.7.3) deep soil landscape and frontage (C4.14.7.5).

8 DCP 2003 provides general controls for streetscape (Part 5.1), building size and location (Part 5.2), open space and landscaping (Part 5.3), views (Part 5.5) and acoustic and visual privacy (Part 5.8).

The evidence

9 The Court visited the site and heard objections from the owners of units 3 and 5/15 New South Head Road, whose principal concern was view loss. The Court heard expert planning evidence from Mr T Wong, for the council and Mr D Kettle, for the applicant.

10 The proposal does not comply with a number of the numerical controls in DCP 2003, including:

• Floor Space Ratio (FSR) – DCP 2003 permits 0.5:1. The proposal is 0.7:1.
• Height - DCP 2003 permits two storeys with an under-croft area for sloping sites and an attic area in the roof. The proposal is two to three storeys.
• Setback - DCP 2003 requires a setback of 3.5 metres for that part of the upper storey which exceeds a height of 5.5 metres. The proposal is set back 2.5 metres on its northern boundary.

11 The key dispute between the parties was whether, despite the numerical non-compliance, the proposal met the objectives of the controls given its context. The experts held different opinions about the proposal’s compliance with qualitative controls, in particular excavation.

Height, bulk and scale

12 Mr Kettle considered that the proposal was of appropriate height, bulk and scale given the context of the adjoining residential flat building, Kincoppal School and other houses on the eastern side of New South Head Road between Hillside Avenue and Clairvaux Road.

13 Mr Kettle considered the definition of gross floor area (GFA) to be restrictive in comparison to the definition in the standard local environmental plan. In his opinion, the exceedence in FSR resulted from the additional two car spaces above council requirements and part of the balconies. Further, he noted that council recently approved 2A Hillside Avenue with an FSR exceeding 0.8:1 and a height of four storeys, which demonstrated that council applies a degree of flexibility in its assessment of applications under DCP 2003.

14 In Mr Kettle’s opinion, the predominant height of houses in this part of New South Head Road was two to three storeys, although he considered the residential flat building and 11 New South Head Road to be four storeys and with Kincoppal, to be the immediate context into which the house must fit. In his opinion, it did so comfortably.

15 Mr Wong considered that the FSR exceedence of 127 square metres contributed to the overall bulk of the building which, combined with the proposal’s number of storeys, was not consistent with the character of the street. In Mr Wong’s opinion, the existing dwellings in the street were predominantly two storeys with garages at the street frontage. He acknowledged that these could appear as three storeys, but that the setback of the dwelling from the garage and the street assisted in breaking up bulk.

16 Mr Wong agreed that the proposal is three storeys under the definition in DCP 2003, but visually would be perceived as three storeys directly over a garage level and therefore appear as four storeys in parts. Mr Wong recognised that the residential flat building and Kincoppal were dominant elements in the streetscape, but did not consider it appropriate that the development respond to the height and bulk of these buildings. 11 New South Head Road is technically four storeys under the DCP. However, the fourth storey element is a stairwell, which provides access to a roof terrace and the majority of the building is two storeys over a garage level.

17 Both Mr Wong and Mr Kettle agreed that under DCP 2003 the proposal is a part two, part three storey building. Visually the proposal would appear as a two, three and four storey building, depending on the vantage point from which it is viewed. Travelling down New South Head Road to the south, the dwelling would appear as a two storey building and would be recessive behind the adjoining residential flat building. Travelling up New South Head Road to the north, the dwelling would appear as a three storey building. Opposite the site and from the entrance to Ashgate Avenue pedestrian path, the garage level would be visible and the proposal would appear as a four storey building, albeit softened by landscaping.

Excavation

18 Mr Kettle considered that the excavation had been minimised on the site given the development proposal including the two garages accommodating four cars which, in his opinion, is a reasonable expectation for a six bedroom house in Vaucluse, particularly given the shortage of on-street parking resulting from the school use.

19 Mr Wong held the contrary opinion that the excavation (280 square metres and 1571 cubic metres) was excessive and would result in significant changes to the topography and landform of the site. He did not consider the provision of four car spaces, particularly as this exceeded the two spaces required under DCP 2003, justified the extent of excavation.

20 Both Mr Kettle and Mr Wong agreed that the 1967 Building Approval (BA) for the existing dwelling (for a swimming pool in the front garden, four car garages at the street-front, a lift and excavation to create an under croft level) had been substantially commenced. Mr Kettle estimated that the excavation as a result of the approved garages and swimming pool would be 114 square metres or 855 cubic metres. However, in his opinion, the current proposal, by retaining the rock wall, was a significantly better environmental solution, despite the additional excavation.

Findings

21 The parties made different submissions on the weight to be given to the numerical controls in the DCP.

22 The proper planning approach and the weight to be given to a DCP is established in CP 2003 contains an explanation of how to use the DCP controls. The objectives of each control describe the outcome to be achieved. The performance criteria describe specific ways that the objective may be met. DCP 2003 recognises that there may be other ways that the objective can be met besides the performance criteria, but it requires that the development demonstrate that it has fulfilled the relevant objective.

24 Ms Duggan, for the applicant, submits that there is characteristics of the site and its context that are unique and that the Vaucluse East Precinct Controls cover a wide area. The numerical controls for the precinct and the general controls cannot be readily applied to every site, rather an assessment is required to determine whether the proposal meets the desired future character objectives of the precinct.

25 Ms Hawley, for the council, submits that DCP 2003 states that applicants need to comply with the relevant requirements of the Precinct Controls in Part 4 and the General Controls in Part 5. In her submission, there is nothing unique about the site, which would absolve the proposal from attempting to meet the controls, having regard to the context of the site and the impact from the development and whether the objectives of the controls are achieved.

26 The parties held different opinions on whether the desired future character objectives of the precinct are met. The objectives are:

O4.14.1 To retain the scenic provide by the dramatic topography, natural vegetation and low scale built elements of the precinct;
O4.14.2 To reinforce the precinct’s landscape setting by minimising alterations to the landform and preserving the existing tree canopy;
O4.14.3 To maintain mature street trees, grassed verges and garden plantings;
O4.14.4 To protect important views from the public spaces of the precinct to the harbour, the city skyline and to surrounding districts;
O4.14.5 To maintain the evolution of low rise residential building styles through the introduction of god contemporary buildings.

27 Objectives 04.14.1 and 2 are the principal objectives in dispute between the parties. In Ms Duggan’s submission, the proposal is low scale because of the context in which it is located and it minimises alterations to the landform, given that the site is already altered and there is a BA. In Ms Hawley’s submission, whether a built element is low scale is informed by the performance criteria such as the number of storeys and setback controls in Part 4 and FSR controls in Part 5 with which the proposal does not comply.

28 The visual context is of two to three storey dwellings. The proposal will appear as a four storey building from certain vantage points and is not low scale. The alterations to landform resulting from the proposal are significantly greater, in Ms Hawley’s submission, than what currently exists on the site or what is approval under the BA.

29 I accept Ms Hawley’s submission that the residential flat building and Kincoppal are significant landmarks in the streetscape, but they do not define the context of the proposal. The visual context is of predominantly two storey detached dwellings set back from the street with garages at the street frontage or below the dwelling.

30 Within this context, the proposal when viewed travelling up New South Head Road to the north will appear as a three storey building and in some locations as a four storey building. Its location on the highest point of the highest site of the street will exacerbate the height of the building in comparison to the other dwellings to the south and it will clearly not be a low scale built element and therefore does not meet objective 04.14.1.

31 The proposal involves significant alterations to the landform through the extent of excavation on the site. The retention of the rock face at the front of the site is a positive feature of the development, however, there is significant excavation behind the rock face to provide the garages and the driveway access. The excavation may only be visible from limited vantage points such as the entrance to Ashgate Avenue pedestrian way and the driveway itself, however, it does not minimise alterations to the landform and does not meet objective 04.14.2.

32 Further, in relation to excavation, objective 05.24 of DCP 2003 seeks:

to limit site excavation and minimise cut and fill to ensure that building forms relate to topography and to protect the amenity of adjoining properties both during and after construction.

33 The extent of excavation is required to provide the amount and distribution of accommodation required by the applicant, particularly the four car spaces in two garages and the access. While it can be argued that the extent of excavation is minimised to achieve this level of development, I do not accept that the level of development is that which is anticipated by the planning controls given that it provides two car spaces in excess of those required by C5.9.5 of DCP 2003 and exceeds the FSR and number of storeys controls.

34 While four car spaces may be what is appropriate to meet the needs of occupants in Vaucluse, as suggested by Mr Kettle, this is not of itself a reason to vary the control nor to justify the extent of excavation. Variation to the parking control is more appropriately dealt with through a strategic planning process rather than through the development application process.

35 Nor do I accept the provision of car parking at 11 New South Head Road would justify the four spaces proposed, given that the parking at 11 New South Head Road is provided for two dwellings.

36 I accept that on-street parking may be limited at certain times due to the school use; however, no traffic evidence was provided to justify the additional on-site spaces given the extent of excavation involved.

37 The proposed parking arrangement, particularly the retention of the rock face, is preferable to that proposed in the BA, which permits four garages along the New South Head Road frontage. I note that this BA has substantial commencement and that the applicant may choose to pursue this option, however, this of itself does not justify the provision of four spaces on the site in the arrangement proposed. I do not accept that there are not other options to provide parking, which would involve less excavation, particularly if this is limited to two car parking spaces. The proposal therefore does not minimise excavation of a site and meet objective 05.24.

38 For the above reasons, the application must fail.

Other issues

39 For completeness, I will briefly discuss the other issues. The proposed swimming pool does not comply with C5.3.16 of DCP 2003 as it is not located in the rear of the property. However, given its elevated position above the street, its location predominantly within the building and its setback from the side boundaries, I accept that it would meet the objective of the control in 05.3.6.

40 In relation to view loss to unit 3/15 New South Head Road, this unit has extensive views towards the west to the harbour and the bridge and the city. The views to the south and east are to the side and over the roof of the existing building. Nonetheless, they provide amenity to the unit and are part of a panorama. Consistent with the principles of the Senior Commissioner in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, the key question to be answered is whether the extent of view loss is reasonable given that it can be argued that it results from a non-complying development. While the proposal complies with the 9.5 metre height control in LEP 1995, it does not comply with the number of storeys or the FSR control in DCP 2003. Given these non-compliances, I accept that the view loss to unit 3/15 New South Head Road resulting from the application is not reasonable.

41 The orders of the Court are:

1. The appeal is dismissed.
2. The development application to demolish an existing house and construct a new house with two double garages and a swimming pool at 13 New South Head Road, Vaucluse, is refused.
3. The exhibits, except exhibits 2 and E, are returned.

___________________

Annelise Tuor
Commissioner of the Court
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