Duncan Mair v Woollahra Municipal Council

[2003] NSWLEC 320

>

Land and Environment Court

of New South Wales

CITATION:	Duncan Mair v Woollahra Municipal Council [2003] NSWLEC 320
PARTIES:	APPLICANT Duncan Mair RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10780 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Whether or not there would be a breach of the 8.2m maximum height standard and whether or not the State Environmental Planning Policy No.1 objection (SEPP1) should be upheld. Whether or not there would be an unacceptable detrimental impact on the significance of the surrounding Watsons Bay Heritage Conservation Area. Whether or not there would be an unacceptable loss of views from No.188 Hopetoun Avenue and inadequate view sharing and Whether or not there would be overlooking of Nos.1 Salisbury Place and 186 Hopetoun Avenue.
LEGISLATION CITED:	Woollahra Local Environmental Plan 1995, (WLEP) Woollahra Residential Development Control Plan 1995, (RDCP) Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours, (SREP23) Development Control Plan for Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours, (DCPSREP23) Crimes Act 1900 Environmental Planning and Assessment Act 1979, ss79C, 97 Rivers and Foreshores Improvement Act 1948, Part 3A
CASES CITED:
DATES OF HEARING:	24/11/03
EX TEMPORE JUDGMENT DATE :	11/24/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Mair in person RESPONDENT Mr M J Connell, solicitor Michell Sillar

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10780 of 2003

Watts C

24 November 2003

Duncan Mair

Applicant
v

Woollahra Municipal Council

Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Woollahra Municipal Council (the council) of a development application to alter and add to an existing semi-detached dwelling house, involving a first floor addition containing two bedrooms and an en-suite, at Lot 2 in DP 215812 being No 6 Marine Parade, Watsons Bay.

2 I visited the land in company with the parties at the on-site hearing.

3 I have concluded that the application should not succeed for reason of the breach of the height control and the fact that the SEPP1 objection cannot be upheld. Also the proposal would adversely impact on the heritage significance of the Watsons Bay Conservation Area, and there would be an unreasonable view loss, and overshadowing as a result of the extent of the proposed first floor extension.

The land

4 The land is situated on the northeastern side of Marine Parade.

5 The land is rectangular with a frontage to Marine Parade to the west of 8.04m an eastern boundary of 5.35m, a southern boundary of 45.5m and a northern boundary of 39.0m, and an area of 250.6m2. The land has a cross fall from east to west of around 4.87m.

6 Erected on the land is a brick and fibro semi-detached dwelling with a tiled and metal roof and a garage towards the front.

7 The area in the vicinity of the land is characterised by single-storey to three-storey residential dwellings. To the north of the land is council-owned land used as for tearooms and known as ‘Teagardens’. Immediately south is a three-storey brick and tile dwelling that was formerly a residential flat building, with garages also located towards the front.

Relevant planning controls
a Woollahra Local Environmental Plan 1995, (WLEP)

8 Under the provisions of the WLEP the land is zoned Residential 2(a) and the proposal is permissible with development consent.

9 The land is located within the Watsons Bay Heritage Conservation Area and the Harbour Foreshore Scenic Protection Area.

10 Clause 2(2)(h) of WLEP states, [Note: Exhibit 5 pp 2-3]:

2(2)(h) in relation to the area's foreshores and the harbour foreshore scenic protection area:
(i) to seek the retention of public foreshore lands for public purposes,
(ii) to encourage development which, through its form, scale, materials and design is compatible with the natural and environmentally acceptable built landform of the foreshore areas as viewed from the water,
(iii) to recognise the residential, recreational, tourist and commercial characteristics of the foreshore area and to co-ordinate development in order to protect the area's scenic and natural attributes,
(iv) to consider the impact of development on the views of Sydney Harbour enjoyed by existing residents and promote the practice of view sharing,
(v) to protect and, where possible, improve the view of Sydney Harbour and its foreshore areas obtained from public land,
(vi) to protect the natural, scenic and cultural attributes of the, area's foreshores, including the visually and ecologically significant beaches, inter-tidal rock formations, vegetation, rock faces, shelves and outcrops,
(vii) to preserve existing public open spaces along the foreshores and to promote the dedication, acquisition, lease or occupation of additional useable areas so as to provide further public pedestrian access to and along the foreshores in appropriate locations, and
(viii) to protect the native flora and fauna.

11 Clause 2(2)(k) of WLEP states, [Note: Exhibit 5 p 3]:

2(2)(k) in relation to urban design:
(i) to promote the creation and upkeep of an attractive and comfortable public environment,
(ii) to retain and enhance the existing elements of the physical environment of the area of Woollahra that, in the opinion of the Council, contribute to the attractive public environment, and
(iii) to require that design and siting of new development enhance the attributes of its site and improve the quality of the public environment, and...

12 The objectives of the Residential 2(a) zone within WLEP are, [Note: Exhibit 5 p 6]:

Objectives of the zone
The objectives are:
(a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses,
(b) to allow certain non-residential development of low intensity which is compatible with the residential character and amenity of the locality,
(c) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and
(d) to protect the environmental attributes of the coastal and foreshore lands.

13 Clause 12AA of WLEP are, [Note: Exhibit 5 p 16]:

The objectives of the maximum building height development standards set by clause 12 are as follows:
(a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City Skyline,
(b) to provide compatibility with the adjoining residential neighbouring dwellings;
(c) to safeguard visual privacy or interior and exterior living areas of neighbouring dwellings;
(d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing;
(e) To maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of the streetscapes.

Clause 12 of WLEP states, [Note: Exhibit 5 pp 16-7]:

Height of buildings
(1) A building shall not be erected on land within a height zone to a height greater than the maximum height shown on the height map as applicable to land within that height zone.
(2) If, on the height map, 2 height limits are indicated as applying to the land within a height zone:
(a) the height indicated by the colouring on the height map shall be the overall height limit for a building for the purpose of subclause (1), and
(b) no building or part of a building shall be erected on land within the height zone to a height greater than the figure shown bracketed on the height map, above the highest part of the land (exclusive of any access corridor) or the crown of any road to which the land has direct frontage, whichever is the higher.

b Woollahra Residential Development Control Plan 1995, (RDCP)

14 The relevant objectives of RDCP are, [Note: Exhibit 6 p 8]:

5.1(f) specifically in relation to any development, to protect and promote:
i) Sunlight access, views and aural and visual privacy in relation to a site and neighbouring land;
ii) Compatibility with the scale, built form and intensity of use of surrounding development
iii) …
iv) the natural environment.

5.1(g) to achieve a balance between the right to reasonably develop the subject site and the right to preserve aural and visual privacy, views, sunlight and the amenity of the neighbouring lands.

15 Clause 6 of RDCP states, [Note: Exhibit 6 p 9]:

6.3 The height of any external enclosing wall (other than a gable not exceeding 10m2 in area or a wall enclosing a dormer window) of a building erected on land zoned Residential 2(a) should not exceed:
a) 6.7 metres, for buildings erected on land which a local environmental plan establishes a maximum building height of 8.2 metres;
b) ...

16 Clause 8.3 of RDCP states, [Note: Exhibit 6 pp 11-2]:

Where boundary setbacks are not specified in the relevant environmental planning instrument or development control plan, the following setback controls will apply to all development on land zoned Residential 2(a) and to development elsewhere of a height not exceeding 9.5 metres above ground level:
a) ...
b) front and rear boundary setbacks should conform with the predominant setback in the street, and generally be equal to or greater than the setback of the principal building on adjoining allotments, with a minimum rear boundary setback of 1.5 metres to be applied,
c) the minimum setback between any point on the development (not being a vent, a chimney, or an eave to 6.0 metre in width) and a side boundary will be 1.5 metres, increased by one metre for each metre , on a pro-rata basis, by which the height above boundary level of the point exceeds 6.5 metres. This setback requirement is represented by the formula below:
S=1.5+h-6.5
a Where: S is the setback in metres; and

h is the Height Above Boundary Level (see definition) of the point, measured in metres.

17 Clause 10 of the RDCP states, [Note: Exhibit 6 p 17]:

10.1 The objectives of the building form controls are to protect and promote:
a) compatibility with the scale and character of the development in the neighbourhood;
b) the streetscape amenity;
c) a high standard of building design; and
d) the setting of heritage items and conservation areas.

c Sydney Regional Environmental Plan No 23 -Sydney and Middle Harbours, (SREP23)

18 Clause 18(a) of SREP23 provides:

18 Matters for consideration in determining development applications
A consent authority must not consent to the carrying out of development unless it is satisfied that the proposed development is consistent with development of the land to which this plan applies in accordance with the objectives of this plan, and it has considered such of the following matters as are of relevance to the development.'
(b) the appearance of the development from the waterway and the foreshores,
(c) ...

19 The aims and objectives of SREP23 provide:

(1) The general aims of this plan are:
(a) to establish a framework which encourages a consistent and co-ordinated approach to the planning, development and management of the waterway, islands and foreshores of Sydney and Middle Harbours, and
(b) to establish an efficient and effective development control system for the Harbours and their foreshores and islands, and
(c) to ensure that the Harbours and their foreshores and islands are developed and promoted as a community asset, with due recognition being given to their role as a recreation and tourist focal point, and

(2) The specific aims of this plan are:
(a) ...
(b) ...
(f) in relation to the visual environment:
i. to protect and enhance the landscape and special scenic qualities of the Harbours, and
ii. to ensure that adequate consideration is given to the visual impact of development, and
iii. to preserve the natural foreshores of the Harbours and to ensure development does not detract from their natural character, and
iv. ...

d Development Control Plan for Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours, (DCPSREP23)

e Rivers and Foreshores Improvement Act 1948, Part 3A, (RFIA)

20 Under Part 3A of the RFIA Waterways has by letter dated 10 June 2003, required general terms of approval to be met if approval were granted. These general terms of approval would be incorporated in the conditions.

The proposal and its history

21 Development application No 318/2003/1 was lodged with the respondent council on 2 May 2003 to alter and add to an existing semi-detached dwelling house, involving a first floor addition containing two bedrooms and an en-suite on the land.

22 The proposal is described in plans prepared by Vernon Architects Pty Limited Issue F undated in Exhibit A.

23 The proposed addition would be constructed of lightweight construction, clad with copper and weatherboard. The first floor level of 7.48m AHD would have an overall height of 9.5m with a ridge height of 11.75m AHD. The proposal would have a maximum wall height of 7.5m on the southern elevation at the front and would be setback from the southern boundary by 0.9m. The floor space ratio of the completed building would be 0.77:1, as calculated by the architect. The allowable FSR is 0.8:1.

24 Two balconies are proposed within the proposed first floor addition. One balcony, on the western facade fronting Marine Parade, would have an area of 19.4m2 while the balcony to the east or the rear elevation would have an area of 15.148m2. Aluminium windows and doors would access these balconies.

25 The application was notified to nearby owners and occupants and the council received five submissions. Concerns included:

• Privacy;
• Streetscape;
• Non-compliance with the 8.2m height standard;
• Non-compliance with the required side boundary setback;
• View loss.

The council’s decision

26 When the appeal was filed the council had not formally refused the application, hence it is a deemed refusal. A planning report dated 3 July 2003 recommended refusal of the application for reason of the breach of the 8.2m maximum height standard and that no SEPP1 objection had been received. That objection has now been prepared and submitted with the application.

27 Other factors in the refusal recommendation included; unacceptable detrimental impact on the significance of the surrounding Watsons Bay Heritage Conservation Area due to excessive height, bulk and scale and inappropriate building form; loss of views from No 188 Hopetoun Avenue and inadequate view sharing; overlooking of Nos 1 Salisbury Place and 186 Hopetoun Avenue.

The hearing

28 The appeal was filed on 9 July 2003.

29 At the hearing the court heard evidence on behalf of the respondent council from:

• Mr H M Sanders, consultant town planner, his statement was Exhibit 1;
• Mr Z Kovacs, architect, and heritage officer Woollahra Council his statement of evidence was Exhibit 2;
• Ms G Elder, resident of No 186 Hopetoun Avenue;
• Mr P Gottlieb, resident of No 1 Salisbury Place;
• Mr S Ricardo, representing the resident of No 5 Marine Parade, Mrs J Flemming;
• Mr I Cornick, resident of No 188 Hopetoun Avenue;
• Ms K Scott, resident of No 188 Hopetoun Avenue; and
• Mr R G Rosenblum, resident of No 2 Roberston Place.

30 On behalf of the applicant evidence was given by:

• Mr Mair, who besides, being the applicant is a town planner. His statement of evidence became Exhibit B.

31 On 10 September 2003 the council filed a statement of issues.

1. The proposal exceeds the maximum height limit of 8.2 metres applicable to the site pursuant to Clause 12 of the Woollahra Local Environmental Plan 1995 ("WLEP").
2. Whether the Applicant's SEPP1 objection in relation to the exceedance of the development standard for height should be upheld.
3. Whether the proposed development is acceptable having regard to clause 18(a), and the aims and objectives of Sydney Regional Environmental Plan 23 ("SREP 23"), and the DCP for SREP 23.
4. Whether the proposal satisfies other relevant provisions of the WLEP, including Clause 8(5), Clause 2(2)(g), Clause 2(2)(h), Clause 2(2)(k), the objectives of the residential 2(a) zone, Clause 27 and 28.
5. Whether the proposal would have an unacceptable detrimental impact on the significance of the surrounding Watsons Bay Heritage Conservation Area due to its excessive height, bulk and scale and inappropriate building form.
6. Whether the proposed development is acceptable having regard to the relevant objectives of the Council's Residential Development Control Plan 1995, particularly objectives 5.1(f)(i), (ii) and (iv) and 5.1(g).
7. Whether the proposal is acceptable having regard to Clause 6 of the RDCP, Clause 8 (in relation to the objectives and the non-compliance with the side setback controls and the additional overshadowing caused by the proposal), Clause 10.1 (a)-(d).
8. Whether the proposal would result in the loss of existing views currently available to the occupants of the properties to the rear in Hopetoun Avenue.
9. Whether the proposal is in the public interest.
10. Whether matters raised by objectors can be adequately addressed.

32 The following emerged as the salient issues:

• Breach of the 8.2m maximum height standard;
• Unacceptable detrimental impact on the significance of the surrounding Watsons Bay Heritage Conservation Area;
• Loss of views from No 188 Hopetoun Avenue and inadequate view sharing
• Overlooking of No 186 Hopetoun Avenue.

The evidence and findings

f Breach of the 8.2m maximum height standard;

33 The maximum building height applying to the land under the WLEP is 8.2m and it is proposed to erect a building with an overall height of 9.5m or around 1.3m higher.

34 The cl 12AA objectives of the height controls under the WLEP include; minimising the impact on views of Sydney Harbour; providing compatibility with adjoining residential development; safeguarding visual privacy of neighbouring dwellings; minimising detrimental impacts associated with overshadowing and maintaining amenity of the public domain and the special qualities of streetscapes.

35 Mr Sanders was of the opinion that the application should be refused for this reason as, [Note: Exhibit 1, pp 7 and 8]:

...the breach of the height control is not warranted on the basis that the proposal would be inconsistent with the objectives of the height control. In particular... the proposal would have an adverse impact on existing views of Sydney Harbour, it would not be compatible with the adjoining residential development and would have an uncharacteristic and incongruous appearance. It would result in adverse impacts on the amenity of adjoining properties and cause excessive overshadowing of the neighbouring property to the south. It would also detract from the appearance of the public domain and have an adverse impact on the streetscape in the locality.

36 As a result he did not support the SEPP1 objection to the height standard.

37 Mr Mair agreed that the proposal would exceed the height standard at the front western side, however, he stressed that the height at the rear would be around 425mm lower than required.

38 When viewed from the waters of Watsons Bay, it is clear that the front western side of the proposal, as shown by the staves that were erected on the roof, would block the views from the properties uphill to the east more than the rear of the proposed extension.

39 The grounds of the SEPP1 objection [Note: Exhibit 3 pp 50-52] are:

• The control is a planning control under the WLEP;
• The proposal would provide compatibility with the residential neighbourhood;
• Compliance with the development standards and would be consistent with SEPP1;
• Compliance with the standard and would not tend to hinder the attainment of the objects of the Act, for the orderly and economic development of land;

• The proposed ridge would have a RL of 11.755m and the adjoining property at No 5 Marine Parade, has a ridge of 13.18m and the ground floor of the property to the rear at No 188 Hopetoun Avenue has a RL of 10.7m and the second property at No 186 Hopetoun Avenue has a ground floor to RL 11.04m.
• As the site is sloping the rear of the proposed development being around 7.8m above ground level and as the ridge is level the proposed addition would not affect properties to the rear. Views are maintained from the rear properties above 7.8m with it being around 400mm below the rear of the house.

40 The neighbours gave evidence of view impacts and urge the court to not allow the objection and to require the height standard to be maintained. I have also noted the views likely to be impacted by the proposal on the site inspection.

41 I have carefully considered the evidence, submissions and have concluded that the SEPP1 objection should not be upheld. The proposal, because of its height, would adversely impact on views from houses to the rear and east and would be likely to overshadow No 5 Marine Parade to an unreasonable extent.

42 I do not accept the evidence of Mr Mair that the proposal represents reasonable view sharing. It is clear that a proposal that would comply in terms of height would not impact on views to the extent that would the proposal.

43 Compliance with the height standard of the WLEP is not unreasonable or unnecessary in the circumstances of this case. Thus the application fails, as the SEPP1 objection is not upheld. Although it is not necessary for me to examine other aspects of the design I have taken these matters into account.

g Unacceptable detrimental impact on the significance of the surrounding Watsons Bay Heritage Conservation Area;

44 Mr Sanders was of the opinion, [Note: Exhibit 1 p 9];

...the proposal will appear as an incongruous and uncharacteristic element when viewed from the water, as it will when viewed from other areas within the public domain and will detract from the appearance of the area.

45 Mr Kovacs stated that as the proposal is within the Watsons Bay Conservation Area it is necessary to consider under the planning controls in Item 2(2)(g) WLEP the need to conserve the environmental heritage of the area. Paramount is the requirement to ensure that development, especially new development, is undertaken in a matter that does not detract the setting of the Urban Conservation Area. He also referred to cl 27 likely effects of the proposal on the heritage significance of the heritage item or the conservation area.

46 He explained that the Watsons Bay Conservation Area has outstanding natural beauty, and the buildings must not dominate the natural topography and setting.

47 He was of the opinion that because of the excessive height and the forward position of the proposal the building impacts unreasonably and the new roof would disrupt the setting. He said the long narrow gable roof would not fit with the existing building and the two parts, the old and the new, would not relate and would be intrusive in the conservation area.

48 Mr Mair supported the development, however, I was not persuaded by his evidence and I prefer the evidence of the Messrs Sanders and Kovacs. The residents were also concerned for the form of the development in this part of Watsons Bay.

h Loss of views from No 188 Hopetoun Avenue, inadequate view sharing

49 Mr Sanders was of the opinion, [Note: Exhibit 1 p13]

In addition the proposed bulk and scale of the development is not compatible with surrounding development and the breaches relating to height obstruct existing view corridors of properties to the rear within Hopetoun Avenue towards Watsons Bay.

50 I accept that evidence and consider the proposal as a result of its breach of the standards, would unreasonably impact on views, especially from No 188 Hopetoun Avenue.

i Overlooking of Nos 1 Salisbury Place and 186 Hopetoun Avenue;

51 Mr Sanders was of the opinion, [Note: Exhibit 1 pp 12-3]:

Additional adverse impacts relating to amenity and visual privacy will also be experienced within No 7 Marine Parade and Nos 186 and 188 Hopetoun Avenue. This results from the proposed first floor balcony on the rear elevation. Whilst the balcony is off the bedroom it is situated with no setback from the side boundary with views directly into the adjoining property at No 7 Marine Parade. In addition, the proposed balcony has an area of 19.4m2 and would be capable of being used as an outdoor entertaining area to the detriment of natural privacy of adjoining properties.

52 I accept that evidence and also that the proposed front western balcony would be likely to adversely impact on the grand-children’s bedroom at No 5 Marine Parade only 2.1m away and at about the same level.

53 For the above reasons, the appeal is dismissed.

54 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. The SEPP1 objection to the height standard is not upheld.
3. Development application No 318/2003/1 lodged with the respondent council on 2 May 2003 to alter and add to an existing semi-detached dwelling house, involving a first floor addition containing two bedrooms and an en-suite at Lot 2 in DP 215812, being No 6 Marine Parade, Watsons Bay, is refused consent.
4. The exhibits are retained.

S J Watts

sw