Elmowy v Woollahra Municipal Council

[2004] NSWLEC 258

Land and Environment Court

of New South Wales

CITATION:	Elmowy v Woollahra Municipal Council [2004] NSWLEC 258
PARTIES:	APPLICANT Noel Elmowy RESPONDENT Woollhara Municipal Council
FILE NUMBER(S):	11319 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Residential Development Control Plan Woollahra Local Environment Plan .
CASES CITED:	Zhang v Canterbury City Council Vol 115 LGERA 373; .
DATES OF HEARING:	23/03/04
EX TEMPORE JUDGMENT DATE :	03/23/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor Pike Pike & Fenwick RESPONDENT Mr M Connell, solicitor Michell Sillar

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11319 of 2003 Moore C 23 March 2004

Noel Elmowy
Applicant

v Woollahra Municipal Council
Respondent Judgment

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Woollahra Municipal Council (the council) of Development Application 265/2003 for the erection of a new residence at 31 Olola Avenue, Vaucluse (the site). The site is Lot 77 in DP 9328, a subdivision which was undertaken in approximately 1918. The application was refused on 16 July 2003 and subsequently amended plans were submitted to the council for the purposes of a review pursuant to s 82A of the Act. That review application was refused by the council on 1 March 2004 (after proceedings had been commenced in this Court against the original refusal).

2 The site was formerly in joint ownership with 32 Olola Avenue which is Lot 78 in the Deposited Plan.

3 Constructed on the site is a swimming pool which was constructed in approximately 1994 whilst in joint ownership with the adjacent property. The pool is 25 m in length and runs in approximately a north-south direction. It is located towards the front of the allotment which itself runs generally in a north-south direction. The site is wedge-shaped with a narrower width at the front compared to the boundary at the rear. The pool was approved, by implication, consistent with 3.02 of the council’s 1982 Swimming Pool Code which reads:

“Where there are topographical area or sunlighting constraints such to prevent the siting of the swimming pool at the rear, encouragement be given to aesthetic design and siting so as not to adversely affect the streetscape character, public amenity, or amenity of adjoining residents”.

4 Mr G Green, solicitor for the applicant, invited me to draw a Jones v Dunkel inference concerning the inability of the council to produce the consent for the existing swimming pool and that such inference would be that consent would not assist the council as to any requirement for consolidation with the property at 32 Olola Ave. To the extent which it is necessary for me to do so in these proceedings, I do so, but I would note that it is, in fact, not a matter of significant or determinative nature in these proceedings.

5 The principal issue in the proceedings is that of the acceptability or otherwise of the siting of the proposed house with the retention of the swimming pool and the resultant non-compliance with a number of numerical controls contained in the relevant Woollahra Residential Development Control Plan (the DCP).

6 A facile way to deal with this appeal by a process which would have been inconsistent with the proper legal approach would be simply to say that:

• the existing pool is there;

• objective 22J1 of the Woollahra Local Environment Plan (the LEP) requires, with respect to global warming, to promote energy conservation measures;

• principles of ecological sustainability, the requirements of s 5 of the Act concerning appropriate economic uses of land; and

• the recognition in s 79C of the Act that one should have regard to the economic consequences of any development,
would result in considering the embedded energy and use of materials in the pool to automatically move to approval. However, life is not so simple for decision makers.

7 In company with the legal representatives of the parties, the parties, and a number of the neighbours who were objectors to the process, an extensive view was undertaken of the property together with a number of adjacent properties. This involved the inspection of the interior and exterior of 32 Olola Avenue; an inspection of the rear exterior of 30 Olola Avenue and an inspection of the rear yard of 33 Olola Avenue, together with a view from that backyard of the adjacent property further to the west.

8 As a consequence of the process which was undertaken on site, notes of the evidence of the resident objectors was admitted to evidence, by consent.

9 As a consequence of a number of matters raised on site, Mr Green sought and was granted, by consent, leave to amend the plans to undertake a number of ameliorative measures.

10 The ameliorative measures essentially comprised two matters to deal with possible overlooking of 30 Olola Avenue which involved confirmation of the frosting of a bathroom element at the vicinity of the entrance to the dwelling together with frosting of the glass on the entrance doors and an extension of the front western side privacy screen some distance further to the north so as to ameliorate possible overlooking impacts to the rear yard of 30.

11 With respect to 32 and concerns expressed by Mr Taylor, a resident of that property, relating to the front door of his premises (which front door faces to the west), there were changes incorporated to the pool landscaping in the vicinity and the screening of headlights entering the carport area.

12 As a measure that may have some ameliorative effect on noise from the swimming pool, the balcony which had been proposed for the lower ground floor study was removed. However, there remained a number of planning issues requiring to be dealt with, together with a number of objections pressed by residents but not raised as concerns by the council.

13 Essentially, the planning issues which remained might be summarised as being the view held by Mr H Saunders, town planning expert for the council, that the proposed dwelling was too far back on the allotment; it was, as a consequence, too high and it was too close to the sides, thus contravening both the setback requirements for side setbacks, as well as the forward and rear setbacks.

14 As a further consequence, Mr Saunders said that it did not fit within the desired future character of the Vaucluse west precinct of the Woollahra Municipality.

15 During the course of the evidence that Mr Saunders gave on site, he conceded that the issue of streetscape from the street was no longer of major concern to him as the matters that related to the removal of canopy trees, as he had understood the position, at the rear of the allotment did not now arise. However, he did maintain the position that, as a consequence of the siting of the proposed dwelling on the block, it would, in effect, make no positive contribution to the streetscape as it was no longer able to be viewed from the street, and that the front setback was inconsistent with the general pattern within that estate.

16 An issue had originally arisen with respect to the footprint of the proposed dwelling on the site, but as a consequence of the s 82A review process that no longer was an issue.

17 Mr M Neustein, town planning expert for the applicant, in his written evidence, dealt with the issue of the desired future character in the following fashion,

“This is not an area of straight streets with ordered rows of houses of uniform or related design. Instead the area has the character of a garden city suburb of the type created in England at the beginning of the twentieth century, though it lacks the cohesiveness of house designs which were characteristic of the garden city suburbs. The character of the area is not dependent on setback of houses as this varies along the street. Rather it is determined by the park and street trees plus landscaping in front of the houses. Setting the proposed house well back on the subject allotment will maintain the character of the immediate locality, will contribute to the leafy nature of Olola Avenue, and represents the least intrusion into the existing streetscape.”

18 On the other hand, Mr Saunders’ approach was a more numerically based one, derived from compliance or otherwise with the numerical setback requirements in the DCP. It falls to me, in the context of the DCP, to assess whether or not the proposal is acceptable.

19 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council Vol 115 LGERA 373 deals inter alia with the issue of consideration of relevant provisions of a Development Control Plan in determining whether or not to grant development consent. From what was said in Zhang by the Chief Justice at para 75 pp 386 and 387, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly, the provisions of a Development Control Plan are to be considered as a fundamental element in or a focal point to the decision making process, particularly where, as there is in this instance, there are no issues relating to compliance with the LEP. Thirdly, a provision so directly pertinent to the application is entitled to be given significant weight in the decision making process, but is not in itself determinative.

20 Indeed, if a proposal does not meet the DCP’s requirement, the Court is not precluded, in appropriate cases, from granting consent given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

21 It is in that context that I assess the non-compliances with the front, rear, and side setbacks.

22 With respect to the front setback, the existence of the swimming pool is, I accept, a matter of considerable but not determinative significance. However, I accept that retention of the swimming pool is an appropriate element for consideration of the acceptability of the siting of the proposed dwelling, although it is not determinative of it.

23 What is of greater significance in dealing with the issue of whether the greater front setback than exists immediately to the east and west of the subject site would be acceptable, comes from a consideration of the setbacks in the general precinct involving the subject site that were contained in the application pursuant to s 82A of the Act for a review of the decision, and which are set out at pp 48 and following in the council’s bundle of documents.

24 From that which appears at p 49 and which is confirmed by the aerial photograph contained in Mr Saunders’ statement of evidence which covers most but not the totality of the area of that setback diagram, there are at least six and probably more properties within several hundred metres of the subject site which all front Olola Avenue and which all have setbacks at least of the order of, if not exceeding, the front setback that is proposed for the site.

25 In the context of retaining the swimming pool, which was, as previously noted, approved by the council some ten years ago, I am satisfied that it is not antithetical to the present character, and consistent with the desired future character, that a setback at the front of the property of the size contemplated in the application would be acceptable.

26 In addition, I am satisfied because of the steps which have been taken to retain the fig trees at the front of the property and Mr Saunders’ concession on the nature of the lack of visual impact from the street, that there is no adverse impact both on the streetscape or the desired future character of the streetscape to permit the retention of the swimming pool and thus allow the proposed front setback for the dwelling.

27 Mr Taylor raised, as a separate matter, the issue of noise from the swimming pool, and submitted, in effect, that that was a matter which made it appropriate to require a further forward setback in order to require the demolition of the present swimming pool and thus the amelioration of the unacceptable noise which he says that he experiences in his property as a result of use of the present swimming pool.

28 In addition to the elements noted earlier with respect to embedded energy and materials use in the swimming pool, I have taken into account the fact that the swimming pool was there at the time that Mr Taylor purchased his property – indeed Mr Taylor noted that his family had in fact used the swimming pool themselves.

29 Secondly, the swimming pool had been permitted by the council at a time when its swimming pool code was current.

30 Thirdly, as a result of the amendment to the plans, there have been a number of modest ameliorative measures achieved which will have some effect in diminishing noise that might arise from the swimming pool.

31 Under the circumstances, I am satisfied that not only is the front setback acceptable, but that it would also be unreasonable to require an alteration to what would be an acceptable front setback in order effectively to require removal of the swimming pool.

32 I am also satisfied that it is probable, had the swimming pool been required to be demolished as part of this application, that it would be likely that a consent authority, whether the council or post a refusal this Court, would still permit a swimming pool, albeit of more modest dimensions, to be constructed at the front of the property, that not being inconsistent with the layout of a number of other properties in the vicinity which have swimming pools at the front, and taking account of the need to provide appropriate solar access to such a pool.

33 With respect to the rear setback, Mr Green submitted that if I took account of the averaging of the setback along its length that it more than complied with the minimum setback required by the DCP, but that in any event if I had appropriate regard to the topography it would be unreasonable to require strict conformance with the numerical requirements.

34 In this regard Mr Neustein’s statement of evidence said,

“The rear setback does not meet the council’s Residential Development Control Plan requirement of 25% of allotment depth, a figure in the order of 15 m based on an average depth of 60 m. As noted above, there are some advantages to the rearward location of the proposed dwelling, and these are considered sufficiently great as to justify the breach of the rear setback control. Behind the proposed house is a small cliff with substantial vegetation. This will not be disturbed, and ultimately the proposal will be seen against a backdrop of vegetation. council reserves for itself the right to permit lesser setbacks having regard to site qualities and amenity impacts. The proposal has the hallmarks of just such an appropriate case.”

35 During the course of the view, it was obvious that there was a portion of land at the rear of the site, which was approximately triangular in shape with its apex at the west that was below the cliff line, which provided a functional boundary at the rear of the property to the south of the site, which property at the rear faces Hopetoun Avenue as I read the locality diagram.

36 Effectively, that area of land is abandoned land as it is apparently not able to be readily accessed from the Hopetoun Avenue property. Indeed, during the course of the view, absent the pegging that had been undertaken on behalf of the applicant, it would have been almost a natural expectation of those inspecting the land that the physical cliff boundary would be reflected in the formal legal boundary, but it is not.

37 However, in terms of understanding a perception in the setting of the rear setbacks, it is appropriate to have regard to what are the actual physical features on the ground.

38 It was also submitted by Mr Green that there would be preserved a corridor of vegetation both on the site and by implication on the site of the adjacent property to the south, and that is the setback to which Mr Neustein refers in his statement of evidence.

39 I am satisfied under the circumstances, having regard to the topography of the site and the effective physical barrier to the property at the south facing Hopetoun Avenue, that it would not be unreasonable under the circumstances to permit a less than the otherwise set minimum rear setback required by the DCP, therefore there is no basis in consideration of the rear setback to refuse the appeal.

40 That leaves, of the matters pressed by the council, the issue of side setbacks. It was the evidence given by the applicant’s architect that the desire of his clients was to have a design which was “light on the ground” and that, as a consequence, steps had been taken in the design having regard to the topography of the site to minimise the necessary excavation. It was not contested by the council that this was both the intention and what would be achieved by the design.

41 There has been significant attention given to privacy issues by the design and indeed further compromises with respect to privacy issues arose as a consequence of discussion on the view, these being particularly important given the height of the proposed dwelling.

42 The modest design improvements that were achieved as a consequence of the site visit, together with the measures that have already been incorporated as part of the original design process and the assessment of possible privacy impacts on neighbours, causes me to conclude that the design, whilst perhaps not perfect, is acceptable.

43 I particularly note the submission by Mr Nolan that he had concerns about overlooking of his rear bedroom windows. They were, to my understanding, considerably assuaged by discussion that took place in the rear yard of the adjacent property, but to the extent that they might not be assuaged, the separation distances between the bedrooms at the rear of the subject site and the bedrooms at the rear of the Nolan dwelling, together with the oblique angle that is involved, render it unlikely that there would be any effective possibility of overlooking, absent somebody with a calculated voyeuristic intent – which is something that it is not appropriate to assume for any reasonable resident in urban circumstances. I am therefore satisfied that there is no privacy basis, given the additional ameliorative measures which would warrant refusal.

44 Two further matters which remain to be dealt with as a consequence of the residents’ objections.

45 Both Mr Taylor and Mr Nolan objected to the retention of the present driveway.

46 With respect to Mr Nolan, it was his statement on site that vehicles entering the driveway of the subject site would, from time to time, drive across his driveway. Although not inspected specifically during the view in company with the parties, it is my clear recollection that at the boundary between the Nolan and Taylor properties there is constructed a landscaping feature between the driveways that would in fact render it physically impossible for somebody to drive across Mr Nolan’s driveway and up the driveway of the site without debouching back onto the roadway in order to achieve that. Therefore, I am satisfied that Mr Nolan’s concerns on that regard have no basis except to the extent that vehicles travelling around Olola Avenue from generally east to generally west and seeking to proceed up the driveway of the subject site would need to pull close to the kerb outside Mr Nolan’s property in order to achieve that.

47 With respect to Mr Taylor’s concerns as to the driveway, there is no doubt in my mind that, in terms of contribution to the streetscape and landscaping, retention of the present driveway is infinitely preferable to the requirement of the construction of any further driveway.

48 To the extent that I ought give weight to it in these proceedings, Mr Taylor purchased his property in clear knowledge of the presence of the driveway on the adjacent property, and indeed he acknowledged in the course of his giving evidence on site that he had made assumptions that there would be some development or other of the subject site, and that that would involve the construction of a residence.

49 He gave no evidence that he had at any prior stage formally suggested that there ought be some removal of the driveway, and indeed to the extent that it is relevant (and it is of minor consideration in these proceedings), the location of the driveway which now serves the subject site had served Mr Taylor’s premises in the past, and had clearly done so with the consent of the council, and that the council had considered that the joint driveway approach to what were, at law, separate allotments was an appropriate one. I am therefore satisfied that there is no basis to refuse the application for this reason or to require relocation of the driveway.

50 Mr Alder, on behalf of his grandmother, raised a number of privacy matters with respect to the property immediately to the west of the site. I am satisfied that, if not entirely addressing his concerns, the amendments to the plans have made major contributions to the amelioration of these matters, and that they would not provide any basis for refusal.

51 The final matter that I should note relates to the concerns expressed by Mr Bekiaris who is the resident two properties to the west of the subject site. His concerns related to the possible antithetical effects, in a precedent sense, that would arise for the redevelopment of the properties on either side of his house, which he described as ripe for redevelopment, that would arise as a consequence of an approval of the existing proposal for the site.

52 I am satisfied that two matters arise. The first is that, consistent with the decisions of this Court, if a proposal is acceptable it will be dealt with on its merits effectively, that precedent is appropriate if it is desirable precedent, but not appropriate if it is undesirable precedent. Second, any application would stand on its own two or more feet.

53 In addition, I am satisfied that the presence of the pool at the front of the property, and indeed the substantial size of the pool at the front of the property would render any approval given in these proceedings substantially different to the issues that would arise in any proceedings relating to the properties on either side of Mr Bekiaris’s property, whether or not they were by assessment in this Court or by the council.

54 In each of those properties, as I aread the aerial photograph put in evidence by Mr Saunders, there are no swimming pools in existence at the front of the property. Any future applications would require to be assessed in light of the DCP and the council’s Swimming Pool Code. The orientations are slightly different and make the possibility of a rear yard swimming pool, as is the case with Mr Bekiaris’s property and at least one of the existing properties of concern to him, more likely than not that any attempt to impose a swimming pool at the front and have significant front setbacks as in the present case would be unsuccessful.

55 As a consequence, I have concluded that it would be appropriate to approve the present application with the plans as amended. I would propose to issue orders to that effect after the applicant files revised plans, both architectural and landscape, to reflect the changes that have taken place as part of the evolutionary process.

56 The only matter that I would add to that is that I would propose to add an additional condition (beyond those which have already been proposed and not opposed by the applicant) which would require that the proposed sliding windows whether one or more of them, to the study area on the lower ground floor should only be able to create, for each such sliding window, a maximum aperture of 225 mm so that it would not be possible for somebody to climb through those windows and use them for the purposes of accessing the swimming pool.

57 As a consequence of that, and to provide the applicant with sufficient time to prepare revised plans, I would propose to set the matter down for mention at a future date. If necessary, I would hear the applicant and the council with respect to the proposed additional condition that I have foreshadowed. However, if that condition is acceptable to the applicant, and if amended, consolidated, both architectural and landscaping plans are filed in the Court, I would propose to issue orders giving effect to this decision in Chambers without requiring the attendance further of the parties.

Commissioner of the Court