Ergo Architecture and Interior v Woollahra Municipal Council
[2007] NSWLEC 525
•5 June 2007
Land and Environment Court
of New South Wales
CITATION: Ergo Architecture and Interior v Woollahra Municipal Council [2007] NSWLEC 525 PARTIES: APPLICANT
RESPONDENT
Ergo Architecture and Interior
Woollahra Municipal CouncilFILE NUMBER(S): 10134 of 2007 CORAM: Bly C - Thyer AC KEY ISSUES: Development Application :- two dwellings, boundary adjustment, demolition, landscape, harbour views, privacy, floor space ratio, excessive excavation, vehicular access and carparking, setbacks, height, fence and overshadowing. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003DATES OF HEARING: 5/06/2007 EX TEMPORE JUDGMENT DATE: 5 June 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr V. Conomos, solicitor
of Pike Pike and FenwickRESPONDENT
Mr P. Rigg, solicitor
of Deacons
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
Thyer AC10134 of 2007 Ergo Architecture and Interior v Woollahra Municipal Council5 June 2007
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to Development Application 432/2006/1, which is for a boundary adjustment, demolition of an existing dwelling house, and the erection of two new dwellings at 9 Bayview Hill Road, Rose Bay.
2 The site presently comprises two allotments known as 9A Bayview Hill Road and 9 Bayview Hill Road. Both allotments are regular in shape and have a combined of 642.7 square metres. The site slopes downward from the north-eastern rear corner to the south-western front corner by approximately eight metres. Situated at the rear of 9 Bayview Hill Road is a large lemon-scented gum tree, which tree features in the local landscape.
3 The locality in which the site is situated is predominantly characterised by one- and two-storey dwelling houses, and located immediately to the rear are the substantial buildings comprising the Kincoppal school.
4 The site is zoned residential 2(a) under Woollahra Local Environmental Plan 1995 and in this zone, and pursuant to this LEP, the subdivision of land and the erection of dwelling houses is permissible with development consent. The zone objectives provide for the maintenance of the amenity and existing characteristics of areas predominantly characterised by dwelling houses, and to protect the environmental attributes of coastal and foreshore lands.
5 Clause 10 of the LEP, by reference to the density map, sets a minimum subdivision lot size of 675 square metres, which minimum is not complied with by this proposal. However, subcl (2) deals with existing lots, and because dwelling houses could have been lawfully erected on each of the two existing lots comprising the site, then the minimum lot size provision does not have the effect of prohibiting this proposal.
6 Clause 12AA contains objectives associated with the maximum building height development standards set by cl 12. These objectives include the minimisation of impacts of new development on existing views of Sydney Harbour and views of the Sydney city skyline, as well as providing compatibility with the surrounding neighbourhood, safeguarding visual privacy and minimising detrimental impacts associated with overshadowing. The maximum height permissible on the basis of the applicable height map is 9.5 metres, and the proposal having a height of 6.5 metres meets this requirement.
7 Clause 18 deals with the excavation of land. Clause 19 deals with development in the Harbour Foreshore Scenic Protection area. Clause 25 deals with water, waste water and stormwater systems.
8 Also applicable to the site is the Woollahra Residential Development Control Plan 2003, which includes the site in the Rose Bay precinct. In this precinct the maximum number of storeys is two.
9 Relevant to the lemon-scented gum tree in the rear of the site, the DCP requires at C4.9.7.8 in relation to significant vegetation the requirement that such trees be maintained and preserved.
10 The application was advertised and one objection was received from Ms M Ball of 7 Bayview Hill Road. That objection was accompanied by a submission prepared by a consultant town planner. Ms Ball was given the opportunity of explaining in detail her concerns when the Court visited the site. Her concerns and those of her father, who lives in the same house, were in relation to inadequate setbacks from boundaries and from the lemon-scented gum tree, excessive floor space ratio (“FSR”), excessive excavation for basement car parking, excessive driveway gradient and insufficient lot size. In her oral evidence she expressed particular concerns in relation to view loss, privacy, overshadowing and building appearance.
11 The appeal was lodged on the basis of the deemed refusal of the application, although the council subsequently refused it for reasons that formed the statement of issues now before the Court. Those issues now essentially comprise the following:
- Excessive floor space ratio.
- Failure to protect the lemon-scented gum tree.
- Excessive excavation.
- Unsatisfactory vehicular access and car parking.
- Inadequate front and rear setbacks.
- Non-compliance with the front height control in the DCP.
- The matters of concern to the neighbour at No. 7.
12 The Court was provided with a joint expert report prepared by Mr Rowan Dixon, an architectural and urban design expert; Mr Anthony Boutros, a town planner; Mr Simon Taylor, a town planner, and Mr Nick Tomkins, an engineer. That report assessed the issues raised by the council and found that a number of those issues could be resolved by modifications to the design or conditions of consent.
13 In response, the applicant prepared an amended set of plans that became Exhibit B. Having considered those amended plans, it was submitted on behalf of the council that all of the issues, except for the issue associated with the resident objector, had now been resolved to its satisfaction.
14 The Court was nevertheless particularly concerned to ensure that the lemon-scented gum tree, which is plainly an important tree, taking into account the objectives of the zone, the requirements of the DCP and the quality of the tree in its setting. We had available to us a number of reports by arborists which we have now considered. We also had the advice of Mr David Ford, an arborist, whilst we were on site. He took the opportunity to explain the circumstances of this tree in the light of a number of excavations that had been undertaken in its vicinity. This enabled us to understand the likely consequences of the proposed excavation for the basements of the proposed houses.
15 Taking into account the advice of Mr Ford and our own observations in relation to the excavation, and taking into account the changed design and the conditions of consent in relation to the landscape plan and the provision of a tree protection zone and other conditions dealing with excavation, we are now satisfied that this important tree will survive the construction process.
16 In relation to FSR, we now note that whilst the FSR of both dwellings is marginally in excess of the maximum of 0.7:1, that that part of the FSR that is above ground level and therefore observable meets the requirement. We also now note that in relation to setbacks these requirements are met, as is the height control. As a consequence of these three matters, we do not accept the submission of the neighbour that the built form would comprise an overdevelopment of the site.
17 Similarly, given the compliance with the height control and noting that the buildings are to be no higher than the existing building on the site, and that whilst there will be some little loss of views for the neighbour, the predominant views of the Harbour and the iconic features of this view, being the Opera House and the Harbour Bridge, are not affected, we do not accept that view loss is an issue of any concern.
18 As for the matter of excavation, this is now contained within the footprint of both buildings, and we agree that this is, notwithstanding the depths involved, not excessive. We also accept the advice of council’s engineer that the redesigned basement car park is, in terms of accessibility and gradients, appropriate and meets the DCP test that it be convenient and safe.
19 The front fence has now been redesigned and subject to the applicable condition of consent the arrangement is now satisfactory.
20 The neighbour at No. 7 also expressed concern regarding privacy, and although the distance of separation between the proposed dwelling at No. 9 and her home is in excess of a reasonable nine metres, the applicant has agreed to a condition requiring certain windows to have obscure glazing and/or fixed elements. This, in our view, more than provides for a reasonable degree of privacy.
21 As for overshadowing, we have inspected the shadow diagrams, and within the 9am to 3pm period the proposal will have no impact on the dwelling at No. 7. There will be some additional overshadowing of the side garden area in the middle to late afternoon, but overall the impact does not indicate a need to refuse the application.
22 Finally, Ms Ball expressed concerns about the appearance of the building at No. 9, which she believed would have an unattractive appearance. We have considered this matter and having viewed the photo montage and the plans, we note that this building will for the most part appear in part as a single storey building and in part as a two-storey building. Its visual height is not excessive, and taking into account the stepped upper form and the fenestration, and taking also into account the proposal supported by a condition of consent to provide some landscaping along the boundary, the appearance of the building should be entirely satisfactory.
23 In the circumstances, we have therefore decided that the appeal should be upheld and development consent granted in accordance with the conditions in Exhibit 5 as amended. Exhibit 5 and Exhibit B will be retained.
___________________
- T Bly
Commissioner of the Court
- ___________________
P Thyer
Acting Commissioner of the Court
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