Figornt Pty Limited (formerly Emmanuael Solomovic, formerly Cyril Smith & Associates) v Waverley Council - [2007] NSWLEC 95

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Figornt Pty Limited (formerly Emmanuael Solomovic, formerly Cyril Smith & Associates) v Waverley Council [2007] NSWLEC 95

PARTIES:
APPLICANT
Figornt Pty Limited (formerly Emmanuael Solomovic, formerly Cyril Smith & Associates)

RESPONDENT
Waverley Council

FILE NUMBER(S): 10838 of 2000

CATCHWORDS: s 96 Application :- shape of lift tower roof, views, privacy, street boundary fencing, elevated walkway change in materials, classification for seniors living requirements

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No.5
Waverley Local Environmental Plan 1996
Waverley Development Control Plan No. 9 - Reducing Crime Through Design;
Waverley Development Control Plan No. 14 - Land Use and Transport;
Waverley Development Control Plan No. 19 - Waste Avoidance and Resource Recovery.

CASES CITED:

CORAM: Hoffman C

DATES OF HEARING: 15/02/2007

JUDGMENT DATE: 28 February 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr M. Staunton, solicitor
of Staunton Beattie

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
28 February 2007
10838 of 2000 Figornt Pty Limited (formerly Emmanuael Solomovic, formerly Cyril Smith & Associates) v Waverley Council

JUDGMENT

This is a s.96 application to further amend development consent granted in Appeal No. 10838 of 2000 in regard to a seniors living development under State Environmental Planning Policy No.5 (since repealed). The site is 4-12 Caddigal Place, Dover Heights.
THE SITE
The site is located on the northern side of Caddigal Place, a cul-de-sac extending west off Military Road. The site enjoys partial access from Military Road to the north. The site extends from the western extremities of the cul-de-sac to within one site of Military Road, giving the appearance that it occupies the entire cul-de-sac.

Currently the site is under construction, nearing completion of an approved Retirement Village. The development is split into three main buildings.

The site is not listed as an item of heritage significance, however it is located within close proximity to an Archaeological Item, known as the Clyde Street Quarry. The site is not within a heritage conservation area.

The site is located within the Dover Heights Residential Character Study Area. Nos.4-12 Caddigal are part of a 10 lot subdivision fronting Loombah Rd on the uphill northern side, and Military rd on the east side. The land of the subdivision was once the Dover Heights Bowling Club. The lots fronting Loombah have been sold and developed with 2 and 3 storey houses that overlook the site to panoramic views over Bondi, the ocean and Bellevue Hill. They are set down from Loombah in accordance with a council height plane limit under DCP No.23 to retain views of house further uphill. That DCP is not strictly applicable to the subject consent that is under SEPP No.5.

The site is located within a large section of Waverley zoned Residential 2(a) Residential-Low Density.

PLANNING CONTROLS

The relevant statutory instruments applying to the subject site are:
SEPP Senior's Living (formerly State Environmental Planning Policy No.5)
Waverley Local Environmental Plan 1996
The relevant Development Control Plan applying to the subject site are:
Waverley Development Control Plan No. 9 - Reducing Crime Through Design;
Waverley Development Control Plan No. 14 - Land Use and Transport;
Waverley Development Control Plan No. 19 - Waste Avoidance and Resource Recovery;
HISTORY
The original application in 2000 was for 32 dwellings on the old bowling club land. Following lodgement of an appeal, and negotiations, the proposal was reduced to 19 units, community room, community shop, pool and basement carparking. The council and the applicant agreed to consent orders at that time, and consent orders were granted in 2002.

There have been a previous s 96 amendment granted that further reduced the number of units to 16.

The current s 96 application was lodged on 24 April 2006.

The application was notified to surrounding property owners with five (5) submissions received. The following issues were raised in the submissions:
Lift Shaft - height and views
Vegetation - no trees
Bus shelter - height
Reduction in lift size
Fencing changes residential character, amenity, heritage issues
Landscaping changes not in accordance with the approved plans
Balustrading changes not in accordance with the approved plans
Walkway - noise, residential amenity, compliance, visual impact, court agreement
Council's Development and Building Unit (DBU) considered the application at its meeting on 13 September 2006, and made the recommendation to approve the application:
The DBU gave consideration to the proposal having regard to the relevant matters under Section 79C of the Act. This included the issues raised in submissions to the application and the provisions of Council's Development Control Plan.
The DBU reviewed the proposal and were of the opinion that the proposed amendments will have minimal and acceptable impacts on the overall design of the building and upon the visual quality of the development.
The design of the lift shaft to a flat roof is acceptable given that the height is not changing and it will be consistent in design with the other lift shafts within the proposed development. The roof material change to the proposed walkway from glass element with Colorbond roof is not considered to have a significant impact upon the architectural integrity of the development and will not be out of keeping with the streetscape, and is therefore considered acceptable.
With regard to the front fence, it is considered that sandstone element can be incorporated in the design of the front fence as a base to satisfy condition No.45. In this regard the information submitted by the applicant's engineer indicate that incorporating the sandstone within the front fence will have no impact on the exiting sewer. Having regard to the above the DBU are of the opinion that sandstone element should form part of the front fence and this aspect of the proposal should be reaffirmed.
DETERMINATION: .
That the application be approved in accordance with the attached report.
Council's Development Control Committee (DCC) met on 26 September 2006, and the application was deferred as per the DCC's comments:
That the application be deferred to allow receipt of further Section 96 applications relating to landscaping, fencing and the walkway so they can be considered together.
A letter was sent to the applicant with the above recommendation from the DCC meeting on 18 October 2006.

Further amended plans were submitted to the Land and Environment Court and Waverley Council on 16 November 2006.

They are the plans before the Court in this s 96 application. These included all modifications made to the development to satisfy Council's request. These modifications ( other than Items 1, 2, 5, 7, 9, 11,and 14 that relate to the council and the objectors concerns) have either been previously signed off by the Private Certifier or are of minimal environmental impact which would not require Council consent, the respondent said.

The proposed amendments are:
1- Current approved curved concrete lift shaft roof to the Eastern Block (known as Lift No.3) proposed to be redesigned with a flat concrete roof (approved lift shaft height RL 72.30 to remain unchanged). Flat roof proposed as per other 2 lift shaft roofs in development. Necessary to ensure. proper functioning of lift. Workcover regulations requires consistent head room for lift maintenance. This cannot be achieved with a round roof.
2 - The same Lift shaft to be reduced in bulk. Shaft and carriage remaining in accordance with SEPP5 and AS4299 for disability requirements. Change originally approved by PCA without council needing consent. Lift shaft carriage did not require such a large shaft therefore shaft was reduced from 3400mm x 2960mm to 2200mm x 2450mm reducing its bulk and impact on surroundings.
3 - Community Centre vaulted roof in glass blocks to be changed to colorbond metal roof to match colour of awnings and parapet capping roof material similarly found throughout approved. development and in character to adjacent and surrounding properties roof material. Glass block vault roof not tested for Australian conditions. By changing the roofing materials, this would solve the height issues. Glass block wall to remain as approved for privacy, solar access and noise insulation.
4 - Landscape Plan approval by council as per DA Condition 52 during CC stage. The approval on this plan was overlooked by council and PCA when issuing CC. Landscaping plan was approved for other elements of DA conditions (Incl. Condition 53 and 55) but not specifically as its own entity to comply with DA Condition 52.
5 - All trafficable surfaces to be made of non slip materials- Non-slip tiles on pathways In place of grass. As per Condition No. 66 and 67.
6 - Landscape: Planter box removal outside electrical cupboard located at entrance to unit 15 on ground level. Difficult to access electrical cupboard with landscaping blocking door- Electrical cupboard was not specified on original approved plans. Therefore this small planter is to be deleted from Landscape Plan.
7 - Landscape amendment and openings: Unit 2- amend opening to allow for access to balcony. Tiling to balcony and additional balustrading. This was originally proposed but excluded from landscape plan for unknown reason.
8 - Internal wall/window layout change. Wall to unit 7 and 14 to be extended to make bedroom larger by approx. 1000mm. Window therefore split in two but remains the same in glazed area:
9 - Community Centre entrance walkway- reduce length of roofing by approximately 3m. Removal of portion of roof only (walls in glass blocks to remain for privacy' ) this is required as min heights according to BCA from floor to ceiling cannot be met due to ramping requirements (1:14 slope) for disability access.
10 - Basement Garbage and plant room modification to wall and room layout. Redesign needed for engineering requirement and mechanical ventilation requirements and Sydney Water requirements for Sewer line.
11 -Landscaping Plan: Retaining wall and stair construction at perimeter of boundary on Caddigal place. As approved levels on plans soil needs retention due to change in level from street to walkway. Installation of. stairs to grade necessary. Does not affect SEPP5 or AS4299 requirement for disabled access as access is gained by Loombah Rd entrance only.
12 - Walkway awning and gate deletion to level I walkway on western boundary of site. Council pathway and approved awning RL differ than on original council plan. Levels differ up to 2m. Deletion of stairs and gate does not conflict with fire egress routes nor SEPP5/AS4299 requirements.
13 - Skylights modification : Community Centre disabled bathroom room layout modification. Rotation of toilets sideways 180 degrees. Modification necessary because of service location to ensure ceiling height in basement below complies with AS4299 for cars with wheelchairs on roof. Overlooked on earlier design.
14 - Project to be changed from SEPP5 'Class A' to 'Class B.' As per consultant report (DAC Pty Ltd) They believe that this development was wrongly grouped as SEPP 5 'Class A' (as 'Class A' included requirements for special window winders and dog kennel facilities incl. secure fencing etc.) This development should be reclassified to a 'Class; B' which has far more reasonable requirements for this specific type of development. (See DA Condition. 69 and Disability Consultant report)
15 - Unit I ensuite, laundry and kitchen wall layout changes. These are internal changes to improve amenity for the occupants. Planter box added in non-trafficable areas on balcony.
16- Unit 1 - due to the proximity of the walkway, glass screens are proposed to further improve the privacy amenity for the occupant of Unit 1
Issues
The issues the council raises in the Hearing are only one more than those raised by the objectors, and are:
1. The proposed modification should not be approved as the proposed relocation of the front boundary fence detracts from the streetscape and results in the loss of visual relationship with the heritage significance of the Clyde Street Quarry.
2. The proposed development should not be approved having regard to matters raised in submissions received by the Respondent.
The evidence
At the start of the hearing, in regard to Issue 1, the applicant clarified that the front boundary fence to Caddigal Place is NOT to be relocated. The landscape plan in Drawing L001 issue D intends only to show a retaining wall set in 4 m from the street fence. The wall is needed due to the courtyards of the ground floor units being set down about 600mm below the street boundary, and the retaining wall runs along the outside edge of the courtyards, and enables the 4 m wide boundary landscaping to be raised level with the street. The boundary fence is to be a palisade style with a base course of sandstone as required by conditions of consent.
The respondent provided a draft condition in Exhibit 4 confirming the above and the applicant accepted it.
In regard to Issue 2, the court heard the objectors evidence from:
Mr B Goodman 2 Caddigal Pl that is above and on the east end of the development.
Mr S. Hashimi 47 Military Rd above and opposite the development.
Mr J Lewis 8 Loombah Rd at the west end of the proposal and convenor of the Dover Heights Precinct committee that also objected to the proposed changes.
Mr H. Cohn 4 Loombah Rd who overlooks the proposal.
Ms S. Hyde who had no written objection, but came to the on-site part of the hearing and invited a view from her home on the corner of Loombah and Military Roads, opposite and above the site.
Their evidence was taken on site.
Mr M Reid, council manager for planning and development also gave evidence on site for the Respondent.
Mr Smith, architect for the proposal gave evidence on site for the Applicant.
No cross-examination was sought by either party.
The major concerns of the objectors can be summarised as follows:
The development of the old bowling club site has been going on for 15 years, and neighbours are getting tired of the necessity for continued alertness to, and submissions upon applications and changes to proposals.
The original approval by consent of the council and the applicant was something they had to accept, but these latest changes appear to relate to lack of foresight by the developer in design or construction, and the neighbours should not have to bear the penalty for that. The developer should fix the problems and still comply with the original consent.
The height and semi-circular top to the lift shaft as approved is part of ameliorative measures to reduce the visual intrusion on views and visual impact of the structure. Squaring off the top defeats those objectives.
The change to the plan size of the lift shaft from the approved size is also a problem for the developer to fix by re-constructing to compliance, not by allowing the change.
The semi-circular glass block roof of the pedestrian entry bridge from Military Rd to the lift is also part of the aesthetic solution agreed in the original consent. Changing it to a colorbond semi-circular roof is a much lesser quality solution and should be rejected.
Reducing the length of the roof of the bridge could expose Nos. 2 Caddigal and No.2A Loombah Rd to visual and aural privacy impacts.
Reducing the quality of the roof of the bridge from substantial glass blocks to a tin roof will reduce the acoustic barrier to noise nuisance from persons on the bridge for No. 2 Caddigal and No.2A Loombah.
The yard spaces between the 3 buildings of flats were shown on the original consent as grassed between raised planter beds, the applicant now wants tiled finish where there was grass, and that reduces the soft landscaped area and rain absorption on the site, and will reduce the aesthetic appeal of the view from Nos. 2A, 4 and 6 Loombah that look down into the yards between the buildings.
The master bedroom of 4 Loombah is directly opposite and above one of these yards and looks through it towards Bondi Beach. Tiling the yard will encourage its use as an entry off Caddigal Pl where there is a pedestrian gate, and increase the existing privacy impact on the bedroom.
In considering these objections I note the following:
Although the neighbours have become frustrated by the long period of development consent and construction of the proposal, and its various amendments, the council and the Court must deal with any application. Notification for public comment is part of the process. This development appears to have had a longer time period that others of a similar size, but appears to be reaching completion. Variations during construction are not unusual due to the practicalities of the building or perhaps due to unforeseen matters. The s 96 amendment application is the way such things are considered, and the neighbours need to work through any inconvenience if they wish to participate.

At the site I requested the applicant to erect a height pole to show the approved finished height RL 72.30 of the lift tower. Currently the tower is only up to the bridge deck level.

A pole was erected and sighting to the top of it from Mr Hashimi’s living room window it could be seen that the lift would obscure that part of the panoramic view that is Bondi Beach and the waves breaking upon it and the southern part of Campbell Parade. The roof tops of Bondi to the west of that would also be obscured by the roof of the pedestrian bridge. The latter is part of the original consent and would be lost in any event, and to the extent it was only rooftops within a panorama, it was not significant. The beach view however is significant.

Some comments by Mrs Hyde in objecting to the height of the lift shaft led me to question if the top of the pole was RL72.30. The applicant’s builder said a cross bar on the pole, that we had all thought to demonstrate the width of the lift shaft, was actually the height. Mr Reid and Mr Smith checked the measurement of the pole and verified that the bottom of the cross bar was RL72.30.

Returning to Mr Hashimi’s living room it could be seen that the view of the beach and Campbell Parade would be retained, and the only view loss to him would be those small segments of the view that would be infilled by the squaring-off of the lift shaft compared to the semi-circular top. The squaring off is needed to give lift service personnel a safe space to work on top of the lift car as required by Workcover.

The change in dimensions of the lift shaft actually reduces it in size from 3.4 x 2.9 m to 2.2 x 2.45 m, thereby compensating to some extent for any view loss caused by squaring-off the top of the shaft.
Mr Hashimi’s living room is the “worst case” of view affectation, and the parties did not require me to inspect other premises on that account. The height of the shaft is the only part of the development that penetrates the height plane limit in DCP 23, and was agreed by the parties in the original consent. DCP 23 in any case is not strictly applicable to a development under SEPP 5. The minor increase in view loss to Mr Hashimi is not significant given that the “iconic” view of Bondi Beach is preserved, and the loss is really insignificant given the whole panorama enjoyed by Mr Hashimi.
Mr Lewis said for a seniors living development, the lift should be big enough for an ambulance stretcher and family to ride together in an emergency. The reduced lift size would prevent that. It seems to me that so long as the lift car is big enough for a stretcher and ambulance paramedics that is sufficient and I was assured that is so.

Mr Goodman and Mr Lewis were concerned about the metal Vs the glass roof of the bridge. I accept Mr Reid and Mr Smith’s evidence that the change of material will make the roof consistent with other roofing materials in the project, and retain the semi-circular aesthetic form. The applicant accepted a condition that the metal roof be insulated on the underside to minimize the noise of rain drumming on a tin roof. A ceiling will also be installed.

The paving between the buildings previously shown as grass is also accepted. It is needed to provide wheel chair access as required by the statute. The grass would have been on top of the concrete basement and would not increase overall rain absorption. The paving will not give rise to major use of the walkways as entries to the development. The major entries will remain the elevated walkway from Military Road and the carpark entry. Privacy loss to 4 Loombah Road will not increase.

The pavement where the grass was to be should be a muted green in colour to give variation to the paved areas. The proposed landscaping include palms and shrubs that will further soften the built forms of the building and the spaces between as seen from the neighbours. Distance separation from the previously grassed area to the bedroom of No. 4 Loombah is sufficient under the usual AMCORD guide for privacy. I note there is a hedge row of young pine trees along the common boundary of No. 4’s garden and should grow to provide further privacy if desired.

In regard to the proposed new balcony for Unit 2 adjacent the lift shaft that is also proposed to be amended, I note that the balcony as shown on Drawing L002 Issue D is to be created by partially removing a planter bed in that location. The concrete sides of the planter bed are to remain as balustrades. A door into Unit 2 from the balcony is proposed. Mr Goodman is concerned about noise and visual privacy from persons on that balcony. It could be seen on site and from the plans that the lift shaft will provide a visual and acoustic barrier between the balcony and the house on No. 2 Caddigal Place.

Minor parts of No. 2’s garden may be seen from the balcony at a separation distance or perhaps 20 m, that is similar to the width of a residential street. That is minimal impact and acceptable.

The reclassification of the development to Class ‘B’ under SEPP 5 is acceptable. It came about by the reduction of the number of units by amalgamating some 2 units into single units. The amendment complies with the statute. Overall there is no reason sufficient for refusal of the proposed amendments.

The Orders of the Court are:
1.Development Consent Orders issued by the Court on 12 April 2002 for 4.12 Caddigal Place, Dover Heights, previously amended on 3 August 2004 is further amended in accordance with Annexure A hereto.
2.The exhibits are returned to the parties except Exhibits A, B, C, and D.
___________________
K G Hoffman
Commissioner of the Court

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