Flanagan v Woollahra MC
[2005] NSWLEC 387
•5 July 2005
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Flanagan v Woollahra MC [2005] NSWLEC 387
PARTIES:
APPLICANT
Patricia Anne Flanagan and
Thomas James Flanagan
RESPONDENT
Woollahra Municipal Council
CASE NUMBER: 11417 of 2004
CATCH WORDS: Appeal
LEGISLATION CITED:
Watsons Bay Heritage Conservation Area Development Control Plan
Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
State Environmental Planning Policy No. 55
State Environmental Planning Policy No. 56
Sydney Harbour Foreshores and Tributaries
Sydney Regional Enviornmental Plan No. 23
Woollahra Development Control Plan
State Environmental Planning Policy No. 1
CORAM: Hoffman C
DATES OF HEARING: 24/03/2005, 25/05/2005
EX TEMPORE DATE: 05/07/2005
LEGAL REPRESENTATIVES
APPLICANT
Ms J. Jagot, barrister
of Maddocks
RESPONDENT
Ms J. Hewitt, solicitor
of Michell Sillar
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
5 July 2005
11417 of 2004 Patricia Anne and Thomas James Flanagan v Woollahra Municipal Council
JUDGMENT
This is a Class 1 appeal No. 11417 of 2004, between P A and T J Flanagan and Woollahra Municipal Council, in regard to the deemed refusal of consent for a two and part three-storey dwelling with attached garage at the street front, and a swimming pool at the waterfront, of the allotment at No. 10 Pacific Street, Watsons Bay.
The council had approved a similar development on the site under consent DA 962/2002/1. The main two-storey house was set a little closer to the water than its neighbours in that consent, which was under challenge, so that the applicant had lodged another application which is the one that comes to the Court as a deemed refusal.
The lowest floor of the proposal is a semi-basement that has access to daylight and air on its southern side because the land falls away down to the water. It is set behind the foreshore building line for the most part, except a small triangular section is forward of the foreshore building line by about 3 m. The foreshore setback of the basement is designed to coincide with an existing old stone retaining wall, that is also partly in front of the foreshore building line. The retaining wall rises several metres high up to the flat part of the lot that runs northwards to Pacific Street. The two-storey main component of the house sits on this plateau, as does the neighbouring houses at No. 8 on the east, and No. 12 on the west.
Number 8 is three-storeys in its main component but has also taken advantage of the fall down to the water to have a semi-basement room in a fourth level with doors and windows to the south onto a swimming pool terrace area about 1 m above high water mark. There is a sea wall that goes around the foreshore in front of several properties in Pacific Street. It creates for most houses a lower terrace beside the water. Several have swimming pools at that level, and their jetties take off from the terraces. The approved house on No. 10 had a similar design of lower waterside terrace and pool but no jetty.
Number 12 is an early 1900s two-storey timber house, quite large and prominent on the foreshore. The approved house on No. 10 projected about 3 m closer to the water than No. 12, and about one and a half metres closer to the water than No. 8.
The fresh development application that is the subject of this appeal has moved the house back from the water a little. The plans of the subject house have been modified more during negotiations, and by the end of the hearing we are up to version E in exhibit O. Without going into all the changes, the version E drawings:
retain the basement and swimming pool and waterside terrace in modified forms, but
set the main two-storey part of the house back further from the water so that,
the front wall of the house is about 1 m behind the alignment of the large southern two-storey roofed terrace of No. 8, but
it is still in front of the alignment with No. 12’s southern elevation, but only by about 300 mm.
The south wall of the proposed house is about 7 m behind the foreshore building line, so that there will be a wide grassed area between the house and the old retaining wall referred to previously. Under the grassed area is the basement of the house. It contains a family room, pool equipment room, a storeroom and toilet, and internal stairs up into the house. The old retaining wall forms a podium on which the two-storey house sits when seen from the water.
There is a first floor narrow cantilevered balcony to the master bedroom of the proposal facing towards the harbour. It is about 1.7 m wide, but it extends across the full width of the waterfront elevation giving weather protection to the full width glass folding doors of the living room on the ground floor that face south over Watsons Bay.
The balcony facing the harbour has no roof. The first floor balcony that faces Pacific Street has a hip corrugated iron veranda roof that matches the hip corrugated iron roof of the proposed house.
At the street front the garage has been given a new roof in amended plans that match the style of the proposed house roof. The house is set back 7 m from the street boundary more or less in line with the houses on No. 8 and No. 12. The garage is attached to the house, but has zero setback to the street boundary. This is similar to other garages in the street and no issue was taken on that.
Along the street front is an existing high stone fence, it continues across the frontage of No. 12. It is to be retained except for the location of the garage. There is to be a pedestrian entry gate in the wall beside the garage into an entry courtyard between the fence and the house. The courtyard adjoins the front yard of No. 12.
In creating the subdivision for the subject site at the time it and No. 12 were under the same ownership, an easement had been created on the subject lot in favour of No. 12. This is related to the west side boundary of No. 10, having only about a 100 mm setback from the east wall of No. 12 in which there are several windows at ground and first floor level, as well as the eaves overhang.
The easement gives light and air and maintenance access to the east wall of No. 12. The easement extends over an existing paved area on the subject site, running the length of the old house, and up to about 2 m wide. The purpose of the easement allows it to be used for recreational purposes also.
On the side boundary of the proposal adjoining No. 8 Pacific Street, is an existing retaining wall. This is due to the lowest of No. 8’s three main levels being excavated a little below the ground level of No. 10. The living rooms and kitchen of No. 8 are on the middle level of the three main floors so that they are a little above the ground floor of the proposal. The top of the existing side boundary retaining wall has been raised to be almost 3 m above the ground level of the subject site adjacent to the proposed house.
Number 6 Pacific Street on the east of No. 8 is another large house undergoing renovations at the time of the hearing. It also has three main floors facing the harbour and appears as two-storey from the street.
Number 12, the older house, beside the site on the west is on a small promontory of the foreshore and has the advantage of a level 20 m long yard on its south side facing the harbour before there is a drop down to the foreshore over a continuation of the old stone retaining wall on the subject site. The old wall follows the line of the foreshore out around the promontory creating this long level yard.
Number 12 also has a lower terrace beside the water on which it has a boatshed. The terrace was created by a continuation of the sea wall that was erected at about high water mark across the water frontages of No. 12, 10, 8, 6, 4 and 2 Pacific Street. Although not relevant to this appeal it is of interest to note, these allotments extend well out into the water. The jetties appear to be still within that part of each allotment that is underwater. Needless to say in calculating Floor Space Ratio and site coverage in the subject application only those parts of the site above high water mark were used.
The total lot area, including the underwater part, is 1,169 sq m. The site area north of the sea wall is 617 sq m, with a street frontage of 15.24 m. The depth of the lot from the street to the sea wall is about 34 m on the east, and 56 m on the west boundary.
The side boundaries are approximately parallel, so the differences in the side boundary measurement, are due to the foreshore curving out to the promontory on the western side. The foreshore building line curves across the site parallel to the foreshore 12 m from the sea wall. The old retaining wall is about 14 m from the shore on the east side, and about 4 m from the shore on the west side of the site.
The Floor Space Ratio calculation in exhibit R for the two-storey part of the amended proposal above the podium is 0.44:1. The permitted maximum Floor Space Ratio is 0.55:1. If the semi-basement is included the Floor Space Ratio rises to 0.58:1.
The Court was told of recent approvals by the council under the current statute since 2001, and near the site within the Watsons Bay heritage conservation area. For instance No. 4 Pacific Street had been allowed at a Floor Space Ratio of 1.002:1. Several other properties nearby had been approved at Floor Space Ratios between 0.67:1 and 0.93:1.
Number 8 Pacific Street, the neighbour on the east of the site, appears a very large house of four levels. The council had been asked to produce its statistics but its files could not be located. The Floor Space Ratio is not a statute, it is a control in cl 4.6.1 of the Watsons Bay Heritage Conservation Area Development Control Plan, and permitts a range of Floor Space Ratios between 1.2:1 for a 50 sq m lot, down to 0.55:1 for lots of 400 sq m in area and greater.
Appearing for the respondent are:
Ms J Hewitt, instructed by Mr M Dean of Michell Sillar, solicitors.
Mr A Rowan, town planner, for the council,
Mr A Hiscock and Ms S Hiscock, objectors of No. 12 Pacific Street,
Mr R Metaxis, objector of No. 8 Pacific Street,
Mr and Mrs Menadue, objectors of No. 17 Pacific Street, and
Mr and Mrs Berkleman, objectors of No. 15 Watsons Street.
Appearing for the applicant were:
Ms J Jagot, instructed by Ms I Ferguson of Maddocks,
Mr Andrew Smith, consultant town planner.
There was also a geotechnical report by J C Braybrook of Douglas Partners, in accordance with cl 18 of the Woollahra Local Environmental Plan 1995. He was not required for cross-examination.
Mr R Miller, architect for the proposal, also attended to explain the drawings and present the Floor Space Ratio calculations, but he was not required for cross-examination. The parties had agreed to the appointment of Mr I Glendinning by the Court as an expert town planner.
The original issues in the appeal were:
Issue 1(a), the appearance of the development from the harbour is unacceptable due to the proposed storey height and vertical scale arising particularly from the lower ground floor level.
Issue 1(b), the appearance of the development from the harbour is unacceptable due to the extension of the proposed dwelling beyond the predominant rear waterside building line of neighbouring dwellings on all levels.
Issue 1(c), the appearance of the development from the harbour is unacceptable due to the proposal’s impact upon the existing terraced foreshore setting of the site due to demolition of the existing garden retaining wall and removal of the bedrock outcrop below.
Issue 1(d), the appearance of the development from the harbour is unacceptable due to the raising of the sea wall and lower platform area of the site for the swimming pool to a level above that as existing and that of neighbouring properties.
Issue 1(e), the appearance of the development from the harbour is unacceptable due to the inadequate information regarding deep soil planting of shrubs and trees between the proposed dwelling and harbour.
Issue 2, the proposed development fails to safeguard the privacy of neighbouring properties, particularly No. 12 Pacific Street, from windows facing onto the subject site, and whether adequate provision is made for the privacy of the proposed development ground floor level and central courtyard from neighbouring properties, particularly No. 12 Pacific Street, as a consequence of the existence of the easement over the western side of the subject site.
Issue 3, the proposed development constitutes an overdevelopment of the site by virtue of its excess floor space, excess storey height, intrusion beyond the foreshore building line, and excessive excavation of the subject site.
Issue 4, the proposed development fails to adequately safeguard the setting of the Watsons Bay Heritage Conservation Area in terms of streetscape due to:
(a)the excessive width of the proposed garage and its uncharacteristic roof form;
(b) the inadequate provision of view corridors alongside boundaries which are considered necessary to reinforce the visual connection of Pacific Street with the harbour.
Issue 5,the proposal fails to adequately safeguard the setting of the Watsons Bay Heritage Conservation Area given:
(a) the proposal’s effect upon the setting of the contributory item of No. 12 Pacific Street, as viewed from the waterway due to its rear building alignment on the ground and first floor levels;
(b)the extension of demolition to the rear garden retaining wall that forms part of the original garden setting of No. 12 Pacific Street.
Issue 6 concerns raised by the objectors.
Mr Rowan, Mr Glendinning and Mr Smith had conferenced and produced a joint report in exhibit A. They all recommend approval of the proposal subject to resolution of certain matters related to objectors’ concerns and foreshore scenic protection. They agreed, these could be resolved by conditions. There is, however, disagreement on the requirements of some of the conditions. Those disagreements, and the objectors’ concerns become the practical matters at issue in the appeal.
The single day set for the hearing was insufficient to carry out the view on-site and see the neighbours’ objections from their properties, take their evidence, to observe the site from across Watsons Bay, and hear the other evidence and submissions.
I made some observations regarding the evidence at the conclusion of the first day. During the adjournment the applicant negotiated with the respondent and the objectors resulting in the amended plans in exhibit O. The reduced floor space calculations in exhibit R relate to those plans.
Mr Rowan has prepared an addendum report covering the remaining disagreements in the revised draft conditions in exhibits 12, 13 and 14. Mr Glendinning has prepared an addendum report in exhibit Q.
The applicable statutes and controls are found in:
State Environmental Planning Policy No. 55, Remediation of Land. The evidence of Mr Braybrook show no issue in regard to groundwater, or the safety of excavation in the sandstone ground of the site. The site is uncontaminated.
State Environmental Planning Policy No. 56, Sydney Harbour Foreshores and Tributaries,
Sydney Regional Environmental Plan No. 23, Sydney and Middle Harbour, and the related Development Control Plan and guidelines,
the Woollahra Local Environmental Plan 1995 for the residential 2(a) zone in which the site is located, and
the Watsons Bay Heritage Conservation Area Development Control Plan for the precinct J, Pacific Street waterfront,
the Woollahra Development Control Plan for off-street car parking, and
the Woollahra Development Control Plan for disabled access.
No issue is raised in respect to the latter two Development Control Plans.
On the Floor Space Ratio excedence, I note that the two-storey section of the house that creates the visible bulk complies with the height limit and is 0.44:1 Floor Space Ratio. The control is 0.55:1. I note the applicant’s submission on the other very large houses nearby, and I believe the proposal will have acceptable bulk and scale, and form a transition from the very large No. 8 to the contributory heritage item at No. 12. The semi-basement takes the floor space ratio to only 0.58:1 and will not add to the visual bulk, being largely below ground and behind the existing retaining wall, which in exhibit O both parties seek to retain.
The other matters I refer to later in this judgment are self-explanatory. In regard to the other concerns raised by the objectors on privacy, overshadowing and landscaping I find that the amended proposal is acceptable.
The most efficient way to consider the remaining issues is to go to the disputed conditions. Draft condition 2 states:
“Rear setback to basement level. The plans shall be amended to depict the following; the southern alignment of the basement level accommodation shall be set back, so as to delete the triangular area of the accommodation, reducing the depth of the internal accommodation to a maximum of 7.2 m.
Where required, opening shall be limited to a single east facing door opening to a porch or landing in the eastern corner of the accommodation behind this alignment with a single set of steps leading to the swimming pool level. The external wall of the porch shall be finished with sandstone to match the existing retaining wall re-using that removed to create the porch opening where possible. The existing diagonally aligned sandstone retaining wall that extends across the site, the bedrock and slope below, and the natural ground between the revised building alignment and the existing retaining wall shall be retained in situ and shall not be altered otherwise.
The condition is imposed to minimise the extent of proposed excavation, reduce the vertical scale of the building as viewed from the waterway, and in context of the contributory item of No. 12 Pacific Street, to reduce the impact of the development upon the foreshore setting of the conservation area, and to ensure the development satisfies the provision of cl 22, Foreshore Building Line of the Woollahra Local Environmental Plan. Details demonstrating compliance shall be submitted with the construction certificate application.”
The applicant sought to delete all of condition 2, and an alternate condition 2 in exhibit 14. The respondent pressed that if conditions 2 and 3, were not adopted by the Court then the council pressed alternate condition 2 in exhibit 14.
As indicated by the positions of the parties, condition 2 needs to be considered in conjunction with draft condition 3, which states:
“Floor level of the basement. The floor level of the basement shall be no less than RL4.05 providing a maximum floor to floor height to the ground level of no more 3.2 m to reduce the extent of excavation on the site required by the development. Details demonstrating compliance shall be submitted with the construction certificate application.”
The applicant sought the deletion of condition 3.
In looking at the final plans, the floor of the basement is proposed at RL2.6. This brings the floor of the semi-basement down almost to the pool terrace level so there is no need for a porch or steps down to the terrace. Also the setback of the semi-basement as its southern alignment means deletion of the pool plant room, and about 0.75 sq m of floor space in the family room, if condition 2 is applied as requested by the respondent.
The plant room is a permissible facility inside the foreshore building line. The family room is not. Both are behind the old stone retaining wall that is to be kept by council requirement. The retaining wall is set at an angle to the house due to the wall following the curve of the shoreline. Eliminating those two areas means the pool plant equipment would have to go somewhere outside, and losing the 0.75 sq m would only serve to narrow the sliding glass door to the pool terrace by about one metre in a four metre wide door.
Raising the floor of the basement is, according to the council, to minimise the appearance of the house as being three storeys from the harbour, and to preserve a natural small embankment existing on the pool terrace that ramps up against the retaining wall.
On seeing the site on the pool terrace, and from the jetty of No. 8 and from across Watsons Bay, I became aware that the retaining wall at its eastern end where the sliding glass door is proposed is barely visible due to vegetation on No. 8. Also the grassy embankment that the council seeks to preserve would at that distance have the same appearance as the landscape vegetation proposed by the applicant against the wall. Having the floor of the basement higher than RL2.6 would only bring the doorway more into view from the harbour and accentuate the visual link to the two-storey house above. Having to build a porch and steps down from the higher floor level to the pool terrace again would emphasise that connection.
The proposal with the lower floor level provides more stone above the head of the semi-basement sliding door, and so will accentuate the mass of the stone podium created by the old retaining wall. The lack of need for a flight of steps and porch down from the semi-basement to the pool, plus the vegetation proposed at the base of the wall, will in my opinion further emphasise the podium. Together with the two-storey house being set back between 5 m and 15 m behind the old stone retaining wall, they will disconnect any impression that the house is three storeys.
Given the proposal as it now stands the deletion of the plant room hidden behind the old retaining wall, and the slight narrowing of the family room door are unnecessary. The 0.75 sq m of family room floor space within the foreshore building line is de minimus, and the State Environmental Planning Policy No. 1 objection to allow it is upheld, compliance being seen to be unnecessary in this case.
Compared to No. 8 Pacific Street, that is obviously a large four-storey house immediately adjoining the proposal, the new design in exhibit O is much more respectful of the foreshore scenic protection than No. 8, or the previous approval by the council on No. 10. Also the amended design offers a graduation in scale from the very large No. 8 house back to a smaller two-storey scale at No. 10 that will relate well to the two-storey heritage contributory item in the conservation area, that is No. 12 Pacific Street.
The alternate condition in exhibit 14 contains some items I also considered. The natural rock face should be retained if at all possible against the eastern boundary. The applicant thought excavation for the semi-basement may shatter it, that can be addressed if it occurs.
The window at the foot of the stairs would contribute to internal amenity of the family room, and would hardly be visible from the harbour. I see no reason to remove it.
The applicant said, the description of the works on the old retaining wall as shown on the plans, Quote: “sandstone facing random squared rock faced finished” is the same as the existing wall. The respondent wanted to be sure by the last item in exhibit 14. I agree with that paragraph for more abundant caution, but not to the re-use of the existing stone as it is salt affected and unsuitable. Therefore, I propose to delete draft condition 2 and insert in lieu the matter in exhibit 14 I have outlined. I also propose to delete condition 3.
Draft condition 4 states,
“Rear setback of ground and first floor levels. The southern side wall alignment of the ground and first floor levels shall be set back a further minimum of 0.3 m so as not to extend beyond the southern wall alignment of No. 12 Pacific Street, and the first floor balcony shall be reduced in depth to no more than 1 m from the face of the building, to maintain the predominant building alignment of adjacent development as viewed from the waterway to reduce the impact of the development upon the amenity of neighbouring dwellings in terms of views, overshadowing, and excessive bulk and scale, and to safeguard the setting of the neighbouring contributory item within the conservation area. Details demonstrating compliance shall be submitted with the construction certificate application.”
The applicant listed optional amendments in order of preference. Option A was to amend the condition to say:
“The southern first floor balcony shall be reduced in depth to no more than 1.45 m from the face of the building. Details demonstrating compliance shall be submitted with the construction certificate application.”
Option B was to amend as follows:
“The southern first floor balcony shall be reduced in depth to no more than 1 m from the face of the building. Details demonstrating compliance shall be submitted with the construction certificate application.”
Option C to amend the condition as follows:
“The southern waterside wall alignment of ground and first floor levels shall be set back a further minimum of 0.3 m so as not to extend beyond the southern wall alignment of No. 12 Pacific Street, and the first floor balcony shall be reduced in depth to no more than one metre from the face of the building. Details demonstrating compliance shall be submitted with the construction certificate application.”
Draft condition 20 is also associated with condition 4, and it states:
“Reduction in width of the first floor balcony. The south facing first floor balcony shall be set in from the corners of the building by 1.2 m on each side to reduce the potential for backwards view into No.s 8 and 12 Pacific Street. And the area beyond the side balustrade shall be a lightweight not trafficable roof to reduce the need for side privacy screens that might otherwise impact upon existing view lines, and increase the perceived bulk and scale of the building. Details demonstrating compliance shall be submitted with the construction certificate application.”
The applicant sought amendments, again in order of preference, option A being to delete the condition entirely, and option B to amend the condition as follows:
“The south facing first floor balcony shall have permanent false balustrades constructed at 50 cm from both the eastern and western ends of the balcony to create non-trafficable areas at the ends of the balcony. Details demonstrating compliance shall be submitted with the construction certificate application.”
The objectors supported having the balcony reduced by setting it in the 1.2 m from the side walls, so that persons on the balcony cannot look back towards and into their windows on No. 12, and the balconies of No. 8.
The applicant stressed that part of the function of the balcony is to protect the concertina glass doors of the living room on the ground floor below. In an exposed position facing south this can be recognised as important. The applicant preferred the 1.45 m width of the first floor balcony as proposed, and drew the Court’s attention to the mutual overlooking of all houses facing the harbour brought about by their desire to maintain as wide a view of the water as possible. Also the balcony is only off the master bedroom of the proposal at No. 10, and its en-suite, so it is not intended as an entertainment area.
The applicant suggested either a secondary balustrade as described in the condition, or as mentioned in oral, set in 1.2 m from the ends of the first floor balcony to stop people getting right to the end, or privacy screens for half the width of the balcony ends. I believe the former solution is appropriate for reasons I mention below.
The other matter in condition 4 is the requirement to set the south wall of the house back another 300 mm to align with the south wall of No. 12. The council says it is necessary under the applicable Development Control Plan, and also it would ensure the contributory item of the house at No. 12 could retain its significance in the scenery of the foreshore.
Corner posts were set up at both the applicants proposed location and as the respondent’s condition 4 sought, and I was taken around Watsons Bay to observe the differences. I agree with council that a 300 mm additional set back, although numerically small, makes a considerable difference when looking at No. 12 at an oblique angle from a typical vantage point such as Doyle’s Restaurant. Allowing for the projection of the balcony, and the eaves of the proposal, the additional 300 mm should allow the southern full gable end of No. 12 to be seen at that oblique angle. Because of that No. 12 can retain its presence more effectively.
Allowing a privacy screen on the first floor balcony of the proposal at its ends would visually impair the clean lines of the proposal and introduce an obstruction to the viewing of No. 12. The balustrade on the proposal at first floor balcony at both ends should be set in, as marked in red on the plans in exhibit O, both to prevent persons going to the ends the balcony and to minimise impairment of No. 12’s visibility.
In order to keep the profile of the concrete cantilever of the balcony to minimum dimensions and minimise obstruction of the view of No. 12, I do not believe that a roofing material is necessary to be applied, as in the draft condition. The proposed paving tiles are appropriate. I propose to amend conditions 4 and 20 accordingly.
Draft condition 5 states:
“The reduction in height of the sea wall and swimming pool. The level of the swimming pool concourse and surrounding planters shall be lowered to be a maximum height of RL1.7, and the height of the sea wall is not to be increased above that as shown on the survey plan to safeguard the foreshore setting of the site and to minimise the impact of the swimming pool development within the foreshore building line area of the site as viewed from the waterway. Details demonstrating compliance shall be submitted with the construction certificate application.”
The applicant sought to retain the swimming pool concourse at RL1.8 as shown in exhibit O drawings, that having been reduced about 600 mm from the original proposal.
The survey of the site in exhibit J actually shows the top of the sea wall at RL1.74. The pool deck should butt up against it at the same level to minimise visibility from the harbour and so maintain the uniform strong visual definition of high water mark provided by the sea wall that is at a consistent height in front of No. 10 to No. 2 Pacific Street inclusive. I shall amend condition 5 accordingly.
Draft condition 8 says in part:
“The plans are to be amended to depict the following on the side boundary fencing, namely the removal of the existing lattice on the eastern boundary on the lower terrace area of the site adjacent to the swimming pool to reduce the bulk of the development in the foreshore building area of the site as required by the Development Control Plan.”
The applicant sought the deletion of that paragraph, and Mr Metaxis of No. 8 Pacific Street, sought to have the existing lattice retained as it was on his property and would provide privacy between the two adjoining pool terraces. The applicant agreed. The lattice has jasmine creeper plant growing vigorously upon it. The trellis is hardly visible from the water, and the greenery adds to the foreshore vegetation. I see no reason to remove it and therefore delete the condition.
Draft condition 9 says:
“View corridors along side boundaries. The plan shall be amended to achieve the unobstructed view corridors along the side setbacks as required by the development control plan to achieve visual connectivity between Pacific Street and the harbour:
(a) A full height opening in the existing sandstone street wall of minimum width 1.5 m commencing from the alignment of the western boundary of the site with vertical fencing provided in the opening comprising a minimum 100 mm gap between maximum 25 mm wide palisades; and
(b) The eastern pedestrian gate and any fencing within the opening shall incorporate vertical fencing comprising a minimum 100 mm gap width between the maximum 25 mm wide palisades; and
(c) Ensure that no structures are erected within the view corridors that exceed a height of 1 m above existing ground level.
Details demonstrating compliance shall be submitted with the construction certificate.”
The applicant sought to delete the whole of the condition on the basis that the view corridor on the west was not justified and there was a view corridor proposed as on the plans along the eastern boundary.
In considering this matter, to create a gap in the existing sandstone street boundary wall to provide a view corridor to the harbour would mean removing vegetation between No. 10 and No. 12, and exposing to public view the private recreation area provided by easement to No. 12.
Mr and Ms Hiscock objected strongly to this condition, and the applicant agreed. The council said the Development Control Plan sought to obtain view corridors wherever possible along Pacific Street due to the very few currently available. It is a nice feature of the conservation area to glimpse the harbour from the street between the houses. In my opinion the proposal has provided a generous view corridor along its eastern boundary. To provide one on the west at the cost of No. 12’s private open space, and the breaking of the integrity of the old stone boundary wall, is unnecessary in the circumstances of this case. I propose to delete the section of condition 9 relating to the western view corridor.
Draft condition 10 seeks to keep excavation 1.5 m away from the side boundaries. The applicant agrees to this except for the need for a new sewer line along the eastern boundary. This is reasonable and I propose to allow a suitable provision in condition 10.
Draft condition 15 requires a photo survey of the vehicular gate to the site, which currently exists as part of the old entry to the garden of No. 12. The applicant seeks deletion of that condition on the basis that the gates were built by the Flanagans only 15 years ago. They have no relationship to the long-term history of the contributory item. I agree with the applicant’s submission and delete condition 10.
Draft condition 33 is in regard to construction management, especially traffic control. The applicant seeks to delete the need for council’s development engineer to approve it, and allow approval by an accredited certifier. The narrow streets of the Watsons Bay Conservation Area, and the number of other constructions going on nearby, mean that truck movements can cause considerable congestion and inconvenience to residents. The many tourists who throng the area add to this situation. A private certifier would not know what other projects have also been approved, nor their requirements for traffic movements, nor have the experience of council engineers in managing the local traffic in the Watsons Bay area. I will not allow the applicant’s amendment.
Draft condition 48 is about dilapidation surveys of No. 8 and No. 12, and the problems of gaining access to those properties to do it. I agree with the applicant’s sought amendments to avoid frustration of the condition if times for inspection cannot be agreed with the owners of No.s 8 and 12.
Draft condition 58 requires if necessary the dedication of land on-site for an electricity substation. The respondent did not press any evidence on this condition, and the applicant submits it could not be a reasonable condition for a house. I agree condition 58 should be deleted.
I note that condition 93 requires the surrendering of DA No. 962/2002/1, and the applicant has not opposed it.
The respondent has sought costs on the reports and expenses necessary since the introduction of the amended plans claiming re-notification costs, Mr Rowan’s addendum costs, and the mention and callover between hearing dates.
The applicant put, that in being fair and reasonable to grant costs or not, the Court should bear in mind the council granted consent to another similar house much closer to the harbour. The applicant has shown consideration and flexibility in amending this new application to satisfy the objectors and the council as far as possible. The costs to the applicant have been considerable. The Court-appointed expert has supported the proposal even in the form it first came to the Court.
In considering this I agree with the applicant, this has been a difficult development application due to the intensely fought competing interests. The applicant’s provision of amended plans has been in response to objectors and council’s concerns, and it is not reasonable nor fair to add further to the applicant’s costs incurred.
Therefore the orders of the Court are:
The appeal is upheld.
Consent is granted to a house and swimming pool and associated works at No. 10 Pacific Street, Watsons Bay, as shown on plans as annotated in Exhibit O being Drawing Nos. 1160-01E, 02E, 03E, 04E, 05E, 06E, 07E, 08E and 09E by Greenwood Miller Architects and landscape plan No. 4064 sheet 1160-10B by Treetalk Arboricultural & Horticultural Consulting, all as amended by and built in accordance with the conditions in Annexure A hereto.
The exhibits are returned to the parties except Exhibits O, Q, R, 12, 13 and 14.
No order as to costs.
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K G Hoffman
Commissioner of the Court
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