Gardner v Woollahra Council

[2008] NSWLEC 1527

Land and Environment Court

of New South Wales

CITATION:

Gardner & Anor v Woollahra Council [2008] NSWLEC 1527

PARTIES:

APPLICANT
Andrea Mary Gardner & Anor

RESPONDENT
Woollahra Council

FILE NUMBER(S):

10970 of 2008

CORAM:

Murrell C

KEY ISSUES:

Section 97 Appeal :- Development application for subdivision and the erection of two dwelling houses, bulk and scale, streetscape, FSR, setbacks, landscaping, solar access and impact on adjoining property.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003

DATES OF HEARING:

22/12/2008

EX TEMPORE JUDGMENT DATE:

22 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Harris with
Ms A. Gardner, litigants in person

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

22 December 2008

10970 of 2008 Andrea Mary Gardner & Anor v Woollahra Council

This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 The applicant in these proceedings is seeking to subdivide the subject land and erect two dwelling houses. The appeal is under s 97 of the Environmental Planning and Assessment Act against Woollahra Council’s refusal of a development application for the property known as 59 Manning Road Double Bay. The proposal is to demolish the existing house and to erect two free standing two to three storey dwellings on separate parcels of land of 350 square metres each.

2 The site is some 701 square metres and it has a fall of between 2 and 4.9 metres from the rear to the front with a cross fall of some 2.7 metres. The land is rectilinear in shape, 30 metres by some 23 metres deep. Currently erected on the subject site there is a single brick and tile dwelling house of rather large proportions. The area can generally be described as a leafy vegetated environment with a predominance of single and two storey dwelling houses set on individual allotments.

3 The site is zoned under the Woollahra Local Environmental Plan 1995, as 2A. The LEP contains a number of objectives and include: to relate population density to the capacity of the existing road network, availability of parking provision and provision of open space, a capacity of the natural environment to accept change without losing its attributes; and to encourage and facilitate opportunities for diversity in dwelling and density type and tenure in suitable locations throughout the municipality.

4 the objectives in relation to landscape include: to protect and enhance natural landscapes; to promote the retention of trees and the planting of suitable new trees in appropriate locations; to control or minimise the impact of future development. The urban design provisions include: to require the design and siting of new development enhances the attributes of its siting, improve the quality of the public environment.

5 The LEP provision in clause 8(5) is the council shall not grant consent unless the council is of the opinion that the proposed development is consistent with the objectives of the plan and the zone. For the zone, the relevant objective is to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses. The height of the dwelling is provided for in cl 12 of the LEP and there is a 9.5 metre height restriction for the subject site.

6 The other control is the Woollahra Residential Development Control Plan 2003 and the objectives of this are to retain and enhance significant trees and vegetation to conserve Woollahra’s leafy character, to minimise negative impacts of development on adjoining and neighbouring properties.

7 The provision for setbacks is contained within the DCP and the setback provisions require a sliding scale in terms of wall heights for certain setbacks and for the rear setback, it is proposed development is setback a minimum of generally 6 metres from the rear boundary. With respect to the side boundary setbacks, this is calculated in accordance with the wall height provisions and for the subject site, the separation distance between the two proposed dwellings is at the highest point, 4.2 metres for each site, giving a total of 8.4 for the upper levels.

8 It is noted that the DCP contain objectives for the site analysis controls and to ensure that development preserves or enhances, the special qualities of individual sites and in terms of side setbacks as pointed out by the respondent there is a street elevation diagram at 3.2 and it is noted that side setbacks contribute to an open leafy street character and allow views between buildings and it is also noted in the same street elevation that minimal driveway widths allow street tree plantings with on street parking and established trees to contribute to the leafy street character shown at the rear of properties. The predominant building form is one to two storeys with clearly defined entries and living areas overlooking the streets to promote neighbourhood surveillance. The predominant pitched roof form with garages setback from the building façade.

9 The other parts of the DCP include precinct controls and the subject property is in what is known as the Wallaroy precinct.

The description of this precinct is that this is sited along a ridgeline and hillside overlooking Double Bay and Sydney Harbour. The precinct extends from the valley floor of Manning Road to the main arterial of New South Head Road and the Woollahra Heritage Conservation area adjacent to Edgecliff Road. The steeply sloping topography has meant that the roadways are not particularly well connected but it does allow for many expansive views from the streets as they wind down the hillside.

10 The desired future character objectives are:

1. To establish a development transition from the large residential buildings and allotments at New South Head Road and Edgecliff Road to the smaller dwelling houses situated on the slopes; and

2. To reinforce the precincts landform and landscape qualities including the steep topography, terracing of development and the curvilinear road pattern”.

11 The desired future character performance criteria includes: for development to respect and enhance the existing elements of the local neighbourhood character, in particular the well established private gardens and trees, the highly visible tree canopy providing a dense green backdrop to views from Sydney Harbour and surrounding lands and that views and vistas, that development maintains views and vista corridors.

12 In terms of the subject site, there are no Harbour views or water views obtained within the immediate vicinity. The side boundary setbacks are that - this is once again a sliding scale generally, but where the site lot width is equal to or exceeds 18 metres at the front alignment, development has a side boundary setback of 2.5 and this side setback is increased on a pro rata basis. The subject site is less than 18 metres each of the sites, one being approximately 13 and the other some 16.

13 The controls for the Wallaroy precinct street section has a building height, to be a maximum of two storeys, where the land form of the site falls more than 2 metres from the street to the rear of a property, an additional basement storey may be permitted provided that the other residential DCP controls are met and in terms of deep soil landscaping, there is to be a minimum of 40% of the area of the front setback to incorporate deep soil landscaping and building, there is also gardens in terms of maintaining significant vegetation and for front fences these are not to be more than 1.2 metres.

14 The other controls pointed out by the respondent to the Court and the general controls for streetscaping include to achieve housing forms of a scale and character in keeping with the desired and future character of the locality and the potential for location of development on the site is that it maximised deep soil landscaped areas, limit site coverage and excavation for dwellings and the purpose of the front, side and rear setbacks controls is to avoid an unreasonable sense of enclosure and safeguard privacy and minimise noise between dwellings.

15 The objectives are to preserve the established tree and vegetation networks and promote new networks by ensuring sufficient areas for deep soil planting and sufficient setbacks between buildings. In terms of development setbacks, there is an emphasis on vegetation. The floor space ratio for dwelling houses and dual occupancies is on a sliding scale for the subject site it calculates at 0.64:1 and for building footprints, the building footprint is to be no greater than 50% of the site area. The other more relevant controls once again relate to the open space and landscaping and the maintenance of mature vegetation.

16 In terms of the subject site, it is noted that there are a number of paperbark trees in the front boundary street verge outside the subject property and four paperbark trees are to be retained. In terms of vegetation of the subject site it is noted that there are a number of palm trees, some of which can be relocated. There are no other large canopy trees as such. There is a crepe myrtle which has been referred to and an arborist’s report that it would not in fact be endangered by the proposed development.

17 The Court heard evidence from Mr Stuart Harding on behalf of the applicant, a consultant town planner, and Mr Stuart McDonald for the respondent, gave evidence.

18 It is noted that the council officer’s reports recommended approval, however the council refused the development application and the reasons for refusal included that the proposed development did not comply with the desired future character objectives and it did not comply with the setbacks, storeys limitation, FSR and deep soil landscaping and that the development would exhibit an excessive scale and bulk to the streetscape and adjoining properties and it would have adverse impact on the residential amenity of adjoining properties in terms of privacy, solar access, views and visual impact.

19 The reasons for refusal then became the contentions in the proceedings. The basis of council’s contentions is that the combined effect of the non compliances, with regard to the number of storeys, floor space ratio, higher front fence will result in an adverse impact on the existing streetscape appearance, bulk and scale. Non-compliance with the boundary setbacks will have an unnecessary unavoidable adverse impact on adjoining property in terms of loss of privacy, outlook and bulk and scale. The non-compliance with the FSR and deep soil planting will mean there is an adverse impact on adjoining properties and the streetscape in terms of the bulk and scale.

20 In terms of the compliance table it is noted that the proposed development for dwelling number 1 on proposed lot 110 is 0.8:1 and the area of deep soil landscaped area is 20.6% as opposed to the DCP requirement of 25%. In the front setback it is 55% where the DCP requires a 40% ratio. In terms of dwelling house number 2, it is noted that the FSR is 0.813:1 and in terms of deep soil landscaped area, this is 13.25% and for the front setback area some 31%, the requirement being 25% and 40% respectively. Dwelling house number 2 is proposed to be erected on lot 111.

21 The Court also heard evidence on the view from Mr Purcell the recent owner of number 21 Wallaroy Road, Double Bay and he is concerned about the privacy and the bulk of the proposed development. Some time was spent in the rear of his property, in particular on the balcony which adjoins the main family room area of the subject property. Consideration was given to the relative heights of the proposed development and the relative heights of his balcony and his dwelling house. It is noted that the subject proposal is a maximum of 16.55 RL and in relation to his property, his roof ridge is some 23.5 and the under side of his eaves 20.4 and the balcony is some 16.88.

22 The Court has regard to the elevations of the rear of the subject dwellings that face Mr Purcell’s property and the relative levels and it is noted that there is vegetation in the form of Lilly Pillies on No. 21. The Court does not rely on the vegetation but in fact the separation distances. The experts had agreed that the balconies, as they are shown on the plan are Juliet style balconies and in terms of the upstairs rooms being bedrooms, that this would not impose or create an unreasonable adverse privacy effect for No. 21 at the rear. It is also noted that the relative level of the floors of the dwelling, compared to the deck that the Court had the opportunity of viewing the subject site and the separation distances, that is the 6 metre setback from the rear boundary of the proposed dwellings and the setbacks on number 21, I am satisfied that privacy and overlooking is not an issue that would warrant refusal of the application.

23 The Court also has the opportunity of understanding his outlook. As I said whilst not Harbour views or iconic views from the subject property, at the same time that there is an outlook to consider. The experts, town planners, made a number of general comments and they agreed that there would be no significant views from adjoining properties that are impacted. The two storey dwelling house will impact on the outlook currently enjoyed from the rear of No. 21 over the top of the existing single storey dwelling house on the subject site.

It is agreed that it is reasonable to expect the construction of a two storey dwelling house on the subject site or alternatively the subdivision of the site and the construction of two Torrens title dwelling houses on each of two storeys in height...
“It is agreed that the bulk and scale of the dwelling houses at ground floor level is generally acceptable subject to the front fence and front Courtyards of each of the houses being lowered as originally recommended by council officers.

24 It is proposed that the solid front fences and planters be reduced to a height of a maximum of 1.2 above finished ground level. In addition the elevated front garden area should be lowered to existing ground level. Mr McDonald is of the view that the combined bulk and scale of the two dwellings has an unacceptable impact when viewed from the adjoining property at 21 and he notes the exceedence in floor space ratio of the two properties. Mr Harding on the other hand considers that the view of the rear elevation of the proposed dwelling is obscured by trees, shrubs and existing fence. The building separation exceeds 12 metres and this exceeds reasonable planning requirements for such separation.

25 The ability to see the upstairs section of the neighbouring building is an inevitable outcome when development of two storeys is proposed for the subject land. Mr Harding is of the opinion that the proposed dwellings do not present an unreasonable bulk to the rear of No. 21 or in the streetscape. Mr McDonald on the other hand considers that the bulk of the proposed development from the streetscape and from number 21 is not satisfactory.

26 There were discussions between the experts in terms of concurrent evidence and the controls contained within the development control plan. I will say at this point, I have given central focus to the provisions of the development control plan and this includes the objectives of the development control plan in my assessment of the development application. As referred to the Court, the judgment of Zhang v Canterbury,

27 It is noted that the subject development is on a site that has significant rock and at the rear of the subject site there is a rock shelf which has been partially excavated. It is noted that the rock shelf at the rear of the site, or the existence of that rock, in fact contributes to a reduced deep soil landscaping capable of being be provided on the subject site. At the same time one can see that the area is one that does provide a leafy environment and development of land and sites within the area should make a commensurate contribution to maintaining that leafy vegetated ambiance within the precinct.

28 There was further discussion during the hearing about the hard built and form how the front steps to each of the dwellings and, could be ameliorated. In that regard Mr Harding came up with a suggestion of how the front stairs of the subject dwelling could be reconfigured to provide for an area of further landscaping, and whilst this would not count as deep soil planting, and while planter boxes they would provide canopy trees to punctuate the built form.

29 I will say at this point, whilst I have on balance considered that the development is appropriate, there are a number of amendments that are required which therefore will necessitate the need for a deferred commencement for amended architectural plans and for an amended landscape plan. It would appear that there has been a reliance on the street trees to ameliorate the built form of the subject development proposal that will no doubt have a much longer life than the existing street trees. An over reliance on vegetation whether it be street trees or otherwise, is not appropriate in the assessment of development applications. The built form in itself should be satisfactory.

30 It is clear that landscaping in this area should provide for a landscaped setting of dwellings within the precinct. In this regard there needs to be significant changes to the landscaped plan, which generally has been prepared on the basis of providing low level plantings, including Murraya and the like, and then for the trees to be either Japanese maples or palms or a specimen Gem Magnolia.

31 Clearly the subject site should to contribute to the leafy nature of the area in terms of canopy trees and in this regard the plans can be amended such that at the rear of the subject property, where the barbecues are currently located, these can be relocated and for significant planters to provide for canopy trees which will punctuate the building and roof when viewed from the rear property and these will then also be visible from the street. It is also noted that only one of the front courtyards. The other dwelling house, which is dwelling house No. 1, must also provide for a tree within the courtyard which could be of a deciduous nature given the aspects and the solar access that would be desired for that property.

32 Similarly in terms of the front stairs there can be trees provided within the middle section to provide for a punctuation of the built form. The boundary with the public walkway was also discussed in the proceedings and there could be more significant plantings provided in this area. This is important of the proposed development being viewed from the public domain from the stairways that adjoin dwelling No. 2 and the streetscape. Also in terms of the rear property looking down on the subject site, there should be vegetation of some significance provided.

33 As such the deferred commencement condition will include the need for an amended landscape plan to provide for the required trees. This will make the proposed development commensurate in terms of its contribution to the leafy nature of the area. I note that the proposed development is deficient in landscaped area and there is a need for careful planting of canopy trees in this regard in the space that is available. I have also had regard to the circumstances of the case in terms of the subject site and the significant rock that appears on the site.

34 The architectural plans will also need to be amended, such that there will be achieved, as discussed during the proceedings between the experts, a minimum of 3.5 metres between the two dwellings on the site. Clearly dwelling No. 1 will not have the same setback as dwelling No. 2. There will not be an equi distant setback but the additional setback for dwelling No. 2 will allow for some side boundary landscaping. I am not inferring that should be canopy trees planted within this area but there would be then a contribution in terms of landscaping along this boundary as well as providing enough width to provide for a pathway, and according to Mr Harding’s evidence this could be achieved with a slight reconfiguring of the dwelling.

35 In terms of the objectives of the DCP, I am satisfied with the changes required of the deferred commencement conditions for the landscape plan and the architectural plans, that the objectives of the residential DCP to retain and enhance and to conserve the leafy nature of Woollahra could be provided for by the proposed development as amended and also it will minimise the negative impacts of development on the amenity of adjoining properties. There is no issue with respect to overshadowing and for the privacy issue in respect of the rear property I am satisfied that the proposed development does not present an unreasonable incursion on privacy for No. 21. Also buildings that look down create more impacts on privacy than viewing up from subject properties.

36 I have considered the requirements of the DCP including setbacks. The front setback will allow for a contribution to the streetscape and a maintenance of the future character of the area. It is clearly envisaged in councils controls that subdivision be allowed of properties within the area down to a minimum of 350 square metres. It is also noted that the objectives of the plans are to allow for different forms of housing as such and this area is to be characterised by dwelling houses. The proposed development will provide for the provision to allow for different types of dwellings appropriate to the location. In this regard the proposed development will satisfy the requirement of the local planning regime.

37 The Court has had regard to the non-compliances and has considered that the proposed development, given the circumstances of this site, is such that the development warrants approval subject to amendments as dictated above. It is noted that the one in a hundred year flood levels have been determined by a council flood study formally adopted by council. It is noted that the proposed development was designed and raised lifted to satisfy council’s flood policy. However, it is also noted the proposed development is less than the 9.5 metre height restriction being a maximum of 9.1 metres. I am satisfied the design of the buildings with modulation and articulation will not present as bulky elements in the streetscape but provide for design and relief in terms of increased setbacks at places, whether it be the front or the side boundaries. Overall I am satisfied that the proposed dwellings will sit within a landscaped setting commensurate with the area, subject to the amendments authorised above.

38 Accordingly, on the basis of my assessment:

1. The appeal in respect of the property known as 59 Manning Road, Double Bay is upheld.
2. The development application submitted to Woollahra Municipal Council as amended, is approved subject to the deferred commencement and the conditions in Annexure ‘A’.
3. The exhibits are returned except for Exhibits 1, 2, A, B, E and H.

___________________

J S Murrell
Commissioner of the Court
ljr