Gergely & Pinter Architects Pty Ltd v Woollahra Municipal Council

[2010] NSWLEC 1356

Land and Environment Court

of New South Wales

CITATION:

Gergely & Pinter Architects Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1356

PARTIES:

APPLICANT
Gergely & Pinter Architects Pty Ltd

RESONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10833 of 2010

CORAM:

Morris C

KEY ISSUES:

DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :- Height

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

16 December 2010

 
DATE OF JUDGMENT: 

24 December 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Farland
SOLICITOR
Lander & Co.

REPONDENT
Mr N Howie
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Morris C

24 December 2010

10833 of 2010 Gergely & Pinter Architects v Woollahra Council

JUDGMENT

1 Commissioner: This is a determination of proceedings pursuant to the provision of s34(4)(b)(ii) of the Land andEnvironment Court Act 1979. The appeal is made against the refusal of Development Application No. 624/2009 by Woollahra Council (the council). The application proposed the demolition of an existing two-storey dwelling, pool, outbuildings and retaining walls and the construction of a new three-storey dwelling, pool, ancillary building and retaining walls.

2 The proceedings commenced as a s34 conciliation conference where the parties addressed the matters which were in contention and agreed on a form that the development could take that would satisfactorily address those contention. The parties agreed that I determine the application on the basis of what had occurred at the conciliation conference.

The site and its context

3 The land to which the application relates is known as Nos. 73-75 Wolseley Road, Point Piper (the site) and comprises Lot 2 in DP 792955. The site is located on the higher, eastern side of Wolseley Road and has a frontage of 19m which widens towards its rear to approximately 25m. Site area is 1112.4sqm and a right-of-way off Wentworth Street provides the current primary vehicular access.

4 The site is elevated above Wolseley Road with the primary open space/ground level of the existing dwelling approximately 12m above footpath level. It has extensive views to Sydney Harbour. A sandstone retaining wall approximately 6-8m high is erected on the front property boundary, such walling being common to the adjoining properties. The stone walling at Nos. 63-69 Wolseley Road is an item of environmental heritage. A pedestrian gate and a garage door are located within the existing wall. The site continues to rise towards its rear, which is bounded by a cliff face comprising exposed bedrock, landscaping and a man-made block wall.

5 A two-storey dwelling house with a pitched roof is erected towards the rear of the site. An attached single storey garage is located to the rear of the dwelling and the entire rear yard area comprises hardstand surfaces. The front part of the site comprises a series of winding stairs and planters that open to an intermediate level that houses an in-ground pool and associated entertaining area. Above this level is a landscaped garden and lawn area that forms the primary open space for the dwelling.

6 To the north of the site is No. 77 Wolseley Road which has a tennis court adjacent to the front boundary wall on its lower level and a three storey dwelling erected across the site on a similar alignment to the projecting front portion of the existing dwelling on the site at the higher level. That adjacent dwelling also incorporates a pitched roof.

7 Adjoining the front southern boundary is No. 69 Wolseley Road which has a one and two storey dwelling house located to its frontage at a level lower than the proposed building platform for the site. No. 31 Wentworth Avenue also adjoins the site’s southern boundary and this property comprises a two storey dwelling with its private open space, including a pool, adjacent to its rear.

8 Behind the site is a cliff face with dwellings, including the heritage item Uig Lodge, perched above. A number of multi-storey residential flat buildings and large dwelling houses ranging from single to three storeys are located within the vicinity of the site.

Background and the proposal

9 The original development application was lodged with the council on 30 November 2009 and subsequent replacement applications, which attempted to address the concerns of the council and objectors, lodged on 17 February and 29 May 2010. The latter two applications were recommended to the council by its officers however the application was ultimately refused on 27 September 2010. It is the second replacement application that is the subject of the appeal.

10 Notification of the original application attracted five submissions. The second replacement application was renotified and two submissions were received. It is apparent to me from a review of the documents lodged with the application, the reports prepared by council officers, review of correspondence received by the objectors and hearing from one adjoining owner on site that considerable work has been done by the applicant in an attempt to address all concerns raised by those objectors. Those matters that remain relate to non-compliance with the numerical provisions of the council’s controls and these are addressed later in this judgment.

11 The plans before the court comprise the rebuilding of the sandstone retaining wall including the relocation of the existing garage door and entry gate to a position in the centre of the site. Two openings that provide light to the existing stairwell would be closed. The garage door would provide access via a tunnel to be excavated into the site to a garage area that provides parking for two vehicles. This garage is located directly below the proposed dwelling and would be connected by a lift that serves all levels of the dwelling.

12 The existing pool and pool house are to be demolished and this area lowered by approximately two metres. A new pool, deck, spa, changeroom and gym are proposed to be erected in this area. This gym area would be built below the main open space area for the dwelling which would extend to within 6.5m of the front property boundary. It is intended to excavate the existing ground level between 1.2m and 1.5m to reduce the impact of the development when viewed from the roadway and the harbour.

13 The proposed dwelling would be setback 3.0m further than the existing house however, as the existing dwelling is L-shaped, the northern portion of the dwelling would extend some 3.5m forward from the existing alignment of the rear wing and the balconies a further 2m. The dwelling would be setback approximately one metre further than the building at No. 77. A 2m wide balcony is provided across the entire frontage at each level with a glazed, curved element protruding in the central upper floor level. The western or Wolseley Road elevation comprises vast glazed windows and doors to optimise the views to the harbour.

14 At the request of the adjoining owners the existing masonry boundary walls are to be retained and in places extended to address the privacy concerns of neighbours.

15 The ground floor footprint is the largest and is a regular shaped structure which is excavated into the rear of the site. The first floor is reduced, particularly at the rear to provide a more extensive rear yard area than is currently available. That yard is to be constructed at a similar level to that existing on site and will comprise greased areas and landscaping. The upper floor is setback further from the side and rear boundaries than the level below.

16 Overall height of the building including lift fits within the 9.5m height limit established by the council’s controls due to the flat roof and small parapets that surround that roof. This is 800mm below the ridge height of the existing dwelling.

The Planning Controls

17 The site is zoned Residential 2(a) pursuant to the provisions of the Woollahra Local Environmental Plan 1995 (the LEP). The objectives of the zone are:

(a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses,
(b) to allow certain non-residential development of low intensity which is compatible with the residential character and amenity of the locality,
(c) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and
(d) to protect the environmental attributes of the coastal and foreshore lands.

Dwelling houses are permitted with consent in the zone. Clause 12 of the LEP refers to a height map and the maximum height of buildings that can be erected on the site according to the relevant map is 9.5m. For the purposes of the LEP, the following definitions apply:

height, in relation to a building, means the greatest distance measured vertically from any point on the building to the existing ground level immediately below that point.
existing ground level means the surveyed level of the ground surface immediately prior to the proposed development and prior to any associated excavation, development or site works.

The proposal satisfies this development standard.

18 Clause 18 of the LEP provides matters which are to be considered where an application for consent for development involves the excavation of land. Regard is to be had to how that excavation may temporarily or permanently affect:

(a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process, and
(b) public safety, and
(c) vehicle and pedestrian movements, and
(d) the heritage significance of any heritage item that may be affected by the proposed excavation and its setting, and
(e) natural landforms and vegetation, and
(f) natural water runoff patterns.

Consideration of these matters, including assessment of a geotechnical report that was lodged with the application, has been undertaken by the council and determined to be satisfactory and to be acceptable in terms of clause 18. Appropriate conditions have been recommended and agreed by the parties to ensure these issues are addressed during demolition and construction.

19 Clause 19 requires assessment of:

(a) the visual impact when viewed from Sydney Harbour of the design of the proposed development, including the colours, textures, styles and types of materials to be used and the type and form of any roof, and
(b) the impact of the proposed development on the natural landform and topography.

The original and subsequent proposals have all been considered by the council officers to meet the requirements of this clause. It is a matter that will be further discussed in this judgment.

20 Clauses 26-32 of the LEP contain heritage provisions. The site does not contain a heritage item nor is it within a heritage conservation area however it is adjacent to a number of heritage items. No. 69 Wolseley Road immediately adjoining the site (south) is a dwelling known as Vaynol with the house, sandstone walling and entrance archway identified as heritage items. That wall adjoins a separately listed item, the sandstone walling at Nos. 63-67. No. 5 Wentworth Place, (Uig Lodge) immediately behind the site and sited on top of the cliff has the house, front gardens, sandstone walls, gateposts and gates identified as items. Two independent heritage assessments, including consideration of whether the site contained any item that had heritage significance, were undertaken by council officers. Those reports conclude that the proposed development will have no impact upon the significance of Uig Lodge or affect Vaynol.

21 When assessing whether the existing dwelling has any heritage significance, the report concluded: the subject building as it exists today contains little physical evidence of the two most significant forms it once contained, the 1908 building and the 1961 alterations by Leslie Wilkinson. Its significance has been degraded by the recent work. The building has some local significance but this is considered low. The building is neither representative nor rare. The application for demolition is therefore considered acceptable and would have a satisfactory heritage impact. The officer recommends that the building be extensively documented prior to demolition and this requirement has been incorporated in the draft consent conditions and is agreed by the applicant.

(the DCP) applies to the site. Relevant objectives of the DCP are:

(a) to facilitate housing in a way that reflects desired further character objectives for precincts;
(c) to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties;
(h) to encourage innovation in housing design.

The DCP includes precinct and general controls and the site is located within the Point Piper Precinct (the precinct). It describes the built environment of the precinct as comprising a range of housing types and styles, including an excellent group of inter war flat buildings at Longworth Avenue (substantially retained in their garden settings); large post World War II apartment buildings at Wolseley Road and substantial harbourside houses. Significant elements of most periods of development has been the retention of large areas of soft landscaping around all built form types.

23 The desired future character objectives for the precinct are:

• To enable Point Piper’s natural ridgeline to be read as the dominant element of the precinct when viewed from the surrounding districts;
• To maintain the sense of the historic grand estates by retaining the garden settings and streetscape elements;
• To ensure that new development reinforces the stepped and sloping topography;
• To retain and reinforce the stone and brick retaining walls that characterise the sloping streets of the precinct;
• To ensure that residential development addresses the street;
• To ensure that built form and streetscape elements reinforce the hierarchy of curving streets and lanes;
• To protect important views from the public spaces of the precinct to the harbour and to the surrounding districts;
• To maintain the evolution of residential building styles through the introduction of well designed contemporary buildings.

24 The DCP includes specific controls in relation to maximum number of storeys, boundary setbacks, building footprint, floor space ratio (FSR), fence height, parking and driveways.

The issues

25 The matters in contention are:

• The proposed development fails to demonstrate that the desired future character for development within the Point Piper precinct will be achieved, having regard to the controls within Woollahra Residential DCP 2003 and the failure of the design to fulfil the objectives of those controls.
• The character of the proposed development is fundamentally contrary to the desired future character of the Pint Piper precinct, which provides that dwellings should not exceed two storeys in height and should reinforce the stepped and sloping topography.
• The proposed development provides for excessive excavation contrary to the provisions of Clause 18 of the LEP and the DCP, particularly insofar as excavation is required to facilitate compliance with the LEP height standard.

The conciliation conference

26 The conference was held of site and the contentions were discussed. Parties who had made submissions in relation to the application had been invited to attend and one resident, from No. 31 Wentworth Street was present. That resident advised that the amended designs had taken into account all of the design issues that were of concern and that the only matter that remained was the issue of non-compliance with the council’s controls. The owner of the property to the north, No. 69 was unable to attend however had provided correspondence previously and advised that subject to the conditions recommended, the matters of concern had been addressed. He had not been able to have his consultants review the latest plans in the time allocated and therefore, the conference proceeded on the basis that the matters remained in contention.

27 A view of the site, observation of the location of the adjoining properties in relation to the siting of the proposed development, the location of the existing boundary fencing that is to be retained at the request of neighbours and an assessment of the changes in levels of the site was undertaken. A walk of the surrounding street was conducted in the company of the parties and their experts.

28 Mr Howie, for the council, advised that the planning experts had considered further design amendments that would address the remaining concerns of the council. Those experts were Ms Laidlaw for the council and Mr Shiels for the applicant. The applicant’s architect was also present to assist in any design considerations.

29 The experts had prepared a joint planning report which highlighted the differences between the two. Ms Laidlaw considered the key issues, from a merit perspective, are that the building clearly presents as a three storey (in one vertical rise) building (as opposed to the two storeys allowed) and fails to meet the desired future character objective of the DCP – ‘to ensure that new development reinforces the stepped and sloping topography’; and that it has an elevational height (west elevation) of 11 metres, compared to the 9.5m height standard that applies under the LEP. She says the two consequences are:

1. Unsympathetic form as viewed from distant vantage points including the harbour;
2. A more evident built form as viewed from Wolseley Road.

30 Mr Shiels is of the opinion that the proposal satisfies the desired future character for the Point Piper precinct and relied on the recommendations of the council’s officers in their reports to the council in relation to the application. Despite this fact, he recommended that further amendments could be made to address the concerns of Ms Laidlaw. These involved the further setback proposed at the upper level with the cylindrical section and bathroom being removed, then he says, the step at the upper level would be accentuated and in his opinion would be consistent with the DCP. Mr Shiels had provided a photomontage of the proposal which demonstrated the affect of the changes suggested. I agree that the deletion of the protruding cylindrical element would remove the dominant impact that feature has, particularly when viewed from Wolseley Road.

31 The planners agreed that further amendments could be made to the elevation of the upper level by stepping back the northern and southern wings a further 750 mm than proposed by Mr Shiels. The addition of planters to the front of the upper level balcony and the extension of the privacy screens along the entire width of the balconies to address the privacy concerns of the northern and southern neighbours was also recommended together with thickening the end support columns to frame the ground and first floor levels.

32 The experts agreed that if these changes were incorporated into conditions of consent, the objectives of the DCP would be satisfied and the application could be approved. They also agreed that the excavation proposed would reduce the impact of the existing retaining walls when viewed from Wolseley Road and that this aspect of the proposal had merit and assisted in achieving the objective of stepping the development down the site.

33 The legal representatives for the council were not authorised to enter into an agreement pursuant to the provisions of s34(3)(a) of the Act however did have instructions that would allow me to determine the application of the basis of any agreements reached at the conciliation conference, consistent with the provisions of s34(4)(b)(ii).

34 I have considered whether the proposed amendments require the application to be renotified and have concluded that they do not cause a greater environmental impact than the proposals as notified and for that reason, and the fact that the concerns of those persons who made submissions have been addressed in the design amendments, no further notification is necessary.

35 It is appropriate that I undertake a merit assessment of those aspects of the application that are said to be non-compliant with the council’s controls.

Conclusion and findings

36 I agree with the planning experts that further modification of the proposal would assist in meeting the objectives of the DCP in relation to stepping the building. I note that the building as recommended by these experts would not meet the numerical provisions of the DCP in regard to number of storeys, building footprint, setbacks and FSR.

37 In relation to the building height, I note that it meets the requirements of the 9.5m standard however it is a three storey building and the DCP allows for a two storey maximum. The height of the proposal is less than that of the existing building on the site and it is of similar height to the building to the north which is also a three storey building however that building also incorporates a pitched roof and is a much wider building than that proposed. Importantly, when viewed from the harbour, the building would present in a narrower form than that of the existing building due to it having a lesser envelope than the current building as demonstrated on the elevational plans submitted with the application. There are a number of other dwellings in the vicinity of the site which exceed the two storey height control, many of which present to the harbour as three and four storey buildings. For these reasons, variation to the height standard is considered appropriate.

38 The footprint of the existing dwelling has been calculated as being 38% which exceeds the DCP control of 30%. The proposed building would occupy 37% of the site so, whilst not complying with the control, would result in a slightly smaller footprint than the existing. The proposal also incorporates additional deep soil planting areas available for landscaping in the desired garden setting and therefore, the objectives of the DDP and the control are met.

39 The control that relates to setbacks has the aims to provide a reasonable separation between buildings and to avoid an unreasonable sense of enclosure. The existing high boundary fence, which separates the site from the adjoining properties, is to be retained and that in itself achieves the objective of the control however, it is noted that the setbacks, whilst not in full compliance with the DCP, are equal to or greater than the existing building. For this reason, compliance with the numerical requirement is considered unnecessary.

40 The FSR of the proposal is 0.86:1 and this would be reduced slightly if the amendments proposed by the planning experts are incorporated. Of the floor space, the area of the pool gym is below ground and accordingly, does not contribute the bulk of the development. The above ground FSR has been calculated as 0.69:1 or less with the amended plans. The control allows a maximum of 0.55:1. Whilst the variation is significant in numerical terms, the objectives of the DCP which relate to building size and location are:

• To preserve established tree and vegetation networks and promote new networks by ensuring sufficient areas for deep soil planting and sufficient setbacks between the rear of buildings.
• To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents.
• To ensure the form and scale of development is not excessive and maintains the continuity of building forms and front setbacks in the street.
• To limit site excavation and minimise cut and fill to ensure that building form relates to the topography and to protect the amenity of adjoining properties both during and after construction.
The proposal provides a significant increase in the area available on the site for deep soil planting, has no impact on views or solar access and privacy has been addressed through the incorporation of screens, retention of boundary walls and the provision of planter boxes. The dwelling is sited on a greater setback than the two adjoining dwellings and is smaller than the building to the north though larger than those to the south. It is not considered to be inappropriate when assessed against development in proximity to the site. The extent of cut and fill follows the topography of the site and addresses the council’s requirement to have development step down the hill. Appropriate conditions of consent have been recommended by the council to address the final objective.

41 The desired future character objectives of the DCP are satisfied as follows:

• The ridge height of the dwelling will sit well below the ridgeline and the adjacent heritage item when viewed from the harbour.
• The proposed development allows for increased deepsoil planting areas and site landscaping so that it can develop a garden setting and be consistent with the streetscape elements in the vicinity of the site.
• The excavation proposed combined with the recommendations of the planning experts result in a development that will step down the hill consistent with the sloping topography.
• The proposal incorporates the rebuilding of the stone retaining walls that characterise the sloping street.
• The development addresses the street.
• There is no impact to the hierarchy of curving streets and lanes.
• There is no impact on important views from the public spaces of the precincts to the harbour and the surrounding districts.
• The proposed building is a contemporary architectural style consistent with the evolution of residential style within the precinct.

42 A review of the history of the matter, consideration of the relevant controls within the LEP and DCP, the reports from council officers and the planning experts, I consider that the amendments to the plans developed through the conciliation conference will achieve the aims and objectives of the council’s controls. Accordingly, I agree with those experts that the development can be approved subject to the extensive list of conditions imposed by the council.

43 Therefore, the orders of the Court are:

1. The appeal is upheld;
2. Development Application No.624/2009 for the demolition of an existing dwelling house, out building, pool and retaining walls and the construction of a three-storey dwelling house including a new garage accessed from Wolseley Road, swimming pool, ancillary building and associated retaining walls is determined by the grant of consent subject to the conditions of consent included in Annexure “A”.
3. All documents filed with the applications other than the plans, the sketch plans that reflect the findings of the conciliation conference and the expert planning report are returned.

_________________

Sue Morris
Commissioner of the Court