Ingrid Jacobson v Woollahra Municipal Council

[2012] NSWLEC 1169

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ingrid Jacobson v Woollahra Municipal Council [2012] NSWLEC 1169

Hearing dates:

24 May 2012

Decision date:

21 June 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

1. The appeal is allowed.

2. The s 96 application (DA 153/2011/2) for internal and external modifications to the dwelling at No 25 Victoria Street, Watsons Bay is approved subject to the conditions in Annexure A.

3. The exhibits may be returned except 3, 4, A and B.

Catchwords:

DEVELOPMENT MODIFICATION - Building setback to foreshore area, bulk and scale, heritage impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995

Category:

Principal judgment

Parties:

Ingrid Jacobson (Applicant)

Woollahra Municipal Council (Respondent)

Representation:

Mr I Hemmings (Applicant)
Mr P Rigg (Respondent)

File Number(s):

10266 of 2012

Judgment

Background

1. This appeal concerns a s 96 application to modify conditions of consent imposed on a development comprising the demolition of an existing dwelling and construction of a new dwelling house, swimming pool and landscaping works at 25 Victoria Road, Watsons Bay. The application also involves the relocation of the mature Cook Pine from the beachfront area to the private open area adjacent to the Victoria Street frontage.

1. The determination of the matter was by way of a s 34 AA conference. This involved taking evidence from objectors, undertaking a view and consideration of the detailed expert evidence. During the conciliation phase, a number of the detailing modifications were agreed to be covered by conditions.

1. The remaining unresolved contention concerns condition C1(a), which requires the approved dwelling to be setback an additional 3m from the Camp Cove Beach alignment. The other modifications that are subject to the agreed conditions concern a number of detailing requirements, the front boundary wall specification, decrease in basement excavation, pool enclosure specification and impact on existing vegetation.

The site

1. No. 25 Victoria Road, Watsons Bay is described as Lot: 1, DP: 156415. It has a southeastern frontage of 21.1 m to Victoria Street, a northwestern frontage to Camp Cove Beach of 25 m, a northeastern side boundary 55.7 m and a southwestern side boundary of 62.5 m. The site has an area of 1338 sq m. It is essentially flat and is occupied by a single storey dwelling house and 1-2 storey ancillary structures located in the southern corner consisting of a single carport, a laundry and single garage with a loft above.

1. The site is located within the Watsons Bay Heritage Conservation Area. The existing buildings on the site are not listed as heritage items. Although, Camp Cove Beach which adjoins the site is listed as an Item of local significance in Schedule 3 of Woollahra Local Environmental Plan 1995.

1. The existing dwelling, Norfolk Island Pines and Coral tree in the beachfront garden are identified as contributory items in the Watsons Bay Heritage Conservation Area DCP.

1. Adjoining development consists of a two storey (above-ground) dwelling house to the north-east (23 Victoria St) and the Marine Biological Station Park and single storey former Marine Biological Station to the south-west (31 Pacific St). Camp Cove Beach adjoins the site to the northwest.

Planning Controls

1. The following controls are relevant:

• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
• State Environmental Planning Policy No. 55 - Remediation of Land
• Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and accompanying DCP
• Woollahra Local Environmental Plan 1995. Under which the site is within the Residential 2(a) zone and the development is permissible with consent. Clause 22 prescribes a Foreshore Building Line (FBL) of 12m
• Watsons Bay Heritage Conservation Area Development Controls. The subject site is within Precinct H - Victoria Street Waterfront Precinct, wherein Section H.5 contains a set of controls for new buildings, including Control C19 which provides:

Building setbacks from the waterfront are to match the alignment of adjacent significant houses and provide garden space or lawn area between the rockshelf and the house.

Section H4 contains the schedule of significant items, which includes the houses No 1, 3, 5, 7, 9, 15, 17, 19,21, 23 and 25.

• Woollahra Section 94A Contributions Plan 2005

The evidence

1. A joint experts planning report was submitted by:

• Ms A McCabe, council's consulting planner, and
• Mr T Moody; applicant's consulting planner.

1. A separate joint experts heritage report was submitted by:

• Ms A Parkins, council's heritage expert, and
• Mr S Davies, applicant's heritage consultant.

1. The objections are generally consistent with the contentions and mainly fall into the following categories, heritage impacts on the significant Camp Cove beach precinct, adverse visual impacts, the unsuitability of transplanting the Cook Island Pine, impacts of excessive basement excavation, visual impacts of the proposed glass pool fencing and bulk/scale of the new dwelling.

1. As noted, following further conferencing between the parties, all of the conditions in contention were agreed to except for Condition C.1a), which requires the new dwelling to setback a further 3 m from the Camp Cove beach alignment. In this regard, the proposed setback of the balcony elements of the new dwelling varies between 11.8 m and 19.6 m, with the dwelling elevation further setback.

1. It is apparent that council's objective for this condition is to achieve a reduction in the size of the dwelling and its associated visual impacts on the beachfront area and the adjoining reserve/park, which encompasses the marine station environs.

1. In response to this condition, relevantly the planners agree on the following points:

• When assessing the required setback from the waterfront property boundary, the setback should be the distance from the Camp Cove boundary to the building. The planners consider that for the purposes of visual impact, lightweight projections such as pergolas/vergolas or the like would be permitted to encroach into an identified setback.
• That the current proposal technically complies with the requirements of Part 3, Section H, Control C19 entitled "Front (Waterfront) Setbacks" of the Watsons Bay Heritage Conservation. Area Development Control Plan ("Watsons Bay DCP").
• The main difference in their professional views is the scope of adjoining and nearby properties to include in the contextual argument for the appropriate waterfront setback of the proposed dwelling.
• The proposal complies with the 12m Foreshore Building Line standard in Clause 22 of the Woollahra Local Environmental Plan 1995.

1. From his assessment of the proposal, Mr Moody supports it on the following basis:

• The current proposal complies with the 'Front (Waterfront) setbacks in the DCP and it is consistent with the context of the curved alignment of the bay frontage.
• It is consistent with the setback of adjoining and adjacent properties.
• The design of the dwelling and associated landscaping is consistent with intent of the controls.
• The visual impact of the proposed dwelling is conservative in terms of its apparent bulk, scale and height relative to the neighbouring dwelling at No 23.

1. Against this, Ms McCabe is dissatisfied with the setback because she considers the additional 3 m setback is required for consistency with the adjoining properties, which have variable setbacks in the range of 3.3 m to 16.41 m. Also, as the site adjoins the Marine Biological Station Park, which contains the former single storey station building and a recessed garage structure, then the setback line should respect the setback of these structures.

1. In light of these disparate opinions, I have firstly considered the setback controls. These effect of these controls was marked on Exhibit B and comprise:

• Foreshore Building Line (FBL) setback of 12m, and
• Front (Waterfront) Setback (Section H, Control C19), which relates to the average of the adjacent significant houses.

1. It is then apparent from Exhibit B that the proposal demonstrates comfortable compliance with these numerical controls, nevertheless Ms McCabe says that the setback line should be greater, so as to reflect the projection of the setback line from No 23 through to the garage/carport on the reserve behind the marine station. This projection generally coincides with the additional 3m setback required in Condition C.1a).

1. One of the bases for this additional 3 m setback is to satisfy the intent of cl C19 of the DCP requiring building setbacks to match the alignment of adjacent "significant" houses and to provided garden and lawn space in the beach front setback area.

1. However, the planners generally agree that as the current house at No 23 replaced the original dwelling, it is now not of the same significance in the context of the DCP SH4 provisions. Consequently the nearest significant item is that at No 31 Pacific Street.

1. Taking these matters into account, it seems to me that an appropriate setback line can be established by projecting the existing setbacks from No 9 through to No 23 and then towards the marine station at No 31 Pacific Street. In my assessment, this line represents a comfortable fit with the natural curvature of the beach alignment, which projects outwards near the marine station. This projected building line is consistent with that proposed by Mr Moody.

1. Consequently, I think that the more restrictive line preferred by Ms McCabe, which projects towards the further setback garage and does not make reasonable allowance for the natural curvature of the beach interface alignment. Furthermore, I accept that some allowance for projection of pergolas and awnings can be made in the circumstances, particularly considering the proposal's comfortable compliance with the prescribed setback controls.

1. Accordingly, I have also considered the qualitative aspects of the setback, particularly concerns about adverse visual impacts from the beachfront and from viewing points to the east. But the view indicated that when taking into account the limited observation points and depth of field considerations, the visual impacts from the proposed 3 m setback would be relatively insignificant from any observation points to the east and the direct waterfront.

1. The remaining observation area is from the adjoining 'Marine Biological Station Park' (reserve). This reserve contains a constructed pathway that leads directly to the beach, which is offset from the common boundary with the subject property. This offset area contains mature vegetation on the reserve, which is to remain and provides effective screening. Additional planting is proposed within the side setback on the subject property.

1. For my consideration of the visual impacts from the reserve, I have also taken into account the planning assessment for the modification application. Whilst this assessment prefers the 3 m setback, it is on the basis that the proposal has a fully compliant 1.5-3.3 m boundary setback. Also, the visual impact is further mitigated by a 1.8 m wall off-set at both ground and first floor levels, a 500 mm deep, timber clad recess to a 3.2 m long central section of the south western elevation at first floor level, recessive tiled hipped roof forms and varying external elevation finishes consisting of painted cement render, timber and mid-grey coloured anodised aluminium louvres to windows.

1. Consequently, the threshold question for the Court is whether the whether the visual impact of the proposed 33.6 m long side boundary wall is acceptable in its context. From the submissions for council, it also appears that a secondary objective of this condition is to reduce the bulk of the building.

Conclusion

1. In determining this appeal, I have considered the evidence, objections lodged, and the submissions and undertaken a view. As noted, I am satisfied to rely on the agreement by the parties to the imposition of conditions to cover the set of detailing modifications.

1. With regard to the threshold issue of visual impact, I note that this property is subject to the provisions of the Watsons Bay Conservation Area DCP. It is located within the Victoria Street Waterfront precinct, wherein control C19 applies regarding waterfront setbacks. Taking into account the changed circumstances of the 'significance' of the adjoining house at No 23, I am satisfied that the proposal demonstrates satisfactory compliance with specified FSBL and C19 control. In this regard, I think it reasonable to rely on the building setback line projection by Mr Moody, which takes into account the natural curvature of the beach alignment and respects the significant building (Marine Station) at No 31 Pacific Street.

1. Having viewed the site from various locations along the beach and taking into account the existing context of built form and existing vegetation, I do not considered the proposed building setback, with technical setback compliance will result in adverse visual impacts. Therefore the additional 3 m setback is unreasonable from this aspect as I am satisfied that the proposal will reasonably achieve the intent of the controls in the Heritage DCP.

1. The remaining aspect concerns the degree of visual impact observed from the adjoining marine park reserve. In this regard, I note that the area along the common boundary is well landscaped with mature vegetation. The main pedestrian use is likely to be along the pathway, which leads to the beach. It appears to me that the average user of the pathway and reserve would be mainly focussed on the primary view of the attractive beach or vegetation, rather than the secondary view towards the subject dwelling.

1. Notwithstanding this, I accept that parts of the proposed dwelling could be observed but do not consider that the additional 3 m setback will have any material impact on the average user of the reserve area. This takes into account the context of available views of other large dwellings in the surrounding area.

1. In response to the submission that the 3 m setback is required to address the excess floor area of the new dwelling, I think this is a relatively crude and insensitive condition to achieve this. Whilst I accept there is an exceedence of the FSR, there was no substantive evidence presented to demonstrate why the discretion available in the controls should not be exercised. It appears the new dwelling has been carefully designed and it is compatible with the neighbouring dwellings. Therefore I give little weight to this submission.

1. In the ultimate, I am satisfied that the s 96 application relates to the same development, the application has been notified and objections considered and that it merits conditional consent. In this regard, the relevant objections have been considered in terms of the scope of the s 96 modification application.

Court orders

1. Accordingly, the Court orders that:

1.The appeal is allowed.

2.The s 96 application (DA 153/2011/2) for internal and external modifications to the dwelling at No 25 Victoria Street, Watsons Bay is approved subject to the conditions in Annexure A.

3.The exhibits may be returned except 3, 4, A and B.

R Hussey

Commissioner of the Court

Decision last updated: 22 June 2012