Jonson and Ors v Woollahra Municipal Council

[2006] NSWLEC 372

Land and Environment Court

of New South Wales

CITATION:

Jonson and Ors v Woollahra Municipal Council [2006] NSWLEC 372

PARTIES:

APPLICANTS
K Jonson,
T Grigorova and
M Bruneau

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11212 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Section 96 amendment, view loss, construction without construction certificate, construction not in accordance with approved plans

LEGISLATION CITED:

Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003

CASES CITED:

Tenacity Consulting Pty Ltd v Warringah Council [2005] NSWLEC 46

DATES OF HEARING:

23/02/2006

EX TEMPORE JUDGMENT DATE:

02/24/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Strati, solicitor
SOLICITORS
Avendra Singh Strati & Kam

RESPONDENT
Ms M Hawley, solicitor
SOLICITORS
Lindsay Taylor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

24 February 2006

11212 of 2005 K Jonson, T Grigorova & M Bruneau v Woollahra Municipal Council

JUDGMENT

1 This is the judgment in appeal No. 11212 of 2005 between Johnson, Grigorova and Bruneau v Woollahra Municipal Council in regard to the refusal of a s 96 application to amend an existing development consent DA455/2004 in regard to 55 Birriga Road, Bellevue Hill.

2 The application that was approved by the council allowed a third unit called Unit 3 on the roof of an existing two unit development on the subject site. The Unit 3 at the time of the hearing was under construction. However, construction had been halted for several reasons, amongst which was the fact of no construction certificate having been issued and the building as built being apparently different to the plans that were approved.

3 One of the principal features of the difference between the building as built and the approval was the height of the structure. A short description of how it appeared during the course of the hearing was a timber frame had been erected for the whole of Unit 3 on top of the concrete slab which was supported by steel beams that were perched on the brick parapet of the existing Units 1 and 2 at the roof level. The roof of Units 1 and 2 was still intact below this structure.

4 During the course of the hearing, the Court was told that the intention was to support the concrete slab of Unit 3 on hydraulic jacks and demolish the top part of existing Units 2 and 3 in order to lower the concrete slab to the levels that were now proposed. It was also seen on site that the stud framing which was virtually complete for unit 3 had quite a different plan layout to that in the s 96 application.

5 During the course of the hearing, the Court was told that the whole of the stud framing would need to be removed and new stud framing erected to reflect the plans in the s 96 application.

6 The locality of Birriga Road is in transition. It is zoned Residential 2B under the Woollahra Local Environmental Plan 1995 and the applicable control is the Woollahra Residential Development Control Plan 2003.

7 As a result of the transition many new apartment buildings could be seen along Birriga Road together with some older houses and older apartment buildings along the tree-lined street.

8 The issues in the appeal were

1) Whether the proposed modification should be approved given that the plans accompanying the modification application show levels for the modified development which are inconsistent with the surveyed levels for the construction works which have been completed.
Particulars
The modification plans indicated and RL of 59.87 for the top of the roof compared to a surveyed finished level of 60.28 metres;
The modification plans indicate an RL of 56.97 for the finished floor of the new second floor compared to a surveyed finished level of RL 57.525;
The plans indicate an RL of 47.87 for the finished level of the basement compared to a surveyed finished level of RL 47.23.

2) Whether the proposed increase in the height of the proposed development is unacceptable as it:
a) breaches the height limit of 12 metres contained in clause 12 of the Woollahra Local Environmental Plan (WLEP) and
b) breaches the objectives of the height control which are contained in paragraphs (a), (b) and (d) of clause 12A(a) of the WLEP.

Particulars
The proposed modification involves an increase in the finished RL of the top of the roof from RL 59.27 as originally approved to RL 60.28 being an increase in height of 1.01 metres .
The overall height of the building based on the surveyed levels of the building as constructed is 13.05 metres.
3) Whether the proposed increase in height of the development has an unacceptable impact on the views from properties on the opposite of Birriga Road and in particular unit 6, 44 Birriga Road and units 5, 6, 9 and 10 of number 46 Birriga Road.
Particulars
This is contrary to objectives 5.2.2 and controls 5.5.6 and 5.5.3 in Woollahra Residential Development Control Plan 2003 .

4) Whether the proposed increase in height of the development has an unacceptable impact of the streetscape of Birriga Road and the character of the area.
Particulars
This is contrary to objective 4.6.1, control 4.6.6 and objectives 5.1.1, 5.1.3 and 5.2.3 of WRDCP.
5) Whether the proposed parking arrangements are unacceptable due to the inability of cars using the turntable to enter and exit the garage in one manoeuvre and the need for visitors to use the turntable.
Particulars
WERDCP 5.9.10 states that access ways and driveways are to be designed to enable vehicles being the 85 percentile vehicle to enter the designated parking space in a single turning movement and leave the space in no more than two turning movements.
The proposed vehicle turntable in the basement cannot be accessed from the entrance in one manoeuvre and exited from the garaged requires a three-point turn from the turntable. All vehicles will need to utilise the turntable. This is contrary to control 5.9.10 of WRDCP.
Excessive manoeuvring is required to exit from the visitors’ space but visitors may not know how to use the turntable or be able to access it given the security entrance to the garage.

9 In regard to Issue 5 the applicant tendered Exhibit C, which modified the plans and the respondent accepted that the concerns in regard to the parking area could be resolved.

10 The hearing was attended for the respondent by:

• Ms M Hawley, solicitor ,
• Mr McCubbery, town planner for the council and
• Dr Bui Kim Chi, objector and resident of unit 5, No. 46 Birriga Road. Other residents of the units referred to in the issues in Birriga Road attended the on-site view of the site, however they did not give evidence except for their written objections contained in Exhibit 2.

11 The respondent was represented by:

• Mr J Strati, solicitor, and
• Mr J Pagan, consultant town planner.

12 The Court heard in regard to circumstances of the case of recent events between the parties. It was only on 9 February that the council was told that the floor slab of unit 3 was to be lowered. It was only on 21 February that Mr Pagan advised the respondent that the entire third floor of the building would have to be lowered including the demolition of the existing stud framing and its reconstruction in accordance with the s 96 plans.

13 On 23 February, the council became concerned that it may not be possible to lower the third floor without affecting Units 1 and 2 below. And the council retrieved the plans of the original consent for Units 1 and 2 and discovered that there were inconsistencies between those approved drawings and Units 1 and 2 as depicted in the s 96 application. The council was refused access to Units 1 and 2 to try to ascertain how they were constructed in order to be able to assess the potential to lower Unit 3.

14 Turning to the issues, both parties agreed and as did the experts that view loss was the principal issue of concern.

15 Dr Bui Kim Chi of Unit 5, 46 Birriga Road, gave her evidence in regard to consultation on the s 96 application. In particular she referred to Exhibit 2, folio 177, which was a photograph taken from her apartment looking across Units 1 and 2 towards Bondi Beach and the ocean. The beach itself was not visible, it was the building line at the interface of the ocean which was visible with of course the horizon beyond. The photograph had been marked by the council officers reporting on DA455/2004 and a line had been drawn to indicate the extent of view loss that she would experience. The doctor said that she was concerned about the accuracy of the depiction at the time because the height pole which is also shown on the photograph was less than the height of the man who erected it and she was unaware of how an extra floor could be placed on the building that was less than the height of a man.

16 I take it that the council and the reporting officers understood that Unit 3 would be constructed somehow by sinking it into the roof of the existing units 1 and 2. However, the details of that were apparently never investigated in any depth at that time.

17 The Court was taken to Dr Bui Kim Chi’s unit and was able to observe the view as it exists across the top of Unit 3 as it is currently constructed. At the present time the building completely interrupts the ocean view and indeed projects above the horizon line as seen from her bedroom, living room and study. The photograph in folio 177 of Exhibit 2 in fact showed that the view loss would be restricted to the buildings along the foreshore and indeed some of the buildings would project above the roof of Unit 3 so that the loss of ocean view was very minimal.

18 In cross-examination it was pointed out to Dr Bui Kim Chi that the height pole erected on the building and from which the line was drawn on the photograph was located in about the centre of the building. As a result the roof of Unit 3 would have to project further towards the ocean than the line drawn on the plan and therefore her affectation might be somewhat greater. She said that she had never understood that, it had always been represented to her that the line was the maximum view loss she would experience and although she objected to it as a serious loss of view, she accepted the expert opinion given at the time of approval of unit 3 by the council.

19 The structure as built, she described as completely devastating to the amenity and views of the ocean from her unit. She understood that the proposal as it now was before the Court would lower the existing structure such that it would be about 500 mm higher than the current council approval.

20 On the stud work of Unit 3 as it existed on the day of the hearing, there were two ribbons placed on the street elevation, one at the approved height and the other at the height now sought under the s 96. These were clearly visible from unit 5, 46 Birriga Road and the impact could be easily understood.

21 Mr McCubbery concluded that with the increased height, the obstruction of the views from the doctor’s apartment would take the building to about the horizon line and therefore the view of the full horizon line might still remain but the views of the ocean would be restricted to small sections of the water either side of Unit 3.

22 Mr Pagan did not dispute the extent of the view loss, however he considered that it was not significant when one understood the implications of the original consent by the council in DA455/2004.

23 In considering these matters I turn to the council’s controls relevant in this appeal. Part 5.5 of council’s Residential Development Control Plan 2003 requires the maintenance of public views and the sharing of private views.

24 The aims of the Development Control Plan in relation to view sharing identify views to the coast and in addition seek to facilitate development whilst reasonably preserving access to views from surrounding properties.

25 The objective outlined under objective cl 05.5.2 seeks to encourage view sharing and a means of ensuring equitable access to views from dwellings. The criteria as set down under cl C 5.5.6 requires that building forms enable a sharing of views with surrounding residences particularly from the main habitable rooms of surrounding residences.

26 It was noted on site that Unit 3 would have panoramic views from Dover Heights to the southern hinterlands of Bondi including the full ocean view. The owners of units on the northern side of Birriga Road opposite the site had objected on the basis of any additional view loss to that approved by council under DA455/2004.

27 In Tenacity Consulting Pty Ltd v Warringah Council [2005] NSWLEC 46 the Court has adopted principles for assessment of view affectation. The steps are as follows;

a) the assessment of the views affected;
b) consideration from what part of the property the views are obtained;
c) the extent of the impact and the reasonableness of the proposal that is causing the impact.

28 During the view the Court was also taken to Unit 6 which is on the same floor as Unit 5 in No. 46 Birriga Road and also taken to Unit 9. Unit 6 had its only view towards the ocean. Unit 5 had views to the north towards Dover Heights through other windows than those at the front of the building. And Unit 9, whilst it would see the proposed Unit 3 below, it would only have some of the buildings between the site and Bondi obscured, the full ocean view would remain.

29 In coming to a conclusion on the view loss matter, the Court was asked by the applicant if it was not in favour of the additional height sought under the s 96 application that it should approve the other modifications in the plans to which the council had raised no objection.

30 Turning first to the view loss issue, I have reached the conclusion that under the applicable controls the additional view loss to Units 5 and 6, 46 Birriga Road, was substantial and they were primary views to the ocean which as described in the Development Control Plan are highly prized by the residents of the Woollahra municipality and that is the reason for the council’s strong controls on view sharing. To approve any increase in height of the building, particularly given the applicant’s observations in regard to Exhibit 2, folio 177 would be to reduce the view sharing currently enjoyed by Units 5 and 6 to an unacceptable level.

31 Bearing in mind the applicant’s request for the other modifications to be approved, I turn to Issue 1 and note the inconsistencies in the drawings and the lack of knowledge of how Unit 3 might be lowered and how it might affect units 1 and 2 below it. Mr Pagan could only make an external examination of the building and make assumptions on how Units 1 and 2 are constructed. There were no engineering plans tendered to indicate how it might be done, the drawings at best could be described as sketch plans.

32 The respondent put to the Court that on the basis of the current drawings they were unsuitable to form the basis of any consent for modification of the building and I agree with that submission.

33 Therefore the orders of the Court are:

1 The application to modify DA455/2004 is refused.
2 The exhibits are returned to the parties except Exhibits 1, page 177 of Exhibit 2 and Exhibits 3, 6, 7, A, B and C.

___________________

K G Hoffman
Commissioner of the Court
Ljr/rjs/gbv