Lea G & Anor v Waverley Council

[2007] NSWLEC 617

Land and Environment Court

of New South Wales

CITATION:	Lea G & Anor v Waverley Council [2007] NSWLEC 617
PARTIES:	APPLICANT: Graham Lea & Orel Lea RESPONDENT: Waverley Council
FILE NUMBER(S):	10513 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Bulk, height and scale
LEGISLATION CITED:	Waverley Local Environment Plan 1996, (WLEP) Waverley Development Control Plan 2006, (WDCP) Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	Pafburn v North Sydney Council [2005] NSWLEC 444; Tenacity v Warringah Council [2004] NSWLEC 140; Veloshin v Randwick Council [2007] NSWLEC 428; Zhang v Canterbury (2001) 115 LGERA 37
DATES OF HEARING:	17 September2007
EX TEMPORE JUDGMENT DATE:	17 September 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr V Conomos, solicitor SOLICITORS: Pike Pike and Fenwick RESPONDENT: Mr S Patterson, solicitor SOLICITORS: Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

17 September 2007

10513 of 2007 - Graham Lea & Orel Lea v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Waverley Council (the council) to refuse a development application to demolish the existing building and to erect two attached dwellings at Lot 14, Section 2, DP 770, being No 11 Kent Street, Waverley.

2 I visited the land in company with the parties on the morning of the hearing and heard from local residents.

3 I have concluded that the application should fail as a result of excessive bulk and the southern wall jutting past the line of the abutting dwelling and cutting off water views.

The land

4 The land is situated on the south (lower) side of Kent Street, near the intersection with Firth Street. It is rectangular in plan with a frontage to Kent Street of 15.24m, a depth of around 35.76m and an area of 545m2. The land slopes steeply away from the street such that the rear of the site is 5.75m below street level. Ocean views are afforded from and across the land to the southeast.

5 Erected on the land is a single-storey weatherboard cottage, which is located below street level, such that only the roof is visible at the horizon line. The land is extensively landscaped with mature trees in the front setback area and in the southwest corner.

6 The streetscape of Kent Street is an eclectic mix of buildings, some three-storey terraced style and some semi-detached dwellings adjoining to the west, built to the street and side boundaries. To the east is a two-storey dwelling set significantly back from the street boundary at the same, lower level, as the dwelling on the subject land.

7 Further to the east, dwellings are of varying architectural styles, ages and siting along the street. The northern side of the street generally comprises substantial brick two-storey dwellings.

Relevant planning controls

Waverley Local Environment Plan 1996, (WLEP)

8 Under the provisions of the WLEP the land is zoned residential and the proposal is permissible with consent.

Waverley Development Control Plan 2006, (WDCP)

9 The WDCP applies to the land.

The proposal and its history
10 Development application No DA206/2005 was lodged with the respondent council on 14 April 2005 to demolish an existing dwelling and to erect a new attached dual occupancy, with each dwelling side-by-side in a semi-detached form. The proposal would comprise a design that steps with the slope of the land over four levels with a presentation to the street of part single-storey, two-storey and to the rear part three-storey.
11 The applicant submitted amended plans on 9 March 2006 that provided for:
· Front setback of Dwelling No 1 reduced by 1m and Dwelling No 2 by 0.5m.
· Rear setback increased by 0.5m.
· First floor (upper most level) setback increased by 2m.
· Amendment to roof to ground and first floor of Dwelling 1 to reduce overall height and impact.
· Reduction in depth of decks by 300mm.

12 A Section 82A application was lodged on the 4 December 2006.

13 The proposal is described in:

(a) Architectural Plan Nos DA 00 to DA 11 and 06a, 07a, Issue D dated August 2007, tables and documentation prepared by Vote Associates Architects (drawn Tom Ferguson Architecture & Design);

(b) Landscape Plan No. LP 01 and 02, Issue B and documentation prepared by Leuchars Partners, dated 10 September 2007;

(c) Basix Certificate No. 22584, dated 12 April 2005 and received by Council on 14 April 2005;

(d) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist Part 1 of DCP 19.

Notification

14 The application was notified to nearby owners and occupants for 14 days and the council received nine (9) submissions.

15 The amended plans did not require re-notification.

The council’s decision

16 The council’s Development Control Committee (DCC) considered the development application on 24 January 2006, and resolved to defer the application to allow the applicant to address the issues raised in the assessment report. The proposal was recommended for refusal in the report primarily for reasons of excessive bulk and scale.

17 The amended plans were reconsidered at a council inspection meeting of 3 June 2006 on the basis that the planning report recommended conditional consent and the council refused the application for the following reasons:

1. Loss of historic neighbourhood element in the curtilage of a heritage item.
2. Loss of outlook to south and southeast presently providing visual links with the surrounding topography and landscape setting from the public domain.
3. Loss of amenity, outlook and views in the public domain and loss of sense of place in the landscape.
4. Parking in front setback.

18 The council’s Development and Building Unit (DBU) on 8 February 2007 and the DCC on 27 February 2007 considered an assessment report on the application, and the following motion was passed:

That the application be granted deferred commencement consent in accordance with the conditions contained in the report, subject to the following:

1. The whole of the building is moved 3.5 metres forward.
2. The proposed garaging is to be set back 1.5 metres off the neighbouring wall and boundary and to align with the proposed dwelling.
3. Part (a) of Condition 2 ‘General Modifications’ be amended in part, to provide for the first floor deck on the eastern side of dwelling I being reduced in width on the eastern side from 3.2 metres to 1.5 metres.
4. Council’s standard archival recording to be undertaken on the existing house.
5. The amended plans be referred to Council for consideration.

19 A rescission motion on this item was subsequently received and the application referred to the next meeting of the development control committee on 20 March 2007.

20 A letter was sent to the applicant on 29 March 2007 advising that the application had been deferred for the following reasons in line with the resolution of the council’s meeting of 20 March 2007:

2. Council's standard archival recording be undertaken on the existing house.

The hearing

21 The appeal was filed on 31 May 2007.

22 At the hearing the court heard evidence on behalf of the respondent council from:

· Mr M Joffe, resident of No 9 Kent Street, Waverley;

· Mr M R Beaton, resident of No 12 Barclay Street, Waverley;

· Cr Strewe, of Waverley Council;

· Mrs B R Beaton, resident of No 12 Barclay Street, Waverley;

· Mr M Santos, resident of No 19 Kent Street, Waverley; who also gave evidence for Mrs N Santos of the same address;

· Mr A (Tony) P Amos, resident of No 9 Kent Street, Waverley;

· Mr J Garcia, resident of No 10 Barclay Street, Waverley;

23 The applicant relied on expert evidence of Mr B Newbold who was the single-party expert in town planning.

The contentions

24 On 17 July 2007 the council filed a statement of contentions:

Waverley Local Environmental Plan 1996

Waverley Development Control Plan 2006

2. The proposed development should not be approved as it is contrary to Part D1 - Dwelling House and Dual Occupancy of Waverley Development Control 2006 ('WDCP 2006") in respect of the following provisions:
(a) the objectives of Section 5.2 relating to the size and bulk of dwelling houses and dual occupancy development, in that:
i. the proposed development does not add to the existing streetscape and character of the area; and
ii. the proposed development is not in character with surrounding development;
(b) the objectives of Section 5.3 relating to setbacks, in that:
i. the siting of the proposed development will not be in visual harmony with surrounding buildings and the streetscape; and
ii. the siting of the proposed development does not ensure that views and view corridors from the public domain are retained;
(c) the controls under Section 5.3.2 relating to setbacks, in that:
i. the proposed front building line will not be the same as the predominant front building line of buildings in the vicinity; and
ii. the proposed rear building line will not be the same as the predominant rear building line of buildings in the vicinity;
(d) the objectives of Section 5.1 relating to building height, in that:
i. the proposed development does not minimise loss of views from other dwellings; and
ii. the proposed development does not ensure that the visual impacts of the scale of the dual occupancy dwellings are acceptable;
(e) the controls and objectives of Part 11 - Land Use and Transport, in that:
i. the proposed car parking for the development will be dominant in the streetscape;
ii. the proposed car parking for the development will not ensure that the continuity of the streetscape, streetscape elements and landscaping is maintained.
(f) the strategies and controls under Section 5.1.3a relating to building size and bulk, in that:
i. the floor space ratio ("FSR") of the proposed development will exceed the permissible under WDCP 2006;
ii. the building bulk of the proposed development will not be compatible with surrounding built forms; and
iii. the proposed development will not minimise adverse effects of bulk on adjoining properties and streetscape.

3. The proposed development should not be approved as the substantial building envelope (including number of storeys and presentation to the street) is not appropriate for the site and locality having regard to the existing streetscape and potential loss of existing view corridors from the public domain.
4. The proposed development should not be approved as the proposed form of the building is not appropriate having regard to the existing character of the streetscape and the adjacent heritage item at No 21 Kent Street.
5. The proposed development should not be approved as it results in unacceptable view loss from adjacent properties (east & west) and from the public domain.
6. The proposed development should not be approved having regard to matters raised in submissions received by Council.

25 The following emerged as the salient issues:

· Bulk, height and scale: and

· amenity impacts.

The evidence and findings
26 Local residents gave evidence as to the adverse impacts likely to flow from the proposal including view loss, privacy, and reduction in daylight.
27 Mr Newbold recommended conditional consent of the proposal despite the breach of the FSR and height controls of the WDCP.
28 Mr Conomos, for the applicant, submitted:
· the development application was lodged with the council in 2005 and has been amended;
· it did cause loss of views to No 9 Kent Street and now those views from that property would be reasonably preserved. This was a point of prime importance for the applicant to address the concerns of the neighbours;
· there was scope to exceed floor space ratio (FSR) when one considers the density in this street. The designer can’t ignore No 9 Kent Street with its “…enormous blank wall that faces the site”;
· Mr Newbold looked at all the transitions and how the proposal steps down the site and was satisfied with it;
· the matter went before the council and the report that recommended approval was prepared prior to Issues C and D plans;
· the DBU recommended approval of the application and took into account the character of Kent Street, and noted that the south low side the character of the street is changing. Various approvals had been granted consent and earlier houses have been demolished;
· the DBU considered the recent history of the street, including: No 1 Kent Street, DA 639 of 2004 that had a FSR of 0.7:1 and maximum rear height of 9m; No 15 Kent Street that had a FSR of 0.92:1 and 9.75m wall height; No 17 Kent Street, DA95 of 2005 that had a FSR of 0.78:1 and 8.8m rear height. The present application at the land (No 11 Kent Street) is proposed with a FSR of 0.77:1 and maximum rear height of 9.3m and this would be consistent with the emerging built form for Kent Street;
· if one did not include the basement areas of the proposal the FSR would be 0.69:1;
· the first floor was setback a further 2m to enable views from the property to the west. This was considered acceptable by DBU. There are substantial views available and the loss of views would be acceptable. The council officer and Mr Lovell shared this outcome;
· it was agreed that these proceedings be run by a single-party expert who came to the same view as to the acceptability of the proposal;
· the applicant says that the proposal meets the objectives of the WDCP and adequately conforms to the Court’s planning principles;
· any view impact would be minor. The owner of No 9 Kent Street might notice there is an opportunity for planting additional trees that could reduce views. With an approval of this DA, subject to approval of this Court, landscaping conditions would be put in place that would require species to be planted that would not exceed the height mentioned in Mr Newbold’s report of 67m AHD;
· Mr Newbold says there would be no solar impact to adjoining properties for two hours between 9am and 3pm;
· Mr Newbold’s report was well considered. He looked at the design and was satisfied that it demonstrated a strong articulation from front and rear. From Kent Street the building would step in height down the slope. As a result the design would be responsive to topography;
· the proposal would be appropriate in its context and the diversity of size and scale of buildings in Kent Street has been taken into account. There is a variety of architectural styles from different periods. Not all comply with the wall heights required by the WDCP. It is a minor street and not a public thoroughfare. The frontage of the land for each dwelling is around 7.5m and the proposal would fit-in well and still would provide a large amount of landscaped area;
· the proposal would remove the dominance of the tall blank wall of No 9 Kent Street that is not a positive feature in the street;
· under the heading of environmental context Mr Newbold assessed the height in Kent Street and concluded that it would provide a transition in height between Nos 9 and 13 Kent Street, [Note: Exhibit 3, p 9, Fig 5.3]. He noted that the setbacks are greater than normal;
· there was no objection from the occupants of No 13 Kent Street;
· Mr Newbold deals with public views to the water from Kent Street footpath. Although there is no benefit at the moment he indicates that these views would be enhanced by the proposal by the removal of the Hakea;
· Mr Newbold looked at the view impact as it relates to No 9 Kent Street and concluded that the view impact was minor and an appropriate balance had been struck;
· the view loss is not attributable to the height of the proposal and there is an overprovision of landscaped open space and the provision of a fair rear setback to the proposal;
· overlooking to the rear would be acceptable and Mr Newbold noted the separation distances. The applicant has no objection to the addition of privacy screens;
· in terms of siting, form and setbacks of the floor plates it would not only not be disruptive but would provide an appropriate transition and abundant landscaped area. There would be clear articulation to the building and the blank wall of No 9 Kent Street would be disguised;
· the applicant has adopted the recommendations of Mr Newbold and would accept a reduction the area of the roof terrace;
· despite the application exceeding the FSR, all the expert evidence from the council, DBU, Lovell, SPE suggests that the applicant has it right. They are all of one voice and there is no impact that would warrant refusal;
· the height pole was erected and the adjoining owner can see the impact is less than he had expected;
· if the court were not in favour of the application, given that the matter is on foot since 2005, and a deferred commencement would not be appropriate the Court might entertain an amendment to the plan. The applicant is willing to move Dwelling 1 to the street; and
· overall there are minimal impacts but it does breach the FSR.

29 Mr Patterson, for the respondent, agreed with Mr Conomos that the proposal is not suitable for deferred commencement and submitted:
· there is need for amended plans;
· if there should be amendments, the parties should be advised, and the matter adjourned. However, the proposal is more appropriate for refusal;
· the applicant knew the council’s position and the applicant has not made the necessary amendments and its preferred position was to largely comply with Mr Newbold’s recommendations;
· the focal point for an assessment of this application are the planning controls. The WLEP sets out the generic controls and the comprehensive WDCP repeats the controls in the previous DCP;
· the Court is well aware of the decision in Zhang v Canterbury. Wide ranging impact and the Court’s discretion is not at large or unfettered, [Note: Zhang v Canterbury (2001) 115 LGERA 373];
· the proposal has non-compliances as set out in Mr Newbold’s report in Exhibit 3;
· there is no doubt that the proposal would be too high and with excessive FSR, and the council also says that the front and rear setbacks are not complying. There are also non-compliance with respect to the size of the roof deck;
· unfortunately, we don’t know what the differences would be with a complying development. Recently in the Veloshin case height and bulk was assessed. [Cf para 32], [Note: Veloshin v Randwick Council [2007] NSWLEC 428];
· Mr Newbold says that a complying development might have more impact, however, there is still a need to comply with the height and FSR and there is nothing before the Court in this regard;
· contrary to Mr Newbold’s conclusion the Court would accept that a complying proposal would have fewer impacts. One could have a complying development that might have maximum impacts but that would not be in accordance with the Court’s planning principle. Complying development would have less impact;
· having regard for the Tenacity planning principal the views from the dining room of No 9 Kent Street are not district views but of water and should be protected. There are water views from the kitchen window and the study window, [Note: Tenacity v Warringah Council [2004] NSWLEC 140];
· also important are the Pafburn principles [Cf paras 19 to 24]. In this case there would be impacts due to non-compliances with the planning controls, [Note: Pafburn v North Sydney Council [2005] NSWLEC 444];
· the skill of the designer is important and in this case Building 1 could be brought forward to address the street and in this regard the planning controls give real guidance. A development control should not normally be varied but only if considered unreasonable or unnecessary…[Cf p 4 of the WDCP];
· the council might require a more restrictive application of the planning control, so even with complying development there would be a need to properly attend to amenity impacts;
· excessive provision of landscaped area cannot be used to justify exceedances in other planning controls. [Cf. p 67, Part D1 ‘Development on steep sites’].

· under the planning controls D1on p 50 WDCP there is a need to provide for acceptable solar access.
· also on p 53 of the WDCP there are objectives relating to size and bulk of development.
· on page 59, D1 front setback control the diagram shows in plan something quite similar to here. The Court would have regard to the evidence of the neighbours.
· the proposal has not been designed to minimise the adverse impacts and does not eliminate those. The Court is expert tribunal and should refuse the application.

30 Mr Conomos submitted in reply that the proposal is reasonable. All the experts have indicated that the impacts are reasonable and there is no need for there to be ‘no impacts’. In the circumstances of this case the view loss impact is not unreasonable. There is maintenance of the views from No 9 Kent Street as was seen by the position of the pole and all the view to the right would be preserved from the deck of No 9 Kent Street. However, the view to the left would be obstructed by the proposal. The concern for the Barclay Street privacy has been addressed. So the only objection that remains is that of the occupants of No 9 Kent Street. Bearing in mind the planning principles the proposal is well designed and has minimal impacts.

Bulk, height and scale and amenity impacts

31 The proposal has a FSR of 0.76:1 or a gross floor area of 414m2 or around 141m2 over the allowable limit of 0.51:1 or a gross floor area of 278m2, [Note: Exhibit 3 p 3]. There are three levels proposed and thus the breach in floor space on each level if equally divided between each floor would be around 47m2. As the width of the proposal would be around 11m this translates to an addition depth of development on each floor of around 4m.

32 If the depth of the proposal were reduced on each level by around 4m, the views would be opened up from the rear of No 9 Kent Street, a greater penetration of daylight could be expected over the top of a stepped form to the lower levels of No 9 Kent Street, and the separation distance between the development on the land and the rear wall of dwellings on Barclay Street and in particular Building 1 and No 12 Barclay Street would be increased. With a greater setback from the rear boundary there would be a reduction in privacy impacts.

33 The proposal would also exceed the wall height by over 1m to 1.5m depending on how the natural ground line, (NGL) is determined. On Mr Newbold’s conservative estimation of the NGL at Building 1 there would be a height non-compliance of around 1.5m based on an allowable wall height of 7.0m and height to the ridge 8.5m or 7.5m to parapet under the WDCP.

34 Under the provisions of the WDCP the predominant building line at the front and to the rear is set to maintain the established pattern of buildings. Having regard for the right hand diagram in Figure 72, p 59 of the WDCP, Building 1 could be relocated closer to Kent Street and be more in alignment with the higher three-storey part of No 9 Kent Street.

35 I consider that that proposal would be too bulky and would result in unreasonable and unnecessary view impacts from No 9 Kent Street and the application should fail.

Other matters
36 The council considered the roof terrace would be too large and should not exceed 10m2 or a maximum dimension of 1.5m as required under the WDCP. This is a matter that might be addressed in any redesign.
37 I consider there would be need to redesign the proposal in order to bring it more into conformity with the requirements of the WDCP. I agree with the parties that these design changes would be so great that deferred commencement consent would be inappropriate.
38 For the above reasons, the appeal is dismissed.

Orders
39 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No DA206/2005 lodged with the respondent council on 14 April 2005 to demolish an existing dwelling and to erect two new attached dwellings, at Lot 14, Section 2, DP 770, being No 11 Kent Street, Waverley, is refused consent.

3. The exhibits except for Exhibits A, C, D, E, 2, 3 and 4 are returned.

S J Watts

Commissioner of the Court

sw