Leamon v Waverley Council
[2008] NSWLEC 1302
•11 July 2008
Land and Environment Court
of New South Wales
CITATION: Leamon v Waverley Council [2008] NSWLEC 1302 PARTIES: APPLICANT
RESPONDENT
Philip Leamon
Waverley CouncillFILE NUMBER(S): 11209 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- demolition of an existing dwelling and the construction of a new dwelling - floor space ratio - loss of privacy LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996DATES OF HEARING: 18/06/08, 11/07/08 EX TEMPORE JUDGMENT DATE: 11 July 2008 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr J Hones, solicitor
SOLICITORS
Hones La Hood Lawyers
Mr S Patterson, solicitor
SOLICITORS
Willshire Webb Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
11 July 2008
JUDGMENT11209 of 2007 Philip Leamon v Waverley Council
1 COMMISSIONER: This is an appeal against a refusal by Waverley Council (the council) of Development Application No. 243/07 for the demolition of an existing dwelling and the construction of a new dwelling at 31 Yanko Avenue, Bronte (the site).
The site
2 The site is generally rectangular in shape with a frontage to Yanko Avenue of approximately 7.5 m and a depth of 46.37 m giving a site area of 519.4 sq m. It is generally flat but has an awkward arrangement of easements and right of ways that occur in the eastern side of the site, however these are not relevant to the issues raised by the council in the proceedings.
3 The surrounding development consists predominantly of detached residential dwellings but of a range of different styles from older dwellings to contemporary designs.
The proposal
4 The proposal involves the demolition of the existing dwelling and the construction of a part two/part three-storey detached dwelling, with on-site parking for two cars. The ground floor has two bedrooms with a central deck area off one bedroom, a playroom leading to the rear deck,bathroom, laundry and storage. The first floor provides two bedrooms, front and rear facing decks, study, bathroom, toilet and an open plan living/dining/kitchen area. The second floor provides a lounge area leading to a deck with views to the Pacific Ocean.
Relevant planing controls
5 The site is within the Residential 2(a) zone under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed development is permissible with consent. The site is not listed as a heritage item and is not located within a heritage conservation area. The site to the west is however a heritage listed two-storey dwelling with a single garage in the front yard.
6 Waverley Development Control Plan 2006 (DCP 2006) applies. The relevant provisions relate to Pt D1, cl 5.2, Size and Bulk of Dwelling Houses and Dual Occupancy Development, and cl 5.6, Privacy and Noise Control. The site is located within the Bronte Beach Residential Character Study area identified in DCP 2006.
Contentions
7 The council originally filed a Statement of Facts and Contentions that raised the issue with inconsistency with the zone objectives (Contention 1), impact on the heritage significance of the dwelling at 33 Yanko Avenue (Contention 2), inconsistency with the Bronte Beach Residential Character Study area (Contention 3), exceedence of the floor space ratio (FSR) requirements (Contention 4), unsatisfactory front setback (Contention 5), privacy and noise impacts (Contention 6), streetscape (Contention 7), precedent (Contention 8), and the public interest (Contention 9).
8 Prior to the hearing the heritage experts Mr Brady for the council and Mr Staas for the applicant conferred and agreed that if the front setback of the dwelling was increased by 2m, then the proposal would be acceptable in heritage terms. Amended plans were produced that moved the proposed dwelling back into the site a distance of 2 m. At the site view on 18 June 2008 plans that reflected the heritage experts' agreed position were provided.
9 The town planning experts, Mr Lindsay Fletcher, the party's single expert, and Mr Tony Moody, the applicant's town planning expert, attended the site view. With the benefit of height poles that reflected the height and location of the original building location (that is, prior to the additional 2 m setback) it was clear through an estimation of the new location of the dwelling that the effect of moving the building an additional 2 m further into the site had the consequential effect of blocking a large percentage of the views of the Pacific Ocean from the dormer window of the adjoining property at 33 Yanko Avenue, owned by Mr and Ms Granger.
10 The proceedings were adjourned to allow for the preparation 61 amended plans to address the view loss from 33 Yanko Avenue.
The amended plans
11 The proceedings were reconvened on 11 July 2008 with Mr Moody and Mr Fletcher providing a joint report on the amended plans. Mr Fletcher stated that the proposed development, in its amended form was still unacceptable because of the breach of the FSR requirements. DCP 2006 provides for an FSR of 0.53:1, whereas the amended proposal has an FSR of 0.57:1. In his opinion the removal of the second floor would address the issue of the excess FSR. He also raised issue with the potential overlooking from the deck on the second level into 33 Yanko Avenue.
12 Mr Moody's position was that the proposal was acceptable and that the exceedence of the FSR requirement created no adverse impacts on any adjoining property. The loss of privacy was not an issue in his view, based on the limited area that could be viewed of the rear yard of 33 Yanko Avenue.
13 Mr Granger stated that he was still concerned over the potential overlooking and noise impacts from people on the first floor deck but accepted that the view loss issue was acceptably addressed by the amended plans.
14 There was agreement by Mr Fletcher, Mr Moody and Mr Granger that the loss of views had been satisfactorily addressed by the further amended plans. Based on the further amended plans, the issues in dispute relate to:
(2) the potential loss of privacy and noise impacts from the first and second floor decks.(1) the breach of the FSR requirement; and
15 Mr Fletcher and Mr Moody agreed that the FSR departure is a minor numerical breach but disagreed on whether it was acceptable . On the issue of FSR, I agree with Mr Moody's conclusions. cl 5.2 pt D1 provides objectives for size and bulk. These are:
- (a) To, ensure that new dwellings and alterations and additions to existing dwellings are of an acceptable size and bulk in relation to the size and shape of the allotment;
(b) To ensure there is no overdevelopment of sites;
(c) To ensure that any negative impacts on residents living in buildings on adjoining or nearby allotments are minimised and wherever possible, eliminated;
(d) To ensure that dwelling-house and dual occupancy development adds to and does not detract from the existing streetscape and character of the area; and
(e) To ensure that the bulk of dwellings is in character with surrounding development.
16 I am satisfied that the proposal satisfies these objectives, notwithstanding the departure from the DCP 2006 FSR requirements. In coming to this conclusion, I have taken into consideration the fact that the proposed development satisfies the DCP 2006 requirements for height, front setback, side setbacks (based on the means of measurement consistently adopted by the council) and rear setbacks.
17 For reasons explained later in the judgment I am also satisfied that the second floor deck does not have any negative impacts on residents living in buildings on adjoining land or nearby allotments, particularly 33 Yanco Avenue because of the limited opportunity to look into this property from this area. Similarly, I am satisfied that it does not detract from the streetscape or character of the surrounding development and the wider area. I understand this to be a conclusion also reached by Mr Fletcher and Mr Moody.
18 While the question of precedent was raised, I do not accept that it is a matter of any substance in this case when the proposal satisfies the vast majority of the DCP 2006 requirements; the only variation being the FSR requirement where it was agreed that it was only a minor numerical breach. For this reason, the proposal could not be seen as an overdevelopment.
19 The concern of loss of privacy into Mr Granger's property from the second floor was a matter raised by Mr Fletcher and not by Mr Granger. From the architectural plans, the potential area of overlooking is limited to the rear portion of the yard because of the lesser setback of the lower level. The area used by Mr Granger for entertaining adjoining his dwelling will be shielded by the building on the lower level. As stated by Mr Moody, the rear part of the yard that came be viewed is well in excess of 9 m from the second floor.
20 While there was some argument over whether the second level should be categorised as "rooftop deck", where the DCP 2006 requirements are more rigorous and restrictive; I am satisfied that this area is more appropriately categorised as an "elevated external deck". A "rooftop deck" would, in my view, suggest a deck that is the roof of a building and as such more restrictive requirements could be justified. I note that the external deck on the second floor satisfies the numerical requirements in cl 5.6.2 for an "elevated external deck".
21 I am also satisfied that any overlooking or acoustic privacy issues from the first floor deck are not likely to be significant or warrant any amendment to the proposal. I note that privacy screens will be provided on the edges of the deck facing 33 Yanco Avenue to minimise any potential overlooking and noise impacts.
22 The Orders of the Court are:
- 1) The appeal is upheld.
2) Development Application No. 243/07 for the demolition of an existing dwelling and the erection of a new dwelling at 31 Yanko Avenue Bondi is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 7 and G.
- G T Brown
Commissioner of the Court
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