Lee-Anne Dalley v Woollahra Municipal Council

[2015] NSWLEC 1134

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lee-Anne Dalley v Woollahra Municipal Council [2015] NSWLEC 1134
Hearing dates:	12 March, 2015
Decision date:	04 May 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld in part. 2. Development Consent No. 103/2014/1 is modified so that the overall height of the development is at RL66.15. 3. The exhibits, other than exhibits A and 6, are returned.
Catchwords:	MODIFICATION APPLICATION: deletion of a condition of the consent requiring the roof level of the new dwelling to be reduced by 1 metre; impact on existing views from surrounding residences.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Ms Lee-Anne Dalley (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Mr Gary Green (Applicant) Mr Stephen Patterson (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Wiltshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	11031 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the refusal of Modification Application No. 103/2014/1 for the deletion of a condition of the consent requiring the roof level of the approved development to be reduced by 1 metre, at 11 Gilliver Avenue, Vaucluse (the site), by Woollahra Municipal Council (the Council).

2. The appeal was subject to mandatory conciliation on 12 March, 2014, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. Notwithstanding the agreement of the planning experts on the basis of amendments made to the design of the dwelling, the Council pressed its contentions regarding the unreasonable impact of the proposal on views from adjoining properties, so the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i).

3. Leave was granted by the Court for the applicant to rely on an amended design (exhibit A) (the proposal), on the basis agreed by the parties, pursuant to s 97B(2) of the EPA Act.

Issues

4. The Council’s contention in the matter is that the deletion of condition C.1a requiring the roof level to be reduced by 1 metre would result in an unreasonable impact on harbour views from adjoining properties, which are to the rear of the site.

The site and its context

5. The site is on the southern side of Gilliver Avenue, Vaucluse. The site is irregular in shape, with a 38.8m frontage to Gilliver Avenue and a site area of 949.6sqm.

6. 12A New South Head Road is to the south-east of the site and 14 New South Head Road is to the east of the site. These two properties are located higher on the hill that falls to Hermit Bay to the north-west, when compared to the site, with harbour views obtained across the site, from their living areas and terrace.

Background and the proposal

7. The existing building on the site has a hipped roof with a ridge height at RL66.8 (exhibit B).

8. Development Consent No. 103/2014 (the consent) is for the demolition of the existing dwelling and swimming pool and the construction of a new 2 to 3 storey dwelling, with a flat roof and parapet shown at RL66.75 and reduced to RL65.75 by condition C.1a. The approved dwelling is divided into two pavilions, one to the west and a smaller pavilion on the eastern portion of the site, connected by the entry and stair. The consent includes a new swimming pool and landscaping works.

9. The consent includes the following condition C.1a:

In order to reduce the extent of the non-compliance with Council’s height development standard and to reduce the extent of view loss to the adjoining properties to the rear (12A & 14 New South Head Road), the overall height of the development shall be reduced by 1m to RL65.75.

10. The proposal has a flat roof behind the parapet at RL66.75.

11. The proposal reconfigures the eastern pavilion to reposition some of the floor area from the north-western side of the pavilion to the north-eastern side on the first floor.

12. The proposal reduces the area of the portion of the roof that cantilevers over the north-western terrace of the eastern pavilion and reduces the height of the cantilevered roof by 300mm.

13. The proposal reduces the height of the roof on the northern side of the western pavilion, partly over the study and terrace, and the overhang of the roof on the western side of the western pavilion, by 300mm.

Planning framework

14. The site is zoned 2(a) Residential pursuant to the Woollahra Local Environmental Plan 1995 (LEP 1995). The relevant objective of LEP 1995 at sub-cl (2)(2)(h)(iv) is to consider the impact of development on the views of Sydney Harbour enjoyed by existing residents and promote the practice of view sharing.

15. The relevant objective of the maximum building height development standards at sub-cl 12AA(a) of LEP 1995 is to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline.

16. The proposal is subject to the provisions of the Woollahra Residential Control Plan 2003 (DCP 2003). The relevant objective of DCP 2003 is to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties, at 1.4(c).

17. DCP 2003 includes the following explanation at 5.5 ‘Views’:

Views and vistas are special elements of Woollahra’s unique character. The municipality’s sloping topography, leafy setting and harbour frontage combine to offer dramatic bushland and water views which contribute to the amenity of both private dwellings and the public domain. In addition, the municipality’s frontage to Sydney Harbour confers special responsibilities upon Woollahra to ensure development maintains the scenic beauty of the foreshore and headland areas when viewed from the water.

Private views

‘View sharing’ concerns the equitable distribution of views between properties. The RDCP’s view sharing controls seek to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties.

18. The relevant objective of 5.5 of DCP 2003 at O.5.5.2 is to encourage view sharing as a means of ensuring equitable access to views from dwellings. The relevant performance criteria for private views at C.5.5.6 and C.5.5.7 are as follows:

Building forms enable a sharing of views with surrounding residences, particularly from the main habitable rooms of surrounding residences.

Awnings and coverings on roof terraces, if provided, must be within the applicable height control and other planning controls and must ensure the sharing of views.

Public submissions

19. Two resident objectors provided evidence on site and the Court, in the company of the parties, viewed the site from both residences, 12A New South Head Road and 14 New South Head Road. Their objection to the proposal is that it will impact on their harbour views, particularly the foreground of the view over Vaucluse that provides the immediate setting for the harbour view beyond. The objector from 12A New South Head Road is concerned that the proposal will increase the overshadowing of her garden.

Expert evidence

20. Expert planning evidence was provided by Ms Clare Brown on behalf of Council and Mr George Karavanas on behalf of the applicant. Dr Richard Lamb also participated in the preparation of the joint report (exhibit 3) on behalf of the applicant.

21. During the hearing, the planning experts marked the roof plan (DA05 C of exhibit A) with a highlighter to indicate the areas of the roof where the proposal does not comply with the 9.5m maximum height development standard in LEP 1995. The planning experts agreed that the areas of non-compliance are the northern corner of the western pavilion and the northern corner of the cantilevered roof of the eastern pavilion and the northern corner of the parapet of the eastern pavilion.

22. The experts agreed on the following (exhibit 3):

• The highest portion of the proposal is 10.2m, at the front of the site (exhibit 3, p 7);

• The extent of the non-compliance with the maximum height development standard in LEP 1995 of 9.5m for the site has been minimised by reducing the height of the roofs over the northern terraces on both pavilions and reconfiguring the first floor of the eastern pavilion;

• The minor non-compliance with the maximum height development standard is on the northern corner of both pavilions and these areas have a minimal impact on the view from a standing position in the sunroom of 12A New South Head Road;

• In all views considered (from 12A New South Head Road) the proposal does not interrupt views of icons, land-water interface or whole views. The proposal interrupts the view of roofs of houses in the foreground and a small area of water in the direction of Shark Island;

• The proposal would result in some view loss to both 12A and 14 New South Head Road, however the view loss is minor and the proposal is supported.

23. Ms Brown, in response to a question from Mr Patterson regarding how the overall height of the proposal may be reduced, stated that the floor to floor heights could be reduced, although in her view, it was not necessary to do so.

Consideration

24. Due to the topography and the subdivision of this area, the site has an unusual configuration as it is wide and shallow, with its longest boundary to Gilliver Avenue and a maximum depth of approximately 26m from the Gilliver Avenue boundary to the southern corner. Consequently, the approved dwelling has been sited to spread across the site, with a width of approximately 30m. The approved dwelling extends much further towards the eastern, side boundary shared with 14 New South Head Road, when compared to the existing dwelling on the site, and directly in front of 12A New South Head Road. The ridge of the existing dwelling is approximately 8m long at RL66.8 and it is positioned approximately 8m from the southern corner of the site. The flat roof contained within the parapet of the proposal, at RL66.75, extends over a much greater area of the site and closer to the Gilliver Avenue boundary, where the height of the proposal has the greatest impact on the foreground views from the properties to the rear.

25. The four steps of the Tenacity planning principle (Tenacity Consulting v Warringah Council [2004] NSWLEC 140) are as follows:

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

26. The view from the living areas and the terrace of 12A New South Head Road and the living areas and the terrace of 14 New South Head Road is a whole, iconic view of Sydney Harbour to the west, including the Sydney Opera House, the Harbour Bridge, the city, the northern shoreline and Shark Island. The view includes vegetation and roof tops in the foreground and the hipped roof of the existing dwelling on the site.

27. The experts agreed that the impact of the proposal on the view from a standing position at the door between the sunroom and the terrace of 12A New South Head Road is minor (exhibit 3, photomontage ‘door to sunroom, standing view’) and that the proposal interrupts the view of roofs in the foreground and a small area of water in the direction of Shark Island, seen over the roof of the western pavilion (exhibit 3, par 9).

28. The fourth step in the Tenacity Planning Principle is to assess the reasonableness of the proposal that is causing the impact. I accept the agreed evidence of the experts that the areas of the roof which exceed the maximum height development standard in LEP 1995 of 9.5m are not the elements of the proposal that will have the greatest impact on the view from the living areas and terrace of each of the properties to the rear of the site. However, it is the overall height of the roof, spread across the site, which would obstruct the foreground portion of the view from 12A New South Head Road, including the harbour in the foreground of Shark Island.

29. The proposal, which consists of three levels; a basement garage level, ground floor living areas and first floor bedrooms, includes a very generous floor to floor dimension on each level of 3.6m. The floor to floor dimension on each level of the proposal results in a breach at the northern corners of each pavilion of the maximum height development standard in LEP 1995 of 9.5m by a maximum of 700mm and this, in my view, does not represent a genuine attempt to ‘minimise the impact of new development on existing views of Sydney Harbour’, as required by the objective of the maximum building height development standard at cl 12AA of LEP 1995.

30. Reducing the floor to floor dimension to 3.4m on each level, resulting in a maximum height of RL66.15, would provide the applicant with the same development potential and amenity as the proposal and would reduce the impact of the proposal on the views from 12A and 14 New South Head Road. I am satisfied that reducing the overall height of the proposal by 600mm, coupled with the amendments made in the proposal (to reposition some of the floor area of the eastern pavilion, to reduce the area of the cantilevered roof over the north-western terrace of the eastern pavilion and to reduce the height of the roofs over the terraces by 300mm) represents a fair balance between realising the development potential of the site and enabling the sharing of views with surrounding residences.

Directions

31. Directions were handed down on 17 March 2015 requiring the following amendments to the proposal:

[31] The floor to floor dimension on each level are to be reduced from 3.6m to 3.4m, so that the basement level remains at RL55.95; the ground floor level is reduced by 200mm to RL59.35; the first floor level is RL62.75 and the parapet is at RL66.15.

The amendments made to the design in revision B (exhibit A) are to be retained.

[32] The respondent is to file amended consolidated conditions of consent indicating the revision numbers of the amended architectural drawings.

[33] The applicant is to file and serve the amended plans no later than Friday 10 April 2015 and the respondent is to file the amended conditions of consent no later than Friday 17 April 2015. Liberty to restore on 2 days’ notice. Orders will be made in chambers

32. A notice of motion filed by the applicant on 26 March 2015 was heard on 13 April 2015 and the directions were varied as follows:

The directions as contained at paragraphs 31 and 33 of the Court's principal judgment are varied as follows:

The overall height of the proposal is to be reduced by 600mm such that the parapet height is at RL66.15.

The floor to floor dimensions are to be reduced, so that the basement level remains at RL55.95, the ground floor level is reduced by 100mm to RL59.45 and the first floor level is reduced by 200mm to RL62.95.

The amendments made to the design in Revision B (exhibit A) are to be retained.

The applicant is to file and serve the amended plans no later than Monday 27 April 2015 and the respondent is to file the amended conditions of consent no later than Monday 4 May 2015.

Final orders will be made in chambers.

33. The amended proposal and the consolidated conditions of consent were filed on 30 April 2015. Accordingly, I make the following orders.

Orders

34. The orders of the Court are:

1. The appeal is upheld in part.

2. Development Consent No. 103/2014/1 is modified so that the overall height of the development is at RL66.15.

3. The exhibits, other than exhibits A and 6, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 05 May 2015