Lt Holdings Pty Ltd v Woollahra Municipal Council

[2004] NSWLEC 28

Land and Environment Court

of New South Wales

CITATION:

LT Holdings Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 28

PARTIES:

APPLICANT
LT Holdings Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10828 of 2003

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- Residential flat building - SEPP 1 objections to floor space ratio and height - Consistency with existing and future character - Overshadowing

LEGISLATION CITED:

Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 1999
State Environmental Planning Policy No. 1

CASES CITED:

DATES OF HEARING:

28 and 29 January 2004

DATE OF JUDGMENT:

02/04/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Wilson, barrister
SOLICITORS
Gary Cassim and Associates

RESPONDENT
Ms J Hewitt
SOLICITORS
Michell Sillar

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10828 of 2003

Tuor C

4 February 2004

LT Holdings Pty Ltd
Applicant
v

Woollahra Municipal Council
Respondent

Judgment

Introduction

1 . This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application for a residential flat building at 18-20 Carlotta Road, Bellevue Hill.

The site and its context

2 . The site is located on the eastern side of Carlotta Road and comprises two allotments, being Lots A (No. 18) and B (No. 20) DP 958046. Both lots are developed with a single, one to two storey house in a landscaped setting. There is no significant vegetation on the site.

3 . The two lots are irregular in shape with a combined area of 1327 m2; a western frontage to Carlotta Road of 27.86 m; side boundaries of 47.625 m; and an eastern boundary of 27.86 m. The site slopes from the rear towards Carlotta Road falling approximately 14.4 m from its south-eastern corner to the north-eastern corner of the site. The cross fall from south to north is between 0.5 m and 2.5 m.

4 . Development in the surrounding locality is characterised by a mix of residential flat developments and detached dwellings, which vary in height, scale, materials and architectural style.

5 . New residential flat developments are mainly on the eastern side of Carlotta Road to the north of the site. Buildings to the south of the site and on the western side of Carlotta Road are generally detached houses, some recently constructed.

Background

6 . The development application (209/2003) was lodged on 26 March 2003. Council advertised the application and six objections and four letters of support were received. The main concerns raised in the objections were:

• Overlooking into private open space
• Bulk and scale, excessive building footprint, height
• Overdevelopment of the site
• Overshadowing of 22 Carlotta Road
• Impact of excavation

7. Council refused the application on 15 September 2003. Amended plans were lodged on 11 September 2003, but were not considered by Council. The amended plans are the subject of this appeal.

Proposal
8 . The development application is for the demolition of two detached houses and the construction of a four-storey residential flat building with six, three bedroom apartments and basement carparking for 12 resident and 2 visitor cars.

Statutory framework

9 . The site is zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP 1995). Residential flat buildings are permissible within this zone. The relevant objectives of the Residential 2(b) zone are:

(a) to provide for areas of medium and high density residential development in appropriate locations;
(b) to encourage a diversity of dwelling types and tenures.


10 . Clause 11 specifies a maximum floor space ratio (FSR) for the site of 0.625:1. The maximum height permissible under cl 12 is 9.5 m above existing ground level. The proposed development exceeds both these standards and the applicant has submitted objections under State Environmental Planning Policy No. 1 (SEPP 1). This policy allows development standards to be varied provided their application is unnecessary or unreasonable. Clause 18 of LEP 1995 relates to excavation and requires that the temporary or permanent affect of excavation be considered against certain criteria.

11 . The Woollahra Residential Development Control Plan 1999 (RDCP) is also relevant.

12 . Part 4 of the RDCP contains design criteria for specific precincts. The subject site is located within the Bellevue Hill Precinct. The desired future character objectives for the Bellevue Hill Precinct are:

01. To ensure development maintains Bellevue Hill's landscape character by minimising alterations to the landform and preserving the existing tree canopy.
02. To ensure development maintains the amenity of the public domain by preserving public views of the harbour and local landmarks and the special qualities of streetscapes.
03. To ensure building height, building form, setbacks. roof shape and finishes contribute to cohesive streetscapes and reflect the heritage context of the street.
04. To preserve and enhance the traditional main street and corner shop qualities of Neighbourhood Business zones.

13 . The performance criteria for the Bellevue Hill Precinct specify a maximum height of 9.5 m, to correspond with the LEP height controls, and a building footprint of 30% for the site.

14 . Part 5 of the RDCP contains general controls, which apply in addition to the precinct-specific criteria. The general controls relate to amongst other things: streetscape; building size and location; open space and landscaping; fences and walls; views; energy efficiency; stormwater management; acoustic and visual privacy; carparking and driveways; and, construction and site management.

15 . Woollahra Residential Development Control Plan 2003 has been approved but does not come into force until the gazettal of draft amendment 46 to LEP 1995. This DCP amends the building footprint to 35% and, while maintaining a building height of 9.5 m, adds a two-storey height control. This DCP does not apply to the development application and I have not given it weight.

16 . State Environmental Planning Policy No. 65 (SEPP 65) – Design Quality of Residential Flat Buildings is relevant. SEPP 65 applies to residential flat buildings of three or more storeys and four or more units. It requires the design quality of the residential flat development to be evaluated against design quality principles and the Residential Flat Design Code. The design quality principles relate to context, scale, built form, density, resource energy and water efficiency, landscape, amenity, safety and security, social dimensions and aesthetics.

Issues
17 . The Statement of Issues contains 16 issues, which can be summarised into the key issue of whether the SEPP1 objections in relation to FSR and height are well founded.

18 . Underlying this issue is a consideration of whether the proposal is consistent with the existing character of the area, meets the desired future character objectives and has an acceptable impact on neighbourhood amenity.

19 . The following experts gave evidence.
For the council:

• Ms D Laidlaw, town planner.

20 . For the applicant:

• Mr L Fletcher, town planner
• Mr S Dascalu, architect/urban designer (architect for the development)


21. Mr M Harrison, architect/urban designer, provided a statement of evidence but was not required for cross-examination.

22 . The Court also heard evidence from the following residents:

• Ms C Wrublewski, 16 Carlotta Road, Bellevue Hill
• Mr P Hirst, 22 Carlotta Road, Bellevue Hill
• Ms E Terrill, 21 Carlotta Road, Bellevue Hill

SEPP 1 Objection – Floor Space Ratio
23 . Clause 11 of LEP 1995 specifies a maximum FSR for the site of 0.625:1. The experts disagreed on the FSR of the proposal; Ms Laidlaw said the FSR was 1.1:1. The other experts stated that the FSR was 1.05:1. The difference in opinions relates to whether part of the basement foyer should be excluded. Regardless of the difference in opinion, the FSR represents a significant departure from the standard.

24 . The objectives of the floor space ratio standard in cl 11AA of the LEP are:


(a) to set the maximum density for new development;
(b) to control building density, bulk and scale in all residential and commercial areas in the Municipality in order to achieve the desired future character objectives of those areas;
(c) to minimise adverse environmental effect on the use and/or enjoyment of adjoining properties; and
(d) to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point.

25 . Mr Fletcher submitted a SEPP 1 objection to the FSR standard. His justification for varying the development standard may be summarised as follows:
• the proposal generally complies with other controls under the LEP and DCP.
• the proposal meets objectives in relation to population density.
• the proposed development is consistent with the residential development in the vicinity of the site, particularly the residential flat development to the north.
• the design of the proposal minimises bulk by separating the street frontage of the building into two elements divided by a recessed foyer.
• the proposal minimises the impact on adjoining properties. In particular, the building setbacks, location of windows and landscaping protect privacy of adjoining properties. The living areas and terraces are predominantly located towards the east and west of the site to minimise overlooking. Adequate solar access to windows and open space is achieved.
• the proposal does not affect views.
• the proposal relates well to the existing built environment.


26. These views were supported by Mr Harrison and Mr Dascalu. Ms Laidlaw held the contrary opinion that the exceedance in FSR did not meet the objectives of the standard. Her main objection was that the “form of development is substantially different to the form of development sought under the relevant planning control s”. She disagreed that the development complied with other controls, including height building footprint and deep soil planting, or was consistent with the existing character of the area. In her opinion, the proposal related to the bulk and scale of the existing flat buildings to the north of the site but not to other development in the street. She said that these flat buildings are recognised as over developments which the current planning controls, particularly changes to the DCP, seek not to replicate. The proposal, therefore does not meet the desired future character objectives of the DCP.

27 . In considering, the objectives of the standard the experts agreed that objective (a) of WLEP 1995 was unclear. If it relates to population density it is of little relevance without being supported by other controls. The application provides six large 3 bedroom apartments. An application which complies with the FSR standard could provide for 3 bedroom smaller apartments and therefore achieve the same theoretical population density.

28 . Objective (b) of the LEP seeks to control bulk, density and scale of development to achieve the desired future character objectives which are articulated within the RDCP. I accept Mr Wilson, counsel for the applicant’s, submission that the SEPP 1 application must be assessed against the desired future character objectives to determine whether it meets objective (b) of the LEP. Inherent in understanding whether the development meets the desired future character objectives is an understanding of how it achieves the controls in the LEP and DCP.

29 . The RDCP Desired Future Character Objective 01 relates to maintaining “landscape character by minimising alterations to landform and preserving existing tree canopy”. The experts disagreed that alterations to the landform were minimised largely due to the extent of excavation to the site. Ms Laidlaw’s opinion was that the excavation was excessive particularly as it extended beyond the building and exceeded the building footprint control, being 45.6% instead of 30%.

30 . Mr Fletcher considered that the excavation was appropriate for a development of this scale. He, and the other experts for the applicant, considered that the stepped form development maintained the landform and was an appropriate response to a steeply sloping site. They also considered that the extent of excavation was inevitable to provide the parking required. In this regard they noted that parking was determined by the number of units and the number of bedrooms in each unit. Mr Dascalu made the point that complying development could have the same number of units and therefore require the same number of car spaces. He also considered placing the parking over two levels to be inefficient.

31 . Mr Fletcher did not agree that the development exceeded the building footprint control to any great extent. Based on Mr Dascalu’s figures the footprint was 36%. The difference between this figure and Ms Laidlaw’s calculation was the extent of the expressed slab of the basement and whether this should be included. I accept Ms Laidlaw’s interpretation as it better meets the purpose of the building footprint control in Section 5.2.2 of the RDCP.

32 . In relation to the RDCP Desired Future Character Objectives O2 and O3, the matters relevant to the application are whether the development preserves ”the special qualities of streetscapes” and “contributes to cohesive streetscapes”. The experts agreed that existing development was not cohesive and built form did not exhibit a consistent special quality. Although it was argued that the recent flat development are consistent in their stepped form, it was generally agreed that these developments did not achieve as “ special quality” or a “ consistency” that should be replicated. This relates to Objective (d) of the LEP and is further discussed below.

33 . In relation to Objective (c) of the LEP, the main area of disagreement between Ms Laidlaw and Mr Fletcher was whether the overshadowing of the open space at No 22 Carlotta Road achieved the objective of “ minimising adverse environmental effects on the use or enjoyment, or both of adjoining properties”. This issue is discussed further below, but I find that the development does not minimise the overshadowing impacts on No 22 Carlotta Road.

34 . Objectives (d) of the LEP is “ to relate new development to the existing character of surrounding built or natural environment”. The key difference in opinion between Ms Laidlaw and the other experts was the emphasis given to the flat buildings as being the appropriate context that the development should respond to. Ms Laidlaw stated that the flat development was generally to the north of the site and that development to the south and on the other side of the street was predominantly detached dwellings. In her opinion, the development should respond to this varied context. However, the FSR of the proposal represented the upper limit of development in the area and did not form a transition between the different forms of development.

35 . I accept Ms Laidlaw’s evidence that the FSR of the development does not meet the objectives of the standard. The bulk, density and scale of development, though well designed, is similar to that of the existing flat buildings and does not reflect the existing character of other buildings in the street or the landscape character of Bellevue Hill. This character is one the buildings within landscaped settings. Some of the main criticism of the existing residential flat building to the north of the site, particularly in Mr Dascalu’s report, is the extent of site coverage of the building, the absence of trees and the changed landform.

36 . The building itself may be well designed and minimises the bulk of its floor space by separating the front of the building into two elements and stepping the roof form down the hill to reflect the landform. However, the manner in which it meets the ground does not reflect the landform and its relationship to the site does not achieve the objective to minimise alterations to the landform. The extent of excavation beneath the building and to each side of the development alters the landform. This excavation, for a significant length along both the north and south boundaries, extends right up to these boundaries. This is to provide habitable rooms (floor space) above the basement carpark but below the level of existing ground. This results in the land being terraced and contained to the north and south by large retaining walls. While landscaping is proposed in strips along these boundaries I do not accept that this maintains the landform of the site, even though the setback areas may be visible from only limited view points. To the north, the boundary adjoins the public walkway and the visibility and impact of the development from the walkway is not clear from the evidence.

37 . The alteration to the landform has a direct relationship to the bulk and scale of the development. The development of floor space, below existing ground level, results in a larger form of development than would otherwise result if the ground level were to be generally maintained. This also has implications for the height of the building, which I will discuss under this issue.

38 . I do not accept that the development meets objectives (b) (c) or (d) of cl 11AA. The proposal responds to the existing character of the residential flat development but not to the other forms of development in the street or to the existing character of the landscape and therefore does not meet Objective (d). I accept Ms Laidlaw’ s evidence that the planning controls do not seek to replicate the character of the residential flat buildings and have been amended as a direct response to this type of development. The proposal, by being consistent with the bulk and scale of the residential flat buildings does not meet Objective (b). The proposal does not minimise overshadowing of No 22 Carlotta Road and therefore does not meet Objective (c). I find that the SEPP 1 Objection is not well founded and the application must fail.

SEPP 1 Objection – Height
39. Clause 12 of LEP 1995 specifies a maximum height for the site of 9.5m. The proposed height for part of the building exceeds the standard by 0.10m to 1.2m, the maximum height being 10.7m. Mr Fletcher submitted a SEPP 1 objection to the height standard. The experts generally agreed that the proposed development met the objectives of the height standard contained in cl 12AA of the LEP. The only area of disagreement was that in Ms Laidlaw’s opinion the additional height added to the bulk and scale of the development.

40. The variation to the height control results from: the definition of height being measured from existing ground level; the upper levels of the development following the slope of the land; and parts of the site being previously excavated. The area where the height standard is exceeded will not of itself add to the bulk and scale of the development. The roof height of the building is consistent with the height of other building in the street and forms a transition between the residential flat building at No 16 and the house at No 22. The variation does not result in adverse impacts on adjoining properties through view loss, overshadowing or privacy. I accept that the variation meets the objectives of the standard and the SEPP 1 objection is well founded.

41. However, in concluding that the area which exceeds the standard is not an issue, I do not accept that the overall height of the development is acceptable. In concluding this, I accept that height is measured above existing ground level and that the height above ground level is consistent with other buildings in the street. However, the height control should not be read in isolation but should be considered with other controls such as FSR, building footprint and setback.

42. The aims and provisions in both the LEP and DCP seek to maintain existing landform and minimise cut and fill. Inherent in these controls and the height standard is a clear expectation that the existing ground level will generally be maintained and that the bulk of the building will be read against this level. While the upper limit of the development is consistent with other development in the street, the height below ground is not. The building that will be seen above the new ground level results in a form of development which reads from its north and south as a predominantly 3 to 4 storey building partly set below the level of existing ground. I note that the draft DCP seeks to clarify the controls by limiting the number of storeys to two in addition to the height limit.

43. The change to existing ground level also has implications for the setback requirements in the DCP. The control requires the setback to be increased as the height of the building increases. The experts agreed that the development complies with the setback requirements in the DCP. However, this compliance is predicated upon height being measured above existing ground level. The excavation of part of the site to the boundaries and the resultant height below ground level mean that overall the development is of greater bulk and scale relative to the setbacks. This does not achieve separation between developments or the landscape character of the area that the setbacks aim to achieve.

44. As discussed above the change to existing ground level and the resultant implications on height, setback and FSR are a direct result of providing habitable rooms (floor space) below ground level. This contributes to the development being of greater bulk and scale than envisaged by the controls and, as discussed above, does not meet the objectives of the FSR standard.

Impact on adjoining neighbours
45. The experts agreed that privacy impacts could be dealt with by conditions. The main impact on adjoining neighbours that the experts disagreed upon was whether the overshadowing of the outdoor area of No 22 was acceptable. The difference of opinion related to whether the outdoor area comprised only the lower terrace area or also an adjoining area at a higher level.

46. Ms Laidlaw and the owner of the property, Mr Hirst, opinion was that the lower terrace was the “main ground level private open space” and that the proposed development did not meet the requirement in Section 5.2 P16 of the RDCP of providing sunlight to at least 50% for a minimum of two hours between 9am and 3pm to this area.

47. Mr Fletcher considered that the upper terrace was also part of the main area and that if this were included the proposal met the requirements of the DCP. Mr Dascalu considered that the lower area met the requirement, as people sitting down would still receive sunlight. An argument I do not accept.

48. The ground level open space relates directly off the house and is clearly the most easily and most utilised area of open space. The upper area directly adjoining this space could also be utilised but would not be as convenient. The northern part of this upper area is also overshadowed in a similar manner to the lower terrace. The area, which would still receive two hours of sunlight, is the upper area further to the south and generally behind the building. This would be less easily used and provide considerably less enjoyment to the occupiers than the area they currently use. If the overshadowing where as a result of a complying development this impact may be reasonable. However, it is not acceptable in the circumstances where the development exceeds the FSR standard by such a considerable amount and the development could be designed, through the reduction in floor space, to not impact on the adjoining open space. The development does not minimise the overshadowing impact of the use and enjoyment of this area. It therefore does not meet objective (c) of the FSR standard.

Orders


1. The appeal is dismissed.
2. Development application 209/2003 to construct a residential flat building at 18-20 Carlotta Road, Bellevue Hill, (Lots A and B DP 958046) is determined by refusal.
3. The exhibits may be returned.

___________
Annelise Tuor
Commissioner of the Court
Rjs