MacKenzie Architects Pty Ltd v Willoughby Council

Case •

[2010] NSWLEC 1280

•

20 October 2010

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: MacKenzie Architects Pty Ltd v Willoughby Council [2010] NSWLEC 1280
PARTIES:

APPLICANT
MacKenzie Architects Pty Ltd

RESPONDENT
Willoughby Council
FILE NUMBER(S): 10255 of 2010
CORAM: Morris C
KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS - HERITAGE :-
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 19 – Bushland in Urban Areas
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Willoughby Local Environmental Plan 1995
State Environmental Planning Policy No 1-Development Standards
CASES CITED: Winten Property Group North Sydney Council [2001] NSWLEC 46
DATES OF HEARING: 11-13 October 2010
 
DATE OF JUDGMENT: 
20 October 2010
LEGAL REPRESENTATIVES:

APPLICANT
Mr M Fraser, barrister
SOLICITOR
Gil Baron, Solicitors

RESPONDENT
Ms H Irish, barrister
SOLICITOR
Mallesons Stephen Jaques

JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Morris C.

      20 October 2010

      10255 of 2010 MacKenzie Architects Pty Ltd v Willoughby Council

      JUDGMENT

1 Commissioner: This is an appeal against the refusal by Willoughby Council (the council) of a development application that proposed the construction of a multi-level dwelling house, driveway and swimming pool at No 95 The Bulwark, Castlecrag (the site).

2 The main issues in the matter are the size, bulk and scale of the proposed dwelling, whether compliance with the height control is unreasonable and unnecessary and the impact of the development on the Griffin heritage conservation area.


      The site and its context

3 The site is an irregular shaped allotment with a narrow frontage of 7.34m at a curved section of The Bulwark. This frontage provides vehicular access upslope to the main building area. A creek runs along the southern boundary of the site and Embrasure Reserve is located at the side and rear.

4 The site and the surrounding residential area is located within the Griffin Conservation Area (the CA), an area characterised by its natural landscape setting, reserves that preserve the major landforms and rock outcrops, foreshore reserves, natural creek systems and pathways which connect the road network which has been designed to suit the topography of the area.

5 Area of the site is 695.5m2 and currently a single storey dwelling house with flat concrete roof is located at the end of the access handle with hardstand parking area available adjacent to the site entry. The site contains a number of trees and shrubs, the majority of which are proposed to be removed to facilitate construction of the proposed dwelling, pool and driveway.


      The proposal

6 The proposed dwelling comprises four levels; the ground floor comprising a double garage and entry foyer; the first floor containing an air conditioning plant room and laundry; the second floor, a large enclosed terrace area, three bedrooms and two ensuite and the third floor the master bedroom, ensuite, study, kitchen and main living/dining area. A lift and stairway provide access from the ground floor to all levels and a full height void area is provided adjacent to the lift shaft rising from the entry foyer to the upper level living area The roof above the garage is to incorporate planter boxes along the front and part way along the side of the roof and in the area adjacent to the void. A cantilevered terrace on the third floor extends over this area.

7 The dwelling is setback 1.5m from the northern and 3.39m from the southern boundaries and a minimum of 3m from its south-western and 5.52m from its western boundaries to Embrasure Reserve.

8 The proposed pool is centrally located in the rear yard of the site and setback approximately 1m from the boundary to the reserve.

9 Vehicular access to the proposed garage is to be provided from a driveway located within the access handle starting at the centre of the site’s front boundary and curving up the handle to the southern edge of the site. A large hardstand area is provided for vehicle turning and access to the proposed garage and entry.


      The planning controls

10 State Environmental Planning Policy No 19 – Bushland in Urban Areas applies to the site. There was agreement by the parties that the development does not affect the requirements of this policy.

also applies to the site and clause 25 requires the following relevant matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways:

      (a) the scale, form, design and siting of any building should be based on an analysis of:

        (i) the land on which it is to be erected, and

        (ii) the adjoining land, and

        (iii) the likely future character of the locality,

12 The site is zoned 2(a2) (Residential “A2” Scenic Protection Zone) pursuant to the provisions of Willoughby Local Environmental Plan 1995 (the LEP). Clause 13(3) of the LEP requires development to be consistent with one or more of the aims of the plan and at least one specific objective of the zone within which the development is proposed to be carried out to enable consent to be granted. Relevant objectives of the LEP are:

      (b) to allow development at a scale that is sensitive to environmental and planning constraints, and
      (d) to maintain and enhance the amenity of residential areas, for example, by protecting these areas from inappropriate development, and
      (e) to ensure that residential development conforms with the scale and character of the individual residential development areas, and
      (h) to conserve specific buildings and items of the environmental heritage and to retain the character of urban conservation areas, and

13 There are both general and specific objectives for the residential zones, the relevant general objectives are:

      (b) To maintain the scale, character and streetscape of individual localities, and
      (c) To retain and enhance residential amenity, including views, solar access, aural and visual privacy and landscape quality, and
      (d) To retain the heritage values of particular localities, and
      In addition, there is one specific objective of the Residential “A2” zone and that is:
        To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas, are maintained by protecting the land in the zone from overdevelopment or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality.

14 Further considerations are required pursuant to clauses 13D and 17, the latter specifically for development which is within Zone 2(a2) and these require consideration of, in relation to clause 13D, amenity and:

      whether the proposed development is likely to have an adverse impact on an adjoining or nearby property by causing loss of views, loss of privacy or a reduction of sunlight to the living areas or principal open space recreation areas, and whether:
      (a) there are no other design alternatives that would mitigate the impacts, or
      (b) there are special circumstances applying to the site or its context.

15 In the case of clause 17 consideration must be made of the appearance and impact of the development on:

      (a) the amenity of surrounding properties, including loss of views to and of the foreshore, bushland and any waterways, and
      (b) the scenic qualities of the foreshore, including whether man-made structures visually dominate the natural landscape through excessive height and bulk and whether buildings, structures and other works are aesthetically and sympathetically integrated with the form and features of the local topography, and
      (c) bushland within the immediate locality, including loss of natural vegetation and significant geological features, disruption of drainage patterns, alterations to water tables and increased bushfire hazard potential, and
      (d) achieving the objectives of any development control plan applying to those areas.

16 Clause 18 limits development within Zone 2(a)2 to not more than 2 storeys.

17 Provisions regarding heritage and conservation are incorporated in clauses 56 and 57 of the LEP and those that are relevant to the application are the aims and objectives included in clause 56 as being:

      (a) to conserve the heritage of the built and natural environment to which this plan applies, and
      (b) to integrate heritage conservation into the planning and development control processes, and
      (c) to provide for public involvement in matters relating to the conservation of the City of Willoughby’s heritage, and
      (d) to ensure that new development does not adversely affect the heritage significance of heritage items and conservation areas and their settings, including streetscapes and landscapes and the distinctive character that these impart to the City’s heritage.
      and in the case of clause 57, for the erection of a building located in a heritage conservation area, consideration of the extent to which the proposed development would affect the heritage significance of the conservation area. In considering the application assessment as to whether:
      4(a) the patterns of building and open space, and of front and side setbacks, are consistent with those characteristic of the locality, and
      (b) the pitch and form of the roof and the size, shape and proportion of the openings for windows and doors complement or are consistent with those in the locality, and
      (c) the colour, texture, style, and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the locality, and
      (d) any stylistic, horticultural or archaeological features of the building or its site should be retained.

      In addition, assessment of the compatibility of the proposed development with:

      5(b) the heritage significance of the conservation area, including the character of the streetscape and the scale, setbacks and horticultural features of nearby existing buildings and works in the conservation area

      is required.

18 Willoughby Development Control Plan (the DCP) provides detailed controls for development of the site and is the development control plan referenced in clause 17(d) of the LEP. Section A.8 of the DCP provides guidance for the use of the plan and explains the layered approach adopted. Part C of the DCP applies to all development, Part D provides controls for particular development types, Part H applies where a proposal involves works to an identified heritage item or works within a heritage conservation area and within the vicinity of a heritage item and Part I applies to specific sites or areas. Accordingly, Parts C, D and H are relevant to the application. The DCP states that the heritage controls in Part H take precedence if there is any inconsistency with other controls within the plan.

19 Part C provisions relevant to the application are Section C.9-Landscaping.

20 Part D incorporates Specific Controls for Residential Development and identifies six residential localities, which are considered to have their own character, streetscape and landscape descriptions. Castlecrag is one of these localities and its character is described in part as being:

        The pattern of subdivision and residential streets south of Edinburgh Road follows the contours of the land and is a legacy of Walter Burley Griffin’s vision for a model residential garden suburb, designed to take full advantage of its topography and natural features. Roads are narrow and curvilinear, responding to the natural terrain with front boundaries following the curvature of the carriageway. A central portion of the Castlecrag peninsula is the Griffin Conservation Area. Development within this area must refer additionally to Part H of this Plan.

21 The Streetscape provisions in Part D give further details of the expectations for development within the area including:

        Due to the curvilinear nature of many of the streets, the front building alignment is variable, responding to the landform.
        The absence of kerb and guttering in many streets contributes to the almost semi-rural sense of houses sited in a bushland setting. Rocky street islands with native vegetation are a feature of the Griffin Conservation Area. The inland areas with a regular pattern of subdivision have moderately deep setback areas of informally landscaped gardens. Low masonry or palisade fencing, rockery or shrubs provide demarcation of the front boundary with the abutting grassed verges. In some areas, front fencing extends to 1500mm high but generally front fences are not dominant.
        In the peninsula area, the established older dwellings located on undulating terrain are designed to nestle amongst dense lush indigenous vegetation. Traditionally, dwellings on the low side of the street are not more than 1 storey above the roadway and do not obstruct views of dwellings located on the high side nor vistas of distant views from the roadway. The curvilinear residential streets following the topography of the land provide glimpses of waterviews and of the wooded hillsides and ridges beyond.
        Dwellings are generally stepped responding to the topography of the land. The residential character of the area is of generally low scale built form using predominantly masonry or natural stone materials, the siting of buildings within the landscape, and the dominance of vegetation on the site.

22 Further detail of the Landscape and Vegetation of the Castlecrag locality is provided which includes:

        An integral part of the internationally recognised Griffin Conservation Area is the Griffin Reserves occurring through the area which contribute to the character of natural environment prevailing over the built environment.

23 The Desired Future Character of the Area is detailed as involving the retention and enhancement of the qualities and characteristics of the Castlecrag garden suburb by:

        • Minimising the impact of the built environment by siting buildings sensitively, integrating the built form with the natural landscape, with the built form subservient to the landscape and the predominance of natural landscaped areas on the site;
        • Encouragement of a variety of building designs with the built form relating to the topography of the site by following the contours of the land;
        • Siting of the building to enhance amenity and privacy of the dwelling and of adjacent dwellings by using a variety of setbacks to create a varied rather than regular composition within the street;
        • Avoidance of dwelling heights which break the tree canopy of the ridgeline of the peninsula areas;
        • The predominance of a landscape of native vegetation and tree cover with informally landscaped private gardens merging into one another. There are minimal fences and walls, in particular addressing the street;
        • Use of stone edging, low retaining walls and rockeries and a variety of native and exotic ground covers to landscaped gardens;
        • Retention of significant trees and stands of significant natural vegetation. Planting of locally indigenous trees and dense vegetation, both within the site and to the street frontage, to maintain the natural landscape characteristics of the locality;
        • Avoiding loss of vegetation between and around dwellings to reduce the prominence of the built form when viewed from Middle Harbour and other vantages;
        • Avoidance of: imposing building forms with high wall facades, particularly in close proximity to the streetscape; high fencing to the street; or shallow setbacks having little ability to ameliorate the built form with dense planting and tall trees;
        • Minimising areas of driveways and paved surfaces at the street frontage. Avoid the use of unbroken double garages facing the street;
        • The siting and design of dwellings to minimise the obstruction of views from neighbouring dwellings and vistas from roadways or public open spaces by sensitive placement of dwellings on the low side of the street, provision of good setbacks from side boundaries, and consideration of overall height and roof pitch; and
        • Ensuring the preservation of remnant bushland and encouraging revegetation of foreshore properties to protect the visual amenity of the natural foreshore areas.

24 Further controls in the form of building height planes, height restrictions, character, design and streetscape provisions, design and siting requirements for private recreation facilities, which apply to the proposed pool, privacy and solar access are also found in the Part D provisions. In addition, special controls for development in the 2(a2) zone are included with assessment against the following performance criteria required:


        • whether the appearance of the development from the waterway, public vantage points, foreshores or bushland will not visually dominate the site or area due to its height or bulk;
        • whether the development integrates well with the form and features of the local topography and retains the important environmental qualities characteristic of the area;
        • whether drainage of the development will have an adverse effect on existing drainage patterns, cause erosion of the shoreline or degradation of the bushland;
        • whether the development will cause pollution or siltation of the waterway to affect the ecology of the waterway;
        • whether the amenity of the surrounding properties, such as views to foreshore, bushland and waterways will be maintained;
        • whether the affect on adjoining bushland including loss of natural vegetation, habitat and significant geological features, disruption of drainage patterns, alterations to water tables and bushfire hazard potential is acceptable;
        • whether significant trees, natural features of a site such as rock outcrops and native understorey are maintained; and
        • whether the disturbance of lands with topographic and geographical constraints is minimised.

25 Controls for Heritage Items and Heritage Conservation Areas are found in Part H of the DCP and aim to provide more detailed heritage provisions than are contained in the LEP. Relevant aims include:


      a) to guide future development within a framework of conservation;
      c) to ensure that the heritage significance, special streetscape and landscape character of Conservation Areas is maintained;
      e) to ensure that new development respects the context and is sympathetic in terms of form, scale, character, bulk, orientation and setback, fabric, colours and textures and does not mimic or adversely affect the significance of Heritage Items and Conservation Areas and their settings;
      f) to encourage a high quality of design for any new development in achieving compatibility with the heritage significance of individual Heritage Items and Conservation Areas;

26 In relation to the CA, the DCP controls state that the purpose is to conserve the basic principles for the area of which the most significant aspect is the subordination of buildings to the landscape. A description of how this is to be achieved is particularly relevant to this application and states:

        Within residential properties, the lack of front fences and separate garages retain the transition from street to reserve that Griffin intended by minimal building within the first 10m zone of the property. The intent was that the house was to exist in the bush landscape without the artificiality of property boundaries.
        Griffin’s main aims in designing the Estate were to get away from the traditional suburb with its rectangular grid street pattern, imposed upon the landscape without thought for topography, and to demonstrate that architecture could be subordinate to and harmonious with the landscape. To Griffin, architecture, the site planning, town planning and landscape design were inseparable. Any structure had to fit into the overall landscape of the area - being harmonious rather than obtrusive. He achieved this integration through his design philosophy - narrow winding roads following contours, linked open space networks, lack of fences, unobtrusive houses, retention of bushland in the reserves, walkways, nature strips and road islands. Roads are unobtrusive because of the proliferation of natural vegetation, their winding nature, the grass and bushland verges, the sandstone kerbs and narrow widths. All these aspects, the natural landforms of rock outcrops, cliffs, gullies etc. and the rock cuttings for the road and also the culverts are extremely important and of great significance in the Griffin Conservation Area.

        The form of houses proposed by Griffin was single storey, or in rare cases two storey buildings based on a series of projecting wings radiating from the central area and fireplace. The elevational treatment tended towards strong horizontals because of a design intention to integrate with the landscape. This is reinforced by the use of masonry blocks with strong horizontal window lintels and flat roofs. The finishes tended toward natural materials such as stone and the use of colours which reflect the bushland setting.

27 Management policies to be incorporated in development proposals include:

      • Retain and where possible reinstate the original subdivision pattern and linked system of public reserves and pedestrian pathways. Retain road islands, rock cuttings, sandstone retaining walls, kerb and guttering, grass road verges and bushland nature strips;
      • Maintain and where possible reinstate natural topography, landforms, the natural ecology/drainage ways and ponding areas, and vegetation types;
      • Permit new development which fits in with the original subdivision pattern, and which blends with and preserves as much as possible of the natural landscape, its remnant bushland and rocky terrain;
      • New development must carefully follow the contours of the land to minimise bulk, and cutting and infilling;
      • The height, scale, bulk, massing and proportion, site cover, location and visibility of new development must be such that:
        - built forms are subordinate to the natural landscape;
        - the spacing between buildings and rhythms of the streetscapes are retained, or opened up to create vistas of the natural landscape;
        - primary views from nearby and adjoining dwellings and public reserves, roadways, pathways and drainage reserves are not obstructed;
        - undercroft areas are not visually intrusive in the landscape when viewed from the water or the land;
        - buildings are highly articulated in plan and elevation; and
        - amenity of public reserves is maintained as public open space.
      • Materials and colours must blend inconspicuously with the predominant colours of the local bushland;
      • Significant heritage items including landscape must not be encroached upon;
      • Carparking, including garages is to be designed and sited to retain the unique character of the usually well vegetated narrow winding roadways and public open spaces;
      • No fences, screens or gates other than very low fencing (300mm in height) forward of the building line;
      • No fences or screens adjoining public reserves and pathways:
        - indigenous vegetation to be used to achieve privacy; and
        - where special security requirements can be demonstrated, fencing to a maximum of 1200mm may be permitted to be constructed of timber posts or metal frame posts with lightweight open mesh infill. Acceptable styles include arris rail or piped rail and diagonal mesh, horse wire or childproof weldmesh in unpainted galvanised finish. Where bushfire prone land is identified non-combustible materials must be used;
      • Locally indigenous vegetation is to be used for landscaped areas, including private open space adjoining Griffin walkways, reserves and public open space;

28 Finally, controls for future development in the CA relating to scale, setting/subdivision, form/massing and materials/details are provided. These require that the scale of new development should be low scale, so as to maintain and reinstate predominance of native landscape over built form. Buildings should generally be 1-1.5 storeys with a maximum of 2 and the scale and massing is to respect the Griffins’ objective to have all built forms subservient to the landscape. Minimum setbacks of 10m to public reserves is required, 3m to natural features and one side boundary. Landscaping is to be informal, with heavily landscaped front gardens dominated by indigenous shrubs and trees, to maintain, enhance and protect indigenous landscape, natural features, landforms and vegetation. Carparking is to be small scale, behind the building line where possible, 5m setback for carports and use lightweight open carports with absorbent ground surface materials rather than enclosed garages to reduce the impact of cars. Roofs are to be flat or low-pitched hip form and a maximum ridge height of 8m with the ground floor plane following contours of landforms. Maximum gross floor area and floor space ratio are determined depending on site area and for the purpose of Floor Space Ratio calculations, gross floor area shall include attached garages but not open carports.


      The issues

29 The matters of contention are:

        • Tree loss
        • The proposal has an unacceptable impact on the streetscape and the heritage significance of the Griffin CA.
        • The height, bulk and scale of the dwelling is excessive in the context of the subject site and the Griffin CA resulting in built form that is overbearing, dominant and out of character in the locality and will result in adverse impacts on the privacy and amenity of neighbouring properties.
        • The applicant’s objection lodged pursuant to the provisions of State Environmental Planning Policy No 1-Development Standards (SEPP1) is not well founded and fails to demonstrate that the exceedence of the two-storey height limit is reasonable or necessary in the circumstances.
        • The extent of excavation and the height of the proposed pool are excessive in the context of the adjoining sites and the Griffin CA.

      The site view and resident submissions

30 The hearing commenced on site where evidence was heard from Professor James Weirick on behalf of the Walter Burley Griffin Society (the Society), Mr Moffit, a resident of The Bulwark and also as a representative of the Castlecrag Progress Association Inc. (the Association), Mr Kirkwood, neighbour of the site and Ms Cairnes, resident of The Bulwark. The site view included an inspection, in the company of the parties to the proceedings and their experts, of the two neighbouring properties, a walk along The Bulwark in a northerly direction to The Bartizan, along the pathways and reserves that form the rear boundaries of the properties on the high side of The Bulwark to Embrasure Reserve which adjoins the site. We then walked along an access way to The Battlement and returned to the site passing along The Bastion. The range of housing types, landscape setting and vehicle accommodation was observed.

31 Access to the property immediately to the north was obtained and involved observation of the front portion of the site in the presence of the owner, Ms Hart. The proximity of the upper floor bedroom window to the proposed dwelling was noted together with the balcony of the dwelling and a further balcony attached to the dwelling further to the north.

32 In addition, an inspection of the main living level, rear sunroom, swimming pool, rear yard and front deck of the dwelling immediately to the south of the site was conducted in the company of the owners of that property and one of the owners, Mr Kirkwood addressed the Court. At the completion of the site view, I drove around the remainder of the Griffin Conservation area to further acquaint myself with the area and development within it.

33 Professor Weirick explained the efforts of the Society in having the area recognised as a CA and to incorporate further heritage provisions within the DCP. He advised that extensive consultation had occurred to ensure community support for the amendments made to the earlier 1995 DCP, which were now incorporated into the DCP. The Professor showed a drawing done by Marion Griffin which demonstrated the fundamental principle of built form being subservient to the landscape and expressed concerns in relation to the current proposal which he said does not comply with the DCP controls for the following reasons:

        • the building will be read as a four-storey building and exceeds the two-storey limit.
        • The site is highly visible at a bend in the road and si also seen from the reserve adjacent.
        • The proposed planter boxes will not reduce the visual bulk of the building.
        • Non-compliances to the gross floor area (46%), setbacks, height and that impact is apparent from the height poles erected which show the impact especially from the walkways.
        • Loss of substantial trees from the site, which have high landscape significance.
        • Privacy impacts to adjoining neighbours and overshadowing of No 97 The Bulwark.
        • The development is not subservient to the landscape setting and context of the CA.

34 Mr Moffit advised the Griffins were founding members of the Association, which is seeking to preserve the landscape and human form of Castlecrag for future generations. He was intimately involved in the development of planning controls for the area and reiterated the advice from Professor Weirick that much resident effort took place and that the main point of the controls is to maximise the subservience of buildings to landscape and it is this fact that makes the area different to other conservation areas. Mr Moffit is of the view that the proposal is in conflict with the controls, the site is sensitive and important to The Bulwark, Embrasure Reserve and the adjoining creek, would impact on neighbours and the adjoining public spaces. He considers the site has substantial limitations and that it is not suited to building such a large dwelling. The extent by which the floor space proposed exceeds the maximum gross floor area allowed for the site is, he says, equivalent to a three bedroom flat. He is also of the opinion that the building, whilst technically three storeys in part, will read as a four-storey building and is concerned that it is contrary to the height limits in the LEP and DCP, is non-compliant with the building height plane, and that such breach impacts on the neighbouring property causing overshadowing. With regard to the SEPP1 objection, Mr Moffit accepts that the constraints of the site may make it difficult to meet all the statutory limits but considered the exceedence excessive and would cause significant impacts. He is also concerned about the loss of trees from the site and considers that an amendment to the proposed driveway could enable retention of the trees.

35 Ms Cairnes spoke of three concerns, the size of the proposed dwelling, the three old growth trees impacted by the proposal and the planning controls that apply to the site. She is of the opinion that the building is too large, will look too large when viewed from The Bulwark and does not accord with the “subservience to landscape” principle. She considers the three trees, to which I will refer to in detail later in this judgment, have high landscape significance and are remnants of the original bush which concerns her due to the gradual loss of the old growth trees, saying they are irreplaceable and precious, particularly these which, due to their proximity to the creek, link the reserves in accordance with the Griffin philosophy. In conclusion, Ms Cairnes stated that she, like many others came to live in the area because the controls in place would ensure preservation of the area and was concerned that any development that was non-complying would slowly destroy the vision of the Griffins.

36 Ms Hart expressed concerns about the height of the building and in particular the privacy impacts associated with the proposed terrace areas due to proximity to the main bedroom window.

37 Mr Kirkwood was also concerned about the bulk of the building, overlooking and most importantly, the impact that the height of the building will cause to the enjoyment of their rear sunroom due to loss of afternoon sunlight.


      The trees.

38 During the site view, three trees, referred to as Trees 1, 2 and 3 on the site view and in expert arboriculture reports, but marked Trees 30, 27 and 28 on the landscape plan, Exhibit Q, were discussed in detail. Expert arboriculture evidence was provided by Mr Kingdom for the applicant and Mr Paroissien for the respondent. For the purpose of consistency with the reports, reference in this report will be to Trees 1, 2 and 3.

39 The plans considered by the Council and now before the Court showed Trees 1 and 2 to be removed. Tree 3, which is located on the property to the north of the site, is to be retained. During the site view, Mr Fraser, for the applicant stated that, having heard the views of the residents in relation to the importance of the trees, his client would attempt to retain all trees. This statement was considered beneficial to the residents present however most expressed concern as to whether this was physically possible given the extent of works and excavation proposed to facilitate construction of the driveway and turning area.

40 Tree 1 is a Corymbia gummifera or Red Bloodwood, approximately 18m in height with a canopy spread of 10x12 metres and is located at the front of the site. Tree 2 is an Angophora costata or Smooth-barked Apple/ Sydney Red Gum, approximately 14m in height with a canopy spread of 12 metres and is sited at the end of the narrower portion of the site. Tree 3, another Corymbia gummifera, is sited on the property immediately to the north of the site in close proximity to the common boundary and to the proposed garage and vehicle turning bay.

41 Both experts agree that Trees 1, 2 and 3 are of high landscape significance and, due to its very short safe useful life expectancy , Tree 1 is not worth of specific measures that would enable its retention. Tree 2 is considered worthy of retention on site and should be considered a priority as its loss will be heightened by the fact Tree 1 is not suitable for retention in the long term on the site however, redesign of the current proposal is required if tree 2 is to be retained. The experts did not agree on the extent of redesign that was required to accommodate the retention of Tree 2, Mr Kingdom taking the view that only the driveway was required to be redesigned however, due to the extent of excavation to be carried out, Mr Paroissien considered significant redesign of the proposal would be required.

42 After the lunch recess on Day 2 of the hearing, Mr Fraser advised that his client would no longer be proposing the retention of Tree 1 or 2 and accordingly, the details shown on Exhibit Q would form the basis of the Court’s assessment of landscaping works.

43 Discussion on which plans were to be relied on was then necessary and I then needed to determine whether the changes made to the plans before the Court were minor, in order that consideration as to whether the issue of costs, pursuant to Section 97B of the Act would apply. For the reasons given during the hearing, I did not consider the changes to be minor and accordingly, to avoid the costs issue, Mr Fraser advised that the applicant would not seek leave to amend the plans.

44 Tree 3, although not within the site, is located within the vicinity of the works and both experts agree that it will be potentially impacted by the works, in particular by the extent of excavation in close proximity which Mr Paroissien estimates as being to a depth of 3m within 1.7m of the tree. Both experts agree that root mapping is essential to clarify the extent of potential damage to structural or other roots from the tree however both took the view that it is likely the tree would be lost as a result of the works proposed. Such work has not been undertaken and accordingly, the Court cannot be satisfied that the tree can be retained if consent is granted to the development.

45 It was agreed that all trees on the site, except for a cluster of eleven Cyathea cooperi or Tree Ferns, would be removed. This grouping is located adjacent to the southern property boundary and would be adjacent to the proposed entry and in front of the bedroom wing of the dwelling. Height of these trees range from 4-11m.

46 The proposed landscape plan provides for the planting of ten Elaeocarpus eumundii or Eumundii Ash along the access driveway and vehicle turning area adjacent to northern boundary, two Acer palmatum or Japanese maples and two Banksia serrata or Saw Banksia in the vicinity of the tree fern cluster, one Corymbia maculata or Spotted Gum to the rear of the dwelling and four replacement Angophora costata in the area where the existing angophora, Tree 2, is to be removed. Other planting includes fruit trees, palms, grass trees and a range of native and exotic shrubs as well as three passionfruit climbers to be planted along the rear boundary to Embrasure Reserve and the northern boundary adjacent to the rear yard. Mr Fraser advised that his client would be prepared to supplement this plant schedule with more appropriate local species should consent be granted and urged this matter to be addressed by way of conditions.


      Heritage

47 Expert evidence in relation to heritage considerations was heard from Mr Phillips on behalf of the applicant and Ms Burke for the Council. It is clear from the extensive heritage provisions incorporated in the LEP and DCP that heritage considerations are paramount to the assessment of this application. Both experts agree that the most important aspect of this consideration is the subordination of the built form to the landscape.

48 Ms Burke does not consider the proposal is consistent with the planning controls or objectives for the area and stated that the impact of the dwelling is unacceptable as it is too close to boundaries, two of which are shared with Embrasure Reserve, will impact on The Bulwark, does not respond to the form of the site and presents a dominant form at the front which impacts on how it is perceived from the public domain.

49 Mr Phillips said that if the development was built you could still be able to walk around and see the curvilinear roads and walk through the reserves and the characteristics of natural landscape will remain. He states that the majority of development within the CA is post-war housing and whilst some adopt the Griffin architectural style, many do not reflect this and that the proposed dwelling would be similar to the other dwellings in the estate so the principle of subordination remains. He considers this is achieved through buildings being setback from front boundaries and behind trees so that the impression of streetscape is trees not buildings. He considers that the proposed development is subordinate, as it has to respond to reasonable access needs, and that by following the established building line taken from the adjoining dwellings, this has pushed the building back into the site. He considers that there is a measure of borrowed curtilage on every property in the area and that the subordination comes from the landscaping around it rather than the reliance on the landscaping of the site itself.

50 Ms Burke considers the subordination is articulated in the management policies of the DCP, which are detailed in paragraph 27 of this judgment. Whilst acknowledging that there are a number of houses within the CA that are large and not compliant with the council’s planning controls, she states that over time as sites are re-developed, the principles articulated within the LEP and DCP will be evident. She is of the opinion that the proposed development is too big, and accordingly, its bulk, height, size and scale is not subordinate to the landscape and the opportunity to respond to the landscape, its vegetation and landform has not been responded to.

51 The experts disagreed on how the Part H controls of the DCP should be applied and in particular the numerical controls detailed at pages H45 and H46 of the DCP. Mr Fraser put the view that these were controls to built form and could be varied on special circumstances of the site and having regard to the objectives. The aims of this part are included in paragraph 25 of this judgment and discussion focussed on issue ‘e’ which requires new development to respect the context and be sympathetic in terms of form, scale, character, bulk, orientation and setback, fabric, colours and textures whilst not mimicking or adversely affecting the significance of Heritage Items and conservation areas and their settings. Mr Phillips took a narrow view that this was most relevant to an assessment against the adjoining dwellings and houses in the area. He did however concede that the clause applies to all development within the meaning of the Environmental Planning and Assessment Act 1979 (the Act) and that as the site was in the heartland of the CA any development must not adversely affect the setting and significance of the CA. Ms Burke took the view that development must be taken in a broader context of the whole CA.

52 In relation to the height and bulk of the proposal, both experts agree that the development is three storeys. Ms Burke considers that the building will present as four storeys from the street and creates a building, which rises approximately 17m above The Bulwark, an overbearing built form with adverse impacts on its context. Mr Phillips considers that the landscape area between the garage and main dwelling will reduce the bulk of the building so as to give bulk and scale equivalence to other dwellings and garages in the general area.

53 The experts agree that the maximum gross floor area (GFA) allowed under the DCP is 260m2 and that the proposed GFA of 381.7m2 breaches this control by 121.4m2 or 46% and the proposed floor space ratio (FSR) of 0.544:1 exceed the maximum FSR control for the site of 0.371:1 by 46%. Mr Phillips considers these relate to planning issues and that the bulk and scale of the proposal will appear equivalent to neighbouring dwellings in a streetscape containing diverse built form due to topography and therefore not adversely impact on the Griffin CA however could be mitigated through additional landscaping. Ms Burke maintains that the FSR and height controls are essential measures managing bulk and scale and that the building, at four storeys, is too tall, too dominating and is not subservient to the CA landscape. She noted the unique shape of the site, which she considers is responsive to the terrain but does not consider the dwelling is appropriate. Both experts agree that the removal of trees will leave the building very exposed.

54 Ms Burke is critical of the design of the development and its failure to embrace the site topography and concludes that the proposal is excessive in its scale, bulk, height and unresponsiveness to its particular site topography and Castlecrag context. Mr Phillips states that given the strength of its arboreal setting and the ordinariness of the surrounding built environment, the proposal, with minor modifications, will nestle into the streetscape and ultimately have a negligible impact on the heritage significance of the Griffin CA and Embrasure Reserve. He concludes that Griffin’s precepts remain vigorously intact in the street and reserve layout, the tree canopy and the few built gems designed by Griffin and his associates.


      Planning issues

55 Expert evidence was heard from Mr Chapman for the applicant and Mr Sanders for the respondent. The experts agree that there is a portion of the building that exceeds the 2 storey development standard contained within the LEP, that the maximum allowed GFA and FSR controls are 260m2 and 0.37:1 respectively and that the proposed building encroaches the building height plane control. Mr Chapman considers the height variation to be minor and in harmony with adjoining dwellings with the height at the front elevation broken by the garage level separated by a landscape planter and the use of sandstone cladding, which he considers, is suitable in the conservation area. He also considers the 20m building setback to The Bulwark will mean the building is not visually dominant when viewed from the street. Mr Sanders disagrees and accepts that there are some 3 storey buildings on the high side of The Bulwark, however the predominant building form overall is 2 storey and in this context the building would have an uncharacteristic appearance with consequential adverse impacts when the property is viewed from the street.

56 The experts disagreed on the method of calculating the GFA of the building. Mr Chapman calculates the GFA as 322m2 and FSR as 0.46:1 and argues that the garage should be excluded from this calculation, as he does not consider it to be attached to the dwelling. If this area was deleted, the GFA would be reduced to 278m2 and FSR 0.39:1. He excluded the lift shaft, void, air conditioning plant room and counted the stairs at one level only. Mr Sanders calculates the GFA to be 382m2 and FSR 0.544:1 as he includes the voids, lift well, stairs and garage. I note that the LEP and DCP include the same definition of GFA and also note the specific inclusion of attached garages in the CA as part of the GFA and I agree with Mr Sander’s calculation. I cannot accept Mr Chapman’s view that the garage is not attached to the dwelling.

57 Mr Chapman considers the scale, setbacks and height of the building and pool to be compatible with surrounding development and not result in unreasonable privacy impact, overshadowing or view loss, is suitable for the capacity of the site and will not visually dominate from The Bulwark or Embrasure Reserve. Mr Sanders disagrees and considers the building would have adverse visual impacts, particularly from the road, reserve, pathway and No 93 The Bulwark, impacts on adjacent properties and the extent of excavation to accommodate the pool is excessive.

58 Both experts agreed that the proposal would satisfy the DCP requirements for solar access to the adjoining property. Mr Kirkwood had expressed his concerns in relation to the impacts of the proposal in relation to loss of sunlight to the sunroom at the rear of his dwelling. Whilst it was agreed that the room will receive the minimum 3 hours sunlight in winter, Mr Sanders stated that this was not satisfactory in the circumstances of the case and referred to the requirements of clause 13D of the LEP (refer to paragraph 14 of this judgment) and stated, that as the impact was due to non-compliant elements of the proposed development, alternate design alternatives should be explored which would mitigate the overshadowing impact as he did not consider that there were any special circumstances applying to the site or its context. Mr Chapman took the view that the steepness and access difficulties of the site were special circumstances and that numerical compliance was sufficient.

59 Both experts agree that if design amendments to the driveway were possible, the retention of the angophora, Tree 2, is a positive landscape outcome.


      The SEPP 1 objection

60 It is agreed between the parties that the development does not comply with the two storey height limit required by clause 18 of the LEP and that the extent of that variation is provided in a plan forming Annexure 2 to the Expert Report of Mr Chapman. It is also agreed that this control is a development standard for the purposes of SEPP1. An objection pursuant to the provisions of that policy was submitted to show why compliance with this standard is unreasonable and unnecessary in this instance.

61 Lloyd J in Winten Property Group North Sydney Council [2001] NSWLEC 46 provides a framework for the consideration of SEPP1 objections. The first step is to determine whether the control is a standard and this is agreed. The second is what is the underlying object or purpose of the standard? As there are no objectives included in the clause, the applicant defers to the general objectives of the zone however does not reference the specific objectives of the 2(a2) Zone. In addition, the DCP includes in Section D.2.4 Height controls and establishes the intent of those controls. Whilst the specific objectives and intent of the controls are similar, I consider that a more detailed analysis of the object and purpose of the standard is required than that undertaken and goes beyond that included in the SEPP1 objection as being “To retain and enhance residential amenity, including views, solar access, aural and visual privacy and landscape quality” and “To maintain the scale, character and streetscape of individual localities”. It also requires that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas are maintained by protecting the land from overdevelopment or visually intrusive development, by minimising the impact of hard surfaces on ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. The height provisions in the DCP have as the intent; to ensure new development is in harmony with the bulk and scale of surrounding buildings in the streetscape, it is of high visual quality when viewed from the street, waterways, public reserves or foreshores, minimises disruption of views and maintains reasonable solar access and minimises overshadowing of adjacent properties. I consider that the application fails to quantify the full extent of the objects and purpose of the height control.

62 Mr Chapman adopts the SEPP1 objection as lodged and Mr Phillips considers that there are other large-scale dwellings in the vicinity of the site and that in itself is sufficient to justify the variation to the height control. However both Mr Sanders and Ms Burke are of the view that the development does not satisfy the objects of the height controls and accordingly, the resultant bulk and scale of the development is inappropriate and also results in overshadowing of the adjoining property. This extent of impact is due to the breach of the height development standard. The proposal is to remove significant trees from the site, which will impact on the ecological characteristics of the locality. Accordingly, I am not satisfied that the objects of the standard are met.

63 The third step is to determine whether the development standard is consistent with the aims of the policy, the fourth is whether compliance with the standard is unnecessary or unreasonable in the circumstances of the case and the fifth is whether the objection is well founded.

64 Having considered all the evidence available to the Court, I am not satisfied that a variation in terms of SEPP 1 is justified in the circumstances of this case, as the objective and underlying objective, of minimising the impacts of new development so that it does not dominate the area and fits within the context of the locality is not achieved. I do not accept the argument of Mr Chapman and Mr Phillips that because there are some large dwellings in the area that this sets the character and streetscape. The most important principle in the conservation of the Griffin estate is that the built form is subservient to the landscape setting and the proposed development will dominate its site rather than respect its attributes.

65 Not only does the proposed development breach the height controls, the floor space of the dwelling significantly exceeds the maximum GFA and FSR controls for the site. Mr Chapman advised during the hearing that the design sought to provide all living areas on one level and to allow for at grade access to the open space area. Given the topography of the site, these desires may not be achievable, or at least, a smaller dwelling, which steps down the site to reflect the natural topography, would be needed to meet the planning objectives for the zone and the CA.

66 Therefore, on the basis of my assessment above, the SEPP1 objection in respect of the storeys development standard contained in clause 18 of the LEP is not allowed and the application must fail. For completeness I will deal with the other contentions.


      LEP and DCP objectives

67 There are a range of objectives and considerations in the LEP and DCP that relate to residential development in the 2(a2) zone and the Griffin CA. They consistently deal with the form that development is to follow and utilise terms such as the scale; future character being sensitive to environmental and planning constraints; maintain and enhance the amenity of residential areas; retain the character of urban conservation areas; retain heritage values; protecting the land from overdevelopment or visually intrusive development; consistent with those characteristics of the locality.

68 I agree with Ms Burke and Mr Sanders that the proposed development would not satisfy these objectives and cannot accept the proposition put by Mr Fraser that I am restricted to the immediately adjoining development when assessing the character of the area, its context or the locality. Whilst I accept that there are large buildings, buildings that are three storey in height and buildings that are visually prominent, I note that these are in the minority, would have been built prior to the making of the LEP and DCP and should not be used to justify further forms of inappropriate development.

69 The Griffin Conservation Area is at the crossroads in terms of whether it will retain its important character due to the age of the housing stock and therefore it is of utmost importance that the comprehensive objectives included in the council’s planning controls are given weight in the determination of applications.


      Building Height Plane

70 The parties agree that the development exceeds the building height plane provisions of Clause D.2.3 of the DCP to the extent detailed on the architectural plans provided in Exhibit A. The consequences of the non-compliance are similar to the height discussion and I note that it is possible to facilitate redesign of the development to achieve compliance thereby mitigating the impact of the development on the adjoining property and the streetscape.


      Floor area

71 Whilst there was disagreement on the calculation of GFA, the parties agree that the maximum allowed GFA is 260m2 and FSR is 0.37:1. From the information available to the court, it is clear that the GFA of the development is somewhere between Mr Chapman’s estimate of 322m2 and 0.46:1 and Mr Sander’s 382m2 and 0.544:1 and at the higher end of these calculations. Accordingly, the additional floor space proposed adds to the height and bulk of the development to such an extent that it fails the principle of being subordinate to the landscape setting. I agree that the development presents as a four-storey building, particularly in the area around the entry foyer and adjoining void, and the garage and levels above. I do not consider that the planter boxes proposed on the roof of the garage to be planted with Gardenia Florida will mitigate the visual impact of the development when viewed from The Bulwark, particularly given that Trees 1 and 2 would be removed. The dwelling is too big for the site.


      Solar access

72 It is agreed that the development meets the numerical requirements for three hours sunlight to the living rooms of the adjoining dwellings however, the impact of overshadowing on the adjacent property, No 97 The Bulwark is exacerbated by that portion of the building that exceeds the height and height plane controls contained within the DCP. I note the provisions of clause 13D of the LEP which require amenity consideration and in particular whether any design alternatives would mitigate the impacts. It is possible to redesign the development to meet the height controls and such amendments would improve the solar access available to the rear living and sunroom of the adjoining property.


      Landscaping

73 Adequate and appropriate landscaping is an important element for development of land in the 2(a2) zone and particularly within the CA. The removal of two trees, which are agreed to be visually significant, along with other vegetation from the site is a further detrimental aspect of the application and the landscaping proposed does not adequately compensate for the removal nor provide appropriate treatment to ensure the building would be subordinate to the landscape. The extent of driveway and vehicle turning area is excessive in terms of both hardstand area and excavation and further reduces the opportunity to integrate the building into the landscape and also threatens the viability of a tree on the adjoining land.

74 I find the landscape of the CA to be more than the creeks and reserves that surround the site, it must include the individual allotments and their landscape setting.


      Heritage setting

75 The Griffin Conservation Area is an area of high heritage significance and contains a number of individual heritage items. It is clear from the extensive planning controls that apply to the site and the clearly articulated statement of desired future character for the area that the community expectation is that development of the area will remain subservient to the landscape setting. I agree with Ms Burke that the proposed development is excessive in terms of its bulk, scale and height and does not reflect the planning controls for the CA.


      The pool

76 I do not consider that the height of the proposed pool, given its location and the topography of the site is unreasonable.


      Conclusions and findings

77 I find that the proposed objection to the development standard for height is not well founded, is inconsistent with the aims of the policy and would tend to hinder the attainment of the objective of the Act and accordingly, the proposal must fail. A merit assessment of the application has also shown that the application is not appropriate for the site in its context and that there are other design alternatives for the site which would meet the planning controls and resolve amenity impacts with adjoining neighbours.

78 The planning principles for the Griffin Conservation Area must be upheld to ensure that the importance of this area is not lost to large scale, non-sympathetic forms of development that do not respect the natural environment and landscape setting.


      Orders

79 The orders of the Court are:

        1. The appeal is dismissed
        2. DA No DA-2009/46 for the demolition of an existing dwelling removal of trees and the construction of a new dwelling, pool and driveway at No. 95 The Bulwark, Castlecrag is refused.
        3. The exhibits are returned.
      Sue Morris
      Commissioner of the Court
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Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46