Mayer v Woollahra Municipal Council - [2011] NSWLEC 1256

Land and Environment Court

New South Wales

Medium Neutral Citation: Mayer v Woollahra Municipal Council [2011] NSWLEC 1256
Hearing dates: 4 & 5 August 2011
Decision date: 31 August 2011
Jurisdiction: Class 1
Before: Morris C
Decision:
(1)The appeal is upheld in part.
(2)Development consent is granted to Development Application No. DA 171/2010 for the demolition of an existing dwelling-house and swimming pool and the construction of a new part two, part three storey dwelling house, swimming pool with associated carparking, driveway, site works and landscaping at No. 10 Queens Avenue, Vaucluse subject to the conditions in Annexure A.
(3)The exhibits, other than exhibit B, are returned.

Catchwords: DEVELOPMENT APPLICATION; Dwelling house; height; impact on views
Legislation Cited: Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995
Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Pafburn v North Sydney Council [2005] NSWLEC 444
Texts Cited: Woollahra Residential Development Control Plan 2003
Category: Principal judgment
Parties:
Karl and Tanya Mayer (Applicants)
Woollahra Municipal Council (Respondent)
Representation:
Counsel
Mr I Hemmings (Applicant)
Solicitors
Susan Hill & Associates Lawyers Pty Ltd (Applicant)
Ms M Hawley
Lindsay Taylor Lawyers (Respondent)

File Number(s): 10439 of 2011

Judgment

This is an appeal pursuant to the provisions of s34AA(2)(b)(i) of the Land and Environment Court Act 1979 against the refusal by Woollahra Council (the council) of Development Application No. DA 171/2010 (the application) which proposed the demolition of an existing dwelling-house and swimming pool and the construction of a new part two, part three storey dwelling house, swimming pool with associated carparking, driveway, site works and landscaping at No. 10 Queens Avenue, Vaucluse (the site).

Despite some genuine attempts from the applicant to resolve issues during the conciliation phase of the hearing, the parties could not reach an agreement and accordingly agreed to terminate the conciliation and proceed to hearing.

The contentions in the matter are whether the development complies with the council's planning controls and whether the impacts of the development on neighbouring properties are appropriate in terms of view loss, bulk and scale, overlooking and overshadowing.

The site and its context

The site is located on the northern side of Queens Avenue and is an L-shaped allotment with the front or southern boundary having dimensions of 12.19m, the rear (northern boundary) 26.15m, western side boundary 41.75m and the stepped eastern boundary 25.23m and 25.53m in length respectively. Site area is 813.6sqm.

The site slopes east to west and has been modified to accommodate the existing two storey dwelling house that is located to the rear to take advantage of the substantial views of Sydney Harbour including views to the CBD, Harbour Bridge and North Shore and more local harbour views. The parties agree that the views obtained from the site are iconic views.

The subdivision pattern of the locality is irregular and appears to reflect the topography whilst providing opportunities for view sharing. Similarly, dwellings have been located on individual sites to optimise the available harbour views.

Development in the vicinity of the site comprises large, two and three level detached dwelling houses. Due to the irregular shape of the site it shares boundaries with five properties and all of these properties currently enjoy substantial views of Sydney Harbour.

The existing dwelling house was originally constructed in 1955 and a swimming pool added at some later stage. The dwelling is irregular in shape and follows the rear, angled boundary to take advantage of the harbour views. It has a hipped tile roof and is set back from the roadway with a long driveway providing access to the lower level garage area. A curved staircase provides access from that driveway up to the main entry and living level.

Background and the proposal

The application proposes the demolition of all existing site improvements and the construction of a new one, two and three storey dwelling house with associated swimming pool, site landscaping and driveway.

The applicant has lodged a series of plans to the council, with a number of amendments being made since the application was originally lodged with the council on 21 April 2010 in an attempt to address issues raised by the council in response to its notification of the application and objections received.

The plans now before the Court are amendment C plans (Exhibit C) and provide for the dwelling to be generally located in the same location as the existing building however it is more regular in shape, being an L-shaped building with walls parallel to the side boundaries. It would be erected further from Queens Avenue (by approximately 2m) on an alignment of around 27m and from the western and rear eastern property boundaries, those distances varying due to the irregular shape of the current dwelling and the boundary orientation.

The single storey element of the dwelling is sited in the north-eastern corner of the site and extends closer and to within 2.962m of the northern boundary at ground level. That area contains a family and dining area and large west-facing deck. That deck extends across the northern face of the remaining ground floor area, which contains the main entry and living areas, kitchen and laundry. A two-car garage, pool plant room, guest room and ensuite are proposed on the lower level at the western end of the dwelling. This area extends to within 900mm of the rear boundary in that area below the proposed swimming pool. The upper floor occupies the area above the living area and extends above the ground floor deck. This area provides bedrooms, bathrooms and a study.

The proposed dwelling has a total floor area, according to the council, of 442.5sqm, building footprint of 290sqm or 35.6% of the site area, floor space ratio (FSR) of 0.54:1, deep soil landscaped area of 285sqm or 54% and maximum height of 9.1m.

Boundary setbacks are as follows:

Rear (north)

Basement 0.8m

Ground Floor 2.9m

First Floor 6.0m

Side (west)

Basement 1.5m-6.4m

Ground Floor 2.5m

First Floor 2.5m

Side (south)

Basement 1.2m

Ground Floor 1.2m-1.996m

First Floor 1.2m

Side (east)

Basement N/A

Ground Floor 2.03m-3.23m

First Floor 2.8m-2.9m

A development consent, granted in 1998 which authorised alterations and additions to the existing dwelling house, applies to the land and it is agreed that the works authorised by this consent have commenced. The effect of that consent is to increase the height of the existing building by the addition of an additional storey across the centre of the building at the southern face. The height of that work exceeds both the height of the existing and proposed dwellings and has significant, though different, impacts on views from adjoining properties across the site.

The council considered the application on two occasions and ultimately refused consent, contrary to its staffs' recommendation on 31 May, 2011 for a number of reasons, including non-compliance with the provisions of the Woollahra Residential Development Control Plan (RDCP). The specific reasons for refusal are:

Non-compliance with the rear setback control RDCP C.5.2.3 which results in unacceptable impacts to neighbouring properties;
Non-compliance with Part 5.5 (Views) of the RDCP;
Non-compliance with side setback control on the eastern 1 st floor level together with unarticulated wall resulting in an unacceptable sense of enclosure to neighbouring property;
A more skilful design including a reduction to the building height to retain the interface harbour views from neighbouring properties;
Sense of enclosure for 8 Queens Avenue, Vaucluse; and
Sense of enclosure for 18 Vaucluse Road.

The planning controls

The site is zoned Residential 2(a) pursuant to the provisions of the Woollahra Local Environmental Plan 1995 (the LEP). The objectives of the zone are:

(a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses,

(b) to allow certain non-residential development of low intensity which is compatible with the residential character and amenity of the locality,

(c) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and

(d) to protect the environmental attributes of the coastal and foreshore lands.

Pursuant to the provisions of clause 8(5) of the LEP, the consent authority shall not grant consent to the carrying out of development on land to which the LEP applies unless it is of the opinion that the carrying out of the development is consistent with the objectives of the zone.

Dwelling houses are permitted with consent in the 2(a) zone. Clause 12 of the LEP refers to a height map and the maximum height of buildings that can be erected on the site according to the relevant map is 9.5m. For the purposes of the LEP, the following definitions apply:

height , in relation to a building, means the greatest distance measured vertically from any point on the building to the existing ground level immediately below that point. existing ground level means the surveyed level of the ground surface immediately prior to the proposed development and prior to any associated excavation, development or site works.

Clause 12AA provides the objectives of the height development standard which are:

(a) 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,

(b) to provide compatibility with the adjoining residential neighbourhood,

(c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings,

(d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing,

(e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscape

The proposal satisfies this development standard however the council argue the application does not satisfy the objectives of the standard or those of the 2(a) zone.

Woollahra Residential Development Control Plan 2003 (the RDCP) applies to the site.

The RDCP includes precinct and general controls and the site is located within the Vaucluse West Precinct (the precinct). The desired future character objectives for the precinct are:

To retain the scenic qualities provide by the dramatic topography, natural vegetation and low scale built elements that provide an attractive setting on Sydney Harbour;

To reinforce the precinct's landscape setting by minimising alterations to the landform and preserving the existing tree canopy;

To maintain mature street trees, grassed verges and garden plantings;

To protect important views from the public spaces of the precinct to the harbour, the city skyline and to the surrounding districts;

To maintain the evolution of low rise residential building styles through the introduction of good contemporary buildings.

There are a number of specific controls that apply to development within the precinct and those relevant to the contentions in this case are side boundary setback, building height (storeys), deep soil landscaped area and roof form. The control for s ide boundary setbacks is:

Where the site lot width is equal to or exceeds 18.0m at the front alignment, development has a minimum side boundary setback of 2.5m. This side setback is increased on a pro rata basis by 0.5m for each metre or part thereof that the building height adjacent to the boundary exceeds 5.5m.

For storeys, the control states:

Development is to have a maximum height of two storeys.

Where the landform of a site falls more than two metres

from the street to the rear of the property an additional

basement storey may be permitted providing that all other

RDCP controls are met.

(Note: The maximum height of development - in metres - is

determined by the height controls in Woollahra LEP 1995.)

C 4.13.5.8 requires:

Roof forms are to be designed having consideration for neighbouring amenity, overlooking, streetscape suitability and to maintain views across the precinct.

In addition to the precinct controls, Part 5 of the RDCP contains general controls. Those relevant to the application are setbacks and views.

The purpose of the setback controls are to:

relate new development to existing boundary lines along the frontage;

protect the visual and aural privacy of residents in adjoining buildings;

provide side access to the rear of properties where rear lanes do not occur;

avoid buildings or parts of buildings encroaching on adjoining properties;

enable opportunities for screen planting;

protect significant vegetation;

avoid an unreasonable sense of enclosure; and

safeguard privacy and minimise noise impacts for dwellings.

and the objectives of the control are:

To preserve established tree and vegetation networks and promote new networks by ensuring sufficient areas for deep soil planting and sufficient setbacks between the rear of buildings.

To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents.

To ensure the form and scale of development is not excessive and maintains the continuity of building forms and front setbacks in the street.

To limit site excavation and minimise cut and fill to ensure that building form relates to the topography and to protect the amenity of adjoining properties both during and after construction.

Buildings are to have a minimum rear setback of 25% of the average site length. Habitable rooms must achieve a minimum floor-to-ceiling height of 2.7m. In the following circumstances a lower height may be acceptable or preferred:

development is within a roof space (other than for mansard roof forms) and the environmental quality of internal living spaces is not adversely impacted;

it can be demonstrated that a reduced floor to ceiling height will provide measurable benefits for neighbouring amenity and the environmental quality of internal living spaces is not adversely impacted.

Sunlight is to be provided to at least 50% (or 35m2 with minimum dimension 2.5m, whichever is smaller) of the main ground level private open space of adjacent properties for a minimum of two hours between 9am and 3pm on June 21. Where existing overshadowing is greater than this, sunlight is not further reduced.

Section 5.5 addresses views and includes a comment:

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.

The objectives of the clause are:

To protect and enhance opportunities for vistas and views from streets and other public places.

To encourage view sharing as a means of ensuring equitable access to views from dwellings.

To protect and enhance existing views and vistas from streets and other public spaces.

To provide additional views and vistas from streets and other public spaces where opportunities arise.

and the performance criteria is:

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.

The issues

The contentions in the case are whether the development:

is consistent with the objectives of the zone and the council's planning controls, in particular those which relate to height, number of storeys and setbacks from boundaries;
has unacceptable impacts on views currently experienced from neighbouring properties, particularly Nos 18 and 20 Vaucluse Road;
will create an unacceptable sense of enclosure and visual massing on neighbouring properties a No 8 Queens Avenue and Nos 18 and 20 Vaucluse Road;
will have unacceptable impacts on the visual privacy of neighbouring properties at 8 Queens Road and Nos 18 and 20 Vaucluse Road;
will have unacceptable overshadowing impacts on the neighbouring properties at 18 and 20 Vaucluse Road.

The council did not press the contention of whether sufficient information was available.

The evidence

Evidence was heard on site and the Court and the parties conducted an extensive inspection of adjacent properties in order to understand the impacts of the proposed development, particularly in relation to view loss and wall to boundary setbacks, from the three objectors' dwellings, Nos 18 and 20 Vaucluse Road and No 8 Queens Road. For ease of reference, I will refer to these properties as No 18, No 20 and No 8 respectively.

This view was assisted by height poles that had been erected at the site. The location of the proposed dwelling was observed from all living and main bedroom areas of the Vaucluse Road properties and from the yard area of those dwellings. No inspection of the interior of No 8 was undertaken as the complaint lodged in relation to the impacts of that dwelling concerned the use of the rear yard area.

The issues raised by the residents of No 18 and No 20 to the west of the site, related to view loss and a concern that the walls of the proposed dwelling would create a sense of enclosure and were too large and too close to the boundaries. Overshadowing and privacy impacts were also raised.

The owner of No 8 was concerned about the massing of the building, its proximity to the side boundary and particularly the size of the upper level, main bedroom window which he said would result in excessive overlooking of the rear yard of his property and adversely affect the privacy of that property.

The view also took into consideration recent consents granted by the council in relation to a new dwelling currently under construction at No 20Aand B Vaucluse Road (to the north of the site and to the side and adjoining No 20) and alterations and additions approved for the property No 18.

The council sought leave to call evidence from an urban designer in addition to providing town planning evidence. Sheahan J made directions on 27 June 2011 as follows:

The evidence of the urban design experts shall be confined to Contention 1.3 of the Statement of Facts and Contentions. This evidence shall be limited to the question of whether, for the purposes of the 4 th step in the principles of view sharing as set out in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, a more skilful design could provide the applicants with the same development potential and amenity and reduce the impact on the views of neighbours at 18 and 20 Vaucluse Road.

Expert town planning evidence was provided by Ms Francis for the council and Mr Moody for the applicant and urban design evidence by Ms Morrish for the applicant and Mr Vickas for the council.

The planning experts agree that the issues in the case relate to amenity and that these can be categorised into the issue of view loss, sense of enclosure and visual massing, privacy, solar access and shadows, and have structured their report accordingly. The joint report by the urban design experts has only addressed the fourth step of Tenacity however, during the hearing, broader evidence was provided by them.

View loss

All experts agree that the views available from the site and the three adjacent sites referred to in the council's contentions are iconic and include views of the Sydney CBD skyline, Opera House, Harbour Bridge, North Shore and panoramic harbour views. The extent of those views varies at each property and within individual rooms of those properties.

The town planning experts have considered the impacts of the application on each adjacent property individually and agree that there is no unreasonable view loss from No 8.

With regard to No 18 they agree that there is no unreasonable view loss from the ground floor, that the primary views, directly to the west, will be retained, that the view loss from No 18 is across one side boundary where the proposed development complies with the council's height control and that any consent granted should include a condition that limits the height of any landscaping within the access corridor of the site to a height that does not obstruct the primary views from No 18. Ms Francis considers that an alternate design may reduce the view loss experienced to No 18 and Mr Moody considers because of the areas of agreement, an alternate design is not necessary.

There is agreement between the planners that there is no unreasonable view loss to the lower ground level of No 20 and that that dwelling currently enjoys panoramic views from 2 levels, being the ground and first floor levels. That view is enjoyed from a number of internal areas as well as balconies. They agree that the view loss from part of the ground floor level of No 20 is as a result of part of the proposed eastern and western wall of the family room projecting into the rear (northern) setback zone and the height of the family room extension however they also agree that strict compliance with that control is not necessary in the circumstance but disagree as to the extent of the required rear setback.

Both planners acknowledge that there will be a gain of the Harbour Bridge, CBD skyline and water from part of the ground floor living room from a standing position. That is described as a "good outcome" by Ms Francis and "an excellent outcome" by Mr Moody. Both agreed that is was very unusual for a development proposal to result in an adjoining property gaining views of such iconic elements.

Whilst there is view gain to parts of the ground floor, the town planners agree that CBD skyline and land/water interface including views of Clark Island would be lost from part of the first floor level living/sitting room. Both agree that the height of the building, which, as it addresses No 20, is considerably less than the height plane contemplated by the council's planning controls. Ms Francis says that the view issue is in relation to the setbacks from the rear boundary. Mr Moody considers the setbacks to be appropriate, particularly when considered in relation to the location of the existing building.

Ms Francis says that it is not appropriate to consider the provision of a view of the Harbour Bridge from the ground floor living room in isolation and that it is important to consider the context of the view enjoyed from the property as a whole and carries out a comprehensive assessment of the impacts of the proposed dwelling on views available from No 20. She concludes that there may be alternate locations where the bulk, mass and height of the building could be located to mitigate view loss and where views can also be achieved for the site however defers to the urban design experts to assess whether a more skilful design would achieve an improved outcome in terms of view loss.

Mr Moody conducted a similar assessment of the impacts of the application from individual rooms within No 20 and the outdoor spaces of that residence and concluded that the application represents a sensitive and skilful response to the principal of "reasonable sharing of views".

The urban designers, in accordance with the Court's earlier directions, undertook an analysis of various design options to determine whether a more skilful design could provide the applicants with the same development potential and amenity and reduce the impact on views from neighbours.

The series of drawings prepared by each expert together with the photomontages tendered in the proceedings provided the Court with a detailed understanding of the impacts of the application.

The experts agree that there is no apparent alternative solution or superior design concept that can achieve for the applicants all of the access to views and design amenity they seek while at the same time protecting all existing views for the two affected adjoining properties, and correctly, they say, that such an outcome is not the purpose of the exercise they have been set.

In considering the exercise, they identified two primary design strategies that could result in an amended design that achieves a more acceptable balance of view sharing and amenity outcomes for both the applicants and objectors however they do not agree as to the extent to which the principles should be applied or whether other strategies are also available or should be applied.

The first and primary strategy involved reducing the height of the two-storey portion of the proposed development. Both experts agree that he ground floor of the dwelling could be reduced by 115mm. The second proposed shifting the entire building in a generally southerly direction to between 600mm and 900mm of the east/west boundary, i.e. the boundary adjoining the swimming pool area of No 18.

Ms Morrish explored a series of options addressing both including the most significant proposal to reduce the building height by 575mm whilst also considering a number of interim measures. She says that the reduced height would reduce view loss to No 20 and have the side benefit of reducing the extent of built form that impact on the view from No 18. In relation to the shifting of the building to the south, she considers that this would maintain almost the entirety of the existing view enjoyed from the ground level of No 20 and still allows the same amenity to the site. This option however did not consider the impacts of such a proposal on the views of No 18.

Mr Vickas considered three options, each of which involved a reduction in height of the two-storey component of the proposed dwelling. These ranged from 1.23m to 265mm. In addition, he considered a third strategy, which involved both the shifting of the building to the south and also increasing the setback of the single storey component. He says that this would ensure that the ground floor dining room and terrace of No20 would retain views of the Opera House and adjoining CBD, along with the sitting room that would retain views to the northwest without unduly impinging on the proposed development.

The above considerations are the findings of the work undertaken by the urban design experts in accordance with the Court's direction to only address the 4 th test in Tenacity. When asked to consider the impacts of the proposal more holistically, Ms Morrish said that she considers the view impacts resulting from the plans before the Court are reasonable and that the changes recommended in the report are unnecessary. That is because the primary impact has been caused by that portion of the development that is compliant with the council's height control and she has considered the other development consent that applies to the site which is operative and, in her opinion, significantly affects the views.

Mr Vickas takes the contrary view and says the impact on views is unreasonable however also said that a proposal that gave back views could be considered more equitable, particularly if those views were to the Opera House or Harbour Bridge. He also acknowledged that he had misinterpreted the location of a screen wall on the upper level and that allowing for its correct location, the impact on view loss would not be as severe however, he says that, as the application does not comply fully with the council's controls, the impacts on view loss could not be considered appropriate.

Sense of enclosure and visual massing.

Ms Francis described this contention as "Presence in One's Space" and that the 'presence' of the proposal into the private open space of No 8 Queens Avenue is caused by the reduced setbacks and extent of glazing on the western elevation of the master bedroom which she says causes a significant sense of intrusion into No 8. She suggests a number of alternatives to address the situation that include the deletion of the non-trafficable roof off the master bedroom, reduce the amount of glazing to the bedroom or raise the sill height and locate fixed external louvres on the outside of the reduced bedroom window area. Similar concerns are expressed in relation to No 18 and Ms Francis recommends the first floor component of the building being setback in compliance with the council's controls whereas, she says that the failure to comply with the setbacks to the eastern, southern and northern boundaries, together with the existence of the development under construction at No 20A would close off the sense of openness currently enjoyed by No 20.

Mr Moody considers there is no unreasonable sense of enclosure or visual massing on any adjoining property and says that the height, bulk and scale of the proposed development is consistent with the character of the area. Whilst he acknowledges that there is a breach of the setback control along the western elevation he considers this to be reasonable.

The urban design experts agree that strict compliance with all numerical components of the applicable development standards and controls is not necessarily justified or required to satisfy the overriding and predominating performance objectives associated with the numerical requirements. They say that in a number of cases, particularly in relation to setbacks and envelope controls, the nominal demands of the numerical standards and controls are evidently unreasonably onerous for all parties, and accordingly need to be interpreted and applied on a site and context specific basis that achieves the best possible performance outcomes and reasonable balance of relative rights.

Mr Vikas says, in the case of setbacks, the scheme should be allowed to go under the indicated minima and in other cases, such as building height and envelope controls, the scheme needs to be restricted to below the notional maxima.

Privacy

The town planning experts consider the potential privacy impacts to four adjoining properties, Nos 20A, 20, 18 and 8 and conclude that there is no unreasonable loss of privacy to No 20A, that with the use of obscure glass to the windows in the eastern elevation will address the impact to No 20 however Ms Francis says those windows should also be fixed. Mr Moody does not consider this to be necessary.

In relation to No 18 both experts agree that there is no unreasonable overlooking from the proposed ground floor level however, the bedroom windows on the first floor on the southern elevation were considered to require some form of treatment to ensure compliance with the council's DCP controls. Ms Francis said that the elevation should be setback to comply with the council's controls and in addition, the proposed external venetians deleted and replaced with fixed louvres.

During the hearing, the applicant proposed the application of a propriety product to those windows. That product, known as Lumisty , is a polarised film that can control the view plane available through the window. Views can be controlled to those available directly ahead and not allow downward views. A range of options to address other view lines such as side views is also available. The parties agreed that in this case, the application of the film would be appropriate to address the privacy issue towards No 18 as the area of concern was the pool and private open space areas which were lower than the floor level of the bedrooms.

The planning experts agree that there is no unacceptable privacy loss from the proposed ground floor living rooms level towards No 8. Ms Francis raises a concern relating to the western bedroom window and associated ledge as detailed in the previous issue. She says the window should be pulled back towards the south and/or the sill height raised. In addition, she says the venetians that are proposed can be raised, so should be replaced with fixed external louvres. Mr Moody considers that there are no unreasonable overlooking impacts as the principal rear private open space of No 8 is more than 9m from the window (being the recommended setback under the RDCP), the internal courtyard is more than 13m from this window, there are "distracting views" which will diminish overlooking and, whilst recognising the RDCP consideration, says bedrooms generally pose a reduced degree of overlooking than primary living spaces.

Solar access and shadows

The planning experts agree that the proposed development has minimal impact on the overshadowing of adjoining properties. Ms Francis says that an alternate design, satisfying the setback controls would be likely to improve the shadows cast on No 18 and No 20. Mr Moody says that the design provides reasonable retention of solar access to adjoining properties and notes that the proposed height complies with the council's 9.5m control and the height of the proposed dwelling, where it adjoins properties to the east and south, is significantly lower. He considers the overshadowing to No 18 and 20 to be minor and to No 8, very minor, only occurring in part of the morning. It was agreed that the development satisfies the minimum requirements of the RDCP.

Conclusions and findings

The evidence before me provides a range of opinions as to the extent of impact of the dwelling proposed by the application and the reasonableness of that impact. The objectors are seeking to maintain the views they currently enjoy from their properties and ensure that any new building does not reduce their amenity. The applicant is seeking to take advantage of the views available from the site.

In determining the application, I have regard to the aims and objectives of the LEP and DCP and the planning principles of Tenacity and note that the RDCP provides some guidance as to what the council consider to be view sharing and that is the "equitable distribution of views between properties". The controls "seek to strike a balance between facilitating new development, while preserving, as far as practicable, access to views from surrounding properties." It does not however, go to what is "equitable" or "practicable". Similarly, the unusual circumstances of this application where an iconic view is opened also comes into the consideration and therefore, it is necessary to determine whether the gaining of views can, in any way, compensate for loss of views.

The assessment of the impact of the development is also guided by the themes outlined in Pafburn v North Sydney Council [2005] NSWLEC 444.

It is agreed that the primary contribution to view loss is due to the height of the building, that the height is compliant with the council's control and the proposed height is less than the existing dwelling. The two-storey control is not met in the north-western corner of the site however that fact does not affect view lines. The evidence of the urban design experts suggest the shifting of the building in a southerly direction and whilst this would open up the views available to No 20, it would result in loss of amenity to No 18 and also increase the extent of non-compliance with side boundary setbacks. The council had agreed that total compliance with the rear boundary setback was not appropriate due to the location of the existing dwelling and the fact that the portion of the proposed dwelling within this area is single storey.

It is necessary to consider the impacts of the application on both No 18 and No 20 separately but in accordance with the planning principles of Tenacity and Pafburn.

The impact of the application to No 18 is the reduction in views towards the north-west across the side property boundary from the first floor bedroom areas. There would be no interruption of views across the rear boundary of No 18 to the CBD skyline, Opera House or Harbour Bridge. That view lost would be the land/water interface towards Chowder Bay and Middle Head, which is part of the whole view enjoyed from No 18. The impact is from that part of the proposed building that is compliant with the height and storey controls, but contrary to the side boundary setback control however, it was agreed that compliance with that setback would not improve the view loss, the only remedy would be to reduce the building height.

All experts agreed that the views currently enjoyed from No 20 are panoramic and iconic and a whole view which takes in the land/water interface from the Sydney CBD, including the Opera House, Harbour Bridge, North Sydney CBD skyline and North Shore to Middle Head. Both Clarke and Shark Islands are visible. Those views are currently available from a sitting and standing position from the upper level living room and terrace and from sitting and standing positions in the northern portion of the ground floor area. The existing pitched roof obscures some of the view towards the Harbour Bridge and Opera House from some of the rooms at the ground floor level and it is this view that would be opened up if the development were approved.

It is agreed that it is not appropriate to assess the individual impact of view loss/gain to each room. What I must assess is how reasonable/necessary is the proposal causing the impact, whether it arises out of poor design and if the same amount of amenity and floor space could be achieved while reducing the impact on neighbours when considering the impact as a whole.

The impact to No 8 is not view related, it is due to the height of the proposed building and the size of the window in the western wall of the main bedroom. A range of options has been proposed which could reduce that impact.

Having considered all of the competing evidence provided, it is apparent that the impacts to neighbours are not from poor design. It is clear to me that the suggested shifting of the building would have adverse impacts on No 18 and is therefore not an acceptable solution. Nor is it reasonable to reduce the floor area of the proposed dwelling by increasing the rear boundary setback. It is in this area that the building is single storey and this fact provides views of the Opera House and Harbour Bridge not currently available in parts of No 20. The resultant impact to the property would be an improvement to that which currently exists from the location of the existing living room windows and balcony area.

The gaining of that view however does not offset the loss of views and therefore I find that it is appropriate to reduce the height of the building and that the most appropriate option put forward by the experts would be to reduce the height by 575mm. That would retain views of the CBD from No 20 and have the consequence of improving views from No 18 in the north-westerly direction across the side boundary. The deletion of the inaccessible overhang adjacent to the main bedroom and hallway would also improve those vistas.

I do not consider there is any benefit of increasing side boundary setbacks if the height of the building is reduced and note that No 20 is required by a condition of consent issued by this Court to provide a landscaped screen along that part of the boundary where proximity of the wall is seen to be an issue to the owners of that property. Such planting would mitigate the impact of that wall and have no impact on current views. Similarly, existing landscaping at No 18 screens the current building and would perform the same function to the proposed building where the walls come closer to that side boundary. I note that the application satisfies the relevant controls relating to solar access.

I consider that the size of the proposed western window to the main bedroom is excessive and agree that it results in unsatisfactory overlooking of No 8 and therefore, it should be reduced in length and the sill level raised to 1m from floor level. I do however note the separation that exists between the window and area of open space and for this reason do not agree with Ms Francis that the window should be screened as she proposed. The proposed window treatment to the bedroom windows in the southern and eastern elevations are agreed to address the overlooking concerns to No 18.

By the reduction in height of the proposed dwelling by 575mm I consider that the objectives of the council's planning controls are met, and in particular, objectives of the ALEP and the view sharing objectives of the RDCP are satisfied. The council has suggested a number of conditions, which have the effect of requiring further amendments to the building, particularly in relation to the provision of an increased setback to the northern boundary. I do not support all of those conditions and have amended them accordingly to reflect my findings.

Orders

The Orders of the Court are:

(1) The appeal is upheld in part.

(2) Development consent is granted to Development Application No. DA 171/2010 for the demolition of an existing dwelling-house and swimming pool and the construction of a new part two, part three storey dwelling house, swimming pool with associated carparking, driveway, site works and landscaping at No. 10 Queens Avenue, Vaucluse subject to the conditions in Annexure A.

(3) The exhibits, other than exhibit B, are returned.

Sue Morris

Commissioner of the Court

Decision last updated: 01 September 2011

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Citations

Mayer v Woollahra Municipal Council [2011] NSWLEC 1256

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Pafburn v North Sydney Council [2005] NSWLEC 444

Medium Neutral Citation:	Mayer v Woollahra Municipal Council [2011] NSWLEC 1256
Hearing dates:	4 & 5 August 2011
Decision date:	31 August 2011
Jurisdiction:	Class 1
Before:	Morris C
Decision:	(1)The appeal is upheld in part. (2)Development consent is granted to Development Application No. DA 171/2010 for the demolition of an existing dwelling-house and swimming pool and the construction of a new part two, part three storey dwelling house, swimming pool with associated carparking, driveway, site works and landscaping at No. 10 Queens Avenue, Vaucluse subject to the conditions in Annexure A. (3)The exhibits, other than exhibit B, are returned.
Catchwords:	DEVELOPMENT APPLICATION; Dwelling house; height; impact on views
Legislation Cited:	Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Pafburn v North Sydney Council [2005] NSWLEC 444
Texts Cited:	Woollahra Residential Development Control Plan 2003
Category:	Principal judgment
Parties:	Karl and Tanya Mayer (Applicants) Woollahra Municipal Council (Respondent)
Representation:	Counsel Mr I Hemmings (Applicant) Solicitors Susan Hill & Associates Lawyers Pty Ltd (Applicant) Ms M Hawley Lindsay Taylor Lawyers (Respondent)
File Number(s):	10439 of 2011