Mendel v Woollahra Municipal Council
[2009] NSWLEC 1113
•22 April 2009
Land and Environment Court
of New South Wales
CITATION: Mendel v Woollahra Municipal Council [2009] NSWLEC 1113 PARTIES: APPLICANT
RESPONDENT
Charles Mendel
Woollahra Municipal CouncilFILE NUMBER(S): 10900 of 2008 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- overshadowing; privacy; visual impact LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Heritage Conservation Area Development Control Plan 2003
Woollahra Development Control PlanCASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 18/12/08
DATE OF JUDGMENT:
22 April 2009LEGAL REPRESENTATIVES: APPLICANT
Mr Robert Wilcher, Solicitor
Herber Geer LawyersRESPONDENT
Ms Megan Hawley, Solicitor
of Lindsay Taylor Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
22 April 2009
JUDGMENT10900 of 2008 Charles Mendel -v- Woollahra Municipal Council
1 The applicant in these proceedings is seeking to construct a loft study over the existing garage at the premises known as No. 5 Fullerton Street Woollahra. The Council refused the development application in September 2008
2 The subject site is located on the eastern side of Fullerton Street and has a site area of some 1075 square metres. Erected on the site is a two-storey interwar brick dwelling that is a contributory item of local heritage significance. Also on the site is a detached garage located towards the rear of the site on the southern boundary with access along the southern boundary. In the rear garden of the site there is an in-ground swimming pool towards the northeastern corner together with a number of large canopy trees.
3 The area generally can be described as containing a variety of dwelling forms with a number of residential flat buildings and various styles of dwelling houses. Immediately adjoining the subject property is an apartment building at No. 1-3 Fullerton Street with a number of the units having their outdoor open space areas oriented to the north towards the subject property.
- Proposal
4 The development applicant is for the construction of a first floor addition above the existing garage erected on the southern boundary of the subject site. The addition is to accommodate a study which would be accessed via an internal staircase at the rear of the garage.
5 By way of background a development application was approved by the Council in April 2008 for alterations and additions to the existing dwelling house. This included a pool plant room and shower facilities on the eastern side of the existing garage and a new garage forward of the existing garage to the east extending some 8 m in front of the existing 6 m garage. The new single story garage storage area has a flat roof. Other ancillary structures including a pergola/barbeque area and a pool house were also approved.
Issues
6 The Council contends that the location of the loft garage on the subject site is inappropriate. The second issue is that the Council considers the loft to have unreasonable impacts on the amenity of the adjoining unit No. 4/1-3 Fullerton Street because of the loss of aspect and view to the north for both the courtyard and the main living room of this unit and a sense of physical overbearing and enclosure for the dwelling.
7 Thirdly the Council contends that the proposal will result in unreasonable overshadowing for unit 4, in particular sunlight cannot be provided to at least 50 percent or 35 metres squared of the main ground living private open space for a minimum of 2 hours between 9 and 3 at the winter solstice as required by the DCP.
8 The fourth issue on visual privacy impacts it was conceded could be dealt with by way condition on the windows of the proposed loft. Similarly condition 6 for aural privacy impacts could be dealt with by way of condition.
9
Statutory Planning Framework
10 The subject property and surrounding area is zoned Residential 2 (b) under the Woollahra Local Environmental Plan 1995.
11 The objectives of the 2(b) zone are:
(a) To provide for areas of medium and high density residential development in appropriate locations
(b) To encourage a diversity of dwelling types...
12 The residential B zone applies to areas characterised by existing medium density residential flat buildings and areas where potential has been identified for increased medium residential development, subject to a number of controls. The objectives of the maximum building height development standard are contained in cl 12AA and these relevantly include:
- (a) To minimise impact on ....private and open spaces...
(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.
13 Clause 12 provides for maximum building heights in accordance with the height map as applicable to land within that height zone. For the subject site the maximum height is 18metres.
14 The heritage provisions are found in part 4 of LEP and consideration must be given as to the extent to which proposed development would effect the heritage significance of conservation areas. The subject site being within the ‘Rosemont Precinct’.
15 The Woollahra Heritage Conservation Area Development Control Plan 2003 is a relevant matter for consideration in the assessment the development application. Clause 3.1.1 relates to the ‘Rosemont Precinct” and the significant characteristics include remnant substantial houses. The variety of residential architecture includes “interwar houses in an eclectic variety of styles typical of the period”. Another characteristic is garages and carports generally located within the property at some distance from the front boundary.
16 The DCP contains guidelines for building location and built form and relevantly the objectives include:
- “to ensure that the siting, levels and front side and rear building setbacks of additions and infill development continue the established historical pattern of development and to minimise overshadowing of private and open spaces”.
17 The controls for building height form bulk scale and character state that:
- “the bulk of new buildings should be distributed to minimise overshadowing of adjoining properties; sunlight is provided to at least 50% (or 35 m sq with minimum dimensions 2.5 m which ever is smaller) of the main ground level private open space of adjacent properties for a minimum of two hours between 9 am and 3 pm on June 21. Where existing overshadowing is greater than this, sunlight is not further reduced.
New development must not unreasonably obstruct existing principal views from the habitable rooms, balconies and private open space of neighbouring dwellings”.
18 For fences the DCP states that “the height at the side or rear fence is not to exceed 1.8 m and where there is a difference in level from one side of the boundary to the other the 1.8 m limit is measured from the low side. Where there is a difference in ground levels at the boundary greater than 1.2 m the height of the fence must not exceed 1.2 m measured from the high side”.
19 The guidelines for parking and garages includes the objective to limit loft structures over garages to appropriate locations.
20 The subject site is not a heritage item under the LEP, however,under the DCP it is described as an interwar house and a contributory item in the Rosemont Precinct. There are two heritage items in the LEP within the vicinity at 6 Wellington Street and 11 Wellington Street and as such the provisions of the LEP must be considered. The Council officers report states that the proposal would not unreasonably impact upon the heritage significance of the heritage conservation area or impact upon the heritage items being a sufficient distance to prevent any detrimental effects. The schedule of significant items is contained in the DCP and No.5 Fullerton
21 Under the Woollahra DCP the floor space ratio control is 0.55 to 1 and the proposed addition to the garage would result in an FSR of 0.44 to 1.
Evidence and submissions
22 The Court met onsite and heard from the applicant and the objector of Unit No. 4 at 1-3 Fullerton. This unit adjoins the rear portion of the southern boundary of the subject site. Mr Bird the owner of Unit 4 informed the Court that he relies on the outdoor area for his small children and that the proposal in his opinion would result in a non-compliant development as it would overshadow his private open space in winter. He is also of the opinion that the proposal will be an overwhelming structure and destroy their sense of space and view. He considers the loft does not minimise the impact on his property with an additional wall height of 1.8 metres on his boundary and he considers this to be an unnecessary element to provide 16 square metres in this position immediately adjoining his property to the north.
23 On behalf of the respondent Council Mr Greg Vickers gave evidence to the Court and for the applicant Mr Rohan Dickson gave evidence. They also provided a joint statement and were present at the site inspection as well as giving further evidence in Court.
24 On the issue of visual bulk and scale and the impact on the adjoining property at 4/1-3 Fullerton Street Mr Dickson is of the opinion that the proposed loft addition will not result in a significant loss of aspect and view to the north from the courtyard and main living area of Unit 4... and it will not cause a sense of enclosure or be overbearing for that dwelling as the aspect and view to the north from the courtyard of Unit 4 is currently constrained and that to the east of the courtyard the addition proposes a minor loss of view but does not create a sense of enclosure for users of the courtyard and dwelling.
25 Furthermore Mr Dickson does not consider the view to the north as the principal view but the view east of the courtyard is unobstructed to the sky with distant vegetation. Mr Dickson says that the existing view to the north is currently encumbered by the existing garage and the impact of the proposal is reasonable as the impact on views is not generated by non-compliances.
26 Mr Vickers on the other hand considers that the proposed development will significantly close off and diminish and important aspect to the north and view for the adjoining property. He considers the proposal is unreasonable and inconsistent with the principals relating to view sharing.
27 On the issue of overshadowing Mr Dickson states that sunlight is provided to the main courtyard of Unit 4 for two hours between 10.30 am to 12.30 pm if existing fence heights are made to comply with height controls specified in the DCP. Mr Dickson believes that as the site and immediate locality is zoned residential 2(b) Council anticipates a medium to high density character for the site and residential flat buildings are permitted with consent with a maximum height of 18 m.
28 Mr Vickers is of the opinion that the adjacent dwelling that is Unit 4 is entitled to have at least 35 m sq of unencumbered solar access to the main ground level open space for the designated 2 hour period. He further states that analysis of the pre-existing situation shows that the main ground level private open space receives substantially less than the threshold amount during the designated period and therefore on the basis of the DCP the dwelling is nominally entitled to retain the existing levels of solar access. Furthermore in his opinion the identified compliance failure does not turn on the question of the overshadowing from the palm trees but their effects do add significantly both numerically and qualitatively to the overshadowing impacts that will be experienced by the effected property.
29 Mr Dickson is of the opinion that the return portion of the open space area paved should be included in the total calculation of amount of open space for Unit 4. This return portion that faces east includes a courtyard area off a bedroom and separated from the larger open space by a clothes drying area and parkway. Mr Dickson therefore considers that the courtyard is larger than 35 m sq and solar access for one and three quarters hours.
30 Mr Vickers on the other hand considers that the open space area is less than 35 m sq where there is compliance for solar access. He is of the opinion that while the total outdoor area 88 m sq there is not one time when there is solar access to more than 35 m sq. Mr Vickers considers that the mature vegetation including the palm trees create shade and should be included in an analysis of the amount of solar access available. If one has regard to the unshaded areas of Mr Dickson who does not include shade created by trees there is still no period during the day in excess of 35 m sq that receives solar access ranging from 10.6 to 25 m sq between 9.00 am and 3 pm. Mr Dickson agrees that if one has regard to the existing fence and the overshadowing effect of same that the area is 32.36 m.
31 The overshadowing diagrams prepared on behalf of the applicant in exhibit B show that for a period of 1 hour 45 minutes there is an area greater than 35 m sq receiving solar access however if the areas less than 2.5 m are excluded then the DCP’s 35 sq m is not achieved.
32 While Mr Vickers provided a table to show overshadowing from built structures and proposed built structures as well as overshadowing including that from trees the same time states that his assessment does not rely on the trees being included.
33 Exhibit 6 at figure 1 provides a table of the experts assessments on the open space areas and whether the DCP requirements are met. Figure 2 shows the existing overshadowing and Figure 3 shows the extent of overshadowing by the proposed loft structure.
34 On the question of visual privacy impacts the experts agree that it is possible to draft conditions requiring changes such that overlooking through the east and facing window can be eliminated.
35 The Council officers report supports the application and the comments include:
- the proposal is a secondary structure to the dwelling and does not overwhelm it
- the proposal does not have any unreasonable shadow impacts, as the adjoining dwellings will still receive the required sunlight
- the proposal is not likely to generate a level of noise greater than that which is reasonable within an urban context
- the proposal does not unreasonably enclose the neighbouring properties. The dwelling adjacent to the proposed addition is Unit 4 and the courtyard and internal areas of this dwelling will retain an open feel.
- the proposed loft is located above a garage which is setback from street alignment by over 33 m and is contained within a substantial plot.
- the proposed loft structure has been designed and located to ensure that it would not overwhelm the existing building on site.
36 It was submitted on behalf of the applicant that control 13 of the DCP can not have the effect of prohibiting the proposed loft. As a matter of construction I agree that the proposed loft structure is not prohibited by this provision. None the less the impact of the proposed development on the amenity of adjoining property is a relevant matter for consideration under S79c of the Act.
37 The development control plan under the heading of Building Height Form Bulk Scale and Character provides a control that states:
- sunlight is provided to at least 50% of (or 35 m sq with minimum dimension 2.5m, whichever is smaller) of the main ground level private open space of adjacent properties for a minimum of 2 hours between 9 am and 3 pm on June 21. Where existing overshadowing is greater than this, sunlight is not further reduced.
38 The Court of Appeal decision of Zhang v Canterbury City Council [2001] NSWCA 167 requires the DCP to be given central focus and consideration in the assessment of development applications. This judgment also states that Development Control Plans are not mandatory but discretionary.
39 During the proceedings there was a great deal of analysis and discussion about the precise amount of overshadowing created by existing structures, the proposed development and the shadow cast by trees.
40 In my overall merits assessment, even if I include both the courtyard adjoining the bedroom on the south-eastern corner of Unit 4 with its tenuous connection with the primary area of open space, and I disregard the shadow cast by vegetation, on a qualitative and quantitative assessment I am not satisfied that the proposed development warrants approval.
41 The open space to Unit 4 in terms of solar access is already constrained both in terms of limited number of hours of solar access and the size of the open space receiving solar access. In my assessment I have concluded the loft proposal would further diminish the solar access received to the outdoor open space. Figures 2 and 3 show the pre and post development overshadowing and the configuration of the L shaped open space and its relationship with the internal living areas that are located on the north and east, with the bedroom on the south-eastern corner. The useable area is currently constrained and there is no justification or necessity to diminish it further by allowing the proposed loft. In this regard I have concluded that a variation to the Development Control Plan is not justified in the circumstances.
42 The impact of the visual bulk of the proposal was also raised by the Council as an issue. I accept the submission on behalf of the applicant that unit 4 has an open aspect to the east, and a more filtered view with the existing structure and trees to the north. I also accept there are no significant views to the north and the concept of view sharing would not warrant refusal. However, at the same time the increased height of the proposed wall approximately 0.5 m from the common boundary, in my assessment, would adversely impact on the amenity of Unit 4 and present as an unnecessary imposing structure.
43 The existing garage is about 2 m to the eve line above the existing fence and the proposed two storey structure would be about 3.5 m above the fence on the eastern end, with a maximum height above the fence of 4.5 m measured to the ridge of the roof. While the roof slopes away from the southern boundary at the same time in my assessment the additional wall height and roof would present as a dominant element and structure when viewed from the main courtyard area and the living room of Unit 4.
44 The ridge line of the existing garage is 4.8 m and the proposed first floor addition would increase the ridge line to 6.45 m.
45 I am aware that a residential flat building could be erected on the subject site under the zoning and this may impact on the units to the south. However, a residential flat building would need to be assessed on its merits and the setback to the side boundary would be greater than 0.5 m as in the current proposal.
46 While the loft/study area is proposed for infrequent use by the applicant this is not the issue it is the physical outcome of the height and bulk in close proximity to the boundary as to why the application fails and the increase in overshadowing of the private open space of the ground floor unit on the adjoining southern boundary.
47 Accordingly on the basis my merits assessment above under s79C(1)(b) of the Act the proposal as shown in the plans before the Court does not warrant approval.
48 The formal orders of the Court are
- 1. The appeal in respect of the property known as No.5 Fullerton Street Woollahra is dismissed.
2. The development application submitted to Woollahra Council for a loft/study over the existing garage as shown in exhibit A is determined by the refusal of consent.
3. The exhibits are returned to the parties with the exception of exhibit A.
___________________
- J S Murrell
Commissioner of the Court
es/ajl/ljr
0