Michael Suttor Architects Pty Ltd v Woollahra Muncipal Council

[2009] NSWLEC 1285

Land and Environment Court

of New South Wales

CITATION:	Michael Suttor Architects Pty Ltd v Woollahra Muncipal Council [2009] NSWLEC 1285
PARTIES:	APPLICANT Michael Suttor Architects Pty Ltd RESPONDENT Woollahra Muncipal Council
FILE NUMBER(S):	10256 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- appeal against conditions imposed on the approval for the demolition of an existing dwelling house and the erection of a new dwelling house and ancillary works - view loss - bulk/scale - view from Sydney Harbour
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
CASES CITED:	Tenacity Consulting v Warringah [2004] NSWLEC 140
DATES OF HEARING:	4 August 2009
EX TEMPORE JUDGMENT DATE:	4 August 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Craig QC with Dr S Berveling, barrister RESPONDENT Mr S Patterson, solicitor SOLICITORS Willshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

4 August 2009

10256 of 2009 Michael Suttor Architects Pty Ltd v Woollahra Muncipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against conditions imposed by Woollahra Municipal Council (the council) on the approval of DA 718/2008/1 for the demolition of an existing dwelling house and the erection of a new dwelling house and ancillary works at 84 Wentworth Road, Vaucluse (the site).

2 The condition in dispute is condition C.1(a). This condition states:

(a) In order to mitigate view loss from unit 4/75 Fitzwilliam Road and to maintain the existing rear setback pattern for the harbour the proposed dwelling is to be sited no further forward than the existing north-western corner of the existing dwelling.

3 The appeal originally included conditions C.1(b) and C.1(d), however the exclusion of conditions C.1(b) was not opposed by the council and the applicant accepted an amended version of condition C.1(d).

4 The site, the unit at 4/75 Fitzwilliam Road and the adjoining properties at 82A and 82B Wentworth Road were inspected on the site view. The site was also viewed from Neilsen Park to gain an understanding of the visual impact of the development from Sydney Harbour. Poles depicting the location and setback of the proposed dwelling were provided at the harbour frontage.

5 Mr Bruce Goldsmith provided expert evidence for the applicant and Mr David Booth for the council. There was agreement between the experts that the photomontages prepared by the applicant fairly represented the extent of the proposed new dwelling in the view catchment from 4/75 Fitzwilliam Road. The photomontages indicated that the triangular area of water views currently available over Fitzwilliam Road and the site to the harbour would be reduced by around 66%. The views of the headland near Mosman would be retained. As the proposed roof form is different and smaller to the existing roof form, some new views of harbour to the west will be gained from 4/75 Fitzwilliam Road. I did not understand there to be a meaningful difference between the experts on the assessment of the existing and new additional views.

6 The difference between Mr Goldsmith and Mr Booth was essentially whether the additional views gained by the different roof form compensated for the loss of the existing views. Mr Goldsmith stated that the compensatory additional views satisfy the principles of view sharing, whereas Mr Booth maintained that the new views are only available through existing vegetation and are likely to be further reduced when this vegetation further matures.

7 Following the site view, Mr Goldsmith proposed an increased building setback of 1 m from the foreshore. Mr Booth stated that he would be satisfied if the proposed dwelling was set back an additional 2 m from the original setback or the roof reduced in height by 1.8 m. Both experts relied on the planning principle in Tenacity Consulting v Warringah [2004] NSWLEC 140 to support their respective positions.

8 In my assessment of the view loss and compensating view gain, and using the planning principles in Tenacity Consulting, I agree with the conclusions of Mr Goldsmith. The views from 4/75 Fitzwilliam Road are limited but provide for uninterrupted views of the harbour and the land interface. The views are valuable but do not achieve highly valuable or iconic status. The views are achieved from the bedroom and spare bedroom of 4/75 Fitzwilliam Road. While views from bedroom areas are not as highly valued as those from living areas, their significance is increased, in this case, because these rooms provide the only views to the harbour.

9 While some of the views to the harbour will be lost, I accept that the view loss is adequately compensated for by the additional harbour views and also the additional headland views. The compensatory views may not be uninterrupted views because the views are potentially filtered views however I am satisfied that while it is a relatively fine balance, there is an overall benefit in views created by the proposed development. It would be unreasonable, in my view, not to give some benefit in a view assessment to the new views, even if they are filtered views of the harbour and headland. This however, is a worse case scenario, as the evidence did not clearly establish the ongoing filtering of the new views to be a fact.

10 Some weight must be given to the fact that the proposed dwelling is a complying development and in some areas, is significantly below the standards in Woollahra Local Environmental Plan 1995 (LEP 1995) and the Residential Development Control Plan (the DCP). For example, the overall height of 8.5 m is 1 m below the applicable standard. I accept that the proposal is consistent with the objectives and performance criteria in Part 5.5 of the DCP relating to views.

11 The impact on the adjoining properties is also acceptable. The proposal satisfies the foreshore building line (FBL) requirements and is now set back a further 1 m from the FBL. This further reduces any potential view loss although any view impact on the adjoining properties is at an extremely oblique angle with the vast majority of harbour views unaffected by any development on the site.

12 I am also satisfied that the concerns of bulk and scale when viewed from 82A and 82B Wentworth Road cannot be supported given the compliance with the FBL and the controls in LEP 1995 and the DCP. Again, any impacts are further reduced with the increased 1 m setback.

13 I see no impact from the proposed dwelling when viewed from the harbour because of the compliance with the FBL and the requirements in LEP 1995 and the DCP. I can comfortably conclude that the proposal is consistent with the form of development anticipated for the foreshore of the harbour by the council’s planning controls. The development is also consistent with relevant requirements in Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, particularly cl 26.

14 The applicant proposed a further deferred commencement condition to limit the height of planting on the site within the view corridor from unit 4/75 Fitzwilliam Road. I accept that this is an appropriate condition, however it is sufficiently certain as to what is required to have the additional requirement as an operational condition rather than a deferred commencement condition.

Orders

15 The Orders of the Court are:

1. The appeal is upheld.
2. DA 718/2008/1 for the demolition of an existing dwelling house and the erection of a new dwelling house and ancillary works at 84 Wentworth Road, Vaucluse is modified in the following manner:
2.1 Condition C.1(a) is modified to read:
(a) The proposed dwelling is to be located an additional 1 m from the northern (foreshore) boundary than is shown on the plans.
2.2 Condition C.1(b) is deleted.
2.3 New Condition C.1(f) as follows:
The landscape plan shall be amended so as to provide for tree and shrub species within the areas shown hatched on the plan in Schedule “A” hereto whose height at maturity is not to exceed the height of the pergola and trellis when viewed from 4/75 Fitzwilliam Road.
3. The exhibits are returned with the exception of exhibit A.

___________________
G T Brown
Commissioner of the Court