Molnar v Woollahra Council

[2017] NSWLEC 1041

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Molnar v Woollahra Council [2017] NSWLEC 1041
Hearing dates:	19-20 January 2017
Date of orders:	14 March 2017
Decision date:	07 February 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	See paragraphs 85 and 86
Catchwords:	MODIFICATION OF CONSENT: increase height and location of deck and swimming pool, tree removal
Legislation Cited:	Environmental Planning and Assessment Act 1979; Woollahra Local Environmental Plan 2014; Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Texts Cited:	Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005; Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Robert Molnar (Applicant)   Woollahra Council (Respondent)
Representation:	Counsel: Ms J Reid (Applicant)   Solicitors: Hartley Solicitors (Applicant) Ms A Berry Lindsay Taylor Lawyers (Respondent)
File Number(s):	318471/2016

Judgment

1. Woollahra Council refused an application lodged on behalf of the applicant which sought to modify a development consent that originally provided for the change of use from a residential flat building to a dwelling house by extensive alterations and additions to a 4-storey building including new off-street car parking, a new swimming pool with deck and extensive landscaping (DA174/2014/1), the original consent. The applicant is appealing that determination pursuant to the provisions of Section 97AA of the Environmental Planning and Assessment Act 1979 (EP&AAct).

The site and its context

2. The site is known as No. 23 Sutherland Crescent, Darling Point and is described as Lot A in DP 413006. It is located on the eastern (low) side of the street, is rectangular in shape with a northern boundary of 41.6m, eastern boundary of 15.9m, southern boundary of 42.8m and western frontage to Sutherland Crescent of 15.9m providing a total site area of 669m2.

3. The site slopes 20.1m from Sutherland Crescent (RL 28.52) towards the rear eastern site boundary (RL8.46).

4. At the present time, the site is being developed in accordance with the consent as modified since the grant of the original consent.

5. According to the Statement of Facts and Contentions (SoF&C) filed in the proceedings, Exhibit 1, the existing residential flat building was constructed as a single dwelling house in 1916. In the early 1960s, the original allotment was subdivided and a new house constructed on the waterfront, with a narrow access to Sutherland Crescent running along the northern side of the original allotment.

6. Prior to the works undertaken to date, the building presented as single storey to Sutherland Crescent and steps down the block towards the rear boundary. No vehicle access was available to the residential flat building (RFB) and the rear yard was landscaped with dense vegetation including a number of trees, one of which is the subject of the modification application.

7. The view of the RFB from the harbour was described in the S0F&C as a symmetrical four-storey building, composed of a two-storey sandstone base, with the two top storeys being a timber framed and clad combination of enclosed verandahs and cantilevered open balconies. Beyond the sandstone and timber-clad verandahs, the balance of the building is of red brick; the street-facing elevation has been rendered. The hipped and gabled roof is covered with terracotta tiles.

8. The footprint of the original building was constructed on an approximate alignment of 3m to Sutherland Crescent and sat on the western and higher half of the site.

9. A two storey dwelling house is located to the east of the site. That dwelling is located on the waterfront of Sydney Harbour and sits below the majority of the proposed building structures. The site enjoys extensive views across that dwelling towards Point Piper and the harbour.

10. Multi storey residential flat buildings are located on either side of the site. Those building step down the site and both enjoy waterfront access to the harbour.

11. Development within the immediate vicinity of the site comprises a mix of residential development ranging from large detached dwelling houses to multi-level residential flat buildings.

Background and the proposal

12. The original consent was granted on 16 February 2015. An application to modify that consent was refused by the council on 27 July 2015 and subsequently approved by way of a Section 34 agreement between the parties signed on 23 October 2015 (174/2014/2). A further modification DA174/2014/3 was approved on 1 February 2016 that provided for an increase in the width of the driveway crossing servicing the approved garage.

13. The modification application that is the subject of these proceedings was lodged with the council on 13 September 2016 and refused on 8 November 2016. It proposed:

• 4 x additional solar panels on the roof;

• New fireplace and flue

• Modified lift configuration;

• New brickwork walls to replace existing;

• New cellar;

• Alterations to internal layout;

• Raise the height of the pool and deck by 400mm (to RL17.62).

• Extend pool and deck 700mm towards the rear boundary;

• Increased size of the store room below pool and deck and open timber screen to rear elevation;

• Removal of Tree 5 (Casuarina cunninghamiana) and replacement planting;

• Modified retaining wall below pool at the rear of the site.

14. The modifications require amendment of Conditions A3, A4, B5, B6 and E24 of the consent.

15. The council’s contentions do not relate to the majority of the internal amendments proposed apart from those aspects that require additional site excavation. The primary issues relate to the increase in footprint and height of the pool and deck and the removal of Tree 5.

16. During the hearing, Ms Reid, for the applicant advised that the applicant no longer sought consent for the fireplace and flue which was to be constructed as part of the outdoor living area and be a wood fired fixture.

The planning controls

17. The site is zoned R3 Medium Density Residential pursuant to the provisions of Woollahra Local Environmental Plan 2014 (LEP). The proposed development, including tree removal, is permissible with consent. None of the contentions in the case relate to provisions contained within the LEP.

18. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREPPSHC) applies to the site and in particular clauses 2 (Aims of plan), 13 (Sydney Harbour Catchment), 14 (Foreshores and Waterways) and 25 (Foreshore & waterways scenic quality). Part 2 Planning Principles details that are, pursuant to Clause 12(a), to be considered and, where possible, achieved in the preparation of environmental planning instruments and development control plans. The council contends that the following planning principles are relevant to the application within the Foreshores and Waterways Area (cl14(a) and (d)):

1. development should protect, maintain and enhance the natural assets and unique environmental qualities of Sydney Harbour and its islands and foreshores,

2. (d)    development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores,

19. Clause 20 of SREPPSHC requires matters referred to in Division 2 to be taken into consideration by consent authorities before granting consent to development under Part 4 of the EP&AAct. The council cites clause 25 which is in the following form:

25 Foreshore and waterways scenic quality

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows:

(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,

(b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries,

(c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores.

20. Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (SHFWADCP) applies to the site. It is within Landscape Character Type 10 area and the Statement of Character and Intent and the Performance Criteria for that area are:

ii. Statement of Character and Intent

The character of the area is dominated by wide open bays, retained edges, sandy beaches and adjacent park areas. Special natural features such as rock outcrops and platforms form part of the landscape and should be considered in terms of their scarcity within the local context.

Development is suitable for these areas providing consideration is given to:

• preserving the special natural features that form an integral part of the character and vitality of the landscape including the natural shorelines, beaches, rock platforms and outcrops; and

• the role of commercial activities within these areas is recognised as providing an important recreational resource and improving public enjoyment of the harbour.

iii. Performance Criteria

Any development within this landscape is to satisfy the following criteria:

• it does not obscure, detract from or destroy special natural elements that are significant within the local context of the area;

• the open nature of the bays is not lost by overdevelopment of the foreshores; and

• it has been demonstrated that the commercial activities proposed within and adjacent to the foreshores are necessary and that their proposed use is compatible with existing and likely future land uses.

21. Part 5 of SHFWADCP provides Design guidelines for land-based developments. The Introduction to this part states:

The distinguishing characteristic of Sydney Harbour is its dramatic topography. This is reflected in large headlands and cliffs, as well as substantial areas of natural foreshores and the juxtaposition of built elements. Even in the most developed areas, it is still possible to perceive the underlying geomorphology and native vegetation. Clearly, it is the natural environment that is most sensitive and irreplaceable.

The combination of dramatic topography, natural vegetation and built elements provide an attractive background to the Harbour. In addition, views of many exceptional civic elements and memorable landmarks have been protected. It is important that this background is enhanced.

Individual private facilities, both on the land and over water, should form part of the background. There is no justification for these elements to be visually dominant; they are required to complement rather than compete with the other background elements. This part of the DCP applies to development that would be located above MHWM. These areas are often covered by other planning instruments. This plan is intended to reinforce existing controls with the specific purpose of ensuring that development is sympathetic to the natural and cultural qualities of the area covered by SREP (Sydney Harbour Catchment) 2005.

22. Part 5.6 applies to planting and is in the following form:

Vegetation in the form of bushland, remnant native species and cultural planting has important ecological and landscape values that require protection and enhancement. The following criteria should be addressed when providing landscaping for developments:

• appropriate species from those found in the surrounding landscape should be incorporated;

• endemic native species should be used in areas where native vegetation is present or has the potential to be regenerated;

• exotic species that have the potential to spread into surrounding bushland should be avoided;

• existing mature trees should be retained where possible and incorporated into the design of new developments;

• vegetation along ridgelines and on hillsides should be retained and supplemented with additional planting to provide a backdrop to the waterway; and

• a landscape plan is to be submitted with any land-based development proposal showing existing and proposed changes in contours, surface and sub-surface drainage, existing trees to be retained and removed, measures to protect vegetation during construction, and proposed planting including species and common names.

23. Woollahra Development Control Plan 2015 (DCP) applies to the site. It is within the Darling Point Precinct and the Desired future character (DFC) for the precinct is as follows:

The Darling Point precinct is an established residential area with a rich mixture of architectural styles and forms. Development is to retain the visual prominence of the tree canopy, particularly along the ridgeline of Darling Point Road.

Most development is in the form of alterations and additions to the existing housing stock.

Where a building comprises historic or aesthetic values, it is important that development reflects the scale of the existing built form and retains the character of the original building particularly in regard to the roof form, massing, details, materials and finishes. For example, the groups of period terraces at New Beach Road, Ocean Avenue and Darling Point Road should be retained and enhanced.

Development adjoining a contributory item or heritage conservation area is to have regard to the architectural values of the building and establish a sympathetic interface.

Where an existing building does not comprise historic or aesthetic value, sympathetic contemporary design is permitted.

Where new development occurs, the buildings are to provide a height, bulk, and scale compatible with those buildings that are predominantly two to four storeys in height, and have regard to the visual impact of the development from the harbour.

Existing intrusive high rise and tower developments are not to be reproduced.

On the low side of streets where existing development predominantly presents as single or two storey, the height and scale of this built form to the street should be retained and the development designed to step down and follow the slope of the land. This will minimise cut and fill and also limit overshadowing and privacy impacts to neighbouring properties.

Attention must also be given to retaining views from the public domain and providing for view sharing from private properties; these can be achieved by providing suitable side boundary setbacks, roof forms and thoughtful distribution of building form across the site.

24. Streetscape character and key elements of the precinct are required to respect and enhance the existing elements of the character that contribute to the precinct including those relevant to the application:

a) the rich mixture of architectural styles;

b) the stepping of development on the hillside to minimise visual impact and follow the landform;…

d) well established gardens and trees;

f) historic stonewalls on private and public land;

j) the highly visible tree canopy providing a dense green backdrop to views from Sydney Harbour and surrounding lands;

25. Relevant objectives are:

O1 To respect and enhance the streetscape character and key elements of the precinct.

O3 To maintain the evolution of residential building styles through the introduction of well designed contemporary buildings incorporating modulation and a varied palette of materials.

O5 To ensure that development does not reproduce or match existing intrusive buildings.

O8 To design and site buildings to respond to the topography and minimise cut and fill.

O10 To retain and reinforce the setting of mature street trees and garden plantings especially along the ridgeline by retaining existing trees and providing appropriate replacement planting.

O11 To retain the landscape setting of the locality by maintaining landscaped areas around buildings and minimising hard stand areas.

26. Section 3.5.4 applies to Acoustic and visual privacy with Objective O3 and Controls C7 and C8 relevant. This objective seeks to minimise the impacts of private open space areas when located above ground level are with the controls requiring balconies, decks, terraces including roof terraces and the like are suitably located and screened to prevent direct views into habitable rooms (including bedrooms) or private open space of the adjoining and adjacent dwellings and, in the case of a dwelling house, the acceptability of any elevated balcony, deck or terrace will depend on the extent of its impact, its reasonableness and its necessity.

27. Part B3.7 applies to External areas, landscaped areas and private open space and includes objectives that seek to ensure that the areas outside the buildable area contribute to the DFC of the location; provide sufficient deep soil landscaped area to support substantial vegetation; ensure private open space areas are well designed and retain important existing mature trees, vegetation and other landscape features; ensure that landscaping contributes positively to the streetscape and the amenity of adjoining residents and allows view sharing.

28. The controls that apply to the R3 zone require at least 50% of the site to be deep soil landscaped area with at least 50% of the rear setback comprising deep soil landscaped area that is free of garaging, paving, outbuildings, tennis courts, swimming pools, above ground and below ground structures including stormwater works. A minimum primary open space area of 35m2 is required for dwelling houses with a gradient of no more than 1 in 10 and part of that area is to be directly accessible from a habitable room.

29. The location of private open space is to take advantage of the outlook and natural features of the site and reduce the adverse privacy and overshadowing. Existing significant trees and vegetation are to be incorporated into the landscape area and treatment with native species preferred.

30. Part 3.7.4 applies to ancillary development including swimming pools with objective of providing for recreational opportunities for swimming without compromising the amenity of adjoin properties and limiting excavation. The relevant controls require that a pool does not occupy the deep soil landscaped area, the pool edge is to be at least 1.5m from property boundaries, the pool surrounds are no more than 1.2m above or below the existing ground level and the location and design of the swimming pool and associated works do not adversely impact on prescribed trees.

31. Part B3.10.2 includes additional controls for sensitive locations, specifically for harbour foreshore development. Those controls apply to the site because it is visible from Sydney Harbour. The objectives are to protect the scenic quality of the natural landscape and built environment, particularly as viewed from Sydney Harbour. Relevant controls require such development to follow the natural topography and maintain or enhance vegetation cover, be designed and constructed to blend with the natural landscape setting and the existing built environment, with pools not elevated more than 1.2m above ground level and complementing the character of the harbour and foreshore.

32. For the purpose of this application, which seeks consent to remove Tree 5, that tree is a “prescribed tree” and therefore the provisions of Chapter E3 Tree Management of the DCP apply. The objectives of that chapter are:

O1 To identify trees which are prescribed for the purpose of clause 5.9(2) of Woollahra LEP.

O2 To define the different circumstances under which a development consent or permit application is required for works to a prescribed tree.

O3 To promote, maintain and conserve the leafy character of the Woollahra Municipality.

O4 To conserve significant trees of historic, cultural, commemorative, scientific, visual or aesthetic importance.

O5 To find a balance between maintaining Woollahra’s canopy cover and providing for development on private land.

33. The chapter includes matters to be considered in assessing a development application. It also includes exempt works that provide for certain works to be undertaken without the need for development consent. That includes, relevant to this application, pruning to remove branches no larger than 50mm in diameter at the nearest branch collar or junction to provide a maximum of 2m clearance to a roof, an external face of a building subject to the work being undertaken in accordance with stipulated guidelines and standards.

The issues

34. The contentions in the case are:

1. The proposed removal of Tree 5 will result in adverse impacts on the scenic quality of the site and the natural environment.

2. The proposed modifications will result in unreasonable amenity impacts on adjoining properties.

3. The proposed modifications to the swimming pool will reduce the amount of deep soil landscaped area (overall and in the rear setback) to an unacceptable level.

4. The proposed modifications will result in unacceptable height, bulk and scale of the swimming pool, deck and storage area.

5. The proposed additional solar panels will have an unacceptable visual impact on the streetscape.

6. The proposed development is not in the public interest having regard to the matters raised by resident objectors and outlined in the above contentions.

35. In addition, the council provided a list of matters that related to insufficient information. These were the need for a revised landscape plan; shadow diagrams, geotechnical and hydrogeological investigation and report and details of the fireplace.

36. The applicant provided an amended landscape plan, Exhibit B, shadow diagrams, Exhibit D and deleted the proposed fireplace from the application.

37. The council agreed, in response to a question that I asked in relation to the extent of excavation proposed that the issue was one that could be addressed by condition.

The evidence

38. The hearing commenced on site with evidence heard from two objectors to the proposal, both residents of the adjoining RFB to the south of the site, No 27 Sutherland Crescent. One advised she was a member of the Owner’s Corporation and speaking on behalf of a number of residents of the complex rather than the Owner’s Corporation as a whole.

39. The issues raised are summarised as follows:

• Additional height, bulk and scale of structure will adversely impact on the amenity of the adjacent RFB;

• Overlooking will increase privacy impacts;

• Concern about further loss of vegetation on the site;

• Development already exceeds the council’s planning controls for the site and the additional works exacerbate those non-compliances;

• View loss;

• Increase in overshadowing;

• Noise.

40. To assist the Court and objectors, the builder had positioned string lines that identified the proposed height and location of the deck and pool. Whilst this went some way to ameliorating some of the concerns of residents, they remained concerned at the overall impact of the works to the enjoyment of their property.

41. Expert town planning evidence was heard from Mr G Karavanas for the applicant and Ms R Coull for the council. They prepared a Joint Expert Report, Exhibit 6. Arboricultural evidence was heard from Mr K Kokot for the applicant and Mr A Simpson for the council, their Joint Report being Exhibit 5 in the proceedings.

42. The arborists agree that the health and structural condition of Tree 5 was good and had not changed since the tree was last viewed by them as part of the October 2015 conciliation conference. They noted some recent minor fine tip die back that was likely to be influenced by environmental factors however the structural condition of the tree exhibits no significant defects that would warrant removal.

43. They agree that there are no arboricultural grounds to warrant removal of the tree, that it is viable to retain in the context of the development and that the estimated useful life expectancy of the tree is 10+ years.

44. They also agree removing and replacing the tree is not required as part of developing the site. An agreement was reached by the same arborists in the previous conciliation conference demonstrating that a conflict between the development and the retention of the tree can be negated with sensitive design and tree protection measures. T5 is positioned in the rear of the site and close to 2 boundaries and it does not impede the land owner from the management or development of the site. The site can be developed with acceptable impact on the tree. They conclude that the tree is viable to retain in the context of the development.

45. They disagree on the likelihood of the proposed replacement tree, a Sydney Red Gum, establishing into a fully developed tree. Mr Simpson says that the site and environmental conditions are not suitable to allow a replacement tree to reach its full potential because the tree proposed is not a shade tolerant species that is, it needs full sun to develop and mature into a canopy tree. He refers to the shadow diagrams supplied by the applicant that shows there will be limited sun followed by full shade entering the eastern area of the site where the replacement tree is proposed to be installed. He interprets those diagrams to show the shadow cast from the existing building to the north will result in approximately 2 hours of sun in June and sun only until shortly after noon in March/September. The site in full shade in other times. He says there will be insufficient sunlight for a replacement tree to develop into a mature canopy tree.

46. Mr Kokot disagrees saying all trees that were originally on site including T5 were small trees to begin with, and with phototropism (attraction to light) the replacement tree will establish a suitable canopy to provide ongoing amenity and environmental benefits. To ensure a replacement tree will advance into a suitable specimen provisions for a detailed and engineered planter bed including rear retaining wall would be required such that the replacement tree root system can develop and support a tree into maturity. Details of that planter are shown on the amended landscaping plans.

47. Mr Simpson says that because the plans provide for the replacement tree to be positioned 2.5m from the eastern edge of the pool decking there is insufficient aboveground space in this area for any type of large canopy tree to establish to its full potential. Sydney red gum have the potential to have a crown spread diameter in excess of 20m and he says significant pruning of the Crown will be required to achieve adequate clearance from the pool and deck structures as the replacement tree grows in height and crown spread. The tree’s health and long-term viability will be detrimentally impacted by this ongoing clearance pruning. He is also concerned that the top of the tree will be pruned to restrict its growth and eliminate the potential for the tree to block views.

48. Mr Kokot disagrees and says the new replacement tree of between 4 to 6 m in height will be near the pool level and continue to grow above the pool in phototropism and will, in time, develop and upper branch scaffold system that will naturally extend away from the pool (low light area) resulting in a likely one-sided canopy towards the harbour. He says ongoing formative pruning can be conducted such that the canopy develops to accommodate the pool extension

49. Mr Simpson says that in ideal site conditions the proposed replacement tree would reach 15 to 20m in 20 years however with the pool structure, shade and the building to the north the tree growth would be slower and its shape distorted. He acknowledged once sunlight hits the canopy of the tree its growth would quicken.

50. Mr Simpson says the retention of T5 would have a better amenity than the proposed replacement tree as the replacement tree would not gain height or full canopy spread, its growth would be slow, and in the medium term there would be loss of amenity. Mr Kokot says it would rapidly grow to achieve a reasonable canopy in 10 to 12 years with a better canopy long-term providing for pool and deck line clearance.

51. The only agreed point between the planners is that the visual impact of the additional solar panels may be resolved by way of condition or amended plans that either relocate those panels or limit their height of projection above the roof so that they are not visible from the street. They also agree that the shadow impacts of the extended pool/deck are acceptable.

52. Whilst they defer to the arborists in relation to the condition of Tree 5 and the impact of works to that tree, they disagree as to whether it should be retained. It is common ground that the original consent provided for the removal of 10 trees from the site and that T5 is the last remaining canopy tree so the proposal will result in the removal of the last significant tree.

53. Ms Coull says the removal of the tree will have adverse impacts on the scenic quality of the site, the precinct and the natural environment and, in accordance with the relevant LEP and DCP provisions, should be retained.

54. Mr Karavanas disagrees and says, subject to the provision of the replacement tree, the proposed removal of T5 is not likely to significantly affect the scenic quality of the site and is consistent with all of the relevant planning controls.

Amenity

55. Ms Coull is concerned the proposal before the Court seeks to revert back to the original design that was found to be unacceptable by the Council. She has provided a table (Table 1 in Section 2.5 of the joint report) which she says demonstrates the cumulative impacts of the proposed modification and says those modifications will result in increased visual privacy impacts to units 3A, 4A of No 27 Sutherland Crescent and unit 1 of No 19 Sutherland Crescent and increased sense of enclosure impacts to units 1A, 2A 3A of No 27 Sutherland Crescent and No 19 Sutherland Crescent through greater amenity impacts due to the increased size of the trafficable area of the deck. Those impacts are due to the 700mm extension towards the rear resulting in an overall deck height of up to 7m and a rear setback of 5m bringing it closer to the adjoining living area windows of units on both sides. In addition greater amenity impacts result from the increased height of the deck/pool and the increased imposing nature of the side walls of the deck/pool which will be up to 7m high at the rear but appear higher from neighbouring properties due to the site topography.

56. She says insufficient justification has been provided demonstrating the necessity of the proposed modifications. The approved deck and pool are located on a single level and the deck includes a principal rear (flat) area of 50m² which is considered to provide adequate useable private open space for the occupants of the dwelling house being in excess of the minimum 35m² required under the DCP. As the approved development also incorporates a large balcony to the primary living area at street level she considers this is sufficiently large and well-proportioned to provide for outdoor living. She says the proposed modification does not incorporate any additional design solutions to address the increased visual privacy impacts other than the planters along the side of the raised deck which were previously added to the development as part of the Section 34 agreement. She does not support the use of privacy screens as these elements would further add to the bulk and scale of the development. Ms Coull considers the additional visual privacy impacts arise out of poor design of the elevated private open space area and non-compliance with numerous DCP controls and the overlooking is unacceptable.

57. Mr Karavanas notes the agreement in the reduction of height reached in the conciliation process however says the proposed dimensions of the deck and pool are appropriate and the proposal is required in order to provide a better degree of connectivity between the internal living area and the external deck, by the removal of two steps assisting in improving sightlines from the internal living area into the pool. He says because the site is flanked by large multi-storey RFBs on either side with side windows and balconies looking towards the site and the approved deck/pool there is an existing level of overlooking into the site. The windows of the adjoining unit are bedrooms with their sole orientation towards the subject site or dining and living rooms with secondary side windows, the primary windows looking east towards the view. Given the context of the site there is some overlooking from the approved deck towards the neighbouring buildings with the proposed deck oriented towards the east, which comprises expensive water views.

58. He has prepared diagrams which indicate sightlines from the approved and proposed deck and concludes the proposal satisfies the intent of the DCP of minimising impacts of private open space ensuring those areas are well designed.

59. Mr Karavanas considers the issue of enclosure and says the site is flanked by large multi-storey buildings on either side with the approved dwelling and deck/pool itself is significantly smaller in bulk and scale than those buildings. The proposed increase in the size and height of the deck will still result in structures that are significantly smaller in bulk and scale than those neighbouring structures and surrounding development. He considers the difference between the approval and the proposal to be minor and unlikely to result in a sense of enclosure (particularly when compared to the approval).

Deep soil

60. In terms of deep soil landscaped area, Ms Coull says the proposed modifications will reduce the amount of deep soil landscaped area to an unacceptable level where as Mr Karavanas, whilst acknowledging a non-compliance with the controls, says that non-compliance is not significant and maintains the objectives of the controls through peripheral planting along the side and rear of the site as well is elevated planters on the side of the deck. He says the non-compliance of the rear deep soil of 35% is a function of the topography of the site rather than inappropriate design and the majority of neighbouring properties, with flat portions of open space on the foreshore, not needing to rely on elevated areas of private open space other than their private balconies. He says that because the dwelling sits on a site that falls some 20m from front to rear there is an expectation that the numeric controls may be breached as a result of that topography. The proposal results in a reduction in deep soil of 13m² which he says is not significant and does not have a material impact on the DFC of the area.

Height, bulk and scale

61. In relation to the height, bulk and scale of the swimming pool, deck and storage area, Ms Coull's table that compares the history of the application is provided below.   

62. That table was complemented with a diagram that demonstrates the extent of the pool/deck under the original consent, the modified consent subject to the s34 agreement and the current proposal. That diagram is Exhibit 9.

63. The experts hold similar views in relation to this issue to those expressed in amenity impacts. There is no agreement between them as to whether the increased height and length of the structure is appropriate.

Conclusion and findings

65. The application seeks to modify the development consent through the provisions of s96(1A) of the EP&AAct. That section is in the following form:

(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed    modification within any period prescribed by the regulations or provided    by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

66. Sections 96(3) and (4) are also relevant to determination of the application and are in the following form:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

67. This imposes a number of tests, the first that the modification is of minimal environmental impact, the second that the development must be substantially the same as the original consent and the third that the application was notified if required under the DCP.

68. In determining the application consideration of submissions made concerning the proposed modification must be made as must the relevant matters under section 79C of the EP&AAct.

69. The assessment of the modification proposal is to be made against the original consent. In this regard, that consent provided for the removal of 10 trees from the site, required supplementary landscaping and the retention of T5 and T10, an Acmena smithii (lillypilly) that is located at the rear of the site near its northern boundary. The latter is not subject to this modification application and, whilst not discussed during the hearing, there is no application for its removal.

70. The deck and pool were, according to Ms Coull’s evidence in Table 1 to the Joint Report, Exhibit 6, originally approved on two levels, the upper level at RL17.22 and the lower tier at 16.22, a difference of 1m with 5 steps providing access between the two levels. The structure was setback 6.5m from the rear property boundary.

71. The modified consent in accordance with the s34 agreement provided for the pool and deck on one tier with 5 steps connecting that deck to the internal living area and the deck constructed at RL17.22 and the structure setback 5.7m from the rear boundary.

72. The proposal before the Court is for the deck to be constructed on one level at RL17.62 and setback 5m from the rear boundary. It would be reached by 3 steps from the internal living area.

73. The consequential change is a reduction in the rear setback from 6.5m to 5m and increase in height of the pool and surrounds from 16.22 to 17.62, a difference of 1.4m and the western portion of the deck from 17.22 to 17.62, an increase of 400mm. The area available to the rear of the site for landscaping is reduced by 1.5m although there is capacity to plant below a small portion of the pool structure below the overflow trough.

74. The increase in deck height would also increase the roof height of the vergola structure approved as part of the s34 modification by 400mm.

75. Having regard to the evidence, I am satisfied that the works proposed to increase the deck height would be of minimal environmental impact however, I am not satisfied that the removal of the last significant tree from the site would and, to the contrary, it would cause significant environmental impact, particularly when viewed from adjoining properties and the harbour. The proposed replacement tree would, in accordance with the agreed evidence of the arborists, take some 15 to 20 years to achieve the height of T5. That is too long to compensate for the loss of the tree and the impact of that loss.

76. I am however satisfied that the consent would be substantially the same as the original consent and the application has been notified in accordance with the requirements of the DCP.

77. Having regard to those issues raised in response to that notification and the evidence in these proceedings, I do not consider the proposal warrants approval. Those matters relevant to my consideration of the application are the LEP, SREPPSHC, SHFWADCP, DCP, the likely impacts of that development, including environmental impacts on both the natural and built environments, the suitability of the site for the development, the submissions and the public interest.

67. In considering the provisions of clauses 20 and 25 of SREPPSHC that require assessment as to whether a development provides for the maintenance, protection and enhancement of the scenic quality of foreshores and waterways I accept Ms Coull’s evidence that the scale, form, design and siting of the proposed building is inappropriate and excessive. It is also inconsistent with the DFC for the locality and does not maintain, protect or enhance the unique visual qualities of Sydney Harbour and its foreshores but rather detracts from this character through the construction of a large, bulky structure and removal of the last significant tree from the site. Whilst not an endemic species, T5 is an existing mature tree that should be retained and incorporated into the design of the development.

68. Retention of T5 contributes to the highly visible tree canopy that provides a dense green backdrop to views from Sydney Harbour and surrounding lands and its removal is therefore inappropriate, particularly as the arborists agree that it is healthy, has a lifespan of ten plus years and can be maintained on site as part of the development.

69. The DCP calls for buildings to be designed and sited to respond to the topography and minimise cut and fill. The proposal fails to achieve this objective and whilst the development does not technically involve cut or fill, the increases to the height and length of the structure are not responsive to the slope of the land and result in a significant increase to its height, that height presenting to the harbour.

70. The DCP also seeks to retain and reinforce the setting of mature street trees and garden plantings especially along the ridgeline by retaining existing trees and providing appropriate replacement planting. As stated above, I do not consider the replacement tree justifies the loss of the last remaining significant tree on the site. Finally, the additional hardstand area would not achieve the objective of retaining the landscape setting of the locality by maintaining landscaped areas around buildings and minimising hard stand areas.

71. When assessing the impact of the development, I must compare those impacts against that of the original consent and in this regard, I accept the evidence of Ms Coull and the objectors that the additional height bulk and scale of the development has now passed acceptable limits. It is well in excess of the controls provided for under the DCP and it would have adverse impacts on adjoining properties.

72. For these reasons, the application as it relates to removal of T5 and the increase in height and footprint of the deck and pool must be refused.

73. I do however find no reason that the contentions relating to the additional solar panels, modified lift configuration, new brick walls, cellar and modified internal layout should not be approved. For the just, cheap and quick resolution of the matter, it is appropriate to allow the applicant to prepare amended plans that delete the modifications to the deck/pool area and provide for the retention of T5. No works would be required to alter levels within the remaining deep soil area to the rear of the site.

Directions

85. The applicant is to file and serve amended plans including landscape plans within 14 days of this Judgment. Those plans are to:

1. Delete the fireplace and flue;

2. Delete the proposed modifications to the deck and pool area;

3. Delete any works that alter the levels of the deep soil area at the rear of the site;

4. Provide for the retention of Tree 5;

5. Provide for solar panels that are limited in height and projection so they are not visible from the street.

6. Accord to the proposed modifications for the remaining works detailed in the plans in Exhibit C.

86. The council is to file and serve amended conditions including a consolidated version of the conditions as modified within 7 days of the plans referred to in [85] being filed.

87. In accordance with the terms of the directions in my judgment of 7 February 2017, on 14 March 2017 the parties provided me with the agreed conditions of consent and the applicant provided me with amended plans. I am satisfied that the conditions of consent/amended plans accord with my findings and accordingly I make orders in chambers as follows:

1. The appeal is upheld.

2. Modification Application No. DA174.2014/4 to modify Development Consent No. DA174.2014/3 is determined by approving the modifications as set out in Annexure A.

3. As a consequence of Order 2, Development Consent No. DA174.2014/4 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

____________________

Sue Morris

Commissioner of the Court

318471.2016 Morris - Plans (1.08 MB, pdf)

318471.2016 (C Annexure B) (614 KB, pdf)

318471.2016 (C Annexure A) (88.0 KB, pdf)

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Amendments

15 March 2017 - Final Orders made in accordance with the Directions in judgment of 7 February 2017

Decision last updated: 15 March 2017