Newey AJ v Willoughby CC
[2003] NSWLEC 246
•09/18/2003
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Land and Environment Court
of New South Wales
CITATION: Newey AJ v Willoughby CC [2003] NSWLEC 246 PARTIES: Alana Jane Newey
Applicantv
Willoughby City Council
RespondentFILE NUMBER(S): 10754 of 2002 CORAM: Murrell C KEY ISSUES: :- Refusal of development application for a dwelling house
Exceedence in storeys and building height plane
SEPP 1 objections
Impact on the sreetscape and adjoining propertiesLEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning policy No 1
Willoughby Local Environmental Plan 2001CASES CITED: Winton Property Group v North Sydney Council NSWLEC 46 [2001] DATES OF HEARING: 21 and 22 August 2003 DATE OF JUDGMENT:
09/18/2003LEGAL REPRESENTATIVES:
Mr J E Robson, barristerGillis Delaney Brown
Mr D Parry, barrister
Mallesons Stephen Jaques
JUDGMENT:
In the Land and
Environment Court
of New South WalesHeard by: Commissioner J S Murrell
Decision date: 18 September 2003
Alana Jane Newey
V
Willoughby City Council
Judgment
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Willoughby City Council’s refusal of a development application for the site known as 38 Lower Cliff Avenue, Northbridge.
2 The surrounding area can be described as heavily vegetated and steeply sloping. The site adjoins what is known as Tunks Park and this is an extensive area of public open space.
3 Council’s character statement in terms of its DCP also describes the area which I will refer to later in this verbal judgment. Lower Cliff Road near the subject property is a divided road in this section of the locality and there are houses only on the southern side.
4 The proposal is for major alterations and additions to the existing dwelling. The existing dwelling is termite infested and from the development application it can be seen that little of the existing dwelling will remain as there are major alterations in terms of an additional storey to the street level and balconies on the southern side at all levels, including a large terrace proposed to the south suspended from the swimming pool area. The swimming pool is to remain ‘in situ’ in the development.
5 The proposal provides for a family dwelling with a floor space ratio 0.21:1. It is noted that in the scenic protection area a floor space ratio of 0.28: 1 is permissible.
6 The subject site is some 15.3 metres wide with seventy-four and seventy-eight metre side boundaries respectively to the east and west. The lot is one that is typical of the area in terms of its size and the steep topography of the site.
7 The site is zoned residential 2A2 in terms of council’s Local Environmental Plan known as the Willoughby LEP (1993) and the subject development application is permissable with development consent.
8 A relevant control in the LEP is that relating to storeys and a storey is defined in terms of the LEP to mean, “the space between any two successive floors or the space between natural ground level or any floor immediately above that level or the space between any floor and its ceiling or roof above any such space that exceeds 3.5 metres in height is counted as two storeys”.
9 In terms of the subject zone the general objectives include: to maintain the scale character and streetscape of individual localities; to obtain and enhance residential amenity including views, solar access, aural and visual privacy and landscape quality.
10 With respect to the scenic protection zone, the specific objective is to “accommodate housing, such that the scenic qualities including foreshores and bushland areas are maintained by protecting the land in the zone from over-development or visually intrusive developments and minimising the impact of hard surfaces ... and new development does not dominate the natural scenic qualities of the locality.”
11 The proposed development has a height varying between two and four storeys in terms of the definition of the LEP and this was agreed to between the parties and in this regard a State Environmental Planning Policy No. 1 objection was lodged with the development application.
12 Of particular relevance to this application is the provision contained in cl 18 of the LEP. This states that a person shall not erect a building more than two storeys within zone 2A or 2A2.
13 The relevant Development Control Plan is known as Development Control Plan No. 16 and this Development Control Plan as I stated earlier provides sections in terms of the character of various areas and the subject site is in the Northbridge Precinct. For streetscape it states that “traditionally dwellings built on the low side of the road are set below the road level, many are single storey and are not conspicuous and do not obstruct the view of dwellings located on the high side or vistas and different views from the roadway.”
14 The other relevant provisions are with respect to the desired future character of Northbridge. In terms of the peninsula's residential area it states that "siting and design of the building is to sensitively integrate with the built form with the contours of the natural landscape and maintain the predominance of natural landscaped areas on the site, maintaining adequate setbacks from side boundaries to ensure separation between dwellings and to allow vistas from the roadway.... to minimise the obstruction of views from neighbouring dwellings and to retain vistas. .. avoidance of high front fences, and consideration of the building height plane, bulk and roof pitch".
15 The DCP also contains a number of provisions with respect to landscape and scenic amenity and guidelines with performance criteria for matters such as privacy and solar access. With respect to height, the DCP provides the intention to control the height of new dwellings, additions and existing dwellings, so that:
1. the development is in harmony with bulk and scale of surrounding buildings;
2. to ensure a high visual quality of development;
3. to minimise disruption to existing views and to achieve view sharing; and
4 to maintain reasonable solar access and minimise overshadowing of adjacent properties..
16 The performance criteria in terms of height include “the building height will ensure that reasonable solar access to adjoining properties is maintained and significant views are not unduly compromised.” It also provides that building height should be stepped to follow the landform and be broken into sections to avoid large, unrelieved walls.
17 As I stated there are also requirements in terms of privacy to ameliorate adverse impacts on adjoining properties that I have taken into account.
18 For solar access, the objective is to maximise the energy efficiency of buildings and ensure sufficient solar access to living areas within dwellings and to open space areas of dwellings. It then details performance criteria, the design and siting of new buildings will maintain reasonable level of solar access to habitable rooms. Control 3 statesthat where possible, buildings should be sited to maintain approximately three hours solar access between 9am and 3pm on 22 June to living areas of adjoining properties.
19 I have considered the development application in accordance with the council’s controls in terms of both its DCP and its Local Environmental Plan. I have also had the benefit of a view undertaken in the presence of the parties and I have had the benefit of expert evidence and the evidence of residents.
20 On behalf of the applicant evidence was given by Mr Terry Byrnes, a consultant town planner and architect. For the council Mr Garry Chapman gave evidence to the Court and expert statements of evidence were also tendered.
21 The Court also had the benefit of shadow diagrams that were prepared by a consultant on behalf of the council and the applicant did not dispute their accuracy in the proceedings.
22 Also Mrs Mayer of No. 36 Lower Cliff Avenue gave evidence to the Court. Her concerns related to the impact of the proposed development in terms of overshadowing of her living room. She advised the Court that her dwelling is south facing and in that regard it receives very little solar access. The solar access however would be severely impacted by the proposed development in terms of her western windows of her front living room.
23 Mr Crispin from No. 40 was mainly concerned about the impact of the proposed development on the aspect or outlook from his upper level which contains a master bedroom and associated facilities.
24 I have read all the documentation that has been made available to the Court submitted on behalf of both the applicant and the council and this includes the history of the development application. .
25 One of the difficulties that arose was the fact that the shadow diagrams that had been prepared and submitted with the development application were proven to be incorrect and the State Environmental Planning Policy No. 1 objection submitted and prepared by the applicant’s expert was based on the incorrect shadow diagrams. Mr Byrnes however did provide oral evidence to the Court having the benefit of the accurate shadow diagrams, that he did not question, and these comments with respect to the adequacy of the proposed development in terms of the SEPP 1 assessment and his merit assessment have been taken into consideration in the Court's assessment.
26 The question of the State Environmental Planning Policy No. 1 objection is a threshold question in these proceedings. The standard is one that is contained within the Local Environmental Plan as I stated earlier under cl 18. The State Environmental Planning Policy requires an assessment of the variation sought and in carrying out that assessment the purpose or objective of the standard must be considered.
27 There was evidence to the Court expressed on behalf of the applicant that the standard in the circumstances of this case was not reasonable and it would be difficult for a development to comply with the standard in terms of the site and topography.
28 I will state at this point in my verbal judgment that the State Environmental Planning Policy No. 1 in my assessment fails and therefore the development application fails. And my reasons are provided as follows.
29 I have been guided by the judgment of Winton Property Group Limited v North Sydney Council, a judgment of his Honour Lloyd J, NSWLEC 46 (2001). In this judgment his Honour reiterates the steps that the Court, or in fact any consent authority, must go through in terms of the assessment of a SEPP 1 objection and refers to the previous judgment of his Honour Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council. In Hooker his Honour stated that it is first necessary to discern the underlying objective or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance is unnecessary or unreasonable in the circumstances of the case. Cripps J states further that:
The objection is not advanced in my opinion by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.
30 Lloyd J then provides a number of questions that must be answered in an assessment of a SEPP 1.
- It requires the answers to a number of questions. First is the planning control a development standard, second what are the underlying objectives or purpose. Third is compliance with the standard consistent with the aims of the policy and in particular does compliance with the development standard tend to hinder the obtainment of the objects of the Act. Fourth is compliance with a development standard unreasonable or unnecessary in the circumstances of the case and fifthly is the objection well founded.
31 There are no specific objectives in cl 18 of the LEP, however it was generally agreed between the parties that the purpose of the development standard for height can be informed by the objects of the zone and the Development Control Plan, and as such whilst I have already indicated what they are, in summary the height limitation has underlying objectives including to ensure that the amenity of adjoining properties is not significantly impacted and in that context matters such as view loss and overshadowing or solar access are matters to be taken into consideration.
32 The height limitation also relates to the building being appropriate in terms of its context in the streetscape and it is also to provide guidance in terms of the impact of a building in terms of the public domain.
33 In terms of the SEPP 1 objection, the aim of the policy does provide for flexibility where strict compliance would be unreasonable or unnecessary.
34 In cross-examination Mr Byrnes agreed that part of the top floor level that contains the master bedroom and associated facilities in terms of a walk-in wardrobe, en suite, 2.7 metre wide balcony, ironing area, et cetera, was that part of the development which not only exceeded the number of storeys but also created the impact on No. 36 in terms of overshadowing.
35 Mr Byrnes in his statement of evidence commented that it was illustrated that the plans demonstrated that at relevant times on the shortest day there will be sunshine available to the southernmost window of the upper storey of No. 36 and his SEPP 1 objection was also based on the fact that solar access would be maintained.
36 However, in terms of the shadow diagrams tendered it is an agreed fact that solar access is reduced from the three hour minimum that council considers appropriate to one and a quarter hours.
37 Mr Byrnes in his oral evidence stated that this particular impact was still not unreasonable because in his opinion the solar access received by No. 36 was not 'meaningful'. It was not meaningful in Mr Byrnes' opinion because it only provided a beam of sunlight or sunshine to the living areas through the western windows to the front living area for No. 36.
38 Granted the solar access to No. 36 is not ideal, however, the sunlight that is received by No. 36 no doubt most meaningful to the occupants of that dwelling. To reduce the limited solar access available from approximately three hours to one and a quarter hours is in the Court’s opinion determinative and fatal to the application in terms of both an assessment under State Environmental Planning Policy No. 1 and a merits assessment of the application under s79C.
39 I do not consider that the State Environmental Planning Policy No. 1 objection is well founded and therefore the application must fail.
40 With respect to the other underlying objectives of the height requirement in cl 18, that is views, I do not believe that this is a matter that would warrant refusal of the application.
41 The neighbour at No 40 expressed concern regarding the impact of the proposal on the outlook from the side master suite window. In my assessment I have had regard to the fact that this room enjoys extensive views of the park from the southern windows and balcony and I would call this the primary view from this room. And whilst there would be an impact in terms of the outlook from the side window of the bedroom it is also a secondary room and on balance in the Court’s opinion it would not warrant refusal of the application.
42 As I stated the application has a rather unfortunate history in that the overshadowing assessment submitted with the application was erroneous, however , I also have the benefit of the oral evidence tothe Court and I am not satisfied that the SEPP 1 objection is well founded and I do not accept that the solar access to No. 36 is 'not meaningful' and on that basis I have been persuaded by the evidence presented on behalf of the council that the SEPP 1 objection should not be allowed.
43 I also note in the documentation that solar access and overshadowing is an issue that was raised very early in terms of the history of this development application and it is unfortunate for the applicant that this issue was not accurately addressed earlier so that alternatives may have been looked at.
44 While it is not necessary for me to further assess the application because the SEPP1 objection is not upheld, however, by way of comment with respect to the issue of the built form, the respondent was of the opinion that the streetscape would be impacted by the proposed upper storey rising above the street in that it did not provide a transition in terms of reading the topography.
45 The applicant on the other hand provided evidence that the streetscape would not be unduly impacted by the addition because view corridors could still be obtained through or between buildings and that the height was not one that was unreasonable in terms of the streetscape.
46 There were questions also asked of the applicant's expert as to what would be required to reduce the impact on No. 36 to still provide solar access and clearly the configuration of the upstairs master bedroom area could not be achieved in the design proposed by a further setback from the boundary with No. 36.
47 With respect to the proposed building, in the Court’s opinion it does not follow the guidelines expressed in council’s controls or Development Control Plan in terms of the topography or stepping down with the topography. The applicant argued that the footprint of the existing building is not increased. That is so, but the heights and the impact of the dwelling in terms of the exceedance in the storey limitation makes for a building that presents as greater bulk than is contemplated by the controls and therefore when viewed from the public domain it is not one that relates and sits comfortably in terms of the site.
48 While the Court agrees with the applicant that there should not be slavish adherence to standards, however, at the same time a critical part of the merits assessment includes what the impacts are that flow from the exceedances. In this case clearly the exceedance in the storey limitation and the building height plan for the upper level are ones that are unacceptable in the Court’s assessment of the application.
49 This is not to say that future development of this particular site will meet the standards and controls contained in council’s Development Control Plan slavishly, however, the true assessment is in terms of what the impacts are that flow from such non-compliances.
50 With respect to the issue of overlooking from the proposed development to the adjoining properties, once again while the extensive balconies are desired by the applicant at the same time the impact on adjoining neighbours must be considered and it is noted that there are balconies proposed at all levels. It is also noted that mutual overlooking occurrs in areas of steep topography that enjoy either bushland or water views and a certain amount of overlooking is generally accepted. And while ameliorative measures can be taken in terms of landscaping and screening, however, in the current application before me the overlooking from the various levels from this dwelling would appear to be excessive. This is not to say that some overlooking would not be acceptable , but in this instance I consider it to be excessive.
51 I have concluded in my assessment that: in terms of the threshold question which I have looked at in some detail, the objection under the State Environment Planning Policy No. 1 should not be approved; and on a merits assessment the application does not warrant approval.
52 Therefore the orders of the Court are:
1. The appeal in respect of the property known as No. 38 Lower Cliff Avenue, Northbridge
is dismissed.3. The exhibits are returned.2. The development application submitted to Willoughby City Council, and as amended,
is determined by the refusal of consent.
J S Murrell
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