Parker Logan Property Pty Ltd v Woollahra Municipal Council

[2016] NSWLEC 1410

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Parker Logan Property Pty Ltd v Woollahra Municipal Council [2016] NSWLEC 1410
Hearing dates:	9 September 2016
Date of orders:	12 September 2016
Decision date:	12 September 2016
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1. The appeal is upheld. 2. Development consent for the demolition of the existing dwellings and the construction of a new residential flat building including excavation for basement level parking and strata subdivision of land at 254 – 256 Old South Head Road, Bellevue Hill is granted in accordance with DA 584/2015 and the amended plans prepared by Nicholas Tang Architects (Drawings number LEC 100 – 104, 200 – 204 and 300 – 302, Issue 1 dated 2 June 2016) in (Exhibit A) subject to the extension of the blade wall on the north eastern boundary as recorded in paragraph [ 22 ] of my judgment; and the imposition of the Council’s draft conditions of consent in Exhibit 5. 3. The Council is directed to file with the Court the final conditions of consent reflecting my reasons for judgment within 7 days. 4. The exhibits are returned apart from A, 2 and 5.
Catchwords:	APPEAL – Development application – residential flat building – amenity and privacy impacts – retention of mature Tallowwood tree
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014 Woollahra Development Control plan 2015
Category:	Principal judgment
Parties:	Parker Logan Property Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Anthony Boskovitz (Applicant) Jane Hewitt (Respondent)   Solicitors: Boskovitz & Associates Solicitors (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/00151414

Ex TEMPORE JUDGMENT

1. This appeal relates to a development application for the construction of a four storey residential flat building at 254 – 256 Old South Head Road, Bellevue Hill. It is brought in Class 1 of the Court’s jurisdiction pursuant to Part 3 Division 1 Section 17 of the Land and Environment Court Act 1979 (NSW) (LEC Act) and Part 4 Division 8 Section 97 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

2. The development application (DA 584/2015/1), lodged by the applicant Parker Logan Property Pty Ltd on 23 November 2015, was notified by the Woollahra Council on 2 December 2015. At that time the DA proposed a floor space ratio (FSR) of 0.957:1 - well in excess of the maximum permissible FSR prescribed under clause 4.4(2) of the Woollahra Local Environmental Plan 2014 (LEP 2014) - it was supported by a clause 4.6 variation statement. The average rear boundary setback was proposed at 4.7m and non-compliant with the average required setback of 5.15m as per B.3.2.4 C1 and C3 of the Woollahra Development Control Plan 2015 (DEC 2015). The proposed north eastern side boundary setback was 2.9m and non-compliant with the required side boundary setback of 4.9 -5.2 m as per B.3.2.3 C3 of the Woollahra DCP2015. The south western side boundary of 3m was non – complaint with the required side boundary setback of 4.9 -5.2 m under the DCP 2015. The DA also anticipated the removal of the healthy, mature Tallowwood tree growing adjacent to the central section of the combined rear boundary contrary to the provision of cl5.9(1) of the Woollahra LEP and the provisions of B1.7.2.07, B3.7.107, B3.71C16 E3.3.1&E3.3.2 of Woollahra DCP 2015.

3. Not surprisingly, the DA generated substantial local community objection – particularly from the unit holders of the apartment block behind the development site in Birriga Road. However, before the Council had opportunity to finally determine the development application the applicant lodged these proceedings on 29th February 2016 to challenge the Council’s deemed refusal of the DA.

4. On 18 March 2016 the Council filed and served a Statement of Facts and Contentions (SOFC) (Exhibit 2) setting out the basis of its objection to the applicant’s DA.

5. Shortly thereafter I was asked to facilitate a s34 conciliation conference between the parties at the development site. The issues for discussion at the conference were those set out in the SOFC. A number of local objectors, most of whom reside within the residential flat building behind the development site known as 59 - 61 Birriga Road Bellevue Hill, were invited to address the process. Some of them requested that the Court inspect their homes and receive their oral submissions from the balconies of their apartments in order to better appreciate their amenity and privacy concerns and view loss. The Court also received oral evidence from a representative of the residential flat building adjoining the north eastern boundary of the development site at 258 Old South head. The north east neighbours were principally concerned about sight lines and safe ingress and egress from Old South Head Road into the basement car park of the development. They wanted the driveway to be moved away from their boundary.

6. Generally speaking, the Council and resident objectors position at the s34 conference was that the development was too big and too close to the existing residential apartments at the rear. It was said that the proposal’s non-compliance with the Council’s FSR and the rear and side boundary setback planning controls generated unacceptable amenity impacts for the residents in Birriga Road at the rear of the site. In particular, the unit holders 1, 2, 3, 4, 5 and 6. Many of the written and oral objections received by the Council and the Court also objected to the removal of the mature Tallowwood tree on the north western boundary. Most of the submitters believed that it was a major negative of the development because the tree’s removal exacerbated the privacy impacts of the development and facilitated direct overlooking from the balconies of the proposed development into living areas and bedrooms of the units at the rear. Some of the residents at the rear, particularly the owners of units 2 and 3, complained about a loss of water and district views between buildings on the north-eastern side of the development site.

7. In response to the matters discussed at the s34 conference, and the written objections received by the Council, the Applicant requested an opportunity to amend it plans and stormwater design. With the agreement of the Council the conference was adjourned to facilitate that task before being terminated at the request of the parties. The amended plans prepared by Nicholas Tang Architects (Drawings number LEC 100 – 104, 200 – 204 and 300 – 302, Issue 1 dated 2 June 2016) (the amended plans) were formerly substituted into the proceedings at the outset of the hearing and are in (Exhibit A)). The principal amendments to the original application include:

• increase setback of the north-eastern elevation on ground, first and top floor deleting 21 sqm of gross floor area;

• move the north western glass wall to the rear units 1.02, 1.03, 1.04 and 2.02, 2.03, and 2.04 in by 500 mm away from the rear facade on the ground and first floors;

• internal reconfiguration and reduction in size of apartments 1.02, 1.03, 1.04, 1.05 on the first floor, 2.02, 2.03 and 2.05 on the second floor and changes to the apartment 3.02;

• modifications result in the deletion of 47 sqm of GFA (gross floor area) such that the application is compliant with the floor space ratio control of 0.9: 1 for the site;

• the rear second floor balconies are setback to establish a 6 m setback from the common boundary with 59 and 57 Birriga Road;

• OSD tank is relocated and enlarged and modifications made to the street pit;

• the Tallowwood tree on the north western boundary of the property is to be retained;

• Infill planting of Lilly Pilly along the rear boundary to provide screening of the development from the existing residential flat building adjoining the rear boundary.

8. The submitters who had previously objected to the proposal were notified about the amended plans by letter dated 28 July 2016. They were also advised that the conciliation has been formerly terminated between the parties and that I had been asked to determine the matter after a further hearing in accordance with s 34(4) (b) (1) of the LEC Act.

9. At the commencement of the further hearing the parties agreed that the earlier evidence taken onsite at the s34 conference was evidence for the purposes of the s34 (4) (b) hearing. I was also advised that the amended plans and information provided by the applicant now satisfactorily addressed the Council’s concerns and it no longer raised objection to a conditional approval of the DA – although the residents’ concerns remained.

10. The Council tendered a joint report from the following experts:

• Mr David Booth , Town Planner for the Council;

• Mr Jeffrey Meed , Consultant Town Planner for the applicant;

• Ms Simone Woodman, Arborist consultant for the Council; and

• Mr Peter Richards, Arborist consultant for the applicant.

11. The joint report addressed the amended plans (exhibit A). It recorded that the experts agreed that the revised architectural plans and additional supporting information resolved the issues in contention. Shortly stated, each of the experts supported a conditional approval of the DA.

12. At the hearing the parties’ town planners explained to me how the amended plans had addressed the contentions in the SOFC and gave additional oral evidence in response to the objector’s concerns.

Objectors’ evidence

13. Two of the earlier submitters and the new owner of apartment 5 elected to give additional evidence at the further hearing.

14. Greg Flynn and his wife are the recent purchasers of unit 5/59 – 61 Birriga Road, Bellevue Hill. They have reviewed the amended plans and are concerned about the privacy impacts of the development for their unit. In particular, their loss of privacy caused by the direct overlooking from the development into their living room and bedroom. Mr Flynn said that his property was the most adversely affected by the development and asked the Court to consider requiring the placement of privacy screens on the balcony opposite at the mid-level to assist with this privacy/ overlooking impact. While Mr Flynn accepted that the existing Tallowwood tree and additional screening by Lilly Pilly would provide some future amenity to his apartment he was concerned about the length of time for growth of that vegetation and its likely height. Ultimately, he believed that the landscaping would have little impact in resolving the privacy impacts generated by the proposal. The Court has read Mr Flynn’s written objection to the DA within the Council’s bundle of documents Exhibit 6.

15. The next resident to address the Court was Mr Alex Thompson who resides with his family at unit 3/ 59 - 61 Birriga Road.

16. Mr Thompson gave evidence at the section 34 conference and the Court inspected his unit. At the outset Mr Thompson acknowledged the efforts that the developer had undertaken to try and address some of the concerns raised by the residents through the amended plans. Despite those improvements Mr Thompson was still concerned about the view impacts for his property. Ideally he would like the top floor removed and if not some further privacy screening on the balconies opposite his apartment. The Court has read Mr Thompson’s written submissions to the Court (Exhibit 6).

17. The last resident to give evidence at the hearing was Mr Dean Krowitz of unit 2/59 - 61 Birriga a Road, Bellevue Hill.

18. Mr Krowitz attended the section 34 conference and the Court inspected his apartment. At that time he provided various photographs to explain his understanding of the impact on the development on his property and other units within the development. His photographs are also within the council’s bundle attached to his written objections (Exhibit 6).

19. Mr Krowitz is concerned about loss of privacy and loss of view. In his assessment the development remains too big for its parcel of land. As it currently stands Mr Krowitz believes that the residents of the new development will be able to look directly into his master bedroom and living room. He too would like the top floor to be removed, or at least the inclusion of screening to the balcony to improve the privacy issues raised by the current design in its amended form.

Town planning evidence

20. As already stated it is clear from the joint report that the planners do not believe that there is any issue with the amended application such as to warrant refusal of the development. Mr Booth, the Councils planner was asked questions directly in respect of the issues raised by the residents. With respect to the amended side setback Mr Booth conceded that the development on the north-eastern side still does not comply with the DCP requirement which is currently 15% of the site width. Despite that, given the site width of 23 m, Mr Booth told me that in his assessment the 3 m setback at the North eastern corner which splays to 5 m at Old South Head Road boundary is appropriate to ensure privacy and a separation of buildings which allows for a view corridor. Mr Booth explained to the Court that the 15% control in the DCP is currently the subject of review and in his assessment a 3 m setback on the side boundary is adequate. In this case the amenity of the adjoining residential flat building is preserved as there are no window openings along that boundary and there is sufficient solar access provided by the setback.

21. With respect to view loss Mr Booth said that in his assessment the views from the property behind the site are views over the development rather than through the side boundary. And, in his opinion these views over the development will not be unacceptably impacted upon. The amended proposal sits within the Council’s height controls - (the amended Plan 300- Section 1 demonstrates that the height is 600 mm lower at the worst point and more than fully compliant elsewhere). The amended proposal now has a 6m setback from the rear boundary and both in terms of Councils DCP controls and the separation setback requirements of the Apartment Design Guide (ADG) the development is acceptable as it adopts the more onerous setback requirements under the ADG. Furthermore, at the upper level which has the most sensitive interface with the adjoining properties of numbers 57 to 59 Birriga Road, the proposal provides a setback of between 10 m and 14 m thereby in most areas well exceeding the minimum requirement under the DCP and the ADG.

22. Mr Booth explained to the Court that the privacy issue could have been addressed in two different ways in the amended plans. The applicant had elected to reduce the size of the rear balconies on the mid-levels rather than erect privacy screens on larger balconies. He supported this amendment and said that the reduced size / splayed balconies – with a width of 2.5 m at their deepest and narrowing to one metre (together with the 6 m setback from the rear boundary) would achieve acceptable privacy and allow for better amenity from within the proposed development. Under the amended design the new units will have a green outlook rather than be boxed in with a privacy screens. In time Mr Booth believed that the infill landscaping would assist as an appropriate screen / landscape buffer between the two developments. With respect to the side boundary on the north-eastern side – and to address the concerns raised by Mr Krowitz it was agreed that a 1.5 m extension of the blade wall on the north eastern boundary should be incorporated into the approved design to improve the privacy for unit 2. The extended wall is not believed have little impact on view down this corridor. While the proposed amended application does not change the setback on the south-western side the Council did not raise any particular concerns in respect of this aspect such as to warrant refusal of the application.

23. Mr Booth and Mr Mead agreed that the retention of the Tallowwood tree will also have beneficial impacts in terms of minimising visual impacts and improving privacy relationships. Together with the infill planting of the Lilly Pilly along the boundary which is expected to grow to a reasonable height the planners said that in time there will be an appropriate landscape buffer between the new development and the existing residential flat building behind. The planning evidence in respect of the landscaping was supported by the arboreal evidence. Mr Simpson (Ms Woodman’s supervisor) who gave evidence in respect of arboreal matters agreed, subject to the imposition of the Council’s draft conditions of consent, that despite some pruning the Tallowwood tree would be able to be retained based on the tree report by Tree & Landscape Consultants dated 10 June 2016 (Exhibit C), and that the proposed advanced infill plantings would in time provide an acceptable landscape screen.

Conclusion

24. Having considered all of the expert planning and arboreal evidence and the written and oral submissions of the residents I am satisfied that the amended application is acceptable after assessment under s79C of the EPA Act.

25. The design is more than compliant with respect to height, FSR and rear setback. It is in my opinion a vast improvement on the original application. The retention of the Tallowwood tree on the north eastern rear boundary is an important element of the existing amenity for the residents in 59 – 61 Birriga Road Bellevue Hill. Its retention is a positive aspect of the development as it ensures some privacy for the residence in 59 to 61 Birriga Road Bellevue Hill and together with the proposed advanced infill planting a landscape buffer along that rear boundary. As Mr Booth indicated the residences of Birriga Road have the opportunity to put some additional planting on their existing balconies to further screen the new development as do the residents of the new proposal. I do not believe that additional screening on the balconies of the mid-levels of the development is on balance appropriate as it will generate poor amenity for the residents of the new development. The balconies are already drastically reduced in size and offer no real useable space in my assessment. They would not be able to accommodate any substantial outdoor furniture and given there dimensions the number of people who would be able to use them and look out is restricted. In my assessment the separation distances between the balconies of the new development and the exiting apartments (which ranges from 10m to 14 m) is appropriate and there is no need for enclosure of the new development by screens.

For the reasons stated I make the following orders:

1. The appeal is upheld.

2. Development consent for the demolition of the existing dwellings and the construction of a new residential flat building including excavation for basement level parking and strata subdivision of land at 254 – 256 Old South Head Road, Bellevue Hill is granted in accordance with DA 584/2015 and the amended plans prepared by Nicholas Tang Architects (Drawings number LEC 100 – 104, 200 – 204 and 300 – 302, Issue 1 dated 2 June 2016) in (Exhibit A) subject to the extension of the blade wall on the north eastern boundary as recorded in paragraph [ 22 ] of my judgment; and the imposition of the Council’s draft conditions of consent in Exhibit 5.

3. The Council is directed to file with the Court the final conditions of consent reflecting my reasons for judgment within 7 days.

4. The exhibits are returned apart from A, 2 and 5.

Susan Dixon

Commissioner

151414.16 - Annexure A (471 KB, pdf)

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Amendments

24 November 2016 - Amended Order (2) on the cover sheet and in paragraph [25].

26 September 2016 - Added PDF Conditions of Consent.

Decision last updated: 24 November 2016