Parker Logan Pty Ltd v Woollahra Municipal Council

[2015] NSWLEC 1458

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parker Logan Pty Ltd v Woollahra Municipal Council [2015] NSWLEC 1458
Hearing dates:	22 – 23 October, 2015
Date of orders:	13 November 2015
Decision date:	13 November 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 111/2015/1 for a residential flat building and associated works at 9A Cooper Park Road, Bellevue Hill, is refused. 3. The exhibits, other than exhibits 2, A and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION: residential flat building; exceedance of the floor space ratio development standard; impacts on the amenity of adjoining properties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 Wehbe v Pittwater Council (2007) 156 LGERA 446 Tenacity Consulting v Warringah (2004) NSWLEC 140)
Category:	Principal judgment
Parties:	Parker Logan Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Mr Ian Hemmings SC (Applicant) Mr S. Patterson solicitor (Respondent) Solicitors: Hall & Wilcox Solicitors (Applicant) Wiltshire Webb Staunton Beattie Solicitors (Respondent)
File Number(s):	10387 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 111/2015/1 for a residential flat building consisting of 29 apartments and basement parking for 51 cars (the proposal) at 9A Cooper Park Road, Bellevue Hill (the site) by Woollahra Council (the Council).

2. The appeal was subject to mandatory conciliation on 23 July 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated on 23 July, 2015, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 7 August 2015 for the applicant to rely on the amended proposal.

Issues

3. The Council’s contentions in the matter can be summarised as:

• The floor space ratio (FSR) exceeds the FSR standard in the saved instrument, resulting in adverse amenity impacts to adjoining properties;

• The inadequate setback and height of the proposal in the western corner of the site results in unacceptable amenity impacts on the dwelling at 17 Cooper Park Road, Bellevue Hill;

• The proposal results in the loss of views to the apartment at 5/60 Bellevue Road, Bellevue Hill;

• The proposal involves excessive excavation.

The site and its context

4. The site is 3,906sqm in area and is irregular in shape. The site does not have a street frontage and is accessed via an access handle on the north-western side of the site, located between 7 and 11 Cooper Park Road. There is a second access handle to the south-east of the site.

5. The site is located on a hill which falls to the south and south-west, towards the gully of Cooper Park. The site is a former bowling green and was formed by a retaining wall along the south-western boundary, which is approximately 8 metres in height at its highest point, to create a level site on the side of a hill. The site was recently rezoned and sold by Council.

6. The site is to the rear of 11, 17 and 17A Cooper Park Road. 17 Cooper Park Road is a single family dwelling on an irregular allotment which shares its south-eastern side/rear boundary and rear eastern boundary with the site. 17A Cooper Park Road is a ‘villa development’, consisting of a number of individual buildings each containing two dwellings side by side, of which units 20 and 21 are adjacent to the south-western boundary of the site, units 18 and 19 are adjacent to the southern corner of the site and units 16 and 17 are adjacent to the south-eastern boundary of the site. The tennis court of 17A Cooper Street is to the north-east of unit 16, adjacent to the south-eastern boundary of the site.

7. There are seven properties fronting Bellevue Road, numbers 58 to 72 Bellevue Road, which back onto the north-eastern boundary of main body of the site (except for 66 Bellevue Road, which is separated from the north-eastern boundary of the site by the tennis court at 70 Bellevue Road). Each of these properties overlooks the site.

The proposal

8. The proposal includes the following works:

• Construction of an access driveway;

• Excavation to create a basement car park comprising 51 car spaces, storage, bin storage, rainwater tank and vertical access;

• Two matching rectangular blocks side by side, of two and three storeys, positioned north-east to south-west, comprising a total of 29 apartments, including 24 two bedroom apartments on the first and second levels all with living areas facing north-west and 5 three bedroom apartments on the third level;

• Associated landscaping and communal areas.

Planning framework

9. The proposal is subject to the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(a)(i). Consideration is to be given to the design quality of residential flat development, when evaluated in accordance with the design quality principles, at cl 30(2)(b) of SEPP 65 and the publication Residential Flat Design Code (RFDC) at cl 30(2)(c). Amendment No 3 of SEPP 65, including the ‘Apartment Design Guide’ (ADG) commenced on 17 July 2015. The Residential Flat Design Code applies to applications lodged prior to 19 June 2015 and not finally determined, pursuant to the savings provision at cl 31(2).

10. The development application was lodged on 18 March 2015. Woollahra Local Environment Plan 2014 (LEP 2014) was made on 23 May 2015. LEP 2014 contains the standard instrument savings provision at cl 1.8A, requiring the application to be determined as if the plan had not commenced.

11. The site is zoned 2(b) residential and residential flat buildings are permissible with consent in the 2(b) zone, pursuant to Woollahra Local Environment Plan 1995 (LEP 1995). The relevant objectives of the zone are to provide for areas of medium and high density residential development in appropriate locations and to encourage a diversity of dwelling types and tenure.

12. The FSR development standard for the site is 0.625:1 and the objectives of the FSR standard, at cl 11AA of LEP 1995, are as follows:

(a) to set the maximum density for new development,

(b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities,

(c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and

(d) to relate new development to the existing character of surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point.

13. The parties agree that the FSR development standard in LEP 2014 is a relevant consideration, on the basis that LEP 2014 is imminent and certain by virtue of the fact that it is now made (Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at [21] - [30]) and because the objectives of the FSR standard in LEP 1995 require consideration of the desired future character objectives of the locality and this is encapsulated by the FSR development standard in LEP 2014.

14. The site is zoned R3 Medium Density Residential under LEP 2014 (Land Zoning Map LZM_003 LEP 2014). The FSR development standard for the site in LEP 2014 is 0.63:1 and the objectives of the FSR development standard are as follows:

(a) for development in Zone R3 Medium Density Residential:

(i) to ensure the bulk and scale of new development is compatible with the desired future character of the area, and

(ii) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, and

(iii) to ensure that development allows adequate provision on the land for deep soil planting and areas of private open space,

15. Relevantly, cl 4.5 of LEP 2014 includes the following regarding the calculation of FSR:

Calculation of floor space ratio and site area

(1) Objectives

The objectives of this clause are as follows:

(a) to define floor space ratio,

(b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to:

(i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii) require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio”

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area

In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:

(a) if the proposed development is to be carried out on only one lot, the area of that lot, or

(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

16. When considering an application for consent of development involving the excavation of any land, the consent authority is to have regard to how that excavation may temporarily or permanently affect the amenity of the neighbourhood and public safety, at cl 18 of LEP 1995.

17. The Woollahra Development Control Plan 2014 (DCP 2014) contains the following savings provision which applies to the application as it was made prior to the commencement of DCP 2014:

A1.1.9 Savings and transitional provisions relating to development application

Despite Section 1.1.8 regarding the repeal of DCPs, policies and codes, the DCPs listed in Section 1.1.8 above will continue to apply to development applications (DAs), applications to modify development consents and applications for review of a determination, that were made prior to but not determined on the date of commencement of this DCP. 

18. The Development Control Plan for 9A Cooper Park Road, Bellevue Hill (site specific DCP) includes the following relevant objectives:

• to guide the design and location of development and to address the amenity of adjoining properties;

• to ensure that the siting of development does not unreasonably impact of adjoining properties; and

• to ensure development is designed to reflect view sharing principles.

19. The parties agree that the precinct controls for Bellevue Hill South in the Woollahra Development Control Plan 2003 (DCP 2003) do not apply to the site, as the site was excluded from the precinct when DCP 2003 was adopted by being left uncoloured on the precinct map (Figure 4.6.1 of DCP 2003), because it was zoned for community use at that time.

20. The Council submits that the following general objectives and controls in DCP 2003 are relevant to my consideration of the proposal:

• To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents (O 5.2.2); To ensure the form and scale of development is not excessive and maintains the continuity of building forms (O 5.2.3) and to limit excavation and minimise cut and fill to ensure that building form relates to the topography (O 5.2.4);

• Buildings are designed and located to acknowledge the private open space of surrounding development by keeping upper storey parts of buildings away from neighbouring private open space and to avoid an unreasonable sense of enclosure and using articulation, colour and detailing to reduce visual bulk (C 5.3.10);

• To encourage view sharing as a means of ensuring equitable access to views from dwellings (O 5.5.2);

• Balconies, terraces, decks, roof terraces and other like areas within a development are suitably located and screened to prevent direct views into habitable rooms, including bedrooms, or private open space of the adjoining and adjacent dwellings (C 5.8.6); and

• The area of site excavated for the purpose of underground car parking is limited to the building footprint of the development (C 5.9.1).

Public submissions

21. Seven objectors provided evidence at the commencement of the hearing on-site. The Court, in the company of the parties and their experts, viewed the site from the following adjoining properties:

• 17 Cooper Park Road

• tennis court at 17A Cooper Park Road

• 17, 19, 20 and 21/17A Cooper Park Road

• 66 Bellevue Road

• 5/60 Bellevue Road

22. The issues raised by the resident objectors can be summarised as follows:

• The proposal will overlook the pool, outdoor eating area, backyard, study and bedroom windows of 17 Cooper Park Road and the scale and proximity of the proposal in the western corner of the site will have a significant impact on the amenity of 17 Cooper Park Road;

• The proposal will overshadow and overlook the residents at 17A Cooper Park Road and the scale, box like form and proximity of the proposal will have a detrimental impact on 17A Cooper Park Road;

• The proposal will impact on the amenity and outlook of the adjacent properties fronting Bellevue Road;

• The proposal will have a severe impact on the outlook from apartment 5/60 Bellevue Road; and

• The proposal will impact on traffic in the local area, particularly on weekends, when there is significant on-street parking associated with Cooper Park.

Expert evidence

23. Expert planning evidence was provided by Mr Jeffrey Mead on behalf of the applicant and Mr Simon Taylor on behalf of the Council. Expert urban design evidence was provided by Mr Tom Jones on behalf of the Council.

Consideration

Non-compliance with the floor space ratio (FSR) development standard in LEP 1995

24. The parties agree that the proposal exceeds the FSR development standard in LEP 1995 and it is the Council’s contention that the exceedance of the FSR standard results in adverse amenity impacts to adjoining properties.

25. The applicant submitted a State Environmental Planning Policy No 1—Development Standards (SEPP 1) objection to the FSR development standard (exhibit C). As found in the judgment of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42], the most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, on the basis that development standards are not ends in themselves but means of achieving ends, at [43]. A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary, at [45]. A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable, at [46]. A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable, at [47].

26. The Court must be satisfied of the following matters before it can uphold a SEPP 1 objection:

• The objection is well founded, at clause 7 of SEPP 1;

• That the granting consent to the development application is consistent with the aims and objectives of the SEPP 1 policy, as set out in clause 3, to provide flexibility in the application of planning controls, operating by virtue of development standards, in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act; and

• That a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection.

27. The parties agree that the FSR of the proposal, calculated according to the definitions of gross floor area and site area in LEP 1995 (which excludes “any long narrow corridor or accessway in the case of hatchet shaped or irregular allotments”) is 0.79:1.

28. The relevant objectives of the FSR development standard in the saved instrument, LEP 1995, are to set the maximum density for new development; to control building density, bulk and scale in residential localities to achieve the desired future character objectives of the locality; to minimise adverse environmental effect on the use and enjoyment of adjoining properties and to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape and any other relevant panoramic viewing point.

29. The SEPP 1 objection justifies the exceedance of the FSR development standard in LEP 1995 as being consistent with the objectives of the FSR development standard, notwithstanding the numerical non-compliance, as follows:

• The proposal complies with the FSR development standard in LEP 2014, which indicates that the proposal is of a scale and size that is encouraged, or envisaged, by the updated planning controls for the site;

• The desired future character objectives are dictated by the FSR development standard now in force, in LEP 2014, which has a slightly increased FSR allowance for the site, combined with definitions of site area and gross floor area that are effectively more generous in the allowance of gross floor space by including the site area of access handles in the site area definition for the calculation of FSR and measuring floor area to the inside face of external walls instead of including the area of external walls in the calculation of FSR;

• LEP 2014 maintains the surrounding land zone as R3 medium density residential, being also capable of development of the scale proposed for the site or larger;

• In terms of the proposal’s impact on adjoining development, the proposal’s non-compliance with the FSR development standard does not result in any significant additional impacts of overshadowing; privacy impacts have been minimised as far as practicable through the orientation of the proposal and complying setbacks; and the proposal is consistent with view sharing principles;

• The site does not form part of any streetscape and is considered consistent with the context.

30. For reasons set out in the following section of the judgment, I am not persuaded that, when tested against the relevant FSR objectives of LEP 1995, the proposal meets objectives (c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties; and (d) to relate new development to the existing character of surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point. Strict compliance with the FSR development standard in LEP 1995 has not been demonstrated by the proposal as being either unnecessary or unreasonable, as the proposal does not achieve the outcomes required by the planning objectives and consequently, the proposal should be refused.

31. I accept the applicant’s submission that the proposal complies with the FSR development standard in LEP 2014. The definition of site area for the purpose of calculating the FSR of the proposal, at cl 4.5 of LEP 2014, is as follows:

(3) Site area

In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:

(a) if the proposed development is to be carried out on only one lot, the area of that lot, or

(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area

The following land must be excluded from the site area:

(a) land on which the proposed development is prohibited, whether under this Plan or any other law,

(b) community land or a public place (except as provided by subclause (7)).

32. The applicant submits that the whole of the site area, including the access handles, is the appropriate numerical value to be used for the calculation of the FSR, based on the above definition. I accept that the ordinary and literal meaning of the definition for site area, for the purpose of calculating the FSR, results in the whole of the site area (as a single allotment) being the numerical value to be used, pursuant to cl 4.5(3)(a) of LEP 2014 and that there are no relevant exclusions from the site area for the purpose of the calculation, at sub-cll (4) - (7).

Impact of the proposal on the amenity of adjoining properties

33. The Council contends that the exceedance of the FSR development standard results in adverse amenity impacts to adjoining properties. The Council contends that the inadequate setback and height of the proposal in the western corner of the site results in unacceptable amenity impacts on the dwelling at 17 Cooper Park Road, Bellevue Hill; and the proposal results in the loss of views to the apartment at 5/60 Bellevue Road, Bellevue Hill.

34. It is Mr Taylor’s evidence that if the proposal complies with the FSR development standard under LEP 2014, he accepts that the bulk and scale of the proposal is representative of the bulk and scale envisaged for the site and no impacts on adjoining properties can be attributed to any non-compliance with the FSR development standard in LEP 2014 (exhibit 3, par 1.11).

35. I do not accept Mr Taylor’s evidence that compliance with the FSR development standard under LEP 2014 necessarily resolves the issue of amenity impacts and that no further inquiry is required. There is a further and essential step to carry out a merit assessment of the proposal to consider whether the distribution of the proposed floor area across the site is appropriate and whether the design of the proposal achieves a satisfactory relationship with surrounding development.

36. The historic forming of the site for the purpose of a level area on the side of a hill for use as a bowling green, by constructing a retaining wall up to 8 metres high along the south-western boundary, is a unique feature of the site. It means that any built form near the south-western boundary potentially has a much greater impact in terms of its bulk and scale on the visual amenity of properties further down the hill, notwithstanding compliance with the building height development standard, because the height of the building is measured from the existing raised ground level and not in relation to the natural topography of the hill. This unique feature of the site requires an extremely skilful design to minimise those potential impacts on the properties below the site. It is not simply a matter of complying with the height and FSR development standards to achieve an acceptable proposal; although conversely, it does not necessarily prevent any future development of the site from realising the FSR development standard numerical value in LEP 2014, because it is a matter of how that floor area is distributed on the site and how the site is manipulated to best accommodate the development in such a way as to respond thoughtfully to the natural topography of the hill and to minimise amenity impacts on surrounding properties.

37. I am not persuaded that the two uniform extruded blocks, side by side, jutting out in the same direction as the fall of the hill on the retained, raised and level site, achieve a satisfactory relationship with the properties further down the hill, 17 Cooper Park Road and 17A Cooper Park Road.

38. The ground level of the site in the western corner adjacent to the proposed development (apartment AG.06) is RL 78.0; the top of the two storey side (southern) elevation of the wing is RL 84.0 and the third storey, subtly setback, is RL 87.0 (DA200, exhibit A). The side elevation is approximately 4m from the western boundary (DA101, exhibit A). The ground floor level of 17 Cooper Park Road is RL 70.75 (exhibit H), including the outdoor terrace, about 8-10m away from the western corner of Building A, which is more than 16m in height above the outdoor terrace of 17 Cooper Park Road. It was evident on site when viewing the height poles from the outdoor terrace and pool terrace at 17 Cooper Park Road, that the proposal would have an imposing and overwhelming visual impact on the outdoor living areas of 17 Cooper Park Road, fundamentally because of the raised nature of the site and the difference in levels between the two properties. The applicant’s planning expert resorted to justifying the relationship on the basis of the setbacks prescribed in the RFDC and the DCP (notwithstanding that the proposal does not provide a 6m setback in the western corner, as agreed by the experts exhibit 3, par 2.3.4). Importantly, these standard setbacks do not account for the raised nature of this site and the dramatic change in level between the site and the properties further down the hill.

39. The proposal has a similar relationship to the semi-detached villas 20 and 21 and to a lesser extent 18 and 19 at 17A Cooper Park Road, as it does to 17 Cooper Park Road. The proposal will present as a wall of development when viewed from the villas 16 and 17 at 17A Cooper Park Road, as the proposal is approximately 11m higher than the courtyard level of the villas and because of its form (DA301 section 2, exhibit A).

40. For these reasons, I am not satisfied that the proposal achieves the objectives of the FSR development standard in LEP 1995 to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties and to relate new development to the existing character of surrounding built and natural environment.

41. Although Mr Mead emphasised the R3 zoning of the area under LEP 2014 as dictating the future character of the area being medium density development (exhibit C); it is my view that the area is likely to remain a mix of single family dwellings and residential flat buildings well into the future, as the predominant development in the area remains substantial single family dwellings, despite the 2(b) zoning of the precinct in LEP 1995. The future development of the site must sit comfortably with the surrounding mix of development and cannot disregard amenity impacts on single family dwellings on the basis that the area is zoned for medium density development.

42. In relation to the impact of the proposal on the district views obtained by the resident at 5/60 Bellevue Road across the vacant site, the experts agreed on the following (exhibit 3, par 2.5.1-2.5.11):

• The extent of the impact of the proposal on the existing views from both the courtyard and living room 5/60 Bellevue Road is severe, according to the levels of impact in the Court’s planning principle, Tenacity Consulting v Warringah (2004) NSWLEC 140 at [28];

• A proposal with an east-west orientation would have a greater impact on the views from 5/60 Bellevue Road;

• The imposition of an increased setback from the shared boundary would not necessarily improve the impact on the district views from 5/60 Bellevue Road;

• The site specific DCP anticipated view loss, as the existing district views are across a vacant site;

• The view corridor between Buildings A and B, which is 12m wide, is considered to be an acceptable view sharing outcome; and

• Compliance with the FSR development standard in LEP 1995 would not necessarily result in a greater portion of the view from 5/60 Bellevue Road being retained.

43. The experts were in complete agreement regarding the acceptability of the proposal in terms of its impact on the existing district views from the living room and courtyard of 5/60 Bellevue Road. I accept their agreement regarding the acceptability of the proposal on the impact of the existing district views from 5/60 Bellevue Road.

44. Building B is setback 4.5m from the shared boundary between the site and the Bellevue Road properties adjoining the site. Building B presents as an unrelieved blade wall 16.5m long and 6m high when viewed from 5/60 Bellevue Road. The gap between the blade end walls of Building A and B scales at 9.5m (exhibit A, DA 101). While I accept that a future development will not necessarily retain the district views from 5/60 Bellevue Road, it is my view that a more considerate design could present a softer, more articulated edge when viewed from the courtyard of 5/60 Bellevue Road and adjoining properties fronting Bellevue Road.

Excavation

45. The Council contends that the proposal involves excessive excavation. The experts agreed that the quantity of excavation required to construct the basement of the proposal is in excess of the maximum volume of excavation permitted by Fig 5.2.11B of DCP 2003. It is Mr Taylor’s evidence that consents granted for residential flat building within the Woollahra LGA regularly exceed the permitted volume of excavation in DCP 2003.

46. The experts agreed that the basement area is appropriately sized and located under the building footprint. According to Mr Taylor, the floor to ceiling height appears to be excessive and it is Mr Mead’s evidence that the structural engineering design is not yet resolved and some of the depth between the ground floor level and the basement floor level may be occupied by horizontal structural members supporting the upper levels. The parties agreed that this could be resolved by the imposition of a condition of consent specifying a maximum floor to ceiling dimension for the basement level and I accept their agreement regarding the resolution of this aspect of the issue.

47. I accept the broad agreement of the experts that the single level basement is appropriately sized and located with setbacks to the boundaries of the site and beneath the footprint of the proposal. I am satisfied that had I been minded to grant consent to the proposal, the imposition of a condition of consent specifying an appropriately lean, maximum floor to ceiling height in the basement would have fundamentally resolved this contention.

48. The proposal’s amenity impacts on the adjoining properties are significantly exacerbated by the artificially elevated nature of the south-western portion of the site, due to it being formed as a level site for the former bowling green by the retaining wall along the south-western boundary. It would, in my view, be appropriate in this unique circumstance, to permit a future application a degree of flexibility to undertake a greater quantity of excavation than would generally be considered appropriate, specifically in the location of the retained and filled south-western portion of the site, as it would allow a future development to respond more appropriately the natural topography of the hill and potentially reduce amenity impacts on adjoining properties. This is, however, a matter for a future application.

Conclusion

49. When tested against the relevant FSR objectives of the saved instrument, LEP 1995, the proposal fails to meet objectives (c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties; and (d) to relate new development to the existing character of surrounding built and natural environment. Strict compliance with the FSR development standard in LEP 1995 has not been demonstrated as being either unnecessary or unreasonable, as the proposal does not achieve the outcomes required by the planning objectives and consequently, the proposal should be refused.

50. In my consideration of the merits of the proposal, I have given significant weight to the proposal’s compliance with the numerical value of the FSR development standard in LEP 2014, however, it does not overcome the unsatisfactory relationship of the built form of the proposal with the adjoining properties below the site. The three storey bulk of Building A is positioned approximately 4m from the western and south-western boundary on the retained and raised site, which results in significant adverse amenity impacts on the use and enjoyment of adjoining properties below the site, particularly on the outdoor living areas of the dwelling at 17 Cooper Park Road, Bellevue Hill.

51. I am not persuaded that the deletion of apartment 2.03 and an increase of the setback in the western corner to 6m, as proposed by Council (condition C1(a) and (b), exhibit 4) would be sufficient to ameliorate the adverse impact of the proposal on the amenity of the dwelling at 17 Cooper Park Road, Bellevue Hill.

Orders

52. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 111/2015/1 for a residential flat building and associated works at 9A Cooper Park Road, Bellevue Hill, is refused.

3. The exhibits, other than exhibits 2, A and C, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 13 November 2015