Payne J v Willoughby City Council

[2007] NSWLEC 454

Land and Environment Court

of New South Wales

CITATION:	Payne J v Willoughby City Council [2007] NSWLEC 454
PARTIES:	APPLICANT: Jesse Payne RESPONDENT: Willoughby City Council
FILE NUMBER(S):	10393 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Size of the proposal and the adverse impacts of height and bulk
LEGISLATION CITED:	Willoughby Local Environmental Plan 1995, (WLEP) Willoughby Development Control Plan, (WDCP) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Winten Property Group Limited -v- North Sydney Council, NSWLEC 46
DATES OF HEARING:	23 July 2007
EX TEMPORE JUDGMENT DATE:	23 July 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr I J Hemmings, barrister, instructed by Mr J B Hones, solicitor SOLICITORS: Hones La Hood RESPONDENT: Ms D S Townsend, solicitor SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

23 July 2007

10393 of 2007 - Jesse Payne v Willoughby City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Willoughby City Council (the council) of a development application to demolish the existing dwelling on the land and to erect a new dwelling at Lot 18, DP 30284, being No 40 Headland Road, Castle Cove.

2 I visited the land in company with the parties on the morning of the on-site hearing and heard from local residents.

3 I have concluded that the proposal would be too high by one floor when considered against the suite of planning controls applying to the land. I have refused consent as a result of the proposal’s dominant bulk and overshadowing and its adverse impact on the amenity of nearby residents.

The land

4 The land is situated on the southeastern side of Headland Road. The land is of irregular shape and has an area of 750.8m2 with a net area of 653.9m2, when the right-of-way at the rear is deducted. The area measurement is important when considering gross floor area and floor space ratio, (FSR).

5 The land is located on the high side of Headland Road on a ridge, which extends from Pindari Place to the houses on the low side of the bend in Headland Road.

6 The private right-of-carriageway along the rear boundary provides rear access to the properties between Nos 22 - 42 Headland Road, including the subject land. There is a relatively level area located roughly in the centre of the land near the western boundary. The land also falls down to the north towards Headland Road and to the south, towards the right-of-carriageway.

7 The central part of the land has some remnant natural rock formations, largely located immediately in front of the existing house and on the eastern side. A large isolated sandstone rock is located close to the eastern boundary. These rock outcrops and the ground line between them are important in calculating the ‘height of a building’, [Note: Exhibit 3, Tab 24, p 228, cl 5(3)].

8 Extensive views over Middle Harbour, to the north and to the southeast are available from the land.

9 The grade across the land along the ridgeline is about 1:8 or around 12%. The grade of the descending ridgeline increases at the subject land compared with the higher properties to the southwest at Nos 36 and 38 Headland Road. There is a around a 3m difference in level between the subject land and the higher land at No 38 Headland Road.

10 This part of Castle Cove was subdivided in 1959 and the bulk of the housing in the area is low-density, detached housing, dating back to the 1960s. Recently existing housing stock has been redeveloped by way of demolition or extensive alterations and additions.

11 Public open space is found nearby that extends up to Headland Road opposite No 42 Headland Road.

12 The locality is a visually prominent headland, high above Middle Harbour and the land can be viewed from parts of Roseville Chase, Killarney Heights and Middle Cove. The housing on the ridgeline is highly visible from the Garigal National Park Reserve adjoining Middle Harbour in the Warringah Council area and from the Roseville Bridge.

Relevant planning controls

Willoughby Local Environmental Plan 1995, (WLEP)

13 Under the provisions of the WLEP the land is zoned Residential 2(a2) and the proposal is permissible with consent. The land is also within a Scenic Protection area under the WLEP.

Willoughby Development Control Plan, (WDCP)

14 Under the WDCP - Parts C and D, the land is within the Sydney Harbour Catchment.

Other planning controls

15 Other planning controls include:

· State Environmental Planning Policy No 1- Development Standards, (SEPP1).

· Draft State Environmental Planning Policy (Application of Development Standards) 2004, (Draft Policy).

· Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREP).

The proposal and its history

16 Development application No D07/0094 was lodged with the respondent council on 21 February 2007 for the “…demolition of dwelling house and construction of new dwelling house”.

17 The new part two-storey, part three-storey dwelling would comprise four bedrooms and a study; a double garage; and a proposed in-ground pool within the eastern, side boundary setback.

18 The proposed new dwelling would have a flat metal roof set behind parapet walls. The central stairwell would be expressed on the southern elevation facing the right-of-way and there would be six decks and balconies at the ground and first floor levels on the southern, eastern and northern elevations.

19 The proposal is described in design plans No A12224, Sheets 2, 3 and 4, Revision B, prepared by A & N Design dated 27 April 2007; and landscape plans No LP.01/B prepared by Botanica, dated May 2007.

Notification

20 The development application was notified to nearby owners and occupants in accordance with the notification provisions of the WDCP, for a two-week period, closing on 14 March 2007, and the council received nine submissions from eight nearby properties. Seven of the submissions were opposed to the development proposal.

The council’s decision

21 When the appeal was filed the council had not yet determined the application.

22 On 20 April 2007, the council wrote to the applicant, outlining areas of concern with regard to the proposal and inviting the submission of amended plans for a revision displaying “…a much greater degree of compliance with the applicable development controls and [with] reduced amenity impacts”. The council's letter suggested the amended scheme be developed following further discussions with the council’s staff.

23 The council’s staff met with the applicant’s consultant town planner on 4 May 2007 to discuss the matters raised in the letter of 20 April 2007.

The hearing

24 The appeal was filed on 8 May 2007 and is a deemed refusal.

25 By notice of motion before the Court on 17 May 2007, the applicant was allowed to rely on amended plans. The council received these amended design plans on 22 May 2007 and amended landscaping and stormwater management plans on 4 June 2007.

26 At the on-site hearing the court heard evidence on behalf of the respondent council from:

· Mrs S Lewis, resident of No 32 Headland Road, Castle Cove;

· Mrs M Bauman, resident of No 48 Headland Road, Castle Cove;

· Drs A Lau, and M-S Lee, residents of No 46 Headland Road, Castle Cove;

· Mr I Anderson, resident of No 69 Headland Road, Castle Cove;

· Ms R Farina, resident of No 50 Headland Road, Castle Cove; and

· Mr L Sanchez, Development Planner Willoughby City Council.

27 On behalf of the applicant Mr G Goodyer, consultant town planner, gave evidence.

28 Mr Sanchez prepared the statement of basic facts and contentions dated 13 June 2007. The applicant contends for a slightly different interpretation of these facts.

The respondent’s contentions

29 On 13 June 2007 the council contended that the application should be refused for the following reasons:

(a) Breach of the two-storey height limit
Several parts of the proposed first floor breach the two-storey height limit prescribed under clause 18 of WLEP 1995. These sections of the building, together with the non-compliance with the Floor Space Ratio control, will result in a building which will have too great a visual impact, both on the immediately surrounding properties and on the ridgeline, when viewed from a distance. The SEPP 1 Objection submitted in support of the variation of this development standard is not supported.
Development standard and control: Clause 18 - Height, WLEP 1995 and Parts D.2.4 Height and D.2.11 Residential 2(a2) Zone - Special Controls, Willoughby DCP.

(b) Floor space ratio
The proposed building exceeds the maximum floor space ratio specified in the Willoughby DCP by 100 square metres or by 92 square metres using the applicant's figures. This results in building bulk at first floor level in both those parts of the building, which exceed the two-storey limit as well as an overall larger first floor. The effect of this is that the building will dominate the Headland Road streetscape in the vicinity of the site, the ridgeline when viewed from afar and the view from the right-of-way and the southern side of Headland Road.
Development control: Parts D.2.4 Height and D.2.11 Residential 2(a2) Zone - Special Controls, Willoughby DCP.

(c) Breach of the building height plane control
The first floor breaches the building height plane controls on parts of the north-east and the south-west elevations. These breaches add to the height and bulk of the building when viewed from the street and the southern (right-of-way) elevations and from further afield.
Development control: Parts D.2.3 Building Height Planes and Setbacks and D.2.11 of Willoughby DCP.

(d) Extent of excavation
The lower ground floor storey (nominated on the plans as ‘sub-floor’) and the under croft and pool areas, involve extensive excavation below the natural ground level. At its deepest point, the excavation scales to 2.6 metres.
The extent of excavation, taking into account that the proposal greatly exceeds the floor space ratio limit, is unsympathetic to the site's topography and is contrary to the following Willoughby DCP controls:
Part D.2.1. Single Dwelling Houses and Dual Occupancies - Performance criteria (v) and Part D.2.5. Character, Design and Streetscape - Performance criteria B(ii)

(e) Overshadowing of the private open space of adjoining properties to the south
The proposed third storey will result in additional shadowing of the private open space of 38, 46 and 46A Headland Road. The open space of 46 and 46A Headland Road is located below the level of the right-of-way and is positioned on a south-facing hillside, thereby experiencing limited sunlight access during the winter months. The shadowing of these areas by the proposed dwelling will exacerbate the lack of sunlight to these areas.
Development control: Part D.2.8 Solar Access, Willoughby DCP.

(f) Loss of privacy to the private recreation areas of the adjoining properties
The balconies and ‘deck’ on the eastern and southern elevations of the proposed building, at both the nominated ‘ground’ and ‘first’ floor levels, will allow for overlooking of the private recreation areas of the adjoining properties 38, 42, 46 and 46A Headland Road. The proposed planting along the western boundary will not grow to sufficient height to interrupt the line of sight from the first floor to the open space of 38 Headland Road.
Development control: Part D.2.7 of Willoughby DCP Landscaping - proportion of natural/soft area and tree planting.

(g) There is insufficient tree planting and insufficient opportunity for adequate tree planting in the setback areas along the eastern and southern boundaries to screen and soften the building height and bulk.
Development control: Parts C.9 Landscaping and D.2.11 Residential 2(a2) Zone - Special Controls, Willoughby DCP. 23.
The following matter may be dealt with by way of condition:

(h) Landscaping - tree planting
There is inadequate landscaping planting to screen and soften the building height and bulk. The proposed tree removal and replacement tree planting in the Headland Road setback will not screen and soften the dominating appearance of the building on the streetscape or when viewed from afar.
Development control: Parts C.9 Landscaping and D.2.11 Residential 2(a2) Zone - Special Controls, Willoughby DCP.

30 The salient issues were the adverse impacts of height and bulk.

The evidence and findings

Breach of the two-storey height limit

31 The council’s case was that several parts of the proposal breach the two-storey height limit prescribed under cl 18 of the WLEP. The council contended that as a result of the breaches the building that would have too great a visual impact, both on the immediately surrounding properties and when viewed from a distance. The proposal would from some viewpoints intersect with the ridgeline, The council did not support the applicant’s SEPP1 objection for a variation of the height development standard.

32 I accept the evidence of Mr Sanchez that the proposal would be in breach of the two-storey height limit over those areas shown in orange colouring on the first floor plan in Exhibit 2. There was a difference of opinion between Mr Sanchez and Mr Davies, a geotechnical engineer employed as an expert by the applicant, [Note: Exhibit G]. I prefer the evidence of Mr Sanchez and I satisfied myself as to his evidence by observing the weathered character of the faces of the rock outcrops on site. I am satisfied given the weathered appearance of the rock face under the dwelling that this rock face is original and was not cut below the surface as contended for by the applicant. The dwelling would have been built around 40 years ago and the scabbling for the brick wall sitting on the top of the rock is still visible. If the rock had been excavated as the applicant suggests that scabbling would also be weathered to a similar extent as the rock face. As a result, I am satisfied that the ground line in the space between that rock face and the isolated rock standing near the eastern boundary is to be taken as the natural ground line for the purpose of calculating height in storeys.

33 The definition of height is found in cl 5(3) of the WLEP and states:

For the purposes of this plan, the height of a building is to be measured as follows:

(a) if the relevant provision of this plan specifies a maximum height as a number of storeys, the height of the building is to be measured as the maximum number of storeys that can be intersected by the same vertical line through the building.
(b) …
(c) …

34 This definition in the WLEP is similar to that in State Environmental Planning Policy No 6, (SEPP6) in that it is measured vertically through the building. Although height is to be measured without reference to the natural ground line, the natural ground line is important in calculating height in storeys on any site. Thus, I am satisfied that the proposal would be partly three storeys in height in an area where the height of dwellings is limited to two storeys, [Note: Exhibit 3, p 243, cl 18].

35 Given that the land is elevated and prominent, it is important that the proposal comply with the height limit in order to reduce its dominance when viewed from nearby properties and from further afield. It is interesting to note that the next-door dwelling at No 38 Headland Road, (The Gordon’s dwelling) dominates the area and as can be seen in distant views, and protrudes above the ridge line, [Note: Exhibit 3, Tab 11]. This adverse impact is sought by the council to be avoided in the future and on the subject land. Even though the proposal would be setback from the street alignment further than No 38 Headland Road its proposed height of three-storeys, nearly equal to the eave height of that neighbouring property, would be clearly visible from distant viewpoints and would be expected to penetrate the ridge line. This would be an adverse impact to my mind.

36 The proposal being only slightly lower in height than the eave line of No 38 Headland Road would be dominant in the local area. Given that there is a step down of around 3m at the boundary of Nos 38 and 40 Headland Road the height of the existing dwelling on the subject land is appropriate and if the applicant wishes to develop the land further he or she should be constrained to a maximum height of two storeys under the WLEP. The proposal exceeds this by one storey and thereby fails.

Breach of the floor space ratio, (FSR)

37 Under cl D.2.2 of the WDCP the land with a net area of 653.9m2 enjoys a FSR of 0.38:1, [Note: Exhibit Q]. The proposal with a gross floor area (GFA) of 342m2 would have a net FSR of 0.53:1 and would be in excess of the requirement by around 92m2. This compares with the GFA of the proposed lower ground floor of 38.5m2. It would seem that if the lower ground rumpus room and store were deleted and the first floor guest and study were introduced on that level, much of the upper storey bulk of the proposal could be reduced. Also, if Bedroom 2 and 3 on the first floor level were relocated to the ground floor level, the only volume remaining on the first floor would be the Bedroom 1 suite. This might be contained in an attic thereby reducing the bulk of the proposal and limiting the height effectively to two storeys plus an attic. Under the WLEP ‘attic’ means, [Note: Exhibit 3 Tab 24, p 215, cl 5]:

…a habitable space totally within the roof space of a dwelling, or of a building including a dwelling, being a dwelling that occupies all or a substantial part of the level of the building immediately below the habitable space and of which dwelling, the habitable space is part.

38 The object of the suite of planning controls in the WLEP and the WDCP is to ensure that any proposal on the land would not dominate the local and distant views and to this end should not exceed the FSR or exceed two storeys in height. The proposal is of a bulk and scale that is inappropriate in its context.

Overshadowing

39 I consider that the proposal, as a result of its breach of the two-storey height limit under the WLEP, would unreasonably overshadow the Lau/Lee property at No 46 Headland Road to the south of the land. If the proposal were to comply with the two-storey height limit above natural ground level, the height of the proposal would not greatly exceed the height of the existing, especially in those areas of the land shown in orange in Exhibit 2.

40 Dr Lau made it clear that he was not against development of the subject land but that development should be ‘reasonable’ and based on the planning controls that apply to the land. The proposal is excessive and thus must fail on merit.

SEPP1 objection

41 Given that the application fails on merit for the above reasons, it is not necessary for me to consider the SEPP1 objection to the two-storey height standard in the WLEP. However, I consider that the SEPP1 objection in Exhibit G is based on a false premise and that the proposal would breach the two-storey standard to a greater extent than shown in grey on page 1 of the objection. Applying the tests set out by his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 [22 – 26], I consider that the strict compliance with the height standard in cl 18 of the WLEP would not tend to hinder the attainment of the objectives of the Act or tend to hinder the orderly and economic use of land. On the contrary, I consider it important to comply with the standard in the interests of the orderly and economic development of land. Residents nearby expect that development in their area should comply with the applicable standards. The proposal would breach that standard to a significant extent to the detriment of those living nearby. I have concluded that the objection is not well founded and the SEPP1 objection is not upheld.

42 For the above reasons, the appeal is dismissed.

Orders
43 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No D07/0094 lodged with the respondent council on 21 February 2007 for the “…demolition of dwelling house and construction of new dwelling house” at Lot 18, DP 30284, being No 40 Headland Road, Castle Cove, is refused consent.

3. The exhibits except for Exhibits A, B, C, D, E, R, 1, 2, 4 and 5 are returned.

S J Watts

Commissioner of the Court

sw