Podgornik v Waverley Council

[2012] NSWLEC 1176

Land and Environment Court

New South Wales

Medium Neutral Citation:

Podgornik v Waverley Council [2012] NSWLEC 1176

Hearing dates:

23, 24 April and 18 June 2012

Decision date:

25 June 2012

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA -130/2011 for the demolition of the existing dwelling and associated structure and the construction of a new dwelling and single garage, detached single garage with cabana over, swimming pool and associated works and landscaping on land at 40 Gardyne Street, Bronte as detailed in the plans which are exhibit E subject to the draft conditions in exhibit 5 including deferred commencement conditions in Schedule A numbers 2, 6, 7 and 9.

(3)The exhibits are returned except exhibits E and 5.

Catchwords:

DEVELOPMENT APPEAL - Public view loss, bulk and scale, streetscape

Legislation Cited:

Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2010
Waverley Local Environmental Plan 1996

Category:

Principal judgment

Parties:

Andrew Podgornik (Applicant)

Waverley Council (Respondent)

Representation:

Counsel
Ms S Duggan SC (Applicant)

Mr M Staunton (Respondent)
Solicitors
Gadens Lawyers (Applicant)

Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10060 of 2012

Judgment

1. The applicants, Andrew and Chloe Podgornik seek approval to demolish their family home and secondary dwelling/garage; and, construct a new dwelling, detached single garage with cabana over, swimming pool and landscaping at 40 Gardyne Street, Bronte as detailed in exhibit E.

1. Their property is located on the corner of Gardyne and Pacific Streets, Bronte within the Bronte Terraces Precinct under the Waverley Development Control Plan 2010 (the DCP). It has a steep slope and is divided midway by a significant rock ledge. On the highest part of the site - at the Gardyne Street frontage - there is opportunity to capture magnificent panoramic views of the Pacific Ocean and surrounding areas. Not surprisingly, the applicants have designed their main dwelling around these views and generally followed the natural topography of the site. In doing so however, Waverley Council contends that the applicants have unreasonably impacted on the private views across the site from the adjoining property at 42 Gardyne Street and the panoramic ocean views from the public stairs and walkway in Gardyne Street.

1. The Council contends that the development does not satisfy the objectives of the desired future character of this Bronte residential precinct under the DCP. The Council's planner, Mr Boston, believes the "...concentration of building height and massing along Gardyne Street creates a "fortress like walling effect" which will be perceived as entirely disparate in the streetscape and which will create a sense of enclosure and obstruct existing public views available across the site from the lower landing of the adjacent public stairs, the lowest flight of stairs and from the Gardyne Street road alignment. "

1. Despite criticism of the applicants' proposal, the Council supports a residential development for the site in accordance with its deferred commencement conditions in Schedule A of exhibit 5. The conditions require the deletion of the entire third level and associated structure; the deletion of the garage and vehicle crossing at Gardyne Street; reduction of the northern and eastern elements of the proposal; and design changes to reduce the eastern level one terrace; setback of the western frontage from Gardyne Street and changes to the proposed fence and entry gate area. With respect to the ancillary dwelling/garage (cabana) on Pacific Road, the Council suggests an overall height reduction of 500 mm, a shortening of the building in length at the rear and a setback at the street front.

1. However, the applicants do not accept the design proposed by the Council. They contend the modified design in exhibit E (prepared after the conciliation conference) satisfactorily addresses the Council's planning controls and the concerns raised by the council and the objectors.

1. I must decide on the evidence whether the development as proposed or in a modified form is acceptable on this site after a consideration of the relevant matters in s 79C of the Act.

1. At the direction of the Registrar this appeal was dealt with under s 34AA of the LEC Act. Therefore, it commenced onsite with a conciliation conference. As the parties were unable to resolve the matter by agreement I terminated the conference and proceeded to dispose of the matter forthwith by a hearing back at the Court. It was agreed that the evidence taken at the conciliation conference from the objectors could be received as evidence in the hearing. The Court was assisted at the hearing by town planning evidence from Mr Darroch for the applicants and Mr Boston for the Council.

The Site

1. The Council's statement of facts and contentions filed on 5 March 2012 describes the site as being made up of two allotments, known as 40 Gardyne Street, Bronte. Lot A has an approximate area of 863 sq m and Lot B has an area of 311 sq m. It is a corner site with frontages to both Gardyne Street and Pacific Street. The northern frontage to Pacific Street measures 34.39 m, the eastern boundary with 40 Pacific Street measures 33.53 m, the southern boundary with 42 Gardyne Street measures 34.57 m and the western frontage to Gardyne Street measures 35.53 m. The total site area, including both Lots A and B, is 1.155.9 sq m. The applicants agree to the consolidation of the two lots as a condition of development consent.

1. The site falls from the southwestern corner to the northeastern frontage to Pacific Street approximately 12 m. A single storey rendered dwelling with a pitched tiled roof at RL 38.2 is erected on the southwestern boundary. At the northeastern corner of the site fronting Pacific Street is a two-storey rendered masonry dwelling with a flat metal roof with car parking accommodation at the ground level and habitable space above.

The statutory controls

1. The controls which apply to this site are as follows:

Waverley Local Environmental Plan 1996 (LEP)

• Clause 3 - specific aims
• Clause 10 - zone objectives
• Clauses 21 to 26 - environmental considerations
• Clauses 45 to 49 - Part 4 Heritage Provision

Draft Waverley Local Environmental Plan 2011 (DWLEP)

• Zone R2 Low Density Residential height 8.5 m
• Floor space ratio .5:1

Waverley Development Control Plan 2010 (DCP)

• Part D1 - Dwelling House and Dual Occupancy Development
• Part I1 - Land Use and Transport
• State Environmental Planning Policy (SEPP) (Basix) 2004
• SEPP 55 -- Remediation of Land

1. The site is zoned 2(a) Residential - Low Density under the LEP. It adjoins a Hill Fig street tree, which forms part of the heritage landscape under the LEP. As noted earlier the site is situated within the Bronte Terraces Precinct (Precinct B) of the Bronte Residential Character Study Area - s 4.0 in part D1 (dwelling house and dual occupancy development) of the DCP.

Objectors Submissions

1. Apart from receiving the written submissions - including submissions in support of the application - the Court also heard oral evidence onsite from local residents and a representative of the Bronte Beach Precinct Committee. The objectors concerns include:

• The loss of public panoramic ocean and landscape views from the stairs and walkways along Gardyne Street.
• The breach of the Council's height and FSR planning controls.
• Concern for public safety arising from the introduction of a new driveway crossing and single garage at this end of Gardyne Street; and, the "workability" of the proposed single garage.
• The scale and bulk and massing of the main dwelling on Gardyne Street and the ancillary building on Pacific Street.
• Private view loss from 42 Gardyne Street from their kitchen area and outdoor space - terraces
• The impact of the proposal on the existing character/streetscape of Gardyne and Pacific Streets
• Bulk and scale, privacy/overlooking, solar access to the communal open space and units 2 and 4/40 Pacific Street

1. The Vaughan property at 42 Gardyne adjoins the site on its southwestern boundary. According to the evidence, that property was redeveloped within its existing building envelope in 1997 and approved under different planning controls. At paragraph 2.1.3 of their joint report (exhibit 3) the planners describe the Vaughan property as containing a three storey flat roofed dwelling, a double garage, with an entry and wall at RL 38.90 and a nil setback across the entire frontage of that site. They calculate the parapet height at generally 3.8 m on the street and rising to the parapet at RL 41.51. The view confirmed it to be a big bulky dwelling with magnificent private panoramic ocean views from its terraces and within the multi level home. The height and scale of this approved dwelling interferes with the ocean and landscape views from the public areas of Gardyne Street.

1. Mr and Mrs Vaughan object to the bulk and scale of the applicants' development and the introduction of a single garage next to their two-car garage. They also object to the proximity of the applicants' level1 eastern terrace because of its impact on their views across the applicants land. The applicants' terrace is 1m higher than their terrace at that level and it has been reduced in length by the amended plans. It is proposed to be roofed and open on its northern side with a 1.6 m opening on the eastern elevation. The Council's draft deferred commencement condition 8 in exhibit 5 seeks to address the Vaughans' concerns about the terrace by redesigning that element and introducing a setback. The condition states: "the eastern level one terrace, adjacent southern masonry wall, kitchen -- family room and roof over is to be amended in strict accordance with detail 1 and is to maintain a minimum setback of 9 m to the eastern boundary."

1. Ms Orla Bourke and Mr Murphy the residents of unit 3/40 Pacific Street also addressed the Court. They spoke on behalf of the residents of the block of units at 38 Pacific Street and other the residents within their block at 40 Pacific Street. Their principal concerns are: the bulk of the proposal and its impact on their communal outdoor space at the rear of 40 Pacific Street; overlooking from the eastern level 1 deck into their rear communal outdoor space; the impact of the redevelopment of the ancillary building/cabana adjacent to units 2 and 4 particularly the proximity of the built form and increase in overshadowing from the development to the rear unit and the loss of an open outlook.

1. Council's deferred commencement conditions 6, 7 and 8 seek to address these concerns raised by the objectors from 40 and 38 Pacific Road.

Issues

1. By the conclusion of the hearing the issues in dispute related to public and private view loss, the streetscapes in Gardyne and Pacific Streets, the garage/driveway crossing in Gardyne Street, and the ancillary building (cabaña).

Public and Private Views/Streetscapes

1. Council's statement of facts and contentions records a series of amendments to this application DA -130/2011 after its lodgment in March 2011. Despite opportunity the applicants have elected not to remove or significantly amend the third level of this development, which is of central concern to the council and the local residents. Based on the evidence - which was confirmed at the view - the third level of the development as proposed completely extinguishes the panoramic ocean views which exist from the top of the landing of the lowest Gardyne Street stairs and the lowest stair as depicted in photograph 9 of exhibit B. This element of the development is therefore inconsistent with the desired future character for the Terraces Precinct in the Bronte Residential Character Study (sections 4.2, 4.3 and 4.4), which seeks to "... minimises the impact of new development on existing public and private views and vistas, especially panoramic landscapes and ocean views".

1. The local residents explained to me their daily use of the public stairs and walkways on both sides of Gardyne Street. They told me they enjoyed the panoramic ocean and district views obtained from the stairs and their desire to retain that public view. Having walked the public stairs in Gardyne Street I appreciate their evidence. The DCP identifies Gardyne Street as characterized by ocean and landscapes views from public areas. The photographs in exhibit B show the existing panoramic ocean and landscape views from the public areas in Gardyne Street. I accept Mr Boston's assessment that the existing character of the street will be undermined if the development is approved with the third level as proposed. The current design offers no view sharing between public and private views at this level. Rather it removes entirely the existing public panoramic ocean views from the lower stairs and replaces that view with a mass of building. I agree with the Council's evidence that the setback of the development at the ground level does not overcome the fact that the third level by virtue of its height and setback will result in an unacceptable visual bulk "fortress wall" impact on the streetscape.

1. The retention of the existing panoramic views of the ocean at the higher stair level does not justify the loss at the lower level; particularly, when it arises from a numerical non-compliance with the height and FSR controls in the DCP. As Mr Boston and the residents told me the series of public footpaths and stairs provide important pedestrian access between the residential areas to the south and west of the site and to the Bronte Beach precinct to the northeast. It is a highly utilized public link. For the above reasons I cannot approve the third level as currently proposed.

1. The fact that the adjoining development, which was approved under different planning controls, also removes public ocean views does not justify the approval of the third level as currently designed. The Council's current DCP controls seek to "minimize the impact of new development on existing public views and vistas, especially panoramic landscapes and ocean views".

Eastern Terrace

1. I have considered the evidence about the impact of the level 1 eastern terrace of the main dwelling on the adjoining property at 42 Gardyne Street. In my assessment the amended design does not unreasonably impact on the amenity or views across the site from 42 Gardyne Street. The residents of 42 Gardyne Street enjoy magnificent panoramic views to the ocean from various levels of their large, multi - terraced dwelling and given the proximity of their dwelling to the common boundary and the fall of the land I do not accept it is reasonable to impose condition 8 and require the redesign as proposed by the Council in "Detail1" of exhibit 5. The property at number 42 has been orientated to take advantage of the ocean views primarily but it also significantly overlooks of the applicants' site. The roof of the terrace allows the applicants some privacy from overlooking from the higher levels of the dwelling at 42 Gardyne Street. It also offers a usable open space off their kitchen/ family area. The eastern terrace area is a principal out door living area for the applicants' family. I accept Mr Darroch's assessment that the reduction in the length and angling of the eastern terrace result in acceptable amenity for the applicants and the adjoining neighbors. Importantly, the reduction in length of the terrace also increases its setback from the flats at 40 Pacific Street and addresses those neighbors' concerns about bulk and overlooking of their communal open space.

1. The deletion of the third level of the development means that the Vaughan property will keep its existing side boundary district views from their kitchen window. While this was an issue of concern for the residents of 42 Gardyne however, based on the evidence the loss of this side window district view alone would not have justified the deletion of the third level.

1. I accept Mr Darroch's assessment that the green living/partly open fence proposed on the boundary is acceptable in the streetscape. I also approve of the 2 m setback of the development along Gardyne Street to allow additional planting, the reconfigured porch/awning over the entry and the enlarged opening for increased planting. All these amendments improve the appearance of the development and its integration with the streetscapes in Gardyne and Pacific Streets. It is also my view that this corner block needs some privacy. The proposed height of the fence achieves that privacy on the corner and its open elements allow for public views across the site from Pacific Street.

Single Garage On Gardyne Street

1. The Council contends the garage entry/crossover from Gardyne Street is unsafe and that it is in the wrong location. It suggests any garage should be on the less prominent Pacific Street frontage consistent with the performance criteria in the DCP. Despite that position the Council I accept that its initial complaint about the impact of traffic on the adjoining Hill Fig street tree is addressed by the erection of cement bollards around the base of the tree as recommended by the arborists.

1. Despite council's concerns about pedestrian safety there is no traffic evidence to support such a concern. The application proposes a single garage in a cul-de-sac. The increase in traffic will be marginal and the design of the entry/ crossover will be a matter for council in its consideration of the application under the Roads Act. Based on the evidence before me I agree with Mr Darroch that the amenity created by locating the garage proximate to the main dwelling and not in Pacific Street is justified in this case.

Garage/ Cabana on Pacific Street

1. I have decided the single detached garage/ cabana fronting Pacific Street should be amended in accordance with the Council's deferred commencement conditions 6 and 7 in exhibit 5.

1. The residents of the flats at 40 Pacific Street do not have any water views or a district outlook. They have a small communal open space at the rear of the flats, which I was told, is there only sunny open area. Having stood in their rear yard I appreciate their evidence. They currently enjoy the landscaped area of the site and that will change with any development of the site. They cannot expect to rely on landscaping on adjoining land as a permanent outlook. However, they can expect some privacy from overlooking and an opportunity for solar access. The modifications proposed in the Council's deferred commencement conditions, based on Mr Boston's evidence, ensure existing solar access is maintained where possible and mutual privacy is maximized for both developments. Given the proximity of the flats to the existing built form a reduction in height by 500mm and reduction in length at the rear will ensure a greater amenity for the residents in units 2 and 4 and have a positive impact on the open space at the rear of the flats. The setback to the street will improve the amenity of the ground floor front unit and better integrate the development into the streetscape consistent with the existing the development.

1. The performance criterion in the DCP encourages individual expression where the site is irregular in shape and has unique characteristics provided such expression does not undermine the established character of the street. The amended design before the Court has taken advantage of that opportunity for individual expression on this difficult site. However, after a consideration of the evidence, and, with the DCP as a central focus of my assessment, I am of the opinion that the third level as currently designed should be deleted from the development in accordance with deferred commencement condition 2 of exhibit 5. In making this finding, however, I note it may be possible to provide an acceptable design for a third level which allows a some panoramic ocean view to be maintained from the public stairs and lower landing in Gardyne street. My concern about the current design is that it extinguished completely the existing panoramic ocean view from the identified public areas and this is in conflict with the DCP. I am also of the opinion that and the garage/cabana on Pacific Street should be modified in accordance with the deferred commencement conditions 6 and 7 of exhibit 5 in order to protect the amenity of the residents in 40 Pacific Street. In all other respects the development as proposed in exhibit E and as modified by my judgment is acceptable after an assessment under s 79C of the Act.

1. I make the following orders:

(1)   The appeal is upheld.

(2)   Development consent is granted to DA -130/2011 for the demolition of the existing dwelling and associated structure and the construction of a new dwelling and single garage, detached single garage with cabana over, swimming pool and associated works and landscaping on land at 40 Gardyne Street, Bronte as detailed in plans which are exhibit E subject to the draft conditions in exhibit 5 including deferred commencement conditions in Schedule A numbers 2, 6, 7 and 9.

(3)   The exhibits are returned except exhibits E and 5.

Susan Dixon

Commissioner of the Court

Decision last updated: 26 June 2012