Stephen Ledger & Associates Architects v Willoughby City Council

[2006] NSWLEC 576

Land and Environment Court

of New South Wales

CITATION:	Stephen Ledger & Associates Architects v Willoughby City Council [2006] NSWLEC 576
PARTIES:	APPLICANT Stephen Ledger & Associates Architects RESPONDENT Willoughby City Council
FILE NUMBER(S):	10022 of 2006
CORAM:	Moore C
KEY ISSUES:	Appeal - Development Application :- SEPP 1 objection Height control
LEGISLATION CITED:	Willoughby Local Environmental Plan 1995 State Environmental Planning Policy No. 1
DATES OF HEARING:	29 August 2006
EX TEMPORE JUDGMENT DATE:	08/29/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, barrister INSTRUCTED BY Terence W Riley, Solicitor RESPONDENT Ms H Irish, barrister INSTRUCTED BY Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

29 August 2006

10022 of 2006 Stephen Ledger & Associates Architects v Willoughby City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal (and subsequent actual refusal on 23 March 2006) by Willoughby City Council (the council) of Development Application 2005/867 for the demolition of an existing dwelling and the erection of two new, detached dwellings at 4 Namoi Road Northbridge (being Lot 2 DP 804857) (the site).

2 There are, in the matters to be considered in this appeal, no substantive matters requiring my attention with respect to the proposed dwelling which fronts Namoi Road – this dwelling being the more modest of the two proposed for the development.

3 With respect to the rear dwelling, it is to be a dwelling on a dogleg of the site which has a frontage to an unmade road named Ulric Lane.

4 Questions arise out of the design of that building, particularly as a consequence of its breach of a maximum height limit (to the eaves or ceiling) above natural ground level of 3.6 m.

5 During the course of the hearing, I made a preliminary determination that the proper meaning of cl 30(1) of the Willoughby Local Environmental Plan 1995 (the LEP), meant that, whether or not cl 30(1)(a) or (b) applied, one or other of them applied and that, as a consequence, the 3.6 m height limit was applicable.

6 The extent of the breach is most graphically demonstrated by a consideration of the cross-section shown on the plans at DA07, which shows the extent of the breach, on that cross-section, by the more southern portion of the western element of the dwelling.

7 As the proceedings have unfolded, a number of amendments have been made to the plans, which have ameliorated or removed many of the issues that were pleaded by the council in the Further Amended Statement of Issues – that statement of issues being the basis upon which these proceedings have been conducted.

8 Those amendments have comprised the following:

• a redesign of the southern edge of the driveway and its landscaping (in order to provide a modest narrowing to portion of the drive, but an increase in the landscaping – that being an outcome acceptable to both the applicant and to the council as resolving that issue);
• a modest number of other landscaping changes which are noted in the further revised statement of issues as being capable of being addressed by condition;
• the provision of two canopy trees at the south-western and south-eastern extremities of the southern element of the rear dwelling, in the vicinity of the landscaped area surrounding the pool, to provide a softening of the perspective of the development when viewed from the south; and
• the deletion of a timber deck in the north-western corner, which would have been accessed from the day room that is disclosed at the upper level of that dwelling, and which, being somewhat elevated above natural ground level, would have imposed, in my view, an unacceptable privacy impact on the residents of 88 Baroona Road to the north.

9 The applicant had also offered (and leave was granted) to amend the roof form so that the roof form now proposed will have effectively a flat roof over the proposed family room and over bedroom 2; a hipped end to the gable roof from that flat roof; deletion of the gable end facing north above the day room; and a hipping to the western end of that roof.

10 The consequence of these roof changes, it is put by Mr Wilson, barrister for the applicant, would be that this satisfactorily address the concerns that the council has as to bulk and scale when viewed primarily from the north or west.

11 Ms Irish, barrister for the council, in contradistinction put that the amendments that have been made go part of the way, but not the entire way to acceptability.

12 The council does not now suggest that no consent should be granted to the applicant as a consequence of these proceedings. However, the council suggests that there should be two further substantial modifications to the plans. These are the deletion of the family room and the imposition of a flat roof across the totality of the rear house.

13 I am satisfied, in the first instance, that it is not necessary to require the deletion of the family room nor to require any alterations to the dimensions of that room.

14 I am satisfied, as a consequence of the flattening of the roof at that end and the fact that the floor space ratio of the proposed development is acceptable, that the reasons now advanced by Mr Barwick, the Court-appointed planner for his moving from his original view that there ought to be a deletion of the family room to an acceptance of that room are an appropriate basis upon which I can also reach such a conclusion.

15 There is a separation, in total, between the eastern wall of the western dwelling and the western wall of the eastern dwelling, of in excess of 6.5 m. There is a sufficiently wide 4 m rear courtyard area to the dwelling facing Namoi Road – which is, in itself, a dwelling of modest dimensions.

16 I am satisfied, those setbacks not being put in contention for any reason of numerical non-compliance, that that separation is adequate, particularly as to bulk and scale with the flat roof for the family room and, as now amended, the flat roof for bedroom 2.

17 However, the same cannot be said with respect to the retention of the gabled roof for the remainder of the development.

18 The concern that exists, as to bulk and scale, of the remainder of the development in breach of the building height limit, requires my consideration of an objection pursuant to State Environmental Planning Policy No. 1 (SEPP 1). Such SEPP 1 objection must be sustained for me to permit even the degree of breach which would be necessary if there were to be a flat roof across the totality of the dwelling.

19 Undoubtedly, there is nothing that can be done, in a planning sense, in these proceedings, to preserve to views from the Murphy residence at 88 Baroona Road. The totality of their skyline views would be removed by an absolutely compliant development on the site. I am satisfied as to that position as a consequence of viewing the height poles that were erected on the site during the course of the view.

20 However, whatever is constructed as a rear dwelling on the site, there will undoubtedly be an imposing structure when viewed either from the perspective of the Murphy’s property or from the perspective of the public viewing areas to the south.

21 The degree of imposition in the landscape of such structure will depend on the height of the roof, particularly the height of the roof when viewed from the south. That, as I earlier adverted to, is graphically demonstrated by a consideration of the cross-section showing the degree of breach of the height limit. The imposition of additional height will also arise in the view of the proposed development from Ulric Lane.

22 I am satisfied, for the applicant to be granted the benefit of sustaining a SEPP 1 objection, that that objection should be based on a far more modest breach of the standard than will be obtained with respect to the ridged roof as proposed in the amended plans. Acceptability could only be achieved by a flat roof.

23 The consequence of that conclusion is that I will uphold the appeal on the basis of the provision of revised plans to reflect the decision that I have given with respect to a flat roof. As to the other amendments that have been made to the plans, there will need to be revised conditions also filed to give effect to this decision.

24 I therefore give the following directions to facilitate the filing and serving of those documents:

1. The applicant is to file and serve settled revised plans, reflecting this decision, by the close of business on Friday 8 September;
2. The respondent is to file, electronically (and in conformity with Practice Direction 2 of 2005) and serve settled revised conditions by the close of business on Friday 8 September;
3. The respondent is to send an e-mail to the Court notifying the electronic filing of the conditions of consent;
4. The matter is set down for call-over on Tuesday 12 September;
5. Liberty to re-list on two days notice; and
6. If directions (1) and (2) are complied with, I will make orders in Chambers and vacate the call-over.

Tim Moore
Commissioner of the Court