The Benevolent Society v Waverley Council - [2010] NSWLEC 1367

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
The Benevolent Society v Waverley Council [2010] NSWLEC 1367

PARTIES:
APPLICANT
The Benevolent Society

RESPONDENT
Waverley Council

FILE NUMBER(S):
10613 of 2010

CATCHWORDS:
APPEAL :- application to modify a consent granted for the demolition of existing structures and the construction of housing for seniors or people with a disability - impact on heritage significance of heritage item - view loss.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Waverley Local Environmental Plan 1996

CASES CITED:
J Manzie v Willoughby Council, 10683 of 1995, 14 February 1996, unreported
Tenacity Consulting v Warringah [2004] NSW LEC 140

CORAM:
Brown C

DATES OF HEARING:
8, 9 December 2010

EX TEMPORE DATE:
10 December 2010

LEGAL REPRESENTATIVES

APPLICANT
Mr C Leggat SC
SOLICITORS
Bartier Perry

RESPONDENT
Mr C McEwen SC
SOLICITORS
Wilshire Webb Staunton Beattie

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Brown C
10 December 2010
10613 of 2010 The Benevolent Society v Waverley Council

JUDGMENT

COMMISSIONER: This is an application to modify a consent granted by the Court under s 96(8) of the Environmental Planning and Assessment Act 1979, granted on 14 April 2010 (The Benevolent Society v Waverley Council [2010] NSW LEC 1082) for the demolition of a number of existing structures, and the construction of three new buildings, and alterations and addition to an existing heritage item (Scarba Home) at 8-22 Ocean Street and 30 Wellington Street Bondi (the site) for a seniors or people with a disability housing development. The approval was considered under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the Seniors SEPP) including the use of a site compatibility certificate.
The zoning of the site, the context and the applicable planning controls are set out in the previous judgment, and it is not necessary to repeat them except where they may impinge on the contentions raised by the council in this modification application.
The contentions
The councils contentions relate to two distinct areas; firstly the unacceptable impact on the significance of the heritage item, Scarba Home, and its grounds by the construction of an additional level on the adjoining approved four storey building in the north-east corner of the site; and secondly the unacceptable loss of views from units 23, 27 and 28 of 26-30 Ocean Street, brought about by the proposed additional two units proposed to be constructed on levels 4 and 5 of the Wellington Street building.
Heritage
The heritage significance and assessment context
Scarba House is identified in Schedule 5 to Waverley Local Environmental Plan 1996 (LEP 1996) as a heritage item. The New South Wales Heritage Branch has two separate listings for the site. The first is, “Scarba Home”, where the statement of significance states:
Outstanding late Victorian ‘boom style’ mansion, integrity good despite additions and some replacement of original fabric. One of Waverley’s best surviving Victorian villas. One of the few to retain its original grounds and settings. Local significance.
Based on the State Heritage Register Criteria, the item has historical and cultural significance (Criteria (a)), architectural, aesthetic and streetscape/landscape significance (Criteria (c)) and social significance (Criteria (d)).
The second listing is “Scarba Home and Remnant Garden” and the statement of significance states:
Outstanding late Victorian ‘boom style’ mansion, integrity good despite additions and some replacement of original fabric. One of the Waverley Council area’s best surviving Victorian mansions. One of the few to retain its original grounds and setting. Conserves period Victorian garden elements and subsequent cultural planting. Part of the larger period precinct with school and church groupings. Historical interest for its change to institutional use, and continuing association with the Benevolent Society. Regional significance.
Based on the State Heritage Register Criteria, the item has streetscape/landscaping significance (Criteria (c)).
Clause 33(b) of the Seniors SEPP, states that proposed developments should:
(b) retain, complement and sensitively harmonise with any relevant heritage items that are identified in a local environmental plan.
LEP 1996 applies only where there is no inconsistency with the provisions of the Seniors SEPP. Part 4 of LEP 1996 provides heritage provisions. Clause 45(3) provides that when determining a development application, the Court must “take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item….” Clause 49 requires that the Court must take into consideration “the likely effect of the proposed development on the heritage significance of a heritage item….”
The heritage evidence
Expert heritage evidence was provided by Mr Stephen Davies for the applicant, and Mr Robert Moore for the council. Mr Davies states that the identified significance of Scarba Home and the remnant garden will not be diminished by the proposed fifth level of the building in the north-east corner of the site, as the new additional level has been set back on its west elevation to provide a more moderated relationship with Scarba Home. The set back provides for four levels to be at the approximate height of the roof ridge of Scarba Home. The set back is referenced to the adjoining scale and reduces the impact of the building form on Scarba Home. Mr Davies states that a taller building next to a smaller heritage item is not necessarily a poor design outcome, and is common in some areas. In this case, the circumstances of the location, the design’s sophistication, and the social benefits are valid reasons for supporting the additional level.
Mr Moore disagrees. He states that the additional level dominates and does not give appropriate regard to Scarba Home in terms of height and context. It does not complement and sensitively harmonise with the heritage item, and exacerbates the impact of the approved building by increasing the height, scale and bulk. The proposed modification also adversely impacts on Scarba House by increasing the perceptible invasion of the curtilage through crowding of its immediate setting and extending a height, scale and bulk too close to the heritage item.
Findings
In considering the heritage issue, Mr Leggat SC, for the applicant, placed considerable emphasis on the comments in the previous judgment which stated that while the compatibility certificate at that time did not allow for the five storey building (see par 51), it was considered that a building of this size may be acceptable and “may provide a basis for a modification application to reinstate the detached level”(see par 54). Mr McEwen SC, for the council, submits that I should have no regard to the comments in the previous judgment and that the Court was bound to assess the modification independently of the previous decision.
In considering the competing submissions, I have had regard to the comments of Bignold J in J Manzie v Willoughby Council, 10683 of 1995, 14 February 1996, unreported, where his Honour states (at p 6):
Although the planning history has influenced the present case in the manner I have identified, it is important to note that the influence does not and cannot extend to the determination of the present appeal which must, as I have said, be determined on the planning merits. This conclusion which I understand to be accepted by the parties demonstrates a very limited utility of the Court in the course of adjudicating a development appeal, expressing an opinion of some development proposal different from that which is the subject matter of the appeal.
Where the Court makes such remarks and the parties subsequently agree upon a different proposal, remarks no doubt are perceived in hindsight to be helpful, as they were intended to be, but in cases such as the present the obiter remarks which do not lead the parties to reach any agreement can have no influence on the determination of the appeal. In such circumstances, the remarks will not be perceived as being particularly helpful because they have no influence.
Based on these comments, I am satisfied that I am not bound by the comments in the previous judgment on the additional fifth level.
In considering the conflicting heritage evidence, and accepting the heritage impact that is to be assessed is limited to the additional fifth level, I agree with the conclusions of Mr Moore that the proposed additional level is not appropriate. I can comfortably conclude that the additional level will not retain, complement and sensitively harmonise with Scarba House because of the encroachment into the curtilage and setting of Scarba Home when viewed from inside the site. This encroachment, because of its bulk, scale and height, and proximity will unacceptably impact on the heritage significance of Scarba Home and its grounds.
The additional level is also inconsistent with the applicant’s own Conservation Management Strategy for Scarba , particularly the recommended Physical Curtilage Plan in par 7.7.1 and Policy 53 relating to Future Development. I do not accept that the undoubted innovative and design quality of the proposed building compensates to any meaningful degree for the impact on the heritage significance of Scarba Home and its setting
Mr Davies’ evidence, and the submissions of Mr Leggat, place great emphasis on the considerable social benefits that will flow from the proposed development through affordable housing and low cost housing for the area. The social housing benefits of the proposal are indisputable; however, it does not necessarily follow in my view, that other relevant matters should automatically give way to the laudable social benefits of the proposal. There must be some point where other impacts, created by the proposed development, outweigh the social benefits. In my opinion, that point has been reached by the proposed modification for a fifth storey because of the unacceptable impacts on the heritage significance of Scarba Home and its setting.
View loss
The evidence
The view loss impact was seen by the council to be from units 23, 27 and 28 at 26-30 Ocean Street. The units were inspected on the site view and an estimate made of the extent of the view loss from the approved development, and the extent of view loss from the proposed modification, from different locations in each of the units. After the site view, and during the town planning evidence, an amendment to the modification application was suggested by the applicant that sought to reduce the loss of view impacts by around 50%. As the parties and the Court had difficulty in assessing the amendments, the experts, Mr Neustein for the applicant, and Ms Holton for the council, revisited the units in question and provided photographs with markings depicting the view loss from the approval, the modification and the more recent amendments suggested by the applicant (Exhibit F).
With the benefit of these photographs, Mr Neustein maintained that the view loss impacts did not warrant the refusal of the application. Ms Holton maintained her objection, even considering on the most recent amendments.
Findings
The assessment of view impacts is addressed in Tenacity Consulting v Warringah [2004] NSW LEC 140, where a number of tasks are required to be undertaken. These can be summarised as:
(1) assessing the views affected;
(2) determining the part of the property where the views are obtained;
(3) determining the extent of the impact; and
(4) assessing the reasonableness of the proposal that is causing the impact.
Mr Neustein and Ms Holton agreed on the extent of the view loss shown in the photographs for the different development scenarios in Exhibit F. There was agreement that the Bondi Beach sand and surf interface was not affected, but the view of Ben Buckler Headland and Ray O’Keefe Reserve were affected to varying degrees, depending on the unit and the location within the unit. There was agreement that this represented a significant view loss, although Mr Neustein maintained that this loss was still acceptable because of the significant social benefit that the proposal provides.
In terms of Tenacity, I agree that the views that are to be lost are significant, particularly taking into consideration views already lost with the approved development, including the loss of existing distant water views towards Rose Bay and Sydney Harbour, and the loss of ocean views in a more southerly direction, particularly from units 23 and 27. I do not accept the submission of Mr Leggat that the Ben Buckler headland and Ray O’Keefe Reserve can be reasonably seen as a distinct and separate components from the sand and water interface of Bondi Beach in terms of view loss. They are clearly related and form part of the same Urban Heritage Conservation Area under LEP 1996. The proposed modification (and even the most recent amendment) will restrict views to the Ben Buckler headland and Ray O’Keefe Reserve area in most circumstances, and to varying degrees again depending on the unit and location within the unit.
Of some importance is that the views that are lost are from living areas, such as balconies and lounge areas, where the occupants could reasonably expect to enjoy the views. I accept the approach adopted in the previous judgment that seeks to maximise the extent of the development, because of the socially desirable objectives, however, as with heritage considerations, I must conclude that the impacts of view loss outweigh the social benefits for the proposed two additional units. I note that the suggestion in the previous judgment to internally alter the proposed development to create additional units has not been taken up by the applicant (see par 213). I agree with the submission of Mr McEwen that it is unreasonable that the marginal benefit of providing two additional units places a disproportionate burden on the three existing units through the further erosion of their significant views.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The application to modify the consent granted by the Court on 14 April 2010 (The Benevolent Society v Waverley Council [2010] NSW LEC 1082) for the demolition of a number of existing structures, and the construction of three new buildings, and alterations and addition to an existing heritage item at 8-22 Ocean Street and 30 Wellington Street Bondi for a seniors or people with a disability housing development is refused.
3. The exhibits are returned with the exception of exhibits 1 and F.

___________
G T Brown
Commissioner of the Court