Tintilly Pty Ltd v Willoughby City Council - [2005] NSWLEC 615

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Tintilly Pty Ltd v Willoughby City Council [2005] NSWLEC 615

PARTIES:
APPLICANT
Tintilly Pty Ltd
RESPONDENT
Willoughby City Council

FILE NUMBER(S):
11482 of 2004

CORAM:
Hoffman C

KEY ISSUES:
Appeal :- Overdevelopment of a small allotment - siting - character and streetscape - amenity - landscaping - privacy - shadows - bulk - next to a conservation area

LEGISLATION CITED:
Willoughby Development Control Plan No. 16 - Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones
Willoughby Local Environmental Plan 1995
Environmental Planning and Assessment Act 1979

DATES OF HEARING: 20/05/2005, 15/07/2005 and 12/08/2005

DATE OF JUDGMENT:

11/04/2005

EX TEMPORE JUDGMENT DATE:
11/04/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr B Hones, solicitor
SOLICITORS
Hones Lawyers
RESPONDENT
Ms T Irish, barrister
Instructed by: Mr A Stafford
Of: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

4 November 2005

11482 of 2004 Tintilly Pty Ltd v Willoughby City Council

JUDGMENT

1 This is a class one appeal No. 11482 of 2004 between Tintilly Pty Ltd and Willoughby City Council in regard to the refusal of a house at No. 1A Ross Lane, Naremburn.

2 The site is a small 305 sq m triangular lot in a laneway. Some other lots have a side or rear boundary frontage to the lane, this is the only lot that has its prime and only frontage to the lane. There is an existing timber Sea Scout Hall on the property.

3 There is 33.8 m frontage to the lane with 27.5 m on the east side boundary and 22.2 m on the south side. The land has one neighbour occupying the full eastern side boundary. That is a single storey house at No. 30A Dalleys Road. On the south side boundary there are three rear neighbours being Nos. 5, 7 and 9 Ross Street. There is a fourth neighbour having only a corner on the south-east side boundary and that is No. 3 Ross Street. Number 9 also has a side boundary to the laneway.

4 There is a right-of-way along the rear boundary of No. 9 giving vehicular access to the rear of No. 7. As a result No. 9’s backyard is separated from the common boundary with the subject site by a fence and gates about 3 m from the rear boundary. Number 7 has a paved area inside its backyard adjoining the common boundary with the subject site and double gates to the right-of-way. Opposite the site across the lane and slightly downhill are the rear boundaries of Nos. 63, 65 and 67 Mitchell Street. Numbers 63 and 65 have rear access to the garages. Number 67 is a block of flats with vehicle access from Mitchell Street. Number 61 is offset from the site and also has a rear vehicle access but no garage off the lane. Those houses in Ross Street and Mitchell Street are in the Naremburn Conservation Area but the subject site is not.

5 The site slopes down from No. 30A Dalleys Road and Nos. 5, 7 and 9 Ross Street towards the lane. Number 61 is an almost level block between the lane and Mitchell Street. Numbers 63, 65 and 67 slope down from the lane. Their backyards are lower than the laneway but the garages and entry drives are built up to the level of the lane. They all have vegetation in their backyards and 1.8 m high fences to the laneway. Some fences appear to exceed 1.8 m high.

6 The proposal is for a two-storey house roughly L shaped and set up near the back corner of the lot being the southern boundary with 0.9 m to 3 m variable setback to the rear boundary adjoining Nos. 5, 7 and 9 Ross Street.

7 On the eastern side boundary was No. 30A Dalleys Road. The setback to it is variable 1.5 m – 1.9 m. Due to the L shape of the house the setback to the lane varies from 4.5 m – 0.93 m to 6.5 m and 2.53 m.

8 The design is said to be a little unconventional in that it has two curved corrugated iron roofs, one on each leg of the L shape with the curved sections rolling towards the neighbours at Nos. 30A, 5, 7 and 9 on the east and south.

9 On the opposite elevations facing north and west there are clerestorey glass louvre windows from about 2.1 m above the floor up to the ends of the curved roofs that are about 3.6 m above the floor level of the upper storey. Below the 2.1 m height there are conventional windows on the second storey into bedroom 1 and its en-suite and bedroom 2 of the proposal. These windows have surrounding frames on the sides, heads and sills that project out from the wall about 300 mm. They are an architectural feature of the design that the applicant said could be done away with if the Court accepted the objectors’ evidence.

10 The house has 3 bedrooms and en-suite and a bathroom on the upper floor. On the ground floor is an open plan living, dining and kitchen area with a separate laundry and toilet and a tandem parked two car garage. The vehicle entry is through gates off the lane at the north end of the site. There is a pedestrian entry by another gate off lane at the south end of the site to a small porch at the front door. The private open space is in the crook of the L shape of the house between it and the laneway fence. It is a triangular space about 8 m x 10 m x 13 m or about 40 sq m in area. Within that there is a 1 m wide timber deck outside the sliding glass doors to the kitchen and to the living room. It serves as a landing only and step outside the doors into the courtyard.

11 The upper storey walls are clad in horizontal weather boards, ground floor walls are rendered masonry. At the rear of the proposed house there is a panel of sandstone wall about two-storeys high within which is stairwell from the living room up to the bedrooms. This wall is adjacent to rear boundary of No. 7 Ross Street. The setback varies from 0.9 m to 1.5 m. The wall is about 5.2 m tall.

12 A picket fence is proposed to the laneway with a hedge planted just inside on the boundary. The other fences are the paling type. Along parts of the boundaries with No. 30A and No. 5 there is to be a retaining wall about 0.5 m inside the subject property to support the neighbours’ land and allow for excavation of the subject lot up to about 0.8 m. The issues in the appeal are:

Overdevelopment and siting

Particulars

Willoughby Development Control Plan 16 -Dwelling Houses, Dual Occupancy

Boarding Houses in Residential Zones

Particulars

Character and streetscape

Particulars

Willoughby Local Environmental Plan

Particulars

Amenity

Particulars

Landscaping

Particulars

Plans

Pre-Hearing Practice Direction

Particulars

13 The respondent’s evidence was heard from:

Ms R Meani, objector and resident of No. 3 Ross Street
Mr S Orsini, objector and resident of No. 5 Ross Street
Mr S Findlay, objector and resident of No. 7 Ross Street
Mr D Magin, objector and resident of No. 9 Ross Street
Mr A Waugh, Mrs D Waugh and Ms J Clark of No. 30A Dalleys Road
Mr C and Mrs P Pillay, objectors and residents of No. 63 Mitchell Street
Mr A R Stuart, owner of No. 61 Mitchell Street.
Mrs R Marsh, objector and resident of No. 63 Mitchell Street
Mr B Gaal, development officer of council
Mr P Rowan, building services manager of council and
Mr R Dickson, town planner representing the objectors.

14 The applicant’s evidence was given by:

Ms J Baker, representing the applicant
Mr I Nathan, representing the applicant

15 There were reports for the applicant by:

Mr R Staas, architect and heritage expert
Ms N Sonter, landscape expert
Mr J Hewitt, traffic engineer,
Mr R de la Vega, architect of the proposal and
Mr G Goodyer, town planner

16 They were not required for cross examination.

17 The parties had agreed that the Court should appoint Mr L Winnacott, town planner as an expert. Mr Winnacott, had the opinion that given suitable conditions and changes the development should be approved. The respondent submitted that he could not therefore represent the objectors who wished Mr Dickson to given evidence on their behalf. This was permitted.

18 The case had been set down for a single day on-site hearing. Due to the necessary time taken to locate the proposed house on the site and erect height poles and observe the likely impact from all the objectors’ homes and hear evidence, it was impossible to complete the hearing in a single day. Usually at an on-site hearing pegging of the buildings corners and erection of height poles are already done before the hearing commences, but not in this case.

19 During the hearing on-site the drawings were shown to have many anomalies some of which are marked in Exhibit 7. The hearing was adjourned with directions for plans to be corrected and re-exhibited. Upon resumption for the second day of the hearing two months later, quite a number of inaccuracies and inconsistencies in the drawings had not been corrected and the landscape plan had not been updated.

20 Evidence was taken from Mr Dickson and Mr Winnacott. Once again the hearing could not be completed and drawings needed updating to comply with the agreed draft conditions and once that was done final evidence and submissions needed to be taken. Another month later the hearing was able to be resumed and completed but some of the conditions were now disputed and are dealt with in this judgment.

21 Part of the objectors’ concerns with the original plans was that the site was shown as flat when it had about 2 m cross fall. With no levels shown on adjoining properties to give relative levels, the building might have been 2 m high to the ground floor adjacent the laneway, therefore adding 2 m to the 6.5 m height to the rooftop. This had implications for height, bulk and visual impact and shadows.

22 Subsequent drawings revealed the excavation of the allotment down close to the level of the laneway. Whilst excavation reduced visual impact this gave rise to the concern about retaining walls including that the retaining walls along the boundary with No. 30A only went for half the boundary length, whereas the level differences meant it must go to the full length. This was remedied in the final plans in Exhibit O.

23 The evidence was the shadow diagrams were drawn at the correct relative building heights and took account of the ground levels being higher on east and south sides. The shadow diagram showed in mid-summer the house shadows barely went beyond the site between 9 am and 3 pm. But in mid-winter the rear one-third of the yard at No. 7 Ross Street would be in shadow all day. Number 9 had about a third of its rear yard in shade at 9 am but the shadow was almost gone by noon. In any case the rear 3 m of its yard was fenced off to provide the right-of-way to No. 7. Number 7 said the paved area at the back fence just inside the gates to the right-of-way was used constantly by the children of the house for play and it was not used for car parking.

24 Number 5 commenced to receive shadow to its backyard in mid-winter about 11 am and it extended to about two-thirds of the yard by 3 pm. Mr Orsini was very concerned because his entire backyard is a vegetable garden with an amazing variety of fruit trees and vegetables and herbs. The clear northern exposure he had was very important for growing in his opinion. He believed the shadows would severely affect his productive crops that he grew as food for his table.

25 Mrs Clark’s concern about the excavation was resolved by the extension of the retaining wall alongside the full length of the boundary with No. 30A in subsequent drawings. She had asked that the fence be 1.8 m high on the boundary measured on her side of the boundary as there is a concrete side path there. The applicant agreed. She had said her mother at No. 30A had a severe lung condition and they would need to take her away from the dust during demolition. Mr Hones for the applicant offered a holiday for a week for the mother and at the applicant’s expense.

26 Mrs Clark also noted in the south-east corner of the site is in her opinion a rare Japanese maple that would be removed by the excavation. There is to be a blueberry ash planted in the corner between the retaining wall and the boundary. She thought it was not needed and would only add to leaves over the boundary into No. 30A. She asked that the Japanese maple be transplanted instead.

27 Mr Magin at No. 9 said the proposed house was very close to his back fence and would shade his backyard and affect his potential to build a garage. In cross-examination it was put to him the right-of-way along his back fence for vehicle access to Mr Findlay’s would prevent any garage being build there. He agreed. The shadow diagram showed in mid-winter the only shadows from the proposal would fall at 9 am on the right-of-way and where Mr Magin parked his car now and that is the likely site of any new garage. The shadows were gone from Mr Magin’s by noon mid-winter. In summer there was next to nil shadow from the proposal on his land.

28 Mrs Meani at No. 3 said the proposal being next to a conservation area had to be designed sympathetically. She did not think the design did that. Some of the added shortcomings were:

(a) The house was built over the sewer.

(b) The driveway location and pedestrian gate had no public footpath along the laneway outside the site and no recess into either gate. That meant that exit from the site could be dangerous as drivers sped through the laneway. She noted the other garages in the lane and their gates had recesses so a driver could see coming out and park partly off the lane to open garage doors or gates safely when entering.

29 If the design observed the correct rear setback of the Development Control Plan at 6 m, she would get no shadow in her opinion.

30 Mr Findlay at No. 7 said he acknowledged a house could be built on the subject site and had attempted to maintain a relationship with the applicant to achieve an acceptable outcome for all. However, this had not resulted in an acceptable design.

31 The proposal having a rear setback of 900 mm to 1.5 m variable adjacent to his back fence when a 6 m setback is the DCP requirement caused unacceptable impacts. The wall is a two-storey 5.3 m high sandstone wall with a two-storey high stairwell window in it. The benefit to the applicant of such a small rear setback appeared to be the ability to park a car on his driveway as well as two cars in the proposed garage.

32 Mr Findlay said for that benefit to the applicant, due to non-compliance with the required 6 m setback, he had to pay the penalty of the visual bulk, the lighted window at night and shadows all year on his backyard that currently got full sun. In mid-winter shadows came 12.5 m up into his backyard and even at the noon minimum the shadows came up 7 m into the yard. The grass and vegetation must be affected and they were the areas used by his young children to play not in the area outside the house. The area alongside the back fence had pavers and that was just inside the gates from the right-of-way but it was rarely used to park a car he said. As could be seen on the visit to his property the BBQ was located at the paved area. There is another large patio up beside the house.

33 He noted the shadow impacts on Mr Orsini’s vegetable garden were worse, from noon on, than the impact on his property.

34 Until Mr Findlay was told about the proposed excavation he had imagined the house was built higher due to the slope of the ground. This would have meant visitors to the proposed house when standing on the porch at its front door could look over the fence into the Findlay’s backyard private open space. Mr Findlay said the proposed house should be 4 m from the rear boundary to given separation and to allow the planting of some boundary vegetation and to reduce the visual bulk impacts and shadows. Also if the two-storey high stairwell window remained he would prefer it in glass blocks to give greater diffusion of light especially at night.

35 He said he had paid a premium for his land to have the northern sun in the backyard and also to be in the conservation area to have sympathetic development around him. The design of the house was not sympathetic in his opinion and in particular he disliked the sandstone wall. It was not a material that was used in the conservation area. Mr Findlay accepted there must be some impact on the rear of his land but the proposal is excessive in his opinion.

36 Mr Stuart gave evidence by a conference telephone. He owned No. 61 Mitchell Street. He endorsed the evidence given by Mr Pillay. Mr Stuart’s greatest concerns were bulk and scale and privacy. I had been asked to observe the site and the height poles of the proposal whilst standing in Mr Stuart’s backyard just outside his family room windows that face the site.

37 Mr Stuart referred to montages Mr Pillay had prepared and said the proposal would dominate his backyard even though it was across the lane. Visitors standing at the front door and the bedroom 1 window of the proposal could look directly across into his house. He noted an existing Eucalyptus tree near the porch of the proposal. It was to be removed. Mr Stuart said the tree should remain as it was the only thing that could soften the visual dominance of the proposal.

38 It was pointed out Mr Pillay’s montages had not been admitted to evidence as they clearly did not match the height poles agreed by the parties as correct. However, a new house plan was in evidence that Mr Pillay had prepared in conjunction with the objectors. The purpose of the plan was to show an acceptable house design of similar size to the proposal. Mr Stuart supported that design. He said his objection was still valid even if the proposed house was a little lower than previously thought.

39 During the first adjournment Mr Hewitt considered the driveway access. The lane is one-way in a north direction from Ross Street to Dalleys Road. He used the Australian Standard and New Zealand Standard 2890.1-2004 template for the 85% vehicle. Even with the 4.5 m wide carriageway he said a car on full lock could turn into the site by the proposed gate and continue the turn on to the drive strips and then into the garage. The drive strips shown on the plan needed to be adjusted for the radius. He concluded that since the lane was one-way, it was likely a driver would actually reverse in through the gates and up the driveway, because it would be an easier and safer entry and would enable an exit in a forward direction rather than reversing out. For most drivers an entry onto the site by reversing in would be an easier manoeuvre than a full lock turn through about 150 degrees.

40 Ms Sonter during the adjournment had reviewed the eucalyptus tree noted by Mr Stuart and produced conditions of building construction and tree maintenance that would enable it to be kept. Engineering conditions were also tendered by the applicant to Sydney Water standards for construction over the sewer. These were not contested by the respondent.

41 Whilst the council had not raised the issue of proximity to the conservation area the objectors had, so for more abundant caution, Mr Staas had been engaged by the applicant.

42 The Court is bound to consider s 58 of the Willoughby Local Environmental Plan and Mr Staas evidence goes to development in the vicinity of the conservation area. Quoted from his report:

“any new development which abuts the conservation area must provide an appropriate interface between the commercial and residential precincts through its scale, form, materials and landscaping.”

It is assumed that the major issues that would arise in the situation of development in the vicinity of a conservation area that does not act as an interface with the commercial areas would relate primarily to appropriate scale and avoiding any potential impact on significant views to and from the conservation area.

The subject site has no significant part to play in the setting of any identified portion of the conservation area or any impact on any significant views within the conservation area. For this reason the scale and character of the design while not identical to the federation character of buildings within the conservation area is nevertheless compatible with those buildings in terms of their proximity.

43 No expert heritage evidence was brought to contradict Mr Staas.

44 Some of the objectors saw the design of the house being contemporary and having curved roofs and projected windows and varying wall materials as unsympathetic to the conservation area.

45 Mr Staas thought the rear of many of the houses in the conservation were not sympathetic to the Mitchell and Ross Streets heritage streetscapes and therefore the laneway streetscape was not obliged to be sympathetic.

46 Mr Pillay drew attention to a church steeple some distance to the east that he could see from his rear windows. He said the proposal would block that view. He also took me to a location on the footpath in Mitchell Street where one could look between houses towards the site. One could see the Eucalyptus tree that Mr Stuart asked to be kept. Mr Pillay said the proposal would be seen from the conservation streetscape and would be an unacceptable disturbance.

47 It seemed to me any two storey house especially one that might have the 6 m setback from the rear southern boundary would block a view of the church steeple from Mr Pillay’s house. That could not be sufficient for refusal.

48 The sighting of the proposed house from one location on the conservation streetscape was at a distance of 45 m or more between two houses. Someone walking or driving by would be unlikely to notice it, and if they did, it would only be for a second when driving. That could not be sufficient for refusal.

49 In Ross Street any glimpse down the lane towards the site was blocked by terrace houses at Nos. 5, 7 and 9 as well as a grove of trees in the rear yard of No. 9. The proposed house would be around the bend in the lane at the rear of No. 9.

50 Mr Staas’ evidence is accepted. It is the other aspects of the proposal that must be determinative.

51 Before the second hearing day Mr Dickson and Mr Winnacott had conferred on town planning matters and produced a joint report in regard to the second set of house plans in Exhibit M.

52 They had agreed Ross Lane had no consistent setbacks to buildings and that the normal 7 m front setback would be an unreasonable requirement. Mr Dickson said with a reduced front setback, the house should be one storey within the 7 m distance from the lane, Mr Winnacott thought it was acceptable at two storey. Mr Dickson agreed with Mr Finlay’s suggestion of a 4 m setback to the southern rear boundary. Mr Winnacott said it should be determined on merits. They agreed the eastern boundary setback is acceptable and the picket fence and gates along the laneway shown on the landscape plan in Exhibit B and later in Exhibit Q are also acceptable.

53 They agreed the west windows of bedrooms 1 and 2 could create privacy impacts for Nos. 61 and 63 Mitchell Street and should be made into highlight windows. The northern windows of bedrooms 1 and 2 could be enlarged if desired to compensate. The window in bedroom 3 should have a privacy screen to prevent overlooking of 30A’s backyard.

54 On shadows they agreed No. 9 Ross Street had no unacceptable shadow impacts. They disagreed on Nos. 5 and 7.

55 The controls says “where possible buildings should be sited to maintain approximately 3 hours of solar access between 9 am and 3 pm on the 22 of June to the principle open space recreation areas such as swimming pools and patios of adjoining properties.”

56 Mr Winnacott said that requirement was achieved. Mr Dickson said the control was for complying development, that is, in this case ones that observe the 6 m rear setback requirement and height planes. The proposal did not comply and creates an impact as a result.

57 They both agreed the existing Eucalyptus tree near the entry porch must be kept and that aural privacy for neighbours would be acceptable.

58 They agreed the proposal was below the maximum height permissible although the house penetrated the height plane on the western and southern end of bedroom 1 due to its closeness to the boundary.

59 Mr Dickson said the design did not comply with some aspects of the Desired Future Character of Naremburn and St Leonards in the Residential Development Control Plan No. 16 cl 2.5.2 in that it did not have regard to the homogeneous residential streetscapes of single storey bungalows with gabled and hipped roofs, and that it did not pay particular attention to adjoining properties protection of sunlight and did not avoid high vertical walls.

60 Mr Winnacott believed the restricted size of the lot, its being the only property with its frontage to the lane and being at the back of other houses including two storey ones, and in the light of Mr Staas evidence, it did not need to comply completely on those aspects and was satisfactory subject to conditions.

61 Mr Winnacott agreed the sandstone wall facing No. 7 Ross Street could be redesigned and stepped back at the first floor level to reduce bulk. Mr Dickson also wanted the curved roof lowered by reducing the clerestory window heights by 685 mm. Having curved ceilings inside following the roof line he said the rooms would remain airy and spacious. The maximum ceiling height would be 2.8 m and with the clerestory windows high up at the ceiling level sunlight would be very bright given the north and west orientation of the windows.

62 He also wanted the curve in the roofs set by fixing the level of a third point in the arch not just the spring line and the peak of the curve. He said the spring height of the curve should be 1.8 m above the floor of the upper storey and the peak at RL 76.295 and the lip of the roof above the clerestory windows at RL 76.234.

63 Mr Dickson also sought the exterior colours to be approved by council’s heritage architect to obtain some coherence with the adjoining conservation area. The mix of rendered masonry ground floor, weatherboard first floor and some sandstone with curved roofs and projected window frames are not reflective of any particular theme in the design he said and control of colours would soften its fit into the locality.

64 Mr Winnacott agreed colours should be considered and lowering the roof would reduce bulk and shadows. Removing the projecting frames of the windows should be done as well he said. He thought fixing the spring height of the curved roofs and the peak level was all that was needed.

65 The design of the proposal had another aspect in that parts of the upper storey step back from the footprint of the ground floor. For example, bedroom 1 on the west elevation was about 1 m setback from the west wall of the ground floor so there was a small flat roof over that and the entry porch. Bedroom 2 steps back about 0.5 m on the north elevation and 1.3 m on the east elevation and this setback continues along past the bathroom and bedroom 3. Mr Dickson thought this produced an awkward design and sought to integrate it better by asking that small curved roofs be inserted above those flat roof sections.

66 The step back of the first floor especially at the west end of bedroom 1 he favoured to reduce bulk as seen from the lane. The objectors voiced a concern that the flat roofs might become balconies and create more privacy impacts.

67 The applicant said there were no doors out onto the flat roofs and no balustrades so a fresh development application would be needed to do what the objectors feared and council could refuse that happening.

68 The applicant also noted the varying width of the flat roofs would mean small curved roofs of different radii that could not be mated or mitred at corner points. It would result in a very awkward design and the flat roofs are the best solution. It created a design feature the applicant said whereby the solid masonry ground floor formed a podium for the lighter and smaller upper storey.

69 I am inclined to agree with the applicant on that point. The small curved roofs could not be matched up to give a tidy finish to the appearance.

70 On the third day of the hearing Mr Pillay gave evidence on the final set of plans in Exhibits O, P and Q. The respondent said the plans were finally at a level of accuracy that could be dealt with subject to conditions of consent.

71 Mr Pillay said he hoped all the suggested changes to the design would be imposed to minimise the impacts. He thought the problems arose from poor siting of the house on the allotment as follows:

Eucalyptus

72 Mr Pillay preferred the alternate design for the house, he and the other objectors had prepared an Exhibit 7. He said the applicant and the designer of the proposal had not appreciated the restrictions created by the small size and the odd shape of the allotment and the impacts on the neighbours.

73 In coming to a final conclusion from this appeal, Mr Pillay’s final statement has some truth to it, but so does the applicant’s response that the process of this hearing with several sets of amended drawings coming from the applicant show there had been sincere efforts to resolve everyone’s concerns. The allotment did have constraints and in the end Mr Winnacott had the opinion that an acceptable solution had been reached.

74 The excavation of the site had lowered the kitchen, living room and entry porch floor levels to the extent that a person standing there could not look over the 1.8 m laneway fence and hedge, across the lane, and over the neighbours’ 1.8 m high fences, and down into their swimming pool or yards. The kerb top of the lane at the site front fence is around RL 70.12. A 1.8 m fence top would be therefore at about RL 71.92. The ground floor of the house is RL 70.48 and normal eye height is 1.6 m above at RL 72.08.

75 The only overlooking that could occur would be from the upper storey where bedroom windows are usually considered as used mainly at night and are usually heavily curtained. As a result neighbours’ privacy is not seriously impacted. Nevertheless Mr Winnacott agreed the west windows should be made highlights and the north windows of the bedrooms increased if desired. I impose those conditions.

76 Because of the final floor heights and separation distances, I do not see a privacy problem from visitors standing on the front porch of the house.

77 I am concerned about safety of people using the gate on the blind corner of the laneway. I require the pedestrian gate to have a similar 1 m x 1 m splay in the fence each side of the gate as required in Condition 12 for the vehicle driveway gate.

78 On shadows I am concerned about their impacts because the proposal does not observe the standard required 6 m rear setback and components of the upper storey penetrate the height plane set down in the development control plan.

79 A triangular lot makes it difficult to determine a rear boundary as the development control plan only refers to standard shaped allotments. The applicant obviously deals with the south boundary as the rear and I accept it as a rear boundary for the purposes of merits in this appeal. Even though the proposal is under the height limit, that particular standard is only a maximum allowable. What is permitted depends on the merits.

80 There is also the question of bulk being very close to neighbours’ rear yards where one would normally expect the open space of another yard beyond the back fence. The neighbours across the lane have a concern also but it is the Ross Street neighbours’ impacts that warrant achieving the least shadow and bulk impacts. Therefore the clerestory windows and the roof height on the upper storey should be reduced as outlined previously by Mr Dickson.

81 The stairwell, when one looks at the drawings has minimum head height at the top landing. The only way to lower the masonry wall is by changing the stair to have winder steps in the top landing and thereby maintain head clearances. Relocating the stair in the tight layout of this small house would be difficult without a major internal redesign that has not been canvassed in the evidence.

82 The excavation of the site does mean at the east end of the masonry wall it will appear 600 mm lower than the Findlay’s lot at that point according to the survey levels in Exhibit D. So the wall will appear about 4½m high at the east end, and 5m at the west end. The retaining wall on site needs to be extended further westwards than shown on the plan behind No. 7 Ross Street to account for the depth of excavation along the common boundary. Even with the excavation accounted for the sandstone wall will still appear bulky from the Findlay’s side.

83 It is reasonable to reduce this appearance by putting winder steps in the top landing of the stairs of the proposal. This avoids a re-design of the internal layout and will enable the curved roof to be carried through to the south face of the masonry wall and create eaves instead of a parapet. As a result the height of the sandstone wall can be reduced by approximately 600 to 700 mm. The winder steps at the top of the stair will reduce the length of the stair flight occupying the living room floor. This is a small benefit, but in a small house it has some value.

84 The combination of the lowered roof line and masonry wall and the excavation, when compared to the shadow diagrams in Exhibit G would significantly reduce the shadows on the Findlay’s and the Orsini’s in mid-winter.

85 Given conditions to bring these amendments into effect, I have concluded the proposal is reasonable and takes acceptable account of the applicable statutes and controls, the objectors’ concerns and the expectations of the applicant. The necessary changes to the plans should be done by way of deferred commencement consent so that the final plans can be checked by the council prior to construction.

86 Therefore the orders of the Court are:

1. The appeal is upheld.
2. Deferred commencement consent is granted to the demolition of an existing building, partial excavation of the site, and the erection of a two storey dwelling in accordance with Exhibits O, P and Q being drawing No. 2005/01-DA01/F by Hayes de la Vega Architects, and a letter and conditions to preserve an existing tree dated the 10 August 2005 from Narelle Sonter Botanica and landscape drawings from the same consultant being drawing Nos. 050263-LPO1/D and LEO1/C, all as further amended by, and built in accordance with the Conditions in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits C, D, G, K, N, O, P, Q, 1, 6, 9, 10, 13,15 and 16.
4. The respondent to forward the draft conditions in Exhibit 13 to the Court in electronic form within 7 days hereof, for updating and issue.
5. No order as to costs.

____________

K G Hoffman

Commissioner of the Court
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Tintilly Pty Ltd v Willoughby City Council [2005] NSWLEC 615

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CITATION:	Tintilly Pty Ltd v Willoughby City Council [2005] NSWLEC 615
PARTIES:	APPLICANT Tintilly Pty Ltd RESPONDENT Willoughby City Council
FILE NUMBER(S):	11482 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Appeal :- Overdevelopment of a small allotment - siting - character and streetscape - amenity - landscaping - privacy - shadows - bulk - next to a conservation area
LEGISLATION CITED:	Willoughby Development Control Plan No. 16 - Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones Willoughby Local Environmental Plan 1995 Environmental Planning and Assessment Act 1979
DATES OF HEARING:	20/05/2005, 15/07/2005 and 12/08/2005
DATE OF JUDGMENT:	11/04/2005
EX TEMPORE JUDGMENT DATE:	11/04/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones, solicitor SOLICITORS Hones Lawyers RESPONDENT Ms T Irish, barrister Instructed by: Mr A Stafford Of: Mallesons Stephen Jaques