Tome v Woollahra Municipal Council
[2009] NSWLEC 1281
•30 July 2009
Land and Environment Court
of New South Wales
CITATION: Tome v Woollahra Municipal Council [2009] NSWLEC 1281 PARTIES: APPLICANT
RESPONDENT
RT Tome and A Tome
Woollahra Municipal CouncilFILE NUMBER(S): 10196 of 2009 CORAM: Tuor C KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to an existing house for a roof terrace, swimming pool and loft over garage.
impact on residential amenity, views, privacy, bulk and streetscape.LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003DATES OF HEARING: 29 July 2009 EX TEMPORE JUDGMENT DATE: 30 July 2009 LEGAL REPRESENTATIVES: APPLICANT
Ms S Duggan (barrister)
SOLICITOR
Spiegel & Associates SolicitorsRESPONDENT
Mr P Rigg (solicitor)
SOLICITOR
Deacons
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
30 July 2009
JUDGMENT10196 of 2009 Tome v Woollahra Municipal Council
1 This is an appeal against the refusal by Woollahra Municipal Council (council) of a development application at 2C Tarrant Avenue, Bellevue Hill (the site).
2 The development application includes:
- the addition of a new swimming pool to the southwest of the site:
- further excavation of the subfloor area to create a basement level for change room and bathroom;
- addition of a new roof terrace with stair enclosure;
- change of the approved pitched roof to a metal deck roof with parapet;
- and a loft over a garage.
3 The development application is an amending application to DA286/2005/1, which approved substantial alterations and additions to the existing dwelling (the original consent). The original consent included a condition, which deleted a proposed loft over a double garage (condition 9).
4 The principle issue between the parties is the impact of the pool on the streetscape of Bellevue Road and Tarrant Avenue.
The site and locality
5 The site is located at the intersection of Tarrant Avenue and Kulgoa Lane. It is generally rectangular in shape and has an area of 1,066sqm. The site also has a frontage to Bellevue Road at a lower level. The site is developed with a single storey dwelling and single garage accessed from Tarrant Avenue. A Right of Way (ROW) separates the garage from the house and provides access to 2B Tarrant Avenue. The site is has mature trees and shrubs and slopes steeply up from Bellevue Road to the northeast. A public walkway with steps (the unformed part of Tarrant Avenue) is located to the southeast of the site providing pedestrian access from Bellevue Road to Kulgoa Lane and Tarrant Avenue Roadway.
6 The locality is characterised by substantial two and three storey dwellings as well as some residential flat buildings.
Planning controls
7 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposal is permissible with consent.
8 Woollahra Residential Development Control Plan 2003 (DCP 2003) is also relevant.
Evidence
9 The hearing commenced on site. The Court heard evidence from the adjoining residents at 2A and 2B Tarrant Avenue, and visited 2D Tarrant Avenue. The main concern of the residents at 2A Tarrant Avenue was the impact of the loft over the garage which they considered to be too high and uncharacteristic of the street, and that it would create a tunnel effect when viewed from their driveway. The residents of 2B Tarrant Avenue were principally concerned about the privacy impact from the proposed roof terrace and northwest windows. The concerns of the owner of 2D Tarrant Avenue, in her written submission, were in relation to the altered roof line, stair enclosure and roof terrace. She considered that the stair enclosure was out of keeping with the rest of the house and would further impact on her views towards the city. The roof terrace would create noise and privacy issues, and would look directly into rooms on the side of 2D Tarrant Avenue.
10 Council initially raised the impact of the garage and the stair enclosure and roof terrace as contentions. However, following agreement of the experts, these contentions were deleted.
11 The Court heard planning evidence from Mr D Brindle, for the applicant and Mr T Wong, for the council.
Swimming pool
12 DCP 2003 includes the following provisions of relevance to swimming pools:
- 05.3.6 To ensure that the location and use of tennis courts, swimming pools and spa pools does not have a detrimental impact on the amenity of private and public lands, on streetscapes, and on the important character features of the localities.
C5.3.16 The location of swimming pools and spa pools is to be at the rear of properties.
C5.3.17 For corner allotments or where the property has two street frontages, the location of swimming pools and spa pools is not to be the primary frontage.
13 DCP 2003 is unclear as to what constitutes the primary frontage or rear of a property. The definition of “frontage” in the DCP states:
Frontage means the alignment at the public road reserve at the front of a lot and in the case of a lot that abuts two or more streets, the boundary of which, when chosen would enable the lot to comply with the RDCP provisions.
14 Mr Wong considered that Bellevue Road is the primary frontage and that the swimming pool is therefore located in the front garden of the site. He considered that the pool would be highly visible and is a massive structure that would impact on the streetscape. He was particularly concerned about the view from the pedestrian part of Tarrant Avenue, which is a main pedestrian thoroughfare.
15 Mr Brindle considered that, given the characteristics of the site, it is unclear what the principal frontage is as the address and main access to the site is from Tarrant Avenue and the primary open space fronts Bellevue Road. In his opinion, arguably the pool is located in the rear of the site. However, even if Bellevue Road is nominated as the principal frontage, the pool meets the objectives of the control in 05.3.6 of DCP 2003.
Findings
16 I accept Mr Brindle’s opinion. The pool is set back from the adjoining neighbours and the experts agree that it would not have a detrimental impact on the amenity of these properties. The houses on 2C and 2D Tarrant Avenue have a much greater setback from Bellevue Road than other houses in the street. The pool is set back about 12.7 m from the Bellevue Road frontage and would be behind the front setback line where a structure can be built.
17 The site is steeply sloping and is terraced with steps and retaining walls down to Bellevue Road. The proposed pool will be clad in sandstone and its curved shape is designed to reflect the curve of the house and the existing terrace. The pool is a maximum of 3 m above ground but will appear as another terrace sloping down the slope of the site. Due to the slope of the site, the pool involves minimal excavation and fill, and reflects the topography of the precinct. There is no other location for a pool or outdoor area behind the house on the site. The pool will be viewed against the backdrop of the pool and structure at 2B Tarrant Avenue and against the house itself. Within this context it will not dominate the streetscape. The existing and proposed landscaping will screen the pool and soften its appearance and limit its visibility.
18 I acknowledge Mr Wong’s concerns about the location of the pool in the Bellevue Road frontage and its visibility, and I accept that this would generally not be acceptable, particularly considering the impact of other existing pools in Bellevue Road. However, the proposal meets the objectives of the control given the particular characteristics of this site and the design of the pool, particularly its elevation and appearance as a terrace, and its considerable setback from Bellevue Road. I note that the applicant has agreed that the pool fencing should be glazing and I have included a condition to this effect.
Garage
19 The experts agreed that the height of the loft structure over the approved garage would not be excessive, would be compatible with the character of the area and would not result in significant adverse impacts on the amenity of adjoining properties. The experts note that:
- The garage is set back considerably by 7 m from Tarrant Avenue;
- The overall bulk of the garage with the loft level is acceptable against the backdrop of the existing camphor laurel tree;
- The character of Kulgoa Lane is influenced by a number of existing garage structures;
- The garage with the loft would have minimal impact on the streetscape.
20 The experts also agreed that the impact of the garage on 2A Tarrant Avenue was acceptable and that it would not result in a tunnel effect.
Findings
21 The experts referred to the following controls in DCP 2003 relating to garages:
05.1.3 To ensure development contributes to cohesive streetscapes and desirable pedestrian environments.
05.2.3 To ensure the form and scale of development is not excessive and maintains the continuity of building form and front setbacks in the street.
C5.2.4 Ancillary development, to a maximum height of 3.6 m, may be permitted within the area designated as the rear setback if all other policy controls are satisfied. A minimum 1.5 m rear setback applies to ancillary development in this circumstance.
22 The proposed garage will replace an existing single storey garage for one car with a double garage approximately 6.5 m by 8.5m with a height of 5.5 m above the finished floor level. Although part of the garage, which adjoins the ROW will have a maximum height of about 6.5 to 8 m in the southern corner.
23 I accept the experts opinion that the garage will not adversely impact on the adjoining property at 2A Tarrant Avenue, but I do not accept that the loft and the exceedence of the 3,6 m height control are justified within the streetscape.
24 There are no particular circumstances on the site which warrant a variation to the control. The garage is set back from Tarrant Avenue, but is at the junction of Tarrant Avenue and Kulgoa Lane and will be clearly visible from these streets and from the Tarrant Avenue walkway. There are examples of garages fronting the street in both Tarrant Avenue and Kulgoa Lane, but the experts did not cite any examples of garages, which have lofts in the roof.
25 The controls seek to limit the overall height, bulk and scale of ancillary structures to minimise their impact in the streetscape. The proposed double garage is acceptable but the loft is beyond that anticipated by the controls, particularly given the slope of the site results in the southern corner of the garage being considerably higher than the 3.6 m control. This corner will be visible from Tarrant Avenue walkway and overall I find that the bulk and scale of the garage with the loft is uncharacteristic of the streetscape. The proposed garage without the stair will provide storage space and there is also adequate storage space provided in the sub-basement area and the other garage proposed for the house. I note that the original consent included a condition requiring the deletion of the loft, which I have included in the consent.
Stair enclosure and roof terrace
26 The experts agreed that, subject to redesign of the stair enclosure to slope the skillion roof towards the northwest instead of the other way, the proposal would have an acceptable bulk despite its non-compliance with the two storey height control in DCP 2003. The experts agreed that the change of roof form from a pitched roof to a flat roof would reduce the impact on views to 2D Tarrant Avenue and that the impact of views resulting from the stair enclosure was acceptable. The experts also agreed that due to the setback of the roof structure and the separation, it would have acceptable visual and aural privacy impacts on the adjoining properties at 2B and 2D Tarrant Avenue.
Findings
27 I accept the experts’ evidence that the proposed stair enclosure will not adversely impact on the views from 2D Tarrant Avenue. These views of the city are from a balcony off a secondary bedroom, and overall the removal of the pitched roof will result in reduced view loss from this balcony. I also accept the experts’ opinion that due to the setback and separation of the roof terrace, this will not result in adverse aural and visual privacy impacts on 2D and 2B Tarrant Avenue.
28 The stair structure is an additional storey and does not meet C4.7.9.3 which provides that:
Development is to have a maximum height of two storeys. Where the landform of the site falls more than two metres from the street to the rear of the property an additional basement storey may be permitted as long as other RDCP controls are met…
29 The proposal is below the 9.5 m height control in Woollahra LEP 1995. The experts agree that the additional storey is acceptable, as it does not result in excessive bulk or view loss. The stair is set back considerably from three sides of the proposed dwelling and will not be visible from ground level. From the Tarrant Avenue roadway the stair will be visible, particularly as the road slopes steeply up to the north. However, from this aspect the ground floor is below the level of Tarrant Avenue and the dwelling will still appear as two storeys.
30 The non-compliance with the storey control is therefore acceptable. However, I share the concerns of the adjoining owner that the stair enclosure is not in keeping with the style of the rest of the house, but I do not consider that this is sufficient reason to refuse this aspect of the proposal, particularly given that there is no expert evidence to support this opinion.
Orders
31 The Orders of the Court are therefore:
- 1. The appeal is upheld.
2. The development application for alterations and additions including a swimming pool at 2C Tarrant Avenue, Bellevue Hill is approved subject to the conditions at Annexure A.
3. The exhibits, except exhibits 1, 4, A, D and F may be returned.
___________________
- Annelise Tuor
Commissioner of the Court
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