Wang v Woollahra MC

Case •

[2006] NSWLEC 106

•

03/08/2006

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Wang v Woollahra MC [2006] NSWLEC 106
PARTIES:

APPLICANT
James Wang

RESPONDENT
Woollahra Municipal Council
FILE NUMBER(S): 11310 of 2005
CORAM: Hussey C
KEY ISSUES: Appeal :- s 96 Modification application for the construction of a 3-storey dwelling - excavation - boundary fence
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan
Woollahra Residential Development Control Plan 2003
DATES OF HEARING: 30/01/2006 and 06/02/2006
 
DATE OF JUDGMENT: 
03/08/2006
LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Wang, litigant in person

RESPONDENT
Mr M. Connell, solicitor
for Home Wilkinson Lowry


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Hussey C

      8 March 2006

      11310 of 2005 James Wang v Woollahra Municipal Council

      JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a s96 Modification application, concerning the construction of a new 3-storey house at No. 9 Dunara Gardens, Point Piper.

2 The development application proposed the demolition of an older style dwelling on the site and replacement by the new 3-storey dwelling. It included a lower floor level containing a pool, sauna and plant area.

3 Development consent was granted by Council on 14 June 2005 to the proposal, subject to 64 conditions including:

          The lower ground floor level (containing pool, sauna, pool plant area, AC area, and bathroom) is to be deleted. Details are to be provided with the application for Construction Certificate.

4 Consequently the s96 Modification application was made to delete this Condition 2 and also to include the extension of the side and front boundary fences of the lot, including a gate to maintain privacy and security to the property.

The site.

5 The subject site is known as No. 9 Dunara Gardens, which is a privately controlled access road, off Wentworth Street. It has an area of 646.6 sq m and is situated on the eastern side of the access way.

6 The adjoining property to the north is No. 10 Dunara Gardens and contains the heritage listed Dunara House. Along the common boundary of No 9 and No. 10 Dunara, there is a right-of-way (ROW), providing access to rear properties, as shown on attached Sketch A. The restriction for the ROW is 1.73 m wide, on both properties.

      Woollahra Local Environmental Plan (LEP) .
      Under which the site is within the 2 (a) Residential zone. This LEP contains relevant aims, objectives and development standards.

      Woollahra Residential Development Control Plan 2003 (RDCP ).
      This RDCP contains various compliance criteria relative to the Point Piper Precinct, in which the site is located.

The evidence.

7 The appeal commenced on-site where the opportunity was given for neighbours to express their concerns about the proposed modifications.

8 These concerns can be summarised as follows:


    • the site is situated on underlying sand beds, which could potentially destabilise surrounding properties if excavation for the lower ground level containing the pool area was allowed;
    • the allowance of the excavation for the lower ground level breached the covenant on the land, which restricts excavation;
    • the additional excavation would likely destabilise the adjoining heritage listed Dunara House;
    • the excavation would exacerbate drainage problems;
    • the allowance of the lower ground level results in excessive floor space which is not consistent with the DCP;
    • the proposed side and front boundary fences would restrict access along the current right-of-way (ROW), necessitating relocation of existing brushbox fence adjacent to Dunara House. Consequently, this relocation would most like result in the removal of two mature trees, a Blackbean (Tree 1) and a Sydney Blue Gum (Tree 2);
    • the effect of covenants on the land;
    • the ability of the applicant to satisfactorily complete the building on the basis of stated construction costs.

9 With regard to the lower ground level modification, the applicant submits that the extent of excavation will be limited and based on geotechnical investigations, adequate precautions can be undertaken so as to stabilise the site during excavation and avoid structural damage to adjoining properties. A geotechnical report from Michael Adler & Assoc. was provided which confirmed that satisfactory engineering arrangements can be made to stabilise the site and carry out the proposed works, including those at the lower ground level, subject to final site investigation.

10 With respect to the additional fencing, the applicant submits that he wishes to extend the 1.8 m masonry fence already approved by Council, so as to provide security and privacy to the new dwelling and also avoid the current trespass situation occurring due to the incorrect fence alignment along No. 10 Dunara, as shown in Sketch A.

Conclusions.

11 In this matter I have carefully considered the evidence, the submissions and undertaken view and I am satisfied that the modifications refer to substantially the same development as approved and that having heard the objections, the modifications merit consent.

12 The first modification concerns the construction of the lower ground level, incorporating the lap pool and other facilities. However, this work is entirely contained within the new building footprint approved by Council. After considering the various neighbours concerns and having viewed the site, I am satisfied that the inclusion of this work will have no material impact on the neighbours amenity.

13 Insofar as the approved dwelling exceeds the relevant floor space ratio (FSR) provisions, and the modification results in some further excedence, nevertheless this additional floor space is in the basement type location, contained within the approved building footprint. However in response to the objections, I have considered the following LEP objectives for FSR standards:


    (a) to set the maximum density for new development,
    (b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities,
    (c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and
    (d) to relate new development to the existing character surrounding built and natural environment as viewed from the streetscape, the harbour and any other panoramic viewing point.

14 In my assessment, the bulk and scale of the building form has been determined and approved by Council, presumably on the basis that it achieves the desired future character objectives for locality. As the proposed modification works are contained within this building form, and there were no material environmental effects on the adjoining properties identified, I am satisfied the objectives are achieved so as to allow this lower ground level of modification.

15 Associated with this, I have considered the evidence on the structural implications of the proposal. The site falls from its northern boundary towards the southern boundary, where it has compatible ground levels with the neighbouring property, No 1 Wentworth Street. As the proposed modification works are predominantly within this lower area, which is closer to the southern boundary and within the approved building footprint, I am satisfied to rely on the structural engineering advice that adequate foundations and support walls can be constructed, without adverse impact on adjoining properties.

16 Insofar as additional concerns were expressed about possible destabilisation of Dunara House, I note that the extent of the modification works is limited to approximately the centre line of the new building. In effect, this means that the internal support wall for the modification is well within the approved external wall footprint, which will inevitably require some excavation for its foundations, and some 15m from the common boundary with Dunara House. Accordingly, I am satisfied to accept the structural advice that adequate support foundations can be designed and carefully constructed which minimises any adverse impact on adjoining properties.

17 Nevertheless, I consider it reasonable to impose conditions requiring satisfactory foundations and supporting structures and designed by practising structural engineer. Also, the method and timing of construction should be included in a construction program submitted to and approved by Council or the Accredited Certifier. Together with this, a dilapidation report on the neighbouring properties should be provided by the applicant and I note that the existing conditions of consent ( No. 48, 49, 50 ) should cover these matters.

18 The other contested issue concerns the proposed fence construction. This issue arises because the construction of the fence on the proposed alignment will likely interfere with the existing access ROW arrangements to the rear properties, No’s 1 & 2 Dunara Gardens. This ROW allows the access by restricting use of 1.73m on each of No 9 & 10, adjacent to their common boundary.

19 Reference to Sketch A shows the respective 1.73m restrictions and indicates the following sections:

        1 – 2; Existing Brush fence, consent granted to replace with 1.8m masonry fence,
        2 – 3; Currently no fence, but consent granted to extend the and construct 1.8m masonry fence,
        3 – 4; Proposed extension of 1.8m masonry fence on 1.73m setback to common boundary, in accordance with ROW,
      4 – 5; Continuation of 1.8m masonry fence,
        5 – 6; Continuation of side fence to 1.8m high front fence, which incorporates 4.35m wide main gate and separate 900mm wide pedestrian gate, connected by intervening piers,
        7-8-9; Alignment of existing Brush fence adjacent to No. 10 Dunara,
        7 – 9; Possible realignment of brush fence to satisfy ROW restrictions (Note Tree 1 encroachment),
    7-13-12; Alternative fence realignment to protect tree T2.

20 According to the applicant submissions, he wishes to construct the fence along 2-3-4-5-6 to provide privacy and security to his property. The new fence will be located predominantly within his property and comply with the 1.73m wide ROW restriction. The construction of the fence on this alignment will prevent the current trespass situation where other persons encroach onto No 9 in the vicinity of sections 2-3-4-5, because of the need to traverse around the large Tree 1.

21 One of the consequences of such approval is that the new fence would restrict the effective width of the accessway between section 4-8 because of the location of Tree 1. Therefore Tree 1 would likely require removal and the fence realigned along 7-9, or some other alignment such as 7-13-12. This realignment would also put vehicles closer to Tree 2, which has a partially exposed root system that is likely to be interfered with and its longevity jeopardised.

22 Having considered the competing positions, it seems unreasonable to me impose conditions which would prevent the continuation of the boundary fence along the proposed alignment 2-3-4-5. This alignment is within the applicant's property, being some 1.73m inside the common boundary, which satisfies the ROW requirements. Such fence would provide the security and privacy the applicant desires and prevent the current trespass situation. In any case, it seems the applicant could plant a garden or shrubs along this part of his property.

23 Under these circumstances, where the encroachment on the ROW is not occasioned by the subject development proposal for No. 9 Dunara Gardens, I consider little, if any weight should be given the objections on this aspect, raised by the neighbours. It seems that any action to resolve these concerns, is more appropriate by alternative action under the provisions of the restrictive covenant.

24 In this regard, the Court was informed that the restrictive covenant allows front fences with a maximum height of approximately 750mm. But it was apparent from the view that this covenant has been breached by a number of the neighbouring properties, and it appears to me that the proposed higher fence is consistent with existing fences in this private residential estate. Although I consider it reasonable that the fence panel adjacent to the northern gate pier (i.e. section 5-4, approx.) should continue the opening steel fence specification, to provide reasonable sight distances for users of the ROW.

25 In summary then, I consider a reasonable case has been made to allow the proposed s96 Modifications, subject to appropriate conditions. The construction of the proposed lower ground level facilities is within the approved building footprint and does not affect the external appearance of the building or amenity of the neighbours and appropriate conditions can be imposed to satisfy the geotechnical and structural engineering concerns.

26 The proposed extension of the fence accords with the fence specification already approved by Council and is on an alignment, which is on private property and complies with the ROW restrictions, so as to allow the property owner a reasonable level of privacy and security, consistent with this neighbourhood.


      Court Orders

      1 The appeal is allowed.

      2 The s96 Modification to construct lower ground floor level facilities and a side and front fence at No. 9 Dunara Gardens, Point Piper is approved subject to the amended and additional conditions in Annexure A.

      3 The exhibits may be returned except for exhibits 4, 6, A, B, C.

___________________

      R Hussey
      Commissioner of the Court
      ljr
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