Webster v Woollahra Municipal Council

[2008] NSWLEC 1448

Land and Environment Court

of New South Wales

CITATION:	Webster v Woollahra Municipal Council [2008] NSWLEC 1448
PARTIES:	APPLICANT Evelyn Molly Webster RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10154 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing two storey residential flat building and the construction of a new three storey residential flat building - existing use rights - streetscape/character - number of storeys - view loss - overlooking - overshadowing - excavation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	9/09/08
DATE OF JUDGMENT:	10 September 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms J Reid, solicitor SOLICITORS Pikes Lawyers RESPONDENT Mr S Simmington, solicitor SOLICITORS Lindsay Taylor Lawyers

JUDGMENT:

- 7 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 September 2008

10154 of 2008 Evelyn Molly Webster v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of DA 667/07 for the demolition of the existing two storey residential flat building containing four units and the construction of a new three storey residential flat building containing 2 x 2 bedroom units and 2 x 3 bedroom units with a basement car park for six vehicles at 47 Russell Street Vaucluse (the site).

2 The contentions raised by the council relate to:

1) the three storey form being uncharacteristic of the area,
2) the proposal will create unacceptable overshadowing impacts,
3) excessive excavation and lack of deep soil planting area, and
4) overlooking.

The site

3 The site is located on the south-eastern side of Russell Street in the Vaucluse East precinct. It has a north-western frontage of 25.91 m; a south-eastern boundary at the rear of 34.66 m; a south-eastern side boundary of 15.02 m and a north-eastern side boundary of 19.77 m giving a total site area of 490.5 sq m. The site slopes from the north-eastern corner to the south-eastern corner with a fall of 1.67 m.

4 The site is currently occupied by a two storey brick 1940’s residential flat building. A single brick garage adjoins the south-western wall of the building. The rear portion of the site contains an inaccessible 6 - 6.5 m high cliff behind which is the Derby Street Reserve accessed by a set of stairs further down Russell Street. Beyond Derby Street Reserve are four two storey dwellings that front Derby Street. These dwellings currently enjoy views to the Sydney Harbour and foreshores. A two storey residential flat building adjoins the site to the south-west (45 Russell Street). A two storey dwelling house with room in the roof accommodation and double garage adjoins the site to the north-east.

Relevant planning controls

5 The site is within a Residential 2(a) zone under Woollahra Local Environmental Plan 1995 (LEP 1995). A residential flat building is a prohibited use within this zone so the site benefits from existing use rights. This has the effect that the provisions of the planning controls of the council that relate to the site apply only insofar as they do not derogate from existing use right provisions of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000.

The evidence

6 A joint town planning report was prepared by Ms Alison McCabe for the applicant and Mr Anthony Rowan for the council.

7 Local residents, Ms R Connell of Units 1 and 3, 45 Russell Street, Mr D Baffsky of 34 Derby Street, Mr D Greensall of 36 Derby Street and Mr Israel, an architect on behalf of the owners of 49 Russell Street Mr and Ms McTaggart provided evidence on the site view. Their concerns were similar to the contentions raised by the council.

Findings
Building design

8 At the conclusion of the site view, Ms McCabe and Mr Rowan were directed to confer and consider whether design changes could be made to the building to create a form that would be more responsive to the streetscape particularly, the third level of the building being more recessive.

9 The direction was based on the inapplicability of planning controls because of existing rights and the variable character of Russell Street with old style dwellings, contemporary residential dwellings, residential flat buildings and heritage dwellings located in the vicinity. The variable scale and presentation of buildings to the street was also the result of the relatively steep topography with many dwellings on the high side of the street having a scale, form and appearance of a three storey building whereas buildings on the lower side of Russell Street often had the majority of building form below street level.

10 Ms McCabe and Mr Rowan provided overlays that amended the proposed building by:

• reducing the street setback at the upper level so as to provide a greater setback than the lower levels,
• providing greater setbacks at the rear corners of the building to provide greater articulation at the upper level,
• more specific details on materials to accentuate the difference between the upper level and the lower two levels, and
• a reduction by 400 mm in the lift overrun and the use of similar materials and colours to the roof.

11 At the street level, amendments were made to the proposed fencing to include:

• the opportunity for additional planting,
• a new entry to provide for the continuation of the sandstone fencing, and
• a new entry to the basement car parking including additional landscaping.

12 While opposing the original design Mr Rowan accepted that the amendments generally addressed his concerns and that the amended proposal would be consistent with the objectives of the storey controls within the council planning instruments if the application was required to be considered against these requirements. Ms McCabe supported the amendments.

13 I agree with the conclusions of Ms McCabe and Mr Rowan. Even though the council’s planning controls do not apply, I am mindful that the proposed development largely occupies the footprint of the existing residential flat building. The height of the proposal satisfies the maximum height within the council’s planning controls for the area. The proposed maximum height is at 52.20 AHD (excluding the lift overrun) and this compares favourably with the existing roof pitch of 52.40 AHD. I do however accept that the bulk of the building is increased through the use of a generally flat roof compared to the existing pitch roof. While the council planning controls call for a maximum of two storeys, I am satisfied that given the existing use rights that relate to the site, the proposed development will sit comfortably in the variable streetscape of Russell Street.

14 The efforts of Ms McCabe and Mr Rowan to address this issue in a positive and constructive manner are recognised by the Court.

Overshadowing

15 The issue of overshadowing was a concern of Ms Connell who owns two units in the residential flat building at 45 Russell Street located generally to the south of the site. Her concerns relate to the increased shadowing on the windows in the north-western wall of the residential flat building and the additional loss of sunlight to the drying area directly adjoining the site.

16 The shadow diagrams provided by the applicant indicate increased shadowing on the windows in the north-western elevation of 45 Russell Street, particularly the two windows at the lower level compared to the shadows cast by the existing building. The additional shadows cast by the proposed building leave the upper level around 9.30am in mid-winter and the lower windows around 11am in mid-winter. The proposed building will not cast any shadows on 45 Russell Street after this time.

17 Even though the proposal casts additional shadows on 45 Russell Street, I am satisfied that additional shadows are not significant and would not be a reason to refuse the application. In coming to this conclusion I have taken into account the orientation of the building, the compliance of the council’s height requirement and the relatively small additional shadow created by the proposed building.

18 The loss of sunlight to the drying area was an important issue to Ms Connell. At present, sunlight is obtained to the drying area in the early morning through a gap between the existing building and the cliff face, a width of some 3 m. With the proposed building extending closer to the cliff face to a minimum of some 1.5 m, the opportunity for sunlight to the drying area is clearly reduced. While Mr Simington submitted that the proposed building could be set back further from the cliff face to maintain a higher level of solar access to the drying area, I am not satisfied that this will provide any meaningful increase in solar access. The gap between the existing building and the cliff face is still relatively narrow and would only provide sunshine for a relatively small period of time. A small increase in the setback to the cliff face would only produce a marginal increase in solar access to the drying area. Again, the loss of a relatively small amount of solar access to the drying area would not be a matter that would warrant the refusal of the application.

View loss

19 Potential view loss was seen to come from Derby Street Reserve; the public land that runs along the top of the cliff face at the rear of the site and adjoins the rear boundaries of properties in Derby Street. Its functional purpose is a drainage channel although the area provides expansive views of Sydney Harbour. It is irregular in shape with a narrow slither of land adjoining 34 and 32 Darby Street but with a wider area to the south.

20 With the benefit of the site view, I can comfortably conclude that any view loss is marginal on the land adjoining 34 and 32 Darby Street with the expansive views of Sydney Harbour and city skyline largely unaffected. Views from the larger area to the south, where people are more likely to congregate, is unaffected by the proposed building.

Excavation

21 The amount of excavation and the proximity to adjoining properties was seen as an issue by residents and also by the council in their earlier assessment of the application. As I understand, the council has obtained its own independent geotechnical advice, including appropriate conditions of consent. These conditions have been included in the council’s conditions and accepted by the applicant. On this basis I accept this issue has been adequately addressed.

Overlooking

22 Ms Connell and Mr Baffsky raised the issue of overlooking from the balconies on the side of the building and rear windows respectively. Amendments to the balcony design and rear windows of the dwelling were proposed by Ms McCabe and Mr Rowan to address the issue of overlooking. The amendments, in my view, satisfactorily addressed the issues of overlooking and should be included with the other proposed amendments.

Directions

23 With the amendments proposed by Ms McCabe and Mr Rowan and the agreed amendments, there are no reasons why the proposed development should not proceed, however prior to the issuing of final orders amended plans will need to be prepared to reflect the changes made during the hearing. The council also needs to amend the conditions of consent to reflect these changes.

24 Directions were given that the amended plans and agreed conditions are to be filed by close of business 3 October 2008 with final orders made in chambers if no disputes arose in complying with the directions. The agreed conditions were filed on 3 November 2008.

25 The orders of the Court are:

1. The appeal is upheld.
2. DA 667/07 for the demolition of the existing two storey residential flat building and the construction of a new three storey residential flat building at 47 Russell Street Vaucluse is approved subject to the conditions in Annexure A.
3. The exhibits are returned.

___________________

G T Brown
Commissioner of the Court
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