Westwood v Waverly Council

[2004] NSWLEC 574

Land and Environment Court

of New South Wales

CITATION:	Westwood v Waverly Council [2004] NSWLEC 574 revised - 10/11/2004
PARTIES:	APPLICANT Katherine Westwood RESPONDENT Waverley Council .
FILE NUMBER(S):	10782 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Application :-
LEGISLATION CITED:
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; .
DATES OF HEARING:	22 September 2004
EX TEMPORE JUDGMENT DATE :	09/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor Pike Pike & Fenwick RESPONDENT Mr M Staunton, solicitor Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

22 September 2004

04/10782 Katherine Westwood v Waverley Council

JUDGMENT

This decision was given as an extemporaneous decision during an on-site hearing. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 9 June 2004 by Waverley Council (the council) of Development Application 750/2003 for the demolition of an existing semi-detached dwelling and the construction of a new house at 22 Wiley Street, Waverley (the site).

2 During the course of the on-site hearing, in company with the parties’ representatives, I had the opportunity to visit the premises of the objecting residents at the rear of the site whose properties are located in Henrietta Street and to walk the length of Wiley Street to observe its streetscape.

3 There is no uniform style of the existing dwellings located in Wiley Street. They range from a number of modern redevelopments through pairs of single storey semi-detached houses, a number of freestanding single storey houses to a number of older two storey houses including Victorian terrace style dwellings.

4 Mr Layman gave town planning evidence on behalf of the council. His description of the general streetscape in Wiley Street, from my assessment after having walked the street, is generally an accurate one although I consider he overemphasises the aspect of base-middle-top façade division given that there are significant single storey elements in the street.

5 Council refused the application on a number of grounds and in a Statement of Issues in the proceedings nominated in excess of 20 matters as being of concern.

6 It seems to me that:

• following my examination of the site and of a model of an earlier proposed version of the development; and
• after inspecting the site from the houses of a number of those who object to be application,

there are essentially only two potentially determinative issues.

7 The first relates to the bulk and scale of the proposal and thus its fit into the streetscape and impact when viewed from dwellings to the east.

8 The second is whether the impact on the amenity of neighbours is acceptable or could, with minor modification, be made acceptable.

9 Limited assistance in this assessment is provided by the Waverley Local Environmental Plan (the LEP). The council’s Development Control Plan 2 – Dwelling-House Development (the DCP) sets outs more detailed controls for dwelling house development.

10 The site is zoned 2(a) Residential – Low Density by the LEP. Dwelling houses are permitted in the zone and the second of the zone objectives is to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling-houses.

11 This is the only relevant element of the zone objectives which requires consideration and that consideration arises necessarily in the context of the various elements of the DCP.

12 The LEP, in cl 49, also requires that the council take into consideration the likely effect of any proposed development on any heritage items.

13 The street trees running to the south and commencing approximately in front of the existing dwelling, on both sides of the street, are listed as an item of heritage in the relevant schedule to the LEP.

14 The decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. It was made clear by Spigelman CJ in Zhang (at para 75 on pp 386 and 387) that three propositions apply.

• First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered.

• Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan.
• Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative and the other s 79C matters, when considered, may lead to a differing result from that contemplated by the DCP.

15 The starting point in the DCP is the aims which are contained in 1.5. In particular, those that are called in aid by the council are the second to fifth elements of those aims. These aims are:

• To ensure that the scale of dwelling-houses is appropriate to their allotment sizes and in relation to other dwellings in the vicinity.
• To ensure that new dwelling-houses and alterations to existing dwelling-houses do not significantly detract from the amenity, privacy and views of other dwellings.
• To ensure the council has regard to the principles of ecologically sustainable development when assessing applications to construct new dwelling-houses or make alterations and additions to existing dwelling-houses.
• To maximise the energy efficiency of dwelling-houses, reduce the generation of waste from dwelling-houses, reduce the impact of excessive water runoff from land on which dwelling-houses are situated and to assist in the reduction of crime through environmental design.

16 I do not consider it necessary, at this point in this decision, to deal with them in any detail as these are dealt with as a necessary consequence of my consideration of the various specific assessment matters in the DCP which matters require to be considered in this appeal.

Calculation of the FSR

17 At the commencement of dealing with matters requiring determination, I turn to two issues in contention between the parties relating to the calculation (and results of that calculation) as to the floor space ratio (FSR) of the proposal. This arises as the council submits that the FSR, as calculated by Mr Layman should be 1:1.27. On the other hand, the applicant’s calculation of the FSR is 1:1.13. For an allotment with an area of the site, the permitted FSR, pursuant to 4.0 of the DCP, is 1:0.94.

18 These differences spring from interpretation of matters which are excluded from the definition of “gross floor area” by virtue of exceptions contained in the definition of this term at 1.7 of the DCP.

19 The first of the two calculation matters that are in contention relates to an external storage area which I am satisfied (and the council does not, in substance, press) is excluded from the FSR calculation by the second element of the exclusions.

20 The second of the disputed area is whether or not the area between the proposed external skin of the building with photo-voltaic energy capture capacity, which largely comprises foldable shutters, and the inner glass skin of the building should be included in the gross floor area. As noted above, gross floor area is defined in the DCP with two exclusion paragraphs. The first one of these paragraphs includes sun control devices amongst the exclusions.

21 I am satisfied, both from nature of the material from which the outer skin is proposed to be made and the uses to which it is proposed to be put, the outer skin is appropriate to be characterized as a sun control device and, as a consequence, the area delineated by it which is outside the inner skin of the building should not be regarded as part of the gross floor area.

22 There was also some debate as to whether or not the additional FSR contributed to the bulk and scale of the proposal in any substantive fashion. It was put on behalf of the applicant that, as a consequence of the contributing exceedance was in the kitchen and dining area which were to be excavated on the lowest level.

23 I do not consider is necessary to deal with this expressly as, practically, the bulk and scale issues relate to the presentation of the proposal to the streetscape and the neighbours and effectively do not involve consideration of any detailed argument about numerical FSR exceedances.

Height exceedance

24 Similarly, an issue was raised concerning whether or not the building exceeded the maximum permitted building height under clause 3.0 of the DCP which has, as a control, a maximum building height of 9.5 metres.

25 Building height is defined in the DCP as being the greatest distance measured vertically from any point on the building (not being a vent or chimney) to the natural ground level immediately below that point.

26 Depending on what view was taken of whether or not the actual ground level at the south-eastern corner of the existing building represented the natural ground level or whether it had been modified gave rise to the issue of whether or not there was a height exceedance of ~400 mm. The answer to this question was not readily ascertainable from a cursory examination of the site.

27 Again, I did not consider that it was necessary for me to determine this issue as the possible ~400 mm exceedance would not, in itself, not be critical in assessing the issues of impact on the neighbouring properties to the east of the rear element of the proposal.

DCP size and bulk provisions

28 Three of the objectives of the DCP relating to size and bulk of dwelling houses are raised by Council in these proceedings. These read:

• To ensure that there is no overdevelopment of dwelling-house sites;

• The ensure that any negative impacts on adjoining or nearby residents living in buildings on adjoining or nearby allotments are minimised and, wherever possible, eliminated;

• To ensure that dwelling house development adds to and does not detract from the existing streetscape and character of the area.

29 With respect to the first of these objectives, I am satisfied that the matters relating to height and FSR do not, as a general proposition, contribute to the proposal constituting an overdevelopment of the site. A number of specific matters are dealt with, however, in more detail in the following sections of this decision. These sections also deal with the specific impacts or aspects of the proposal and encompass those which arise from the second of these objectives.

30 With respect to the third of these objectives, the relevant matters are dealt with below, extensively, in discussion concerning chapter 6 of the DCP.

Privacy

31 The objectives of the DCP in 8.0 Privacy and Noise Control read as follows:

• To minimise the extent of overlooking from dwelling-house development to internal areas and open spaces of other dwelling-house development;
• To ensure dwelling-house development minimises overlooking impacts upon the existing dwelling from other buildings;
• To ensure dwelling-house development minimises noise impacts to an acceptable level.

32 With respect to the second of these objectives, it is important to note that the site is within a comparatively intensely settled existing residential precinct and the relationship between the existing surrounding dwellings and their private open spaces with the existing dwelling on the site and its private open space will not be substantially altered.

33 As a consequence, I am satisfied that there will be no alterations to the existing effective overlooking impacts on the site from existing surrounding development and, as a further consequence, there is no conflict with the second of the objectives set out immediately above.

34 Similarly, there is nothing in the proposed design which would create any additional noise impacts on neighbouring properties if the proposed dwelling were to be erected on the site. Thus there appears no conflict by the proposal with the third of those objectives.

35 With respect to the first of the objectives, the upper levels, particularly the highest of the three levels, of the proposed dwelling would have significant potential to overlook the private open spaces of adjacent dwellings.

36 In this context, I note that the residents immediately adjacent to the north and south of the site have raised no concerns about the proposal. However, the proposed vertically folding shutters in the outer skin of the proposed dwelling would have, as originally proposed, been capable of opening to reveal full-length windows at a significant elevation to the private open space areas of adjacent properties.

37 Mr Layman’s evidence, with respect to overlooking, was contained in 4.3.5 of his statement of evidence which reads:

Even so it is clear that, with the possible exception of the 1 metre wide corner panels, the whole rear elevation is floor to ceiling glass with operable louvres facing directly to the rear and with skew views of properties adjoining to the sides. Adjoining private open space is well within the 9m separation, advocated in AMCORD, between windows and private open space.

38 This potential for loss of privacy to the open space areas was a matter of major concern to the objectors living in the properties to the rear of the site.

39 The applicant proposed to address this by amendment to the design that would preclude the upper-level shutters opening to a height greater than 1 m above the floor thus precluding, from a normal a standing position, any overlooking of adjacent private open spaces by any person standing reasonably proximately to these windows. However, the objectors expressed concern that persons standing or sitting somewhat further into these rooms would retain opportunities for overlooking. There is a degree of validity in these concerns.

40 However, if this were to be the only outstanding matter, it would be capable of resolution by a requirement that the lower portions of the inner glass skin at the relevant locations be of obscure glazing.

41 In any event, I am satisfied that these concerns are not determinative, given the comparatively intense nature of the settlement of the immediate precinct and the fact that there is a good deal of existing potential for overlooking from one property to the neighbour’s private open space so as to impose the adoption of a significant degree of good neighbourly respect in the social relationships in the immediate community.

42 As consequence, had this been the only matter of concern and it were not capable of resolution by condition (although, as noted above, I believe that it would have been), it would not have been of such concern as to warrant refusal of the application.

Parking

43 The council raises the matter of whether an off-street parking space should be provided in order to satisfy design solution S1 of chapter 9.0 of the DCP.

44 In this context, I consider that requiring this would be in fundamental conflict with the expressed desire in chapter 6 of the DCP, at design criteria C4, which seeks to preserve the design integrity of existing semi-detached dwellings and ensure that they visually present as pairs or groups of dwellings.

45 To require off-street parking in front on the site would have a substantial impact, in a disharmonious fashion, with the presentation of this site and the southern of the pair of semi-detached dwellings.

Energy efficiency

46 I am satisfied that it is self-evident from the plans and proposed materials that the proposal is compliant.

Safety and security – location of the front door

47 The objective of the DCP in 12.0 Safety and Security is to ensure dwelling-house development contributes to a safe environment.

48 In this context, the council submits that the entrance to the dwelling, being proposed to be in and at the entrance to the north-facing side passageway between the dwelling and the site boundary, does not satisfy the objective because the associated design criterion of having a dwelling entryway clearly visible from the street by day and night is not achieved.

49 In this regard, the DCP's design solution relevantly reads:

There is direct access between the dwelling entry and street frontage. Recessed doorways are avoided as these restrict opportunities for casual surveillance.

50 In the present instance, although the doorway is set at right angles to the street frontage of the proposed dwelling and is thus at right angles to the street, there is not proposed to be any buttressing between the front door and the street.

51 The front door is proposed to be immediately adjacent to the portion of the dwelling which addresses the street. It is certainly not setback at any distance along the north face of the proposed dwelling. As a consequence, I am satisfied that the design meet the tests of this element of the development control plan as the entirety of door area can clearly be easily viewed from the street.

Outbuilding

52 The outbuilding was agreed to be storage and thus excluded from FSR consideration.

Streetscape and visual impact

53 Earlier in this decision, I set out the propositions I consider are relevantly derived from the Court of Appeal's decision in Zhang. In this context it is also appropriate to note the commentary by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where he sets out a summary of how development control plans should be approached by this Court in Class 1 appeals. The relevant portions of this decision are set out at paras 86 and 87.

54 It is in this context that I approach assessing the proposal against the individual Streetscape and Visual Impact objectives of the DCP.

55 The objectives of the DCP in 6.0 Streetscape and Visual Impacts read as follows:

To encourage dwelling-house development of the of a high standard, incorporating good building design and detail;

To encourage dwelling house development to be visually sympathetic to other developments buildings in its vicinity and to the streetscape of which it is part.

56 The first issue to which I turn is whether or not these objectives pose a combined combine test or two separate tests. I am satisfied that a proper construction of the objectives means that there are two entirely separate and distinct tests which are proposed by these objectives.

57 The approach taken by Mr Darroch, a town planning consultant who gave evidence on behalf of the applicant, and that taken by Mr Layman, for the council, are starkly different. Mr Layman made a detailed criticism in the section of his report from 4.1.12 dealing, amongst other things, with non-compliance with the objectives of this chapter of the DCP. He treats the two objectives as being linked and deals with them, effectively, as a single test. I do not consider that this approach is correct.

58 Mr Darroch’s statement of evidence was supplemented on site by further evidence from him and from Mr Godsell, the proposal's architect.

59 Indeed, Mr Godsell gave quite extensive evidence explaining the nature of the design and its materials as well as what might be described as the design philosophy underlying it.

60 Mr Daroch’s statement of evidence quotes from a report of the council's Heritage Architect and Urban Design Planner who wrote, relevantly:

In terms of streetscape, the introduction of a simple highly refined form responding the massing and typical volumes of existing structures is considered to reflect the aims of heritage and streetscape planning.

This is an uncompromisingly modern proposal, of considerable refinement, employing technologically advanced construction. Whilst differing from conventional late Victorian and early 20th century construction typical to the street, the proposal is considered compatible response to the streetscape.

61 Mr Darroch’s statement of evidence also includes extracts from letters from a number of prominent architects. These were:

• Nick Murcutt
• Ian Moore
• Andrew Stanic
• David Stevenson
• Phil Moore

62 Each of them wrote as to the quality of the design and the proposed innovative use of materials, either expressly or by implication, relating them to the energy efficient outer skin proposed.

63 Although these letters were incorporated in Mr Darroch’s written statement and, effectively, comprised expert evidence without the makers being available and without any acknowledgement of the Expert Witness Practice Direction, no objection was raised on behalf of the council to this material and I therefore dealt with it as part of the evidence in the proceedings.

64 Mr Layman’s statement of evidence, on the other hand, dealt with the this aspect, commencing at 4.1.8, in the following terms:

The built form of the streetscape and front setback areas form the backdrop to the heritage item. This built form includes varied building types but is consistent in its display a certain building elements including pitched roofs typically tiled, rendered masonry walls with a relatively high proportion of solid to void window/door area, open verandah porch elements and entries addressing the street. Typically there is a street presentation which displays a base-middle-top façade division.

The proposal is the antithesis of the existing streetscape. The form is boxlike with no visible roof treatment. It has no verandah or porch and does not address the street. Site façade treatment is no different to front or rear treatment. It is undifferentiated as to base, middle or top.

The external skin of the building is comprised of operable folding shutters, glass beyond and fixed panels over block work to match operable shutters. The proposal is in effect a glass box with privacy screens on three sides and a blank wall that matches the appearance of the shutters on the common side boundary.

65 Mr Layman expressed the conclusion that this undermines the integrity of the setting of the street trees. It is out of character of streetscape and with the character of the area generally.

66 As a consequence of the differing approaches of planning experts, there is not any significant degree of consistency between the evidence each presents.

67 Mr Darroch’s statement evidence with respect to design criterion C2 and design solution S2 simply reads:

It is clear from the preceding reports that the proposed dwelling, by virtue of its refined form is visually harmonious with the other dwellings in the vicinity. It is not necessary to copy what exists around the site in order to fit in.

68 With respect to the specific provisions relating to semi-detached dwellings contained in criterion C4 and design solution S4, Mr Darroch’s statement evidence reads:

It is considered that there are appropriate opportunities when one can treat buildings as individual dwellings. The existing dwelling is resolved through the introduction of the blade wall and the new dwelling appropriately presents as such. It has been suggested by the council's Heritage Architect/Urban Designer that this blade wall be deleted to better infuse this form into the streetscape. This is accepted by the applicant and it is considered appropriate to require a condition of consent to delete this element.

69 Mr Darroch concluded that the proposal was consistent with chapter 6 and met the objectives, relevant design criteria and accompanying design solutions of the chapter.

70 Mr Layman’s approach, on the other hand, addresses criticism at the adequacy, in his assessment, of the standard of design as well as its fit in its context.

71 Of all the commentary from the eminent architects quoted by Mr Darroch, only one of them, Mr Stanic, made mention of the DCP. He did so in the following terms:

It is in keeping with the spirit of the Councils DCP, which commends contemporary, environmentally considered design has an objective.

72 However, Mr Stanic makes no reference to any specific matters raised by chapter 6.

73 I have carefully considered how the commentary from these eminent designers assists me to consider whether or not proposal satisfies either or both of the objectives of chapter 6 of the DCP.

74 I am satisfied, not merely because of the commentary (their conclusions in this regard not being, as I understand it, contested by Council) that the proposal is of a high standard, incorporating good building design and detail when considered in abstract. An examination of the model which appropriately represents the design save in one minor (and, in the present context, irrelevant) aspect, together with an examination of the plans causes me be satisfied that the proposed design is undoubtedly one which satisfies the tests implicit in the first of the objectives of this chapter of the DCP.

75 The difficulty that I consider arises for the application comes from the second of the objectives. In this regard, I do not consider that the commentaries assist me at all as they do not address the specific provisions of the DCP.

76 In considering this, it is appropriate to set out the terms of each of the relevant criteria and design solutions from chapter 6 of the DCP against which the proposal should be tested.

C2 New dwellings are visually harmonious with other dwellings in their vicinity.

S2 Where appropriate, building materials complement those of other dwellings near the proposed dwelling-house. Roof-forms are sympathetic to surrounding dwellings.

Semi-detached dwellings

C4 Semi-detached dwelling houses development maintains the design integrity of existing semi-detached dwellings and ensures that they visually present as pairs or groups of dwellings.

C4 Extensions to the roof-form of existing an semi-detached dwelling are designed on the assumption that the other dwelling of the pair may, at a future time, incorporate extensions of a similar nature.

77 In this context it is appropriate to consider the remarks of Mr Stevenson, quoted by Mr Darroch, who wrote, inter alia:

Projects of this type should not be rejected by a strict interpretation of Council regulations. Where a contemporary DA is submitted by architect of the calibre of Sean Goodsell, it deserves to be judged on merit and its intention to meet the important criteria of scale and scale, privacy and overshadowing.

I strongly commend this proposal for approval as it demonstrates an appropriate way to introduce a new and contemporary residence into the street. Rather than pander to other more stylistic forms of housing, this proposal responds to the surrounding context in a way that claims its own time and place but also respects its neighbours.

78 In this context, I note that the commentary by Mr Layman set out earlier contains a blunt but accurate physical description of the built form of proposal.

79 The external skin of the building will present as an opaque flat glazed surface to those who observe it. This is entirely unlike any of the other buildings in Wiley Street. Wiley Street, it should be noted, has had a number of newly elements introduced into it including those at numbers 29, 31 and 43 which, although not uniform or identical with other buildings in the street, clearly fit with and are visually harmonious with other dwellings in their vicinity. They certainly do not present in stark stylistic juxtaposition as this is the case of the present proposal.

80 The simple question, accepting that the design of the building has merit (and, agreeing with the evidence of the eminent commentators, I accept that it has considerable design merit), is whether it is appropriate that the building be inserted into Wiley Street to replace one of a pair of existing semi-detached dwellings.

81 I have concluded that, on balance, it would not be appropriate to permit this to occur. The design departures from the specific matters relating to semi-detached dwellings, which are set out earlier, are quite radical. They are not merely matters of emphasis.

82 The council has determined and, consistent with Stockland Holdings and Zhang, I should give considerable weight to this determination, that there should be significant consistency retained between the components of a pair of semi-detached housing houses. The change proposed is not merely one of degree. If the proposal were to be permitted, the only evidence that it and its southern neighbour had previously been part of a semidetached pair would be the fact that there was a shared boundary wall alignment between them.

83 Whilst I do not consider that there are any impacts on the heritage tree elements of the streetscape, I similarly consider that the proposal would be so different to anything else in Wiley Street that the extent of the contrast could not anyway in be regarded as harmonious. On the contrary, I am satisfied that it would introduce a significant element of discord, from one perspective, or radical contrast from another.

84 With respect to the latter of these alternatives, I consider that this is a conclusion supported by inference by the eminent architectural commentary contained in Mr Darroch's evbidence.

85 Whilst, as a matter of architectural philosophy, significant contrast by the interposing of contemporary design may be considered by some as a desirable design trend for Sydney, it is not reflected by nor proposed to be accepted by the DCP.

86 As a consequence, although I am satisfied that there is, in abstract terms, high design merit in the proposal, I am also satisfied that it does not go any way toward satisfying the relevant detailed design criteria and design solutions arise from the second of the objectives of chapter 6 of the DCP. This is sufficient to warrant refusal because of the degree of departure as I do not consider that design excellence is sufficient to set these aside.

Conclusion

87 As consequence all the conclusions I have reached with respect to non-compliance with 32nd of the objectives of chapter six of the DCP, it follows that the proposal should not be approved.

Orders

88 The orders of the court, therefore, will be:

1. The appeal is dismissed;
2. Development Application 750/2003 for the demolition of an existing semidetached dwelling and the construction of a new house at 22 Wiley Street, Waverley is determined by the refusal of development consent; and
3. The exhibits are returned.
Tim Moore
Commissioner of the Court