Wright v Woollahra Municipal Council

[2009] NSWLEC 1173

Land and Environment Court

of New South Wales

CITATION:

Wright v Woollahra Municipal Council [2009] NSWLEC 1173
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Norman Wright

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10221 of 2009

CORAM:

Bly C

KEY ISSUES:

MODIFICATION APPLICATION :- View sharing

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003

CASES CITED:

Wright v Woollahra Municipal Council [2008] NSWLEC 1457
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140

DATES OF HEARING:

1 June 2009

 
DATE OF JUDGMENT: 

2 June 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green (solicitor)
SOLICITOR
Pikes Lawyers

RESPONDENT
Mr P Rigg (solicitor)
SOLICITOR
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

2 June 2009

10221 of 2009 Norman Wright v Woollahra Municipal Council

JUDGMENT

1 In October 2008 the Court dismissed an appeal against the Woollahra Municipal Council's decision to refuse an application effectively for the construction of a three-storey detached dwelling house at 2 Marine Parade Double Bay. (See Wright v Woollahra Municipal Council [2008] NSWLEC 1457) In essence the appeal was dismissed because the breach of the height development standards in Woollahra Local Environmental Plan 1995 could not be justified particularly taking into account the consistent single dwelling character of two storeys along Marine Parade.

2 In the Judgment the issue of loss of the views over Sydney Harbour from the residential flat building at 12 Wiston Gardens was considered, taking into account the view loss principle in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140. It was there concluded that view loss would not be a reason to refuse the application (putting aside the third story issue) because whilst the third floor block to some existing views other areas were opened up through the removal of the pitched roof of the existing building.

3 The applicant in those proceedings (and the applicant in these proceedings) subsequently (6 November 2007) obtained development consent from the Woollahra Council for a two-storey detached dwelling house.

4 On 13 February 2009 the applicant lodged an application under s96 of the Environmental Planning and Assessment Act 1979 for the modification of the development consent. Relevantly the relative floor levels are proposed to be variously increased and the topmost element of the roof increased in height by 1.06 m.

5 The modification application was advertised and a number of objections especially in relation to building height and view loss from 12 Wiston Gardens were sent to the council. The council, having considered a council officers report decided to refuse the modification application essentially because of the impacts on existing views towards the harbour from adjoining properties.

6 The applicant has now appealed against this refusal, the appeal being conducted as an on-site hearing that later resumed on the Court premises. Whilst on site I had the opportunity of inspecting the locality and visiting the dwellings of the neighbours who would be affected in terms of view loss.

7 I also had the opportunity of observing the underway construction of the dwelling house that includes the basement and ground floor slab. It was acknowledged by the applicant that these structures are in the order of 200 mm higher than as shown on the approved plans.

8 In order to understand the extent of view loss for the neighbours I was assisted by the joint town planning report of Mr T Wong (respondent), Mr G. Chapman (applicant) and the applicant's architect Mr D Mackenzie. During the ensuing discussions the applicant agreed to lower the building by a total of about 800 mm so as to reduce the proposed relative height of 11.1 m so that the building has a maximum relative height of 10.3 m. This modified height results in the building having a height of 8.5 m for the purposes of clause 12 of the LEP that sets a maximum height of 9.5 m.

9 In his submissions for the respondent, Mr Rigg explained that even though the building height development standard is complied with it remains necessary for the objectives of that standard in cl 12AA of the LEP to be taken into account. Those objectives seek to minimise impacts of new development on existing views of Sydney Harbour; to provide compatibility with adjoining residential development; and to minimise detrimental impacts in terms of existing sunlight access.

10 He also explained that certain provisions of Woollahra Residential Development Control Plan 2003 need to be taken into account. Relevantly under the heading of General Controls objective O 5.2.2 requires that the size and location of building should allow for the sharing of views for neighbouring residents. More particularly under the heading of Views the DCP describes "view sharing" as the equitable distribution of views between properties where a balance is sought between facilitating new development and preserving as far as practicable access to views from surrounding properties. Objective O 5.5.2 seeks to encourage view sharing as a means of ensuring equitable access to views from dwellings.

11 By reference to the evidence of Mr Wong, Mr Rigg explained that the loss of views resulting from the proposed increase in height of the building should be considered in terms of the view sharing principles in Tenacity. The essential principles firstly involve that consideration of the nature and extent to which views might be taken away as a result of the proposed development and secondly where the views are available from.

12 It is plain that views from bedrooms, kitchens, living rooms and balconies of apartments 6, 7 and 10 at 12 Wiston Gardens will be variously affected. More particularly apartment 6 will be least affected followed by apartment 10. I agree that 7 will be most affected. Hence if I find the impact on apartment 7 to be satisfactory then the impact on the other two apartments will also be satisfactory. I do not understand there to be any suggestion that the view losses need to be considered cumulatively.

13 According to Mr Wong the view loss as a result of the (non-amended) proposal involve water views and skyline and distant views towards the Point Piper headland. He described these impacts as being moderate. Mr Rigg submitted that these are iconic views and the special views of the water by comparison with views of land are more valuable, although the views of Middle Head are important.

14 In this context Mr Wong referred the Court to the fourth element in Tenacity that requires consideration of the reasonableness of the proposal that is causing the impact and whether with a complying proposal a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. He explained that, in this regard the answer is "yes" because a more skilful design has been demonstrated by the approved development that is lower than the proposal and minimises impacts on existing views and ensures the sharing of views.

15 Mr Chapman disagreed, contending that (even before the reduction in height that results in the now proposed building being a little more than 200 mm higher than the approved building) the development proposal meets the view sharing principles in Tenacity. As he explained the amount of water view loss from apartments 7 and 10 as a result of the proposed height increase is minor and view sharing is maintained. As a consequence no further redesign is required.

16 Having contemplated the view losses resulting from the increase in height of the proposed dwelling house during the site inspection, it is not difficult for me to accept the evidence of Mr Chapman taking into account that what is now proposed is about 800 mm lower and conclude that the additional impacts on views from the affected apartments is minor. But this is not a complete answer. What I need to decide is whether, in its totality, the resulting view sharing is satisfactory taking into account the objectives of the LEP and the DCP that seek to minimise impacts on existing views of Sydney Harbour and the sharing or equitable distribution of views for neighbouring residents. Also to be taken into account is the reasonableness of the proposal taking into account relevantly applicable planning controls. In this regard I note that the building as proposed to be modified complies with all relevant controls including floor space ratio and setbacks. Importantly the building will be 1 m lower than the maximum available height. In addition I have given some but certainly not determinative weight to the conclusions in relation to view sharing in Wright [2008].

17 I also take into account the explanation of Mr Mackenzie as to how he has configured the floor to ceiling heights in the interest of providing an appropriate internal amenity for this dwelling house particularly in the context of the locality of the site in Double Bay.

18 In terms of the planning controls the proposal is plainly reasonable and in my opinion so too is the approach of Mr Mackenzie. It is also clear that the dwellings at 12 Wiston Gardens will lose some views but will still, variously, retain views of Sydney Harbour including components of water and land. On balance I am satisfied that view sharing has been achieved and that the objectives of the LEP and the DCP have been met.

19 I have therefore decided that the appeal should be upheld and the development consent modified.

20 The orders of the Court are therefore:

1. The appeal is upheld.
2. The modification application to amend development consent 673/2006/1 (6 November 2007) for alterations and additions/construction of a dwelling house at 2 Marine Parade Double Bay is approved and the consent is modified by:
A.6 Approved Amended (s96) Plans and supporting documents
(a) Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the approved plans and supporting documents listed in the original consent, as amended by the amended approved plans and supporting documents as submitted by the Applicant and to which is affixed a Council stamp “Approved Plans” listed below otherwise than modified by further condition(s). Where the plans relate to amendments, alterations or additions only those works shown in colour or highlighted are approved.

Reference	Description	Author/Drawn	Date(s)
SK01 to SK06 inclusive	Architectural Plans	Dugald C. Mackenzie & Associates	2/2/2009
LPDA 08-324/1	Landscape Plan	Conzept Landscape Architects	May 2008


Note : These plans and supporting documentation may be subject to conditions modifying the development imposed under section 80A(1)(g) of the Act (refer to conditions which must be satisfied prior to the issue of any Construction Certificate .)
Standard Condition: A6
(b) The building shall be lowered so that its maximum height is at RL 10.30.
(c) The parapet to the front of the building (on the northern eastern western facades) shall be no greater than RL 9.33.

3. Exhibit A is retained.

___________________

T A Bly
Commissioner of the Court
ljr

05/06/2009 - Legal representatives under the wrong applicant and respondent - Paragraph(s) Coversheet