Zaia Design Architects v Woollahra MC

[2006] NSWLEC 553

Land and Environment Court

of New South Wales

CITATION:

Zaia Design Architects v Woollahra MC & Anor [2006] NSWLEC 553

PARTIES:

APPLICANT
Zaia Design Architects

1st RESPONDENT
Woollahra Municipal Council

2nd RESPONDENT
Resham Singh and Kalwant Kour

FILE NUMBER(S):

11461 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Preliminary findings, dual occupancy development impact on streetscape, removal of Norfolk Island Pine, impact on adjoining properties, privacy view sharing, drainage requirements of cl 25(2) of LEP.

LEGISLATION CITED:

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

CASES CITED:

Tenacity v Warringah Council;
Zhang v Canterbury Council NSWCA 167;
Castanet Investments v Woollahra Council [2005] NSWLEC

DATES OF HEARING:

04/04/2006 and 05/04/2006

 
DATE OF JUDGMENT: 

06/30/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr Green, solicitor
Ms J. Reid, solicitor
of Pike Pike and Fenwick

1st RESPONDENT
Ms M. Hawley, solicitor
of Lindsay Taylor Lawyers

2nd RESPONDENT
Ms H. Irish, barrister
instructed by Mr P. D. McLachlan
of Aitken McLachlan & Thorpe

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 June 2006

11461 of 2005 Zaia Design Architects v
Woollahra Municipal Council
JUDGMENT

This determination was given extemporaneously
and it has been edited prior to publication

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) for the property known as 8 Dalley Avenue, Vaucluse. The proposal is for the demolition of the existing dual occupancy and the construction of a new attached, Part 2 and Part 3 storey dual occupancy development with underground car parking for five vehicles, and two swimming pools, one for each dwelling, one located in the front and one at the rear of the subject property.

2 The site, is approximately 986 sq m with a frontage of some 15.2 m and a depth of 70 and 62 m. The site and topography can be described as sloping away from the street frontage from the west to the east, with a dwelling currently facing the rear of the site and one facing the street. This remains in the proposed reconfiguration as well.

3 The locality is predominantly characterised by dwelling houses of varying architectural style. The adjoining property to the east, 6 Dalley Avenue, is a two storey dwelling house set back towards the rear of the site to take advantage of views west towards Sydney Harbour. Adjoining the site to the west, Nos. 10 and 10A Dalley Avenue. Both consist of two storey dwelling houses with 10A being a battleaxe allotment. Adjoining the site to the west is No. 6 Hillside Avenue and this consists of a two storey dwelling house.

4 The Statement of Basic Facts has been agreed to between the parties and is at Attachment 1.

5 The issues in the proceedings. The respondent raised several issues including the drainage issue and whether consent should be granted to the proposed development in terms of cl 25(2). This matter must be addressed and the Court must be satisfied before the Court finally determines the matter and issues final orders. The other issues are impact on views and privacy and non-compliances with council’s residential development control plan for Woollahra and the provisions of the LEP.

6 The issue of the setbacks was also raised by the council for the front and side setbacks. I will say at this point in describing the issues that the plans were amended since they were initially submitted to the council and were also amendments prior to a s 82A review. Council in the s 82A review also decided to refuse the development application, and those plans with further amendments are the subject of this appeal.

7 A significant issue during the proceedings concerns the view loss from the adjoining properties No.’s 2B, 2C and 6 and the interpretation to be given to council’s controls in terms of two and three storey buildings. The other significant issue is with respect to the Norfolk Island Pine located in the front setback area of the subject property. The applicant is seeking removal of the Norfolk Island pine and also a swimming pool within the front setback area. A related issue is the landscape area requirement in terms of deep soil planting.

8 In the appeal proceedings a second respondent was granted leave to present evidence on behalf of the adjoining property at No. 6. The second respondent contends that the following matters are in issue: whether the proposal should be allowed, a lower floor basement car park level such as the one proposed having regard to the Woollahra DCP 11473 which provides the development is to have a maximum height of two storeys and an additional basement storey may be permitted where the landform of the site falls more than 2 m from the street to the rear of the property, provided that all of the controls are met in the DCP.

9 There was expert evidence given to the Court by arborists Mr P Caster for the applicant and Ms L Bennett, for the council, and Mr R Wallman also gave evidence on behalf of the applicant, a landscape architect. The Court also had the benefit of a joint statement in the proceedings on landscaping and in particular the Norfolk Island Pine. There were two trees also at the rear of the property that the council raised concerns about being affected or impacted by the proposed development, a Jacaranda and Magnolia. The aborist and landscape architect came up with appropriate conditions for the protection of the rear trees so these were no longer an issue in the proceedings.

10 The planners who gave evidence are: Mr D Waghorn, the assessment officer for Woollahra Council; on behalf of the applicant, Mr A Smith, consultant town planner; and for the second respondent Mr Ooi, consultant town planner. They also provided written statements. There was also evidence for the second respondent from Mr S King, an architect specialising in solar access, and Mr Tytler, an architect who provided photo montages, computer-aided for the visualisation of the proposal.

11 The Court in these proceedings must have regard to council’s planning regime and in that regard the Woollahra Local Environmental Plan (LEP) zones the subject site 2(a). The controls within the Woollahra LEP include the objectives of the zone which are to maintain the amenity and existing characteristics of the area, predominantly characterised by dwelling houses. As I stated, cl 25(2) states:

“The Council must not grant consent to which this plan applies unless it is satisfied adequate provision has been made for the disposal of stormwater from the land it is proposed to develop.”

12 Dual occupancy development is permitted in the Residential A zone and the requirement of the objectives is to minimise any impact on the amenity of the neighbourhood.

13 The council’s Development Control Plan is the Woollahra Residential Development Control Plan 2003 (DCP). This is a comprehensive document. I will just cite relevant portions of it for the record, but it is to be noted that the Court has had regard to its total provisions. The objective of the RDCP include:

to facilitate housing that reflects the desired future character objectives of precincts; to retain and enhance significant trees and vegetation, to conserve Woollahra’s leafy character; and to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties.

14 The plan also divides the Municipality into a number of precincts and the subject site is in the Vaucluse East Precinct. The DCP states:

the precinct contains a wide range of housing types and styles reflecting important stages in the precinct’s development. Large areas are characterised by Federation inter-war bungalows. Inter-war apartment buildings are also important contributors. The dominant development type of detached houses within a garden setting is highlighted by common street setbacks and side setbacks that allow for views between buildings. The precinct’s exposed location has meant a sparser foliage and tree canopy when compared to the more protected streets of the Vaucluse west precinct.

15 The desired future character performance criteria for the precinct includes that development respects and enhances the existing elements of the local neighbourhood character that contribute to the precinct. That includes the relationship of the precinct to the coastal area, the rich mixture of residential architectural styles and their emphasis on the connection to the landform, buildings set within highly visible gardens, buildings addressing the street and respecting the street pattern, and harbour views available from the street and precinct.

16 There are also detailed provisions with respect to side boundary setbacks, front and rear setbacks, and the building height storeys provisions “where development is to have a maximum height of two storeys. Where the landform of a site falls more than 2 m from the street to the rear of a property, an additional basement storey may be permitted provided that all other controls are met.”

17 The deep soil landscaping at the front is to be a minimum of forty per cent of the setback area, and the roof forms are to be designed having consideration for neighbouring amenity, overlooking streetscape, suitability and maintaining views across the precinct, and significant vegetation or trees are to be preserved.

18 The building size and location. It is noted that the DCP guidelines are designed to ensure the scale and bulk of housing is compatible with site conditions. Important considerations include the protection of privacy, access to sunlight and views, neighbouring properties and surrounding streets, recognising the importance of tree and vegetation networks within the municipality. The objectives are to preserve established trees and vegetation networks, to ensure the size and location of buildings allows for the sharing of views, and preserve privacy and sunlight access to properties, to ensure the form and scale of development is not excessive and maintains the continuity of building forms and front setbacks in the street to limit site excavation and minimise cut and fill, and to ensure that building form relates to the topography and to protect the amenity of adjoining properties both during and post-construction.

19 The floor space ratio control is related to the size of the subject site and it provides in the current situation for an FSR of 0.55:1. The proposed development is some 0.58:1.

20 The performance criteria relate to the setbacks and there is to be a minimum setback at the rear of 25% of the average site length. The setback for the front boundary is to be an average of when one looks at the street.

21 The other controls briefly relate to view sharing and this concerns the equitable distribution of views between properties. View sharing controls seek to strike a balance between facilitating new development while preserving as far as practicable access to views from surrounding properties. The objectives are to encourage view sharing as a means of ensuring equitable access to views from dwellings, and for private views building forms enable a sharing of views with surrounding residences, particularly from the main habitable rooms of surrounding residences.

22 Acoustic privacy and visual privacy provisions are also referred to in the DCP stating that habitable room windows with direct sight lines must have regard to privacy between buildings and balconies and terraces similarly.

23 The definition of storey in the DCP means any separate level within a building not including levels below existing ground level provided for car parking or storage or both, that protrude less than 1.2 m above existing ground level, or an attic level.

24 When Court met on site I heard from a number of resident objectors and had the opportunity of viewing their properties as well as the subject site and environs.

25 The Kristellers home is at No. 10B Mr Kristeller advised the Court he was concerned about noise from the balconies and the impact on their privacy. He was also concerned about drainage. Mr Vermister of No. 10A was also concerned about drainage and privacy, overshadowing, light, and noise emanating from the proposed development.

26 Mrs McCrystal of No. 10, and her architect, Mr Freeman, gave evidence when this dwelling was visited. The Court was told that three elevation levels of glazing oriented to the side boundary adjoining the subject property at No. 10 will give a feeling of an apartment building with fully glazed walls. Concern was also expressed about the relative levels of the living areas and the relationship between the open space and swimming pool of the rear yard.

27 Mr Taylor of No. 2C is concerned about the impact of the proposed development open space area and entertaining in the large front setback where they currently enjoy views to the harbour across the western boundary fence. He referred to a two storey limit in the Development Control Plan and was also concerned that the Norfolk Island Pine tree should be retained.

28 Mr Shakinoxsky of No. 2B was also referred to the DCP provisions of two storeys and for a development of the site to comply with same. His property enjoys views to the Harbour over the front garden of No. 2C as the dwelling on the adjoining property is set back on the rear boundary.

29 Ms Irish, Counsel for Mr and Mrs Singh of No. 6 stated to the Court the concerns of her clients are about the view sharing and the requirements in her opinion not complied with in the LEP and Development Control Plan that would impact on the views from the premises at No. 6. The dwelling at No. 6has formal living areas on the ground floor and a dining area and there is also an informal combined kitchen dining and living area on the top floor. The submission was made that the proposal is one that impacts unreasonably on the views from No. 6.

30 The Court had the benefit of understanding the views and the proposed view loss with the assistance of height poles erected on site. It is noted that there was not a completely accurate depiction by the height poles, but the discrepancies were pointed out to the Court. The Court also had the advantage of ascending the roof of the existing property to understand what views could be obtained for the proposed development at the relative levels.

31 The expert planners, provided a joint statement to the Court. With respect to the issue of the number of storeys the clause in the DCP allows a maximum height of two storeys, the experts noted that the clause also refers to the statutory height limit of 9.5 m, 9.5 m being the relevant control for development within the area, and it was also noted by the planners this would allow a three storey element. They also agreed the DCP allows an additional basement storey where the site falls more than 2 m from the street to the rear and they agreed the land falls more than 2 m from the street to the rear.

32 The development control provisions. As I stated, the floor space ratio of 0.55:1 is exceeded by the proposal. The proposal provides for 0.578:! The front, rear and the setbacks to the side boundaries were also discussed. It is noted that the experts agreed that the setback from the street was consistent with the streetscape.

33 With respect to the rear setback, it is noted that the proposal before it was submitted to the Court was amended such that there is now a greater setback to the rear, and the setback to the rear on average complies with the council’s requirement although there is one portion where there is an encroachment. However, this is not considered to be significant.

34 Mr Smith and Mr Waghorn of the council consider that the proposal satisfies cl 4(14)(7)(3) of the DCP, while Mr Ooi considers it does not comply.

35 The experts agreed the Norfolk Island Pine could be retained in the proposal. There was also discussion about whether a swimming pool could be relocated within the property to satisfy the requirements or to ensure that the Norfolk Island pine was conserved. The applicant submitted that the Norfolk Island Pine would impact on the private open space area for the front dual occupancy dwelling and that the amenity to the future occupants would be greater afforded with the removal of the Norfolk Island Pine because of its nature spread height and extent.

36 The Court had the benefit on the view of understanding the importance of the Norfolk Island Pine in the district in terms of it being visible from a number of locations. It is also not a Norfolk Island Pine in isolation, but viewed from a greater distance one can see larger Norfolk Island Pines at Nos. 2C and 12.

37 The Court is of the opinion that the contribution of the Norfolk Island Pine to the district should not be compromised and that a future development of the site must accommodate the retention of the Norfolk Island Pine.

38 Furthermore, the Court in its assessment considers that the location of the swimming pool as shown on the plan should not be allowed in that the landscaped deep soil planting area would be more readily complied with and there would be less pressure on the removal of vegetation from the site with the removal of the swimming pool for the front dwellings. The Court in this regard considers that the retention of the Norfolk Island Pine should be a prerequisite for any future development of the site.

39 With respect to the issue of view impact, his matter was ventilated extensively during the proceedings. The Court understands that people value views tremendously and they are a highly desired and guarded asset and benefit to any dwelling house. It is also understood that the Court must have regard to what the council’s controls contemplate for development, and view sharing is a concept that must be considered not only from the point of view of the existing residential properties in the vicinity of the subject site but also in respect of the subject site itself.

40 The Court gained an understanding from the roof of the rear building on the site that the height of the proposal will afford views from the subject property. The balancing exercise for the Court is as to whether impacts are reasonable or unreasonable in terms of the impact on adjoining properties. In this regard the Court can be guided by the development control provisions which I cited earlier about view sharing. One also is assisted by the judgment of the Senior Commissioner, Tenacity v Warringah Council, wherein there are a number of principles identified for view sharing. View sharing, as I said, especially where there are iconic views, are highly valued, and the Court does appreciate concern of adjoining properties when there is an impact on views.

41 The first step that the Senior Commissioner identified for the assessment of views to be affected:

“whether the water views are valued more highly than land views and whether they are iconic views, and whether they are whole views or partial views, that is the interface with the water and the land, and that may be more valuable than where there is an incomplete view.”

42 There is no question that the views from this district are ones that are highly prized because they are of Sydney Harbour, the Opera House and the Bridge.

43 The second step that the Commissioner provided in his judgment is:

“to consider from what part of the property the views are obtained, for example, the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or a sitting position may also be relevant. Sitting views are more difficult to protect than standing views and the expectation to retain side views and sitting views is often unrealistic.”

44 The third step he identified is to assess the extent of the impact.

“This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas, though views from kitchens are highly valued because people spend so much time in them. The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively for example as negligible, minor, moderate, severe or devastating.

The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all the planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity, and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

45 The above provides a broad framework, but does not derogate from the actual provisions of the Woollahra LEP and DCP in terms of view sharing. The role of the Court is to assess the reasonableness or otherwise of the view sharing concept.

46 The proposal in terms of non-compliances. The FSR at 0.578:1 is slightly in excess and the setbacks generally were agreed to between the experts, to which I concur, that is the front and the rear setback, to not present a problem in terms of view loss. It is noted that the setback to the rear boundary was increased in the plans before the Court such that, for example, the view of Kincoppal from the property at No. 6 is largely maintained by the proposed development, and also more distant harbour views in that direction.

47 This is a difficult case because the views in question are ones that are highly valued. However, that does not diminish the fact that there are certain expectations that one should realistically have in terms of views afforded to properties, and then also the expectation of what impact any future development may have where the development generally complies with the council’s controls.

48 Given this is a verbal judgment I will say at this point I have decided that the proposed development is one that does represent appropriate view sharing, even though there will be views that will be impacted by the proposed development. I say this having regard to the fact that there cannot be the same expectation to maintain the same extent of views over side boundaries. It is noted that the position or the juxtaposition of the adjoining properties to the west is staggered such that there are some large setbacks to the front of dwellings by staggering of the built form that affords views down hill over side boundaries. However, the subject property has development potential and the development potential of this property must also be taken into consideration in terms of the concept of view sharing. Similarly for my consideration are the extent of views afforded to the affected properties and the number of locations where there are opportunities to obtain views are relevant.

49 View sharing is relevant for the site under consideration as well as the adjoining premises, and on an overall analysis and with the guidance of the Tenacity principles and with regard to a holistic reading ofcouncil’s controls, I am of the opinion that the concept of view sharing is satisfactory in terms of the subject development application. It could be seen on site that the subject property requires a certain relative level to be achieved before views can be obtained from that property. It is also noted that the subject development is within the 9.5 m height limit and the proposal, as I stated, represents reasonable view sharing in my overall comprehensive assessment of the development application.

50 I cite the Court of Appeal judgment in Zhang v Canterbury Council NSWCA 167 on development control plans to be “a central and focal consideration for the consent authority”. This is a judgment of the Chief Justice of New South Wales, Spigelman and at par 74 he states:

A development control plan is not an environmental planning instrument. Accordingly the requirement in s 80(2) that a consent authority must refuse an application that would result in a contravention of such an instrument does not apply to a development control plan. Furthermore, the prescription by 76B of any development prohibited by an environmental planning instrument does not extend to a prohibition in a development control plan, nor can such a plan contain non-discretionary development standards which, if complied with, would take away consent authorities’ discretion under s 79C(2).

The consent authority has a wide ranging discretion. One of the matters required to be taken into account is the public interest, but the discretion is not at large and is not unfettered, and the DCP must be considered as a fundamental element or a focal point of the decision-making process.

51 In this regard, real, proper and genuine consideration must be given to a development control plan and I have given focal consideration to the development control plan and its provisions in my assessment of this application having regard to a common sense interpretation of all of the provisions together.

52 The Court considered the issue of the two storey maximum and the definition of storeys in the relevant controls. I agree with the experts that the proposal is a part two storey and part three storey development. That is not prohibited in the zone as such and clearly the topography allows for a three storey component, and as could be seen on the view there are other dwellings within the area that clearly contain third storey elements. The issue must be considered in terms of the impacts and also of any non-compliances and I am satisfied that the non-compliances in terms of the floor space ratio and in terms of the various setback controls would not warrant refusal of the application.

53 In my assessment the proposed development as shown in Exhibit A should be modified in terms of ameliorating the impacts on the adjoining dwelling at No. 10 and its relationship to the open space terraces, balconies of that dwelling.

54 The Court enquired as to what would be appropriate in terms of the balconies from the experts and the Court was also assisted by the architect for the proposal. I do not consider that the alternative provided in Exhibit L by Mr Smith is one that should in any way be embraced. I consider that setting the balconies into the living area as shown by the pencil marks on Exhibit A is appropriate, such that the balconies would then protrude from the face of the wall by approximately half their width and be set back into the living areas of the two dwellings. This will not only provide for a greater separation distance and a greater compliance with the side boundary setbacks but it will also provide for an increased level of privacy to adjoining properties in particular No. 10. This change would also require for that portion of the balcony that extended past the wall of the building to have a screen on the northern end of each balcony.

55 In consideration of the impacts on No. 10 and the proximity I also consider that the return of the rumpus room on the ground floor level to the western boundary should be deleted, such that there is only a northern balcony to the rumpus room. The relationship of the western return balcony to No. 10 does not fall in this category and the limited separation and juxtaposition with No. 10 is not acceptable.

56 In my overall assessment where there are iconic views to the harbour and steep topography there is generally mutual overlooking of many properties. And this could be seen within the immediate area here when one looked towards the harbour from the various adjoining properties there is varying degrees of mutual overlooking and this is generally more acceptable where there are views and the eye is taken to the view.

57 The location of the balconies from the living areas of the two dwellings would not impact to an unreasonable extent on the property at No. 10 in my assessment subject to the changes outlined above.

58 The Court in its overall assessment also considers that while not assisting view sharing but to ensure that the building relates to the streetscape in terms of its height, it should be lowered in the front portion. I recognise that this will not provide for views to be retained from adjoining premises but it will make the development sit more appropriately in the streetscape, and with the setback and the retention of the Norfolk Island Pine the development of the site will continue to make a positive contribution to the streetscape.

59 The judgment I refer to in terms of cl 25(2) is Castanet Investments v Woollahra Council [2005] NSWLEC. In this his Honour Talbot J stated that:

“In order to satisfy the primary requirement of cl 25(2) of the Woollahra LEP, the Court acting in the capacity of the council as consent authority must be satisfied that the plans make adequate provision for the ultimate disposal of stormwater from the land it is proposed to develop, including the physical engineering and hydrological specifications for the work in all respects before it determines to grant consent.

After consideration of all issues and matters required to be considered before a development consent can be granted, the Court can determine to grant consent subject to appropriate conditions including a condition that provision for disposal of stormwater be made in accordance with the plans and conditions without formally proceeding to make final orders until the applicant has the reasonable opportunity to make an application under s 40 of the Land and Environment Court Act .”

60 In terms of the future process for this matter, s 40 of the Land and Environment Court Act contains a number of provisions whereby subcl (4) states that:

“Before an order under this section, the Court must notify the owner of the land affected by the proposed easement, and an owner of the land affected by the proposed easement may object to the proposed easement or works, and (b) is entitled to appear before the Court in support of that objection.”

61 Therefore if an easement is secured following the submission of further details after a s 40 application, then the matter would be referred back to me for final orders. Before that step can be taken however, there needs to be details provided to the Court in respect of the drainage requirements because the consent authority, the Court, standing in council’s shoes, must be satisfied that the drainage in terms of cl 25(2) can be achieved.

62 The other conditions that were proposed by the applicant relate to the lift being underslung to reduce the overall height of the proposal, and that should also be undertaken in any amended plan. Before the matter could go further even in terms of the details provided for the drainage, there would need to be an amended plan to reflect the Court’s decision: to delete the front swimming pool, to lower the front portion such that there is a better relationship of the height of the building to the front yard, the retention of the Norfolk Island Pine, a condition that in the event of the Norfolk Island Pine that it be replaced with the same species at an advanced stage, and that the balconies also be shown as amended as indicated on the plans in Exhibit A in pencil, and that the return balcony to the west rumpus room also be deleted. The applicant also needs to provide, as discussed earlier, the owner’s consent for the development application.

63 In conclusion, I consider it fair and reasonable on balance having regard to council’s controls, the principles articulated in Tenacity and recognising planning principles are not legal principles, that the view impact is one that is reasonable in terms of ‘a sharing of views’, and that the proposed development is satisfactory subject to the amendments and having regard to the privacy that those amendments would afford to the dwelling at No. 10.

64 In the Court’s overall assessment of the development application, it is consistent with development that is contemplated by the council’s planning regime in terms of its LEP and DCP, and on the basis of the evidence and my assessment I make the finding that apart from the need to satisfy me in terms of cl 25(2) of the Woollahra LEP, I would be prepared to determine the application by the granting of consent, subject to the amended plan being forwarded with the owner’s consent. These represent preliminary findings in this matter and they will be published as such.

___________________

J S Murrell
Commissioner of the Court
Rjs/ljr