SENIOR COMMISSIONER: Marine Parade at Watsons Bay is a short cul-de-sac street running along the waterfront at the southern end of the bay. The promenade along the water's edge adjacent to the street is a heritage item under the Woollahra Local Environmental Plan 1995 (the LEP). The area on the landward side of Marine Parade, one allotment deep, forms part of the Watsons Bay Heritage Conservation Area identified under the LEP. This element of the heritage conservation area extends a little distance to the south beyond the turning circle at the head of Marine Parade, running as far as including the dwellings to the east of the promenade as far as Gibsons Beach Park. Abutting element of the heritage conservation area, to the east, is a further element of the conservation area identified under the LEP.
4 Marine Parade (the site) was formerly occupied by a residential flat building that has now been demolished. The application to demolish that building and replace it with a new residential flat building was the subject of proceedings before Tuor C in 2008 (Mersonn Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 1475). That appeal was upheld and a development consent was granted to the then proposal being considered by the Court.
The old residential flat building has been demolished but erection of the replacement structure has not commenced.
In 2014, the applicant in these proceedings lodged a fresh development application with Woollahra Council (the Council) seeking approval for a replacement design for the residential flat building proposed to be erected on the site. That design proposes three residential levels above a single level of basement car parking.
In order to achieve three residential levels, there are two aspects of the now proposed design that warrant observation as being critical in the ability to obtain the proposed development yield sought to be achieved through the 2014 application. The proposed lowest residential level is, as a consequence of the gentle slope rearward of the allotment from its Marine Parade frontage, with its floor level being ~ 1 m below ground level at Marine Parade and ~ 1.5 m below ground level at its rear. Mr Booth, the town planner employed by the Council, who was responsible for the Council's assessment process for the application, raised no town planning objection to this aspect of the proposed development. Mr Booth did indicate, however, during the course of his oral evidence, that he would not consider it appropriate to lower the proposed floor level of this lowest dwelling any further.
The second aspect warranting comments is that which lies at the heart of the contest in these proceedings. To achieve the third residential level with 2.7 m floor to ceiling heights at each of these levels, the applicant proposes that there be a pitched roof to the structure (with that pitch being at 13.5° from the horizontal). Pitching the roof at this angle lowers the ridgeline of the proposed structure by ~ 700 mm compared to the ridge height of the development approved in the 2008 proceedings. The ridgeline has also been moved to the north of the location approved in 2008.
The effect of the lowering and relocation of the ridgeline together with a pulling back to the north of the southern wall at the uppermost level is to create, for dwellings to the rear of the site, a view corridor between the proposed building on the site and the existing structure on the adjacent site to the south, 3 Marine Parade. The lowering of the ridgeline would also lessen the impact of a new structure on the site on the views over the site from the dwelling immediately to its rear.
The proposal is permissible with development consent.
[3]
THE SITE INSPECTION
As is customary in development appeals such as this, the hearing commenced with a site inspection during the course of which I was accompanied by Ms Duggan, counsel for the applicant, and Mr Patterson, solicitor for the Council, and those advising and/or instructing them. I heard informal evidence from Ms Banks, an objector residing at a property behind the site.
It was the agreed position of the experts giving evidence in the proceedings that there were four locations in the public domain from which views might be obtained of the site. One, Marine Parade, is, self-evidently, in close proximity to the site whilst the other three comprised the ferry, Green Point and Nielsen Park. It was not necessary, for the purposes of the proceedings, to undertake an inspection of the view from Nielsen Park.
We commenced our viewing by walking out the pedestrian promenade (constructed perpendicular to Marine Parade) along the southern side of the Watsons Bay ocean baths. We then walked along Marine Parade, beyond the Pilot Station building, to the southern end of the conservation area before driving to a viewing location in the public park at the northern end of Green Point, a location approximately 1 km to the northwest of the site. Finally, following the conclusion of the site inspection, I returned to the Court by ferry, unaccompanied, and was able to look back, toward the site, during the initial stages of that voyage.
The purpose of walking the length of Marine Parade was to observe the roof forms of existing development along its length and, in particular, how and from where the proposed roof form on the site might be observed from any proximate location.
The form of the roof in the proposed new design would have a gable end to the Marine Parade frontage; have no eaves; and have a wrap-around continuous materials treatment from the roof form transitioning to the supporting walls. A photomontage of the proposed design became Exhibit B. This photomontage depicts the proposed building (in dark tones), particularly relevant in the proceedings, in the context of its two immediately neighbouring existing structures. As this context is a critical element in the proceedings, the copy of this image reproduced below.
[4]
THE EXPERT EVIDENCE
Expert evidence was given by Mr Booth (town planning), Mr Jones (urban design) and Ms Harrison (heritage) on behalf of the Council. Mr Darroch (town planning) and Mr Davies (heritage) gave evidence on behalf of the applicant.
A joint expert report had been prepared by these witnesses prior to the hearing and it became Exhibit 6. During the course of the hearing proper, the experts conducted two further informal joint conferences. Each of these further joint conferences resulted in a further, supplementary joint report. The report produced after the further joint conference on the first day of the hearing became Exhibit 7 whilst that produced on the second day of the hearing became Exhibit 8.
The joint conferencing process involving these areas of expertise significantly narrowed the range of issues remaining in dispute and requiring determination in the proceedings.
Mr Davies and Mr Jones were excused at the end of the first day's hearing and did not take part in the joint conferencing that resulted in the production of Exhibit 8.
[5]
THE ISSUES
Although a range of aspects of the original design (that shown in the photomontage earlier reproduced) were considered by the experts, in the final analysis only two matters required to be considered by me in determining the appeal. These two matters were interlinked. They comprised, in simple terms, what should be the pitch of a gable roof on the proposed development and from what point was it appropriate for that roof to be pitched from the wall structure.
In this regard, the experts taking part in the joint conferencing during the course of the proceedings were asked by me to consider a number of possible variations that might be imposed by me as part of an "amber light" consideration of the application. Those matters that were canvassed during the first of the further joint conferences did not remain for further contemplation by the time of the conclusion of the proceedings. However, a sketch prepared by the applicant's architect (known as plan SK04) was considered for the purposes of the second supplementary joint conference and that sketch became Exhibit D. A copy of that plan is reproduced below:
[6]
THE CONCLUDING POSITIONS OF THE PARTIES
By the time of the conclusion of the hearing on the second day, the concluding positions of the parties can be summarised as being:
Ms Duggan submitted that I should approve the design in the amended plans for which leave was given in January 2015 (being the design depicted in the photomontage earlier reproduced).
However, she submitted that, if I were not prepared to approve that design, the applicant would accept a development consent that reflected plan SK04 and would prepare revised plans to reflect that within a comparatively short period of time of me determining that that outcome was acceptable and appropriate.
On the other hand, the position adopted by the Council was:
First, if I chose to determine, simply, whether or not the design shown in the photomontage was acceptable, I should conclude that it was not acceptable and that the appeal should fail.
However, if I were minded to adopt an "amber light" approach based on plan SK04, I should prefer the expert opinion given by Ms Harrison concerning this plan and require further modification to it.
In essence, the further modification that she proposed would require retention of the pitch of the roof depicted in that plan whilst setting the roof and its eaves down a further 300 mm. This downward displacement would be achieved by reducing the floor to ceiling height of each of the residential spaces from 2.6 m to 2.5 m, a proposition discussed in more detail below.
[7]
EAVES TO THE ROOF AND THEIR SPATIAL LOCATION
As can be seen from the photomontage of the proposal for which the applicant seeks consent, the present design does not incorporate any eaves to the roof but has a rounded transition from the vertical wall plane to the sloping roof elements on the northern end southern elements of the roof. The same material is proposed to be used for the wall and roof treatments as shown in the photomontage.
The relationship (based on the January 2015 design) with the roofs of the other properties on Marine Parade can be seen from the plan attached to Exhibit 6 reproduced below.
During the course of the oral evidence given jointly by the experts during the first day of the hearing, Mr Darroch agreed that it would be desirable that there be eaves incorporated in the design to express a clear transition from the vertical wall element to the slope of the roof. Although Mr Davies had expressed a much broader opinion on what might be an acceptable form for the roof (he expressing, for example, the opinion that a flat roof would also be acceptable), he did not demur, on my understanding of his evidence, from the proposition that the incorporation of eaves would be a design improvement. The Council's witnesses who expressed an opinion on this point also agreed that such a minor change would also be an improvement to the design.
Plan SK04 shows three distinct pieces of information all of which provide assistance in my consideration of this appeal. First, marked by horizontal gridlines, is the roof form put forward in the January 2015 plan amendments. Second, presented as a dotted line above and extending to the right of that roof form, in black, is the outline of the roof form approved in the 2008 proceedings. Finally, marked in red, is the roof form discussed by the experts on the second day in the joint report that became Exhibit 8.
As can be seen on plan SK04, the applicant's fallback position (marked in red) incorporates eaves extending 400 mm out from the walls from which the roof pitches and these do so as extensions of the plane of those roof elements on the north and south of the roof.
In essence, it was Ms Harrison's position that the roof pitch in SK04 was acceptable but the eaves depicted on plan SK04 should be lowered a further 300 mm so that they were at or below the height of the needs of the contributory heritage item to the north, 5 Marine Parade.
[8]
THE DESIRED PITCH OF THE ROOF
The position adopted by the Council is derived from several provisions in the Watsons Bay Heritage Conservation Area Development Control Plan (the DCP). In this context, the position adopted by the Council is that the pitch of any roof on a development for this site has to fall within the range angles that would constitute the pitch of a traditional roof (DCP cl 4.6.3.1 - Built form at controls C2 and C3). In this context, a traditional roof is one that is pitched somewhere between 22° and 45° from the horizontal. As earlier observed, the pitch of the roof proposed by the January 2015 plans is at 13.5°.
The pitch of the roof shown in the fallback option depicted on plan SK04 is 23.2° and thus falls within the range of a traditional roof form. The consequence of this is that, subject to Ms Harrison's caveat about the overall lowering of the roof so that the proposed eaves would be at a position that, in her opinion, created an appropriate and respectful relationship with the eaves of the building at 5 Marine Parade, the roof form depicted in plan SK04 was acceptable.
[9]
THE GABLE END TO THE STREET
There was no serious contest, as I understood the position of the experts, that any pitched roof on the site that might be considered within the range of options available for my determination should have a gable end to the street rather than having a hipped roof pitched away from the street frontage.
Indeed, as I understood the position adopted by Ms Harrison and Mr Jones concerning the proportion of any development massing that should be represented by the roof form, having a gable roof would assist, numerically, with the extent to which the roof form comprised the massing of the structure and, second, that such a gable end would also enable a reading, better, of the pitch of the northern and southern elements of the roof form.
[10]
SINKING THE BUILDING
I understood that the agreed position of the planning experts was that it would not be possible to sink the whole of the structure further as to do so would not permit a compliant sloped driveway to enter the basement car parking.
Similarly, I understood that it was agreed that the floor of the lowest habitable level could not be lowered further by reducing the floor-to-ceiling height of the garage as to do so would preclude a compliant entrance to the basement car parking.
This second position, concerning the floor-to-ceiling dimension for the carpark and thus be fixing of the lowest residential level is based on reducing the originally proposed floor-to-ceiling height of the basement carpark by 100 mm, no further reduction being able to be obtained in this dimension.
[11]
INTERNAL AMENITY IN THE PROPOSED DEVELOPMENT
The generally recognised standard for floor to ceiling heights in residential developments (except for bathrooms and the like) is 2.7 m. Although the National Construction Code sets 2.4 m as the regulated minimum floor to ceiling height, 2.7 m is observed as being the desirable minimum whenever this is capable of being achieved. This position is recognised in the DCP in the relevant provisions concerning building height for new buildings (cl 4.6.3.1), this provision being in the following terms:
C3 Habitable rooms are to have a minimum floor-to-ceiling height of 2.7m. A lower height may be acceptable or preferred where:
- development is within a roof space (other than for mansard roof forms) and the environmental quality of internal living spaces is not adversely impacted;
- it can be demonstrated that a reduced floor to ceiling height will provide measurable benefits for neighbouring amenity and the environmental quality of internal living spaces is not adversely impacted.
As can be seen from the above extract from the DCP, the DCP itself acknowledges that there are the two circumstances set out when it may be appropriate to consider departure from a 2.7 m floor to ceiling height. Neither of those circumstances is applicable to the present application.
Whilst the DCP is a matter requiring consideration, the 2.7 floor to ceiling height is, as the DCP itself acknowledges, not an invariable and strict provision adopted by the Council.
As to the emphasis I should give to the DCP, as I have observed in many judgments, Zhang v Canterbury City Council [2001] NSWCA 167; (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. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge.
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.
Finally, 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.
In this instance, the Council itself, through its own expert witnesses, has acknowledged the desirability and appropriateness in the circumstances of this proposed development of having a floor to ceiling height of less than 2.7 m. Indeed, those experts advocate an incremental lowering of the floor to ceiling height beyond that which the applicant's experts consider desirable for an appropriate standard of amenity to be achieved for dwellings to be erected on the site.
[12]
CONCLUSION CONCERNING THE JANUARY 2015 PROPOSAL
Although I have earlier noted the framework within which I am obliged to consider the terms of the DCP and, if satisfied it is appropriate to depart from them, may do so if I have good reason for that, I am not satisfied that good reason has been demonstrated, for the January 2015 design, why I should permit departure from the DCP to permit a roof pitch significantly lower than one that would fit within the range of a traditional roof form.
Although that which is proposed as this preferred option has a better view outcome for the residences to the rear (whether directly behind or otherwise), that, in itself, does not provide sufficient reason to depart from the DCP in circumstances where plan SK04 has the Council's experts acknowledging that a higher ridgeline, moved a little to the north from the location of the ridgeline in the 2008 consent and higher than the January 2015 ridgeline proposal will, because of the balancing of lateral movement and vertical displacement, cause no additional impact on those neighbouring views.
In those circumstances where the DCP clearly contemplates a traditional roof form (that is a pitch of between 22o and 45° from the horizontal), departure from requiring such a design cannot be acceptable in circumstances where an alternative compliant design is available and the compliant design would result in an acceptable amenity within the proposed development and maintenance of the development yield sought to be achieved from the site.
I therefore conclude that the January 2015 design ought not be approved.
[13]
THE PLAN SK04 OPTION
The sole dispute concerning plan SK04 is whether or not the eaves should be lowered further.
Whilst the DCP does envisage circumstances when it may be appropriate to limit the height of the wall in order to specify the location of the eaves (cl 4.6.3.1 - Building height - control C1), by the use of the word may, the provision clearly intends that this be discretionary and dependent on the particular circumstances of a proposal.
In this instance, I am satisfied that from any of the locations from which a longer view is available of the site, the difference in eaves heights between 4 and 5 Marine Parade, after the construction of the proposed development pursuant to the plan SK04 roof design, will be dominated by the pitch of the two roofs.
To the limited extent that there is anything that may be immediately discernible in a comparative fashion concerning these roofs, I am satisfied that the eye will be drawn to the differences in the roof materials and the fact that 5 Marine Parade has a roof pitching away from Marine Parade whilst that on 4 Marine Parade has a gable end presentation to the street.
When viewed from a closer perspective, along the promenade, I do not consider that the minor differences will be discernible whilst, again, even when transiting the promenade, it is likely that the gable end element and the roof pitches that frame it will be the elements to which the eye is drawn (particularly given the fact that the building is set back behind the leading edge of 5 Marine Parade and that the balcony balustrading of the upper level on the site will also be an intervening element in the viewing of the built form to be erected on the site).
In summary, with respect to the roof form shown in plan SK04, following final position applies:
the pitch of the roof is within the range of a traditional roof form and, if implemented, would be acceptable to the Council;
although it would be possible to lower the roof form so that the eaves would more closely align with those at 5 Marine Parade, I do not consider that the further lowering of the eaves would create any perceptible difference when viewed from any relevant location;
further lowering of the eaves could only be achieved by further reductions in the floor to ceiling heights within the residential apartments proposed for the development and such a reduction would be an unsatisfactory amenity outcome for those living in the apartments (even if I am wrong about such a lowering not achieving any alteration to the perception of the roof for when viewed from any relevant public location); and
although not the applicant's referred outcome, mandating plan SK04 is acceptable the applicant and would not be regarded by the applicant as constructive refusal of the application.
Overall, therefore, I accept that a revised design reflecting plan SK04 is an acceptable outcome.
In this regard, I note that by me requiring amendment to the plans to reflect plan SK04, the provisions of s 97B of the Environmental Planning and Assessment Act 1979 are not brought into play.
[14]
THE LIFT OVERRUN
Although it was agreed that the lift overrun would, if plan SK04 were to be adopted, be likely to extend through the roof plane, I did not understand that the Council suggested that there was any unacceptable impact caused by such a protrusion.
[15]
CONDITIONS
As is required, the Council provided a set of without prejudice conditions of consent in the event that I were to determine that the appeal should be upheld. There were no contested conditions of consent.
However, several matters relating to how payments made to the Council in anticipation that that which was approved in 2008 would be constructed can be carried forward and applied to the consent that will arise from these proceedings remain to be settled between the parties. It was not anticipated by the legal representatives of the parties that drafting appropriate provisions to effect such transferred application of funds would result in controversy requiring my determination.
[16]
CONCLUSION
Although I have concluded that the 2015 development proposal is unacceptable because its roof form is not consistent with that envisaged for the Watsons Bay Heritage Conservation Area by the DCP that is specific to that area, I have concluded that the alternative design, indicated as being an acceptable to (but not the preferred outcome for) the applicant - being the design depicted in plan SK04 - is acceptable.
The design in plan SK04 is, on balance, acceptable without requiring any further lowering of the eaves height, a lowering that could only be achieved by further reductions to one or more of the floor-to-ceiling heights in the development.
Although each of the proposed dwellings will have considerable amenity afforded to it by an externality (the spectacular outlook of the site to the west across Watsons Bay towards Clifton Gardens) the internal amenity had already been compromised by a reduction in the floor-to-ceiling height from 2.7 m to 2.6 m (despite 2.7 m being generally recognised as desirable and, in this instance, specifically recognised as desirable by the Council's own applicable DCP).
I have concluded that it would not be appropriate to compromise the internal amenity of the dwellings further by requiring any additional reduction of any of the floor-to-ceiling heights and that, for reasons already set out, the relationship between the eaves that will result from the approval of plan SK04 when compared to the eaves height of 5 Marine Parade to the north is of little consequence - given that there is now to be a roof form with a pitch in the traditional reform range and where the height of the ridgeline of the roof on the site will provide an acceptable transition between the contributory heritage items at 3 and 5 Marine Parade (as already diagrammatically depicted).
[17]
PROPOSED ORDERS
Whilst it will not be possible to make formal orders until revised plans based on plan SK04 are prepared and the various drafting elements in the conditions of consent that are necessary to effect the transition between the 2008 development consent and that which will arise from these proceedings, it is appropriate to indicate that, when the plans and conditions are settled, the orders of the Court will be:
1. The appeal is upheld;
2. Development Application 14/0239 for the erection of a three-level residential flat building above the basement car parking at 4 Marine Parade Watsons Bay is determined by the granting of development consent subject to conditions remaining to be settled between the parties; and
3. The exhibits, other than Exhibits A and 2, are returned.
[18]
DIRECTIONS
The matter is set down for mention before me at 4:10 PM on Thursday, 23 April 2015.
However, if revised settled plans reflecting this decision are filed with the Court and revise settled conditions of consent reflecting this decision are filed with the Court (physically and electronically as a .doc Word document) by the close of business on Tuesday, 21 April 2015, I will make orders in chambers and vacate the mention on 23 April.
Tim Moore
Senior Commissioner
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 March 2015