Baenziger Coles Pty Ltd v Bega Valley Shire Council

The site and its context

1. The site is on the south-western side of Coraki Drive, opposite a public recreation reserve. The adjacent and vacant site to the north-east forms a drainage valley in the hill, between Weemilah and Coraki Drives.
2. The site is 746.1sqm, with an 18.285m frontage to Coraki Drive with a 9m fall from the rear southern corner of the site to the northern corner.
3. There is a single storey house on the adjoining property to the south-east of the site, at 28 Coraki Drive. There are two single storey houses to the rear of the site, at 15 and 17 Weemilah Drive, both with raised rear decks overlooking the north-eastern views of the ocean, across the trees in the foreground.

The proposal

1. The proposal is for the construction of a new dwelling, consisting of the following accommodation:

• Basement: 2 car garage including storage area; store room; entry lobby provides access to the lift and stairs; bathroom and games room with a 'mini-bar' kitchenette;
• Ground Floor: kitchen, dining and living area with an external terrace over the garage below; lobby area with access to lift and stairs; three bedrooms, bathroom and separate toilet;
• First Floor: kitchen, dining and living area opening onto a balcony to the north-east and to a rear courtyard with spa to the south-west; lobby area with access to lift and stairs; master bedroom and balcony; walk in wardrobe; ensuite; study; laundry and separate toilet;
• Second Floor: gym with stair access only opening onto a terrace.

Planning framework

1. The site is zoned R2 Low Density Residential pursuant to Bega Valley Local Environment Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
2. The height of buildings development standard objectives at sub-cl 4.3(1) of LEP 2013 are to retain the existing character and landscape of the locality and to encourage a low-set building form and to protect residential amenity, views, privacy and solar access. The maximum height of buildings development standard for the site is 7.5m (Height of Buildings Map HOB_020A LEP 2013). Clause 4.6 of LEP 2013, 'Exceptions to development standards' provides an appropriate degree of flexibility in particular circumstances.
3. LEP 2013 adopts the standard instrument dictionary definition of dwelling; 'dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.'
4. Bega Valley Development Control Plan 2013 (DCP 2013) includes residential character statements at 3.1. The character statement for Pambula Beach, at 3.1.13, is as follows: 3.1.13.1 Existing Character Pambula Beach is a village characterised by low density residential development, with some tourist development and limited retail activity. The village is located between National Park and the ocean. 3.1.13.2 Desired Future Character New dwellings addressing the ocean in Pambula Beach are responsive to site orientation and solar access, the available view, the effect on dwellings adjacent to and behind the site also seeking of a view, the climate and prevailing winds and the topography. Houses located in the non-oceanfront section of Pambula Beach are considered to be in a more "bushland" environment where subtly different architectural themes and colours may be appropriate. These elements include but are not limited to: extensive use of lightweight construction, extensive glazed areas often protected by louvres, natural timber finishes, bonded sheet metal cladding, off form concrete, natural stone, zincalume steel, fibre cement, plywood cladding.
5. The general requirements for streetscape, at 3.2.1.2 of DCP 2013, are: Objective:  Establish a design consistent with the surrounding streetscape. Requirement: • The development must be well proportioned when viewed from neighbouring properties and the street.
6. The objective for character and form, at 3.2.1.3 of DCP 2013, is to ensure a high quality contemporary design.

Public submissions

1. Two resident objectors provided evidence on site.
2. The adjoining neighbour, to the south-east of the site, is concerned about the size, scale and proximity to the boundary of the proposal when viewed from her private open space at the rear of her dwelling. She is concerned about overlooking from a window on the north-western elevation on the ground floor. She is concerned about overshadowing of her private open space. She is also concerned about the loss of northern views from her backyard.
3. The adjoining neighbour to the rear of the site is concerned about the height of the proposal and the impact of the second floor of the proposal positioned in the foreground of their ocean views.

Expert evidence

1. Expert planning evidence was provided by Ms Cecily Hancock on behalf of the Council and Mr Andrew Duggan on behalf of the applicant.

Characterisation

1. Ms Hancock is concerned that the proposal is capable of being occupied and used as two attached and separate dwellings. In her view, the basement entry foyer could be shared, with access provided via the lift and stair to the first domicile on the ground floor, consisting of a kitchen, dining and living area, three bedrooms, bathroom and separate toilet and access provided via the lift to a second domicile on the first and second floors, consisting of a kitchen, dining and living area, bedroom and study, bathroom, laundry and separate toilet and gym and terrace. The second domicile could be accessed externally via a path and stairs on the north-western side of the dwelling to the rear courtyard and through a door on the rear elevation adjacent to the dining area.
2. The Council submits that if I am minded to accept the Council's position that the proposal is capable of being occupied and used an attached dual occupancy; then, notwithstanding that an attached dual occupancy is permissible in the zone, the Court does not have jurisdiction to deal with the matter, as the application before the Court is not for an attached dual occupancy.
3. The applicant submits that the proposal is for a dwelling, albeit for a beach house which will, at certain times of the year, house a number of generations of one family and for this reason, the proposal includes a separate and more modestly scaled kitchen on the ground floor associated with the guest accommodation on the ground floor. The applicant further submits that the circulation of the proposal is centred between the bedrooms on the north-western side of the dwelling on both the ground and first floors and the living areas on the south-eastern side of both the ground and first floors, and for this reason the proposal cannot be characterised as an attached dual occupancy because one must travel through the central lobby that divides the bedrooms from the living area on the ground floor in order to reach the first floor. Furthermore, anyone moving up and down the circulation spine of the dwelling will be able to view the living areas on each level. The applicant notes that there is only one laundry proposed, on the first floor, and this further substantiates the position that the proposal is not for separate domiciles.
4. Both parties relied on a number of decided cases, as this issue has been considered by the Court on many occasions, and agreed in submissions that the definition of dwelling in LEP 2013 has two limbs, the second of which, 'so constructed or adapted as to be capable of being occupied or used as a separate domicile' is the relevant limb in this dispute.
5. In Wollongong City Council v Vic Vellar Nominees Pty Ltd 178 LGERA 445 at [31], Justice Biscoe found that the essential requirements of a separate domicile were not only accommodation for sleeping and living, but also kitchen bathroom, including a lavatory, and laundry facilities. It does not necessarily follow, however, that more than one of any of these facilities denotes more than one domicile. His Honour was considering the minimum requirement to fulfil the definition of 'existing dwelling-house', whereas in this matter the Council's argument is essentially that the second kitchen on the ground floor permits the ground floor to be used as a separate domicile, as the ground floor contains all the elements identified as essential by His Honour.
6. Giving greatest weight in my determination of characterisation to the spatial planning of the proposal, I am satisfied that the design is an expression of an architectural brief for a luxurious beach house with ample and independent accommodation for visitors. The proposal does not, in my view, lend itself to neatly dividing into two separate domiciles, because of the single entry to the dwelling, the centrally located vertical circulation spine and the unappealing pedestrian entry to the first floor from the rear courtyard if it were to be used as a separate domicile. I accept the applicant's submissions that the centrally located vertical circulation spine, dividing the bedroom areas on the north-western side from the living areas on the south-eastern side of both the ground and first floors, will result in inevitable interactions between the occupants of both the ground and first floors when the dwelling is fully occupied, regardless of whether there are sliding doors at the bottom of the stairwell or not. I accept that the separate and more modest kitchen bar on the ground floor allows guests to prepare food without disturbing those in the main living areas on the first floor. The proposal is a beautifully designed, luxurious single family beach house with guest accommodation and it would be a compromised and awkwardly planned dual occupancy. Had the brief been for a dual occupancy, I am of the view that the architect would have designed the proposal very differently. For these reasons, I am satisfied that the proposal is not capable of being occupied and used as two attached and separate dwellings.
7. I have given no weight in my determination of the characterisation of the proposal to the applicant's argument that there is only one laundry proposed. There are nine 'wet areas' located across the basement, ground and first floors of the proposal and a washer/dryer could, in theory, be installed in any these areas at a later date, lawfully without development consent, pursuant to Subdivision 26 'Minor building alterations (internal)' of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The same applies to the installation of a "stove" in a kitchen (Hornsby Shire Council v Monk [2001] NSWLEC 248). It is also possible to purchase sophisticated 'bench top' convection microwave ovens, steam ovens, hot plates and so on. For these reasons, the 'one laundry', or the 'no stove in a kitchen' arguments as evidence of a single domicile are not persuasive, in my opinion.

Height, bulk and scale, outlook

1. The proposal contravenes the height of buildings development standard for the site of 7.5m in two areas, shown on DA902 dated 17.9.14 (exhibit E), with a maximum height of 8.3m, at the north-eastern side of the gym enclosure on the uppermost floor and the north-eastern end of the fin wall on the northern side of the living room which projects forward on the site.
2. The applicant provided a written request addressing the matters required to be demonstrated by sub-c 4.6(3) of LEP 2013 (exhibit B). According to the written request, compliance with the development standard is unnecessary because the proposal complies with the objectives of the height of buildings development standard, notwithstanding its non-compliance with the numerical standard (Wehbe v Pittwater Council (2007) 156 LGERA 446 at [44]-[48]), for the following reasons:

• A single dwelling is a low density residential use;
• The proposal is consistent with the style, bulk and scale of dwellings in the immediate locality;
• The design responds to the topography and the articulated design assists in reducing the perceived bulk and scale of the dwelling;
• The materials are consistent with the setting and the objectives of DCP 2013;
• The proposal is within a well vegetated landscape setting;
• The impact of the proposal on views from dwellings to the rear is minor and acceptable.

1. Ms Hancock disagrees that the proposal's impact on the views from dwellings to the rear of the site is minor and assesses the impact as moderate (Tenacity Consulting v Waringah [2004] NSWLEC 140 at [28]). I accept Ms Hancock's assessment that the view impact of the uppermost level of the proposal from 17 Weemilah Drive is moderate. Standing in the living room of 17 Weemilah Drive, one can see the rooftops of the houses on the high side of Coraki Drive within the tree canopy, with the ocean as a backdrop. The proposal, however, will result in a 'pop up' element projecting above the tree canopy in the foreground of the panorama (exhibit B, montage 'view from 17 Weemilah'). In my opinion, this element will be quite conspicuous when viewed from the dwellings at 15 and 17 Weemilah Drive, because it significantly interrupts the horizontal planes of tree canopy and ocean that constitute the view.
2. In order for development consent to be granted for a development that contravenes a development standard in LEP 2013, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2013) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2013) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2013) (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [33]).
3. The relevant objectives for the height of buildings, at sub-cl 4.3(1) of LEP 2013 are to retain the existing character and landscape of the locality and to encourage a low-set building form; and to protect residential amenity, views, privacy and solar access.
4. The 'pop up' element has a detrimental impact on the panoramic views from 15 and 17 Weemilah Drive. Other than the roof terrace, the proposal provides ample opportunities to appreciate the outlook from the terraces and balconies on the north-eastern elevation of the ground and first floors. In balancing the necessity and reasonableness of the proposal for the gym and terrace on the uppermost level, with the magnitude of the impact of this element on the amenity of adjoining neighbours, I do not accept that the impact of the 'pop up' element is acceptable and fairly represents the principle of view sharing and for this reason, I am not satisfied that the proposal is consistent with the height of buildings development standard objective of protecting residential amenity and views.
5. I am satisfied that the proposal is otherwise acceptable, as the design is broadly consistent with the style, bulk and scale of dwellings in the immediate locality and it responds to the topography, is well articulated and sits within a vegetated landscape, which assists in reducing the perceived bulk and scale of the dwelling when viewed from Coraki Drive.
6. The applicant submits that I have the option of accepting the Council's position and directing that the gym and terrace on the uppermost level of the proposal be deleted, in preference to dismissing the appeal. I am satisfied that the deletion of the gym and terrace would result in an acceptable proposal which can be granted consent.
7. While the 'pop up' element could be moved further towards the rear of the site in order achieve a proposal compliant with the height of buildings development standard, it is the overall height of the proposal that impacts on views from the properties to the rear and for this reason, there cannot reasonably be an expectation to achieve the maximum compliant height limit at the rear of a steeply sloping site.

Conclusion

1. I accept the applicant's submission that the application is appropriately characterised as a dwelling as the proposal does not easily lend itself to the creation of two separate domiciles. For this reason, conditions 8 and 9 of exhibit 5 are to be deleted.
2. I do not accept that the contravention of the height of buildings development standard is justified, as the 'pop up' element of the gym on the uppermost level has a detrimental impact on the panoramic views from 15 and 17 Weemilah Drive, which does not meet the height of buildings development standard objectives of protecting residential amenity and views. I am satisfied that the deletion of the gym and roof terrace on the uppermost floor, resulting in a proposal with a maximum height of RL37.65, is acceptable and can be granted consent.
3. Condition 21 of exhibit 5 is designed to protect the applicant, by requiring the applicant demonstrate that construction is in accordance with the consent at an early stage of the works. The Council retains the power to issue orders if the works are not in accordance with the consent, without the need to impose a condition requiring a surveyor's verification of the RL of the finished level of the basement floor. For this reason, it is acceptable that the applicant opts to have the condition deleted.
4. The adjoining neighbour to the south-east of the site raised a privacy concern about the window in the eastern elevation of the proposal, adjacent to her rear courtyard. The window the objector referred to is the window in the kitchen/dining/living area on the ground floor and the sill height is 1.6m above the finished floor level of the ground floor. The window will not result in an unreasonable visual privacy impact as the sill height will not permit someone standing in the living area on the ground floor of the proposal to overlook the neighbouring courtyard.

Directions

1. Directions for amended architectural drawings and conditions of consent were handed down on 2 September 2015, as follows: For the reasons set out in the judgment, I am satisfied the proposal can be granted consent, following the deletion of the gym and terrace on the uppermost level and the deletion of the disputed conditions of consent. The applicant is to amend the architectural drawings to delete the gym and terrace (DA103 rev A, exhibit E). The amended architectural drawing set is to be given a new revision number/letter. The amended plans are to be filed and served by the 25 September 2015. The respondent is to amend the conditions of consent in exhibit 5, to delete conditions 8, 9 and 21. Condition 1 is to be updated with the plan numbers and revision numbers/letters provided by the applicant. The amended conditions are to be filed with the Court electronically by 2 October 2015. Liberty to restore on 2 days' notice. Orders will be made in chambers.
2. The amended plans were filed on 24 September 2015 and the amended conditions of consent were filed on 2 October 2015, both in accordance with the directions handed down on 2 September 2015. I therefore make the following orders:

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 2014.439 for the demolition of existing structures and the construction of a new dwelling is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1, 5, E and A, are returned. ­­­­­­____________ Susan O'Neill Commissioner of the Court 10493 of 2015 O'Neill (C) (182 KB, pdf)

Amendments 27 October 2015 - - 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: 27 October 2015