Beraldo Design Pty Ltd v Waverley Council

CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140

APPLICANT Mr J. Hones, solicitor of Hones LaHood LEGAL REPRESENTATIVES: RESPONDENT Mr A. McKelvey, solicitor of Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10300 of 2007 Beraldo Design Pty Ltd v Waverley Council

JUDGMENT 1 This is an appeal against the refusal by Waverley Council (the council) of a development application (507/2006) to demolish an existing house and construct a new three storey house at 155 MacPherson Street, Bronte (the site). 2 The preliminary s34 conference was held on site on 13 June 2007 and a number of residents gave evidence. No expert evidence was provided although the architect for the proposal and council's planning manager were available to answer questions. No agreement was reached and the parties did not consent to the proceedings being disposed of with or without a further hearing (s 34(3)(b)(i)). 3 The applicant has prepared amended plans which lower the building by approximately 0.5 m. The parties have subsequently agreed to my disposing of the matter under s 34(3)(b((ii). The site and its context 4 The subject site is located on the southern side of MacPherson Street at the corner of Collingwood Street. The site is rectangular in shape with a frontage to MacPherson Street of 9.55m, a 26.29m frontage to Collingwood Street and a site area of 251 sq m. 5 The site is adjoined to the east (157 MacPherson Street), by a single-storey residence and to the south (2 Collingwood Street), by a two-storey dwelling. The immediate vicinity is characterised by a variety of two and three-storey dwellings: 159 MacPherson Street, is a two-storey 'Victorian' style residence and 161 MacPherson Street is a three-storey dwelling. 153 MacPherson Street to the west, at the corner of MacPherson and Collingwood Streets is a three-storey residential flat building. 6 MacPherson Street sits on the south ridge of the Bronte Gully with the site being located approximately 300m from the Pacific Ocean. Background 7 The development application was lodged on 8 September 2006. Council notified the application to surrounding properties and four submissions were received. The application was amended and re-notified, a further two submissions were received. 8 A report to council's Building and Development Committee on 27 February 2007 recommended approval of the application. Council deferred the application for a site inspection and informed the applicant that "only a two-storey house (is) achievable on the site. Any third level to the building should be within the roof space." 9 Following the s34 conference on site leave was granted for the applicant to rely on further amended plans. These are the plans before the Court on 13 July 2007.

The proposal 10 The proposal involves the demolition of the existing dwelling house and construction of a new three-storey dwelling with a pitched roof and a double carport with access from Collingwood Street. Planning Framework 11 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996. The proposal is permissible with consent. 12 Waverley Development Control Plan 2006 (the DCP) is also relevant. The site is in Precinct B (Bronte Terraces) of the Bronte Residential character study. 13 Clause 4.2.2 of the DCP describes the character of the Bronte Terraces as:

The terraces have steep slopes with wide, panoramic view of the Pacific Ocean and surrounding areas. The landform has given rise to curvilinear streets with stone wall terraces, one of the strongest landscape features in the study area….

The building typology is predominantly two (2) storey, detached dwellings. There are a small number of residential flat buildings and various other buildings forms. 14 Clause 4.3 of the DCP describes the Bronte Terraces existing character elements as:

The character of the Bronte Terraces is highlighted by its landform, with wide panoramic and ocean views towards the east. This natural 'amphitheatre' has a curvilinear street pattern with irregular shaped residential lots. Stone retaining walls, exposed bedrock, and landscaping on sloping ground are important elements of the streetscape. These features separate the upper and lower parts of the streets (refer to Figures 48 and 49). Upper and lower sites have produced their own specific design opportunities and constraints. 15 Relevantly the characteristics of the upper Bronte sites include clauses 4.3(a)(iv) and (v) which provide:

(iv) ….the existing building height controls and steeply sloping sites have resulted in a variety of building heights from one to three storeys. An emerging 3 storey style is creating a more consistent vertical modulation over the upper sites of Bronte Terraces. (v) In general terms the typology is comprised of three elements, the base, the body and the top….. 16 Clause 4.4 of the DCP includes desired future character objectives for the Bronte Terraces area and performance criteria. 17 Relevantly for views and vistas the DCP provides:

1. Views and Vistas Future Character Objective 1.1 To minimise the impact of new development on existing public and private views and vistas, especially panoramic landscapes and ocean views. Performance Criteria 1.2 Where a site drops below the street and a view is exposed in the background, reinforce the established view through a sensitive building envelope, which minimises view obstruction. The built form should allow views to the beach, ocean and/or park by using open carports, low walls and open slatted gates.

4. Streetscape and Architectural Style Future Character Objective 4.1 To reinforce a street's coherency through (1) building siting and orientation; (2) building envelope, bulk and scale; and (3) building typology that fits the established built form of the street Performance Criteria 4.2 Buildings are to reinforce the typical bulk and scale of those representing the established street character. 18 Part 5 of the DCP provides generic controls that include a maximum height control 8.5 m and a maximum external wall height of 7.0 m. The proposal as amended complies with these controls. 19 The DCP specifies a maximum floor space ratio (FSR) of 0.8:1. The proposal has a FSR of 0.93:1 which exceeds the control by approximately 17% or 34 sq m. 20 The proposal complies with the other controls in the DCP. Issues 21 The main issues in dispute between the parties were: (i) whether the proposal reinforced the typical bulk and scale of those buildings representing the established street character. (ii) whether the size and bulk of the proposal is excessive given the non compliance with the FSR control in the DCP . (iii) whether the impact on views of adjoining neighbours in Collingwood Street is excessive. 22 These issues reflected those raised by the residents both on site and in the Court. In addition Mr Zions, 159 MacPherson Street raised concern about the overshadowing impact of the proposal on his rear open space. Council did not raise this as an issue. Based on the council officer's assessment of the overshadowing diagrams, the proposal complies with the solar access control in clause 3.2 of the DCP. Council did not raise any issues as to the accuracy of these diagrams. In the absence of any expert evidence to the contrary, I accept this conclusion. View loss 23 Mr D. Lovato of 2 Collingwood Street, Mr J. Joyce on behalf of his sister of 3 Collingwood Street and Mr A. Fenton of 1 Collingwood Street raised concerns about the view loss to their properties that would result from the proposal. 24 2 Collingwood Street is to the rear of the site and currently enjoys views to the ocean from the north side of the first floor of the property over the single-storey house on the site and the adjoining property at 157 MacPherson Street. 25 The proposal will impact on these views, however it is setback a minimum of 1.5 m from the eastern boundary which will maintain a corridor for views from the two mains windows of 2 Collingwood Street. Any re-development of 157 MacPherson Street would also need to be setback from its western boundary to maintain this view corridor. 26 In applying the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, the views are from non living areas over a side boundary. Any proposal for an additional storey would impact on these views. The proposal is below the height control and the setback from the western boundary will maintain views to a reasonable extent given the planning controls. 27 1 Collingwood enjoys ocean views to the north and east from its first floor balcony. The proposal will impact upon these views. To reduce this impact the proposal has been lowered by approximately 0.5m which will maintain a view of the horizon over the proposal. The views of the ocean and headland will be generally maintained over the angle of the pitched roof which has been reduced to 21 degrees. 28 1 Collingwood Street also enjoys views of the ocean and headland from its living area. The proposal will impact on views but given it complies with the height control, the view loss is not beyond that which is anticipated by the planning controls. View loss is therefore 'minimised' in the context of what is permissible under the planning controls. 29 3 Collingwood Street is a single-storey house which currently does not enjoy views to the ocean. The impact of the proposal on the views of any future second-storey development of this site is difficult to estimate. Again given that the proposal complies with the height control impact on a future view is not unreasonable. Any re-development of 3 Collingwood Street would need to orientate itself to maximise views which exist at that time. 30 I note that the council report did not address the issue of view loss despite this being raised as an issue by the residents. Streetscape/character 31 The existing streetscape is illustrated in DA 03. Nos 159, 161 and 163 MacPherson Street are recent developments that dominate the character of this part of the street. Ms V. Wilson, on behalf of the Bronte Beach Precinct Committee stated that the site is different to other sites in the street because it is the only property with a house to the rear at the same level. The other properties have houses above the "Bronte Cut" at a higher level. In her opinion the controls in the DCP seek to maintain the stepping and layering of development on the Bronte Terraces. 32 While I accept that the Bronte Terrace controls envisage a stepping of development, I do not agree that this would preclude development of a similar height occurring on sites at the same level. 33 Council and the residents were particularly concerned that the proposal is three-storeys. The lower storey is generally below the street level and from the street will not add to the overall perception of height. 34 The existing house on the site is set down below street level. Any redevelopment of the site is likely to seek to have its bedroom and living levels at or above the street level by providing a basement level or base to the building. This would maximise amenity and the opportunity for views and is reasonable provided the overall height and wall height do not exceed the planning controls. 35 A two-storey development with rooms in the roof, envisaged by council would be a similar height, bulk and scale to the current proposal. Consequently, its appearance in the streetscape and impact on views would be similar. 36 The planning controls do not preclude three-storey development and provide only a maximum wall height and overall height control. The proposal meets these control. The proposal is of a lesser height, bulk and scale than the other recent buildings in the street. It is representative of the established streetscape character and the emerging characters described in the DCP. 37 The planning report states:

….The proposed building bulk, height and scale of the subject development, when viewed from MacPherson and Collingwood Streets, provides an appropriate scale in terms of the bulk an height that sits comfortable with the surrounding streetscape and that of the surrounding buildings….. 38 I accept these conclusions. Floor space ratio 39 The proposal exceeds the FSR of 0.8:1 in the DCP 2006 by some 34 sq m. 40 The residents considered that the under croft area should also be included as floor space as it may be enclosed at some future time. The under croft is not required to be included as FSR under the DCP. 41 The floor space exceedence is that area of the building which is below street level and therefore does not add to the perceived bulk of the building. The removal of part or all of the floor would not necessarily result in a building of less bulk when compared to a two-storey building built at or above street level. 42 The council report states:

The subject site is small, being 251 sq m in area x 26.6 m deep x 9.5 m wide. Accordingly, some flexibility in applying the minimum/maximum development standards is acceptable if no or minimal impact arises and the objectives of the council's DCP controls are satisfied. The general objective of floor space ratio provisions is to control the size, bulk and scale of development to reflect the existing and desired future character of the area. The maximum permissible floor space ratios are not "as of right" controls. Achievement of the permissible floor space ratio is dependent upon how well a proposed development meets all the objectives and design criteria in the LEP/DCP and the relevant controls. In certain circumstances it may be appropriate for a building to have a higher floor space than may be permissible where it can be demonstrated that the excess floor space is accommodated in an appropriate way and does not result in unreasonable environmental or amenity impacts…. Notwithstanding the 34 sq m extra floor space, due to site being below street level, plus the part excavation, the bulk and scale of the building is seen to generally satisfy the floor space control objectives of DCP No. 2. 43 Council recommended a condition that the double garage/carport be deleted as this adds to the bulk of the building. While the carport is not included in floor space, I agree that it is large and adds for building bulk along Collingwood Street, particularly when viewed from 2 Collingwood Street. The proposal more than complies with the DCP landscape control, however, part of the landscaping is the under croft area. While this area may provide amenity to the users of the property it does not assist in meeting the objective of the FSR control which requires dwellings to be of 'acceptable size and bulk in relative to the size and shape of the allotment'. 44 The provision of a single carport adjoining the house will provide greater separation between the proposal and the house at 2 Collingwood Street. This also provides the opportunity for landscaping along the southern boundary to soften the development when view from 2 Collingwood Street. 45 A condition has been included that only a single carport be provided and a further condition that the landscape plan be amended. Orders 46 The Orders of the Court are therefore: 1. The appeal is upheld. 2. Development application (507/2006) to demolish an existing house and construct a new three-storey house at 155 MacPherson Street, Bronte is approved subject to the conditions in Annexure A. 3. The exhibits except Exhibits 1, 2, A and C may be returned.

      Annelise Tuor
      Commissioner of the Court

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