Billgate Pty Ltd v Woollahra Municipal Council

Billgate Pty Ltd v Woollahra Municipal Council - [2007] NSWLEC 399 - NSWLEC 2007 case summary — Zoe

[9]

1 COMMISSIONER: This is an appeal against the deemed refusal by Woollahra Municipal Council (the council) of a development application (DA352/2006) under the Environmental Planning and Assessment Act 1979 (the Act) to demolish an existing house and construct a new residential flat building comprising three attached dwellings at 20 Roslyndale Avenue, Woollahra (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is a hatchet shaped allotment on the eastern side of Roslyndale Avenue, to the south of Edgecliff Road. The frontage of the access handle to Roslyndale is a splayed width of 8.01m, the width of the access handle itself is about 7.6m with a maximum length of about 32.3m along its northern side. The main part of the site has a width of about 27m and a maximum depth of about 54m. The site area including the access handle is 1,582.2sqm (1348.8sqm without the access handle). The site has a fall from the street to the rear eastern boundary of 19.55m, measured along the southern boundary. The site is developed with a two storey house with an elevated swimming pool and deck. There are a number of large canopy trees on the site. 4 Adjoining the site to the north is Struan Lodge (14 Roslyndale Avenue), a detached dwelling with extensive gardens which adjoins another dwelling, Hawthornden (6 Roslyndale Avenue). Both these houses are identified as heritage items in Woollahra Local Environmental Plan 1995 (LEP 1995). A duplex (16-18 Roslyndale Avenue) is located to the north of the access handle and shares its eastern boundary with the main portion of the site. To the south, the site adjoins a battleaxe block with a two storey dwelling (22 Roslyndale Avenue), its access handle adjoins the access handle of the site. Adjoining the site to the east are two detached dwellings, including the United States Consulate (20 and 26 Wallaroy Road). The dwellings to the east are below the level of the site and front Wallaroy Road. There is a landscape corridor that runs between the rear of the houses that face Roslyndale Avenue and those that front Wallaroy Road. 5 Surrounding development is detached houses in landscaped settings. The houses are mainly from the Victorian period and range from detached villas to single storey semi detached houses. There are also residential flat buildings in the area. The history of the proposal 6 The application was lodged on 19 June 2006 and was notified to adjoining and nearby residents. Council received seventeen objections. The applicant lodged an appeal against council's deemed refusal of the application on 28 September 2006. At the date of the hearing council had not determined the application. 7 On 18 February 2005, Bignold J dismissed an earlier appeal (see Billgate Pty Limited v Woollahra Municipal Council and Anor [2005] NSWLEC 61). This appeal included the site and the adjoining property at 22 Roslyndale Avenue and was for a different residential development. 8 The parties held different opinions as to the weight that I should give to this earlier decision, in which I assisted Bignold J. Consistent with the decision in Segal & Anor v Waverley Council [2005] NSWCA 310, the Court is not bound to follow the decision of Bignold J or even to take it into account if irrelevant to the resolution of the contested issues. This application must be considered on its merits in the particular circumstances of this case. However, I note that the decision in Segal also stated that it is desirable to apply consistent principles and to refer to a previous decision, where relevant. 9 Prior to the merits appeal, Bignold J considered a preliminary question of law (see Billgate Pty Ltd v Woollahra Municipal Council (2004) NSWLEC 436), namely:

[10]

Whether the Council or the Court have the power to grant development consent to the proposal having regard to the lack of a relevant downstream drainage easement to dispose of stormwater from the proposed development, given the requirements of clause 25(2) of the Woollahra Local Environmental Plan 1995. 10 In answering this question, Bignold J found The Court may not grant development consent unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop in terms of cl 25(2) of the LEP. In the present cases where it is proposed to utilise the existing easement over an adjoining property the question of the adequacy of the provision may legitimately include consideration of the legal capacity or competence to utilise the existing easement (in addition to any consideration of its physical capacity). If on the hearing of the appeals it be held that the existing easement is not legally available for the proposed purpose the requirements of cl 25(2) of the LEP would not be capable of being satisfied by the imposition of a condition of development consent requiring such provision but those requirements would be capable of being satisfied by the making of an order pursuant to the LEC Act, s 40 for the creation of any necessary easement if the Court, on the hearing of those appeals, determines to grant development consent. 11 This appeal also proposes to use an exiting easement over an adjoining property for the disposal of stormwater. The parties agreed that if the Court determines to grant development consent for this application the course of action outlined by Bignold J must be followed. This would require that, if on merits, I determined that the application warranted approval, an Order under s 40 of the Land and Environment Court Act 1979 (the LEC Act) is required prior to development consent being issued. The Proposal 12 The proposal involves the demolition of the existing buildings, including the house, garages and swimming pool and construction of three attached dwellings with garages. Each dwelling comprises three bedrooms with parking for two cars. The proposal is two to three storeys and is entered off Roslyndale Avenue via the access handle. Planning Framework 13 The site is zoned Residential 2(b) under LEP 1995. The proposed development is permissible with consent within the zone. 14 Clause 8 of LEP 1995 provides development control tables that set out the applicable zones. Clause 8(4) and (5) provide:

[24]

C 4.3.1 Development respects and enhances the existing elements of the local neighbourhood character that contribute to the Wallaroy Precinct including: · The large Victorian and inter war houses set within spacious grounds: · The stepping of development on the hillside; · The well established private gardens and trees; · The curvilinear streets following the contours of the land; · The mature street trees and sandstone walls at the street; · The highly visible tree canopy providing a dense green backdrop to views from Sydney Harbour and surrounding lands: and · The highly visible roof forms as development steps down the hillside. 24 C 4.3.6 requires that for development adjoining the Woollahra Heritage Conservation Area the impacts on the heritage significance of the area must be considered. 25 DCP 2003 also provides general controls which include Building size and location (cl 5.2); Open space and landscaping (cl 5.3); Stormwater management (cl 5.7); Acoustic and visual privacy (5.8) and Car parking and driveways (5.9). 26 Woollahra Heritage Conservation Area Development Control Plan provides controls for land within the Woollahra Conservation Area which adjoins the site. The evidence 27 The Court heard evidence from Mr J Oultram, the Court appointed heritage expert. For the reasons given on 16 February 2007, I granted leave for the Mr R Staas, heritage architect, to provide evidence on behalf of the applicant and Mr H Tanner, heritage architect, on behalf of the adjoining owner, Mr T Arcus, 14 Roslyndale Ave, to provide evidence in support of council's case. Mr L Adey, on behalf of council and Mr M Buckley, on behalf of the applicant, provided expert planning evidence. 28 The Court heard evidence on site from the following residents: · Mr T Arcus, 14 Roslyndale Avenue · Mrs N Lucas, 22A Roslyndale Avenue · Mr and Mrs G Waugh, 22 Roslyndale Avenue · Mr P McMahon, 26 Wallaroy Road · Mr G Rundle, 28 Wallaroy Road 29 Mr R McCuaig, 30 Roslyndale Avenue, Provided evidence in Court. The resident's concerns are summarised in Exhibit 16 and in their letters of objection made in response to notification of the application. 30 The issues raised by the objectors generally reflected those issues raised by council. The issues 31 The Statement of Issues before the Court contained 13 issues. A number of issues were resolve through amendments, proposed conditions and expert evidence. The key issues can be summarised as whether:

[33]

My evaluation of this extensive evidence leaves me in no doubt that the proposed development is an overdevelopment of the development site in the sense that it concentrates all of the residential buildings on the rhomboid shaped area of the development site, which is significantly sloping land, forming an essential feature (physical and visual) of the Edgecliff ridgeline, with the intrinsic capacity to be visually dominating of the adjoining residences in Wallaroy Road situate well below (but nonetheless well within the viewing catchment, of the development site and the proposed development). 82 This concentration of the proposed development, at the scale and intensity proposed (which far exceeds the existing development on the development site) within this topographically significant and visually prominent part of the development site which is far removed from the Roslyndale Avenue frontage and streetscape, is entirely uncharacteristic of the development in this discrete section of the Edgecliffe Road Precinct formed by Roslyndale Avenue and the residential development on its eastern side…… 47 While Bignold J was dealing with a different development on a different site his observations about the landform and the characteristics of development are relevant to this application. 48 The proposal concentrates development at the rear of the site. This is a direct result of it being a battle axe site with insufficient width at the front to accommodate any part of the development other than the driveway. Consequently the relationship of building to building and building to open space which is characteristic of the area is not replicated by this development. Clearly as the development is for a residential flat building it is not expected that the same relationship would be achieved, but a degree of compatibility is required. By concentrating the development at the rear of the site there are clearly adverse impacts on adjoining properties which may not result on a site with a wider street frontage as required by cl 10B(1). 49 The proposal complies with the minimum rear setback control, Dwelling 3 having a setback from the rear of about 12.5m. This setback is correctly calculated on the average width of the site excluding the access handle. However, a site with a street frontage that complied with the control in cl 10B(1) would require a rear setback in the order of 20m. This would reduce the impact of the proposal on the properties in Wallaroy Road and 22 Roslyndale Avenue. 50 Part of the rear setback area is steeply sloping with a change in level between the ground level of dwelling 3 and the rear of the properties in Wallaroy Avenue of about 4m. These properties are zoned Residential 2(a). 51 In Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, Bly C set out the principle concerning development at zone interfaces. The Commissioner said:

[34]

As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 52 Adopting and applying those principles to the present case, I note that the separation distance, the treatment of the upper floor and the proposed landscaping between Dwelling 3 and the houses in Wallaroy Avenue will assist in mitigating the impacts of the proposal. However, due to the change in level, the height and bulk of the proposal will be accentuated and will have an overbearing impact from the rear garden area of 26 Wallaroy Road. Based on the section in DA-GA-04B the height of Dwelling 3 will be about 16m above the garden level. The landscaping will obscure the lower levels of Dwelling 3 but its overall height will be visible. While the rear setback and height comply with the controls, the impact is beyond that envisaged by these controls given the topography of the site and its relationship to dwellings at the rear. A proposal, which recognized these constraints by either increasing the setback or reducing the height, would achieve an impact more consistent with that envisaged by the controls. 53 Dwelling 3 extends beyond the building line of 22 Roslyndale Avenue. The proposal will impact on the amenity currently enjoyed by this property. Particularly the outlook from the living area which is partly orientated towards the site and will look into the blank wall of the rear of the proposal rather than the outlook to trees that it currently enjoys. Again, while the rear setback complies with the control, a proposal, which better maintained the relationship of building to building, would reduce the impact on 22 Roslyndale Avenue. 54 The proposal will be visible from certain vantage points in Wallaroy Road and the surrounding area. From Wallaroy Road the northern section of the proposal will be visible. The proposal is stepped up the slope which will reduce its impact, however, due to the retaining walls and the limited opportunity for landscaping within the planter boxes on the terrace area, four levels of the proposal will be visible, albeit screened to some extent by the canopy tree which is to be retained on the site. 55 The site is within an area zoned for residential flat buildings, however, under cl 8(4) this zoning is subject to Parts 3 and 4 of LEP 1995. Clause 10B in Part 3 of LEP1995 relates specifically to residential flat buildings. For sites with three dwellings or less the site frontage is the applicable control. The proposal does not comply with this control and the objectives of the control include compatibility between the scale, density, bulk and landscape character of buildings and allotment size. Neither Roslyndale Avenue which is zoned 2(b), nor Wallaroy Road which is zoned 2(a) are areas in transition, the proposed building and its allotment size do not achieve the compatibility required by cl 10(a). 56 For the above reasons, the SEPP 1 objection is not well founded and the granting of consent to the development application would not be consistent with the aims of SEPP 1. The application must therefore fail.

[42]

Mr Tanner is of the opinion that the proposed buildings do not appear to have been designed with the protection of Struan Lodge's heritage significance and setting as the primary objective. Analysis of the proposed development readily reveals a change of the Struan Lodge setting from a secluded setting to one in which the new development is highly intrusive. This would compromise any future appreciation of Struan Lodge. In his opinion any residential development at 20 Roslyndale Avenue must be withdrawn (by at least five or six metres) from the northern boundary, clearly reveal the "Edgecliff" and retain the landscape qualities of this site including deep planting in a wide belt of at least 3 metres along each boundary. Findings 61 The key disagreement between the heritage experts is the extent of impact on the setting of the item. The proposal and Struan Lodge will be able to be viewed together only from a limited vantage point in Wallaroy Road and from distant views. The impact of the proposal of the setting of Struan Lodge from these view points and the public domain is acceptable. 62 The impact on the setting of Struan Lodge when viewed from within the property itself is also a relevant consideration. The full extent of the development along the common boundary will not be visible from any one location in the gardens of Struan Lodge. The proposal is setback from the boundary at the lower garden levels of Struan Lodge. These have been altered over time and are not part of the significance of the item. The impact on the setting of Struan Lodge from these lower levels is acceptable. 63 The main impact of the proposal results from Dwelling 1 when viewed from the terrace and upper garden level of Struan Lodge. This impact will be greater than that of the existing house as the extent of the two storey component that is visible from Struan Lodge is increased. This will adversely affect the setting and amenity of Struan Lodge. The setback of Dwelling 1 at ground level ranges from about 1.9m to 3.3m from the common boundary. However, part of this setback area is a pathway that is raised above ground level, which limits landscaping to narrow triangular areas. The view of Dwelling 1 will therefore be softened but not screened by landscaping. 64 While the impact of the proposal on the setting of Struan Lodge would individually not warrant refusal of the application, it is a negative aspect of the proposal that combined with the other impacts renders the proposal unacceptable. A proposal that increased the setbacks adjacent to the terrace and upper garden level would better respect the setting and significance of Struan Lodge. 65 The impact of the proposal on the Rosemont Precinct of the Woollahra Conservation Area is acceptable would also not warrant refusal of the application. Orders 66 For the above reasons the Orders of the Court are:

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Cases Cited (4)

Cited By (1)