Height, bulk, scale and presentation of the building
44The DCP adopts what it describes at p 3 as a "performance approach" to direct the design of housing development, which "allows flexibility for innovation and expression in building design while at the same time ensuring developments meet important neighbourhood character and site planning objectives". The precinct controls and general controls provide objectives that describe outcomes that proposed development is required to achieve, and performance criteria describing specific ways in which the objectives can be met (DCP pp6-7). While not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373.
45The Streetscape objectives in Part 5.1 of the DCP are set out in paragraph [21] above, and include O5.1.1 "to achieve housing forms of a scale and character in keeping with the desired future character for the locality". The statement of precinct character for the Vaucluse West Precinct in the DCP refers to development that "respects and enhances the existing elements of the local neighbourhood character".
46The planners were in general agreement that the reference to "scale" means "apparent size", in the sense identified in Veloshin v Randwick Council [2007] NSWLEC 428 at [29]. In Mr Fotis' opinion the numerical controls give guidance as to what is excessive bulk and scale. In Mr Karavanas' opinion scale is the apparent perception of size in the immediate surrounding of the street.
47It was apparent on the view, and confirmed in the photographs provided by Mr Karavanas in Annexure C to the planners' joint report, that the part of Olola Avenue in which the site is located comprises a range of residential development, including some three storey dwellings, and some with garages located at the street frontage. There is a mix of architectural styles, and some of the more contemporary developments have garages forward of the building line.
48The statement of precinct character in the DCP relevantly includes "the curvilinear street pattern". While that part of Olola Avenue in which the site is located is not as curved as other streets in the area such as Wentworth Avenue, it is not straight, and curves at No 13. That was accepted by Mr Karavanas, who noted that there is a curve along the road, but not at that part of the street. Mr Karavanas agreed that the design of the building as approved followed the street setback.
49The original development consent, which approved a development of three storeys, departed from the maximum of two storeys specified in C4.13.5.3, and the development as modified does not increase that. However, based on the view, I agree with Mr Fotis that the relocation of the garage some 7m forward of the building line means that the building now presents at street level as three levels plus garage, especially on the eastern side. I accept Mr Karavanas' evidence that in some respects the building is not unlike the new development at No 17 Olola Avenue, however I also agree with Mr Fotis that that building is more articulated and has differentiation in glazing.
50The development as approved in the original consent exceeded the FSR specified in C5.2.9 of the DCP of 0.55:1, at 0.75:1, and the development as modified increases that exceedance. Mr Karavanas (Annexure C to the planners' joint report) calculated the increase in gross floor area (GFA) as being from approximately 542 sqm to 745 sqm. Whether or not the resulting FSR is 0.89:1 (Mr Fotis' calculations) or 0.86:1 (Mr Karavanas' calculations), I accept the evidence of Mr Karavanas, which was not disputed by Mr Fotis, that a significant part of the increase in GFA resulting in the exceedance of FSR is located at the lower levels of the building. I accept that this is unlikely to have an adverse amenity or streetscape impact. However, to the extent that the increase in FSR is attributable to the increase in the building and balconies at the two upper levels, it contributes to the increased bulk and scale of the building when viewed from the street.
51Mr Karavanas agreed that the original design of the building had the bulk on the western rather than the eastern side of the building. Based on the view, the modifications to the upper levels, in particular the extension forward of the bedroom level on the eastern side, and the consequential changes to the balconies, means that there is now a uniformity across the site. All of the balconies have been squared off, and the upper (bedroom) level has been extended forward. In Mr Karavanas' opinion, articulation is still achieved in the development as modified by stepping the bedroom level behind the living room level balconies. While it may be accepted that the building itself retains some articulation, the balconies and the roof do not, and the stepping referred to by Mr Karavanas is not apparent from the street. The modification to the balconies does not meet the numerical requirements of C4.13.5.7, which provides for a maximum unarticulated length to the street frontage of 6.0m. The development as modified is now 14.8m long, in comparison with the approved 8.4m. When viewed from the street, the forward extension of the bedroom and living room level at the eastern side of the building and the continuation of the balconies across the building result in an unarticulated, and dominant, front elevation.
52The forward extension of the bedroom level and to a lesser extent that of the living room level also has impacts on privacy for No 13 Olola Avenue. Mr Karavanas agreed that the adjoining house at No 13, including a bedroom, can now be seen from the bedroom and living room levels, and he accepted that this would not occur with the original approved plans. While it is a bedroom, in his opinion visibility is filtered through the landscaping, and there is a 10m separation. I accept that some screening to mitigate this privacy impact is possible, and agree with Mr Fotis that an opaque glass screen might minimise additional bulk. The planners agreed that the original design with the planter was a good solution. The parties have agreed on a condition requiring 1.7m high translucent privacy screens on the bedroom and living room levels.
53Having regard to the lack of articulation, the increased FSR and bulk, and the privacy impacts of the extension of the upper bedroom level, I am not persuaded that that part of the modification application relating to the balcony on that level should be approved. It would be appropriate to delete all that part of the front balcony and planter area shown heavier pink on drawing A.05 (rev 10), and reduce the height of the walls forward of the northern wall of the master bedroom to a maximum height of 1m above balcony level. The roof should be stepped back consistent with the reduction in the balcony, and would require a column for support.
54The relocation of the garage forward of the building has increased the FSR, and reduced the setback on the eastern boundary to 1.8m, rather than the 2.5m sought by the DCP. The garage is now located forward of the 10m building line. Clause C4.13.4 of the DCP provides that garages are to be designed and located "so as not to dominate the streetscape", and that other than for specified circumstances, garages are to be provided behind the building line. Circumstances in which a garage may be permitted forward of the building line are C4.13.4(C) "where the gradient on the higher side of the street measured to a distance of 7 metres from the street frontage is greater than 1 in 3 (as measured from footpath level), and where there is minimal detrimental impact upon the streetscape". In those circumstances, a single storey structure may be permitted, limited "to a maximum width of 6 metres and a maximum height of 2.5 metres from footpath level".
55Mr Karavanas agreed that the originally approved driveway grade was similar to that of No 11 Olola Avenue, and was achievable. While there are, as accepted by Mr Fotis and confirmed on the view, other garages located forward of the building line in Olola Ave, including some contemporary buildings, there was no evidence provided as to whether any approved under the present controls in the DCP are on sites sufficiently steep to fall within C4.13.4(C). In the absence of evidence as to topography of comparable locations, and in the context where it was accepted that the driveway grade as originally approved was achievable, I am not persuaded that it is appropriate to depart from the performance criteria provided in the DCP. Mr Karavanas was of the opinion that the relocation of the garage breaks up the perceived bulk and scale of the building from the street by stepping it back, which is characteristic of other development in the locality. I prefer the evidence of Mr Fotis, which was consistent with the view, that the location of the garage as modified, being significantly forward of the building line of both 11 and 13 Olola Ave, contributes to the bulk and scale of the building when viewed from the street. Further, even if, as Mr Fotis accepted, the relocated garage may fall within the circumstances identified in C4.13.4, it exceeds the 2.5m height specified in C4.13.4(C).
56The agreement of Bocce to new condition A.9(k), requiring that the roof of the garage not be trafficable, addresses some of the concerns raised by the owners of 13 Olola Ave for visual and acoustic privacy. However, in the absence of justification for departure from the provisions of the DCP, the contribution of the relocated garage to bulk and scale of the building and consequent adverse impact on the streetscape mean that that part of the modification application seeking approval for relocation of the approved garage 7m to the north including reconfiguration and change of level should not be approved.
57The Council submitted that the height of the garage roof should be reduced to ameliorate the impact of the relocation of the garage. There was some discussion between Mr Fotis and Mr Karavanas as to whether the garage could be reduced in height or depth, however while Mr Karavanas agreed that any reduction in height of the garage roof could assist in reducing perceived bulk, he considered that the requirement for adequate headroom and length in the garage, and the need to retain the internal steps up to the house, would limit any possible reduction in height or depth of the garage. Based on Mr Karavanas' evidence it would seem unlikely that any reduction in height or depth sufficient to address the impacts on streetscape of the relocated garage would be feasible or practicable. In those circumstances, and given that the circumstances specified in C4.13.4 of the DCP are not met, and given the impacts on the streetscape resulting from the bulk and location of the garage, I am not persuaded that that part of the modification application relating to relocation of the garage should be approved. That would have the consequence that the garage is incorporated within the building envelope as originally approved, and the further consequence that the proposed art studio on the basement level should not be approved. In fairness to Bocce, however, which submitted that it should have the opportunity to consider whether the garage roof could be lowered if that were the outcome, it is appropriate to provide an opportunity for Bocce to consider whether it would be feasible to reduce the height and length of the garage so as to overcome the adverse impact on streetscape.
58The Council's bundle of documents (exhibit 1, tab 5) includes an email sent by Mr Fletcher to Mr Fotis on 16 July 2013, in which he states:
By exceeding the Court's setbacks, the front façade of the house is monolithic and overpowering, rather than receding successively from the ground floor to the upper floors and being sympathetic fo its neighbours. The house now lacks the ability to contribute positively to the character and setting of Olola Avenue. It also has a negative effect on the setting of the heritage item and its heritage significance. In a perverse way, the bulk and scale of the house at No 12 Olola Avenue reinforces the design quality and skill that went into the Seidler-designed house at No 11 Olola Avenue.
59Bocce relied on the final sentence of this correspondence to support its submission that the evidence of Mr Karavanas concerning the increase in GFA should be accepted (written submissions, para [68]). I do not read this passage as an endorsement of the bulk and scale of the development as modified, but rather as a statement of the need to consider the proposed development in its context, in this case the immediate surroundings of the developments on both sides.
60When considered against the objectives of the Part 5 General Controls, including achieving housing forms of a scale and character in keeping with the desired future character of the locality, and the Vaucluse West Precinct character in C4.13.1, I am not persuaded that the departures from the numerical requirements of C4.13.5.7 relating to building articulation, C4.13.4 location of the garage, C4.13.3 side boundary setback, and C5.2.2 front setbacks, are justified. The building as modified, in particular through its lack of articulation across the site and the location of the garage forward of the building line, does not reflect the curve of Olola Avenue and is of a scale that dominates the streetscape, particularly in the immediate context of the buildings at 11 and 13 Olola Avenue which are both well set back from the street, and to that extent is not consistent with objective (a) of the Residential "A" zone in the LEP, which is to "maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses".