Bocce Pty Ltd v Woollahra Municipal Council

Judgment 1Bocce Pty Ltd (Bocce) appealed under s97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed, and subsequent actual, refusal by the respondent Council of an application made under s 96AA of the Act to modify development consent DA706/2010 relating to a residential dwelling at 12 Olola Avenue Vaucluse (the site). 2Development consent DA706/2010 approved the demolition of the existing dwelling and construction of a new residential dwelling at the site. That consent was granted on 5 August 2011 by the Court, in accordance with an agreement reached by the parties under s 34(3) of the Land and Environment Court Act 1979 in proceedings 10355 of 2011. 3Modification Application DA706/2010/1 was made on or about 30 April 2013, after construction work had commenced on the site. The application was stated to be for "internal and external alterations and additions to an approved dwelling house development, including relocation of approved garage, raising of floor levels, provision of undercroft landscape area + external works". On 16 July 2013 Bocce commenced these Class 1 proceedings. On 16 July 2013 the Council refused the application. 4Other proceedings relating to the construction work presently being undertaken on the site are an appeal against an Order issued on 15 May 2013 under s 121B of the Act, which was finalised in consent orders on 9 August 2013, and an appeal against the deemed refusal of an application under s 149B of the Act for a building certificate. The appeal under s 149F of the Act in proceedings 10571 of 2013 (the Building Certificate appeal) is adjourned pending resolution of this appeal. 5The reasons which follow should be read in conjunction with the reasons in Bocce Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 1169. In those earlier reasons I outlined the background to the three appeals, and considered the evidence relevant to the issues arising in this appeal as identified in the Council's Statement of Facts and Contentions. At [13] I summarised the issues in the following terms: 13.The Council's position as submitted in the hearing is that the excess in the building size, bulk, scale and presentation of the development as modified is the main issue; then the exceedence in floor space ratio (FSR) and setbacks and the increased height (acknowledging the building is still within the height limit), and then the architectural design, are such that the development as modified is inappropriate for the site. The Council does not consider that of itself the impact of the proposal on the heritage item at 11 Olola Avenue would be such as to warrant refusal of the application, however it is an element in considering the excessive bulk and scale of the development. 6At [14]-[23] I outlined the relevant planning controls provided in the Woollahra Local Environmental Plan 1995 (the LEP) and the Woollahra Residential Development Control Plan (the DCP). At [24]-[26] I outlined the evidence provided at the hearing on 8 and 9 August, including the expert evidence on engineering, planning and heritage issues, and objections made on behalf of the owners of the two adjoining properties, No 11 Olola Avenue to the west (which was listed under the LEP as a local heritage item on 14 June 2013) and No 13 Olola Avenue, which is on the other side of Macarthur Place, a pedestrian walkway incorporating stairs on the eastern boundary of the site. 7In the earlier reasons I made findings in relation to the impact on Macarthur Place, impacts on the setting of the heritage item at No 11 Olola Avenue, and in relation to the height, bulk, scale and presentation of the building and garage. The two aspects of the modification application which I identified in those reasons as being of particular concern related to the upper level of the dwelling, and the relocation of the garage. My conclusions on those two aspects of the modifications proposed were as follows: ... 53 Having 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. ... 57 The 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. 8At [61]-[62] I concluded: 61 I am not satisfied that the modifications relating to the location of the garage, and the building articulation and front balconies, should be approved. Those modifications, and the resulting bulk and scale and presentation of the building, are not consistent with objective 2(2)(k)(iii) of the LEP, the objectives of the precinct controls and general controls in DCP, and the DCP performance criteria describing ways in which those objectives can be met. The departures from the applicable performance criteria result in a development that is not consistent with objective (a) of Residential A zone; and consistency with the LEP and zone objectives is a requirement under cl 8(5) of the LEP before any modifications can be approved. 62 Consideration needs to be given, as discussed in [57] above, to whether reduction in height or depth of the garage is feasible or whether that part of the modification application seeking approval for its relocation forward of the building should be refused. The plan relating to the upper level on the eastern side needs to be amended as outlined in paragraph [53]. 9Bocce availed itself of the opportunity to consider the matters raised in the earlier reasons. On 31 October 2013 Bocce was granted leave to re-open the proceedings to provide further engineering and planning evidence, and the matter was listed for further hearing on 18 December 2013. On 13 December 2013 the parties advised the Court that they had received joint reports from the planners and engineers which were in agreement as to certain modifications to the proposal that the experts considered are responsive to the earlier judgment, and the relevant controls, and would allow for final order to be made in the proceedings, and that Bocce had served the Council with amended plans reflective of the experts' agreed amendments. The parties advised that as a consequence of those amendments the Council was agreeable to the matter now proceeding by way of Consent Orders. 10At the request of the parties the matter was listed for mention on 16 December 2013. The parties clarified their position to be that they had reached agreement based on the experts' opinions, however were not seeking consent orders. At the hearing on 18 December 2013 the parties tendered the additional expert reports and the amended plans and made submissions. 11The plans for which Bocce now seeks approval are exhibit S. In summary, the amendments made to the plans that were considered in the earlier reasons (exhibit D) include the following changes to the design of the dwelling:

Consideration 19There being no dispute that s 96AA(1)(a) of the Act is met, the task before the Court is to consider whether the modifications to the approved development in the form now proposed in the amended plans that are exhibit S should be approved. The fact that Bocce has carried out work not in accordance with the development consent DA706/2010 does not preclude consideration of the application on its merits (Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299), and is not a relevant factor by itself in determining whether to exercise the power to modify the development consent (Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 at [33]). 20Bocce submits that the amendments made to the plans address the matters identified in the earlier judgment, and that on the evidence now before the Court, it should now be satisfied that the development as modified is consistent with the applicable objectives provided in the LEP and DCP, that it is appropriate not to require compliance with cl C4.13.4 of the DCP in relation to the location of the garage, and that the modification application should be approved. 21The Council's position is that it supports the amendments to the plans made in exhibit S, and that in considering the totality of the changes made, it is appropriate to approve the modification application. 22In determining whether the modification application should be approved, the Court is required by s 96AA(1A) to take into consideration such of the matters referred to in s 79C (1) of the Act as are of relevance to the development the subject of the application. 23Considering first the relevant provisions of the LEP, I accept the agreed evidence of the planners and architect that the cutting back of the upper level balcony and roof above provides a more articulated and recessive appearance for the building. While that work is less extensive than that indicated in paragraph [53] of the earlier reasons as being appropriate, I accept the agreed engineering evidence that the structural strengthening that would be required for removal of that section of the upper level balcony for the full width of the master bedroom would of itself be visually intrusive. I accept the agreed evidence of the planners and architect that the proposed landscaping above the garage will soften the appearance of the dwelling. Additional landscaping is proposed along the eastern boundary forward of the garage. Considering the impact on the public environment represented by the lower part of the public walkway at Macarthur Place, I am satisfied that the reduction in bulk at the upper level along the eastern side of the building results in a development that would be consistent with the objective in cl 2(2)(k)(iii) of the LEP. In relation to the objectives in cl 2(2)(g), in addition to the reduction of the balcony on the upper level of the western side of the building (considered at paragraph [43] of the earlier reasons), based on the agreed evidence of the planners and architect I accept that the modulation created by the cutting back of the balcony and roof above will also provide a more sympathetic relationship with the heritage item at No 11 Olola Avenue. 24Bocce submits that the consideration of the relevant provisions of the DCP as required by s 79C(1)(a)(iii) of the Act must be informed by s 79C(3A), of the Act, which came into effect on 1 March 2013: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards-is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. 25Bocce submits that in consideration of a modification application made after 1 March 2013, s 79C(1) as properly construed in the context of the amendment made by s 79C(3A) requires the Court to be flexible in applying the provisions of the DCP. The Council did not express a view as to the application of s 79C(3A) in the context of this appeal, submitting that on the established authorities the Court has the capacity to exercise its discretion to permit a departure from provisions of the DCP. 26Subsection 79(3A) is framed in terms that suggest that it is intended to apply to determination of a development application, rather than a modification application, a reading that is reinforced by cl 143(2) of Sch 6 which provides that s 79C(3A) "does not apply to the determination of a development application made before the commencement of section 79C (3A)". However, I agree with the Council that it is not necessary to decide whether s 79C(3A), in particular paragraph (b), applies to determination of this application. While 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), it is not determinative, and there may be circumstances relating to the particular site and development that make it appropriate to depart from numerical or other requirements of the DCP (Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338). 27The consideration of the height, bulk, scale and presentation of the building at paragraphs [44]-[60] of the earlier reasons included reference to several of the DCP performance criteria, including the exceedence of the FSR control at C5.2.9 of the DCP, the unarticulated length to the street frontage of the balconies exceeding the 6.0m provided in C4.13.5.7, location of the garage forward of the building line contrary to C4.13.4, and non compliance with the setback controls in C4.13.3 and C5.2.2 of the DCP. 28Considering first the proposed modification to the location and design of the garage, the marked up plans prepared by Mr Standen (exhibit T) show the garage relocated to extend 1500mm under the studio. The concerns raised by Mr Tobias about the effect on the appearance of the building of this proposal are noted above. The agreement of the engineers that moving the rear garage wall 1.5m back under the studio was structurally feasible was qualified to the extent that geotechnical issues would need to be addressed. Even if those issues could be satisfactorily addressed and the garage moved back to that extent, it would still be partly located within the building setback line. The garage in the location and configuration now proposed would still exceed the 2.5m maximum height from footpath level required under C4.13.4(C) of the DCP for a garage forward of the building line. While there remain non compliances with the requirements of C4.13.4, I accept the agreed evidence of the planners and architect that the provision of two levels of planters, and removal of fencing/balustrading, and reduced height of the garage at the front, assist in providing an appropriate presentation to the street, with minimal detrimental impact on the streetscape, which is a requirement of C4.13.4. I accept the Council's submission that these modifications to the garage need to be considered in the context of the further changes proposed to the landscaping at the front of the site, including the removal of the stairs formerly proposed for the western side of the garage. In the circumstances I am satisfied that it is appropriate to approve the proposed modification to the garage location and design. 29Considering the modifications now proposed to the upper levels of the building against the performance criteria in the DCP relating to FSR, building articulation and setbacks, I accept the agreed evidence of the planners and architect that the cutting back of the upper level balcony and associated roof, together with the reduction in the side blade walls, achieve a degree of articulation and modulation not provided in the modification as originally proposed. The balconies do not meet the numerical requirement of C4.13.5.7 for a maximum unarticulated length to the street frontage of 6.0m, the upper level as now proposed being about 10m rather than 14.8m as originally proposed. As noted in the previous reasons at paragraph [50], a significant part of the increase in GFA resulting in the exceedance of FSR is located at the lower levels of the building; I am satisfied that the modifications to the upper level balcony and roof ameliorate the consequent increase in bulk and scale of the building when viewed from the street. The modification to the upper level balcony and changed location of the planter ameliorate the impact on privacy for No 13 Olola Avenue. In these circumstances, I accept the agreed evidence of the planners and architect and am satisfied that the modified design is consistent with the streetscape objectives of the DCP. I accept their evidence that the stepped nature of the building together with the modifications to the balcony and additional landscaping assist in achieving the Desired Future Character objectives and performance criteria for the Vaucluse West Precinct, in particular the requirement in C4.13.1 that development respect and enhance the existing elements of the local neighbourhood character including the curvilinear street pattern, and that it is appropriate to approve this aspect of the modification notwithstanding the numerical non-compliances.

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Judgment (4 paragraphs)

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