Bouchard v Waverley Council

The site and its context

1. The site is on the western side of Ashley Street, near the corner of Turner Street. Ashley Street falls steeply to the north, towards the gully that runs east to Tamarama Beach. The site is located on the knoll of the hill above Tamarama Beach and is elevated above Ashley Street by a large rock outcrop partly in the Ashley Street road reserve directly in front of the site. Notwithstanding the steep topography to the north and east of the site, the site itself is flat, as are the properties to the south of the site, numbers 2 and 4. Pedestrian access to numbers 2, 4 and 6 Ashley Street is along a footpath elevated above the road.
2. The site includes a vehicular access way from Turner Street and a pedestrian access way to Cross Street. The site has a frontage to Ashley Street of 12.19m. The site has an area of 490.4sqm excluding access handles and a total site area of 589.4sqm.
3. 4 Ashley Street to the south of the site is a one and two storey dwelling. 8 Ashley Street to the north of the site is a two and three storey residential flat building. Apartments 3/8 and 4/8 are two storey apartments, both with private outdoor space on the uppermost level of the residential flat building.
4. 20 Cross Street is to the west of the site and contains a two storey dwelling and swimming pool.

Background and the proposal

1. The development application was lodged on 19 November 2018. The application is to modify Development Consent 234/2016 granted on 9 November 2016 by the Court, following a conciliation conference (the 2016 development consent, Bouchard v Waverley Council [2016] NSWLEC 1529, Ex L).
2. The proposal is to replace the hipped roof of the 2016 development consent with a partial third level described by the applicant as a "loft" and an "attic" and accessed via a new stair located in the family room on the first floor. The third level has internal dimensions of 9.068m x 7.954m, with a floor to ceiling height of 2.475m and an opening on the eastern side to access a terrace 2.5m x 6m. The third level is entirely clad in Colorbond roofing with a flat roof with a pitch of 3 degrees and side walls pitched at 52 degrees with windows on the northern and southern elevations (Ex A Dwgs a05, 06 and 11). The maximum height of the roof is RL 68.85, which is 10.05m above existing ground level as shown at the southern side passage at RL 58.8 (RL 68.85, Ex A Dwg a09). The roof form steps out over the stair access to the loft level on the northern side.
3. The 2016 development consent is for a two storey dwelling with a hipped roof over a basement double garage excavated into the existing embankment and rock face and accessed from Ashley Street. The 2016 development consent includes a single storey studio adjacent to the rear boundary and a swimming pool. The approved dwelling the subject of the 2016 development consent has side setbacks of 900mm (Ex L DA07) and roof ridge at RL67.997. The planning experts agreed that the FSR of the 2016 development consent is 0.55:1 and the maximum height is less than 8.5m (Ex L DA13).
4. The applicant relied on a previous consent granted in 2009, DA 24/2009, for a new dwelling with a maximum height of RL 68.85 (Ex A Dwg a07) (the 2009 development consent). The applicant submitted that the 2009 development consent has been physically commenced and so the consent has not lapsed (within the meaning of s 4.53(4) of the EPA Act). The Council submitted that the 2009 development consent is irrelevant to this matter. Condition 2 of the 2016 development consent requires the 2009 development consent to be surrendered prior to the issue of a Construction Certificate (Ex L).

Planning framework

1. The site is zoned R2 Low Density Residential pursuant to the Waverley Local Environmental Plan 2012 (LEP 2012) (Land Zoning Map - Sheet LZN_004 of LEP 2012) and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, are: • 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 for the site is 8.5m (Height of Buildings Map - Sheet HOB_004 of LEP 2012). The relevant objectives for the height of buildings cl 4.3 of LEP 2012 are: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.
3. The FSR development standard for the site is 0.5:1 (Floor Space Ratio Map - Sheet FSR_004 of LEP 2012). The relevant objectives for the FSR cl 4.4 of LEP 2012 are: (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.
4. Clause 4.5 of LEP 2012 addresses the calculation of FSR and site area. Clause 4.5 is in the following terms: 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.
5. The objectives and controls for Low Density Residential development are in Part C2 of the Waverley Development Control Plan 2012 (DCP 2012).
6. Height, at 2.1 of Part C2 of DCP 2012, includes the following relevant objectives and controls: "Objectives (a) To provide appropriate building heights for flat or pitched roof forms for lower density residential accommodation. (b) To ensure the height and scale of development relates to the topography and street character. (d) To ensure that the height and scale of development does not result in unreasonable overshadowing of neighbouring and nearby properties. Controls (a) For a building with a pitched roof the maximum wall height is 7m above existing ground level (refer to Figures 4 and 5), except as determined in Control (b) below."
7. The controls for side setbacks, at 2.2.2 of Part C2, are 0.9m for a height up to 8.5m and 1.5m for a height up to 12.5m. The Note at 2.2.2 includes the following text: "Where a 2 storey dwelling exceeds the maximum height building standard in Clause 4.3 of the WLEP 2012, the side setback of the building is to be 1200mm."
8. Streetscape and visual impact, at 2.3 of Part 2C of DCP 2012, includes the following relevant objectives and controls: "Objectives (a) To enhance the built form by encouraging quality design that corresponds harmoniously with the surroundings. (b) To encourage and facilitate lower density residential accommodation of a high architectural and aesthetic standard, that acknowledges and responds to the architectural style, scale, materials and character of the existing built environment. Controls (a) New development should be visually compatible with its streetscape context. It should contain or at least respond to essential elements that make up the character of the surrounding area. (d) Development must not dominate or erode the character of the streetscape, particularly when viewed from a public place such as parks, reserves, beach or the ocean."
9. Visual and acoustic privacy, at 2.4 of Part 2C of DCP 2012, includes the following relevant objectives and controls: "Objectives (a) To ensure that development does not unreasonably impact upon existing residential or other properties due to unacceptable loss of privacy or generation of noise. Controls (e) Where an elevated deck or balcony is proposed it should have a maximum area of 10m² and a maximum depth of 1.5m. Where a larger area is proposed then greater consideration must be given to the following: (i) Compliance with the building height development standard; (ii) Compliance with setback controls; (iii) Efforts to mitigate visual and acoustic privacy impacts including the use of permanent screening devices, increased setbacks, and retention of existing vegetation; (iv) Pre-existing pattern of development in the vicinity of elevated decks and balconies; and (v) The visual impact of the elevated deck or balcony and any proposed privacy screening in terms of bulk and scale as viewed from the private open space and living areas of adjoining properties and from the street."
10. Solar access, at 2.6 of Part 2C of DCP 2012, includes the following relevant control: "Controls (c) Despite controls (a) & (b) above, where a variation to floor space ratio, maximum building height, maximum wall height or setbacks controls causes a reduction in direct sunlight to adjoining properties, any reduction may be considered unacceptable."

Public submissions

1. Three resident objectors provided evidence onsite and the parties viewed the site from 4 Ashley Street to the south of the site; from 20 Cross Street to the west of the site; and from apartment 3 on the uppermost level of 8 Ashley Street to the north of the site. The concerns of the resident objectors can be summarised as:

• The proposal exceeds the development controls and represents an overdevelopment of the site;
• The future development of the site should either have a garage accessed from Ashley Street or an additional level but not both; and
• The proposal will have a detrimental impact on the amenity of the adjoining neighbours.

Expert evidence

1. The applicant relied on the expert planning evidence of Mr Anthony Betros and the Council relied on the expert planning evidence of Mr Stuart McDonald.

The proposal has a FSR of 0.63:1

1. The applicant submitted that the site area for the purpose of calculating the FSR includes the two access handles because the meaning of development at s 1.5 of the EPA Act includes "the use of land" and the use of the two access handles for access to the site forms part of the "significant development" under s 4.5(6) of LEP 2012. The Council submitted that the purpose of cl 4.5(6) is to determine the ratio of the land to be built upon to the gross floor area of the development on that land and a lot which is merely an access handle does not meaningfully contribute to the area of the land to be built upon and should therefore not contribute to the calculation of the ratio.
2. For the purpose of considering the applicant's written request seeking to justify the contravention of the FSR development standard, I accept the applicant's calculation of the FSR.

Contravention of height of buildings and FSR development standards

1. The proposal has a maximum height of 10.05m. The height of buildings development standard for the site is 8.5m.
2. The proposal has a FSR of 0.63:1. The FSR development standard for the site is 0.5:1.
3. The applicant provided written requests seeking to justify the contravention of the height of buildings development standard (Ex E) and the FSR development standard (Ex F). The applicant relied on the same justifications for the exceedance of both development standards and so I deal with the two written requests together, other than to independently consider whether each written request has demonstrated that the specific objectives of each development standard are achieved (within the meaning of Wehbe v Pittwater Council (2007) 156 LGERA 446 ("Wehbe") at [42]).
4. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action") at [13]). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
5. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant's written request to contravene the height of buildings and FSR development standards

1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard
2. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written requests in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied pursuant to cl 4.6(4)(a)(i) that each of the applicant's written requests have demonstrated those matters required to be demonstrated by cl 4.6(3) (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4] and Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 ("Baron") at [75]).
3. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe at [42]-[51] and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]). Wehbe listed five ways to demonstrate that compliance with a development standard is unreasonable or unnecessary, although those five ways are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). The applicant relies on the first way identified in the Wehbe judgment at [42] to demonstrate that compliance with the development standard is unreasonable or unnecessary, which is that the objectives of the development standards are achieved notwithstanding non-compliance with the numerical standards.
4. The applicant's written request justifies the contravention of the height of buildings development standard and the FSR development standard on the bases that compliance is unreasonable or unnecessary for the following reasons:

• The attic level will not be prominent or dominant when viewed from the street;
• The height of the attic level is consistent with the 2009 development consent;
• The overshadowing of neighbouring properties caused by the proposed roof profile is indiscernible and immaterial;
• The setbacks and restriction of openings in the attic level prevent any opportunity for visual or acoustic privacy impacts to adjoining properties;
• The proposal does not result in any view loss;
• There are no adverse streetscape, shadow, privacy, noise or view impacts caused by the proposed attic level;
• The proposal affords significant improvement to the amenity of the approved dwelling;
• The proposal is a more efficient use of space when compared to the 2009 development consent layout;
• The proposal achieves the objectives of the development standard.

1. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

The applicant's written request has not adequately addressed the matters required to be demonstrated by subclause 4.6(3) of LEP 2012

1. Subclauses (3) and (4) of cl 4.6 of LEP 2012 focus attention on the development for which development consent is sought and which contravenes the development standard. In this case, the development the subject of this application is the addition of a partial third level and outdoor terrace over the two-storey dwelling the subject of the 2016 development consent. Although the concept of FSR applies to the whole building, including the 2016 development consent, the development the subject of this application is the non-compliant element of the whole development. In order to evaluate the applicant's written request seeking to justify the development's contravention of the FSR development standard (Ex F), I have focused on the non-compliant element being the addition of the third level, because in the circumstance of a proposal to modify a development consent, it is not an error to considered the particular development for which development consent is sought in order to evaluate the applicant's written request seeking to justify the proposal's contravention of a FSR development standard (Baron at [92]).
2. The non-compliant element of the development in relation to the height of buildings development standard is the maximum 1.55m of the upper portion of the third level for which development consent is sought by this application.
3. The applicant's written request defends the exceedance of the height of buildings development standard for the reasons listed at [37]. I am not satisfied that the applicant's written requests have adequately addressed that that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, nor that there are sufficient environmental planning grounds to justify contravening the development standards.
4. I do not accept the applicant's assertion that the third level will not be dominant or prominent when viewed from surrounding properties and the public domain. As the site is significantly higher than the street level, the third level is obstructed from view by the eave and fascia of the approved dwelling, due to its setback from the front façade of the approved dwelling, the closer one stands to the front boundary of the site, as shown in the street view number 3 of Ex B. The cladding of the third level will, nevertheless, be clearly visible from when viewed from the public domain in Ashley Street and surrounding properties as a third level.
5. The consistency of the height of the proposal with the height of the 2009 development consent is irrelevant, because justifying the height of the proposal using a benchmark set by a previous consent seeks to isolate one aspect of that approved development. Furthermore, the 2009 consent was granted under the now repealed Waverley Local Environmental Plan 1996. Similarly comparing the spatial layout of the proposal with the 2009 consent as a more efficient use of space is merely a matter for the applicant in choosing which development consent to proceed with. I am not satisfied that comparing an aspect of the 2009 development consent with the proposal can properly be described as an environmental planning ground (Initial Action at [23]).
6. The planning experts agreed that the additional overshadowing of adjoining properties to the south on the winter solstice around 9am caused by the proposal, when compared to the overshadowing cause by the building envelope of the dwelling the subject of the 2016 development consent, is minor. Mr Betros characterised the additional overshadowing as indiscernible and immaterial and Mr McDonald's evidence is that the additional overshadowing of neighbouring properties is an "environmental impact directly attributable to the breach of the height development standard" (Ex 3, p 14). I accept the agreed evidence of the planning experts that the additional overshadowing on the winter solstice is minor. Mr Betros' evidence is that the additional overshadowing falls near the boundary wall between 2 and 4 Ashley Street which will have no impact on the enjoyment of the private open space of either property. The exact position of the overshadowing of adjoining properties on the winter solstice is of less relevance that the quantum of overshadowing, because the winter solstice is used to assess overshadowing as it is generally the 'worst case scenario' throughout the year. Overshadowing of adjoining properties on the winter solstice indicates that there will likely be some overshadowing at other times of the year, but to a lesser degree. The overshadowing of adjoining properties at other times of the year will not fall in exactly the same position on the ground as the overshadowing on the winter solstice, because the sun's angle and position in the sky changes throughout the year. Therefore, I do not give much weight to the observation that the additional overshadowing during the morning of the winter solstice falls on or near a boundary fence and does not interfere with the enjoyment of the private open space on adjoining and nearby neighbours' properties.
7. The objective of the height of buildings development standard at (a) and FSR development standard at (d) is to "establish limitation on the overall height/scale of development to preserve the environmental amenity of neighbouring properties…" The increase in overshadowing of neighbouring properties, albeit a minor increase on the winter solstice, does not achieve the preservation of environmental amenity of neighbouring properties. The minor increase in overshadowing of the private open space of numbers 2 and 4 Ashley Street is a direct result of the non-compliant third level.
8. I accept that the setbacks and restriction of openings in the additional level minimise opportunities for visual and acoustic privacy impacts to adjoining properties, however, I do not accept that the design of the proposal prevents any opportunity for visual or acoustic privacy impacts to adjoining properties. The use of the terrace has the potential to impact on the amenity of the private open space of 4/8 Ashley Street and the large window to the stair access allows some views of the upper level of 8 Ashley Street.
9. I accept that the proposal does not result in the loss of any views.
10. The absence of amenity impacts, or the minimisation of amenity impacts (depending on the wording of the objective) is one way of demonstrating consistency with an objective related to preserving or minimising amenity impacts or environmental harm (Initial Action at [58] and Randwick City Council v Micaul Holdings Pty Ltd (2016 225 LGERA 94; [2016] NSWLEC 7 at [34]). I am not satisfied, however, that the proposal has in fact achieved the preservation of the environmental amenity of neighbouring properties because the proposal results in minor amenity impacts. Although these minor impacts may not have been determinative in a merits assessment of the proposal had it complied with the development standards, they demonstrate that the non-compliant aspect of the proposal has not achieved the threshold set by the objectives for a breach of the development standard.
11. The applicant's justification that the proposal affords significant improvement to the amenity of the approved dwelling merely promotes the benefit of carrying out the development and is not a justification for the contravention of development standards. It is a justification that could be applied to an additional level on many dwellings and it does not explain why the non-compliance with the height of buildings and FSR development standards is warranted.
12. I accept the Council's submission that justifying the exceedance of the height of buildings development standard level as a means of retaining views to the east across 5 Ashley Street in anticipation of the construction of a development consent granted for 5 Ashley Street is not a sufficient environmental planning ground to justify the non-compliance with the height of buildings development standard. Views across neighbouring properties are at risk of being impeded by the further development of neighbouring properties and the objectives of view sharing were a consideration for the consent authority when assessing the merits of the application for 5 Ashley Street under Part C1 1.10 of DCP 2012.
13. I am not satisfied that the environmental grounds relied on by the applicant to explain the contravention of the height of buildings and FSR development standards are sufficient to justify that compliance with the development standards is unreasonable or unnecessary in all the circumstances of this case.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

1. The second opinion of satisfaction required in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standards that are contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]).
2. I am not satisfied that the proposal is consistent with the objectives of the development standards, including cll 4.3(1)(a) and (d), and cll 4.4(c) and (d).
3. The proposal is inconsistent with the height, bulk and scale of dwellings in the locality and with the desired future character for development in the R2 Low Density Residential zone. The height and bulk of the proposal, including the bulk of the two-storey dwelling and studio the subject of the 2016 development consent with 900mm side setbacks, is greater than the height and bulk of a dwelling anticipated by the planning regime for the R2 Low Density Residential zone. The proposal results in considerable additional building bulk, particularly when viewed from neighbouring properties. The excessive height of the proposal is further exacerbated by the nature of the site as it is raised well above the level of the street.

Conclusion

1. I am not satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3).
2. I am not satisfied that the height, bulk and scale of the proposed development, being the addition of a third level to the approved dwelling the subject of the 2016 development consent, is consistent with a low density residential environment.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 422/2018 for an additional level to an approved but not yet constructed two storey dwelling and studio, at 6 Ashley Street, Tamarama, is refused. 3. The exhibits, other than Exhibits 1, 3, A, E and F, are returned.

Susan O'Neill Commissioner of the Court

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: 20 September 2019