Dale v Woollahra MC

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Woollahra Residential Development Control Plan 2003

CASES CITED: Tenacity v Warringah MC [2004] NSWLEC 117

APPLICANT Mr I. Hemmings, barrister instructed by Mr A. McMurran, solicitor LEGAL REPRESENTATIVES: of Heidtman & Co. RESPONDENT Mr M. Connell, solicitor of Home Wilkinson Lowry Lawyers incorporating Michell Sillar

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10633 of 2005 Brett Anthony Dale and Emma Claudine Dale v Woollahra Municipal Council

JUDGMENT 1 This is a Class 1 appeal No. 10633 of 2005 between Brett and Claudine Dale and Woollahra Municipal Council in regard to the refusal of the proposal to demolish an existing two-storey house with a room-in-the-roof bedroom third-storey and detached garage at No. 134 Hopetoun Avenue, Vaucluse and to erect a two-storey and part three-storey house with internal two car garage off the avenue and a swim pool in the rear yard with a detached single car garage off Sassafras Lane. The block runs east-west between the avenue and the lane.

2 On the south of the site is No. 132 Hopetoun Avenue. It is a two-storey house. There is an existing heavy band of boundary vegetation just inside the subject lot along the southern boundary. Adjacent at No. 132 on the ground floor are north facing windows to a kitchen, a dining area and a living room. The living room also has extensive west facing windows towards the harbour view. There also exists a recess in the north wall of No. 132 adjacent the kitchen and dining area that provides a small courtyard.

3 The part third floor of the proposal is below the ground floor facing the rear yard. It occupies an area about 2/3 of the ground floor above. The house appears as two-storey to Hopetoun Avenue due to a slope in the land of about 4 m from Avenue to Lane way.

4 On the north of No. 134 is No. 136 Hopetoun. It is a one and part two-storey house facing the Avenue. There were no objections to the proposal from that property. 5 Behind No. 136 was another house at No. 136A on a battleaxe lot having a driveway up to Hopetoun, but the house faced Sassafras Lane. The proposed new detached single garage of the proposal is adjacent the boundary with No. 136A. There is also thick vegetation in a band along the northern boundary inside the subject site. The existing vegetation consisted of medium height trees and shrubs.

6 The southern boundary vegetation had been able to grow to be substantial due to the wide driveway and wide side setback of the existing house from the south boundary (8.5 m). The landscape plan showed nearly all the existing vegetation removed and replaced with hedged type species. During the hearing some of the existing trees were said to be retained.

7 The new house on the subject site is to have 2.6 m side setbacks on the north and south at the ground floor level with side pathways occupying up to half the setback widths.

8 The front setback corresponds with those of No. 132 and 136. The rear setback corresponds with that of No. 132 on the south and on the north with the boundary line separating No. 136 and 136A.

9 No. 136A is a two-storey house having it's main living rooms and veranda facing west to the harbour views and facing the lane way with about a 5 m setback from the lane. 10 The hearing was attended for the respondent by: + Mr M. Connell, solicitor + Mr A. Biller, town planner for the council + Mr J & R Opie, resident objectors of No. 153 Hoptoun Avenue, + Mr M. Joffe, objector for No. 151 Hopetoun Avenue, and resident of No. 3 Epping Road, Double Bay; + Ms N. Joseph of Julie Feller Real Estate, Rose Bay North and + Mr & Mrs M & N Copland, resident objectors of No. 136A Hopetoun Avenue, + Mr Matties, resident objector of No. 149 Hopetoun Avenue. 11 Attending for the Applicant were: + Mr I. Hemmings, barrister + Mr A. McMurran, solicitor of Heidtman & Co. + Mrs B & E Dale, applicants + Mr I Dale of Unit 1/5 Wunulla Road, Point Piper. + Mr A. Ludvik, consultant town planner 12 Mr and Mrs Dale had received letters of support for their proposal: + D. S. Nickelby of No. 136 Hopetoun Avenue + J & P Formosa from No. 138 Hopetoun Avenue + J Sweeney of No. 11 & 13 The Crescent. 13 The Crescent is the next street down hill past Sassafras Lane.

14 The amended issues of 31 October 2005 in the appeal are: 1. Whether or not the proposal in its current form is consistent with objective (a) of the Residential 2(a) zone of the Woollahra LEP ("WLEP") 1995 which is to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses, and the general objectives of the WLEP including those in clause 2(2)(h)(iv) relating to view sharing. Specifically the new dwelling will have an excessive bulk and scale not suited to the site or the locality. The size of the building results in significant visual bulk, overshadowing and loss of outlook concerns for the adjoining dwelling to the south, being No 132 Hopetoun Avenue. In particular the north facing ground floor windows and north facing ground floor courtyard area will be significantly overshadowed at the winter solstice and the visual bulk close to the side boundary will result in the loss of outlook. Nos 149 to 151 Hopetoun Avenue opposite the site will also be affected by loss of harbour views. Whether or not the proposal therefore satisfies clause 8(5) of the WLEP. 2. Whether or not the proposal in its current form is consistent with the desired future character objectives (4.13.4 and 4.13.5 of the Woollahra Residential Development Control Plan 2003) ("WRDCP") for the Vaucluse West Precinct. The changes will result in the loss of an existing view corridor through to Sydney Harbour and the loss of a visual connection with the harbour from the public domain. This is inconsistent with clause 2(2)(h)(v) of the WLEP and clause 8(5). 3. The proposal exceeds the maximum permissible FSR for the site as set out in WRDCP of 0.55: 1 with a floor space ratio of 0.648:1. The excessive floor space results in a building of a form and scale which is not in keeping with the existing character of the area and which leads to overshadowing visual bulk and loss of outlook for the adjoining dwelling at No 132 Hopetoun Avenue (south) and loss of harbour views for Nos 149-151 Hopetoun Avenue (east). 4. Whether or not the proposal is consistent with objectives 0 5.2.2 and 05.2.3 stipulated under Part 5.2 of WRDCP in relation to building size and location performance criteria. The size and location of the dwelling does not allow for view sharing or adequate sunlight access and does not maintain the continuity of building forms in the street. In particular the north facing ground floor windows and north facing ground floor courtyard area of No 132 Hopetoun Avenue (south) will be significantly overshadowed at the winter solstice and the visual bulk close to the side boundary will result in the loss of outlook. Nos 149 to 151 Hopetoun Avenue opposite the site will also be affected by loss of harbour views. .. 5. Whether or not the proposal complies with Clause 5.9.14 of WRDCP 2003 in relation to car parking access from rear lanes. In particular a single garage is proposed off Sassafras Lane. In these circumstances, an additional double garage facing Hopetoun Avenue is excessive and will have an unacceptable streetscape impact. 6. Whether or not the proposal is consistent with objective 0 5.2.1 stipulated under Part 5.2 of WRDCP in relation to preserving established tree and vegetation networks. In particular the new driveway crossing will result in the loss of established street trees which form an aesthetic relationship enhancing the streetscape, as well as the loss of screening trees close to the southern boundary of the site. In addition the retention of Tree 1 Evergreen Alder ( Alnus acuminata subsp. glabrata ) appears unviable given that excavation will be carried out only 1.1m from the base of the tree. 7. Whether or not the proposal is in the public interest. 8. Matters raised in submissions to the Council.

15 A summary of the principle issues is that the exceedence of the floor space ratio (FSR) results in insufficient side boundaries setback and a visual bulk of the building that unreasonably reduces the existing view corridors through to the harbour from the public domain of Hopetoun Avenue and reduces the view corridors of the houses on the opposite side of Hopetoun Avenue at No.s 149, 151 and 153.

16 The same FSR non-compliance and insufficient side boundary setback causes unreasonable overshadowing of the northern private open space and living area windows of No. 132 Hopetoun.

17 The loss of view corridor is related to the existing wide driveway and south side setback of 8.5 m on the subject site being reduced to 2.6 m on the ground floor of the proposal and 3.4 m at the top floor level. The top floor is stepped in a little above the ground floor.

18 The design of the proposed house could be said as neo-Georgian in style. The step-in of the top floor is created by a cornice and ledge at the ceiling level of the ground floor. There is a hip tile roof.

19 At the western or harbour end of the house each lower floor projects a few metres past the one above to create a terrace at each level facing the harbour.

20 Due to proposed excavation of the site and the slope of the land, the third-storey which is beneath the ground floor at the western end means the new house is only about 1 m higher than the existing house to the ridge of the roof. As seen from Hopetoun Avenue the new house is about 6 m wider than the existing house. 21 On the north side adjacent No. 136 Hopetoun the existing house has a 1.2 m side setback. This increases with the new house being 2.6 m side setback at the ground floor and 3.4 m at the top floor.

22 Mr & Mrs Copland at No. 136A had several concerns. The first was the proposed boundary landscaping consisting of vegetation reaching 4 to 5 m height. It may cause visual restrictions to the current view to the harbour. They asked for vegetation shown on top of and beside the rear garage to be no higher than 1 m above the concrete roof of the garage.

23 The proposal to excavate the new house caused concern over vibration damage to their own house and they wanted a dilapidation report before and after construction, and repairs if needed at no cost.

24 Mrs Copland did not like council's issue 5 and its intention to relocate all garages to Sassafras Lane due to its likelihood to increase car noise in the laneway including the garage doors going up and down. 25 Mr Joffe at No. 151 said his view loss would be considerable. By reducing the current south side setback his view corridor across the harbour to the hill of Clifton Gardens would be eliminated.

26 The height of the proposed landscape vegetation in the side setback would remove any remaining potential for harbour glimpses.

27 It was put to him he had plans to add a second-storey to his own house that would overcome any view loss. He said there was no commitment to that yet, and dealing with the situation as it was now there would be a loss due to the reduction of side setback. Also the new house is to be located 6 m closer uphill on the site than the existing house, so the bulk of the new roof being 1 m higher than the existing one and some 6 m wider as seen from the street would have even more visual bulk and block more of the view currently seen either side of the ridge of the existing roof.

28 The applicant asked to see the view from Mr Joffe's attic bedroom window and deck. When shown I could see from the Opera House to Manly. The proposal would reduce that part of the view to Clifton Gardens which is a minor component of the panorama, but admittedly, Clifton Gardens and the proposal are directly across the street from No. 151. The icons of the Opera House and Manly were well to either side of that. From the ground floor living areas the view loss would be as Mr Joffe said. 29 Mr Opie of No. 153 obtained a harbour glimpse from the ground floor of his house across the subject site. He noted also the bus stop adjacent his house had the same glimpse and made waiting for the bus more attractive for the public. He said, if the proposed roof could be reduced by 1 m in height it would enable the view of Neilsen Park Headland and the harbour to Clifton Gardens to be kept from both positions. The roof is at a 30 degree pitch. The applicant said the proportions of the roof to the façade made the 30 degree pitch desirable for aesthetic reasoning in the neo-Georgian style.

30 Mr Matties of No. 149 said he would lose most of his view too from his front living room and terrace. His house is opposite No. 132 which blocks any view directly opposite. The view is on a splayed alignment between No. 132 and the existing roof of No. 134 being the subject site. The proposal with its second storey would probably reduce this view to a glimpse.

31 Mrs Weiss at No. 132 said the existing tree roots were invasive on her property and the trees were too high and caused overshadowing of her northern courtyard and northern kitchen, dining room and living room windows. The proposed landscape plan showed new vegetation 4 to 5 m tall. It would do the same overshadowing and the new house would make it worse.

32 However, she did like the softening of built form and privacy that boundary vegetation provided. Limiting the height of vegetation to avoid winter shadows was desirable. The loss of morning sun to her kitchen, dining and living room northern windows and the courtyard outside is unacceptable she said. 33 The evidence showed that currently she has sun to her kitchen windows all day in mid-winter from 9am to 3pm and all morning to the dining and living room windows, and on until approximately 2pm. There is similar sun exposure to about a variable 10% to 50% of the ground level of her courtyard between 9am and 3pm.

34 This would change with the height and boundary setback of the proposal. She would get no morning sun in her kitchen at all until 1pm and then only for a short time after. The dining and living room north windows got no morning sun until 10am when they commenced to receive a little sun which increased in area on the window until her own house shaded them by just after 2pm. The courtyard contrary to the current situation did not start to get sun at ground level until midday with the proposal, but after that time got the same sun as now.

35 Mr Biller said on streetscape and the double garage facing Hopetoun that except for No. 132, four or five houses adjacent to the proposal and the opposite side of the street had no garages facing the street. The rear lane existed and council's development control plan requires that laneways be used for access to rear garages where ever possible. The traffic generation of a single house was not of such volume that it could cause unacceptable noise for No. 136A if all the garages were to be located on Sassafras Lane. 36 Eliminating the double car garage from the front façade of the house would improve the streetscape appearance within the context of the existing group of houses and would reduce the size and bulk of the proposal to keep the amenity and cohesiveness of the streetscape between Sassafras Lane and Watsons Bay Road along the Hopetoun frontage. Only No. 132 has a double garage in the front elevation of the house and it was approved prior to council adopting the current Woollahra Local Environmental Plan and Residential Development Control Plan so it should not be used as a precedent. The aim of the current controls was to avoid repertition of street facades like No. 132.

37 Also persons travelling along Hopetoun in cars, buses, or walking looked towards the row of houses and between them at the harbour glimpses and views. Retaining these qualities from the public domain is an objective of the control plan so that new large buildings did not block out the glimpses and views and so garages did not dominate the streetscape.

38 Mr Biller was asked if the applicant was to be penalised because there is a wide side setback on the existing house that enabled one of such views. He said the views exist and some compromise is needed given the council's controls on view sharing etc. The proposed new house would have panoramic views at the expense of public view amenity and precinct character and neighbours view sharing. 39 Mr Ludvik said the applicant had a young family and wanted a garage at the ground floor level not down steps at the end of the backyard. Getting young children and shopping bags in and out of cars is a difficultly that is easier if the garage is in house.

40 Mr Ludvik said re-locating the garages to the rear lane would not reduce the height or width of the house at the street front, it would only mean reducing the length of the house along the allotment.

41 He thought a double car garage door would be visually neutral in streetscape. It was something most people expected to see these days. There were other houses nearby on Hopetoun that had a front driveway and gates to a rear garage. The driveway and gates of the proposal would be what people in the street would mainly see because the floor of the garage would be about 1 m below the footpath level.

42 Mr Biller said there would be a better streetscape result even if the laneway garage became a double and the house garage became a single. It would reduce the proportion of the façade occupied by a large garage door. The driveway and gates are shown 4 m wide so they could be reduced also for a single garage. 43 That would also help reduce the bulk of the house which created unacceptable impacts. The excessive bulk is illustrated by the floor space ratio (FSR) exceedence. The proposal is 0.68:1, the standard is 0.55:1. The garage floor area is not counted in the FSR calculation. So the garages clearly add additional bulk over and above 0.68:1 when the garages are inside the house. Mr Biller said removing even one garage from the house and putting it at the rear lane would provide some design flexibility to overcome the unacceptable impacts of the house. Relocating all garages to the rear lane would be better, but he accepted for convenience one car in the house.

44 Mr Ludvik said that the additional floor space of the house that exceeds the FSR is mainly below the existing ground level at the rear. It does not affect the height or bulk of the ground and top floors.

45 The height limit is 9.5 m and the proposal is 8.9 m to the ridge of the roof so that easily complies. It complies with council's boundary setbacks controls, so that the building fits comfortably into the building envelope control. Also Mr Ludvik said the council had approved another exceedence of the FSR at No. 151 Hopetoun, so the standard was not rigidly applied.

46 Mr Biller said that building envelopes were nearly always much larger than the permissible FSR could fill. So being a comfortable fit is not the test. The real question is in consideration of the impacts. 47 Also No. 151 Hopetoun only exceeded the FSR by 13 sq m, a minor amount. The proposal exceeds the FSR by 140 sq m, about the size of a three bedroom apartment. Mr Biller said that it doesn't matter that parts of the floor space are in the lowest storey. It is the parts of the building in the upper storeys that are causing the impacts.

48 Even if the proposal complies with the FSR and caused the same impacts, it should be amended to avoid the impacts or refused he said.

49 Since the FSR is exceeded a State Environment Planning Policy No. 1 objection to permit the exceedence should not be granted because some of the applicable statutes and objectives of the FSR are not fulfilled namely: 1. To control building density, bulk, and scale in order to achieve future precinct character objectives. 2. To minimise adverse environmental effects on use or enjoyment or both of adjoining properties. 3. To relate new development to the existing character as viewed from the streetscape. 50 The applicable controls on FSR are also in part to protect the privacy, access to sunlight and views enjoyed by residents, neighbours properties, and surrounding streets and public open space.

51 The statute and controls note that even the maximum permitted FSR is not an "as of right" provision. It may be allowed if all the applicable statutes and controls are complied with.

52 Mr Biller said there were impacts on sunlight access of neighbours and view corridors of neighbours and those from the public street.

53 The top floor of the proposal is huge he said. Alone, it contains five bedrooms, a study, a large dressing room, three bathrooms and a large gallery and stairs.

54 Less bulk on the top floor, even if not 140 sq m less, could overcome the impacts. Relocation of the garages to Sassafras Lane, alone would enable 40 sq m of accommodation to be transferred from the top floor to the ground floor and reduce the bulk of the house. 55 Mr Ludvik thought that the impacts were being exaggerated. He said the view loss from the neighbours and the street had to be considered in the context that the existing house having a 8.5 m side setback on the south had enabled the existing view corridors and the sunlight access that otherwise might not be there if the existing house had a more usual layout.

56 For the neighbours across the street most have from the ground floor levels only glimpses of the water in the harbour and some only from a standing position. Pedestrians in the street and at the bus stop likewise only got occasional glimpses of the water.

57 Mr Biller said the glimpses were important in this locality as pointed out under the Woollahra Local Environmental Plan for residential development in the Vaucluse West precinct. Façade setbacks are intended to allow views between buildings with the objective of retaining scenic qualities of the area as seen from the public streets and from individual houses so that neighbours share the views to a reasonable extent rather than a new building taking away views. Mr Biller said No. 149 had better than a harbour glimpse, it is a view, and under principle case Tenacity v Warringah [2004] NSWLEC 117, the loss of 85% of it is not view sharing. 58 It was put to Mr Biller that the council set the side setbacks to give 5 m between houses to give view corridors, and if complied with, that should be sufficient. He agreed the setbacks had that purpose but the figures quoted were still minima. The council could ask for bigger setbacks where warranted. He thought an increases setback to the top floor on the south side of the proposal and a lower roof is not an unreasonable expectation to preserve No. 149's view to a reasonable extent and preserve reasonable harbour glimpses from the other locations.

59 It was put to him the council tree officer wanted 4 of the existing alder trees on the south boundary on the subject site to be kept. They would block the view corridor anyway.

60 Mr Biller said an earlier tree officer report recognised the trees had invasive roots and could grow to 15 m high and were unsuitable for side setback locations. From a planning point of view he thought the trees should be removed as the view corridor was important. 61 The respondent observed in any case Mrs Weiss of No. 132 preferred the trees be removed and be replaced with hedge height vegetation to keep winter sun to her windows and courtyard. The respondents draft conditions were amended to reflect this.

62 It was put to Mr Biller that the Vaucluse West precinct map in the development control plan nominated the significant views and vistas to be kept and the site was not one of them.

63 Mr Biller said the significant views and vistas were very important and were specificity protected under cl. 04.13.4 and c4.13.2 and c5.5.1 of the Development Control Plan. Other view corridors from the streets and those of neighbours and view sharing were covered in other clauses namely c3.2.1, c3.2.2, c4.13, c4.13.5.3, c4.13.5.8, 5.5, 05.5.2, 05.5.3, 05.5.4 and c5.5.6.

64 The respondent observed these controls reinforced the statutory objective of the Local Environmental Plan on view sharing in cl 2(2)(h)(iv) and (v).

65 In regard to solar access to Mrs Weiss's property it was put that the council's controls on that required: Main ground level private open space of adjacent properties to have a minimum of two hours sun to at least 50% of its area between 9am and 3pm on the 21st June. The minimum dimension of sunlight on the ground during the 2 hours to be 2.5 m or 35 sq m which ever is smaller. North facing windows of habitable rooms of adjacent properties is not to be reduced below three hours between 9am and 3pm on the 21st June. 66 Although the north facing window of Mrs Weiss's kitchen would be reduced from the existing sun all day to only about half an hour of sun, the kitchen had a west facing window that would get sun for three hours on 21st June.

67 The dining room window would get three hours commencing with a sliver of sunlight at 10 am. The northern living room window would not get three hours, but it had large west facing windows that got sun all afternoon mid-winter.

68 The courtyard would get two hours to about half its area.

69 Mr Ludvik said that although there was technical non-compliance with the north facing kitchen and living room windows, both had other windows that ensure the rooms got sunlight for more than three hours a day. There would be a substantial loss of solar access that Mrs Weiss currently enjoys, but it would not be reduced to less than the council's controls allowed. Also Mr Ludvik noted No. 132 had a backyard and balconies facing west that got direct sun in addition to the courtyard. Mr Ludvik said that as a result the shadow impact should not be fatal to the application. 70 Mr Biller agreed if that were the only impact it would not be sufficient for refusal. But he said, there were accumulative impacts of: + Significant view loss to No. 149 and + Loss of harbour glimpses from No. 151 and 153 + The streetscape impact of the unnecessary double garage on Hopetoun where there was rear lane access. + The loss of public glimpses of the harbour from the street and bus stop + The visual bulk of the top floor of the building due to the FSR exceedence. 71 In considering the evidence and having had a view of the subject site and the objectors premises and the view from the street I have concluded that council's expert evidence has the greater weight and that the impacts of the proposal are such that even if it complied with the floor space ratio it should be amended in its design or redesigned to overcome the particular view loss and streetscape impacts. An exceedence of the FSR in those circumstances cannot be justified.

72 Therefore the Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties exhibits A, C and exhibits 1, 2, 3, 7, 9 and 10.

      K G Hoffman
      Commissioner of the Court
      ljr

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