Dalley v Woollahra Municipal Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

Zhang v Canterbury City Council [2001] NSWCA 167; CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 31/05/2007 and 01/06/2007. Receipt of additional information 14 June 2007.

APPLICANT Mr G. Green, solicitor of Pike Pike and Fenwick

LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor of Deacons

INTERVENOR Mr C. McEwen, SC for Gadens Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10020 of 2007 John Dalley v Woollahra Municipal Council

JUDGMENT 1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Woollahra Municipal Council of a development application for the demolition of an existing house and for the erection of a new dwelling at the property known as No. 37 Wunulla Road, Point Piper. Site and Environs 2 The site is located within the residential area of Point Piper on the eastern side of Wunulla Road diagonally opposite the northern end of Longworth Avenue. The site has an arced frontage to Wunulla Road of approximately 22 metres and a boundary depth averaging some 70 metres from the road to the foreshore of Rose Bay. The site has a significant fall from the road to the foreshore of 10 -12 metres as well as a cross fall from south to north. The area of the site is some 1460 m on the respondent's calculation and 1489m on the applicant's.

3 The site is shown in its context at Figure 1 in the locality map and the aerial photograph.

4 Adjoining the subject site to the south, at No. 35 Wunulla Road, is a three level residence. To the north of the subject site is a three level building towards the street containing two apartments and a battleaxe allotment with access from Wunulla Road to a two storey dwelling house built relatively close to the foreshore. 5 The sites immediately opposite in Wunulla Road are orientated to the west with water views towards Sydney Harbour. The sites diagonally opposite the site on the southern side of Longworth Avenue are orientated towards the east with views over the subject site towards Rose Bay.

6 The area is generally characterised by two to four storey grand dwelling houses on relatively large allotments with high fences to Wunulla Road. The Proposal 7 The proposal is to demolish the existing residential dwelling on the site and construct a new part 2 part 3 storey contemporary residential dwelling with an FSR 0.76:1.. It is proposed to retain the boat shed and refurbish the swimming pool.

8 During the course of the proceedings the applicant advised of amendments he was prepared to incorporate in the proposal. These include: a reduction in the overall height of the dwelling from 9.33 to 9.03 metres; and an increase in the setback to the upper level main bedroom area on the southern side to 3 metres. These changes are shown in Exhibits M and N. These amendments were not opposed, however, they do not alleviate the concerns of the respondent and intervenor in the proceedings.

9 Figure 5 shows the comparative section analysis of heights with the adjoining dwellings at No.'s 35 and 39 Wunulla Road. Figure 6 shows the footprint of the existing dwelling and the proposed.

10 The experts provided comments with notations in red on the landscape plan, Exhibit B. In particular the removal of stairs on the southern boundary forward of the building to the foreshore should be removed with further landscaping provided in this location; retention of the boulder; further landscaping near the foreshore on the northern boundary; and increased density and heights of screen painting between dwellings on the upper portion of site on the. northern boundary; Issues 11 The respondent provided a Statement of Issues and in broad terms is as follows: 1. The proposed development does not comply with the Foreshore Building Line and the rear setback control and would result in an adverse amenity impact on neighbouring properties. 2. The setback of the proposed dwelling from the south west boundary would be detrimental to the amenity of No. 35 Wunulla Road. With regard to sunlight access to the private open space and unreasonable sense of enclosure and unreasonable separation between buildings. 3. The height of the proposed dwelling would be excessive and would result in the loss of water views from adjoining property in particular No. 44 Wunulla Road and the public domain. 4. The proposed development has a building footprint in excess of the relevant control thereby adding to the preserved bulk and scale of the building. 5. The FSR control is not complied with and would result in an excessive scale bulk and detrimentally impact on the amenity of adjoining properties with regard to views, sunlight access and an unreasonable sense of enclosure. 6. The proposal does not comply with the deep soil landscaping requirement. 7. The proposal is not in the public interest . Statutory planning framework 12 Under the Woollahra Local Environmental Plan 1995 ("the LEP") the site is zoned Residential 'A'. The more relevant objectives of the zone include: a. To maintain the amenity and existing characteristics of areas predominately characterised by dwelling houses. d. To protect the environmental attributes of the coastal and foreshore lands. 13 The more relevant aims and objectives of the plan include: g. To conserve the environmental heritage of the area of Woollahra. h. To protect the amenity and natural environment of Woollahra i. To provide the frame work for more detailed controls to be contained within development control plans 14 In relation to the areas foreshores the objectives include: · To encourage development, which through it's form, scale, materials and design is compatible with the natural and environmentally acceptable built landform of the foreshore areas as viewed from the water. o To consider the impact of development on Sydney Harbour enjoyed by existing residents and promote the practice of view sharing. o To protect and where possible improve the view of Sydney Harbour and its foreshore areas obtained from public land. o To protect the natural scenic and cultural attributes of the areas foreshore including a visually and ecologically significantly beaches in title rock formations, vegetations, rock faces, shells and out crops. 15 In relation to excavation of land the objectives include: i To minimise any impact on the amenity of the neighbourhood ii To protect the natural foreshore areas including the visually and ecologically significant…rock faces, shells and out crops. 16 Clause 12 of the LEP refers to the height map and states "a building shall not be erected on land within a height zone to a height greater than the maximum height shown on the height map".

17 The height shown on the map on the subject site is 10 metres and the objectives set out in cl 12AA and include: a. To minimise impact of new development on existing views of Sydney Harbour, ridge lines, public and private open spaces and the views of the Sydney city skyline. b. To provide compatibility with the adjoining residential neighbourhood. c. To safeguard visual privacy of interior and exterior living areas of neighbouring dwellings. d. To minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing. e. To maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of the streetscape. 18 The provisions for development in the Harbour Foreshore Scenic Protection Area are contained within cl 19 and this requires an assessment of: a. The visual impact when viewed from Sydney Harbour of the design of the proposed development, including the colours, textures, styles and types of materials to be used and the type and form of any roof and b. The impact of the proposed development on the natural landform and topography. 19 The objectives of the foreshore building line standard are contained within cl 22 and the relevant objectives include: d. to protect the amenity of adjoining lands in relation to reasonable access to views and sunlight. e. to preserve the rights of property owners to maintain and encroachment on the foreshore building line by an existing main building. f. to protect rock platforms and the inter tidal ecology. 20 The foreshore building line means 12 metres above the mean high water mark.

21 The Woollahra Residential Development Control Plan 2003 ("the DCP") is relevant for the assessment of the development application. This DCP contains a description of the Point Piper precinct and states: The built environment of the precinct comprises a range of housing types and styles, including an excellent group of inter war flat buildings at Longworth Avenue; large post World War II apartment buildings at Worsley Road and substantial harbour side houses. Significant elements of most periods of development has been the retention of large areas of soft landscaping around all built form types . 22 The desired future character of objectives include: o To enable Point Piper's natural ridge line to be read as the dominant element of the precinct when viewed from the surrounding districts. o To maintain the sense of the historic grand estates by retaining the garden settings and streetscape elements. o To ensure that new development re-enforces the stepped and sloping topography. o To maintain the evolution of residential building styles through the introduction of world design contemporary buildings. 23 The DCP provides guidelines for side boundary setbacks and states: Where the site lot is equal to or exceeds 18 metres development has a minimum side boundary setback of 3 metres this side setback is increased on a proportional basis by 0.5 metres for each metre or part thereof that the building height adjacent to the boundary exceeds 6 metres. 24 For the Point Piper precinct dwelling houses are to be a maximum height of two storeys. An additional basement storey maybe permitted on steeply sloping sites as long as all other WRDCP controls are met.

25 On the issue of roof form the DCP states: "roof forms are to be well articulated and designed having consideration of neighbouring amenity, overlooking, streetscape suitability and to maintain views across the precinct". 26 For building form the DCP states: "the building form is to follow the slope of the land and to minimise impact on existing landform. Significant trees and vegetation are also to be maintained".

27 The DCP contains a provision for a minimum of 40% of the front setback to incorporate deep soil landscape area.

28 For building size and location the DCP states: The maximum permissible floor space ratio…for dwelling houses are not as right. To achieve the maximum permissible floor space ratio a development must satisfy all relevant controls applicable to the land. It is intended that the gross floor area for a building resulting from the floor space ratios specified be contained within the building volume created by the maximum building height in metres for buildings specified in the LEP and the controls for building footprint, building height in storeys, and front, side and rear setbacks specified in the WRDCP. The WRDCP controls are designed to ensure that the scale and bulk of housing is compatible with site conditions and the desired future character for the locality… 29 Important considerations include the protections of privacy, access to sunlight and views enjoyed by residents, neighbouring properties and surrounding streets and public open space. Recognising the importance of tree and vegetation networks to Woollahra's 'leafy' character the controls also seek to encourage the integration of existing and future open spaces and planting as a fundamental component of site design.

30 In all circumstances, application must conform to the WRDCP's numeric controls for setbacks and the building footprint. The controls are intended to ensure development can be appropriately adapted to site opportunities and the important character elements of the street or locality.

31 The purpose of the front side and rear setback controls set out in the DCP: o Relate new development to existing boundary lines along the frontage; o Protect the visual and oral privacy of residents in adjoining buildings; o Enable opportunities for screen planting; o Protect significant vegetation; o Avoid an unreasonable sense of enclosure; o Safeguard privacy and minimise noise impacts for dwellings. 32 The objectives under buildings size and location include: o To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents; o To ensure the form and scale of development is not excessive and maintain the continuity of building forms and front setbacks in the street; o To limit site excavation and minimise cut and fill to ensure that building form relates to the topography… 33 Building footprints for dwelling houses are related to the size of the allotment and for sites of 1200 square metres this is 30%. Similarly floor space ratios are calculated on a sliding scale and for the subject site this is 0.55:1.

34 The DCP states that sunlight is to be provided to at least 50% of the main ground level private open space of adjacent for a minimum of two hours between 9 am and 3pm. And north facing windows to habitable rooms to neighbouring dwellings do not have sunlight reduced to less than three hours between 9 and 3 on 21 June.

35 The DCP at 5.5 refers to views and it states: Views and Vistas are special elements of Woollahra's unique character. The Municipality sloping topography, leafy setting and harbour frontage combine to offer dramatic bushland and water views which contribute to the amenity of the private dwellings and the public domain. In addition the municipality frontage to Sydney Harbour confers special responsibility upon Woollahra to ensure development is maintains the scenic beauty of the foreshore and headland areas when viewed from the water… Private Views Views sharing concerns the equitable distribution of views between properties. The RDCP's view sharing controls seek to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties. 36 The objectives include, "to encourage view sharing as a means of ensuring equitable access to views from dwellings".

37 The performance criteria for private views in the DCP states, "building forms and neighbour sharing of views with surrounding residences, particularly from the main habitable rooms of surrounding residences".

38 The section on harbour foreshore development includes the following performance criteria: o Building forms follow the natural topography and maintain or enhance vegetation cover as viewed from the Sydney Harbour. o Buildings are designed and constructed to blend with the natural landscape setting and the existing built in environment when viewed from Sydney Harbour through the use of materials, colours, wall articulation, building form and landscaping. Glass elevations and excessive use of windows resulting in reflectivity and glare will not be permitted. o Boat sheds have a direct relationship with the water, with openings and access facing the water. o Boat sheds are used solely for the storage or maintenance of boats. 39 The guidelines for the protection of the natural foreshore include: "development on foreshores properties does not significantly alter the topography and preserves natural foreshore features including cliffs, rock out crops, rock shelfs and beaches".

40 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 is also a relevant instrument for the assessment of the development application. In particular cl 25 requires consideration of the maintenance protection and enhancement of the scenic quality of the foreshores and waterways. The matters to be taken into consideration include: A. The scale, form design and siting of any building should be based on analysis of i. The land on which it is to be erected and ii. The adjoining land iii. The likely future character of the locality. B. Development should maintain, protect and enhance the visual qualities of Sydney Harbour and foreshores… 41 Clause 26 outlines the matters to be taken into consideration in relation to the maintenance, protection and enhancement of views as follows: A. Development should maintain protect and enhance views to and from Sydney Harbour. B. Development should minimise any adverse impacts on views and vistas to and from public places, land marks and heritage items and C. The accumulative impact of development on views should be minimised. Evidence 42 The Court met on site the first morning of the proceedings and heard evidence from a number of resident objectors. The Court also had the opportunity of viewing from the adjoining residential properties the subject site with height poles erected. The inspection included viewing the subject site and the Point Piper peninsula from the water.

43 On behalf of the applicant evidence was given to the Court by Mr Scott Barwick, consultant town planner; Mr John Pradel, Architect for the proposal; Mr Robert Staas, consultant heritage architect. For the respondent evidence was given by Mr Anthony Rowan, consultant town planner The adjoining owner at No. 35 was granted leave to appear in the proceeding or be represented and evidence on his behalf was given by Mr Anthony Betros, consultant town planner and Mr John Oultram, consultant heritage architect and Mr Luigi Roselli, consultant heritage architect. . 44 Mr Betros prepared a report on behalf of the owners of the following properties: o No. 35 Wunulla Road immediately to the south of the subject site. o No. 44 Wunulla Road opposite the site on the western side. o No. 2/39 Wunulla Road located immediately to the north of the subject site. Heritage 45 The Intervenor in the proceedings, represented by Mr McEwen SC, submits that the dwelling on the site should not be demolished because of heritage significance. Mr L Rosselli the architect for the alterations and additions carried out to the dwelling in 1996 and 2000 and Mr Oultram, heritage consultant for the Intervenor gave evidence to the Court in support of the retention of the dwelling.

46 The respondent does not contend that the existing dwelling on the site should be retained on heritage grounds. The council's bundle contained numerous internal and external referrals concerning the heritage significance of the existing dwelling on the site and the report of 6 December 2005 appears below. This was prepared in response to a request for a review from the Development Control Committee on 14 November 2005: The following has been reviewed: Reports Godden McKay Logan, Demolition Report, January 2005. John Oultram Heritage and Design, Heritage Assessment, April 2005.

Correspondence : Letter from the Royal Australian Institute of Architects dated 21st March 2005. Letter from Clive Lucas Stapleton and partners dated 29th March 2005. Letter from Adams & Co Lawyers, dated 1s April 2005. Email from Adrian Snodgrass dated 18b October 2005. Letter from Godden McKay Logan dated 28th October 2005. Letter from John Oultram Heritage and Design dated 4 November 2005.

Additional research undertaken: Phone conversation with Anne Higham, Heritage Officer - Twentieth Century Buildings List, Royal Australian Institute of Architects (RATA), 5s December 2005. Phone conversation with Adrian Snodgrass, 5h December 2005. Site visit by Louise Thom and myself 5th December 2005. Detailed fabric analysis 5th December 2005. Comparative analysis. Assessment of Significance using the NSW Heritage Office guidelines for inclusion or exclusion.

Comment : This report comments on the existing house at 37 Wunulla Road, Point Piper and whether it is of sufficient cultural significance to warrant listing on the Woollahra Local Environmental Plan 1995 as an item of local significance. The information reviewed to date reveals a difference of opinion with regards to its significance; from insufficient evidence (Godden McKay Logan; and RAIA) to local significance (John Oultram; Clive Lucas Stapleton; Adrian Snodgrass; Adams & Co Lawyers).

It was felt that additional information was required to assist in the assessment of cultural significance. The issue addressed common to all correspondence is essentially hinged upon the relationship of the building to its original designer, Adrian Snodgrass.

The importance of Adrian Snodgrass is not disputed in any of the documentation. The apparent issue is whether the existing house conveys enough evidence to attribute this house to the body of work of Adrian Snodgrass, and whether this house is a good example of domestic architecture in the mid twentieth century design style of the Sydney School of Architecture (Wrightian buildings). Annexure A Fabric Analysis and Annexure B Comparative Analysis and Annexure C Assessment of Significance provide the detailed analysis which supports the conclusion.

Findings of Fabric Analysis A fabric analysis has been carried out ..There remain some examples of the design work of Adrian Snodgrass. Some of the exterior, such as the roof form, and remnants of original balconies and interior architectural details evidence of the Sydney School remains. However, there are major losses of design innovation, which was what intrinsically linked the building to both Adrian Snodgrass and the Sydney School of architecture. The fabric analysis has revealed modifications to each of the original rooms, along with the construction of additional rooms. Substantial losses are evident externally and internally, and comprise visionary and contextual elements as well as subtle detail and finishes.

The original external design intent rested upon the relationship of the form and landscape and expressed a strong sense of horizontality and geometry. The floating horizontality of the building has been lost by the infilling of the cantilevered balconies and the replacement of the solid striped balustrade which was essential to the horizontal form. Landscaping also relied on geometry with the pool and terrace constructed to reflect Wrightian angles while responding to the natural terraced rock form below. The balconies have also been reconfigured. The external materials have also been changed with new paving throughout.

There have been substantial alterations to the interior. The kitchen and all of the bathrooms have been remodelled. Internal design features particular to the east wing of the upper floor areas have been substantially modified. The tiered columns and flooring have been modified, while the entrance has been lengthened and flooring. replaced and new timber panelling introduced. The plan also of this wing has also been extensively altered through the demolition of a number of columns and internal partitions, and the extension of the building to the south to create a new kitchen gallery.

The building, as it has been modified over the years, has become more and more depressed into the ground, with a large extent of excavation occurring to the lower ground floor, along with infill to the areas below the cantilevered balconies. This is in conflict with the original design which was expressed as a floating form created by the cantilever and under croft, which provided views from the street through to Rose Bay. The effect has had a significant impact on the ability to read the innovative form of Snodgrass' building, which celebrated a harmony between the site, house and context.

Findings of Comparative Analysis: The Wrightian style of architecture, Sydney School, is best represented by the work of architects such as Peter Muller and Douglas Snelling within the Woollahra Municipality (Refer annexure B). 37 Wunulla Road, Point Piper, no longer conveys the design intention of this style, having been compromised by later additions. In addition there are other examples of Snodgrass' domestic architecture, which were constructed around the same time as 37 Wunulla Road, located in the Northern Beaches.' The work by Peter Muller and Douglas Snelling, who were contemporaries of Snodgrass' remain intact and significant examples of this style of architecture.

Assessment of Cultural Significance using the NSW Heritage Office Guidelines: An assessment of the building using the NSW Heritage Office Criterion for Assessment of significance has been carried out .. The inclusion and exclusion guidelines have been considered. The building does not meet the inclusion guidelines for any of the criterion, and does not warrant listing for its cultural significance.

The building's importance when it was first constructed was intrinsically linked to the association with Adrian Snodgrass and the innovative design of the house. The intact built form was what was important to both of those associations. However, as discussed, the built form has been substantially compromised through extensive alterations and modifications. Because of this, the work of Adrian Snodgrass is not well represented by the existing house at 37 Wunulla Road, Point Piper.

The findings of this report concur with the Godden Mackay Logan Demolition Report January 2005, and the correspondence from the RAIA. When it was originally constructed it was considered to be an innovative and influential design. However the substantial alterations over time have compromised the original design intent and weakened the association with its original designer, Adrian Snodgrass. The building at 37 Wunulla Road, Point Piper, is not a culturally significant item at either a state or local level.

Later alterations and additions are of a substantial nature and have diminished the architectural design innovation and integrity for which this house was once recognised. The changes are not of a reversible nature. 47 The Royal Australian Institute of Architects NSW Chapter was also requested to comment on the existing dwelling and its letter of 21st March 2005 included the following comments: …Last year the RAIA Heritage Committee assessed this item against the State Heritage Register criteria and determined the building no longer met the aesthetic and historic criteria. The RAIA considered that before extensive alterations and additions undertaken in the late 1990s the house would have been an item of State Significance on the State Heritage Register. The building was not listed on the RAIA Register of Significant Buildings because the design has been compromised by extensive alterations and additions. The house is still valued by the community as the exterior roof fabric evokes memories of the 'Wrightian' form of the original house.

Following the recent inspection, copies of the demolition report and photographs of the interior and exterior house were circulated to members of the Register Review Sub­committee for further detailed examination.

The RAIA Register Review Sub-committee has reassessed placing it on the Register and whether the retention of the structure and its setting is required to interpret the work of Adrian Snodgrass. However, taking into account the extent of alterations that have occurred to its fabric, appearance and relationship with the site, it is not of sufficient significance to meet the criteria as a heritage item on a local environmental plan. The item has some potential to yield information that will contribute to an understanding of NSW's cultural history. Therefore we recommend that Woollahra Council should record both the interior and exterior of the structure and its setting. 48 As noted above the Intervenor in the proceedings was granted leave to provide evidence on heritage and a joint report was prepared by Mr John Oultram on behalf of the Intervenor and Mr Robert Staas for the applicant. The points upon which the experts reported include the following: o The experts agree that the building is not listed or identified in any statutory or non statutory inventories and is not located with a conservation area. It is not in the immediate vicinity of any listed heritage item. o The house was not identified in the list of twentieth century houses given to Clive Lucas by Woollahra council for potential heritage listing. o The experts accept the analysis of fabric prepared by Godden Mackay Logan in their demolition report dated January 2005. o The experts agree that some degree of reversibility of the later changes could occur including reinstatement of original features. o The experts agree that the architectural design work of Luigi Rosselli is of a high standard in its own right. (Mr Oultram considers that the Rosselli alterations are sympathetic to the original design and in some areas reversible). (Mr Staas considers that the later work obscures the original interior character in particular and to some extent the external appearance. o The experts disagree on the remaining potential of the place to represent a good example of 1950's design or a representative example of the influence of Frank Lloyd Wright. (Mr Oultram considers that the changes have not destroyed the original design intent which is readable as are the changes. He considers it would merit listing as an item of local heritage significance). (Mr Staas considers that the house has layers of changes that dramatically alter the spatial character of the main spaces, the character of original .finishes and the "floating" cantilevers which it once had. He agrees with the other experts whose reports are in evidence, that the degree of change reduces any potential for listing). o The experts agree that to some degree the house is recognisable from the street and from the water as being distinctive in its design and character and generally recognisable as the house built in the 1960's. o The experts agree to disagree on the level of significance of the house as modified. 49 Concurrent evidence was given by Mr Staas, Mr Oultram and Mr Rosselli and it is common ground that Adrian Snodgrass represented the Sydney School of Architecture and his designs reflect the philosophy of Frank Lloyd Wright. It was also agreed that except for the alterations the building would be worthy of listing because it is a representative example of Frank Lloyd Wright architecture. This is not because it was designed by Mr Snodgrass, as Mr Staas said he was not well known at that time. And from the particulars contained in the CV of A Snodgrass, provided in Mr Oultram's statement, he was not a qualified architect at this time also later in his career Sydney University awarded him and a M(Sc) Arch in 1981 and a PhD in 1985.

50 Mr Staas stated however, that if the building was fully in tact or substantially in tact it would be worth listing and this is consistent with the advice from the RAIA and others who assessed the dwelling. 51 On cross examination Mr Staas agreed that it is a rare example of A. Snodgrass but this is because he did few other works, in fact only about four homes in Sydney. Mr Staas commented that the series and degree of changes undertaken to the dwelling over time have changed its character in relationship to its setting and that the changes seriously alter the original design intent. When questioned on whether the dwelling would fulfil the criteria for listing Mr Staas replied that it would only need to satisfy one but there needs to be a sufficient threshold to warrant listing and while Mr Staas has not undertaken an assessment against the criteria he stated that many have and that council had resolved not to list it on four separate occasions.

52 Mr Staas acknowledged that the roof form is recognisable from the original design and it has now been overlayed with copper and it is partly obscured from the water by the boat house and the cantilever over the rock formations has been lost in the alterations and additions.

53 Mr Oultram considers that the house is instantly recognisable as a Snodgrass design and the house is extremely distinctive despite the fact that the 'Wrightian' principle of the timber has been overlain with copper and this demises. He also said that the effect of the building floating over landscaping has been changed however this was done to provide additional space and the dwelling still has the effect of floating over rock in his opinion. 54 Mr Rosselli stated that when he designed the alterations and additions carried out in 1996 and 2000 he did a continual check with what Frank Lloyd Wright would have done and that the concept of reversibility was adopted in his design concept.

55 Mr Staas on the other hand considered that reversibility would be unlikely because of the need to improve the amenity of the building for contemporary living. In this regard Mr Oultram agreed with this analysis. Mr Staas said that whilst it would be possible to reverse the alterations and additions this is not practical as few owners would give up the space created. 56 Mr Oultram agreed that reversibility would be an unlikely scenario and while he agreed the original design was to tread lightly on the ground this design philosophy is no longer apparent.

57 Mr Oultram recommended that the dwelling be listed however he had only looked at the house from the gates and the adjoining jetty. Mr Oultram agreed that since the development application was lodged that council had updated it's 20th Century list of significant buildings on the basis of a Clive Lucas study however he said "this study did not go or look behind the list that had been provided by the council".

58 Mr Rosselli stated that the alterations and additions he designed to the dwelling are minor and are organically linked to the existing house and it was still a valid building for listing.

Assessment of Heritage Significance 59 This is a threshold question for the assessment of the development application before the Court. On the basis of the evidence to the Court I have concluded on the facts that the heritage significance of the dwelling does not warrant retention.

60 In my assessment of the evidence now before the Court I am not persuaded on the facts and the information presented that the dwelling house should be retained on heritage grounds. My assessment has been based on a comprehensive examination of all the material and facts and having regard to the heritage assessment criteria. 61 This confirms previous decisions taken by the Council not to list the dwelling and is consistent with the RAIA's comments. I am satisfied that the dwelling has been comprehensively assessed for its heritage significance, both pre-and post the lodgement of the current development application and on the current evidence before the Court the facts do not persuade me otherwise.

62 It is recognized however, that it is important for a detailed report to be prepared prior to the demolition of the dwelling. The proposed conditions of consent provide for this to be undertaken.

63 While Mr Rosselli may have considered 'Wrightian' principles when designing the extensive alterations and additions to the dwelling nonetheless, I am persuaded by the overwhelming evidence that in carrying out the significant additions including increasing the size from 200 to 500 square metres and the relationship of the dwelling to the natural landscape and the views under the building through to the water have been either lost or significantly eroded such that the dwelling no longer 'floats lightly' but sits down into the site. 64 Furthermore, the major internal changes and interior alterations means the original design philosophy is difficult to interpret. The interpretation and recognition of the original design philosophy is also further eroded by the change in internal and external materials finishes and colours.

65 Based on the evidence of the experts it is highly improbable that the alterations, additions and changes to the dwelling would be reversed and while the horizontality and other design features are still evident to a certain degree this is insufficient to warrant heritage conservation of the dwelling. 66 Figures 2 and 3 are photographs of the dwelling taken in 1962 and 2007 from the appendix to the Statement of Evidence of Mr Oultram. The dwelling featured as a magazine article in 1962 and it is noted that the descriptor states 'Home Built in Oriental Design' and the commentary also states: "…this interesting design strongly reflects the Oriental influence and the interior combines wood glass and brick" noting that the house was designed by Adrian Snodgrass and built for Dr and Mrs Rose.

67 This is not inconsistent with the material in Mr Oultram's appendix that Frank Lloyd Wright was influenced by Japanese architecture. It is not a disputed fact that the design of the dwelling was inspired by these principles. Also appended to Mr Oultram's statement is the Architects Institute's bibliographical information on Mr Snodgrass and Attachment 1 provides an extract of this. 68 These proceedings have provided the opportunity for the issue of whether the dwelling should be retained because of its heritage significance to be reassessed with the benefit of further Heritage evidence. However, on the basis of the evidence and the facts before me I have concluded that there is no reason or facts as to why the dwelling should not be demolished.

69 Having concluded on the facts that retention of the existing dwelling is not warranted, I shall now proceed to a merits assessment of the proposed dwelling.

Foreshore building line 70 The other threshold question that the Court must consider in an assessment of the development application is the State Environmental Planning Policy No. 1 objection to vary the 12 metre foreshore building line.

71 An objection under State Environmental Planning Policy No. 1 in respect of the foreshore building line was submitted with the development application and cl 22A of the Woollahra LEP sets out the objectives.

72 The judgment of his Honour Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 provides an appropriate set of assessment questions that I have had regard to. 73 On Mr Barwick's calculation the FSBL is breached by a triangular portion of the proposed dwelling and comprises 0.48 metres squares.

74 Mr Rowan on the other hand considers that the dwelling will breach the FBL in two areas; the first comprises apart of the existing dwelling being retained located on the northern side of the site (comprising an approximate area of 40.23 metres square) he says the extent of this breach is up to 7.3 metres beyond the FBL. The second breach in his opinion is an area of approximately 5 square metres on the corner of the proposed study, this is because he considers the FBL depicted on the plan is not an accurate representation of the 12 metre FBL and that the sea wall is not an accurate representation of the mean high water mark. Mr Rowan is further of the opinion that the proposed dwelling undermines the land form and topography of the site and is excessively close to the waterway such that it dominates the vertical form of the escarpment. 75 Mr Barwick on the other hand considers that the existing facilities below the pool level remain unaltered by the proposal and that these facilities are currently and will remain integrated into the landscape and are not unattractive or overbearing elements in the foreshore interface area. He is further of the opinion that the minor intrusion of the building into the FSBL is balanced by the new building being up to 6 metres behind the FSBL adjacent to the dwelling 35 Wunulla Road and through the proposed configuration retaining the majority of the north eastern half of the site predominately open for private recreation purposes.

76 At the end of the day this difference is not the issue, but whether on assessment the objectives of the FBL and the aims of the State policy are met.

77 Even if the encroachment is as described by Mr Rowan I am satisfied that the objectives of the foreshore building line are satisfied by the proposed development. That is the proposal: retains the natural (existing) shore line; it provides for areas for future planting; it protects the amenity of adjoining lands in relation to reasonable access to views and sunlight, while at the same time, preserving the right of the property owner to maintain an (existing) encroachment; and it protects rock platforms. 78 In my assessment I am satisfied that strict compliance with the foreshore building line development standard would be unnecessary and unreasonable in the circumstances of the case and it would hinder the objects of the Act.

79 My assessment leads me to conclude that the SEPP 1 objection should be upheld in the circumstances of this case.

DCP as Focal Point 80 The judgment in the Court of Appeal of Zhang v Canterbury City Council [2001] NSWCA 167 establishes that DCP's must be considered as a fundamental element in or a focal point of the decision making process and that real genuine and proper consideration must be given to DCP's. It further provides that: "A DCP is not an environmental planning instrument… Nor can a plan contain a non-discretionary standard which if complied with can take away consent authorities discretion under s 79C(2)."

81 I have given central consideration to the provisions of the DCP in my assessment of the application and I note that the format of the plan is such that it contains objectives and performance criteria as well as numerical guidelines that must be taken into consideration.

Setbacks 82 The planners also differ in terms of the rear setback that is the setback from the foreshore. Mr Rowan is of the opinion that there should be a setback equivalent to 25% of the site depth whereas Mr Barwick considers the setback is the foreshore building line set at 12 metres as contained in cl 22 of the LEP. Figure 6 attached shows the site coverage of the existing dwelling (shaded) on the site and the proposed dwelling in black outline.

83 In my assessment, focusing on the DCP guideline for Point Piper, I agree with Mr Barwick that the 12 metre FBL is the common sense interpretation. I do not accept Mr Rowans evidence that 25% setback is necessary or appropriate having regard to the context of the proposed development on the Peninsula. The small encroachment of the new dwelling will be imperceptible in the context of the built form and the more generous setback to the northern portion of the dwelling provides for an appropriate private open space and landscaping setting such that the built form will sit comfortably within a landscaped setting on the foreshore. 84 The Respondent and Intervenor contended that the setback to the southern boundary is a non-compliance that creates an unreasonable sense of enclosure and increased overshadowing for number 35.

85 The respondent contends that the setback of the dwelling on the south west (southern) boundary would be detrimental to the amenity of No. 35 with regard to sunlight access to its private open space and it would result in an unreasonable sense of enclosure and unreasonable separation between buildings.

86 Mr Barwick comments that the boundary wall between the properties has an RL of approximately 13.5 stepping down to 12.5 towards the foreshore and that the maximum height element of the proposed dwelling has a setback of 2.5 metres from the boundary and the maximum height of the building above the wall is 3.5 metres. 87 Mr Barwick further comments that the height poles demonstrate the building will not result in an unreasonable sense of enclosure and that the sense of enclosure experienced in the private open space of No. 35 between the road and the dwelling is primarily a result of the boundary wall treatment that exists. On solar access he comments that No. 35 retains solar access to the front and rear private open space in excess of minimum requirements and Mr Rowan agrees with this. However mr Rowan says that "the impact is attributed potentially to the excess floor space and the non compliance footprint of the development", and states "thus despite the impact deemed to be of a minor nature on the outlook amenity of the private open space of No. 35 a compliant development with these provisions would be likely to have no such impact.

88 Mr Betros considers that given that the site width is greater than 18 metres being 20 metres (22 on the arc) a minimum setback of 3 metres is required and that there is no justification of a setback of 1 to 2.5 metres, particularly given the lack of articulation, overbearing presence to internal and external living areas of No. 35, additional overshadowing and the severe view impacts to 35 and 44. 89 In my assessment of the impact of the proposed dwelling on the front garden and pool area of No. 35, I agree with Mr Barwick and I am of the opinion that the impact is not only minor in nature, as described by Mr Rowan, but that these impacts are reasonable and would not warrant refusal of the development application in isolation or in combination with other factors.

90 The impact of the reduced setback on the southern boundary does not create an unreasonable sense of enclosure for the reason that the RL's of No. 35 and the proposed dwelling ameliorate and justify a reduction in the setback. The increase in setback to the upper bedroom of the proposal to 3 metres will provide for an appropriate separation between the dwellings and also when viewed from the water. I consider that it is not necessary for the setback to be increased at the lower levels because of the difference in levels between the dwellings. 91 Furthermore the solar access to No. 35 is reasonably maintained despite a reduced setback. This was generally agreed to by the experts.

Impact on Views, Height and Storeys 92 Mr Betros considers that the view loss from the bedroom which includes a study desk and television increases the significance of this room for No. 35 and that the proposal would remove the views from the north facing window of the main bedroom. He acknowledges that the view to the east to Rose Bay would remain however, he states: "the layout of the bedroom is orientated to the north which is therefore the primary view from this room".

93 He considers that the non-compliance with the storey control failure to satisfy height objectives, excessive FSR combined with non-compliant rear and side setbacks demonstrate that the proposed view impacts are unreasonable. He also considers that there will be adverse outlook and overshadowing impacts to the primary dining area of No. 35 which is the daily meals area.

94 Mr Betros is of the opinion that there will be severe view loss of significant harbour view from primary internal and external living areas of No. 44 and the internal bedroom. 95 The respondent contends that the height of the proposed dwelling is excessive and it will result in the loss of water views from adjoining properties in particular No. 44 and the public domain. Mr Barwick considers that the dwelling complies with the maximum applicable height of 9.5 and the use of a flat roof form to a maximum RL 16.99 is also well below the levels of the adjoining dwellings. No. 35 has a top ridge RL of 20.25 and a gutter RL level of 17.89 and the dwelling at No. 39 has a maximum ridge level of 21.2 metres and a gutter level RL of 17.8. As such Mr Barwick considers that the building form retains the valley between existing buildings and results in the provision of a reasonable sharing of access to views enjoyed from neighbouring properties. Figure 5 shows the relative height of the proposal to the adjoining properties at No.'s 35 and 39 Wunulla Road.

96 Mr Barwick comments that the dwelling at No. 44 diagonally opposite the site and notes that it was the subject of a development consent for alterations and additions to convert the existing dwelling into a two dwelling residential flat building. He notes that the building at the time of the joint report is occupied as a single residence and that the upper level addition has been undertaken with the current configuration of a three level dwelling with living rooms and outdoor terraces on two levels. He considers that the view loss would be severe for the lower terrace when standing, and when seated, minor. For the mid level terrace Mr Barwick considers that the impact of the proposed development on views both standing and seated is minor and for the upper level bedroom that overlooks Rose Bay and Vaucluse and Clifton Gardens and Shark Island to the north there would be negligible impact. Figure 4 below is a photograph from No. 44 looking over the existing dewlling on the subject site and a depiction of the view with the proposed dwelling. 97 On the other hand Mr Rowan considers that the objectives of the 9.5 metre height are not satisfied in particular consideration of minimising view impact and compatibility with adjoining residential neighbourhood. He agrees with Mr Barwick's analysis and identification of level of impact but he does not agree that the level of view impact is one that should be anticipated because it is evident that the siting of the current dwelling adopted a different approach to other dwellings immediately to the north and the south. He said "the adopted approach involved excavation…whilst this has been to the disadvantage of the landform it has advantaged the streetscape and properties that have a view over the site such as No. 44".

98 Mr Rowan considers that while the development is compliant with a 9.5 metre height control the RDCP incorporates a storeys provision and he does not consider the site should be regarded as steeply sloping and three storeys is only permitted on steeply sloping sites as long as all other RDCP controls are met. Therefore in his opinion the severe view impact on the ground floor level of No. 44 is caused by a non compliant building. And the view loss is generally caused by the upper 1.2 metres of the dwelling. He considers that the overall height could be lowered to minimise the extent of view loss. 99 With the benefit of the expert evidence and the guidance of the planning principle established by the Senior Commissioner in Tenacity v Warringah I have assessed the view impact of the proposal on No. 35 and 44.

100 For No. 44 Wunulla Road while the view impact on the lower living area is severe, and valued, at the same time it is an unreasonable expectation that the views from the lower level would not be affected by the development of this site. I have given serious consideration to what would be reasonable expectations having regard to the local planning regime and the context of the area. This must be balanced by the expectations of the owner of the subject site. 101 The view opportunities for the upper living area and 3rd level bedroom area will be maintained by the proposed development. I note that approval was granted for the dwelling to be converted to a duplex and this would not allow for expansive views for two dwellings however on balance it is not a reasonable expectation that a dwelling on the subject site within council's height control would afford views from the lower living area over to the water.

102 The storeys control I am satisfied is not breached by the proposal as this is a steeply sloping site and basement /3rd levels are allowed provided other controls in the DCP are met. In this regard I have considered the objectives and performance criteria for the provisions including FSR, site coverage, height. I am persuaded by the evidence of Mr Barwick and in the context of development on the peninsula the proposal is not an overdevelopment. Floor space ratio Mr Barwick for the applicant and Mr Rowan for the respondent prepared a joint planners report. Mr Barwick has relied on the detailed survey plan to calculate the area of the site as 1489 square metres and this represents the land above the mean high water mark. Mr Rowan on the other hand considers the site area is 1460 square metres. This corresponds to the area of the allotment above the sea wall. Mr Rowan considers that the boundary beyond the sea wall is the high water mark. 103 Given the above difference between the parties the floor space ratio of the proposal is about 0.76:1 and the DCP requirement is 0.55:1. It was agreed between the experts that the deletion of 123 square metres as shown in a plan prepared by the applicant would not reduce the impact on views. If one also deleted the 250 square metres for the maids quarters in the lower 3rd storey element this would not reduce the height or site coverage and in my assessment by retaining the rock outcrop as shown on the survey plan this lower 3rd storey element will not create unreasonable bulk when viewed from the waterway.

104 The retention of the rock outcrop is a condition imposed on the consent and while this will reduce the amenity for the maids quarters on balance I consider this assists in maintaining the natural landscape features of this site on the foreshore. This objective is contained in both the local and regional plans.

105 The fact that the existing dwelling on the site provides the opportunity for No. 44 to view over the house to the foreshore opposite could not be expected to be retained in redevelopment of the subject site. I have considered the exceedence in the floor space ratio and storeys control and site coverage and I agree with the council officers conclusion in the report to council. Any compliant building envelope on this site would obstruct views from the public domain and from properties immediately opposite the site from the west. This proposal is significantly smaller in scale and its roof would sit below, not the roof ridge, but below the eaves lines of the two dwellings immediately flanking the site. It is by virtue by orientation of the sites that results that the view impact from the properties on the opposite side of Wunulla Road. The proposal would satisfy the relative objectives of the LEP and RDCP and is considered to be good modern contemporary development having regard to the topography of the site, its contextual relationship with adjoining development as seen from the harbour and public domain and the relatively minor impacts on the amenity of the adjoining property. 106 With respect to view loss from No. 35 over the side boundary of the subject site I am satisfied that this would not warrant refusal of the application. Especially having regard to the expansive and grand views obtained from other parts of the dwelling and even for the main bedroom windows and verandah to the east over Rose Bay

107 I am satisfied that the objectives of the performance criteria for the site analysis in the DCP have been taken into consideration and the design process has had regard for the elements identified in the DCP. In particular the development fits into the surrounding environment and responds appropriately to the topography landscape and streetscape character and maintains the significant landmark Northfolk Island Pine.

108 With respect to the deep soil landscaping requirement in the DCP I am satisfied the objectives of the DCP are met and the dwelling will sit comfortably in the landscape setting with appropriate separation between buildings and setback from the foreshore and Wunulla Road. 109 In terms of the building footprint I agree with the council officers assessment report of April 2007. The revised proposal would result in a non compliance of 15 metres squared or 1% of the site area. The relative minor non compliance with the numerical control would have inconsequential impacts on the amenity of adjoining property, public land or the environment. Additionally the objectives of the footprint control would be satisfied because: * The proposal would comply with the deep soil landscape control. * The proposal would not detrimentally impact on the amenity of the immediate adjoining properties to the north and south with regard to views, solar access or privacy. * The proposal would ensure that the form and scale of the development is compatible with development within the vicinity of the site. 110 The desired future character objectives of the DCP cited above at paragraph 22 are satisfied in my assessment.

111 I have concluded in my overall assessment of the application within the planning framework the proposal is appropriate and is worthy of approval on a merits assessment. The design responds to its context of surrounding development on the peninsula, and the foreshore. 112 Accordingly the Orders of the Court are:

1. The appeal in respect of the property known as No. 37 Wunulla Road, Point Piper is upheld.

2. The development application submitted to Woollahra Council and as amended is determined by the granting of consent subject to the conditions contained in Annexure 'A'.

3. The exhibits are returned to the parties with the exception of Exhibits 4, 7, B, C, E, H, M and N.

      J S Murrell
      Commissioner of the Court
      ljr

Adrian Snodgrass - Curriculum Vitae November, 2006 1. Influence on Australian Architecture He has had considerable influence on architects and architectural and art students in Sydney and elsewhere in Australia, introducing them to Asian thought, art and architecture. In the 50s and early 60s, at a time when there was little or no interest in Asian or Japanese art and architecture, he aroused an interest in these areas of study, inducing a number of them, such as Peter Muller, Ian McKay, Alan Gilbert, Bert Read, Neville Gruzman and others to visit Japan and study the traditional architecture. This interest resulted in Japanese-inspired influences being apparent in the work of these architects, which in turn influenced a later generation of architects, and especially Richard Leplastrier, Peter Armstrong, and others to study in Japan and absorb its influences. He can claim to have drawn the attention of a number of Sydney architects to the characteristics of Japanese architecture, and these influences (coupled with the influence of Frank Lloyd Wright, who was himself influenced by Japanese architecture) make themselves apparent in such things as the use of natural materials, especially unpainted timber, open planning, broken by free-standing vertical planes; the straightforward expression of constructional details and methods of jointing; an intimate relationship between exterior and interior; the use of understatement and empty space as aesthetic devices; the use of connecting spaces and verandahs as mid-spaces; a greater awareness of nature, with appreciation of the special characteristics and beauty of Australian landsacpe and native flora; the garden as an integral part of architectural design; the use of water as a design component; and most importantly, a revised sensitivity to the manner in which buildings relate to the landscape.

This cultural encounter with Japan had a significant impact on the Sydney School of architecture, and on the architecture that followed it. These influences have been partially recorded in several academic studies (eg. I.E.K.Bell, `Interpreting Japan in Australia, 1870s­1970s," PhD Dissertation, School of Architecture, Landscape and Visual Arts, University of Western Australia, where other sources are cited.) Bell cites the Jamberoo House as an important example of Japanese influences in Australian architecture.

Later when he became an academic, he influenced a generation of students by way of his lectures and design programs, in which he not only introduced them to the aesthetics of Japanese architecture, but indicated the thought processes on which they were based and which they expressed. He emphasized the dynamics of translation from an unfamiliar tradition to our familiar own, and thus made the foreign relevant to our own concerns and practices…

More than seventy prominent architects, academics and artists ( including at least twenty Professors) are prepared to sign a declaration stating the influence that he has had on Australian architecture and in increasing an awareness of Asian, and particularly Japanese, art and architecture.

2 . Life Adrian Snodgrass (1931 - ), enrolled in the Sydney Technical College architecture course in the late 1940s but left after the first year to travel to India and later Sri Lanka, Tibet, Hong Kong, China, Bhutan, Southeast Asia, the Philippines and Japan.

For ten years, from 1957 to 1967, he was intermittently in Sri Lanka and India, studying Sanskrit and Indian culture and history. He lived in Hindu ashrams in Jaffna and Kataragama (Sri Lanka) and Tiruvanamallai (South India), and performed pilgrimages through South India and down the east coast for Sri Lanka, absorbing Hindu culture and customs first-hand. On his occasional returns to Sydney, he worked in the architectural office of his friend Peter Muller and, for a short period, in that of McKay and Cox. He introduced works on philosophia perennis to a number of architects, some of whom, such as Peter Kollar, introduced these to a wider audience, and ensured they had a lasting influence in the architectural academy…

1975 he returned to Sydney, and gave occasional lectures and lecture series on Asian art and architecture at the two Departments of Architecture and of Religious Studies in the University of Sydney, and in the University of NSW, UTS and various Art Colleges…

In 1981 he joined the staff of Sydney University as Japan Foundation Lecturer, shared by the Architecture and Religious Studies Departments. From 1983 he came onto the staff of the Department of Architecture full time, and stayed in that position until his retirement in 1997. After his retirement he retained the position of Research Associate with the Faculty of Architecture.

During his tenure in the Department of Architecture, he was awarded a MSc(Arch) in 1981; and a PhD in 1985. He was allowed to undertake the Master's degree without an undergraduate degree, and on the basis of life experience. This is the only time the University has made this allowance…

15/10/2007 - Typographic corrections and reference to figures - Paragraph(s) various

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