Del-Ben v Waverley Council

Contention 1 - Bulk 22Pursuant to cl 4.4(2) and cl 4.4A(b) of WLEP, the maximum FSR for the site is 0.65:1. While the original proposal had an FSR of 0.74:1, the amended plan results in an FSR of 0.657:1. The planners agree that while the FSR is marginally non-compliant with the development standard it does not result in unreasonable impacts on adjoining properties and that it meets the objectives for FRS in cl 4.4(1) of WLEP. 23The planners agree that the amended plans show an exceedence of the current height controls but when considered against the ground level at the time of granting the original consent, the exceedence is minor. In regards to the objectives for height of buildings in cl 4.3(1) WLEP, the planners agree that the amended plans achieve these objectives. 24The owner of 34B Gardyne Street objected to the visual bulk of the proposed blank southern façade when viewed from the main bedroom. In order to soften the outlook it was proposed that a planter box be erected on top of an approved concrete pergola and planted with appropriate species up to 3m tall. It was agreed that a condition of consent be drafted. 25With the benefit of the inspection, and on the basis of the detailed analysis provided by the planners, I find the amended proposal does not result in unacceptable bulk and does not create any unreasonable bulk-related impacts on the adjoining properties and the appeal should not be refused on this basis. I agree with the planners that the amended proposal meets the relevant objectives in WLEP and WDCP. 26The additional landscaping proposed on top of the pergola will soften the appearance of the bedroom. Limiting the height of plants to 3m, as requested by the owner of 34B Gardyne Street, should not further obscure any views from that property. Setting a minimum height will ensure a reasonable screen is achieved.

Contention 2 - Streetscape 27The council's contention concerned the impact of the height and bulk of the original proposal on the streetscape. The contention considered the impact to be contrary to the objectives of the FSR controls in WLEP and the relevant objectives in WDCP. 28The amended proposal places the fourth floor element towards the rear of the site. As a result, the planners agree that the amended proposal will read as a predominately 3 level building from the street and will only be seen as 4 levels from one narrow gap between 415 and 419 Bronte Road. 29Again with the benefit of the view and the height poles, I am satisfied that in itself, the addition of the fourth floor bedroom does not result in an unacceptable impact on the streetscape and it should not be refused on this basis.

Contention 3 - view loss 30The planners agree that the originally proposed structure and the extent of roof structures resulted in unreasonable impacts on the views from the bedroom level of 409 Bronte Road. This dwelling is to the west and upslope of the site. 31According to their report and the amended plans, the fourth floor bedroom is now located behind the eaves of 411 Bronte Road, the property between the site and 409 Bronte Road. The new position places the bedroom more to the south of the line of sight and retains views of the ocean. 32My assessment of the likely view loss, as seen during the inspection, concurs with that of the planners. In considering the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140: the impact on the views is negligible, the part of the view obscured is mainly of residential dwellings and vegetation - not the more valuable water views; the views are across a side boundary from bedrooms not living areas; and the amended design has minimised the impact. While there is some non-compliance with the height controls, the impact is not unreasonable (see [29]). 33The owners of 409 Bronte Road raised concerns about people on the roof terrace looking back towards their bedrooms. The roof terrace is non-trafficable and will be conditioned as such. However, it is not unreasonable to expect occasional access for routine maintenance. 34The owner of 34B Gardyne Street raised an objection to the obstruction of her view to the north of a portion of Bronte Park. In applying Tenacity: although this is a view from the rear of the dwelling it is a 'district' view rather than a view of water, the principal views from the whole of the dwelling and associated terraces are of the ocean; the obscured view is from a bedroom/bathroom; and the impact is minor. 35Therefore, I find that the appeal should not be dismissed on the basis of view loss.

Contention 4 - precedent 36The council did not press this contention, however, as it was an area of concern raised by a number of objectors I will address it. 37In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, at [5]-[36] Lloyd J comprehensively considers the issue of 'precedent' and the relevant caselaw. At [10] His Honour cites Stein J in Maxwell James Maxwell Pty Ltd & Anor v North Sydney Municipal Council (NSWLEC, 13 December 1991) who said: The precedent argument may properly be seen as an argument of last resort. Assuming precedent to be good or bad, there is no justification for blindly following a bad one. It is the merits of any particular development which are important. 38In Goldin at [28] Lloyd J considered in part that: ...if the Court is entertained with an application for a proposed development which is both objectionable in itself and there is sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 39That is, the Court may take precedent into consideration. However, it does not diminish the requirement for each development, or modification of a development, to be considered on its merits. This requires the proposal to be tested against the controls and objectives of the relevant environmental planning instruments, in this case WLEP, and any development Control Plans. 40There is a degree of flexibility included in WLEP and WDCP. Clause 4.6 considers 'exceptions to development standards' which provides a degree of flexibility in applying certain development standards. In Zhang v Canterbury City Council [2001] NSWCA 167, Spigelman CJ at [75] considered that the consent authority [in this case the Court] has a wide ranging discretion but the discretion "is not at large and is not unfettered'. His Honour found that while a DCP had to be considered as a "fundamental element" or "focal point" of the decision making process, and any provision in a DCP directly pertinent to an application is entitled to significant weight, it is not in itself determinative. 41The planners state that while development standards must be considered, they agree that cl 4.6 variations are not required for variations to development standards in s 96 modification applications. However, notwithstanding this, as discussed earlier in this judgment, the experts agree that strict compliance with the building height and FSR development standards is unreasonable and unnecessary in the circumstances of the proposal because the relevant objectives are satisfied and the impact on adjoining properties and the street is minor. 42While the objectors clearly find the proposal "objectionable" I agree with the planners and find that the modification application, as amended, should not be refused on the basis that it will establish an unsatisfactory precedent for future development in Bronte Road.

Contention 5 - public interest. 43Given the findings thus far, and the extent to which the public interest may be represented by the zone objectives in WLEP, I find that the proposal does not offend any of the objectives and should not be refused on the basis of the public interest. [A very detailed consideration of public interest litigation is given by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; 173 LGERA 280].

Other issues/ conditions 44Following the onsite inspection and the privacy issues raised by the owner of the adjoining property to the east, the planners and the parties agreed that the height of the windows on the eastern façade is to be reduced and a light weight horizontal screen be installed below the window in order to limit the potential for overlooking into the rear yard of 415-417 Bronte Road.

Conclusions and orders 45Having regard to the uncontested and agreed planning evidence and relevant matters under s 79C of the Act, I am satisfied that the modification as amended, and incorporating the additional agreed conditions, is acceptable and should be approved. 46On receiving the final agreed conditions of consent and the filing and serving of the amended plans I will make Final Orders in chambers upholding the appeal and granting consent to Modification Application No. DA-449/2005/D at Lot E in DP 308352, also known as 413 Bronte Road, Bronte in accordance with the amended plans and subject to the agreed conditions. The exhibits will be returned.

Directions (1)The parties are to file and serve a copy of the amended plans and a copy of the agreed conditions at the earliest opportunity. (2)An electronic version of the agreed conditions, in Word 97 format, is to be forwarded to the Court and marked to my attention for inclusion in the Final Orders.

Judy Fakes Commissioner of the Court

Amendments 14 January 2014 - Typographical error Amended paragraphs: Catchwords 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: 14 January 2014