Design Power Associates Pty Limited v Willoughby City Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planing Policy No.1 Willoughby Local Environmental Plan 1995

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr G Newport, barrister SOLICITORS Doyles Construction Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms G Furness, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10969,70,71 of 2004 Design Power Associates Pty Limited v Willoughby City Council

JUDGMENT 1 COMMISSIONER: This matter involves three separate, but related appeals in relation to the refusal by Willoughby City Council (the council) of DA 2002/1577, DA 2002/1578 and DA 2002/1579 for the demolition of an existing dwelling and the erection of three residential dwellings at 72 Sugarloaf Crescent, Castlecrag (the site). The hearing was conducted as an On Site Hearing. The site 2 The site consists of three separate lots, being lots 301, 302 and 303 in DP 13613. The lots are described as "fan shaped" with a 6 m frontage to Sugarloaf Crescent and with depths ranging between 139 m and 166 m. A dwelling that straddles the three lots is located near the street frontage.

3 The site has a fall of some 45 metres from the street frontage to the rear boundary. The first 30% of the site is steeply sloping with the gradient gradually lessening over the central portion of the site. Beyond the rear of the existing dwelling the site is well vegetated although some clearing and gardening works has occurred over time. The lower half of the site is characterised by bush land with significant vegetation and rock outcrops The proposal 4 The proposal involves the demolition of the existing dwelling house and the erection of three individual dwellings. The dwellings are generally constructed over three levels stepping down the site. The upper level contains a two level garage/storage structure, the middle level contains the dwelling and the lower level contains a swimming pool and terracing. The central dwelling shares a common boundary with its adjoining dwellings (see Attachment 1). Relevant zoning controls 5 The site is zoned Residential 2(a2) - Scenic Protection under the provisions of Willoughby Local Environmental Plan 1995 (the LEP). Clause 2 provides aims and objectives of the plan. The aims and objectives relevantly seek to "allow development at a scale that is sensitive to environmental and planning constraints" (Objective (b)), "maintain and enhance the amenity of residential areas, for example by protecting these areas from inappropriate development" (Objective (d)) and "ensure that residential development conforms with the scale and character of the individual residential development areas" (Objective (e)).

6 Clause 13(3) requires that consent shall not be granted unless the proposal is consistent with one or more of the aims of the plan and at least one specific objective of the zone within which the development is to be carried out.

7 Clause 14A contains additional general objectives for the Residential 2(a2) zone. Relevantly, it seeks to "maintain the scale, character and streetscape of individual localities" (Objective (b)) and "retrain and enhance residential amenity, including views, solar access, aural and visual privacy and landscape quality" (Objective (c)). 8 Clause 14C provides a specific objective for the zone. It is: to accommodate housing such that the scenic qualities and ecological values of the environmentally sensitive natural areas, including foreshores and bushland areas are maintained by protecting the land in this zone from over development or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. 9 Clause 16 identifies the site as being subject to a Foreshore Building Line although there was agreement that the proposed development does not breach the Foreshore Building Line.

10 Clause 18 states that a person shall not erect a building more than two storeys in height within the Residential 2(a2) zone. Storey is defined in cl 5 of the LEP. It was agreed that the proposed development does not satisfy this development standard. An objection pursuant to State Environmental Planing Policy No.1 - Development Standards (SEPP 1) was submitted to show why compliance with this development standard is unreasonable and unnecessary in this instance.

11 Development Control Plan 16 - Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones (DCP 16) provides further controls. Clause 2.2.2 identifies the desired future character of Castlecrag. Section 3 provides special controls for the Residential 2(a2) zone. Section 4.3 provides requirements for character, design and streetscape, Section 4.4 provides requirements for building height planes and setbacks and Section 4.5 provides requirements for height. The issues 12 The council filed on the Statement of Issues containing six individual issues. These can be conveniently grouped into the following main areas: 1) whether the SEPP 1 objection to the height development standard is well founded, 2) whether the breach of the building height plane requirement is acceptable, 3) whether the proposed development is excessive in bulk, uncharacteristic of development in the area and the desired future character, and 4) whether the proposal will create a precedent. The evidence 13 The parties agreed to the appointment of Mr Terry Byrnes as the Court appointed town planning expert. Additionally, leave was granted for Mr Steven Czerref, also a town planner, to provide oral evidence on behalf of the council. The Court also heard from a number of local residents on-site. Their concerns were generally addressed through the issues raised by the council. SEPP 1 objection to height standard 14 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 15 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 16 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

17 The LEP does not identify the objective of the development standard although the SEPP 1 objection describes the underlying objective as a means "to limit the bulk and scale of the built form and the height of dwellings when viewed from the road or district waterways". 18 The SEPP 1 objection states that the desire for minimal excavation and the steep topography of the site is largely responsible for the breach of the height standard. The resulting dwellings do not impact on, nor is the area of the variation visible from either, the street or adjoining reserve and adjacent waterway. For this reason, the variation can be supported.

19 Mr Byrnes agrees that the variation to the height development standard is well founded. He states that the non-compliance with the height requirement arises from an area that is for all practical purposes an underground hallway connection between permissible floorspace.

20 In addition to the underlying objectives in the SEPP 1 objection, he further addresses overshadowing. In this regard, he concludes that even though the new owners of the property to the south no longer object to the proposal, on balance, overshadowing impacts do not warrant further mitigation of the proposals height.

21 On the question of whether the SEPP 1 objection is well founded, I agree with the conclusions of Mr Byrnes. The breach occurs within the area occupied by the dwellings and is largely the result of the steep topography of the site. The area of the breach is not large and it is not readily visible from the street or from areas at the rear of the site. The additional height does also not add to the overshadowing of the adjoining property in any meaningful way. 22 If the variation to the development standard is tested against the underlying objectives, including solar access, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded. Building height plane 23 Clause 4.4 of DCP 16 provides that buildings should be sited within a building envelope measured by a projection of 45° from a height of 3.5 metres above natural ground level at the side boundaries to a maximum height 9 metres. The clause further states that the building envelope "may not apply to sites with significant changes in level, such as cliff faces".

24 There was agreement that the proposed development does not satisfy the building height plane requirement, as the central lot has zero setbacks to both boundaries. There are also breaches on the northern and southern elevations. Mr Czerref helpfully indicated the extent of these breaches on the application plans.

25 Mr Byrnes states that the most recent amendments that provide a setback of 1500 mm to the upper levels of the northern and southern boundaries are acceptable although still breaching the building height plane. While the pool structure surrounds and terraces remain on the southern boundary they are relatively low and inoffensive. Mr Byrnes describes the issue of the zero setback to the central dwelling as unimportant other than to the adjoining dwellings. Issues of the visual and aural privacy are adequately addressed by the screenings and planters provided as part of the development. While the rear yards will continue to be overlooked by each other, this level of overlooking is consistent with existing development.

26 Mr Czerref states that even considering the steep topography of the site, the insufficient setbacks adversely impact on amenity of each dwelling. He describes the use of privacy screens and planters as not useful in preventing overlooking from neighbouring balconies and from rear terraces to lower terraces or balconies. Additionally, the setback space generated by the building height plane denies the opportunity to provide dense landscaping between the dwellings and to aid in privacy. 27 In relation to the setbacks to the northern and southern boundaries, I agree with the comments of Mr Byrnes. While there are breaches to the building height plane, the areas identified on the application plans by Mr Czerref are relatively small and do not significantly add to the overall bulk and scale of the buildings. While the site could not be described as a "cliff face", it does have considerable changes in level and I see no reason why the proposal should not make use of the concession contained in cl 4.4 of DCP 16. While there may the some limited opportunities for overlooking between the dwellings, the use of screens and planter boxes minimise these opportunities. In any event, total privacy would be difficult to achieve given the topography and the limited area for development on the site.

28 The zero setbacks of the central dwelling and the consequent grouping of the dwellings is an issue raised in the many submissions from local residents. The submissions raise concern over the change in character from the predominantly single dwelling character of Sugarloaf Crescent. For the reasons set out later in the judgement (see pars 29 to 34) I agree with Mr Byrnes that the zero setbacks are acceptable and that the character of the area is not so affected that the application should be refused for this reason. Bulk and character 29 Mr Byrnes addresses the question of bulk and character from different locations around the site. From the west, the view of the site is either upwards through a canopy of trees or from the immediate areas associated with the pools and landscaped decks. When viewed from the street (or east) the bulk is described as inoffensive. Mr Byrnes states that the proposal when viewed from the north or south will have a bulky appearance but this is a characteristic shared by the area in general.

30 Mr Czerref states that the historical subdivision pattern and topography is not sympathetic to the construction of a separate dwelling on each lot. This produces an uncharacteristic form of development for the locality. He expresses particular concern at the affect on the streetscape created by the elevated driveways to the garages. In his opinion, the built form is excessive across the site frontage given the combined narrow width of the properties, the loss of landscaping and the existing character of locality. In considering the views from the west, Mr Czerref agrees with Mr Byrnes and states that the visual impact would be sufficiently moderated by the existing vegetation and tree canopy on the lower slopes to not warrant the refusal of the application for this reason.

31 The significant difference between Mr Byrnes and Mr Czerref is the impact on the streetscape of Sugarloaf Crescent. The streetscape varies depending on topography and the location along Sugarloaf Crescent. In some areas, the streetscape is characterised by large single dwellings with generous landscaped setbacks. In the area near the site however, the eastern side of Sugarloaf Crescent is characterised by dwellings located below street level and not generally visible from the street. Some dwellings had elevated garages that screen the dwellings from the street and provide minimal landscaping. In my view, it is within this context that the application should be considered.

32 The Court was advised of a number of amendments to the location of the garages located at street level. The proposal before the Court seeks to group together the single garages for lots 301 and 302 to give the impression of a double garage and to place the garage for lot 303 next to an existing garage, again to give the impression of a double garage. As explained by Mr Byrnes, this grouping is to provide some consistency with other nearby garages of similar form and to provide more effective areas for landscaping. In my view, this layout provides an appropriate response to the streetscape in this part of Sugarloaf Crescent.

33 While Mr Czerref suggested that further efforts should be made to lower the level of the garages, I am not convinced that this is necessary as the garages are at a level approximating street level and present only a single storey elevation to Sugarloaf Crescent. The garages are also lower in overall height than the garage on the property to the north.

34 I also agree with the assessment of Mr Byrnes and Mr Czerref on the visual impact of the proposal when viewed from the west.

35 In terms of cl 13(3), I find that the proposal is consistent with at least one of the aims of the plan. With the range of matters covered by the aims, consistency with at least one of these aims is not an onerous task.

36 The specific objective in cl 14C contains a number of individual requirements but taking a practical and commonsense approach, the objective generally seeks to address the scenic and ecological values of the area. For the reasons set out in the preceding paragraphs I have found that the proposal does not impact on the scenic qualities of the area. I did not understand the council to raise any ecological issues with the proposal. Consequently, I find that the proposal is consistent with the specific objective of the zone.

37 In relation to the issue of whether the form of the proposed development adversely affects the character of the area, I also find that the proposal is acceptable. It is an inevitable consequence that there will be an increase in built form and bulk with the replacement of one dwelling with three dwellings. It is also inevitable that the proposal will differ from the building form that exists in the area at present.

38 I do not however accept that the increased bulk and difference in building form is so inappropriate, insensitive or out of character with the residential development in the area that it warrants the refusal of the application. I acknowledge that the proposed layout appropriately responds to the topographical site constraints and the limited available area for development on the lots in a manner that minimises external impacts. 39 Overall, I see no conflict with any provision in the LEP or DCP 16 that would warrant the refusal of the application. Precedent 40 While precedent is a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) I am not convinced that it necessarily follows that the approval of this application could be seen as any form of precedent for other similar applications. As mentioned earlier, Sugarloaf Crescent has a varied character, largely brought about by the different topographical features in the area. As explained to the Court, there are limited sites in the area that have similar qualities to the subject site. In any event, these sites have their own particular topographical characteristics and would require different design responses, including the need to respond appropriately to adjoining development and the impact on the visual qualities of the area.

Conditions 41 The following conditions are in dispute; o Condition 2(a), Lots 301 and 302 and condition 2(b), Lot 303 42 This conditions requires the development (excluding the garages and swimming pool levels) to the lowered by 500 mm. As the visual impact of the proposed dwellings was found to be acceptable, there is no benefit in further reducing the levels. Accordingly, these conditions can be deleted. o Condition 2(a), Lot 303

43 This condition requires the deletion of a doorway and associated stairs and pathway adjoining the southern boundary and the landscaping of this area. This is opposed by the applicant as the bushfire report states that there should be no trees within 5 m of the building. I agree with the applicant's submission and accordingly the condition can be deleted. o Condition 20, Lots 301, 302 and 303

44 This condition requires the removal of all excess excavation from the site. The applicant proposes that the following further words be added to this condition " except for works below the foreshore building line permitted by the development consent". As I understand, the councils concern relates to the land below the foreshore building line. I agree with the applicant's submission however the condition should more carefully reflect the councils concerns in the wording of the condition. o Condition 110, Lot 302

45 This condition relates to a bond for an existing Tallowood tree. While the applicant accepts the bond requirement for the existing Tallowood tree, the condition at 110(i) appears to have been extended to all trees and vegetation. I accept the applicant's submission, as the condition is ambiguous. Orders For the foregoing reasons, the Orders of the Court are:

Appeal 10969 of 2004 1) The appeal is upheld. 2) DA 2002/1579 for the demolition of an existing dwelling and erection of a new dwelling on Lot 301 DP 13613, 72 Sugarloaf Crescent, Castlecrag is approved subject to conditions in Annexure A. 3) The Exhibits are returned with the exception of Exhibits 6 and A. Appeal 10970 of 2004 1) The appeal is upheld. 2) DA 2002/1578 for the demolition of an existing dwelling and erection of a new dwelling on Lot 302 DP 13613, 72 Sugarloaf Crescent, Castlecrag is approved subject to conditions in Annexure A. 3) The Exhibits are returned with the exception of Exhibits 6 and A. Appeal 10971 of 2004 1) The appeal is upheld. 2) DA 2002/1577 for the demolition of an existing dwelling and erection of a new dwelling on Lot 303 the are land DP 13613, 72 Sugarloaf Crescent, Castlecrag is approved subject to conditions in Annexure A. 3) The Exhibits are returned with the exception of Exhibits 6 and A.

      G T Brown
      Commissioner of the Court

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