Edgar Allan Planning Pty Limited v Woollahra Municipal Council

DATES OF HEARING: 27/07/2006 and 30/10/2006

APPLICANT: Mr G A Green, solicitor SOLICITORS: Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT: Mr M E Connell, solicitor with Ms J E Hewitt, solicitor SOLICITORS: Home Wilkinson Lowry

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10338 of 2006 - Edgar Allan Planning Pty Limited v Woollahra Municipal Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Woollahra Municipal Council, (the council) to refuse a development application to erect and to extensively alter and add to a dwelling house at Lot 3, DP 230791, being No 2 Rawson Road, Rose Bay. 2 I visited the land in company with the parties on the morning of the first day of the hearing. I asked that the application be readvertised so that nearby residents would be better informed of the extent of the works. 3 I have concluded that when the application is considered under s 79C of the Environmental Planning and Assessment Act 1979, the salient issue of the extent of excavation would not warrant its refusal. The land 4 The land is situated on the high eastern side of Rawson Road and is one property to the south of the intersection with New South Head Road. It is rectangular in plan and has an area of 577m2. The land has a western frontage to Rawson Road of 18.41m, a northern (side) boundary of 28.64m, an eastern (rear) boundary of 18.32m and a southern (side) boundary of 34.07m. The land slopes down from the rear to the Rawson Road frontage, with a fall of almost 9.0m. 5 Erected on the land is a single-storey dwelling house elevated above street level with an existing double garage at street level fronting Rawson Road. 6 The locality is characterised by single-storey and two-storey dwelling houses of varying ages and architectural styles. Abutting the side of the land to the north at No 36 Chamberlain Avenue and to the south at No 4 Rawson Road are two-storey dwelling houses. To the east are dwelling houses at Nos 34 and 32 Chamberlain Avenue from which northwest views are obtained over the subject land. Relevant planning controls Woollahra Local Environmental Plan 1995, (WLEP) 7 Under the provisions of the WLEP the land is zoned Residential 2(a) and the proposal is permissible with consent. 8 Under the WLEP, cll 12 and 12AA - Height of buildings; cl 18: Excavation of land; cl 19 - Development in the Harbour Foreshore Scenic Protection Area (HFSPA); cl 25 - Water, wastewater and stormwater systems; and cl 25D - Acid Sulphate Soils, are relevant. 9 Clause 18 of the WLEP states:

1. When considering an application for consent for development involving the excavation of land, the Council shall have regard to how that excavation may temporarily or permanently affect: (a) the amenity of the neighbourhood by way of noise, vibration, dust, or other similar circumstances related to the excavation process, and (b) public safety, and (c) vehicle and pedestrian movements, and (d) the heritage significance of any heritage item that may be affected by the proposed excavation and its setting, and (e) natural landforms and vegetation, and (f) natural water runoff patterns.
2. The Council may decline to grant such a consent unless it has considered specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and dilapidation reports of properties which may be affected by the proposed excavation.
3. Consent for an excavation may be granted when consent for any other development proposal for the carrying out of which the exaction is necessary. Woollahra Section 94A Development Contributions Plan, (DCPC) 10 Under the DCPC - Schedule 1: Summary of Section 94A levies by development type is relevant to conditions. State Environmental Planning Policy No 55: Remediation of Land, (SEPP55) 11 Clause 7(1)(a) of SEPP55 deals with contamination and remediation and is to be considered in determining a development application and formulating conditions. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSH) 12 Under the provisions of SREPSH cl 13 - Planning Principles (Sydney Harbour Catchment); cl 25 - Foreshore and waterways scenic quality; cl 26 - Maintenance, protection and enhancement of views, are relevant. Woollahra Residential Development Control Plan 2003, (RDCP) 13 Under the provisions of the RDCP Section 4.9 - Desired future precinct character objectives and performance criteria (Rose Bay); Section 5.1 - Streetscape performance criteria; Section 5.2 - Building size and location performance criteria; Section 5.3 - Open space and landscaping performance criteria; Section 5.4 - Fences and walls performance criteria; Section 5.5 - Views performance criteria; Section 5.6 - Energy efficiency performance criteria; Section 5.7 - Stormwater management performance criteria; Section 5.8 - Acoustic and visual privacy performance criteria; Section 5.9 - Car parking and driveways performance criteria; Section 5.11 - Harbour foreshore development are relevant. Development Control Plan for Off Street Car Parking Provision and Servicing Facilities, (DCPCP) 14 Under DCPCP Table 2.7 - Residential car parking provision requirements are relevant. Woollahra Access Development Control Plan 2004, (DCPA) 15 Under the provisions of DCPA Part 1.4 - Objectives; Part 2.2 - Access requirements are relevant. The proposal and its history 16 Development application No DA 679/2005/1 was lodged with the respondent council on 8 November 2005 and includes: · an enlargement of the existing two-car garage and entry space by 52m2 to accommodate a new four-car garage, cloak room and staircase; · a new ground floor level measuring 146m2 and accommodating two bedrooms, an entertainment room, two ensuites/ bathrooms, a wine store and two separate front balconies; · minor additions to the existing first floor, including the enlargement of bedrooms 3 and 4 and new courtyard spaces on the northern and southern sides; and · a new flat roof. 17 The architectural plans describing the proposal were prepared by artechne, architecture and building. Mr M Siu prepared landscaping plans, [Note: Exhibits B and E]. 18 A pre-DA meeting (pre DA 49/2005) was held on 27 September 2005, and the council servants recorded: …the amount of excavation associated with the basement level and new ground level is excessive and will need to be significantly reduced. It results in a significant non-compliance with the floor space ratio control that is inconsistent within the context of the neighbourhood and results in an excessive amount of cut and fill within the subject site the proposed entertainment room does not have any ventilation or natural light, in accordance with Part 3.8.4.2 of the Building Code of Australia. Council's preference would be for the deletion of the room in accordance with the concerns about excessive floor space ratio and [deletion of] several other rooms within the ground floor [that] do not receive direct ventilation or light. Strict adherence with energy efficiency controls in Section 5.6 of Woollahra RDCP 2003 is required. Notification 19 The application was notified to nearby owners and occupants from 16 November 2005 - 1 December 2005 and the council received one submission from Mr P Zeilic of Dimension5Design on behalf of Mrs A Palic, the owner of No 34 Chamberlain Avenue, Rose Bay, [Note: Exhibit 2, Tab 6]. Concerns were raised in respect of the height of the proposal; the covenant; roof colour and slope; excavation and demolition. The council's decision 20 Under delegated authority on 7 April 2006, the council refused the application for the following reasons:
4. The extent and siting of excavation is inappropriate and unacceptable and results in a significant non-compliance with the maximum floor space ratio for the subject site. It is contrary to the following controls: · Clause 18(1)(e) of Woollahra LEP 1995 (excavation of land); · Clause 19(2)(b) of Woollahra LEP 1995 (Harbour foreshore scenic protection area) · Objective O5.2.4 of Section 5.2 of Woollahra RDCP 2003 (site excavation) · C5.2.9 of Section 5.2 of Woollahra RDCP 2003 (floor space ratio) · C5.2.15 and C5.2.16 of Section 5.2 of Woollahra RDCP 2003 (cut and fill) · Objective O5.9.1 of Section 5.9 of Woollahra RDCP 2003 (car parking).
5. The internal amenity (in terms of natural lighting and ventilation) of the entertainment room is contrary to C5.2.17 of Section 5.2 and objectives O5.6.1, O5.6.4 and O5.6.6 of Section 5.6 of the Woollahra RDCP 2003. The hearing 21 The appeal was filed on 27 April 2006. 22 At the first on-site hearing the court heard evidence on behalf of the respondent council from Mr S Taylor, Assessment Officer, of Woollahra Council, and Mr P Zeilic, chartered architect of Dimension5Design. 23 On behalf of the applicant Mr S Barwick gave evidence. 24 Mr Taylor, also prepared the statement of basic facts dated 30 May 2006. The issues 25 On 1 June 2006 the council filed a statement of issues and this was amended on 4 September 2006, [Note: Exhibit 11, Amended statement of issues].
6. Whether the proposal should be approved on the basis of the extent and siting of excavation on the subject site. Particulars The proposal involves an extensive amount of excavation, the extent and siting of which is inappropriate and unacceptable with regard to the following objectives and controls: Clause 18(1)(e) of Woollahra LEP 1995 (excavation of land - natural landforms and vegetation). Clause 19(2)(b) of Woollahra LEP 1995 (Harbour foreshore scenic protection area - natural landform and topography). Objective O5.2.4 of Section 5.2 of Woollahra RDCP 2003 (site excavation and cut and fill). C5.2.9 of Section 5.2 of Woollahra RDCP 2003 (floor space ratio for dwelling houses). C5.2.15, C5.2.16 and C5.2.17 of Section 5.2 of Woollahra RDCP 2003 (cut and fill and setback of excavation) Objective O5.9.1 of Section 5.9 of Woollahra RDCP 2003 (amount of site excavation for car parking).
7. Whether the proposal should be approved on the basis of the level of internal amenity to the entertainment room on the ground floor level and with regard to energy efficiency controls in Section 5.6 of the Woollahra RDCP 2003. Particulars The rooms located at the rear of the ground floor level, including the entertainment room, are excavated into the existing landform and cumulatively lack an adequate level of natural lighting and ventilation. Accordingly, the proposal does not satisfy objectives O5.6.1, O5.6.4 and O5.6.6 of Section 5.6 (with regard to the maximisation of natural lighting and minimisation of the necessity for natural heating and cooling) and does not comply with C5.2.17 of Section 5.2 (as there are no walls located above existing ground level).
8. Whether the proposal should be approved having regard to the concerns raised by resident objectors. Particulars · Letter from Peter Zeilic of Dimension5Design (on behalf of Anita Palic of Antoinette Holdings Pty Limited of No 34 Chamberlain Avenue, Rose Bay), dated 30 November 2005. · Letter from Phillip Abram (on behalf of B and ET Topper of No 32 Chamberlain Avenue), dated 11 August 2006. · Letter from Roufir Pty Limited owners of No 4 Rawson Road, Rose Bay, dated 16 August 2006. Including: o height of building; o reflectivity of roof material; o excessive amount of garaging; o safety of excavation; o impact of excavation on adjoining properties; and o increase setback of balcony from southern boundary. 26 The following emerged as the salient issues: · Excavation; · Internal amenity to the entertainment room; and · Resident objections. The evidence and findings Excavation 27 Jeffery and Kautauskas prepared a hydrogeological and geotechnical report, dated 14 September 2005, that considered the engineering implications of excavating to a depth of around 4m for the front of the garage and 2m at the southeastern corner of the land. The report made recommendations with respect to the excavation process and pointed to the need for monitoring and the council proposed draft conditions to address these recommendations. 28 The excavation of the land is a major issue for the council and was raised with the applicant at the pre-DA meeting. Under cl 18 of the WLEP the council and the Court on appeal, must consider the impact of excavation upon the amenity of the neighbourhood and the environment generally. 29 The council considered the extent of excavation to be unacceptable for reason that: · 226.2m2 of excavation to a depth of up to 6m would be excessive and would contributes to more than half of the gross floor area of the proposal; · the excavation would take place within 800mm of the northern and southern boundaries and would be likely to cause risk of slip to adjoining properties; · it would be a significant change to the natural landform contrary it is to cl 18 of the WLEP. · the entertainment room being underground would not receive adequate light and ventilation; and · the four car garage adds to the excessive depth of excavation. 30 The council also pointed to the fact that the proposal would exceed the allowable FSR by around 80m2. In order to reduce this non-compliance the council sought to reduce the gross floor area and thereby reduce the excavation. Mr S Taylor, the council's town planner, indicated by red hatching the reduction of 65.45m2 in the area of the ground floor, [Note: Exhibit B, Ground Floor Plan]. This reduction would require the deletion from the ground floor plan the entertainment room, WC, wine store and some other smaller areas on that level. 31 The council's development engineer assessed the geotechnical and hydrogeological impacts and considered the excavation to be satisfactory subject to appropriate conditions being imposed. 32 I understand that the council seeks by its diagrams in the RDCP to encourage development that although excavated would step with the topography, [Note: Exhibit 5, p 113, RDCP Figure 5.2.11]. 33 The proposed excavation would be within the existing building footprint and would not decrease the area of the land available for deep soil planting. I am satisfied that the proposal that would sit over the existing footprint would largely address the site excavation requirements of the RDCP set out in C5.2.15, and C5.2.16 of Section 5.2. 34 Having considered all the evidence contained in the specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and the need for dilapidation reports, I would not decline to grant consent to the present application despite the breach of the FSR control under the RDCP. Those areas of the proposal in breach of the FSR do not add to the visible bulk. I consider that the matters enumerated in cl 18 of the WLEP have been addressed. Internal amenity to the entertainment room 35 C5.2.17 of Section 5.2 of the RDCP requires site excavation to be carried out in a manner "…to minimise cut and fill on sloping sites and to encourage good quality internal environments, any habitable room of a dwelling must have at least one external wall fully above existing ground level. The entertainment room does not meet this requirement. 36 As originally configured this entertainment room on the ground floor of the proposal would need to be artificially lit and ventilated and this, the council said, would not be energy efficient. 37 During the hearing, the parties reached agreement that if this room were provided with a ventilated skylight some of the concerns of the council would be addressed. The applicant accepted this. 38 The applicant was also willing to install solar cells to power the mechanical ventilation system of the ground floor bathroom, cellar and stair. With such a concession, the council then did not actively press this issue. I consider the proposed ventilated skylight would satisfactorily meet the council's requirements for light and ventilation of that room. Resident objectors 39 Dimension5Design was engaged by the owner of No 34 Chamberlain Street, Rose Bay, Mrs A Palic, a neighbour to the rear and east of the subject land who objected on grounds of the: · need to comply with the height covenant; · need to slope the existing roof to avoid ponding of water; and · need to ensure that no adverse impact results from the excavation of the land.

40 The maximum level of the proposed roof is 55.62m AHD and the covenant would limit the height to 182.5 feet or 55.63m AHD. Condition 2 is imposed to ensure the maximum as-built height would not exceed the covenant height. The roof is shown with a slight slope to avoid ponding of rainwater. 41 In order to reduce roof glare and reflectivity, the council sought to impose Condition 3. Under that condition, which I have adopted, the proposed metal roof would be finished in a recessive or non-reflective colour, either Slate Grey, Heritage Rear, Mountain Blue. Readvertising 42 Upon readvertising to better explain the extent of the works, two further submissions were received from Mr P Abram, architect, on behalf of B and ET Topper of No 32 Chamberlain Avenue, Rose Bay, dated 11 August 2006; and from Mr G Verebes for Roufir Pty Limited owners of No 4 Rawson Road, Rose Bay, dated 16 August 2006, [Note: Exhibit 10]. 43 In respect of the extent of garaging raised in the Verebes submission, Mr Barwick, town planner, for the applicant stated, [Note: Exhibit 12, pp 3-4] : As proposed in the Joint Statement my opinion remains that Council's RDCP at C5.95 does not impose a maximum quantum of car parking provision for dwelling houses. The clause requires that two on-site parking spaces are provided. The RDCP is specific for other forms of development when maximum and minimum rates of car parking provision are required. Regardless of the interpretation of the RDCP, the site is located in a precinct with high demand for on-street car parking, which is in limited supply, The configuration of the proposed development provides the opportunity for additional storage and parking for the dwelling in a manner which does alter the bulk and scale of the proposed building or the landscape opportunities provided on the site. The geotechnical report submitted in support of the proposals provides the guidelines to undertake the work in a manner that addresses the site characteristics and provides appropriate safeguards for the protection of the neighbouring properties. The provision of the four car parking spaces and storage is appropriate and without impact upon the character of the locality or the amenity of the neighbouring dwellings. 44 I accept the thrust of that evidence and would not refuse the application for reason of excessive car parking. 45 Jeffery and Katauskas Pty Limited provided a geotechnical investigation report and outlined the means for the structural support of the excavation. The council's draft conditions of development consent refer to this report and I am satisfied that the concerns raised in the submission from Mr Verebes would be adequately met. 46 With the imposition of Condition 35, I am satisfied that all reasonable measures would be taken to address the likely structural impact of excavation on adjoining properties. This condition would require the applicant to carry out a dilapidation survey of the property and infrastructure at No 4 Rawson Road and Nos 34 and 36 Chamberlain Avenue prior to any work commencing on site. The survey is required to address the likely 'zone of influence' from the basement and ground floor levels that might arise due to excavation works, including dewatering and/or construction induced vibration. 47 A second dilapidation report would be carried out at the completion of the works and would be submitted to Council to record any structural impacts. As a result I would not refuse the application for this reason. 48 The Verebes submission also raised concern about privacy between people using the proposed western front balcony at first floor level and people using the northern side return of the verandah at No 4 Rawson Road. 49 The level of the proposed balcony at the first floor level of the proposal would be similar to the existing terrace level of 52.43m AHD at No 2 Rawson Road and would be around the same level as the main verandah at No 4 Rawson Road. The applicant has proposed screening to the southern end of the proposed balcony, [Note: Exhibit E, amended plans]. Mr Barwick considered, [Note: Exhibit 12, p 4] this interrelationship between the proposed balcony and the verandah of No 4 Rawson Road, would not "…represent an unacceptable relationship having regard to privacy". In arriving at this conclusion he had regard for the fact that the western front wall of No 4 Rawson Road would be around 2.3m forward of the western projection of the proposed balcony for No 2 Rawson Road and thus offset in plan; the secondary nature of the balcony return on No 4 Rawson Road; and the retention of the boundary planting along the common boundary. I accept the evidence that the two outdoor areas would be offset in plan and the proposed balcony would be screened and I would not refuse the application for this reason. 50 The Abram submission prepared on behalf of the Toppers at No 32 Chamberlain Avenue, seeks to enforce the maximum height of 55.63m AHD as described in the restriction-as-to-user or covenant over No 2 Rawson Road. The proposal is designed with a maximum height to the parapet of 55.62m AHD, and slightly below the maximum height limit under the covenant. Condition 2 is imposed to ensure that the maximum height of the as-built proposal would not exceed the covenant height. As stated above, the council did not press this as an issue and I am satisfied that everything possible is being done to ensure compliance with the covenant. 51 For the above reasons, the appeal is upheld. Planning principle 52 A development application to alter and add to a building will be taken to be that relating to a new building where more than half of the existing external fabric of the building is demolished. The area of the existing external fabric is taken to be the surface area of all the existing external walls, the roof measured in plan and the area of the lowest habitable floor. 53 The proposal was readvertised as more than half of the existing external fabric of the building was to be demolished. I have considered the proposal to be a new development. Conditions 54 The conditions are those in Exhibit 3 as amended during the hearing. Orders 55 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No DA 679/2005/1 lodged with the respondent council on 8 November 2005, to erect and to extensively alter and add to a dwelling house at Lot 3, DP 230791, being No 2 Rawson Road, Rose Bay, is approved subject to Conditions 1 to 51 in Annexure A.

3. The exhibits except for Exhibits A, C, D, E, 3, 6, 7, 9 and 11 are returned.

S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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