Fox Johnston Pty Ltd trading as Fox Johnston Architects v Waverley Council

Land and Environment Court (NSW)|2015-10-30

Solicitors: Applicant: Standard Transfer Lawyers Respondent: Wiltshire Webb Staunton Beattie Lawyers File Number(s): 10341 of 2015

Judgment

COMMISSIONER: The applicant appeals Waverley Council's refusal of Development Application No. DA - 306/2014 for alterations and additions to an existing residential flat building at 18 Military Road, North Bondi (the site). The proposal seeks to substantially alter the existing four unit, two storey residential flat building to a part 3 part 4 storey building comprising seven apartments. The application includes the provision of four parking spaces, all of which are tandem.
The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The proposal

As discussed in the applicant's Statement of Environmental Effects dated July 2014 and updated 19 August 2015 and observed during the hearing, the existing older style flat building on the site is in a relatively dilapidated condition with the units and surrounding areas in need of upgrading. None of the existing units have associated areas of private open space; the landscaping on the site is essentially confined to an established Canary Island Date Palm in the front setback. The current parking spaces are accessed down a driveway on the southern side of the site.
The proposal seeks to maintain four units within the existing building envelope, extend the building to the rear to provide for a lower ground level parking area and two residential units above on two levels, and add an additional unit to the top of the existing two storey building.
The amended proposal before the court comprises: 7 residential units made up of 2 x studios, 2 x 1 bedroom units, 2 x 2 bedroom units, and 1 x 3 bedroom unit; 4 x car spaces; 1 x motorcycle space; 10 x bicycle spaces; and landscaping including the 6m rear setback, roof top terrace above the studio apartments at the rear, planter boxes for vines on the northern façade, screen planting in the northern setback and embellishment of the front setback.
The lower ground floor includes parking, driveway, turntable and turning /waiting bay.
The two proposed studio apartments are located in the additional structure at the rear of the current building; these units are proposed to be accessed by a set of stairs located between the existing units and the addition. The areas of private open space are located on the north-western corner.
The existing block is proposed to be reconfigured to produce a two bedroom unit in the front portion of the ground and first floors and a one bedroom unit at the rear of the existing building on each level. These units and the proposed 3 bedroom unit on the new top floor will be accessed from a centrally located staircase on the southern side.
The two bedroom units have their private open space facing Military Road. The external wall of the second bedroom on the northern side of each unit is a blade wall angled to the east and with an east-facing window included at the widest point. At its widest, the angled blade wall projects about 1m into the side setback.
The one bedroom units are located in the central portion of the proposed redevelopment. The area of private open space is located behind a recessed section of the rear addition and behind another angled blade wall. This blade wall opens to the northwest and as with the other blade wall, projects approximately 1m into the side boundary.
The proposed three-bedroom unit is a new level above the existing units. The principal area of private open space off the living area faces Military Road. The secondary area of private open space is accessed off bedrooms at the rear; this comprises an angled deck beyond which is a roof garden above part of the studio apartment below. Other planter boxes are proposed on parts of the northern façade. The roof form is partly flat on the rear portion; the front portion is a half pitched form incorporating a clerestory window on the northern and western facades.

The issues

Council contends that the proposed development should be refused because of the following issues [emphasis added]. 1. Excessive wall height and non- compliant number of storeys - leading to excessive bulk and unacceptable impacts on overshadowing and view loss; 2. Non-compliant side setbacks - leading to excessive bulk and unacceptable impacts on acoustic privacy; 3. Inadequate building separation - resulting in excessive bulk and loss of privacy; 4. Overshadowing - of the adjoining property to the south (no. 16); 5. View impacts - from the adjoin property to the north (no. 20); 6. Internal amenity - future occupants of proposed units 2 and 5 because of poorly orientated private open space; 7. Insufficient and unsatisfactory car parking arrangements - tandem parking for four not five vehicles. 8. Inadequate landscaping - including deep soil landscaping; and 9. Not in the public interest - as represented by submissions opposing the application. 10. Lack of information - overshadowing of north-facing windows of No. 16; landscape details - proposed vines on northern façade.

Relevant background

In September 2014, after the usual internal referrals, the development application was referred to the Waverley Design Review Panel (WDRP) for comments. The Panel found that the proposal was generally consistent with the character of the street and in scale with its surroundings. The Panel highlighted a number of non-compliances and issues to be clarified. Overall they found that the proposal was generally good but they wished to review it again after the issues they raised had been given further consideration. On 22 September the council formally advised the applicant and specified the matters requiring further information.
The application was subsequently amended. In March 2015 council's assessment officer prepared a report to the WDRP recommending approval.
At each stage the application was formally notified and a number of submissions received.
A differently convened WDRP considered the development application at a meeting on 25 March 2015 and refused consent on essentially the same grounds as those in council's Statement of Facts and Contentions.

The assessment framework

Waverley Local Environmental Plan 2012 (WLEP) applies. The proposal is permitted with consent in the R3 Medium Density Residential zone.
Waverley Development Control Plan 2012 (Amendment No. 2) (WDCP) is the applicable version of WDCP. The particular objectives and controls are considered for each of the issues. Part B provides for General Design Provisions; Part C applies to Multi Unit and Multi Dwelling Housing.
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies.

The hearing- controls and evidence

The hearing commenced on site. An owner and occupier of each of the adjoining properties made oral submissions opposing the proposal. The Notice of Objectors (Exhibit 5) cross-references the objectors with their written submissions in council's bundle of evidence (Exhibit 1). The Court and the parties had the benefit of visiting the objectors' units as well as a visit to an existing unit on the site. The parties' consultant planners - Mr Anthony Betros for the applicant, and Mr Stuart McDonald for the council, assisted on site and provided oral evidence in court. Mr McDonald prepared the councils' Statement of Facts and Contentions.
The issues raised by the objectors are summarised as:

Not in keeping with the North Bondi Character Area - amongst other things, absence of pitched roof;
Non-compliant side setbacks and lack of building separation;
Increased traffic and additional pressure on limited street parking opportunities;
Concerns about aural privacy arising from the proximity of the proposed centrally located areas of private open space on the northern façade of the building in relation to the south-facing bedroom windows of No. 20 Military Road;
Inconsistencies with the shadow diagrams and the likely impacts on kitchen windows on the northern façade of the front block at no. 16;
Overlooking, visual and aural privacy concerns in regards to units on the eastern side of the rear block at no. 16 as a consequence of proposed rear-facing balconies and lack of screening of the upper level unit;
Possible noise from the proposed turntable; and
Loss of views of the golf course from the bathroom window of unit 14/16 Military Road.

Height, storeys, overshadowing, views

Clause 4.3 WLEP provides the development standard for height of buildings. The applicable height is 12.5m. The relevant objectives of the standard are: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties. (d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively compliment and contribute to the physical definition of the street network and public space.
The proposal complies with the height control in WLEP however, council contends that that the external wall height of 11.5m towards the rear of the site does not comply with the maximum wall height control of 9.5m in cl. 2.3 Part C2 WDCP and as a result has a 4 storey form in that portion of the building. Council maintains the non-compliance will result in unacceptable impacts in regards to bulk, overshadowing of the adjoining property to the south and view loss from units in the property to the north [contentions 1, 4 and 5].
Clause 2.3 Part C2 WDCP relevantly states: Building height is one of the most important design elements that influence the overall appearance of residential buildings and character of a streetscape and the amenity of adjoining properties. …This Part provides additional design guidance and prescribes maximum external wall heights that complement the overall height identified in WLEP 2012. An attic is an extension of floor area within an existing building envelope, such as the use of a pitched roof section of a building, being ancillary to the main form of the building. Any additions larger than an 'attic' are considered a genuine additional storey and are not attics. Objectives (relevant) (a) To ensure future development responds to the desired scale and character of the street and local area. Controls (a)(b)(c) [apply to maximum building height cl. 4.3 WLEP with which the proposal complies] (d) An attic level may be permitted, if it is fully contained within the roof form or an additional storey may be permitted, provided it does not exceed the overall height identified in WLEP 2012 and is compliant with the following controls: (i) Include a minimum setback of 2m from the edges of the building below and provide no additional overshadowing as compared to the edge of the building below. (ii) Must not exceed 50% of the floor area of the floor below. (iii) Must not contain independent dwellings and must be connected to a unit on the level below. (iv) May not be used where they compromise the privacy of residents within the development, or within neighbouring buildings. (e) Development must comply with WLEP 2012, Table 2 and Figures 21 and 22 below…[Table 2 provides for R3 zone, overall height of 12.5m - maximum external wall height of 9.5m and maximum number of storeys of 3]
Clause 2.15 Part C2 WLEP applies to solar access and overshadowing. The relevant objectives and controls are: Objectives (a) To ensure daylight access is provided to all habitable rooms and encouraged in other areas of residential flat developments. (b) To provide ambient lighting and minimise the need for artificial lighting during daylight hours. (c) Allow the development of small infill sites where access to direct sunlight is compromised by existing adjacent buildings. Controls (a) Living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9.00 am and 3.00 pm on June 21. (i) Developments which seek to vary the minimum standards must demonstrate how site constraints and orientation prohibit the achievement of these standards. (c) Direct sunlight to north facing windows of habitable rooms and all private open space of adjacent dwellings should not be reduced to less than 3 hours between 9.00 am and 3.00 pm on June 21. (d) The numerical guidelines will be applied with the NSW Land and Environment Court Planning principle for sunlight (in accordance with the case of The Benevolent Society v Waverley [2010] NSWLEC 1082 in mind, where relevant…
'Habitable room' is defined in WDCP as - "a room in a dwelling used for domestic day to day activities that excludes a bathroom, laundry, water closet, food storage pantry, walk in wardrobe, corridor, hallway and other like spaces not occupied for extended periods of time".
Views and view sharing are covered in cl. 2.16 Part C2 WDCP. The DCP applies the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. Relevant objectives and controls are: Objectives (a) To ensure that views are shared, providing equitable access to views from dwellings. (b) To protect and enhance views from streets and other public places. Controls (a) New developments should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities for views from the development itself… (b) Provide articulation, and minimise the bulk and scale of roof forms on the low side of streets allowing views to the landscape beyond. (f) [apply the four step approach in Tenacity]
Mr Betros does not agree with council's contentions because in his opinion: the overall height is well below the overall height limit; the proposal presents as three storeys from Military Road and two storeys above a basement at the rear; the only portion above three storeys is centrally located, is well below the height limit and not perceptible from Military Road; and, as the DCP allows for a wall height of 9.5m plus an additional attic form, the DCP therefore contemplates FSR, height and bulk above the 9.5m level. In his view, the proposed height variation is consistent with the LEP/DCP controls.
In regards to potential impacts arising from the height, Mr Betros considers it does not lead to any unreasonable streetscape or amenity impacts to adjoining neighbours. In his opinion solar access is retained on the rear elevation of the southern adjoining units (no. 16) - which comprise a bedroom and sunroom; while he accepts that the upper level north-facing windows of no. 16 will be overshadowed, he maintains this impact is inevitable because of the east-west orientation of the buildings, consistent with the impacts of other units in the locality (for example of no. 20 on the site) and that the focus should be on the retention of solar access to primary living areas rather than preservation of solar access to all north-facing windows. In oral evidence he considered the assessment process in The Benevolent Society is relevant in particular the R3 zone and the vulnerability of adjoining properties in this area to overshadowing. Further, while setting back part of the upper level may improve solar access to the north facing windows of no. 20 it would diminish the amenity of that unit.
Mr Betros notes that 20 Military Road is much higher than the site and any impacts on views will be across side boundaries from bedrooms and associated balconies on centrally located units. In addition, as the building complies with front and rear setbacks and is below the height limit, in his opinion any view impacts would be anticipated by a compliant building envelope. Mr Betros states that amendments to the plans have improved the degree of view retention towards Bondi Beach across side boundaries from some units. He also notes that the principal views from the rear units at no. 20 are to the northwest and include the Sydney Harbour Bridge and which remain unaffected by the proposal.
Mr McDonald remains of the opinion that the centre of the building with the non-compliant wall height and which includes the protruding clerestory window, is four storeys. He maintains that this combined with the further extension into the already non-compliant side setbacks, results in a building envelope of excessive bulk and scale and which has demonstrable impacts on views from the centrally located units on no. 20 and on north-facing windows (which include kitchen windows) on the upper level of no. 16. Mr McDonald notes that based on the applicant's shadow diagrams, the top level north facing windows on no. 16 currently receive 3 hours of direct sunlight between 12pm and 3pm and this will be reduced if the proposal is approved which is counter to control (c) in cl. 2.15 Part C2 WDCP. In regards to the overshadowing impact of no. 20 on the site, he considers that this was approved under previous controls and that the current controls seek better outcomes for adjoining properties.
While Mr McDonald acknowledges the building complies with the height standard, in his view this should be read in concert with a 9.5m wall height, an assumed pitched roof, side boundary setbacks of 4.5m and 30% landscaped area thus resulting in a greatly reduced overall building envelope.
In oral evidence, the planners disagreed on the issue of the top storey. Mr Betros says this is a third storey and not an attic and the reason for the technical non-compliance with the wall height/ storey control in the centre of the building is that the site slopes and the basement level is more than 1m above ground. Mr McDonald considers that WDCP makes it clear that anything over the external wall height engages the attic controls.

Side setbacks and building separation

Contentions 2 and 3 consider the excessive bulk and impacts on acoustic and visual privacy arising from the side setbacks and building separation.
The council's primary contention is that the side setbacks to both boundaries do not comply with the minimum side setback control of 4.5m and that the current non-compliance of the existing building is further exacerbated by the proposed blade walls on the northern elevation and the stairs on the southern elevation. The proposal complies with the rear setback control of 6m.
Council presses the introduction, objectives and controls in cl. 2.5 and 2.5.2 Part C2 WDCP - Setbacks and side setbacks. The setbacks of buildings to boundaries influence the building bulk, appearance in the streetscape, relationship and impact on adjoining properties. Continuity in setbacks can provide rhythm and add character to residential streets, provide views and glimpses of local and distant landmarks and can provide access to the rear of properties. Setbacks also provide amenity to existing and proposed housing through the maintenance and provision of privacy, ventilation and solar access. Generally setbacks increase with building height. 2.5.2 Side and Rear Setback Objectives (Relevant) (a) To reinforce the existing side and rear setbacks in the street. Controls (a) A minimum rear setback of 6.0m is required. (b) A deep soil area of 2m must be provided along one side boundary at a minimum. (d) Development in R3 zones with a height of 12.5m is to provide a minimum side setback of 4.5m. (f) A variation to the side or rear setbacks may be permitted where there is no adverse impact of the amenity of adjoining properties and is consistent with the existing streetscape. (g) Council may require additional side setbacks to ensure adequate solar access to adjacent buildings and privacy or to minimise view loss. In particular an additional setback for the southern boundary for east-west orientated lots may be required.
Building separation is considered in cl. 2.7 Part C2 WDCP. Objectives (a) To provide visual and acoustic privacy for residents. (b) To ensure new development is scaled to maintain the desired character of the area with appropriate massing and spaces between buildings. (c) To allow for the development of smaller infill sites where existing adjacent building setbacks result in unbalanced building separation requirements.
The controls in Table 3 cl. 2.7 indicate that for buildings of a height up to 4 storeys (12m) the distance between: habitable rooms and balconies is 12m; habitable rooms/balconies and non-habitable rooms is 9m; and non-habitable rooms is 6m.
Mr McDonald is firmly of the opinion that the proposal is unacceptable in terms of side setback and building separation for the following reasons:

The existing side setbacks are about 2.2m to the north and 2.2-2.4m to the south and are thus significantly non-compliant with the 4.5m control. While he agrees that it would not be practical on such a narrow site to require strict compliance with the DCP controls for side setbacks and building separation, further encroachments are unacceptable;
In order to accommodate the additional apartments, the building envelope is "punching" further into these contained setbacks by way of the blade walls and stair access with a resulting setback of 1.2m to the north and 1.2m to the south;
Units 2 and 5 are completely reliant on openings to the side boundary for internal amenity to living areas and private open space thus creating openings opposite bedroom windows of the adjoining units to the north with the potential to result in direct noise impacts;
The centrally located units (2 and 5) have also resulted in an additional set of stairs which increases the bulk of the building towards the south;
The top level extends into the southern side setback with a glass box feature at the south-eastern corner; and
The encroachments into the side boundary setbacks interrupt the existing consistent streetscape.

Mr McDonald notes that amendments have been made to reduce the rear terrace at the upper level, and subject to screening along the northern and southern edges, the potential for overlooking has been reduced to an acceptable level. However, he maintains that the two centrally located units have limited outlook and visual amenity and unit 2 will receive less than 2 hours of mid-winter solar access to its balcony and living area.
Mr Betros is of the opinion that the side setbacks are reasonable because they are not responsible for any unacceptable amenity impacts. He notes that when compared to the existing windows on the site, the blade walls and skewed windows on the northern façade provide articulation and better orientation allowing better solar access for future occupants and provide better visual and acoustic privacy for neighbours. In particular, the blade walls at the rear protrude past any bedroom windows on the southern façade of no. 20 and face towards blank walls and the space beyond. In his view the design has been amended to specifically ensure that units 2 and 5 have a suitable level of amenity and ensure reasonable acoustic privacy for the neighbouring property.
In regards to building separation, Mr Betros states that strict compliance with the DCP would prevent any development on the site, and in any event such wide setbacks would be uncharacteristic of the immediate and broader locality. In his opinion the side setbacks achieve the intent of the objectives in WDCP. Mr Betros is of the view that the scale of development is appropriate for the site noting the 6 storey building to the rear, the four storey building to the north and, as the proposal is three storeys at the street it provides a transition to the two storey building to the south (which in his opinion is well below the permitted height limit and under-developed).
While not specifically raised in the contentions nor discussed in the joint report, in oral evidence and on site, the issue of the proposed extension of the rear portion of the lower ground floor to the northern boundary was canvassed with the planners. This extension accommodates stairs plus bin, bicycle and general storage. That portion of the northern boundary is retained by a wall which projects in part to about 2m above ground level.
Under cross-examination Mr Betros maintained that the blade walls would improve the privacy for both no. 18 and no. 20 and that the landscape treatment, by growing vines and incorporating other landscaping elements, would improve the outlook from no. 20. He also stated that the balconies off units 2 and 5, being one bedroom units are likely to have a low intensity of use and therefore unlikely to have any adverse impacts on the amenity of the neighbours. Mr Betros agreed that it is usually more traditional and better to orientate units to the north and south, but as this development proposes alterations and additions to an existing building, what is proposed by way of locating units across the width of the building achieves a better outcome than a long and narrow configuration. Mr Betros also stated that in his opinion, the architect has maximised the useability of the northern side setback by incorporating storage space below and improving pedestrian access.

Internal amenity

Contention 6 states that the development should be refused because it will not provide an adequate level of amenity for its future residents, in particular the design of units 2 and 5 in the centre of the building will have limited outlooks to the side boundaries and poorly orientated private open space and as such, does not satisfy Design Quality Principle 7 (Amenity) in SEPP 65.
Principle &: Amenity states: Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.
Mr McDonald calculates that only 3 of the 7 apartments (43%) receive two or more hours of direct sunlight to balconies off living area between 9am and 3pm on 21 June and 4/7 receive more than two hours to living rooms. He is critical of the lack of winter sun to the front two bedroom apartments as well as the need to extend the balcony of unit 2 into the non-compliant side setback in order to receive at least 1 hour of direct sunlight. He maintains his opinion that the design does not adequately address the constraints of the site and, despite the many non-compliances with controls, the proposal does not achieve reasonable or adequate levels of internal amenity to a number of apartments.
Mr Betros maintains that amendments to units 2 and 5 have addressed the concerns raised about internal amenity. They are orientated to the north with an open and uninterrupted aspect to the rear unbuilt area at the rear of the site and adjoining building and which will include current and proposed vegetation. Unit 5 will receive more than 2 hours of sunlight between 9am and 3pm on 21 June and unit 2 will receive more than 2 hours between 1.30 pm and 3.30pm on 21 June. In addition, he states that the units have windows on the south which will allow abundant light and cross-ventilation across the narrow floor plate. As discussed elsewhere, Mr Betros considers that the skewed windows and balconies ensure no unreasonable visual or acoustic impacts on neighbours and provide a better outcome than the current high degree of mutual overlooking and acoustic impacts arising from the unscreened windows that face each other (between the site and no. 20). While he agrees that the two front units won't receive direct sunlight on 21 June, Mr Betros is of the opinion that given that they enjoy three aspects, including views across to the golf course, they have an acceptable level of amenity.
While not raised specifically in the contentions, cross-examination went to the area of private open space for units 2 and 5; partly as a consequence of a proposition I put forward in regards to slightly reconfiguring the edge of the balconies to limit potential acoustic impacts from someone standing on the western corner. Mr McDonald considers that these areas are less than 10m2 as specified in WDCP cl. 2.14.2(d) and that any further reduction in area renders the space less useable. Mr Betros cites the minimum area in the Residential Flat Design Code for units such as these is 8m2 and apart from that, WDCP cl. 2.4 control (b) states that private open space is to be provided for at least 75% of dwellings.

Car parking

Council contends that there is a shortfall of one car space, and those which are provided are tandem spaces, which in council's view is unsatisfactory.
Part 8.1.1 WDCP considers car parking. The objectives are: (a) To provide car parking rates which reflect the proximity of development to existing public transport, services and the availability of on-street parking. (b) To balance the need to meet parking demand on site with the need to contain parking and promote sustainable transport. (c) To establish controls for parking that reflect the characteristics of the area in terms of urban form, land use and proximity to public transport.
The site is in Parking Zone B described as 'good accessibility to public transport and services, medium/high density and some on-street parking pressures'. The minimum requisite parking spaces for the proposed use in the parking zone is 0.4/ one bedroom unit, 1.0 for a two bedroom unit, and 1.0 for a three bedroom unit. No visitor spaces are required. Therefore the required minimum number of spaces is 4.6 if studio apartments are included; the proposal provides 4 spaces; if studio apartments are excluded the provision is 3.8 spaces.
Mr Betros states that the site is within walking distance of multiple bus stops and bus routes which link to the beach, Bondi Junction and the CBD. Mr McDonald accepts that the site is well-serviced by public transport but in his opinion reducing the number of units would achieve a reduced level of non-compliance with this control and potentially with other controls.

Landscaping

There is a dispute between the parties as whether or not the proposal provides the requisite area of landscape and deep soil landscaping specified in Part 2.12 WDCP. The definition of 'landscaped area' is "a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area".
The relevant objectives are: (a) To encourage mature and substantial tree planting to improve the amenity of developments. (b) To allow for landscaping to provide screening between buildings. (c) To ensure landscaped areas are useable and maintainable spaces that contribute to the existing landscape character of the street.
Applicable controls: (a) 30% of the site area is to be provided as landscaped area. (b) 50% of the landscaped are required in (a) above must be deep soil zone.
Mr Betros maintains that the proposal complies with the controls and in any event represents a substantial improvement from the existing situation which is mostly paved. Mr McDonald considers that the original proposal indicated 27% landscaped area but this must be reduced as a consequence of pushing the rear 'waiting area' into the rear, landscaped setback. On his calculations, the areas that comply with the definition of landscaped area amount to 20% of the site. Apart from the degree of non-compliance Mr McDonald maintains that the ability to include more landscaped area is hindered by the proposed extension of the footprint of the building into the side setbacks which in turn also hinders the capacity to achieve objective (b) above.

Submissions

Mr Patterson for the council presses Mr McDonald's overall position that: the proposal constitutes too much development on a small and constrained site; the insertion of extra units into the centre and the accompanying blade walls lead to - unacceptable intrusions into the side setback, unacceptable and unreasonable impacts on the aural and visual privacy of adjoining units at no. 20, poor internal amenity for future occupants and unacceptable bulk; and, the excessive wall height and the number of storeys obstructs views from no. 20 and sunlight to north-facing habitable windows of no. 16.
With reference to the Planning Principle: criteria for assessing impact on neighbouring properties, published in Pafburn v North Sydney [2005] NSWLEC 444 and revised in Davies v Penrith City Council [2013] NSWLEC1141, Mr Patterson stresses the fifth theme in Pafburn that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify that one that arises from a complying proposal and that neighbours have a legitimate expectation that development on adjoining land will comply with the planning regime. He submits that the applicant's position that the proposal is an improvement on what exists but relies on further contravention of the controls is unusual. As an example, Mr Patterson maintains that the non-compliant wall height and top storey will effectively remove all sunlight to the north-facing kitchen windows of units 3 and 4 at no. 16. While he accepts that the impact on views is not determinative, if the upper level complied with the requirement to be 50% of the floor below, the impact would be more acceptable.
Mr Patterson presses controls (f) and (g) in Part 2.5.2 WDCP in that variations may be permitted to side or rear setbacks where there is no adverse impact on the amenity of adjoining properties and is consistent with the streetscape. In addition, council may require additional side setbacks to ensure adequate solar access and privacy to adjacent buildings. In his submission, Mr Patterson contends that apart from the added bulk and intrusion added by the blade walls, and the unacceptable visual and acoustic impacts they will have on no. 20, these features are not characteristic of the area nor are they contemplated by the controls. In reinforcing his submission he cites Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 and the proposition that a DCP must be a focal point of the decision-making process.
In conclusion, Mr Patterson submits that the impacts and non-compliances are so unacceptable that the required changes would necessitate a complete redesign. As such an "amber light" approach would be inappropriate in the circumstances and the development application should be refused.
Mr Eastman for the applicant prepared detailed written submissions in which he applies the themes common to the relevant Planning Principles which consider the impact of a proposal on neighbouring properties; in summary:

How does the impact change the amenity of the affected property? What is lost/ what is retained?
How reasonable is the proposal causing the impact?
How vulnerable is the affected property to the impact? Would it require the loss of reasonable development potential to avoid the impact?
Does the impact arise out of poor design? Could the development potential/ amenity of the proposal be achieved while reducing the impact?
Does it comply with the planning controls? If not, what impact arises from the non-complying elements?

In regards to the impacts raised by council of visual bulk, overshadowing and view loss arising from the principal elements of wall height, side setbacks and building separation, Mr Eastman submits that when assessed in the light of these themes and pressing Mr Betros' evidence: there are no demonstrable impacts of bulk as stated by Mr McDonald, the view loss is negligible, and the loss of sunlight acceptable especially given the room layout and the nature of the windows affected; the proposal is reasonable as it complies with the height and FSR controls; both adjoining properties are vulnerable but the proposal has been specifically designed to respond to the challenges of the adjoining buildings, in particular the privacy of no. 20 and of the site, and is an overall and demonstrable improvement in the current situation; and although there are a number of non-compliances with the controls, some of which could not reasonably be achieved, the impacts arising from them are negligible.
Mr Eastman contends that the proposal achieves objective (a) in cl. 2.3 Part C2 WDCP, that is, it responds to the desired scale and character of the street and local area. In citing the Planning Principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Mr Eastman maintains that the desired future character is expressed by the R3 zoning, height and FSR controls and the area currently comprises mostly multi-dwelling housing. He asserts that the there are no unreasonable physical or visual impacts, and the building will easily exist in harmony with its surroundings. Mr Eastman considers the projections of the blade walls are minor and the side setbacks would be predominantly retained.
In respect of the internal amenity, Mr Eastman notes that council's contention only considers units 2 and 5 and that the originally designed units, which have since been improved by amendments to their design, were supported by council staff and the design review panel. Mr Eastman also notes the council officer's support of the shortfall in parking for a number of reasons and Mr Betros' evidence on the proximity of the site to public transport. In considering landscaping, Mr Eastman cites the cover sheet on the plans which he contends demonstrates compliance with the landscape controls and that the area of deep soil planting exceeds the minimum requirement. Overall, both qualitatively and quantitatively, he submits that the proposal is a significant improvement on the current situation.

Findings

Having regard to s 79C(1) of the EPA Act I make the following findings.

Height - bulk, solar access, view loss

It is common ground that the development complies with the development standard for height of buildings in cl. 4.3 WLEP however council presses the non-compliance with the external wall height control in cl. 2.3 Part C2 WDCP as well as the storey control for the midsection of the building. Council's concerns go to resulting unacceptable impacts on visual bulk, character, overshadowing, and view loss.
With the benefit of the plans, the site inspection and the expert evidence, I am persuaded by Mr Betros' evidence that when viewed from Military Road, the building will present as a compliant three storeys that is consistent with the character of the streetscape and will provide a degree of transition in height from no. 20 to no. 16. While the flat roof form was raised by one of the objectors as being out of character in the North Bondi Character Area, this was not raised by council in its contentions. In this regard flat roof forms are not uncommon in the vicinity and the clerestorey roof form is a partial pitch.
The non-compliance with both wall height and number of storeys arises principally because of the moderately steep fall of the land to the rear and the retention of the existing lower ground floor parking under the present building. The area of non-compliance is a diagonal slice through the rear two thirds of the upper level and includes the clerestorey roof. Although Mr Betros raised the attic controls in cl. 2.3 Part C2 WDCP and the council did not, I understand the point he was making in that the DCP anticipates height above the maximum wall height. In determining whether the attic/ extra storey controls should be applied, the impact of the non-compliant portion must be assessed.
I note the comments by council's assessing officer in the Report to the Waverley DAP p. 16 that "the departure [from the wall height control] is considered to be acceptable given the topography of the site and the attempt by the applicant to reduce the height by stepping [the] second floor back at the rear to align with the existing building line."
Based on the expert evidence and on the approach in Tenacity I am satisfied that the impact on views from no. 20 will be relatively minor and does not constitute a reason for refusal. I accept Mr Betros' analysis that the principal views from affected units are towards the city, the affected views are from bedrooms and not living rooms, and the views are across side boundaries. The majority of the building is well below the maximum permitted height. I also note the very detailed and informative analysis of potential view loss included the DAP report pp. 16-22 which concludes: Whilst it is acknowledged that there would be a view loss impact for the neighbouring property in question, it is still considered that the proposal is reasonable and that any development of the subject site would likely result in view loss impacts for the objector's properties, which would impact views currently obtained across the side boundary and roof of the building on the subject site.
Similarly in regards to the impact on solar access to the north-facing windows of the top level units of no. 16, the shadow diagrams show that those windows will not receive the solar access they currently have the benefit of at midday. However, in extrapolating the shadow cast along the northern elevation at 12.00 pm by the rear and wall height-compliant portion of the proposal (and not allowing for any roof form), it appears to me that all but a very small portion of the windows would be in shadow. The shadow diagrams for the proposal at 3.00 pm show the kitchen windows, being the only windows of 'habitable' rooms, receiving full sun. Given that the principal living areas of these units are assumed to be at the eastern and western ends of the building, I agree with Mr Betros' overall opinion and his application of the relevant steps in The Benevolent Society (at [35] of this judgment) that the impact on solar access is acceptable in the circumstances. While the proposal does not strictly comply with control (c) in cl. 2.15 Part C2 WLEP, I find the objectives are otherwise achieved and impact on solar access to no. 16 should not be a reason for refusal.
The remaining area of disagreement between the planners is whether the building is too bulky as a consequence of the wall height. Mr McDonald is firmly of the opinion that when combined with the incursions into the already non-compliant side setbacks, the overall building is excessively bulky and a much smaller development would be more appropriate. On the evidence and with the benefit of the site inspection, I am not convinced that this building will be perceived as excessively bulky or, as considered above, out of character with the streetscape. The proposal complies with the FSR controls. While Mr Patterson described this control as a 'blunt instrument' it is nonetheless a fundamental development standard in WLEP. I agree with Mr Betros that when viewed from Military Road it is unlikely that the building will be perceived as excessively bulky given it is generally consistent with other nearby built forms. While not discussed during the hearing but based on the plans, I consider that the northern elevation is articulated and softened with various landscape elements. While there is no landscaping along the southern elevation because of the driveway, there is some articulation. Overall, I find no reason to dismiss the application on the grounds of excessive height; nor do I find that the attic/extra storey controls should be applied in this instance.

Side setbacks, building separation, aural and visual privacy, internal amenity

It would seem to me that the most contentious element of this application is the projection into the northern side setback of the two proposed blade walls, and to a lesser extent, the projection into the southern side setback of part of the two staircase walls. Apart from the contribution to building bulk, visual impact and the uncharacteristic nature of the blade walls, council's main concerns go to the potential impact on the aural privacy of bedroom windows to the north at no. 20.
In the circumstances of this site and being a proposal for alterations and additions to an existing block of flats in an area characterised by relatively narrow side setbacks established many years ago, in my view any attempt to press the current side setback and building separation controls would be unreasonable and prevent any practical development on the site. To some extent this is acknowledged by Mr McDonald and council's submissions.
As considered above, I agree with the applicant that the visual impact of the blade walls and the staircase projections from the street will not be so out of character as to require refusal. The visual impact from no. 20 will be softened by the provision of landscaping - vines and planter boxes. Mr McDonald acknowledges that the impact of the projections of the staircases is relatively minor but nonetheless undesirable.
In regards to the blade wall projections to the northern bedroom of units 1 and 4, I agree with the applicant that this will provide better visual and aural privacy for occupants of those units and for the occupants of no. 20. The orientation of the window and the outlook onto landscaping/ the golf course provides reasonable internal amenity to those rooms.
The more problematic elements are the two areas of private open space of units 2 and 5 and the proximity of them to bedrooms at no. 20. Mr Betros' evidence is that: the angle of the walls will project noise away from the adjoining property; the area is small and services a one bedroom apartment; as the end of the blade wall projects past the nearest bedroom windows, the risk of overlooking is minimised; and, the result improves the current situation. Mr McDonald remains concerned that allowing further penetration into a narrow side setback will have unacceptable noise impacts and the size of the space does not provide an adequate area of private open space for those units.
Having heard the evidence and reviewed the plans, I am satisfied that the blade wall and areas of private open space are acceptable on the basis of visual privacy and amenity as per SEPP 65. In regards to the potential noise impacts, during the hearing I asked the parties to consider some alteration of the angle of the balustrade in order to limit the chances of noise projection from anyone standing at the western end of the balcony. After reviewing the plans, I note that where it abuts the new splayed wall of the extension it provides a space of only 400mm. In the absence of any acoustic evidence, and considering the matters as summarised by Mr Betros above, I am satisfied that the likelihood of noise disturbance from this area is not so unreasonable as to warrant refusal of the proposal. However, in order to minimise the risk, a noise attenuation standard or other acoustic treatment should be applied to the blade walls of units 2 and 5 where they form the outer wall of the areas of private open space as well as acoustic treatment of the floor or ceiling of those areas of private open space. These elements should be included in draft condition of consent 16.

Landscaping

The landscape plans show a substantial area of deep soil planting at the rear of the site and embellishment of the front setback. This is a significant qualitative and quantitative improvement on the current situation which is virtually devoid of landscaping.
The experts disagree on the numerical compliance. The plans indicate compliance but Mr McDonald considers there is a shortfall, possibly based on the interpretation of the definition of landscaped area and the areas of landscaping best described as 'on-structure' landscape above the extension of the lower ground floor at the rear on the northern side. While the definition was not debated by the parties' advocates, in my view, in the circumstances of this site being alterations and additions on a sloping and constrained site, the use of planter boxes and on-structure landscaping is appropriate. This is contingent on there being sufficient depth of drained soil and adequate soil volumes to ensure the establishment and long term achievement of the desired outcome as envisaged by the landscape plans. This was discussed during the hearing. Apart from planter boxes on the northern elevation which directly benefit 5 of the 7 units, the use of vines on wires up the blade walls will soften the visual impact of the proposal from both the street and the units at no. 20. Overall, I am satisfied that the proposed landscaping meets the relevant objectives in cl. 2.12 WDCP (see [62]).
In conclusion I am satisfied that the proposed development should not be refused on the basis of landscaping.

Parking

It is common ground that the site is well-serviced by public transport. I note the council officer's assessment of the previous version of this proposal where a shortfall of two parking spaces was considered acceptable and a reasonable compromise in the circumstances of the proposal being for alterations and additions, allowing for a 6m rear setback and landscaping, and by providing additional bicycle storage. While the proposal does not meet the numerical controls, I am satisfied it achieves the relevant objectives in cl. 8.1.1 WDCP provided in [58].

Objectors' issues

As discussed above, I do not find the proposal to be inconsistent with the North Bondi Character Area. Clause 2.1.2 Part C2 WDCP describes "the predominant building stock as characterised by minimum side setbacks, consistent front setbacks and building frontages to the street whether the building type is apartments or semi-detached dwellings. Roofs are predominantly pitched and red tiled…" Apart from the partial projections into the side setbacks, the front and side setbacks remain and the clerestory roof is a partial pitch. There are several nearby examples of older and more recent flat roof forms. I accept Mr Eastman's submissions on character as assessed in Project Venture.
In considering the issues raised by the objector at the rear of the property and potential loss of his view of the golf course and a particular tee from his bedroom and bathroom windows, and possible noise from the turntable. In applying Tenacity, the view, while important to the resident, is observed from narrow angles in rooms which are not living rooms. It is likely that some view of the golf course will be retained and the overall outlook improved through the replacement of concrete hardstand with landscaping. The rear setback is compliant. Any noise from any mechanical plant will be subject to council's noise control conditions, and as the number of car spaces is limited, it is unlikely to be a significant source of noise.
The other issues summarised at [27] have been addressed.

Conclusions and orders

The evidence before the Court indicates that this proposal has been amended and refined in response to feedback from council staff. As considered in Zhang, I have made the DCP the focal point of my consideration and taken into account both the numerical controls and the objectives. While there are a number of numerical non-compliances, some of which could not reasonably be complied with, overall I am satisfied that the relevant objectives are met.
Therefore, having considered the matters under s 79C, the evidence and submissions, I find that the appeal is capable of being upheld and Development Application No. DA-306/2014 for alterations and additions to an existing residential flat building at 18 Military Road, North Bondi can be approved subject to conditions of consent which include the acoustic measures discussed in [86] of this judgment.

Directions

The parties are directed to agree on the wording of an appropriate clause to be included in draft condition of consent 16 and to file with the Court both a hard copy and an electronic copy of the agreed conditions in word.docx format by the close of business 14 December 2015. Final orders will be made in chambers.

Orders

The parties complied with the directions made on 9 December 2015. Subclauses (f), (g) and (h) have been added to Condition 16 requiring further acoustic treatment of the areas of private open space of units 2 and 5.
As a consequence, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA-306/2014 for alterations and additions to an existing residential flat building at 18 Military Road, North Bondi is approved subject to the conditions of consent in Annexure 'A'. 3. All exhibits except 2 and B are returned.

Judy Fakes Commissioner of the Court 10341 of 2015 Fakes (C) (230 KB, pdf)

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: 17 December 2015

(2001) 115 LGERA 373

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