Gergely & Pinter Architects Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2013-05-16

Mr S Patterson Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10129 of 2013

Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application (DA119/2012/1) by Woollahra Council (council) for alterations and additions incorporating an additional storey to the flat roof of an existing dwelling house at 4 Fisher Avenue Vaucluse (site). 2The key issues in dispute are the impact of the proposed development on views from nearby properties and the extent of privacy measures to limit overlooking.

Site and locality 3The site is located on the western side of Fisher Avenue with a frontage of 20.845m, depth of 53 m, site area of 996sqm and a fall of approximately 5m from street level towards the west. 4A two storey dwelling house, viewed as a single storey building from Fischer Avenue, occupies the site. A one metre high parapet surrounds a roof deck with a 2.6 m high stairwell providing access. 5The area is characterised by a variety of one, two and three storey dwellings of varying styles and periods on medium to large sized allotments. Several dwellings in the near vicinity of the site are heritage listed. Western views are obtained to Sydney Harbour, including to the Harbour Bridge, Opera House, city and North Shore as well as views to the south towards Rose Bay, Point Piper and Elizabeth Bay.

Proposal 6The application involves the construction of a third storey with flat roof centrally located above the existing dwelling. The areas around the addition would be used as a terrace incorporating the existing parapet as balustrading. 7The applicant was granted leave during the hearing to amend the proposal to reduce the length of the proposal by 380mm and delete the pergola in order to comply with the height control in Woollahra Local Environmental Plan 1995 (LEP). The amended plans also provided a one metre high railing on the southern side of the addition to prevent access to this part of the roof terrace to limit overlooking of 6 Fisher Avenue. 8The amended application is for an additional storey setback from the existing balustrade of the roof terrace. The storey is 17.18m x 9.71m and provides 164.65sqm of additional floor space. The overall increase in height above the existing balustrade at the street frontage is 1.635m. The stairway that currently provides access to the roof would be internalised and the entire area used as additional living area with a bar area and bathroom incorporated at the eastern end of the room. Large sliding doors are proposed on the western and part of the southern façade of the room to take advantage of the views to the harbour. The windows and doors on the northern facade are proposed to be obscure.

Planning Framework 9The site is zoned 2(a) under the LEP and is within the Harbour Scenic Foreshore Area. The development is permitted with consent. 10The LEP, in clause 2(2) contains a number of objectives for development including, in relation to the area's foreshores and the harbour foreshore scenic protection area, the following subclause: (h)(iv) to consider the impact of development on the views of Sydney Harbour enjoyed by existing residents and promote the practice of view sharing, 11The objectives of the 2(a) zone are: (a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses, (b) to allow certain non-residential development of low intensity which is compatible with the residential character and amenity of the locality, (c) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and (d) to protect the environmental attributes of the coastal and foreshore lands. 12Clause 12AA contains the following objectives for the maximum building height development standard: (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings, (d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing, (e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes. Note. The maximum permissible building height is not "as of right". To achieve the maximum permissible building height, development must satisfy other relevant controls applicable to the land concerned. 13Clause 12 contains height controls and the height control for the site as shown on the relevant map is 9.5m. The development is 9.5m high so complies with this development standard. 14The site is within the vicinity of two heritage items. No 1 Fisher Avenue, located on the opposite side of the street, contains a heritage listed dwelling, stone works, gardens and Scribbly Gums. No 6 Fisher Avenue, adjoining the site to the south, contains a heritage listed Sydney Pink Gum. Clause 27 of the LEP provides: The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage item group, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity. 15Woollahra Residential Development Control Plan 2003 (RDCP) applies to the site and includes objectives in Part 1.4: (a) to facilitate housing in a way that reflects desired future character objectives for precincts; (c) to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties; (g) to conserve the natural, built and cultural significance of identified heritage items and heritage conservation areas; 16The site is within the Vaucluse West Precinct and the desired future character (DFC) objectives include: O 4.13.1 To retain the scenic qualities provide by the dramatic topography, natural vegetation and low scale built elements that provide an attractive setting on Sydney Harbour; O 4.13.5 To maintain the evolution of low rise residential building styles through the introduction of good contemporary buildings. 17C4.13.5 of the RDCP provides: Development conforms to the requirements detailed in the annotated street section (below) indicating the existing landscape and street context and illustrating the desired future character. 18The street section relevantly includes: C4.13.5.3 - Building Height - Storeys Development is to have a maximum height of two storeys. Where the landform of a site falls more than two metres from the street to the rear of the property an additional basement storey may be permitted providing that all other RDCP Controls are met (note: the maximum height of development - in metres- is determined by the height controls in Woollahra LEP 1995) C4.13.5.8 - Roof Form Roof forms are to be designed having consideration for neighbouring amenity, overlooking streetscape suitability and to maintain views across the precinct. 19Part 5 of the DCP contains general controls. The objectives in Part 5.2 for Building size and location include: O 5.2.2 To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents. 20A maximum FSR of 0.55:1 applies to the site. The existing dwelling has a FSR of 0.71:1 and the proposed development will result in an additional 164.65sqm of gross floor area, thereby increasing the FSR to about 0.87:1. 21Part 5.5 of the RDCP provides for consideration of Views and has objectives including: O 5.5.2 To encourage view sharing as a means of ensuring equitable access to views from dwellings. 22The RDCP defines view sharing as: "View sharing" concerns the equitable distribution of views between properties. The RDCP's view sharing controls seek to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties. 23Performance criteria in relation to private views are contained in C.5.5.6 and require: Building forms enable a sharing of views with surrounding residences, particularly form the main habitable rooms of those residences. (see Figure 5.5.2) 24Similar controls apply to preserve acoustic and visual privacy and are contained in Part 5.8 of the RDCP and apply to all habitable rooms. In addition, balconies, terraces, decks, roof terraces and other like areas within a development are to be suitably located and screened to prevent direct views into habitable rooms (including bedrooms) or private open space of the adjoining and adjacent dwellings (C5.8.6).

Evidence 25A conciliation conference under s 34AA of the Land and Environment Court Act (LEC Act) was held on site. The parties did not reach agreement and the conciliation conference was terminated and a hearing held forthwith. The parties agreed that the evidence heard onsite and the view could be evidence in the hearing. 26The Court visited 1 Fisher Avenue and 22 Wentworth Road and heard from the owners of these properties whose principle concern was the loss of views. The owner of 6 Fisher Avenue provided evidence in Court. He accepted that the proposed balustrade would limit overlooking of his living area but considered it should be extended the full length of the western roof terrace to prevent overlooking to his swimming pool. 27Mr D Booth, for the council, and Mr G Shiels, for the applicant, provided planning evidence. Views 28Mr Booth and Mr Shiels assessed the views from 1 Fisher and 22 Wentworth Road against the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. They agreed that the impact on the views from inside the house at 1 Fisher Street would be negligible and that the iconic views of the Harbour Bridge, the Opera House and the North Sydney Skyline would be retained from the outdoor areas. However, Mr Booth considered that overall the view loss to 1 Fisher Avenue would be moderate due to the limited views available from its internal living areas and the extent of view loss to the outdoor private open space which provides considerable amenity and utility to the owners of the property. 29The experts agreed that the impact on views from the internal living areas of 22 Wentworth Road, in either a sitting or standing position would be minor with the blinds to the western windows up and moderate with the blinds down or in a horizontal position. The view impact from the outdoor terrace and pool area was agreed to be moderate and that the iconic view to the harbour bridge would be retained. 30Mr Booth and Mr Shiels disagreed on the reasonableness of the view impacts. Mr Booth accepted that the dwelling conforms to the street context and the DFC. However, he considered that given the substantial floor space ratio (FSR) non compliance (331.4sqm) and the associated non compliant third storey, the moderate view impacts upon 1 Fisher Avenue and 22 Wentworth Road are unreasonable. 31In Mr Shiels opinion compliance with the height limit of 9.5m in the LEP is the relevant consideration in assessing the reasonableness of the view loss rather than the number of storeys or FSR controls in the DCP. The 'basement' level responds to the slope of the land and with the proposed addition, the dwelling would appear as two storeys when viewed from the street. The dwelling is consistent with the desired future character sought by the Vaucluse West Precinct controls under the DCP. There are numerous examples of dwellings which exceed the FSR guidelines as well as three storey dwelling in the immediate locality of the site.

Submissions 32The key difference between the parties is whether the view loss results from a complying or a non complying development. Mr Hemmings, for the applicant, submits that the proposal complies with the height limit in cl 12 of the LEP and is a form of development that is consistent with the DFC for the Vaucluse West Precinct, being two storeys when viewed from the street frontage. The controls in C4.13.5.3 permit a basement storey below street level which results in an overall three storey form of development. 33Further Mr Hemmings submits that as the dwelling is of a bulk and size which is consistent with the existing and desired future character for the Precinct, the non compliance with the numerical FSR control is justified. In his submission, the existing buildings in the area exceed the FSR control with numerous examples of three storey dwellings. 34Mr Hemmings also submits that the view loss is acceptable as it results from a form of development that is consistent with the DFC. The view sharing controls in C.5.5.6 of the RDCP require a consideration of views principally from 'main habitable rooms' and Figure 5.5.2 illustrates that the views to be shared are those between buildings. 35In Mr Hemming's submission, the view loss from 22 Wentworth Road should be assessed with the blinds to the west facing window open or at the horizontal as this window provides extensive views to the harbour which should not be discounted because the current occupants close the blinds for privacy and to limit the western sun. On this basis the experts have agreed that the view loss from the main habitable rooms in both 1 Fisher Avenue and 22 Wentworth Road is minor. From the outdoor areas of both properties the iconic views are maintained. While there may be moderate impacts from specific locations, it is the impact on views overall that must be assessed and for both dwellings acceptable view sharing is achieved. 36Mr Patterson submits the achievement of a basement (third storey) is dependent upon compliance with the other RDCP controls, including FSR. The floor space in the additional level increases the non compliance with the FSR control and is not justified given the view impacts. The applicant's reliance on compliance with the height control is also not a reason to justify the proposal as it is a maximum control and its achievement is dependent upon meeting the objectives of the control including to minimise the impact of new development on exiting views of Sydney Harbour. It is not "as of right' and must also satisfy other relevant controls. 37Mr Patterson referred to the principles in Tenacity as well Pafburn v North Sydney Council [2005] NSWLEC 444 and Super Studio v Waverley Council [2004] NSWLEC 91. He stated that the common theme in these judgments is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it and whether the impact arises from a non compliance with the planning controls. 38In Mr Patterson's submission, the applicant already has extensive living areas and a large roof terrace with magnificent views. The proposal will result in the loss of water and land water interface views to both 1 Fisher Avenue and 22 Wentworth Road which in Mr Booth's opinion will be moderate. Given that the proposal does not comply with the FSR and storey control and that an additional living area of the size proposed is not reasonable or necessary, it therefore follows that appropriate view sharing is not achieved. Findings 39I accept Mr Patterson's submissions. The proposal provides an additional living area with a small bar and bathroom with an area of 164.65sqm. The dwelling already has extensive living areas on both the basement and first floor level as well as a large roof terrace. The house has extensive and uninterrupted views of the harbour, as does 22 Wentworth Road and, to a lesser extent, 1 Fisher Avenue. 40I accept that the view loss to the living areas of both 22 Wentworth Road and 1 Fisher Avenue is minor. However, I do not accept that the view loss should be limited to the internal living areas and that the views from the open space is also important, particularly if this is the primary area of open space. Nor do I accept that the views to be retained are only those between buildings and those over buildings are also important and are to be shared. The impact on the open space areas of both properties is agreed by the experts to be moderate. While the iconic views are maintained, the panorama of water views and, in some cases land water interface, are reduced. 41The impact is greatest from 1 Fisher Avenue, which has its primary area of open space with its outdoor dining area, lawn and swimming pool to its north and directly opposite the proposal. The views to the harbour are framed through a narrow corridor and while the distant views to the Harbour Bridge, the Opera House, North Sydney and the City are maintained the near ground views to the Harbour and Bradleys Head land water interface are lost from both a seated and standing position from the eating area and the lawn. I accept that a two storey form of development is consistent with the existing and desired future character for the area. However, the loss of views is not reasonable given the size of the addition, and the dwellings non compliance with the FSR control. 1 Fisher Avenue is a heritage item, and consequently the views from its garden and setting gain extra importance. 42Further, the view analysis undertaken by the applicant does not include 1 Fisher Avenue or 22 Wentworth Road and does not demonstrate whether changes to the design could reduce and minimise the view loss to an acceptable level. While I understand the desire to have a living area associated with the roof terrace, I do not accept that it is necessary or reasonable to provide such an extensive area. A significantly smaller living room, which is located behind the existing stair access with a limited east -west depth may be able to minimise the impact and views and achieve acceptable view sharing. 43For these reasons, the proposal does not encourage view sharing to ensure equitable access to views from the site as well as 1 Fisher Avenue and 22 Wentworth Road and the application must fail. Privacy 44The impacts of the development on the privacy of 6 Fisher Avenue, would not be a reason to refuse the application given that the roof terrace already exists. The intensification of use for daily residential activity would not increase the potential for overlooking. The primary outlook from the roof terrace is towards the view and while overlooking of the swimming pool of 6 Fisher Avenue may occur on an occasional basis, the area is one in which there is a degree of mutual overlooking and this impact is not unreasonable.

Orders 1.The appeal is dismissed. 2.The development application (DA119/2012/1) for alterations and additions incorporating an additional storey to the flat roof of an existing dwelling house at 4 Fisher Avenue Vaucluse is refused. 3.The exhibits, except Exhibits 2, A and B may be returned. Annelise Tuor Commissioner of the Court

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 May 2013

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