Hanton v City of Sydney Council

CASES CITED: Parsonage v Kur-ring-gai Council (2004) NSWLEC 347 Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 03/12/2008 and 04/12/2008

APPLICANT Mr J. Robson, SC Instructed by Mr G. Farland of Landerer & Company LEGAL REPRESENTATIVES:

RESPONDENT Ms H. Irish, barrister Instructed by Ms C. Rose of Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10924 of 2008 Kerrie Hanton v City of Sydney Council

JUDGMENT 1 This is an appeal against the refusal by the Council of the City of Sydney (the council) of a development application (D/2007/880) under Environmental Planning and Assessment Act, 1979 (the Act) for alterations and additions to a residential flat building, known as Deepdene, at 110 Elizabeth Bay Road, Elizabeth Bay (the site).

2 The application includes an additional level to the existing penthouse on level six with a sculptural roof form and an outdoor terrace and a glass windbreak to the existing terrace on level two.

3 The key dispute between the parties is whether the additional level has an acceptable impact on the residential amenity and heritage significance of Tresco (97 Elizabeth Bay Road) and its harbour setting, which is a heritage item. The site and its context 4 The site is an irregular shape with an area of 720.2 square metres. It contains a seven-storey residential flat building set above a podium parking level. The building was constructed in 1970, and was designed by the architect Stuart Murray.

5 The site adjoins Tresco to the east. A residential flat building known as Oceania (100A Elizabeth Bay Road) is to the north of the site. There are other residential flat buildings to the west (106 and 104 Elizabeth Bay Road).

6 Ashton (102 Elizabeth Bay Road) and Kincoppal (93 Elizabeth Bay Road) are Victorian mansions near the site which are heritage items.

7 The site is highly visible from the harbour. Planning framework 8 The site is zoned Residential 2(b) Medium Density under South Sydney Local Environmental Plan 1998 (LEP 1998). The development is permissible with consent.

9 The objectives of the zone in cl 12(1) includes: (c) to ensure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment. 10 Tresco, Ashton and Kincoppal are listed as heritage items under LEP 1998. Deepdene is not a heritage item but is within the Elizabeth Bay Conservation Area and is listed as a contributory item under the City of Sydney Heritage Development Control Plan 2006 (Heritage DCP).

11 Deepdene is identified by the Royal Australian Institute of Architects on its inventory of Twentieth Century Building of Significance, which is a non-statutory listing. 12 South Sydney Development Control Plan 1997- Urban Design (DCP 1997) applies to the site. Part E of DCP 1997 includes provisions for floor space ratio (FSR) (2.2), height (2.3), visual and acoustic privacy (4.1) and solar access (5.1).

13 The parties disagreed whether State Environmental Planning Policy No 65 (SEPP 65) was relevant. Mr Robson SC, for the applicant submits that, regardless of whether it applies, the proposal meets the requirements of SEPP 65.

14 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 is also relevant although not in dispute. Evidence 15 The Court visited the site and heard evidence from residents, including Mr and Mrs Waterhouse, the owners of Tresco and Ms M Osmond of 66/106 Elizabeth Bay Road.

16 The principal concerns of Mr and Mrs Waterhouse related to the impact of the proposal on the amenity of their property, in particular overshadowing of the west-facing rooms and terrace, privacy impacts of overlooking from the additional level and from the terrace on level two, as well as the impact on the view of Tresco from the water.

17 Ms Osmond was concerned about the privacy impacts of increased overlooking to her bedroom and terrace area. The other residents shared these concerns regarding the impact on Tresco, particularly when viewed from the water, as well as the impacts on the conservation area. They considered a proposal that increased the height and floor space of the existing building to be inappropriate as the existing building already exceeded the planning controls. 18 The Court heard expert planning evidence from Mr K Nash, for the council, and Mr R Chambers, for the applicant. Mr G Brooks, for the council and Mr R Staas, for the applicant, provided expert heritage evidence. Mr R Goodwin, the architect of the proposal, provided a Statement of Design Intent and answered questions. A joint report was prepared by Mr S King for the council and Mr J Mills, for the applicant, on the extent of overshadowing. Mr S King also answered questions on site in relation to overshadowing of Tresco.

Heritage 19 The key disagreement of the heritage experts was whether the proposed rooftop addition would adversely impact on the setting of Tresco from the harbour.

an integral component of the visual setting of Tresco when viewed from the harbour. The proposed rooftop addition with its demanding 'look at me' architectural and artistic intentions will detract from the visual status of Tresco, thereby unacceptably impacting on its significance and its setting. 21 Further, Mr Brooks considered that the:

proposal virtually ignores the inherent qualities of the host building, seeking to complete it by carrying it forward to new heights of artistic and architectural expression. 22 Mr Staas considers that Tresco is:

largely self-contained and does not rely on any of the surrounding development for its identified significance or its immediate visual setting. While the later buildings are within the wider common visual catchment, they are not critical to the appreciation of the remnant characteristics of Tresco. 23 Further Mr Staas states that views of Tresco

from the water are much lower than views to the tops of the surrounding residential towers, including Deepdene and the proposed additions will not compete in any visual appreciation of the heritage item or its garden setting that extends down to the harbour's edge. 24 Mr Staas considers the addition integrates with the existing building and has the support of the original designer, other eminent architects and council staff. 25 Mr Staas and Mr Brooks also held different opinions about the impact of the rooftop addition on the Elizabeth Bay Conservation Area. Mr Brooks considers Deepdene to be a prominent building when viewed from Elizabeth Bay Road and the conservation area. He stated that the proposed addition would compete for attention and have an adverse impact on the integrity and composition of the conservation area.

26 Mr Staas considers the conservation area to have buildings of mixed architectural quality and the proposed addition is an "outstanding contribution" to the conservation area.

Findings 27 The proposed rooftop addition has been commissioned by the original architect of Deepdene and designed by a prominent architect and artist. The proposal was reviewed by the council's Design Advisory Panel who regarded the proposal to be acceptable as having "minimal impact on the surrounding environment and in particular the design demonstrating design excellence in its conceptual approach".

28 The addition was supported by council staff, including council's heritage specialist, who noted that the rooftop addition:

has been designed as a contemporary sculpture element which is appropriate for the form of the existing building with minimal impact on the heritage items in the vicinity, including Tresco and the conservation area as a whole. 29 I accept Mr Staas's evidence that the rooftop addition is integrated with the original building. It is below the height of the lift motor room and is set back to the north. While it is clearly a sculptural element on the top of the building, I do not consider that its size, height, scale or materials are such that the proposal will compete for attention with Deepdene, Tresco or the conservation area to an unacceptable level.

30 The State Heritage Inventory Listing for the Elizabeth Bay Conservation Area recognises the different phases of development of the area of marine villas and apartment buildings. It states that:

Despite the intrusive nature of later high-rise towers whose impact is disproportionate to their proportion of built area, the area provides a highly cohesive character although the towers visually dominate the background of low-scale streetscapes. 31 Apartment towers dominate the context of Deepdene and Tresco. Within this context, the relatively small addition of (approximately 43 square metres) will not adversely impact on the conservation area. From Elizabeth Bay Road, the existing lift motor room largely screens the addition. The addition will be visible from the water, but within the context of much larger structures of surrounding buildings. 32 Deepdene and other residential towers, also dominate the setting of Tresco, when viewed from the water. While the proposal will be visible within the wider setting of Tresco, it will not compete for attention or dominate the setting to an extent that would adversely impact on the heritage significance of Tresco or its setting. The primary setting from the water of the house and its garden setting, dominated by the large fig tree, will be unaltered by the proposal.

Amenity impacts - FSR and height 33 The key disagreement between Mr Chambers and Mr Nash was whether the proposed addition would have an acceptable overshadowing impact on Tresco and privacy impact on Ms Osmond's apartment.

34 The difference of opinion centred on the proposal's non-compliance with the FSR and height controls in DCP 1997.

35 Section 2.2 of DCP 1997 specifies a maximum FSR of 1.5:1. A bonus FSR of up to 0.25:1 may be available for public domain improvements. The existing building has an FSR of 1.58:1. The proposal will result in an FSR of 1.648:1. 36 Section 2.3 of DCP 1997 specifies a maximum height control of 18 metres to the ceiling. The existing building height is 25.78 metres to the ceiling and 29.91 metres to the top of the lift motor room. The proposed ceiling height is 29.52 metres.

37 Mr Goodwin considered the proposal to be public art and eligible for the bonus FSR and that it would therefore comply with the FSR controls. Mr Nash and Mr Chambers agreed that the proposal should not be assessed under the bonus FSR provisions, but disagreed whether the variation to the FSR and height controls was acceptable. 38 Mr Nash considered that a variation was inappropriate as the proposal did not meet the objectives or performance criteria of the controls due to its bulk and adverse overshadowing and privacy impacts on adjoining properties. 39 Mr Chambers held the contrary view, considering the amenity impacts to be minor and that the proposal was of acceptable height and bulk relative to the existing residential tower buildings and its context.

Amenity impacts - overshadowing 40 In response to the concerns raised by Mr King, Mr Mills prepared a 3-D overshadowing model at half-hourly intervals to quantify the overshadowing impact on Tresco throughout the winter period. Mr Mills and Mr King agreed that the impacts would be likely to meet the "baseline" overshadowing controls in DCP 1997 and that the "relevance of identifying the small but not negligible periods of additional overshadowing….. is to allow an assessment of any loss of amenity".

41 Mr Nash and Mr Chambers agreed to the extent of additional overshadowing of Tresco, but disagreed on the amenity impacts. Mr Nash's principal concern was the loss of solar access in July to the three upstairs windows in the southern wing. These windows currently receive about an hour of sunlight between 12.30 and 1.30. The proposal will reduce this to approximately half an hour. Mr Nash considered the loss of about 50% of available direct sunlight to be an unacceptable amenity impact. Mr Waterhouse shared this view. Mr Nash was less concerned about the terrace and other rooms as they received more sun, particularly those with north-facing windows, and therefore the impacts and loss of amenity were less. 42 In Mr Nash's opinion, the overshadowing impact did not meet the principles established by Senior Commissioner Roseth in Parsonage v Ku-ring-gai Council (2004) NSWLEC 347 and Pafburn v North Sydney Council [2005] NSWLEC 444. In particular, Mr Nash considered that the impact was unacceptable when balanced with the necessity and reasonableness of the proposal and also that the impact arises from a proposal that does not comply with the planning controls.

43 Mr Chambers considered the loss of solar access to be minor and that it would result in little impact on amenity. The rooms impacted are guest bedrooms and a second window to a child's bedroom. He stated that the overshadowing controls in DCP 1997 and the principles in Pafburn and Parsonage refer to overshadowing of principal living areas and north-facing windows. The minimal increase in overshadowing will not impact on the overall amenity enjoyed by the property, which has a north-facing aspect and numerous rooms which enjoy good solar access and are unaffected by the proposal.

Amenity impacts - privacy 44 Mr Nash and Mr Chambers considered the privacy impact on Tresco as a result of the proposed windbreak to the level two terrace to be acceptable. This area is already used as a terrace and the windbreak will not alter or intensify this use.

45 The experts also agreed that the louvres and planter boxes proposed to screen the rooftop addition and terrace would achieve acceptable privacy impacts to Tresco.

46 Following the site visit, Mr Nash was concerned about the privacy impacts on Ms Osmond's bedroom and terrace area, which will be overlooked by the living area and terrace area of the proposal. Mr Chambers considered the privacy impacts to be acceptable due to the separation distance of some 30 metres and that Ms Osmond's property is already overlooked by Deepdene and other properties, in particular Oceania. This building is closer and has numerous west-facing balconies which overlook Ms Osmond's property and which she in turn overlooks.

Amenity impacts - bulk 47 Mr Nash and Mr Chambers agreed that the residential towers are higher and bulkier than Deepdene, although Mr Nash considered that the addition would increase the bulk of Deepdene to an unacceptable level. Mr Chambers considered Deepdene was a relatively small building in comparison to the other towers and that the proposal was a modest extension.

Findings 48 The key question before the Court is whether, despite the non-compliance with the numerical controls, the proposal meets the objectives of the FSR and height control in DCP 1997.

49 The FSR objective and performance criteria in ss 2.2 and 2.3

50 The objectives of both the FSR and height control can be summarised as achieving compatibility of built form and limiting adverse amenity impacts. 51 The proposed rooftop addition is a modest increase to the building which will not change its overall bulk and scale in relation to the other towers in the area. I accept Mr Chambers' evidence that this part of the objective is met.

52 The potential amenity impacts are identified as overshadowing of Tresco and loss of privacy to Ms Osmond's property. I accept Mr Chambers' evidence that these impacts are minimal. 53 While I acknowledge Mr Waterhouse's concern that any increase in overshadowing to his property is unacceptable, I do not accept that this is the intention of the planning controls. Nor do I accept Mr Nash's opinion that it is a reasonable expectation that there should be no change to Deepdene or its impacts on adjoining properties given it already exceeds the height and FSR control. What is reasonable is whether any impacts from the proposal will materially impact on the amenity currently enjoyed by these adjoining properties.

54 In relation to the privacy impacts on Ms Osmond's property, I accept Mr Chambers' evidence that Deepdene and other properties already overlook her bedroom and terrace. The proposal will not unreasonably exacerbate this situation. The separation distance between her property and Deepdene is sufficient to mitigate any additional overlooking impacts. I note that Mr Nash did not suggest further mitigation measures such as planter boxes or louvres, which have been utilised on the eastern elevation. 55 In relation to overshadowing, the proposal complies with the requirements of s 5.1 of DCP 1997, which aims to achieve a reasonable level of solar access to principal living areas. The 3D solar access model provides much greater detail than would normally be required to assess the overshadowing impact of a proposal. Mr Nash considered the overshadowing in July to three west-facing bedroom windows to be unacceptable, principally because the proposal reduced the available solar access to these rooms from one hour to half an hour and resulted from a non-complying development. I do not accept that the overshadowing impact will materially affect the amenity of Tresco. The impact is small and of limited duration and is to secondary rooms. The property will retain excellent solar access to other rooms and to its primary open space.

56 The proposal therefore meets the objectives and performance criteria of the FSR and height controls in DCP 1997 and the variation to these controls is acceptable. The proposal also meets the relevant objectives of the zone. Orders 57 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application for alterations and additions to Deepdene, 110 Elizabeth Bay Road, Elizabeth Bay is approved subject to the conditions in annexure A. 3. The exhibits, except exhibits 4 and A, may be returned.

      Annelise Tuor
      Commissioner of the Court
      ljr

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