Initial Action Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2019-02-21

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2016/367/1 for a residential flat building (the proposal) at 12-16 William Street, Double Bay (the site) by Woollahra Municipal Council (the Council).

Issues

The Council's contentions can be summarised as:

The proposal is excessive in height because the top parapet is 13.1m and the lift overrun is 13.2m above existing ground level, which contravenes the height of buildings development standard of 10.5m. As a consequence, the proposal fails to achieve the desired future character of the Double Bay Precinct.

Background

In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), the Chief Judge upheld an appeal on a question of law and set aside the decision and orders of the Commissioner in Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734. His Honour made an exclusionary remitter order that these proceedings be determined by a Commissioner or Commissioners in accordance with his reasons for judgment.
The proposal has been amended following the Chief Judge's decision. The applicant was granted leave by the Court on 19 December 2018 to amend the application by relying on amended architectural plans, which included the following changes to the proposal:

The position of the lift core has been changed which results in an amended layout for both basement levels, the entry foyer on the Ground Floor and lobbies on the upper levels;
The penthouse apartment on the uppermost level has been reduced in size and the layout has been changed;
The roof terrace to the penthouse on the roof of the penthouse has been deleted; and
The height of the proposal above existing ground level has been reduced.

The site and its context

The site is an amalgamation of two allotments on the northern side of William Street. The site has an area of 1,381.2m2 and a frontage to William Street of 35.4m. There is a two storey dwelling house on each allotment.
The site is generally flat, with spot levels at the rear of the site of RL 2.99, in the centre of the site of RL 3.3 and towards the front of the site of RL 3.38 (Ex F). The northern side of William Street between Bay Street and Beach Street, which includes the site, is level, as it is within a low lying basin adjacent to the Double Bay foreshore.
10 William Street on the adjoining property to the west contains a three storey inter-war and renovated residential flat building in face brick with a hipped tiled roof containing a fourth storey with a large glazed dormer window facing William Street and skillion dormers on each side of the ridge. The roof ridge of 10 William Street is RL 16.32 (Ex F). 20 William Street, the neighbouring property to the east, contains a three storey inter-war residential flat building in face brick with a hipped tiled roof. The roof ridge of 20 William Street is RL 15.74.
There is a right of way access from William Street around the rear of the site and 10 William Street, which provides vehicular access to the properties fronting the right of way. The dwellings at the rear of the site, on the opposite side of the right of way, orientate to the Double Bay beachfront on their northern boundaries.
There is a four storey residential flat building at 41 William Street, on the opposite side of the street to the east.

The proposal

The proposal is for a three and four storey residential flat building including the following accommodation:

Two levels of basement parking including service and storage areas, 23 car parking spaces including two accessible spaces and one car wash bay, motorbike parking spaces and bicycle storage spaces;
Common vertical circulation including two lifts and stairwell;
Ground Floor: entry foyer, 2 x two bedroom apartments, 1 x one bedroom apartment and 1 x one bedroom and study apartment;
First Floor: 4 x two bedroom apartments;
Second Floor: 4 x two bedroom apartments;
Third Floor: 1 x four bedroom penthouse apartment.

The gross floor area of the apartments on each level ranges between 336m2 and 351m2, excluding common circulation (Ex C, DA1.21).
The penthouse is a partial fourth level and is positioned over the north-eastern portion of the level below with a gross floor area of 137.2m2 (Ex C, DA1.21). The parapet of the penthouse is at RL 16.1 and the lift overrun is RL 16.3 (Ex C, DA1.14). The lower parapet concealing the Second Floor roof is at RL 13.3.

Planning framework

The site is zoned R3 Medium Density Residential pursuant to the Woollahra Local Environmental Plan 2014 (LEP 2014) and the proposal is permissible with consent. Regard must be had to the objectives of the R3 zone when determining the application, at cl 2.3(2) of LEP 2014, which are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
The height of buildings development standard for the site is 10.5m (Height of Buildings Map Sheet HOB_002 of LEP 2014). The objectives of the standard are: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
The floor space ratio (FSR) development standard for the site is 1:1 (Floor Space Ratio Map Sheet FSR_002 of LEP 2014). The proposal has a gross floor area (GFA) of 1,263.06m2 (Ex C DA1.21) and the site area is 1,381.2m2, resulting in a FSR of 0.91:1.
The adjoining properties to the north of the site are zoned R2 Low Density Residential. The height of buildings development standard for those adjoining properties is 9.5m and they do not have a maximum FSR development standard.
The site is within the residential precinct of Double Bay as identified by the Woollahra Development Control Plan 2015 (DCP 2015). The objectives of Ch B1 of DCP 2015 regarding the residential precincts including the Double Bay Precinct are as follows: "O1 To ensure development reflects the desired future character of the precinct. O2 To preserve the significant features of individual precincts which contribute to their unique character. O3 To ensure that the design and siting of development suitably responds to the surrounding built form and natural features. O4 To limit impacts on the amenity of adjoining and adjacent development. O5 To ensure the preservation of significant view corridors and ridgelines. O6 To retain and reinforce tree canopies and landscape qualities. O7 To ensure that streetscape and scenic quality is preserved."
The Double Bay Precinct character statement, at B1.3.1, is as follows: "The Double Bay residential precinct is located to the north and west of the Double Bay centre and includes the Double Bay Public School and 'Steyne Park' between the school and the waterfront. It also includes Council's local history library within Foster Park and a child care centre. The Double Bay precinct has a strong feeling of community and convenience due to the facilities located within the precinct and the proximity of the adjacent town centre. The precinct sits within a low lying basin, framing the Double Bay foreshore. The precinct is notable for both the density of its built form and its green landscape character. The tree canopy, formed by both street trees and private plantings, is a prominent element in the municipality's presentation from Sydney Harbour and should be maintained. The street pattern allows for long views to the harbour, and distant views to surrounding hillsides. Three major streets dominate the precinct: the curvilinear New South Head Road which forms an edge to the precinct to the south; Ocean Avenue, the north-south oriented boulevard that divides Double Bay from the hillside of Darling Point; and the east-west oriented William Street. Due to the topography and location, each of these major streets presents unique settings within the broader common elements of the precinct. The precinct contains dwelling houses, terraces (attached dwellings) and residential flat buildings, including a number of Inter-War flat buildings that make a significant contribution to the precinct character. The quality of buildings within the precinct represents an evolution and mix of building styles that often maintain a consistent scale across both sides of the street."
The Desired future character statement, at B1.3.2, is as follows: "The precinct is an established area comprising many residential flat buildings. Development will generally be in the form of improvements to the existing residential flat buildings. There are a significant number of Inter-War flat buildings that contribute to the precinct character and are worthy of retention, especially around William Street, New South Head Road and Gladswood Gardens. Alterations and additions to the Inter-War flat buildings are to retain the character of the original building through appropriate use of materials, and should not significantly alter significant and traditional building elements visible from the street. New development on sites in the R2 Low Density Residential zones along Guilfoyle Street, Cooper Street and the southern side of William Street are to be well-designed and address the street so that development make a positive contribution to the public domain. On sloping land, new development should step down the site to reinforce the topography and minimise cut and fill. Attention must also be given to protecting views, particularly views from public spaces down Ocean Avenue, Bay and Beach Streets to the harbour, and views from New South Head Road to the harbour."
The streetscape character and key elements of the precinct are as follows: "Development respects and enhances the existing elements of the neighbourhood character that contribute to the precinct including: a) the rich mixture of architectural styles and building forms; b) the topography and the siting of development on New South Head Road, which descends into (and ascends out of) the Double Bay centre; c) well established gardens and trees including the avenue plantings in Ocean, Guilfoyle and South Avenues, Bay Street and William Street; d) the established tree canopy; e) the harbour views and view corridors from public places; f) the character of Inter-War flat buildings; and g) the heritage significance of the adjoining Transvaal Avenue Heritage Conservation Area."
The desired future character objectives are as follows: "O1 To respect and enhance the streetscape character and key elements of the precinct. O2 To reinforce a consistent building scale within streets. O3 To design and site buildings to respond to the topography and minimise cut and fill. O4 To maintain the evolution of residential building styles through the introduction of well designed contemporary buildings, incorporating modulation and a varied palette of materials. O5 To ensure that rooflines sit within the predominant street tree canopy. O6 To maintain the significance of heritage items within the precinct, and the character of the adjoining Transvaal Avenue Heritage Conservation Area. O7 To encourage the retention of Inter-War flat buildings, particularly significant and traditional building elements visible from the street. O8 To provide a transition between the higher density buildings of the Double Bay centre and the lower density buildings of the residential area. O9 To retain and reinforce the green setting of mature street trees, private trees and garden plantings. O10 To protect important iconic and harbour views from the public spaces. O11 To maintain on-street parking and minimise kerb crossings, particularly on Bay Street and Ocean Avenue."
The objectives and controls for excavation are included at B3.4 of DCP 2015. This section includes the following statement: "Council has determined that the volume excavated from a given site should be limited to that which might reasonably be required for car parking and domestic storage requirements, and to allow the building to respond to the site topography in an appropriate manner."
The maximum volume of excavation permitted for residential flat buildings at C2 of B3.4 is no greater than the volume shown in Figure 14B which is just below 1:1 for the site area, approximately 1,381.2m3 for a site of 1,381.2m2. At Control C4, a variation to the volume shown in Figure 14B will be considered, however, the maximum volume of excavation permitted will only be the amount needed to accommodate car parking to comply with the maximum rates in Part E1 and storage at a rate of 8m3 per dwelling.
The parking requirement for residential flat buildings at E1.4 of DCP 2015 is 1 space per 1 bedroom apartment; 1.5 spaces per 2 bedroom apartment and 2 spaces for 3 + bedroom apartments and 0.25 spaces for visitors (per apartment according to Mr Lukas' evidence). This results in a requirement of 21.25 car parking spaces for the proposal.
The applicant submits that the basement complies with Control 6 requiring the basement walls to be no closer to the boundary than permitted by the setback controls.
B3.5.3 of DCP 2015 includes the following statement regarding private views: "View sharing concerns the equitable distribution of views between properties. The view sharing controls in this DCP seek to strike a balance between accommodating new development while providing, where practical, reasonable access to views from surrounding properties. Development should be designed to reflect the view sharing principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140."
B3.7.2 of DCP 2015 includes objectives and controls for fences. The objectives for fences include the following: "O1 To ensure fences and walls improve amenity for existing and new residents and contribute positively to streetscape and adjacent buildings. O2 To ensure that fences and walls are not visually intrusive in the streetscape and to enhance pedestrian safety. O3 To ensure that fences and walls do not unreasonably restrict views and vistas from streets and other public spaces. O4 To ensure that development creates well defined areas of public and private space."
The height of front fences is not to exceed 1.5m if 50% transparent or open, unless otherwise specified in the precinct controls, at Control 4.

Public submissions

Six resident objectors provided evidence at the commencement of the hearing onsite. The Court, in the company of the parties and their experts, viewed the site from three apartments in the Georges Centre, apartments 6, 12 and 13. The concerns of the objectors can be summarised as:

The height of the proposal is not in keeping with the established character on the northern side of William Street.
The proposal will detrimentally affect views from the apartments in the nearby Georges Centre.
The excavation required for two levels of basement is excessive because the soil is contaminated and the water table is high.
The use of the private driveway by the future residents of the proposal will interfere with the use of the private driveway by the resident of 18B William Street.
The future residents of the proposal will overlook the properties that front Double Bay Beach to the rear of the site.
A four storey building in William Street will create a precedent for development in William Street.

Expert evidence

The applicant relied on the expert evidence of Ms Jennie Askin (planning), Mr Michael Harrison (urban design) and Dr Richard Lamb (view analysis). The Council relied on the expert evidence of Mr Dimitri Lukas (planning).

Contravention of the height of buildings development standard in LEP 2014

The proposal has a maximum height of 13.055m (RL 16.3) at the lift overrun above existing ground level and 12.92m (RL 16.1) at the highest point of the parapet of the penthouse above existing ground level (Ex D, tab 5, p 1). The height of buildings development standard for the site is 10.5m.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex D, tab 5).
Clause 4.6(4) of LEP 2014 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action [13]). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4) of LEP 2014, as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Land and Environment Court Act 1979, but should still consider the matters in cl 4.6(5) of LEP 2014 (Initial Action [29]).

The applicant's written request to contravene the Height of Buildings development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]): 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable and unnecessary because "the proposal will provide a development which is of comparable scale with the existing inter-war flat buildings adjoining and therefore is consistent with the desired future character objectives for the Double Bay precinct" and because the additional building bulk above the height of buildings development standard does not result in environmental amenity impacts.
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]).
The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action [25]). Mr Hemmings SC submits that this is a "low bar".
I am satisfied, pursuant to cl 4.6(4)(a)(i) of LEP 2014, that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the height of building development standard as a justified response to the scale of the existing Inter-War flats in the immediate context of the site on the basis that maintaining a consistent scale between the Inter-War flat buildings is appropriate because they are identified as making a significant contribution to the character of the Double Bay Precinct. I am satisfied that justifying the aspect of the development that contravenes the development standard as creating a consistent scale with neighbouring development can properly be described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23], because the quality and form of the immediate built environment of the development site creates unique opportunities and constraints to achieving a good design outcome (see s 1.3(g) of the EPA Act).

The proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction in cl 4.6(4)(a)(ii) of LEP 2014 is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority, or the Court on appeal, must be directly satisfied about the matters in cl 4.6(4)(a)(ii) of LEP 2014 (Initial Action [26]).
The relevant objectives of the height of buildings development standard at cl 4.3(1) of LEP 2014 are: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion ...
The relevant objective of the R3 zone is to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood, as the other objectives are met by the strategic planning exercise that informed LEP 2014, by the proposal or they are not relevant.
I am satisfied that the proposal is in the public interest because it is consistent with the objectives of the height of buildings development standard and the zone objectives, for the reasons given in the following analysis.

The proposal establishes building heights that are consistent with the desired future character of the neighbourhood

The desired future character of the Double Bay Precinct is embodied in the 'Desired future character statement', at B1.3.2 of DCP 2015 and the objectives, quoted at [19] and [21]. The desired future character of the Double Bay Precinct is essentially to maintain the existing character, by retaining the original features of the worthy Inter-War flat buildings that contribute to the existing character. The third paragraph of the 'Desired future character statement' addresses only the R2 zones in the precinct and so has no implications for this proposal; and the final paragraph deals with the retention of views from public spaces and along streets, which also has no implications for this proposal because there is no contention raised that the proposal interferes with any of these views. To be consistent with the desired future character of the neighbourhood, the proposal must respect and enhance the streetscape character; reinforce a consistent building scale within streets; introduce a well-designed contemporary building; ensure that the roofline sits within the predominant street tree canopy; provide a transition between the higher density buildings in the Double Bay centre and the lower density buildings in the residential area; and retain and reinforce the green setting of mature street trees, private trees and garden plantings and to minimise kerb crossings.
The experts agreed that the residential flat buildings that flank the site are examples of the worthy Inter-War flat buildings identified in the precinct character statement as making a significant contribution to the character of the Double Bay Precinct. In Mr Lukas' view, the proposal is not characteristic of the height of existing buildings or the desired future character of the neighbourhood, despite having a comparable height in a linear measurement to the ridge of 10 William Street, because a four storey flat roof parapet has a larger visible impact in terms of bulk and scale than a three storey hipped roof that is recessive. Ms Askin disagreed and in her opinion the proposal reinforces a consistent building scale within the street as it presents as a three storey building to the street frontage, with the penthouse setback from the front façade and recessive and in her view this envelope would fit into a pitched roof form above the three storey building below.
The question to be addressed is whether the height of the proposal is consistent with the desired future character of the neighbourhood (Initial Action [94(a)]). I am satisfied that the height of the proposal is consistent with the desired future character of the neighbourhood. I accept Mr Lukas' opinion that a partial fourth level with flat roofs is quite distinct in form and character to the pitched roofs of the neighbouring Inter-War flat buildings, however, the distinct form of the proposal is compatible with the existing development in William Street and is consistent with the desired future character of the precinct because its form reinforces a consistent building scale within William Street of three and four storey development and its contemporary features and quality finishes will contribute to the evolution of residential building styles in William Street. For this reason, the proposal will not distract from the contribution made by the Inter-War flats to the character of the Double Bay Precinct. The proposal can be described as broadly sitting within the canopy of mature trees in vicinity of the site, as is evident from Dr Lamb's view analysis photomontages taken from the Georges Centre (Ex D, tab 5), which shows the proposal's building envelope surrounded by and below the tree canopy that dominates the outlook. The eastern side setback of 5.725m (Ex C, DA1.06) and the rear setback of a minimum of 6.935m (Ex C, DA1.07) of deep soil provides ample areas for landscaping to ensure that the proposal will retain and reinforce the green setting of mature trees and plantings. The proposal minimises kerb crossings in William Street by locating the vehicular entry point at the rear of the site.

The proposal establishes a transition in scale between zones to protect local amenity

The objective for a transition in scale between zones to protect local amenity is achieved by the comprehensive strategic planning exercise that informs LEP 2014. The B4 zone of the Double Bay town centre includes a range of scales given by the maximum height and FSR development standards, which appropriately reflect the constraints and opportunities of existing development within the Double Bay Centre; as an example, the heritage conservation area in Transvaal Avenue to protect the significance of the group of Federation single storey semi-detached cottages has a lower development yield than the rest of the B2 zone. Part of the B4 zone to the south of the site has a maximum height of 18.1m and a FSR of 2.5:1. To the north of the B4 zone, William Street is zoned R3 medium density residential with a height of 10.5m and a FSR of 1:1. A former Council site on the southern side of William Street is the only exception within the R3 zone along William Street, with a maximum height of 13.5m and a FSR of 1.4:1. Although the R3 zone along William Street extends to the foreshore to the north-east of the site, the properties to the north of the site are zoned R2 low density residential with a maximum height of 9.5m.
Because the objective for a transition in scale to protect local amenity between zones is achieved by the zoning and development standards in LEP 2014, the objective does not require a transition in scale on an individual site that borders the zone. The proposal is no less entitled to rely on the terms of cl 4.6 in LEP 2014 to provide an appropriate degree of flexibility in applying the height of buildings development standard simply because the site is located at the northern edge of the R3 zone. Of course this does not obviate the requirement for an assessment of the development in relation to its context and consequent amenity impacts once the hurdles of cl 4.6 are met.
The question to be addressed is whether the height of the development is consistent with the objectives of establishing a transition in scale to protect local amenity (Initial Action 94). I am satisfied that the proposal is consistent with the objective to establish a transition in scale between zones to protect local amenity, because the proposal lacks adverse amenity impacts. Mr Lukas' evidence was that the side and rear setbacks of the proposal are acceptable and will not result in amenity impacts for the occupants of adjoining and surrounding developments (Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734 transcript Wednesday 8 November 2017 p 37/31-37 and p 40/26-35). I accept and agree with Ms Askin's observation that the dwelling houses to the north of the site orientate to the beachfront at their northern boundary, so that the balconies on the northern façade of the proposal, which are separated from the dwelling houses by the right of way and the landscaped rear setback, do not pose an unacceptable privacy impact on those dwelling houses to the north.
A lack of adverse amenity impacts is one way of demonstrating consistency with the objectives of a development standard, see Initial Action 94 and Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 [34], where the Chief Judge held, "establishing that the development would not cause environmental harm and is consistent with the objectives of the development standards is an established means of demonstrating that compliance with the development standard is unreasonable or unnecessary".

The proposal minimises the impact on adjoining or nearby properties from disruption of views

The Council contends that the proposal will have an unacceptable impact on private views from 45-51 Cross Street, Double Bay (Georges Centre).
I accept the applicant's submission that the proposal does not affect views from the public domain and there was no contention raised regarding impact on views from the public domain. The proposal affects district views to the north from some of the apartments and their terraces on the upper levels of the Georges Centre. I do not accept the applicant's submission that the Georges Centre is not "nearby" the site within the meaning of cl 4.3(1)(d) of LEP 2014. The Georges Centre is one block back from the site; it is a six storey, mixed use building on the south-western corner of Cross Street and Bay Street, on the block bounded to the north by William Street. The Georges Centre is within and at the northern edge of the town centre of Double Bay. The site is north-northeast of the Georges Centre and is positioned between the Georges Centre and the harbour bay of Double Bay to the north. The impact of the proposal, particularly the partial level of the penthouse, on the private views from the north facing apartments of the Georges Centre, is a relevant consideration in determining whether the proposal is in the public interest.
The views to be affected are harbour glimpses across the terracotta roofs of the residential development and mature trees and landscaping in the foreground. The views of the harbour included the water land interface on the northern side of the harbour. The views are not iconic views (see Tenacity Consulting v Waringah [2004] NSWLEC 140 ("Tenacity") [25]).
The views are obtained from the living areas and northern terraces of the apartments on the upper levels in the Georges Centre (Tenacity [26]). The main harbour vistas from the apartments in the Georges Centre are to the north-northwest, to the left of the hipped roof of 10 William Street, which is a prominent feature in the foreground of the view. There is a smaller harbour vista obtained to the right of the roof of 10 William Street, particularly from apartment 6 at the western end of the Georges Centre. The views of the harbour are not affected by the proposal.
The extent of the impact of the proposal on the view from the apartments in the Georges Centre is the obstruction of a portion of the canopy of mature trees on the right hand side, in the middle foreground of the view. The experts agreed that the proposal, including the partial level of the penthouse on the fourth level, will disrupt district views of mature vegetation from the affected apartments in the Georges Centre. According to Mr Lukas, "The uppermost level has been positioned to sit in front of existing trees on and around the site" (Ex 10, par 63).
According to Dr Lamb, there would be a gain in views of the harbour from the apartments in the Georges Centre as a result of the removal of mature trees on the site which would result in the harbour vista opening up to the left of the roof of 10 William Street and there is unlikely to be any significant view loss. In his opinion, the impact of the proposal on views from the apartments in the Georges Centre is negligible or minor. According to Mr Lukas, it is better to look at greenery and water glimpses of the harbour than at a solid building form, particularly a building form that is non-compliant with the maximum height development standard.
The impact of the proposal, including the penthouse element of the building envelope, on the harbour and district views from the apartments in the Georges Centre is in my opinion, negligible or minor. I accept Mr Lukas' evidence that the proposal will obstruct some of the greenery in the foreground of the view and I accept Dr Lamb's evidence that the removal of the mature trees on the western side of the site may contribute to augmenting the harbour glimpses, particularly from apartment 13. The impact of the proposal on the foreground views of mature trees and landscaping from the apartments in the Georges Centre is fundamentally a result of the development of the site to achieve its medium density gross floor area development potential when compared to the existing low density use of the site.
The contribution of the penthouse element on the uppermost level of the proposal to the loss of views of mature trees and vegetation from the apartments is insignificant. The location of the building envelope of the fourth level on the north-eastern side of the building form below minimises the impact of this element on the views from apartments in the Georges Centre because it is located on the right hand side of the building envelope when viewed from the apartments in the Georges Centre, leaving any harbour glimpses across the site and to the right of the roof of 10 William Street intact. Had the bulk of the penthouse been located elsewhere on the site, below the 10.5m maximum height, within a building envelope close to 1:1 FSR, it is likely that the footprint of the proposal would be larger and there would be less opportunity for replacement landscaping in the deep soil areas on the site on the generous northern and eastern deep soil setbacks.
I am satisfied that the massing of the proposal has successfully minimised its impact on adjoining or nearby properties from disruption of views and that the site layout provides opportunities for replacement landscaping to contribute to the green setting, private trees and garden plantings in the precinct.

Volume of excavation

The basement is two levels, accessed via a ramp from the rear private driveway. The basement contains 14 car parking spaces on the lower level and 9 car parking spaces on the upper level. The upper level includes service areas.
There are two parking spaces attributed to the penthouse apartment. Deleting the penthouse apartment would not result in a reduction in the requirement for visitor car parking spaces.
I accept Mr Lukas' evidence that the basement layout could have been more efficiently laid out and in my view the depth of excavation could have been minimised by reducing the depth between the floor level of the Ground Floor at RL 3.8 and the ceiling of the basement below, to raise the floor levels of each basement by up to 300mm, depending on the design of the structure. A more efficient and compact layout would, nevertheless, still require two basement levels in order to achieve the parking rate of 21.25 spaces required by E1.4 of DCP 2014 and accommodate the required setbacks from boundaries at Control 6 of B3.4 of DCP 2015.
The proposal meets the parking requirement of 21.25 spaces rounded up to 22 spaces and provides an additional space as a car washing bay. Deleting two car parking spaces to provide the 21 spaces required by E1.4 of DCP 2015, or deleting a further two car parking spaces attributed to the penthouse apartment, would not significantly alter the volume of excavation required to construct the two storey basement, because the lower level of the basement would still have to accommodate at least 10 car parking spaces.
I accept that the volume to be excavated is limited to that which might reasonably be required for car parking and storage requirements as envisaged by Control 4 of B3.4 of DCP 2015, because it is the volume required to accommodate car parking to comply with the maximum rates in Pt E1 of DCP 2015.

Height of the front fence

The applicant proposes a front fence 1.8m high, described as a "lightweight framed sandstone clad boundary fence" (Ex C, DA1.12).
The Council presses a contention that the front fence comply with Control 4 of B3.7.2 of DCP 2015 for a fence that is a maximum of 1.5m high with 50% transparency, excluding the entry structure.
I accept Mr Lukas' evidence that there is no reasonable justification for a front fence of 1.8m. Importantly, a 1.5m high fence with 50% transparency permits views from the public domain into the semi-private front setback of the site, allowing the landscaped front setback to contribute to the landscaped character of the street. This creates a sense of transition from the public domain, across the threshold of the entry structure, under the covered entry and into the private domain within the development. A 1.8m fence does not permit views from the public domain into the front setback. The balconies on the ground floor fronting William Street are off bedrooms, they are at least 500mm above ground level at a finished floor level of RL 3.8, which affords a sense of privacy and separation from the public domain and the balcony is separated from the street by soft landscaping within the front setback. There is no compelling reason to create a private domain within the front setback of the proposal by having a 1.8m front fence and it would rob the public domain of the extension of visual space to the building's front façade and views of the landscaped front setback.

Conclusion

In coming to my determination that the proposal is acceptable and can be granted consent, I have given weight to the fact that the proposal complies with the FSR development standard for the R3 zone in William Street and so the building envelope of the proposal reflects an alternative, but not a larger, form when compared to the building envelope of a proposal that complies with both development standards. The alternative form of the building envelope proposed includes a narrower but taller footprint on the northern portion of the site with significant side setbacks, which contribute borrowed amenity to some of the apartments in the neighbouring Inter-War flat buildings. The building envelope and design of the proposal responds appropriately to the unique opportunities and constraints of this site, including the scale of the character buildings on either side of the site, the narrow side setback of 10 William Street, and by providing meaningful deep soil and landscaped areas to replace and reinforce the green setting of mature trees and garden plantings in the Double Bay Precinct.
It is preferable to amend the architectural drawings to properly reflect the consent granted, rather than to amend the front fence by condition, as proposed by the Council, as the architectural drawings would then be inconsistent with the conditions of consent, which can create confusion during the later stages of realising the development. There are also some minor drafting errors on the architectural drawing set to be rectified and the dimensions of the building envelope should be clearly indicated.

Directions

The Court directs that: 1. The applicant is to amend the architectural drawings (Exhibit C) as follows: 1. The satellite dish shown on the roof of the penthouse (DA1.11 of Exhibit C) is to be deleted as agreed by the parties and the basement exit stair erroneously shown externally in the north-eastern corner of the first and second floor plans (DA1.08 and DA1.09) is to be deleted. 2. The dimensions of each setback from the boundary are to be shown on the Ground Floor Plan and the dimensions of each setback from the boundary are to be shown on the Penthouse Plan. The non-trafficable roof areas of the Penthouse Plan are to be clearly indicated as non-trafficable. 3. The notes on the architectural drawings referring to previous iterations of the proposal and the footprints of the existing buildings can be deleted. 4. The front fence to William Street, excluding the main entry structure, is to be reduced to a maximum height of 1.5m above ground level with 50% transparency and this is to be clearly indicated in notes and on the elevations and sections. The hydrant booster is to be located away from the substation and the solid portion to the services is to be reduced to a height of 1.2m, with a maximum overall height of 1.5m (see Exhibit 10, par 104). 1. The amended architectural drawing set is to be filed and served within 2 weeks of the date of this judgment. 2. The condition regarding the front fence is to be deleted. The amended conditions of consent are to be filed one week after the filing of the architectural drawings. 3. Liberty to restore on 2 days' notice. Final orders will be made in chambers.

Susan O'Neill 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: 12 March 2019

(2007) 156 LGERA 446

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