Jewel Rose Bay Developments Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2016-09-09|Before: Ms J

Solicitors: Applicant: Mills Oakley Lawyers Respondent: Norton Rose Fulbright File Number(s): 152591 of 2016

Judgment

COMMISSIONER: The applicant appeals Woollahra Municipal Council's refusal of Development Application DA77/2015/1 for the construction of a three storey residential flat building with basement parking at 635 New South Head Road, Rose Bay (the site).
The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). Despite significant progress under the conciliation process, the conciliation was terminated as the respondent did not have the requisite delegation to enter into a s 34 agreement with the applicant.

The proposal

The applicant proposes to demolish the existing two storey dwelling on the site and construct a five unit, three storey residential flat building comprising the following:

Basement parking for six vehicles [10 originally proposed], including one visitor parking space, bicycle parking and bin storage;
Ground floor - three bedroom apartment with front and rear terrace/ balcony;
First floor - 2 x 2 bedroom units with north-facing balconies;
Second floor - 2 x 2 bedroom units with north-facing balconies;
Parapet roof with lift overrun;
Landscaped front and rear setbacks for communal use.

The site and its locality

The site is on the southern side of New South Head Road with views across the Rose Bay promenade to Sydney Harbour. The relatively flat site has an area of 588.6m2.
The Planning NSW Acid Sulphate Soils Risk Map identifies the site as within a Class 3 Acid Sulphate Soil area. Council's records identify the site as potentially contaminated.
The adjoining property to the west (633) is 'Murong'. The house and grounds are listed as a heritage item in Woollahra Local Environmental Plan 1995 (and 2014). The two storey dwelling, circa 1916, is in the Arts and Crafts style. In the rear south-eastern corner of this property is a mature Frangipani.
To the east of the site is an older style three storey red brick residential flat building.
To the south of the site are a number of mostly older style residential flat buildings which front Balfour Road and O'Sullivan Road. Directly to the rear of the site is 1 Balfour Road on the north side of which is a large Eucalypt.

Contentions

The following contentions were raised by council in its Statement of Facts and Contentions dated 10 July 2015 and are based on the original proposal submitted to council:

Contamination and ground water issues including acid sulphate soils arising from excavation;
Overdevelopment of the site (site area, frontage, setbacks, deep soil landscaping);
State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection not well founded;
Excessive Floor Space Ratio (FSR);
Front setback and impact on adjoining heritage item;
Side setback - impact on views from units to the south and on adjoining heritage item;
Car park design; and
Impacts on adjoining Frangipani.

The amended plans

The details of the amended plans and supporting documents which respond to council's contentions and which are those upon which the applicant relies are described in Exhibit B - the Affidavit of Catherine Marginson dated 15 August 2016. The responses to council's contentions are summarised:

Increase in front, rear and side setbacks to realign the building frontage and increase the visual amenity of the adjoining heritage item;
Increase views to adjoining heritage item from New South Head Road;
Deletion of solid garage structure to open up the entrance to the car park and reduce the building bulk;
Removal of trees from the side setbacks to increase the view corridors to the heritage item and adjoining properties to the south;
Reduction in building bulk;
Increased setbacks to allow views from adjoining properties to be retained;
Reduction in size of basement by deletion of 4 car spaces, relocation of storage areas and 2 additional bicycle spaces; and
Alterations to the driveway including by lowering the fence height at the front boundary to increase sight lines.

Assessment Framework

Section 79C(1) of the EPA Act specifies the relevant matters a consent authority, in this case the Court, must take into consideration when determining a development application. These matters include any environmental planning instrument, including any proposed instrument, any development control plan, the likely impacts of the development on the natural and built environments, the suitability of the site for development, any submissions made, and the public interest.
Section 79C(3A)(b) provides for a flexible approach when a development application does not comply with set standards in a DCP. It enables reasonable alternative solutions that achieve the objects of those standards.
The DA was lodged with council when Woollahra Local Environmental Plan 1995 (WLEP 1995) was in force. Due to the savings provisions in the relatively recently adopted Woollahra Local Environmental Plan 2014 (WLEP 2014), the application must be determined as if WLEP 2014 has been exhibited but not yet commenced.
It is agreed that at the time the application was lodged with council (3 March 2015), WLEP 2014 was imminent and certain, and in accordance with s 79C(1)(a)(ii), should be given weight. WLEP 2014 came into force on 23 May 2015.
Under WLEP 1995, the site is zoned Residential 2(b) (Residential "B" Zone); residential flat buildings are permitted with consent.
The zone is described as: The Residential "B" Zone applies to areas characterised by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development….
The relevant zone objectives are: (a) To provide for areas of medium and high density residential development in appropriate locations, (b) To encourage a diversity of dwelling types and tenure; (e) To protect the environmental attributes of the foreshore lands.
Although Woollahra Development Control Plan 2015 (WDCP 2015) has been adopted, the relevant, applicable controls are found in WDCP 2003.
The proposed development does not comply with a number of development standards in WLEP 1995 for Site Area and Frontage (cl. 10B(2)), FSR (cl. 11(1)(a)), and Height of Buildings (cl. 12). As such SEPP 1 applies.
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65), State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), and Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP-SHC) also apply.
As the excavation is likely to intercept or require extraction of groundwater, the proposed development is Integrated Development and requires concurrence from the Department of Primary Industries - Water under the Water Management Act 2000. The Department has provided General Terms of Approval.

Objector Evidence

Objectors who made submissions were notified of the consent orders hearing and provided with the amended plans and the proposed orders and conditions of consent. A number of owners of units in the adjoining residential flat buildings to the rear of the site gave evidence in court.
Mr M Young resides elsewhere but owns a unit in 3A Balfour Road. His concerns have been the retention of the view corridor along the western boundary of the site. While he acknowledges the increased setback of the proposed development from the western boundary is a substantial improvement on the original proposal, he requests that relevant conditions be amended to include a restriction on the height of any future structure that may be erected within that corridor to 3m. Mr Young notes the conditions limiting the height of any vegetation to a maximum of 3m within that area.
Ms M Johnston owns the unit below Mr Young. She requests that 3A Balfour Road be included as one of the properties for which a Dilapidation Report must be prepared (condition D.2). This request is based on concerns about the proposed excavation and potential changes in groundwater levels which may have consequential impacts on the structural integrity of the unit block at 3A Balfour Road. Ms Johnston is also concerned about the location of air conditioning units and any acoustic impacts that may arise as they are not shown on the plans.
Ms J Kempler resides elsewhere but owns two units in the block at 1 Balfour Road. She maintains that the amended proposal disregards her concerns that views from her units will be compromised and there will be increased overshadowing. Ms Kempler is also concerned that the tree on their property could be damaged. She maintains that 1 Balfour Street, which she describes in earlier written submissions included in the council's bundle of evidence (Exhibit 2) as a building which is a brittle 75 year old full masonry structure constructed on alluvial sands, should be included in the list of properties for which a Dilapidation Report should be prepared. Ms Kempler considers that the building should be reassessed for many years to come because of the potential long-term changes that may arise due to the excavation and subsequent impacts on ground water. She stated that the council should impose a bond on the developer for the repair of any damage to 1 Balfour Street.
Ms J Newman resides elsewhere but owns a unit in 1 Balfour Road. She is similarly concerned with the potential impact of the excavation on the structural stability of her building and she questions the adequacy of the geotechnical reports. While Ms Newman acknowledges the slight improvement in the western side setback, she maintains that views, particularly of the sky, will be compromised as will solar access. She considers that the proposal is excessive in its bulk and scale, is out of character with its surroundings, has poor articulation, breaches the building envelope controls in WDCP, and is an over-development of the site. Ms Newman submits that because the rear setback has been reduced, this affords less privacy to occupiers of her unit and will result in an unreasonable sense of enclosure. Ms Newman is also concerned that the increase in hard surfaces will have unacceptable acoustic impacts. She also raises concerns about the potential safety of traffic and pedestrians on New South Head Road from vehicles exiting the site.
Ms R Baldwin owns and occupies a unit in 1A Balfour Road. She submits that 1A Balfour Road should also be included on the list of properties for which a Dilapidation Report is to be prepared. Ms Baldwin considers that when the principles on view sharing in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 are applied to her unit, the view loss is devastating. I note that in her written submission to council, included in Exhibit, the view loss is described as moderate to severe.
Overall, the objectors' submissions generally reflect the original contentions raised by council in its Statement of Facts and Contentions dated 10 July 2015. Additionally, issues of acoustic privacy and traffic safety have been raised.

Planning and other evidence and findings

The parties' planners, Ms Kathleen McDowell for the applicant and Ms Eleanor Smith for the council, participated in a joint conference and prepared a Joint Report (exhibit 3) as well as an Addendum Joint Report (Exhibit 4); the Addendum addresses the applicant's SEPP 1 objection. The planners gave oral evidence and assisted the Court by explaining the amendments to the plans and clarifying the likely impacts on the adjoining properties, having particular regard to the issues raised by the objectors.
In their joint report, the planners refer to a number of documents which have been provided by the applicant in order to address council's contentions. The planners also note where appropriate conditions of consent have been included in the draft conditions of consent (Exhibit 5).

SEPP 1 objection

In response to the amended plans, the applicant prepared an updated SEPP 1 objection (dated 7 September 2016).
The SEPP 1 objection relates to the following development standards in WLEP 1995:

Site area and frontage - clause 10B(2): for RFBs >4 units - width of site at front alignment to be 21m or more; site area of > 930m2. The site has an area of 588.6m2, frontage of 16.28m, and 5 units.
Floor space ratio (FSR) - clause 11(1)(a): 0.875:1. The proposed FSR as amended is 0.958:, a variation of 3%. [WLEP 2014 FSR standard = 1.0:1; under WLEP 2014 proposed FSR is 0.811:1]
Height of buildings - cl. 12 - 9.5m; proposed height is 10.5m [WLEP 2015 = 10.5m].

The parties' planners agree that the amended SEPP 1 objection demonstrates that strict compliance with the development standards is unreasonable and unnecessary in the circumstances of the case. The planners agree that the proposal achieves all of the relevant development standard objectives and the zone objectives.
The planners agree that the zone objectives are achieved as the proposed development: provides medium density accommodation in an appropriate area with access to public transport and nearby amenities; contributes to a diversity of dwelling types; is compatible with the streetscape character; and maintains views to the heritage item from New South Head Road and the foreshore.
In regards to Site area and frontage, the planners agree that the proposal: achieves compatibility with the scale, density, bulk and landscape character of the general built form in the area; provides setbacks which respond to the built form context of the site; addresses surface water flows through the provision of specialist reports; provides sufficient car parking; provides for redevelopment of a site which adjoins a heritage item and an existing strata-titled RFB which therefore cannot be easily consolidated with other adjoining lots.
The FSR objectives are agreed to be achieved because the proposal: has only a minor variation to the 1995 control and achieves the 2014 control; is compatible with the existing and desired character of the area; mitigates potential adverse impacts on the use and enjoyment of adjoining properties; and is compatible with the natural environment as viewed from key viewpoints including the street and harbour.
The planners note that the current control for height of buildings is 10.5m with which the proposal complies.

Findings SEPP 1 Objection

I am satisfied that the SEPP 1 objection concerning the site area and frontage and FSR development standards can be upheld as I agree, for the reasons provided by the planners, that strict compliance with those standards is unreasonable and unnecessary in the circumstances.
I am similarly satisfied that the SEPP 1 objection for a variation to the height of buildings development standard is also upheld. As the planners have not specifically addressed the objectives for this standard I am satisfied that the proposal achieves the objectives as it: minimises the impact on existing views of Sydney Harbour and other features; is compatible with the height of surrounding development; minimises impacts of overshadowing; and maintains the amenity of the public domain. To the extent that WLEP 2014 reflects the anticipated and desired future character of the area, the proposal complies with the height of building control in that instrument. While there will be some impact on solar access to some adjoining units and views from some units, for the reasons explained elsewhere in this judgment, I am satisfied that the proposal minimises these impacts and the impact is reasonable in the circumstances. I am similarly satisfied that the proposed development meets the objectives of the zone.
Therefore I find that the SEPP 1 objection prepared by Dickson Rothschild, dated 7 September 2016, Revision C, for the three development standards is well-founded and is upheld.

Acid Sulphate Soils - discharge of acid water - lack of information

Exhibit D is a Groundwater Assessment report prepared by Coffey Geotechnics Pty Ltd dated 10 May 2016. As the planners note, this report identifies the potential for the discharge of acidic water from acid sulphate soils.
The Department of Primary Industries - Water has issued very detailed General Terms of Approval which deal with a number of groundwater issues, including acid sulphate soils and dewatering; these are included as Condition A.7. Condition D.13 provides that an acid sulphate soil management plan be prepared if disturbance or exposure of the potential acid sulphate soil during piling exceeds one tonne. These conditions consider all stages of development before, during and after excavation.
I am satisfied that this contention has been addressed and consent should not be refused on this basis.

Potential contamination

A Phase 1 - preliminary Site Investigation is accordance with State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) has been provided. Appropriate conditions of consent address potential site contamination as well as asbestos removal. This contention has been resolved.

Overdevelopment

Contention 3 is that the proposal is an overdevelopment of the site as a consequence of non-compliant site area and frontage, failure to maintain view corridors, excessive excavation for parking, inadequate deep soil planting, poor articulation and inappropriate scale. A number of other contentions and particulars go to other areas of non-compliance with controls in WDCP 2003. For convenience they are discussed here.
Site area and frontage has already been considered and found to be acceptable in the circumstances. The planners agree that the amended architectural plans, which incorporate the changes listed in [12], provide for a development which is compatible in scale, density, bulk, and landscape character with adjacent developments and lot sizes. Parking spaces have been reduced and therefore less excavation is required. Side setbacks have been increased, particularly on the western side (see discussion on views below).
While the deep soil area does not achieve the 40% as set out in WDCP, the planners agree that the 24.3% of the site which is deep soil, particularly in the northern (front) and southern (rear) setbacks, is suitable as it increases the existing amount of deep soil area, maintains the landscape character of the area, and provides adequate provision for water infiltration. I note that the rear setback is currently concreted; this is to be replaced by soft landscaping.
It was noted during the hearing that the deep soil and rear setback provide sufficient protection for the Eucalypt growing at the rear of the block of flats at 1 Balfour Street. This complies with cl. C5.2.1 in WDCP 2003. The removal of the concrete at the rear of the site should improve conditions for this tree.
The planners agree that the building footprint has been reduced from 55% to 42.4% of the site area. While they acknowledge that this does not achieve the specified footprint of 35% in WDCP, they are nonetheless satisfied that the proposal provides for sufficient deep soil landscaping, maintains continuity of built form, and maintains the residential amenity of neighbouring properties.
Although I note the non-compliance with a number of controls under WDCP, s 79C(3A(b) enables a flexible approach in applying those controls if the proposed development achieves the relevant outcomes. I am satisfied on the basis of the amendments and the evidence of the planners that the flexibility in that section should be applied and that the proposal should not be refused on the basis of over-development.

Impact on the heritage item

The planners agree that increasing the front setback, squaring off the northern façade, increasing the western side setback and removing some architectural features have mitigated adverse impacts on the heritage item at 633 New South Head Road when viewed from the public domain. The front setback has been increased to 11.2m which complies with cl. C5.2.2 WDCP and meets the requirements of council's heritage officer. The resulting reduced building footprint of the proposal is such that the proposed development does not adversely affect the setting and significance of the heritage item.
I am satisfied that this contention has been addressed and is no longer a reason for refusal.

Impact on views from neighbouring properties - side setbacks

Clause C5.2.5 WDCP 2003 requires a minimum side setback of 1.5m increased on a pro rata basis by 0.5m for each metre or part thereof that the building height adjacent to the boundary exceeds 3.0m. At basement level this equates to a setback of 1.5m, at ground floor - 1.5-2m, 2.35m at level 1 and 3.5-5.5m at level 2.
The planning experts agree that the amended plans have maintained a 1.8m setback on the eastern boundary and increased the proposed western setback to 2.2m It is noted that these are essentially the side setbacks of the current dwelling on the site.
While the planners accept there is a technical non-compliance with the controls, they agree the setbacks are appropriate in the circumstances and within the context of the site. They maintain that the setbacks achieve the underlying objectives by providing for deep soil landscaping and maintaining the amenity of neighbouring properties.
Specifically, the maintenance of the current western side setback does not unreasonably reduce existing views from adjoining residential units that currently obtain views along the western side [this includes views from all of the units owned by the objectors who gave evidence in court]. The amended design sets the leading edge of the balcony on the first and second levels on the north-western corner of the building a further 2m back than the existing dwelling. This will reduce the impact on views from 5/1A Balfour Road [Ms Baldwin's unit] when compared to the original proposal and will retain most of the exiting view from that unit along the western boundary. There will be a loss of views currently available over the roof of the existing dwelling on the site. Having considered the view sharing principles in Tenacity many times, I consider the view loss will be in the moderate range for that unit and minor for those units which currently obtain views down the western boundary.
During the hearing the planners stated that a building compliant with the current controls under WLEP 2014 and WDCP 2015 could potentially have a greater impact on views that the amended proposal. While that is unlikely to bring any comfort to those residents who currently enjoy more expansive views, I agree with the planners that the amended proposal achieves the performance criteria in cl. C5.5.6 that building forms enable a sharing of views within surrounding residences, particularly from main habitable rooms. The view sharing controls attempt to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties.
I note that condition I1.7 limits any vegetation planted within the western setback to have a maximum height of 3m. Although Mr Young requested that condition be extended to include structures, it is unreasonable and not possible to impose a condition that may prohibit lawful development.
I am therefore satisfied on the evidence that the proposal should not be refused on the basis of impact on views from surrounding developments.

Solar access - impacts on adjoining development

The experts agree that the additional shadow diagrams requested by council which show the existing and proposed shadow impacts on the adjoining properties show the level of overshadowing to be acceptable and compliant with the controls which, I was informed during the hearing, require at least 2 hours of sunlight to windows of living areas between the hours of 9.00 am and 3.00 pm on 21 June.
Having discussed the shadow diagrams with the planners during the hearing, I am satisfied that the development should not be refused on this basis.

Excavation

The original proposal sought to excavate up to the side boundaries in order to provide for basement parking for 10 vehicles. The amended plans have reduced the parking spaces to six. The resulting footprint and extent of excavation have been reduced.
While the planners agree that the side and rear setbacks remain non-compliant with WDCP, they are satisfied that sufficiently detailed information has been provided by a qualified geotechnical consultant which demonstrates that the proposed basement can be constructed without adverse impacts on neighbouring properties. Amongst other things, the thickness of the basement walls has been increased to provide extra tolerance for construction and other mitigation measures provided.
An Arboricultural Assessment Report carried out on behalf of the applicant at council's request and which involved root mapping of the Frangipani at the rear of the heritage site, indicates that there will be no impact on that tree as a consequence of the excavation. As stated elsewhere, the setback from the rear boundary is sufficient to avoid any damage to the eucalypt growing at the rear of 1 Balfour Road.
I am satisfied that the contentions which relate to excavation and basement car parking have been resolved by the amended plans. I also note there are a considerable number of detailed conditions of consent which go to the many issues identified by council, and by the objectors, which are associated with the excavation. The issues addressed by the conditions (conditions in brackets) include: groundwater (A.7), tree protection measures (B.3; C.19, E.19, E.20), demolition and construction management plan (B.4, D.4), soil and water management plan (C.9), professional engineering details (C.10), geotechnical and hydrological design, certification and monitoring (C.11, E.9), stormwater management plan (C.14), flood protection (C.15), the requirement for dilapidation reports for adjoining and other properties (D.2), adjoining buildings founded on loose foundation materials (D.3), potentially contaminated soils (D.12), acid-sulphate soils (D.13, E.21), support of adjoining buildings (E.10), and vibration monitoring (E.11).
Therefore I am satisfied that these contentions no longer warrant refusal of the proposed development.

Other matters raised by objectors

The only remaining issues raised by the objectors are acoustic and other privacy concerns, unreasonable sense of enclosure, and potential traffic and pedestrian safety issues arising from vehicles exiting the site onto New South Head Road.
Traffic and pedestrian safety has not been raised by council however I note that only six parking spaces are provided on site, one of which is for the use of visitors. From having considered many matters involving parking and traffic, it would seem to be unlikely that this development will generate significant traffic to the extent that safety is an issue. I also note that changes have been made to the design and setback of the driveway which has improved sight lines for vehicles entering and leaving the site.
In regards to privacy in general: the upper levels of the proposed development: have bedrooms rather than primary living areas at the rear with no balconies; the ground floor unit has bedrooms at the rear but does have a terrace which has a privacy screen at each end; the front balcony of the ground floor unit has a privacy screen at each end; the western façade has highlight windows or windows which are otherwise screened; the upper levels have highlight windows and all levels have privacy screens on the balconies on the eastern façade. Hence privacy issues have been addressed.
In terms of acoustic privacy, apart from the measures described above, the proposed development is setback 10-12m from the rear of the adjoining unit blocks at 1, 1A and 3 Balfour Road which is within the range of 6-12m specified in the Apartment Design Guide called up by SEPP 65. In addition, the removal of the existing concrete paving at the rear of the site and its replacement with vegetation should assist with mitigating noise. Conditions C.16, C.17, E.8 and I.6 specifically consider noise from plant. The separation distance avoids an unreasonable sense of enclosure.
On this basis I am satisfied that none of these additional issues raised by objectors warrants refusal of the development.

Conclusions and orders

Having considered the relevant matters under s 79C of the Act and for the reasons given in this judgment, I make the following orders:
By consent, the Orders of the Court are: 1. The Appeal is upheld. 2. Consent is granted to DA 77/2015/1 for the demolition of the existing dwelling and the construction of a residential flat building comprising 5 units with basement car parking, at the premises 635 New South Head Road, Rose Bay, subject to the conditions annexed and marked "A". 3. The exhibits except A, B and 5 are returned.

Judy Fakes Commissioner of the Court 152591.16 Fakes (C) (663 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: 20 September 2016

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