Kamenev v Woollahra Municipal Council

Land and Environment Court (NSW)|2018-05-10

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. 487/2017 for the construction of a new dwelling, swimming pool, landscaping and site works (the proposal) at 13-15A Coolong Road, Vaucluse (the site), by Woollahra Municipal Council (the Council).
The appeal was subject to mandatory conciliation on 9 May 2018, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.
Leave was granted by the Court at the commencement of the hearing for the applicant to rely on an amended landscape plan (exhibit B).

The site and its context

The site is a consolidated site legally described as Lot 1, DP 1225778 and includes numbers 13, 13A, 15 and 15A Coolong Road. The site has an area of 4134m2 and a north-eastern frontage to Vaucluse Bay.
The site is on the north-eastern side of Coolong Road, opposite Nurran Road. The site adjoins numbers 15B Coolong Road to the north-west and 11 Coolong Road to the south-east.
28 Coolong Road is on the opposite side of Coolong Road, on the western corner of Nurran Road and Coolong Road. 30-32 Coolong Road adjoins 28 Coolong Road to the north-west and includes a tennis court.
The site falls approximately 10m from the street boundary to the foreshore.
The site is traversed by an existing sewer pipe, indicated in plan on the Ground Floor Plan (exhibit A, AR.DA.2001 A) and in section on Section C-C (exhibit A, AR.DA.3102 B) and in exhibit K. It was common ground between the parties that the position of the existing sewer pipe presents a constraint to the development of the site.

Background and the proposal

The proposal is for the construction of a new dwelling, designed by TKD Architects, consisting of the following accommodation (exhibit A):

Ground Floor FFL RL 4.15, including gym and wet areas, guest accommodation, cellar and plant;
Pool and pool deck FFL RL 8.92;
First Floor FFL RL 9.82, including living areas, study, cinema, garaging and entry;
Second Floor FFL RL 13.63, including bedrooms; and
Roof, maximum RL 17.33.

The dwelling is positioned across the site and orientated perpendicular to its side south-eastern boundary shared with 11 Coolong Road, with a front setback of 16.8m. The front elevation is approximately 40m wide, of which 36m is at RL 17.33.
The proposal has a generous side setback to a portion of its north-western boundary closest to Coolong Road, which has an irregular or staggered alignment as a result of the historic subdivision pattern creating a battle-axe allotment at 15B Coolong Road.
The "pinch point" for the sewer pipe in this proposal, as shown in Section C-C (exhibit A, AR.DA.3102 B), is at the north-western end of the ground floor, where the pipe is at RL 6.7 and the cellar and hallway are positioned above the pipe at RL 7.35 and on the floor level directly below the entry level at RL 10.45 (exhibit A, section A-A, AR.DA.3101 B), with a stair over the pipe to access the ground floor guest lounge at RL 4.15. The entry level is raised above the main living areas of the First Floor by 530mm.
Development consent has been granted for the demolition of existing structures and construction of a new dwelling, swimming pool, ancillary structures, landscaping and site works on the site, DA 528/2016, dated 21 September 2017 ("the existing consent", exhibit H). The existing consent was determined by the Sydney Central Planning Panel (exhibit H). The applicant submitted that the existing consent has been physically commenced within the meaning of s 4.53(4) of the EPA Act by the preparation of a Geotechnical Investigation Report (exhibit J) as required by condition C.7 (exhibit H).
It was common ground between the parties that the proposal is 340mm lower in height when compared to the existing consent; however, the parapet of the proposal extends further to the east when compared to the parapet at RL 17.67 of the existing consent.

Planning framework

The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site at cl 3, as the site is within the Foreshores and Waterways Area Boundary on the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Foreshores and Waterways Map, sheet 3 of 5 (amendment 2016). Clause 26 is in the following terms: 26 Maintenance, protection and enhancement of views The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised.
In relation to the terms of this provision, Biscoe J noted, in Addenbrooke Pty Ltd v Woollahra Municipal Council & Ors (No. 2) [2009] NSWLEC 134 [53], the tension between sub-cl 26(a) requiring consideration to "maintain, protect and enhance views" on the one hand and sub-cl 26(b) requiring development to "minimise any adverse impacts on views and vistas" on the other and held that there has to be a balanced consideration of all the matters that are prescribed for consideration.
The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (LEP 2014) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had pursuant to cl 2(3) of LEP 2014, are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
The site is within the Vaucluse West Precinct as identified by the Woollahra Development Control Plan 2015 (DCP 2015). includes the following map at B1.10 Map 10 Vaucluse West Precinct:
DCP 2015 relevantly includes the following at B3.5.3 regarding public and private views: Views are a special element of Woollahra's unique character. The sloping topography, leafy setting and harbour frontage combine to offer dramatic bushland and water views which contribute to the amenity of both private dwellings and the public domain. In addition, the municipality's frontage to Sydney Harbour places responsibilities upon the Woollahra community, to ensure development maintains the scenic beauty of the foreshore and headland areas when viewed from the water and from the land. Public views Public views from streets, footpaths, parks and other public areas are among Woollahra's most prized assets and are key elements of the municipality's identity. These views may take the form of discrete views between buildings and vegetation, more open views across the harbour and local landscape from public parks, or more defined vistas along streets terminating at Sydney Harbour or local landmarks. Important views and vistas are identified on the precinct maps in Chapters B1 and B2 in this part of the DCP. The preservation and, wherever possible, enhancement of public views helps to maintain legibility within Woollahra by allowing people to see and interpret the surrounding landscape and landmark features. Public views also allow Woollahra's scenic beauty and special character to be appreciated. 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.
The Tenacity planning principle referred to in the above passage at B.5.3 of DCP 2015 (Tenacity Consulting v Warringah Council [2004] NSWLEC 140 [25]-[29]) is in the following terms: 25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
The objectives for built form and context at B3.5 of DCP 2015 are to protect and enhance existing views and vistas from the public domain at O1, to provide additional views and vistas from streets and other public spaces where opportunities arise at O2 and to encourage view sharing as a means of ensuring equitable access to views from private property at O3. The controls in this section relevantly include the following: C1 Development is sited and designed so that the following public views are maintained or enhanced: a) significant views and vistas identified in the precinct maps in this Chapter B1 Residential Precincts and Chapter B2 Neighbourhood HCAs of this DCP; C3 Development on the low side of the street preserves district, iconic and harbour views from the street by: a) providing substantial breaks between buildings, front fences, car parking and other structures; and b) incorporating fences with transparent or open end panels at each side boundary to provide for views. C5 Development is sited and designed to enable a sharing of views with surrounding private properties, particularly from the habitable rooms (refer to Figures 17 and 18).
The Council was satisfied that the amended landscape plan in exhibit B adequately addressed objective O4 in section B3.5 of DCP 2015 to ensure that views are not compromised by landscaping.

Public submissions

Two resident objectors from properties on the opposite side of Coolong Road to the site provided evidence at the commencement of the hearing on-site and the Court, in the company of the parties and their experts, viewed the site from these two neighbouring properties. The residents' concerns can be summarised as follows:

The proposal will have a significant detrimental impact on the extent of the water views across the site to the harbour from the ground floor living areas of 28 Coolong Road and an impact on harbour views from the upper floor; and from the tennis court and upper levels of 30-32 Coolong Road;
The proposal will have a detrimental impact on the harbour vista visible from the public domain in Nurran Road.
If the maximum height of the proposal was lowered by 1.39m, as prescribed by the Council's experts, the resident objectors would not have an objection to the proposal.

Expert evidence

The applicant relied on the expert evidence Mr Rohan Dickson (urban design) and Mr Brett Daintry (planning) and the Council relied on the expert evidence of Mr Tom Jones (urban design) and Mr David Booth (planning).

Private views

I accept the agreement of the experts in relation to the following (exhibit 3):

The proposal complies with the height of buildings development standard in LEP 2014 of 9.5m;
The impact of the proposal on the first floor harbour views from 28 Coolong Road is moderate;
The creation of the western side setback view corridor between the proposal and the existing dwelling at 15B Coolong Road adequately compensates for any view loss from the first floor of 30-32 Coolong Road.

I accept the Council's experts' evidence that the impact on harbour views from a standing position on the ground floor of 28 Coolong Road is severe, as the existing water and in certain positions the water/land interface views will be obstructed. From my observation on-site, the existing harbour views from the ground floor living areas and private open space of 28 Coolong Road are primarily obtained between the trees identified as T02 and T16 (exhibit A, AR.DA.1101 B), across the existing flat roof of 15 Coolong Road at RL 16.78 and across the raised portion of that roof at RL 17.25.
The obliteration of the harbour views from the ground floor living areas and private open space of 28 Coolong Road would have a significant and detrimental impact on this important aspect of the amenity of the existing dwelling at 28 Coolong Road. The reflection off the water, particularly as a result of the northerly aspect, provides a special quality of light to the ground floor living rooms. The impact of the proposal on this view represents a monopolisation of the harbour views in the locality and it does not achieve the equitable distribution of views between properties, contrary to the view sharing objectives and controls in DCP 2015.
If the important harbour view from the ground floor of 28 Coolong Road was to be substantially preserved, I note two important points; firstly the existing house at 15 Coolong Road is positioned close to the street boundary and it is the relative height above existing ground level that determines the preservation of the existing view; and secondly, the view from the ground floor of 28 Coolong Road is obtained over a discrete portion of the site and the preservation of this view would not, in my opinion, require the entire length of the proposed level of the roof to be reduced in height.

Public views

The applicant addressed the matters in the planning principle for assessing the acceptability of the impact of private development on views from the public domain in the vicinity of the development (Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046 [44]-[48]).
I accept the applicant's submission that the amalgamation and consolidation of properties is the lawful right of the applicant and the applicant should not be penalised in terms of the reasonable development of the consolidated site as a consequence. For this reason, I accept that the view of the harbour obtained from the public domain along Nurran Road will be impacted upon by the development of the site, because the existing view to the north-east along Nurran Road aligns to some extent with the side setback of the existing dwelling at 13 Coolong Road and the driveway to 13A Coolong Road and overlooks the existing garage of 13 Coolong Road. Inevitably, the future development of the consolidated site will locate building bulk within the axis created by Nurran Road across the site, because this location is now the approximate centre of the site.
I accept Mr Jones' evidence that the preservation of a public view of the water/land interface on the opposite side of the harbour across the roof of the proposal for a greater distance within the lower portion of Nurran Road is desirable. I acknowledge that the proposal is compliant with the height of buildings development standard of 9.5m, however, the entire and substantial width of the proposal is at a uniform height, and some relief in the overall height of the proposal for a portion or portions of the width of the proposal when viewed from the south-west would achieve a more equitable balance between preserving public vistas and views of the harbour and capturing private views from the proposed development.
I do not accept the applicant's experts' evidence that a public view corridor from the footpath in Coolong Road will be created within the western side setback, because any future development of the battle-axe property at 15B Coolong Road will locate the building bulk adjacent the staggered alignment of the western side boundary shared with the site. The generous western side setback of the proposal preserves the amenity of the proposal and harbour views by locating the bulk of the proposal to the south-east of the narrowest point of the site (a result of the staggered side boundary around 15B Coolong Road). For this reason, I find that the creation of a new public view corridor on the western side of the site is unlikely to be preserved.
The eastern side setback of the proposal is insufficient to create a new public view corridor to the harbour along the eastern side setback.

Council's condition for the modification of the development

The Council included the following condition C.1 in the (without prejudice) conditions of consent (exhibit 5) which is opposed by the applicant: C.1 Modification of details of the development (s80A(1)(g) of the Act) The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments: a) In order to adequately mitigate public and private view loss, the height of the dwelling house shall be lowered by 1.39m to RL 15.94. Internal and external amendments limited to that which are essential and necessary to facilitate the height reduction are permitted.
Mr Jones in his oral evidence indicated how, in his opinion, the maximum height of the dwelling could be reduced. He acknowledged the constraint of the existing sewer pipe and opined that a portion of the study terrace on the entry level could be raised to allow for additional head height over the access stair between the hallway adjacent to the cellar on the Ground Floor and the guest lounge, so that the floor levels of the Ground and First Floors could be lowered. Mr Dickson was concerned that this solution would erode the design quality of the proposal, including interfering with the physical and visual connectivity of spaces as well as the driveway levels and number of steps required to descend from the street to the entrance foyer. I accept both experts' opinions; firstly that it is possible to redesign the proposal to reduce the height of all or parts of the proposal notwithstanding the constraint presented by the position on the site of the sewer pipe and secondly that such a redesign will require significant changes to the layout and form of the proposal which must be undertaken by the design architect in order to achieve the equivalent design quality achieved by the proposal.
The applicant offered instead a reduction in the height of the proposal by 200mm, which can be achieved by reducing the floor to ceiling height in the hallway and cellar on the Ground Floor from 2.6m to 2.4m and by reducing the FFLs of the First and Second Floors by 200mm. If I was of the view that this offer adequately addressed the Council's contentions, I would be prepared to make findings and a direction for amended architectural drawings to reduce the overall height of the proposal by 200mm or to do so by condition, because this amendment is certain and would not have any significant implications for the overall design and layout of the proposal. I am not, however, satisfied that an overall reduction of 200mm in the maximum height of the proposal would achieve an equitable distribution of the views between properties.
In contrast to the applicant's offer of a reduction of 200mm in the height of the proposal, the Council's condition C.1 requiring the proposal to be reduced by 1.39m would necessitate a significant redesign of the proposal with the potential for unforeseen environmental impacts. For this reason, condition C.1 is, in my view, in the absence of an amended or alternative proposal for a maximum height of RL 15.94, so uncertain as to be beyond the power of s 4.17(1)(g) of the EPA Act.

The existing consent

Mr Galasso SC submitted that the existing consent is a relevant matter for my consideration pursuant to s 39(4) of the LEC Act regarding the powers of the Court on appeal, because under the terms of this provision the Court is to have regard to any instrument made under a relevant Act, amongst other things. The existing consent is an "instrument" on the basis that Lloyd J held in MLC Properties v Camden Council (1997) 96 LGERA 52, 58 that a notice of determination of a development consent is an "instrument".
Mr Galasso SC noted that his submission is, however, seemingly contrary to Preston CJ's finding in Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 [55]-[57]), where his Honour stated, in relation to an appeal on a question of law of a Commissioner's decision where the Commissioner had misconstrued the terms of a condition of a previous consent, that there was no error because even a proper construction of that condition could not have been used by the Commissioner to alter his conclusions in relation to the appeal before him, as the Commissioner's obligation was to determine the particular development before the Court by assessing the impact of the development proposed on the environment existing at the time of determination.
Although I find Mr Galasso SC's submission compelling, it is not necessary to make a finding on his submission in this matter because the outcome of this appeal is not changed by including the existing consent as a relevant consideration.
The most relevant aspect of the existing consent in circumstances of this appeal is a comparison between the impact on private and public views between the the approved building envelope and the proposed building envelope, although the applicant submitted that the Council's experts' opinion that the superiority of the contemporary style of the proposal compared to the stylistically confused "Beaux Arts" exuberance of the development the subject of the existing consent is relevant, because the Council's experts' view is that the proposal better fulfils the desired future character objective O3 for the Vaucluse West Precinct in DCP 2015. A comparison between the architectural styles of the two is not relevant in my view and it risks imposing one's subjective tastes on the analysis, but I will explicitly state that I accept that the proposal is a high quality, skilful and accomplished design in the sense that it would be, once constructed, a beautifully proportioned and exemplary work of architecture and that it fulfils the desired future character objective in DCP 2015 to maintain the evolution of residential building styles through the introduction of good contemporary buildings incorporating modulation and a varied palette of materials.
The horizontal plane that forms the top of the approved building envelope, as amended by the conditions of consent, is at RL 17.67, with a short raised section of parapet denoting the entry on the southern side at RL 18.4 (exhibit H, roof plan). The horizontal plane that forms the top of the proposal's building envelope is the parapet at RL 17.33. These planes are overlayed in exhibit A, AR.DA.2004. The northern extent of those two planes, where they impact on views from the south towards the harbour, is approximately the same, although the proposal extends further to the west.
I accept that the impact of the approved building envelope on the private views of the harbour from the ground floor of 28 Coolong Road is greater than the impact of the proposed building envelope, because the approved building envelope is 340mm higher. Furthermore, the short, raised section of parapet above the entry in the existing consent will further obstruct views from the ground floor of 28 Coolong Road when compared to the top plane of the building envelope in the existing consent, because the raised parapet is centrally located within the view from the ground floor of 28 Coolong Road between trees T02 and T16 (exhibit A, AR.DA.1101 B).
The impact of the approved horizontal plane that forms the top of the approved building envelope on the public domain view of the harbour from Nurran Road is also greater when compared to the proposal. However, the eastern setback of the approved building envelope creates a new view corridor from the public domain which is not provided by the proposal.
In the process of weighing the relevant considerations in this appeal, I have given little weight to the fact that the existing consent would have much the same impact on private views and the public view along Nurran Road, because it does not overcome my findings in relation to the proposal's inequitable monopolisation of harbour views in the locality.

Conclusion

The impact of the proposal on the existing harbour views from the ground floor living areas and private open space of 28 Coolong Road would have a significant and detrimental impact on this important aspect of the amenity of the existing dwelling at 28 Coolong Road. The impact of the proposal on this view represents a monopolisation of the harbour views in the locality and it does not achieve the equitable distribution of views between properties, contrary to the view sharing objectives and controls in DCP 2015.
The preservation of a public view of the water/land interface on the opposite side of the harbour over the roof of the proposal for a greater distance within the lower portion of Nurran Road is desirable.
Some relief in the overall height of the proposal for a portion or portions of the substantial width of the proposal when viewed from the south-west would achieve a more equitable balance between preserving vistas and views of the harbour and capturing private views from the proposed development.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 487/2017 for the construction of a new dwelling at 13-15A Coolong Road, Vaucluse, is refused. 3. The exhibits, other than exhibits 1 and E, are returned.

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: 15 May 2018

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Judgment (14 paragraphs)

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