Kidron v Waverley Council

Applicant: LEGAL REPRESENTATIVES: Mr T Robertson SC instructed Ms R Read solicitor of Aitken McLachlan Thorpe Respondent: Mr D Wilson, barrister instructed by Mr G Hartley, solicitor of Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11618 of 2004 Danny Kidron Architects v Waverley Council

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Senior Commissioner: This is an appeal against the refusal by Waverley Council (the council) of a development application to demolish the existing buildings and construct a new house and garage at 57 Gardyne Street, Bronte.

The site 2 The site is on the western side of Gardyne Street, just east of its intersection with Pacific Street. It is rectangular in shape, with a width of about 20m and an area of 714m2. There is a 9m-fall from rear to front. The site now accommodates a single-storey cottage without on-site parking. There is a sandstone retaining wall at the site's frontage that extends along the street. Gardyne Street is a split-level road, and there is another sandstone retaining wall in the centre of the road between the two levels. 3 It is common ground, at least for the purposes of these proceedings, that the stone wall separating the two levels in the street is a listed heritage item. (The applicant contended that the listing was unclear and may refer only to the wall in the centre of the road; however, it did not argue this point.) 4 The surrounding development is mainly single-storey houses. On the site adjoining to the north, 55A Gardyne Street, a large multi-level house including a garage opening in the sandstone retaining wall has received development consent, though it has not yet been constructed.

The proposal and its history 5 In December 2003 the Court heard an appeal against the council's refusal of an application to construct a double garage on the subject property involving a similar "hole in the wall" to the current application. That application did not include a new house. In an ex-tempore judgment (Darling v Waverley [2003] NSWLEC 327) Moore C dismissed the appeal on the basis that the impact on the integrity of the intact section of the sandstone retaining wall was unacceptable. 6 In October 2003 and February 2004 the Court heard an appeal against the council's refusal to construct a new house and a double garage involving a "hole in the wall" on the adjoining property, 55A Gardyne Street. In a judgment delivered on 27 February 2004 (Segal & Anor v Waverley Council [2004] NSWLEC 363) Watts C upheld the appeal on the basis that the effect of the garage opening on the wall would be slight, given the relative size of the proposed opening and that of the retaining wall. While the detailed design of the two garage openings was different, most people would perceive the two decisions as inconsistent. 7 It was on the basis of this perceived inconsistency that the council appealed under s56A of the Land and Environment Court Act 1979 against Watts C's decision. In a judgment delivered on 20 July 2004 Lloyd J found that Commissioner Watts committed an error of law in not distinguishing his decision from that of Commissioner Moore, allowed the appeal and resubmitted the proceedings for re-hearing and re-determination. However, before the matter could be re-heard, the applicant in Segal appealed Lloyd J's decision in the Court of Appeal. In a judgment delivered on 15 September 2005 (Segal & Anor v Waverley Council [2005] NSWCA 310) Beazley JA, Tobias JA and Basten JA set aside the orders made by Lloyd J, thereby reinstating Watts C's original decision to allow the construction of a house and a garage with an opening in the sandstone retaining wall. The property is on the market together with the development consent. 8 The applicant in this appeal lodged the application in November 2004. Following notification the council received nine objections. In March 2005 the council considered a planning report from Ms D Silver, Statutory Planner, recommending refusal. In April 2005 the council issued a Notice of Determination refusing the application listing 17 reasons. The applicant lodged the appeal in December 2004 against deemed refusal.

Relevant planning controls 9 Three documents containing planning controls are relevant to the case: Local Environmental Plan 1996 zones the site residential 2(a). Development Control Plan No 2 for Dwelling-house Development 1999 provides guidelines for new house construction, while Development Control Plan No 18 - Heritage Conservation guides the assessment of the impact on heritage significance. In addition the Bronte Beach Character Study analyses the area's character, identifying stone retaining walls as important features of that character.

The issues 10 The council submitted a Statement of Issues containing four issues, ie: · The proposed garage opening in the sandstone wall has an unreasonable impact on the heritage significance of the wall and the streetscape. · The rear setback of the proposal is smaller than the established rear setback in the street. · The proposed dwelling is too large having a Floor Space Ratio (FSR) in excess of what is permissible. · The proposed excavation is excessive.

The objectors' concerns 11 The Court heard the evidence of three objectors on site, while two objectors gave evidence at the hearing in Court. Ms V Milson, who is the convenor of the Bronte Beach Precinct, said that her main concern was the garage opening in the stone wall associated with the loss of two banksias. She also objected to the size of the proposed dwelling, which was 20m2 over the permissible, on four to five levels and would dominate the street. Ms E Rink, who lives at 2/24 Gardyne Street, Mr G Greenup, who lives at 38 Pacific Parade and is a representative of the Bronte Heritage Society, had similar objections to Ms Milson. 12 The applicant had commissioned an arborist report for a previous appeal on this site that found that the two banksias were not threatened. The council accepted this evidence. 13 Mr P Pether, whose house at 59 Gardyne Street is currently being renovated, had three major concerns. First, he objected to the garage wall puncturing the stone wall. Second he was concerned about excavation affecting his property. Third, he objected to the overshadowing impact on his windows to the north. Ms L Mitchell, who is Mr Pether's partner, told the Court that the parking situation in the area was not difficult as she was able to find a parking spot in the street, even on weekends. Mrs N Darling, the owner of the subject property, contradicted this evidence, saying that she often had to park up to 300m away from her house. 14 The two major issues emerging from the objectors' evidence were the impact of the garage opening on the stone retaining wall and the overshadowing of 59 Gardyne Street. Both issues are discussed below.

The impact of the garage door 15 While there were no new expert reports prepared for this hearing, the previous hearings for the subject property and 55A Gardyne Street benefited from the work of no fewer than four heritage consultants. Mr I Stapleton and Mr C Betteridge prepared reports in the council's case, supporting the position that the garage openings should not be allowed. Mr G Brooks and Mr B McDonald prepared reports in the two applicants' case, supporting the position that the impact of the garage openings was acceptable. Mr Brooks' report relied on the work of a landscape consultant, Mr M Taylor, who was, in effect, a fifth expert. 16 The council's advocate, Mr T Robertson SC, summarised the major issues between the two sets of experts: · whether or not the stone retaining wall was a heritage item; · whether or not it was rare; · whether or not it was held in high community esteem; and · the extent to which the wall's integrity would be destroyed by garage openings. 17 Apart from the first matter, the answer to the above questions necessarily involves a value judgment. The fact that four eminent heritage experts were divided into two camps only underlines the extent to which the decision is subjective. 18 As regards the first question, whether the stone retaining wall was a heritage item, in my opinion the answer is of no moment. Whether the listing extended to the retaining wall along the property boundaries or only to the central wall, the area is a conservation area and the retaining wall along the property boundaries is, at the very least, a contributory item. The impact of the garage openings on the wall's heritage significance must therefore be assessed whether or not the wall is a listed item. 19 I turn to the question of rarity. The wall is not rare in the sense that there are few others like it in Bronte or other inner, hilly parts of Sydney. Ironically, many similar walls have been punctured by garage openings. Whether this fact is a reason for preserving it intact or for allowing it also to be punctured, is a moot point. I note, however, that the wall can no longer be considered to be intact, since the reinstated Watts C decision allows a garage opening at No 55A, similar to the one proposed in the subject application. 20 I turn to the third question relating to community esteem. I note that Moore C accepted that the community held the stone wall in high esteem. He based his acceptance on the fact that the listing followed a community consultation process and on the evidence of Mr Greenup and Ms Milson, two objectors who also appeared before me. I am inclined to accept that the community holds the wall in esteem, although I prefer to express it in a different way, namely that people living nearby like the wall and enjoy looking at it. I accept that their enjoyment would be diminished if the wall were punctured by garage openings, though, in my opinion, the reduction would be minor. 21 I turn to the fourth question, ie the extent to which the wall's integrity would be damaged by a garage opening. In my opinion, the integrity would be affected, but only in the way in which many features of the urban environment are modified to function in changed circumstances. I have to balance the effect on the wall against the extreme inconvenience for the occupants of the property if they have no off-street parking in a location close to a beach that attracts many visitors. No one would suggest a garage opening in the front for a site that has rear access. For this site, however, the provision of off-street parking requires puncturing the wall. 22 The question I have to answer is: is the damage to the stone retaining wall so great that it justifies condemning the occupants of the property to living without the convenience of off-street parking? In my opinion, it is not.

The rear setback 23 The rear setback of the proposal is at least as large as those of the adjoining buildings. I note that the council's advocate, Mr D Wilson, made no submissions on this issue.

The bulk of the proposal (impact on 59 Gardyne Street) 24 The council's Statement of Issues expresses the concern with the proposal's bulk in terms of excessive FSR. The permissible FSR is 0.51:1, while the actual FSR is between 0.52 and 0.53:1, so the difference is minor. A reduction to 0.51:1 would not change the perceived bulk. 25 I note that a FSR of 0.51:1 is not consistent with maintaining the existing character of Gardyne Street. If the council intends to maintain the area at its existing scale (ie at the scale of those buildings that have not yet been redeveloped), it should impose a FSR at or below 0.4:1. The permissible FSR of 0.51:1 suggests that the council envisages a certain densification in the area. 26 Mr Wilson based his submission on this issue entirely on the proposal's impact on its southern neighbour, Mr Pether's and Ms Mitchell's property at No 59. It is common ground that in midwinter the proposed building would overshadow the northern window in No 59. There would be some sunlight at other times of the year, but it would be fair to say that the impact on the northern sunlight to No 59 would be extreme. 27 No 59 is set back about 1.5m from the common boundary. The second floor of the proposed building is set back partly 1.7m and partly 2m from the common boundary. The council's controls allow a setback of 900mm. The proposal's setback is thus more than twice that required by controls. To provide three hours of sunlight to the northern window of No 59, the proposed building would have to set back about 5m, at least on the upper floor. 28 In Pafburn v North Sydney Council [2005] NSWLEC 444, I summarized the criteria for assessing impact on neighbouring properties, as follows: · How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? · How necessary and/or reasonable is the proposal causing the impact? · How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? · Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? · Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? 29 I apply the above questions to the proposal's impact on No 59. As I have said before, the impact on the northern window is extreme. However, in the context of the whole dwelling at No 59, the impact is somewhat less, since it has an open plan and receives light and amenity from the east, where there are panoramic views of the ocean. As regards the reasonableness of the proposal, one has to have regard to the general development around the site. In the context of the development around, a 5m setback from a side boundary, which would be required to maintain reasonable solar access to No 59, would be unusual. While on this 20m wide site it would be possible, on narrower sites, such as No 55A, it would not be practicable. 30 I turn to the third question, that of vulnerability to impact. A north-facing window 1.5m from a side boundary is extremely vulnerable to being overshadowed. As regards the fourth question, that of good design, I note that Mr Pethers suggested an entirely different design from the proposal. While there was no assessment of the floor space in the alternative design, I suspect that it had less floor space than the proposal. In any case, the alternative design was not a modification, but an entirely different design. The answer to the fifth question is that the proposal complies with the planning controls, apart from the small increase in the FSR, which does not have an impact on the solar access of No 59. 31 The application of the above principles suggests that it would be unreasonable to refuse this application on the grounds of its impact on the solar access of No 59. I note that No 59, which is itself under reconstruction, is a more modest building and more in sympathy with the character of the old parts of the area than the proposal. However, in order to justify a refusal of the application on those grounds, it would have been necessary for the council to adopt controls that permit the alterations and extensions to no 59, but not the new building on No 57 (and others of a similar bulk). There are no such controls, and therefore a refusal of No 57 would not be justified.

Excessive excavation 32 I do not understand the council's position to be that the application should be refused because it requires too much excavation. There was no indication that it could not be carried out without damage to adjoining properties. The applicant accepted Conditions 33 and 33A, which require dilapidation reports to be prepared before construction and a public liability insurance of $2 million. In my opinion, these conditions resolve the issue.

Consistency with previous Court decisions 33 Complete consistency with previous decisions is not open to me, since Moore C's decision on the subject site was to refuse a garage opening in the sandstone retaining wall, while the reinstated decision of Watts C was to allow it. However, it seems to me that my decision to allow the opening is not inconsistent with Moore C's decision because the circumstances have altered since that decision was made. First and foremost, Commissioner Moore was looking at an intact wall, while I am looking at a wall in which a garage opening just a few metres from the site has been approved. 34 In addition I note that Commissioner Moore suggested to the council to introduce a parking scheme in the area that was more restrictive to visitor parking. At the end of his judgment he indicated that failure of the council at least to consider that proposition might alter the question of the balance of the public interest (ie the retention of the wall in intact form) , should such an issue come to the Court for determination in the future. 35 The council brought no evidence of any investigation of a parking scheme that was more restrictive to visitors and therefore more favourable to the residents. 36 For the above reasons the appeal is upheld.

Disputed conditions 37 Condition 2 requires the splayed entrance to the garage to be straightened. The applicant objected on the basis that it would make driving in and out of the garage more difficult. The adjoining garage at 55A Gardyne Street has one splayed and one straight side. In my opinion, the dispute is minor and has little effect on the appearance of the garage opening. I have deleted the condition. 38 Condition 8 requires a contribution of 1% of the cost of the development (approximately $15,000). This is authorised by the Waverley Council Development Contribution Plan 2006 (the Contribution Plan), which came into operation on 1 January 2006. The applicant disputed the condition on the grounds that the previous Contribution Plan, in operation at the time the application was lodged, required no contribution. However, the law requires the Contribution Plan to be applied at the time of the development consent, unless the Contribution Plan specifically states otherwise. The parties disagreed whether this was or was not the case. 39 In my opinion, the Contribution Plan fails to state expressly that it does not apply to applications made before 1 January 2006. The applicant relied on cl 6 of the Contribution Plan, ie: This Plan applies to all applications for development consent and complying development certificates required to be made by or under Part 4 of the Act in respect of development on land to which this plan applies. 40 In some way the applicant attributed the future tense to the phrase "to be made". However, this is only part of the phrase "required to be made", which has no implication of future tense. 41 The council pointed cl 9, ie: This plan requires a certifying authority (the council or an accredited certifier) to require applicants for a complying development certificate or a construction certificate to pay the council a levy of 1% of the proposed cost of carrying out the development prior to issue of the certificate. 42 The above indicates that an accredited certifier, when issuing a construction certificate, is required to collect the 1% levy on behalf of the council where the council has not imposed the levy in the development consent. The cases where the council has not imposed the levy in the development consent would be those where the consent was issued before 1 January 2006. This suggests that the makers of the Contribution Plan intended expressly to catch applications made before 1 January 2006, including those that were approved before that date. The only applications that are intended to escape the 1% levy are those that received a construction certificate before 1 January 2006. It would be open to me to disallow the contribution on the basis of unreasonableness, but there was no argument made on that basis. For these reasons Condition 8 is retained. 43 Condition 33 requires the applicant to prepare dilapidation reports with respect to adjoining properties both before and after construction. I note that the equivalent condition imposed on 55A Gardyne Street requires dilapidation reports only before the construction commences. Condition 33 is based on a judgment by Nott C of this Court (Woniora Investments v Waverley Council [2005] NSWLEC 679), which applied to a residential flat building and which required dilapidation reports both before and after construction. In my opinion, the circumstances in this case are different and more similar to 55A Gardyne Street. The condition is therefore changed accordingly. 44 Condition 33A requires a public liability insurance of $5 million. The applicant has no objection in principle but suggests the amount of $2 million. The latter amount seems to me to be more in proportion with damage likely to be caused.

2. Development application to demolish the existing buildings and construct a new house and garage at 57 Gardyne Street, Bronte is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 5 and B.

      Dr John Roseth
      Senior Commissioner

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