Leung v Waverley Council

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr P Clay, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr C McEwen SC SOLICITORS Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10660 of 2006 JKC Leung Design & Construction v Waverley Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA-132/2005 by Waverley Council (the council) for alterations and additions to units 22 and 23, 5 - 7 Martins Avenue, Bondi (the site).

2 The proceedings were heard as an On Site Hearing on 22 February 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site. The site and surrounding area 3 Units 22 and 23 are located on the top floor (with unit 24) of an 8 storey 1970's residential flat building containing 24 units. Development to the east and west of the site consists of 2 - 3 storey residential flat building and dwelling houses. Development to the south of the site consists of high-density residential development of 8 - 9 storeys and medium density residential flat buildings of 4 storeys. The proposal 4 The proposal provides for alterations and additions to units 22 and 23 by the construction of a new level to the existing roof structure to each unit thereby increasing the units from two bedrooms to three bedrooms. The new structure would be setback 2.5 m from the eastern side, 1.12 m from the western side and 0.72 m from the northern and southern sides and would slope back from the setbacks into a mansard roof form. The height will be increased 4.418 m above the existing roof and 3.418 m above the existing parapet. The new roof height will be 247 mm below the height of the existing lift motor room. Rainwater tanks will be provided within the roof space. Relevant planning controls 5 The site is zoned is zoned Residential 2(c1) under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent. Clause 10(2) provides that consent shall not be granted unless the development meets one or more of the objectives of the zone.

6 Waverley Council Multi-Unit Development Control Plan No. 1 (DCP 1) also applies. The relevant requirements are view sharing (cl 3.4) and height and density (cl 4.2). Clause 4.2 provides for a maximum height of 10.0 m and a maximum floor space ratio (FSR) of 0.9: 1. The existing residential flat building on the site predates the requirements of LEP 1996 and DCP 1 and provides for a height of 27.2 m (measured to the top of the existing lift motor room) and an existing FSR of 1.68: 1. The proposed development will not increase the overall height above the existing lift motor room but will increase the FSR to1.8: 1. The issues 7 The council filed an Amended Statement of Issues that identified three separate issues. The issues are bulk and scale (Issue 1), inconsistency with cl 3(7)(d) LEP 1996 relating to compatibility with surrounding development (Issue 2) and the public interest, particularly view loss and precedent (Issue 3). The evidence 8 The following residents provided evidence on site: o Mr Marcell Liem of 11/6-8 Penkivil Street, o Mr Peter Grishenko of 27/6-8 Ocean Street, o Mr Phillip Foxman of 24/5-7 Martins Avenue, o Ms Dorothy Curtis of 6/5-7 Martins Avenue and Secretary of the Owners Corporation, o Mr Julian Cushieri of 9/5-7 Martins Avenue, o Ms Barbara Sved of 12/5-7 Martins Avenue and Treasurer of the Owners Corporation, o Mr Boris Kosman of 4/5-7 Martins Avenue and o Ms Rabinek of 17/5-7 Martins Avenue. 9 All opposed the application on one or more of the following grounds: o view loss, o increased bulk and height, o poor design, o disruption during construction, and o precedent. View loss 10 Clause 3.4 of DCP 1 provides the following objectives for view sharing:

1. Minimise the obstruction of views by new development from adjoining buildings and public places. 2) Buildings and roof design minimises view loss from adjacent properties. 11 Design Criteria C4 states:

Variations from any height or setback requirements are not to increase the extent of view loss as a result of the variation. 12 Mr Grishenko saw the loss of views as a significant issue. His unit and balcony area were inspected on the site view. With the benefit of height poles to provide an indication of the location of the proposed alterations and additions, the distant views that Mr Grishenko currently enjoys from his balcony to Sydney Harbour, from either a sitting or standing position, would be largely lost. Without inspecting other units in his building or other buildings nearby I am satisfied that other units are likely to be affected by view loss, to varying degrees, from the proposed additions.

13 I accept that Design Criteria C4 is a sensible and fair planning requirement for considering view loss. The proposed development is clearly in conflict with this requirement. Even though the existing building is considerably more than the 10 m requirement under DCP 1 it was approved under a previous planning regime. I however cannot see any valid reason (apart from the obvious benefits to units 22 and 23) to further increase the height non-compliance, particularly when the proposed alterations and additions impacts unacceptably on existing views. 14 I am not satisfied that the proposed alterations and additions should be permitted as view sharing objective (1) is not satisfied. The application does not minimise the obstruction of views by new development from adjoining buildings….. Design Criteria C4 is also not satisfied in that variations from any height or setback requirements are not to increase the extent of view loss as a result of the variation.

15 In my view, the refusal of the development application is warranted because of view loss. Height and density 16 Clause 4.2 provides requirements for building envelope, including specific requirements for height and density. The maximum height for the 2(c1) zone is 10 m. The height objectives are:

1. To use maximum height limits to assist in responding to the existing and future character of the locality. 2) To minimise the impact of development on adjoining nearby land. 3) To control the bulk and scale of development. 4) To encourage the provision of excavated or partially excavated car parking. 17 The maximum density for the 2(c1) zone is a floor space ratio (FSR) of 0.9: 1 (excluding the affordable housing FSR bonus). The density objective is:

1. To control the size, bulk and scale of developments to reflect the existing and desired future character of the area. 18 DCP 1 provides criteria where the height and density controls may be varied. For height, a variation may be permissible where "any additional building height has minimal impact on neighbours and the streetscape" (C1). For density, a variation may be permissible where "any additional floor space has minimal impact on adjoining sites and satisfies all other development standards" (C1).

19 The proposed alterations and additions were viewed from Mr Liem's unit in Penkivil Street as well as Mr Grishenko's unit in Ocean Street. In both viewing locations the proposed additions will be clearly visible above the existing parapet. Similar views would likely be obtained from other units within the building although I acknowledge that the alterations and additions would become less visible when viewed from lower units.

20 Even though the proposed alterations and additions do not extend above the height of the existing lift motor room, the additional floor area occupies space above the existing roof and adjoining lift motor room that are currently free of any development. As with view loss, I cannot see any valid reason to further increase the height and density non-compliances, as the proposed alterations and additions clearly add to the size, bulk and scale of the building when viewed from some locations around the site. 21 I am not satisfied that the increase to the existing height requirement should be allowed as the additional height does not satisfy the variation criteria of having a minimal impact on neighbours. Similarly, the increased density should not be allowed as it does not have minimal impact on adjoining sites and satisfies all other development standards".

22 In my view, the refusal of the development application is warranted because of unacceptable height and density. Precedent 23 Precedent is a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) although there was no evidence to suggest that the particular characteristics of this proposal, particularly the private ownership of roof areas, would likely be that similar to other buildings in the area. The issue is essentially redundant following the findings in the preceding paragraphs however taken in isolation; precedent is not an issue that would support the refusal of the application. Orders 24 The Orders of the Court are:

1. The appeal is dismissed. 2) DA-132/2005 for alterations and additions to units 22 and 23, 5 - 7 Martins Avenue, Bondi is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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