Levy & Anor v Woollahra Municipal Council

Zhang v Canterbury City Council (2001) 115 LGERA 373 CASES CITED: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Tenacity Consulting v Warringah [2004] NSWLEC 140

APPLICANTS Mr I Hemmings, barrister Instructed by Ms S Hill LEGAL REPRESENTATIVES: Susan Hill & Associates Lawyers RESPONDENT Mr N Howie, solicitor Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10930 of 2009 Marcus Levy and Vanessa Sanchez Levy v Woollahra Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the determination by Woollahra Council (the Council) to refuse consent to a development application DA 532/2008 for the demolition of an existing dwelling and the erection of a dwelling at 30 Kings Road Vaucluse (the site). 2 The application proposes the erection of a three storey, flat roofed dwelling house incorporating below ground double garage, and a predominantly above-ground swimming pool at the rear of the site.

3 The site is on the eastern side of Kings Road with a frontage of 15.1m, and has a total area of 1028sq m. The site slopes downwards approximately 9.4m from the street frontage to the rear of the site. The site is currently occupied by a single storey dwelling house and ancillary structures. 4 The adjoining development consists of one to three storey detached dwelling houses. Three adjoining properties to the north (32 Kings Road, 3 Princes Ave and 7 Princes Ave) are oriented such that their rear boundaries adjoin the northern side boundary of the site. Background

5 The development application was considered by the Council's Application Assessment Panel and recommended for refusal on a number of grounds including loss of privacy and views and overshadowing. The Council's Development Control Committee resolved on 7 September 2009 to defer the application so that the applicants could submit a replacement application. A replacement application was subsequently lodged, and considered by the Council at its meeting on 30 November 2009. The Council refused the application on the grounds of excessive floor space ratio, excessive number of storeys, inadequate side boundary setbacks, overshadowing to 28 Kings Rd, and excessive bulk and scale (unreasonable sense of enclosure). The application to the Court was lodged on 4 December 2009. 6 The issues between the parties as identified in the Council's Statement of Facts and Contentions filed on 5 February 2010 concern non-compliance with the requirements of the Woollahra Residential Development Control Plan 2003 (the RDCP) in relation to Floor Space Ratio (FSR), the number of storeys, the side boundary setbacks, and the overshadowing requirement in relation to the adjoining property to the south (28 Kings Road); insufficient pool fencing on the northern boundary; and insufficient information relating to the excavation required. 7 On 22 February 2010 the Council considered the matter and resolved to seek to enter into consent orders, subject to amendments to the proposed dwelling and to the landscape plan as recommended by the Council's consultant town planner, in order to reduce the extent of non-compliance with the requirements of the RDCP and to maintain the amenity of surrounding properties in terms of privacy, visual amenity, solar access and views. 8 The matter commenced on site on 26 February 2010 as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The matter was adjourned and the conciliation conference resumed on site on 23 April 2010. The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented pursuant to s34(4)(b)(ii) of the Court Act to my determining the matter on the basis of the evidence provided on 26 February 2010 and 23 April 2010. Leave was granted for the applicant to rely on amended architectural plans and landscape plan; the parties agreed that the amendments were minor for the purposes of s97B of the Act. Final amended plans and agreed conditions were filed on 8 June 2010. Planning Controls 9 The site is zoned Residential 2(a) under the Woollahra Local Environmental Plan 1995 (the LEP) and the proposed development is permissible with consent. 10 The Woollahra Residential Development Control Plan 2003 (the RDCP) applies. The site is in the Vaucluse East Precinct, and particular controls are provided in part 4.14 of the RDCP. 11 The desired future character objectives for the Vaucluse East Precinct are as follows: O 4.14.1 To retain the scenic qualities provide by the dramatic topography, natural vegetation and low scale built elements of the precinct; O 4.14.2 To reinforce the precinct's landscape setting by minimising alterations to the landform and preserving the existing tree canopy; O 4.14.3 To maintain mature street trees, grassed verges and garden plantings; O 4.14.4 To protect important views from the public spaces of the precinct to the harbour, the city skyline and to the surrounding districts; O 4.14.5 To maintain the evolution of low rise residential building styles through the introduction of good contemporary buildings. 12 The desired future character performance criteria include C4.14.7.3 Building Height -Storeys: Development is to have a maximum height of two storeys. Where the landform of a site falls more than two metres from the street to the rear of the property an additional basement storey may be permitted provided all other RDCP controls are met. 13 Performance criterion C4.14.7.4 limits solid front fences to a height of 1.2m. 14 Part 5 of the RDCP provides general controls. Part 5.1 provides for streetscape, and includes as an objective a requirement that development contribute to cohesive streetscapes and desirable pedestrian environments. 15 Controls for building size and location are provided in part 5.2. The objectives of part 5.2 are: O 5.2.1 To preserve established tree and vegetation networks and promote new networks by ensuring sufficient areas for deep soil planting and sufficient setbacks between the rear of buildings. O 5.2.2 To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents. O 5.2.3 To ensure the form and scale of development is not excessive and maintains the continuity of building forms and front setbacks in the street. O 5.2.4 To limit site excavation and minimise cut and fill to ensure that building form relates to the topography and to protect the amenity of adjoining properties both during and after construction.

16 Performance criterion C5.2.13 requires that sunlight is provided to at least 50% (or 35m2 with minimum dimension 2.5m, whichever is smaller) of the main ground level private open space of adjacent properties for a minimum of two hours between 9am and 3pm on June 21, and that where existing overshadowing is greater than this, sunlight is not further reduced. Performance criterion C 5.2.14 requires that north-facing windows to habitable rooms of neighbouring dwellings do not have sunlight reduced to less than 3 hours between 9.00am and 3.00pm on 21 June. 17 Side boundary setbacks are provided for in part 5.2.5, and require a minimum side boundary setback of 1.5m for development up to 3m in height on an allotment with a frontage width between 12m and 15m; this minimum setback increases on a pro rata basis by 0.5m for every 1m of height above 3m. 18 The maximum permissible floor space ratio for the site is 0.55:1 as determined in accordance with criterion C5.2.9. 19 Views are provided for in part 5.5 of the RDCP. The objectives are: O 5.5.1 To protect and enhance opportunities for vistas and views from streets and other public places. O 5.5.2 To encourage view sharing as a means of ensuring equitable access to views from dwellings. 0.5.5.3 To protect and enhance existing views and vistas from streets and other public spaces. O 5.5.4 To provide additional views and vistas from streets and other public spaces where opportunities arise. Evidence 20 The development application was publicly notified, and re-notified after the replacement application was lodged with the Council. A number of written objections were received, and are included in the Council's bundle of documents which are before the Court. The owners of 28 Kings Road, 35 Kings Road, 37 Kings Road and 5 Princes Ave gave oral evidence on site on 26 February 2010. On the resumption of the conciliation conference on site on 23 April 2010, the new owner of 37 Kings Road gave evidence, and further evidence was given by the son of the owner of 5 Princes Ave on his father's behalf. During the conciliation conference there was an opportunity to view the site from 28 Kings Road, 35 Kings Road, 37 Kings Road and 5 Princes Ave. 21 The owners of 28 Kings Road, the adjoining property to the south of the site, stated their concerns as being with overshadowing of their clothes line which is on the northern side of their house; the reduction of solar access to the front three bedrooms of the house; and the extent of excavation required. The owners of 35 Kings Road stated their concerns as being with the impact on their views across to Clifton Gardens, through the protrusion of solar panels above the roof of the house, and the proposed landscaping at the front of the house. The owner of 37 Kings Road stated her concerns as being with the design, and impact on streetscape, and the loss of water views from her top balcony. The owner of 5 Princes Ave stated his concern with the loss of views, particularly from his kitchen, and the loss of quiet enjoyment which he has had living there since 1928. 22 Expert planning evidence was given on behalf of the applicant by Mr Tony Moody and on behalf of the Council by Mr Neil Kennan and by Mr David Booth, Council planner. Mr George Palmer, arborist, gave arboricultural evidence on site on 23 April 2010.

Consideration Compliance with the requirements of the RDCP 23 The Development Application Assessment Report prepared in relation to the replacement development application recommended that development consent be granted to the application, subject to amendments to the proposed landscaping to maintain amenity of surrounding properties in terms of privacy, visual amenity, solar access and views; and changes to the rear and side setbacks of level 2 of the building to reduce the extent of non-compliance with RDCP requirements and mitigate adverse visual impacts on adjoining properties at 3 and 5 Princes Ave and visual and overshadowing impacts on 28 Kings Rd. 24 The architectural plans have been amended during the course of the proceedings following discussion between the expert planners, and the applicants' architects. The southern side boundary setback has been increased by 300mm at levels 1 and 2 along the front 8.2m part of the building; as a result the corresponding northern edge of the building has been moved 200mm towards the northern side boundary. The front of the building has moved 200mm closer to the street. The northern side setback at the rear of level 2 has increased by 700mm for the length of the ensuite to the master bedroom, approximately 6.2m; and the southern edge of the master bedroom has moved towards the southern side boundary by 300mm. The blade wall proposed along the northern façade for the width of the balcony off the master bedroom, 1.2m, has been deleted at level 2 and replaced by clear balustrading. The northern wall at the rear of level 2 is now articulated, with the inclusion of planters and skylights. 25 The dwelling as now proposed has a setback of 2m from the northern boundary, and 1.5m from the southern boundary at its closest point, extending to 2m at the rear of the building; has three storeys including the basement area, which includes space for two cars; and has a FSR of 0.77:1 including the below ground elements. It was common ground that the side setback on the northern side of the building does not comply with the RDCP; that the FSR exceeds the RDCP control of 0.55:1; and that the building at three storeys does not comply with the RDCP requirement. 26 The RDCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. The provisions of the RDCP are not determinative, and in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [27], the Court of Appeal confirmed that while I am not entitled to take the view that the standards set by the RDCP are inappropriate for reasons of general policy, it is open to take the view that, for reasons related to a particular site, it is not appropriate to compel compliance with its requirements. 27 It was common ground between the town planning experts that the side setback on the southern side is consistent with the setback requirements in the RDCP. I accept the evidence of the experts that the articulation of the southern wall near the eastern side of the building assists in reducing the sense of enclosure that might otherwise adversely impact on 28 Kings Rd, and that as a consequence on an overall assessment the proposal does not represent excessive bulk and scale. In considering solar access to 28 Kings Rd, the evidence before me in the form of the assessment undertaken in the Development Application Assessment Report, and the expert planning evidence in relation to the application as amended during the course of the proceedings, was that the proposal now before the Court will overshadow one of the north facing windows of 28 Kings Rd during the period specified in the RDCP, which requires solar access to be maintained for a minimum of 3 hours between 9am and 3pm on June 21. I accept the expert evidence that to achieve this solar access would require a setback of between 6.5 to 7m on that side boundary, which is not feasible. I accept the expert evidence that the increase in the rear setback of the building enables solar access which meets the requirements of the RDCP for the main living area of No 28 at the rear of the house. I am satisfied that the proposal meets the requirements at part C5.2.12 of the RDCP for solar access to private open space; while it does not comply with part C5.2.13 in relation to one bedroom, I am satisfied that compliance is not, in the circumstances of this site, feasible. The proposed height limitation on plantings along the southern boundary will ensure no that there is no additional overshadowing. The experts agreed that there is no overshadowing of properties to the north, east or west of the site. 28 The RDCP contemplates that three storeys may be acceptable where the landform of a site falls more than 2m from the street to the rear of the property: in those circumstances, an additional basement storey may be permitted if all other RDCP controls are met. It was common ground that this proposal does not meet all other RDCP controls. However, I accept the expert evidence that in the context where the inclusion of the basement storey enables car access and parking to be located away from the street frontage, and where the proposed building is well within the overall height limit of 9.5m, the non compliance does not adversely impact on the streetscape or views and the proposal is consistent with the desired future character objectives for the Vaucluse East precinct. 29 The experts agreed that the FSR of the building is 0.77:1, which exceeds the RDCP control of 0.55:1. I accept their evidence that the above ground elements of the building are within the required FSR, and agree that there are benefits in having the provision of vehicle movement and parking in the basement rather than being at street level. I accept the expert evidence that the proposed dwelling presents from the public domain as a two storey dwelling, and that the form and scale are not excessive, and accordingly I am satisfied that the objectives of this control are met. Impact on views 30 It was common ground that the flat roof of the proposed dwelling is 590mm higher than the pitched roof apex of the existing house, and is within the 9.5m maximum height specified in the RDCP. The landscape plan has been amended during the course of the proceedings to address concerns about proposed plantings expressed by neighbouring residents. The landscape plan now before the Court incorporates revised survey levels and specifies plantings on the northern boundary to reach a maximum height of no higher than 1.8m above the existing boundary wall, and plantings along the street frontage to reach no higher than the new roof line. 31 The original proposal included the retention of a Canary Island palm currently at the rear of the property on the boundary of No 5 Princes Avenue, or its relocation somewhere else on site. It was common ground that because of its eventual height, the retention of the palm in its present location has impacts on the views from 3 Princes Ave, and that relocation of the palm either at the rear or front of the proposed building would impact on other views. The landscape plan as amended requires the removal of this tree. The Council did not oppose its removal, and Mr Booth's evidence was that it does not contribute to the streetscape and is covered by the Council's Tree Preservation Order solely because of its height. I accept the evidence of Mr Palmer, which was that this tree could reach 15m at maturity, and that it is not an ideal species for this situation because of its spiky fronds and susceptibility to wilt. I am satisfied that is appropriate that the landscape plan include the removal of this tree. 32 The Council did not include in its contentions the issue of impact on views or view sharing. In considering the objections raised by neighbouring residents relating to impact on views, it is appropriate to start with the objectives stated at part 5.5 of the RDCP, which include "to encourage view sharing as a means of ensuring equitable access to views from dwellings". In relation to private views, part 5.5 provides: "View sharing" concerns the equitable distribution of views between properties. The RDCP's view sharing controls seek to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties. 33 I note the principles concerning view sharing set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. This decision was referred to by the neighbouring residents, and the principles formed the basis of the assessment of visual impact undertaken in the Development Application Assessment Report. The Senior Commissioner said: 24. Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable.

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.

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.

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.

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.

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.

34 The views from the properties visited during the conciliation conference are accurately described in the Development Application Assessment Report as being "expansive views of the harbour, adjoining foreshore areas, Sydney Harbour Bridge, Sydney Opera House and the City and North Sydney skylines". Based on the site view, I accept that the proposed building will block some part of the views from the first floor front terraces of 35 and 37 Kings Rd across to Middle Head; however, the proposed removal of the existing pine tree at the front of the site will open up iconic views of the Sydney CBD, the Harbour Bridge and the Opera House from 35 and 37 Kings Rd. The landscape plan has been amended to limit the proposed plantings at the front of the site to no higher than the new roof line. I am satisfied that the view impact for these properties is consistent with the objective at part 5.5 of the RDCP of striking a balance between facilitating new development while preserving the most significant access to views from these properties. 35 The subdivision pattern is a relevant factor in assessment of impact on views from the properties on Princes Ave, in accordance with the second step in Tenacity. I accept the expert evidence that the modifications to the rear of the building, in particular the increase in rear setback and the removal of part of the blade wall, together with the removal of the Canary Island palm and the proposed restrictions on the height of screening planting on the northern side boundary, mean that the proposal does not result in any significant loss of views of the main section of the harbour and the Sydney CBD from the adjoining properties in Princes Ave. I am satisfied that the view sharing objective of part 5.5 of the RDCP is met. Conclusion 36 I am satisfied that the proposal now before the Court meets the objectives of the applicable planning controls and should be approved. The agreed conditions include Condition A.5 which specifies height limitations at maturity for plantings in the separate areas of landscaping by reference to the revised survey levels; condition C.9 which requires geotechnical and hydrogeological certification and monitoring for excavation; and preparation of dilapidation reports for neighbouring properties including 28 Kings Rd and 3 Princes Ave. 37 The Orders of the Court are: 1. Appeal upheld. 2. Development application DA 532/2008 for the demolition of an existing dwelling and the erection of a dwelling at 30 Kings Road Vaucluse is approved, subject to the conditions in Annexure A. 3. Exhibits are returned. Linda Pearson Commissioner of the Court

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