Manderrah Pty Ltd v Woollahra Municipal Council and Anor

Land and Environment Court (NSW)|2013-09-03|Before: Mr P

Judgment 1This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Woollahra Municipal Council (council) of a development application under State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (SEPP 2004) for infill self care housing at 119-121 Queen Street, Woollahra. 2The council has raised the following key contentions as to why the application should be refused:

the height, number of storeys and bulk of the proposal is excessive;
the impact on the heritage significance of adjoining heritage items and the Woollahra Heritage Conservation Area; and
the excavation and construction impacts. 3Council's concerns about accessibility (Contention 4) were resolved through amended plans, including a footpath to provide accessible access to 119 Queen Street from Queen Street. 4Mr G Edmonds was granted leave to be joined as a party in the proceedings and to submit evidence on additional contentions regarding the impact of the excavation on the groundwater system and traffic impacts in Morton Lane (see Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 and Manderrah Pty Ltd v Woollahra Municipal Council No 2 [2013] NSWLEC 115).

Site and locality 5The site comprises two allotments (119 and 121 Queen Street) located on the southern side of Queen Street, approximately half way between the intersections of Ocean Street and Moncur Street. The site slopes from the rear (south) to Queen Street (north) by about three metres. It is heavily vegetated with a number of canopy trees. 6119 Queen Street is a rectangular shaped lot with a frontage to Queen Street of 15.4m, a rear boundary to Morton Lane of 16.2m and side boundaries of 51.3m and a total site area of 790sqm. It is developed with a cottage with an attic and a detached two storey garage in the south western corner fronting Morton Lane. 7121 Queen Street is irregular in shape with a frontage to Queen Street of 21.2m, a depth between 26.74mm and 62m and a total site area of 1653sqm. It is developed with a three storey aged care facility located to the rear of the site with parking off Morton Lane. 8The site is within the Queen Street precinct, which includes a mixture of retail, commercial and residential uses. Retail shops are located to the west and opposite the site. The site adjoins detached residential dwellings to west (St Kevins, 117 Queens Street) and to the east (the former ES&A Bank, 123 Queen Street and 123A Queen Street). The rear of the site adjoins Morton Lane and dwellings at 62-70 John Street.

The proposal 9The development application was lodged on 1 June 2012 (the original application). The applicant appealed against the deemed refusal of the application and, following the termination of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), the applicant sought and was granted leave to rely on amended plans (the amended application). Council refused the original application on 7 January 2013. 10The amended application includes:

Demolition of the existing aged care hostel at 121 Queen Street;
Excavation for a basement car park for 17 resident spaces and two visitor spaces accessed off Morton Lane;
Construction of a three to four storey infill seniors self care housing development above the basement containing 13 self contained residential units;
Refurbishment of an existing single storey (with attic) cottage at 119 Queen Street to accommodate 1x2 bedroom unit with attic space;
Removal of trees and landscaping works. 11The part of the new infill building at the front of 121 Queen Street (infill building) is three storeys with a "mansard" roof (four residential levels). The part of the new infill building at the rear of 121 Queen Street is two storeys with a "mansard" (three residential levels). The part of the new infill building at the rear of 119 Queen Street that fronts Morton Lane is two storeys with an attic roof (three residential levels). The ground level in each part of the new infill building is partially excavated below existing ground level.

Planning framework 12The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (WLEP). Housing for seniors and people with a disability is not permissible within the zone under WLEP. However, the proposal is permissible with consent under SEPP 2004. Residential flat buildings are also not permissible within the 2(a) zone under WLEP. 13119 Queen Street, and the adjoining properties at 117 Queen St and 123 Queen Street are identified as heritage items under WLEP. The site is within the Woollahra HCA. WLEP requires that consent cannot be granted unless consideration has been given to the extent to which the proposed development would impact on the heritage significance of the item (cl 26(2)), heritage items in the vicinity of the development (cl 27) and the heritage conservation area (cl 28(2)). 14The aims of SEPP 2004 are set out in cl 2 as: 2 Aims of Policy (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. (2) These aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes. 15The proposal does not comply with cl 40(4) of SEPP 2004 which provides: 40(4) Height in zones where residential flat buildings are not permittedIf the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and Note. Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a). (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. (c) a building located in the rear 25% area of the site must not exceed 1 storey in height. 16Clause 3 of SEPP 2004 provides the following relevant definitions: ground level means the level of the site before development is carried out pursuant to this Policy. height in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point. 17The Applicant has submitted an application under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) as to why compliance with cl 40(4) is unreasonable and unnecessary. The parties disagree whether the SEPP 1 objection is well founded. 18The parties disagree whether the proposal has adequately considered the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004 (Seniors Guidelines), as required under cl 31 of SEPP 2004. 19Clause 32 of SEPP 2004 provides 32 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. 20Division 2 includes the principles for neighbourhood amenity and streetscape in cl 33 of the SEPP 2004. The parties disagree whether adequate regard has been given to the following principles in cl 33: 33 Neighbourhood amenity and streetscape The proposed development should: ...... (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and ....... 21The proposal has a floor space ratio (FSR) of at least 1.1:1 (council estimates the FSR to be 1.26:1), which exceeds the deemed to comply standard in cl 50(b) of SEPP 2004 of 0.5:1. Council contends that this is indicative of the over development of the site, given that the FSR under WLEP is 0.55:1. 22Under the Woollahra Heritage Development Control Plan (HDCP) the site is within the Queens Street Precinct of the Woollahra HCA. The HDCP includes objectives and controls for development within the conservation area, which indicate the desired future character and the conservation objectives sought for the area. 23There was reference to some of the requirements of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) in the council's contentions and in the evidence. However, is unclear whether SEPP 65 applies to the development and the parties framed there respective cases by reference to the requirements of SEPP 2004. Accordingly that planning instrument is the focus of the discussion below.

Evidence 24The Court visited the site, surrounding area and a number of properties and heard evidence from objectors. The key concern of the objectors was that the proposed development was an overdevelopment of the site and not compatible with the character of the area. They raised concerns about the overall height and number of storeys, which exceed the planning controls and would have an adverse visual impact when viewed from the street and adjoining properties. They considered the proposal to be a significant increase in height and bulk when compared to the existing aged care facility on the site, which is already out of character with the area. The increased height and bulk would impact on the amenity of their properties through loss of solar access and sky exposure, privacy and overlooking impacts, view loss and visual bulk. 25The objectors regarded the design of the proposal to be inappropriate within the context of heritage buildings and a conservation area, particularly the scale relationship of the infill building with 119 Queen Street. The extent of demolition and alteration to 119 Queen Street and the proximity of the new building at its rear were inappropriate changes to a heritage item. 26Some objectors provided reports to support their opinion on the above issues. These include an extensive report prepared by Mr M Harrison, architect and urban designer, on behalf of Mr Edmonds. This was not "expert evidence" in accordance with the Expert Witness Code of Conduct in Schedule 7 of Uniform Civil Procedure Rules 2005. The experts in the proceedings addressed matters raised in this report and other resident evidence. 27The objectors were also concerned about the traffic likely to be generated by the proposal and the access to development from Morton Lane via Dorhauer Lane. Both these lanes are narrow and residents already experience unsafe traffic conditions, which will be exacerbated by the proposal. They also thought that the extent of excavation was excessive and would impact on their amenity during the construction period. The excavation would also impact on the shallow ground water system and adequate investigation and assessment had not been undertaken to be satisfied that the proposal would not cause damage to their properties. These issues reflect the contentions raised by Mr Edmonds and were addressed by expert evidence. 28The Court heard evidence from the following experts: for the Council

Ms A Parkins heritage consultant
Mr T Jones, urban design planner
Mr S Taylor, town planner for the second respondent
Mr C McLaren, traffic consultant
Mr I Grey, hydrogeologist for the applicant
Mr G Kennedy, traffic consultant
Mr T Winning, road safety auditor
Mr A Zenon, geotechnical engineer
Mr G Brooks, heritage consultant
Mr P Cantrill, urban design consultant
Mr T Moody, town planner Is the SEPP 1 objection well founded? 29Mr Moody prepared an objection under SEPP 1 to cl 40(4) of SEPP 2004 for the original application. Consistent with the approach outlined by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, Mr Moody established the underlying objectives of each sub clause of cl 40(4) to determine whether compliance with the standard is unreasonable and unnecessary. In his SEPP 1 objection, Mr Moody also considered that the proposal was consistent with the objectives of the Residential 2(a) zone under WLEP, did not raise unreasonable amenity impacts, would conserve the heritage item at 119 Queen Street, satisfies the objectives of the EPA Act and would facilitate the objectives of SEPP 2004 to provide seniors housing on a site that is well suited to this use. In his opinion, the SEPP 1 objection was well founded. Clause 40(4)(a) of SEPP 2004 30Mr Moody and Mr Taylor agree that in the absence of stated objectives for the 8m height control in cl 40(4)(a) of SEPP 2004, the objectives of the height control in cl 12AA of WLEP are an appropriate guide (see Navenski Pty Ltd v Rockdale City Council [2010] NSW LEC 2008). The particular objectives which these experts disagree are met are: (b) to provide compatibility with the adjoining residential neighbourhood, ..... (e) to maintain the amenity of the public domain by preserving ....... the special qualities of streetscapes. 31Mr Moody also referred to the decision in De Stoop v Ku ring gai Council [2010] NSWLEC 1019, where Murrell C states at [60] that the underlying purpose of the standard in cl 40(a) is: to provide a development that will be compatible with the adjoining residential area and not create adverse impacts having regard to the desirable elements of the location and character of the area. 32The experts agree that "technically" the proposal does not comply with the 8m height control, which is measured from existing ground to the ceiling of the topmost floor. Within the context of the conservation area and heritage items, all the experts agree that it is appropriate that the development have a roof element and they do not object, in principle, to a mansard style roof. They also agree that other buildings in the street have rooms in the roof and attics. The key disagreement is the degree of visibility of the mansard level when viewed from Queen Street, whether it will be perceived as a roof form or as a residential floor and whether the height of the infill building is compatible with its context. 33In Mr Moody's opinion, the topmost floor will be perceived as a roof rather than a storey and will not be readily visible. The infill building is setback from the street and the mansard element is setback from the floors below and would be largely screened from the street by the parapet and intervening landscaping. Mr Moody therefore considers that, although the proposal exceeds 8m, its overall height is consistent with what is envisaged by the control for a built form to 8m with a roof above and does not exceed the height of other buildings in the street or nearby properties. In his opinion, the development is compatible with the adjoining residential development and preserves the special qualities of the streetscape. He also considers that the height of the proposal does not result in adverse amenity impacts of overshadowing, privacy or loss of views and the outlook from the adjoining properties will be enhanced through appropriate built form and landscaping. In his opinion, the objectives of cl 40(4)(a) are met. 34Mr Cantrill and Mr Brooks support Mr Moody's opinion. They consider that the mansard roof form is appropriate given that the surrounding area contains highly varied roof forms and buildings of different height and bulk. They referred to the recent development at 168 Queen Street, which is on a prominent corner and has an addition with a mansard roof that is designed to be viewed. They considered this to be a contemporary example of a mansard roof form, which responds appropriately to its context. 35Mr Jones considered the mansard roof would be perceived as an upper storey rather than a roof form when viewed from Queen Street due to the large glass doors, which open onto a terrace with a glass balustrade behind the parapet. In his opinion, the terrace and built form would appear as residential accommodation not as an "attic" in a roof. The upper floor is different to the appearance of other attics in the streetscape where the accommodation is internalised within recessive traditional roof forms, with only minimal openings or dormers. The mansard roof on 168 Queen Street is different to the proposal as it is built to the building edge, has limited openings, no terraces and is clearly visible as a roof to a two storey building. 36Ms Parkins accepted that the mansard roof was an appropriate roof form but did not consider that it was sufficient to reduce the impacts of height and bulk of the proposal on the streetscape and adjoining heritage items. In particular, she was concerned about the abrupt relationship of the infill building with 119 Queen Street. In her opinion, the setback of the building and the mansard were inadequate to mitigate the change in scale between the different heights of these buildings. 37Mr Taylor notes that no part of the topmost floor complies with the 8m height control with the maximum height of the development being 10.4m measured to the ceiling of the mansard near the front of the infill building where it faces Queen Street. Furthermore the proposal exceeds the 9.5m height control in WLEP which is measured to the top of the roof. In his opinion, the mansard will be clearly visible from in front of 130 to 136 Queen Street and from some adjoining properties. It exceeds the height of the buildings on the southern side of Queen Street, with the exception of the chimney at 123, and the roof of 117 Queen Street, which is steeply pitched and presents significantly less bulk to Queen Street than the proposal. 38Mr Taylor accepted that the proposal does not result in unreasonable amenity impacts of overshadowing, privacy or loss of views but considered that the height of the infill building would impact on the outlook and sense of enclosure from 123, 123A and 117 Queen Street and properties in John Street. In his opinion, the proposal does not meet the objectives of the standard as it is not compatible with the adjoining residential neighbourhood and does not preserve the special qualities of the streetscape. Clause 40(4)(b) of SEPP 2004 39In relation to cl 40(4)(b) of SEPP 2004, Mr Moody and Mr Taylor accepted that the purpose of the two storey height control is to avoid an abrupt change in the scale of development in the streetscape as set out in the note to the control. They agreed that this was not limited to the streetscape impacts but also the impacts on adjoining properties. 40The key difference between the experts was whether the proposal would appear as a four storey building or as a two to three storey building plus a roof, particularly when viewed from Queen Street. They also disagreed on whether the proposal would result in an abrupt change in scale in the streetscape. 41Mr Cantrill considered the overall height control to be more important and a "finer" control than the number of storey control in determining whether a building fits into its streetscape. Mr Jones held the contrary position that the number of storeys, within a heritage conservation area, is more relevant in responding to the character of the area. 42In Mr Cantrill's opinion, the proposal would appear as a three storey building with a mansard roof from Queen Street. He noted that there are other three storey buildings with rooves in the locality and referred to the nearby interwar residential flat buildings, which he considered to be in the visual catchment of the site. Furthermore, he stated that, although buildings in the locality are predominantly two storeys plus a roof (some with accommodation), the floor to floor heights are significantly higher than the proposal. Consequently a greater number of storeys can be provided within a similar overall height without an abrupt change of scale. Mr Cantrill considered that the relevant change of scale is between the infill building and 123 Queen Street. 119 Queen Street is within the site and therefore the scale change between the infill building and 119 is not a consideration under cl 40(4)(b). The scale relationship between 119 and 117 Queen Street may be considered as an abrupt change but it already exists and is acceptable. Mr Moody and Mr Brooks expressed similar opinions. 43Mr Jones considered that the infill building would appear as four storeys. For the reasons discussed above, the mansard level would be perceived as habitable floor from Queen Street. The ground floor would appear as a storey, albeit at a lower level due to it being "sunken" below existing ground level. The buildings in the street were predominantly two storeys with a roof. The residential flat buildings cannot be seen in the same view corridor as the infill building and therefore do not justify a three (or four) storey building. While the infill building is similar in overall height to 123 Queen Street, the scale relationship of the number of storey is different. Mr Jones considered that there would be an abrupt change in scale between the four storey infill building and the one storey plus attic cottage at 119 Queen Street which, in his opinion, is a relevant consideration. Ms Parkins and Mr Taylor held similar opinions to Mr Jones. These experts agreed that the abrupt change in scale of the development in the streetscape could be ameliorated by the removal of a floor, thereby resulting in a two storey infill building with a mansard roof. 44For similar reasons to those expressed in considering cl 40(4)(a), the council experts were of the opinion that the number of storeys would adversely impact on the amenity of adjoining properties, whereas the applicant's experts considered the impacts to be acceptable. Clause 40(4)(c) of WLEP 45Mr Moody reviewed a number of cases, which considered the objective of the standard relating to one storey building height in the rear 25% of the site in cl 40(4)(c) of SEPP 2004. He concluded that the objective of the control is: To limit the bulk and scale of a building, to provide adequate separation between buildings and to minimise any likely impacts of a building on the amenity of adjoining properties by way of overshadowing, privacy, view loss or ventilation impacts. 46Mr Taylor agreed with the underlying objective stated by Mr Moody. Mr Cantrill and Mr Jones considered the objective of the control is primarily to protect the amenity of the rear of adjacent properties, particularly the relationship of built form to open space. The experts disagreed on the area that comprises the rear 25% of the site and whether the objectives of the control are achieved. 47Mr Moody acknowledged that there would be a change in outlook from the adjoining properties but considered this to be reasonable subject to the deletion of the south western bedroom to unit 14 on the mansard level. He considered this bedroom would be clearly visible from 64 John Street and intrude into the view corridor currently enjoyed by this property. The applicant accepted this recommended change. 48In Mr Moody's opinion, the non compliance with the one storey control was acceptable due to the separation between the built form, particularly the properties opposite the site which are separated by Morton Lane (58 and 60 John Street). A number of the John Street properties have high hedges that obscure the existing and proposed development. Some properties are at a higher level than the site and consequently the height and bulk of the proposal will be acceptable despite the additional storey and mansard roof. Furthermore Mr Moody considered that the proposed development would improve the architectural and landscape appearance of the site when viewed from the John Street properties. 49Mr Moody considered that the new building in the rear 25% of 119 Queen Street would be perceived as a one storey building with a roof which replaces an existing structure built along the boundary. The proposal, where it adjoins 123 and 123A Queen Street, is outside the area of the site affected by the one storey control and, for the reasons outlined above, has acceptable height, bulk and amenity impacts. 50Mr Taylor considered that the bulk and scale of the development within the rear 25% far exceeds that envisaged by the control and increases the visual impacts of the building it replaces. He referred to the rear setbacks of the properties at 58-70 John Street, which average about 11.8m, as being a desired outcome for the heritage conservation area. Above ground level, the proposal provides a similar setback to the rear of 121 Queen Street as the existing building (6.8m) but an additional storey is proposed as well as new building in the rear of 119 Queen Street, which both partially intrude into the rear 25% of the site. He considered that the "impact on the outlook from properties in John Street is pronounced. The existing outlook presently includes a combination of built form and landscaping. It will be replaced with a building of additional height and bulk but with a subsequent loss in landscape character". However, Mr Taylor acknowledged that the appearance of the proposed building and landscaping from the rear would be an improvement when compared to the existing situation. 51Mr Taylor also considered that the number of storeys at the rear of the infill building would result in inadequate separation, a sense of enclosure and a loss of outlook from 117, 123 and 123A Queen Street. Findings 52In Wehbe Preston CJ comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states at [39] to [40] that the Court must be satisfied of the following three matters: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: "(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and coordination of the orderly and economic use and development of land." 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 53At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states: 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard... 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 54The proposal does not comply with cll 40(4)(a), (b) and (c) of SEPP 2004 and the applicant lodged a SEPP 1 objection to the original application. Contention 1 - Height, number of storeys and bulk and scale refers to the proposal's non compliance with cl 40(4) of SEPP 2004 and that "An amended SEPP 1 objection has not been received". Mr Hemmings, for the applicant, submits that this does not contend that the SEPP 1 is not well founded. He submits that the SEPP 1 objection, which accompanied the original application and the supplementary written and oral evidence of the experts, demonstrate that compliance with the standard is unreasonable and unnecessary. Mr Simington's submission, for the council, is that the SEPP 1 objection cannot be regarded as a well founded objection in writing as it relies on grounds that are incorrect and does not deal with matters that it should. 55Even if I accept that the applicant's reliance on the SEPP1 objection for the original application, supplemented by oral and written evidence, meets the requirements for a SEPP 1 objection as set out by Preston CJ in Wehbe at [38], for the reasons which I discuss below, I am not satisfied that the objection is well founded as the underlying objectives of cl 40(4) of SEPP 2004 are not achieved. As this is a precondition to consideration of the application on its merits and to granting consent, the application must fail. 56The experts generally agree on the objectives of each subclause of cl 40(4) but disagree on whether they are met and consequently whether compliance with the standard is unreasonable and unnecessary in the circumstances of the case. Clause 40(4)(a) of SEPP 2004 57There was general agreement that the height control in cl 40(4)(a), envisages a building form of 8m with a roof above. There is nothing inherent in the application of this subclause, which limits the number of storeys. Although, generally two habitable floors (with ceilings heights of 2.7m) would be achievable within a height limit of 8m to the ceiling of the topmost floor. In this development the top most floor is the mansard roof and the proposal exceeds the 8m height control. The applicant's experts rely on the exceedance being within a roof form, the overall height being consistent with that of other buildings in the street and the reduced visibility of the mansard level due to its setback from the street and the building to demonstrate that the proposal meets the objective of the height standard and that compliance is unreasonable and unnecessary. 58I do not accept that the objectives of the standard in cl 40(4)(a) are met. The extent of openings, glazing and terrace on the northern end of the mansard level mean it will read as a residential floor from Queen Street. Parts of the top level are not in a mansard roof form but have vertical walls with either glazing or roof cladding and terraces. These include parts of the building which are clearly visible from John Street such as the south west bedrooms to unit 14 and the north facing terrace and rooms to unit 14 which would be seen from 123 Queen Street. The steep pitch of the mansard and the floor to ceiling height mean that there would be little difference in its bulk when compared to an additional storey. The exceedance of the height control cannot be justified on the basis that it is within a roof form that is envisaged by the planning controls. 59While the overall height of the infill building is similar to the height of 123 Queen Street, this building is the exception in the immediate streetscape (Exhibit C), as it has a parapet form and is built close to the street alignment. 117 Queen Street has steeply pitched gable rooves; the ridge of the rear gable exceeds the height of the infill building and the ridge of the front gable is similar in height to the infill building. However, the gables present significantly less building bulk than the two floors below. 117 Queen Street and other buildings in the street generally comprise a built form with a pitched roof. The predominant height of these buildings when viewed from Queen Street is the line established by the built form and not the roof. 60The proposal, whether measured to the northern parapet (which slightly exceeds the 8m) or the mansard level (which exceeds the 8m by up to 2.4m) is higher than the predominant height of the built form of buildings (other than 123 Queen Street) in the visual catchment of the site. The residential flat buildings are not part of the immediate visual catchment but, even if they were, they are of modest height and bulk when compared to the proposal. The height of the proposal is therefore not compatible with the adjoining residential neighbourhood. 61The infill building is set back from the front boundary and the mansard level is further set back behind the northern parapet, which will reduce its visibility from Queen Street. However, it will be visible from the opposite side of Queen Street (Exhibit AA). Diagonal views of the northern and western side of the mansard level, over 119 Queen Street, would be available as one approaches the site from the west from about 132 Queen Street. These views will be softened and screened by the street trees and planting on the site and adjoining properties. However, the existing building on the site, which is set back further and is lower in height than the infill building, is visible from the street behind the trees. It is not compatible with the adjoining residential neighbourhood, not only because of its poor architecture but also because of its height and bulk, particularly in relation to 119 Queen Street. The proposal, while clearly of superior design to that of the existing building, will appear larger in height, width and depth and be closer to the street with reduced landscaped setting. Consequently, it will have a greater, and unacceptable impact on the special qualities of the streetscape. 62The mansard roof will be clearly visible from properties in John Street and will exceed the height control in subclause (a) and the storey controls in subclauses (b) and (c), which is discussed below. From 123 Queen Street, the mansard level will be visible to the south but generally not to the west due to its set back. Views to the infill building and the mansard roof would be available from the rear of 117 Queen Street. The experts agreed that there would not be amenity impacts of overshadowing, privacy and loss of views and that the infill building from these properties exceeds the 8m height control to a lesser extent than at the front of the site. Nevertheless, I accept that the increased height above the control, would contribute to the loss of outlook and sense of enclosure from these properties, particularly given the extent of the footprint of the building. 123A Queen Street is orientated away from the site and while there would be some impact on its outlook, the extent of sky exposure and sense of enclosure, the non compliance with the height control is not inconsistent with the objective of the control from this property. 63While I acknowledge that considerable effort has been undertaken to reduce the visibility of the upper level by setting it back in a mansard form, I accept Mr Jones's evidence that it will read as a habitable floor and will appear different to the other roof forms in the street, which contain habitable space. These attics, including the mansard roof at 168 Queen Street, generally spring from the walls below, with eaves, they have minimal openings and no large terraces. As such there is limited perception from the street of the use of the space within the roof. This is not the case with the infill building where large parts of the mansard roof are occupied by projecting glazed openings, terraces or vertical walls. While, this approach may be acceptable it does not justify the proposition that the mansard is a roof rather than an additional floor or that the overall height is consistent with that of other buildings in the street and that its visibility is reduced to the extent that it will not appear as an additional floor from certain vantage points. 64For these reasons, the exceedance in the height control does not meet the agreed objectives for cl 40(4)(a) of SEPP 2004: (b) to provide compatibility with the adjoining residential neighbourhood, ..... (e) to maintain the amenity of the public domain by preserving ....... the special qualities of streetscapes. Clause 40(4)(b) of SEPP 2004 65The proposal is four storeys, although the ground floor is partially sunken below existing ground level and the top floor is within a mansard form. Clause 40(4)(b) requires that a building that is adjacent to a boundary of the site...must be not more than 2 storeys in height. In its terms, the non compliance with this subclause may only apply to the infill building adjacent to boundary of 123 and 123A Queen Street. 119 Queen Street, which is adjacent to the boundary of 117 Queen Street, is one storey plus an attic and therefore complies with the control. 119 Queen Street is within the site and, in Mr Hemmings submission, the scale relationship between it and the infill building is not a relevant consideration under cl 40(4)(b). However, even if I accept this submission, the proposal does not achieve the objective of the control to limit abrupt changes in scale in the streetscape. 66I accept Mr Jones' evidence that in a heritage conservation area and on a site adjoining heritage items, the number of storeys is at least of equal, if not greater, importance than the overall height in determining whether an infill development fits into the streetscape. The number of storeys and their relationship with the adjoining building is a relevant consideration in determining whether there is an abrupt change in scale in the streetscape. 67The adjoining building at 123 Queen Street is two storeys. These storeys are considerably higher than the proposal and it would be unreasonable to expect the infill building to mimic the floor to floor heights of 123 Queen Street. However, it is not unreasonable for the proposal to better respond to the scale of this building. The proposed ground floor is partially sunken below the existing ground and appears significantly lower than the ground floor of 123 Queen Street, being roughly aligned with its verandah balustrade and the bottom of the ground floor windows. The proposed parapet is below the height of the parapet of 123 Queen Street and the top of the proposed mansard level is above the parapet of 123 Queen Street. Although the "loggia" of the infill building, which adjoins 123 Queen Street, is set back from the street, the scale relationship of the storeys of the two buildings would be apparent and is an abrupt change in the streetscape. 68123 Queen Street is a prominent building in the streetscape being higher and further forward than other buildings in the street. This, together with its parapet form, presents considerably greater bulk than other buildings in the street. The relationship of the overall height of 123 Queen Street to the overall height of the infill building may not result in an abrupt change in overall scale, however, together they present as an abrupt change in scale with other buildings in the streetscape. Clause 40(4)(c) of SEPP 2004 69The difference in opinion about the extent of the rear 25% of site area related to the south east corner of the site due to the location of the rear boundary of 123 Queen Street. The diagram prepared by Mr Cantrill (Ex G and Ex BB) indicates a line, which represents 25% of the site area between the front and rear boundary at a particular point. I accept that this is the correct interpretation of the control. However, the conclusions reached by Mr Taylor remain valid despite his different location of the 25% line. 70The primary objective of cl 40(4)(c) is to limit the bulk and scale of a building to protect the amenity of the rear of adjoining properties. Placing built form into the rear of a property which generally forms part of its open space and adjoins the open space of other properties to the side and rear can have significant impacts on amenity not only from loss of solar access, privacy and views but also from the presence of increased or new building bulk and the removal of landscaping. 71The existing aged care building on the site has a rear setback of about 6.8m. The new building at the rear of 121 Queen Street steps up from the rear boundary, with the first floor set back about 3m, the second floor about 6.5m and the mansard floor between 6.5m-9m. The new building at the rear of 119 Queen Street is located in an area of the site, which is currently landscaped and within the canopy of a significant fig tree (Tree 58) that is to be removed. The number of floors exceeds one storey and partially intrudes into the rear 25% of the site. 72As previously stated the mansard level will generally appear as a storey from the John Street properties. Consequently, the infill building is three storeys (as shown in the north south section in Ex D) and the floors that exceed the one storey control will be clearly visible from a number of properties in John Street. I do not accept that the separation afforded by Morton Lane, the change in levels, the intervening landscaping and the removal of the existing building would mitigate the impact of this non compliance which clearly is not envisaged by the control and does not meet its objective. 73While the amenity impacts of overshadowing, privacy and view loss may be acceptable, the additional height and bulk beyond the control will adversely impact on the amenity enjoyed from the rear of the properties in John Street. In particular, the height and bulk of the existing building already impacts on the outlook of these properties. This impact is mitigated to some extent by the significant canopy trees, including Tree 58, which form a landscaped backdrop to the existing building. The existing building is not as high, wide or deep as the proposal, and while of poor architectural quality, it has less impact than the proposal. 74The removal of a number of canopy trees is not being replaced by the landscaping proposed for the development. Along the rear of the site, the proposed trees will achieve a height of about 5m, which is not sufficient to screen the building or to replace the loss of the upper storey canopy trees, which contributes to the outlook and character of the area. In addition, there is limited canopy tree planting within the site, which would break up the footprint of the development. Particularly when viewed from the John Street properties, 117 and 123 Queen Street. 75For these reasons, I do not accept that the objective of cl 40 (4)(c) is met and that compliance with the one storey control is unreasonable or unnecessary in the circumstances of the case. MERIT ISSUES 76For the reasons discussed above, I have found that the SEPP 1 objection is not well founded and the application must therefore fail. For completeness, I will briefly discuss the other issues between the parties. 77The key concerns of the heritage and urban design experts on the merits of the proposal principally relate to the height, bulk and scale relationship of the infill building to 119 Queen Street, the adjoining heritage items and the Woollahra HCA. These issues are largely dealt with above in the discussion about the height of the building. Heritage 78The heritage experts agree that the site is located in the Queen Street Precinct of the Woollahra HCA and the character of the precinct is described in cl 3.3.3 of the HDCP. Within the Queen Street Precinct there is a sub-precinct between Moncur and Ocean Streets that demonstrates a distinctive urban character with a wide range of existing buildings and architectural styles. They described the local context and the contribution of individual buildings within this sub precinct. 79Mr Brooks and Ms Parkins agree "the introduction of new development into a conservation area should take the surrounding physical context and visibility of the new development from the primary areas of the public domain as major design parameters". They also agree that cl 2.5 of the HDCP provides relevant guidelines for the introduction of contemporary architecture into the Woollahra HCA. This generally encourages contemporary design for infill development "as long as it respects its context and achieves a cohesive relationship with historically significant existing fabric". The key disagreement between Mr Brooks and Ms Parkins is whether the proposed infill building achieves this outcome. 80Ms Parkins considers that the cumulative effect of the height, number of storeys, width and setback of the infill building results in a "dominant rather than a subservient or cohesive relationship with significant buildings within the Queen Street Precinct". She was particularly concerned about the scale relationship between the infill building and 119 Queen Street. Ms Parkins acknowledged that the mansard is an acceptable roof form but did not consider that it was sufficient to reduce the bulk or impact on the streetscape. Similarly she recognised that the stepped setback of the infill building "attempts to find a balance between the setbacks of adjacent properties...but to be subservient should be setback behind the cottage at 119 Queen Street". She acknowledged that the HDCP does not refer to the term "subservient" and that a cohesive relationship can be achieved without being subservient. 81Ms Parkins also considered that the design of the proposal did not respond to relevant cues of other significant buildings. She referred to elements such as the horizontality and extent of glazing, the relationship of the parapet to 123 Queen Street, the "sunken" ground floor, the heavy masonry form of the loggia and blade walls and the lack of detailing as being uncharacteristic. 82Mr Brooks accepts that it is important to respond to and take cues from the immediate context of the development. He considers the context of the site is an eclectic mix of buildings with varying heights, storeys, setbacks, roof forms, uses and styles and therefore the appropriate cues to which to respond are not clear. The infill building adds a contemporary layer of development, which fits well within this "complex compilation of buildings". In his opinion, the provision of accommodation within the mansard roof form is acceptable given the prominence of other roof forms in the street. The "breakfront" and setback create a transition between 123 Queen Street, which is built to the street alignment and 119 Queen St, which is set back. This is similar to the relationship between 119 Queen Street and 117 Queen Street and maintains the "spatial amphitheatre" that already exists. He referred to the vertical relationship between 117 Queen Street, which is separated from 119 Queen Street by about a metre and is significantly greater in height. He did not agree that the infill building needs to be subservient for it to be sympathetic and respect its context. 83Mr Brooks referred to the retention of 119 Queen Street and works such as the removal of the high front fence as positive conservation outcomes. He also considered the infill building to be of high architectural quality that would add to the eclectic character of the street. In his opinion, the details referred to by Ms Parkins did not detract from the contribution of the proposal to the HCA. Findings 84Clause 32 of SEPP 2004 provides that the consent authority must be satisfied that the proposed development has had adequate regard to principles, which relevantly include cll 33(b) and (d) that the development should: (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan (cl33(b)), and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line 85WLEP requires that consent cannot be granted unless consideration has been given to the extent to which the proposed development would impact on the heritage significance of the item (cl 26(2)), heritage items in the vicinity of the development (cl 27) and the heritage conservation area (cl 28(2)). 86The HDCP provides guidance on whether the proposal sensitively harmonises and does not adversely impact on the HCA and heritage items on the site and in its vicinity. In particular, cl 2.5 of the HDCP provides: Contemporary design in Woollahra ........ Council does not advocate replication of historic architectural styles or the use of pseudo-period detail in new development. By adding a layer of development which illustrates the ways of life and design approaches of the early 21st century, contemporary design can contribute to the rich history of the HCA and the expression of this history in the area's built fabric. Inventive and interpretive contemporary design solutions of high architectural quality may be quite different in spirit and appearance from existing fabric while still providing a positive contribution to the continued history of the HCA. Contemporary design for infill development and for additions to significant items is therefore encouraged as long as it respects its context and achieves a cohesive relationship with historically significant existing fabric. ....... 87The key disagreement between the heritage experts is whether the infill building respects its context and achieves a cohesive relationship with significant buildings, particularly 117, 119 and 123 Queen Street. This disagreement centres firstly on the "big picture" elements established by the building envelope and secondly, on the detailed design of the building. 88I accept Mr Brook's evidence that given the varied and eclectic nature of the context, the cues to which the proposal should respond are not clearly defined. While there are no predominant heights, setbacks, building widths and roof forms, there is a range within which the proposal should fit for it to respect its context and achieve a cohesive relationship. 89I accept that the "breakfront" setback of the proposal achieves an appropriate balance between the three heritage items as it steps back from 123 to 119 and 117 Queen Street. However, in respect to the other cues, the infill building responds to the extreme ends rather than fitting within the range. As discussed above, the infill building will be perceived as higher than other buildings. Similarly, the proposal is deeper and wider than other buildings and, although its frontage is staggered, setback from the street and softened by landscaping, it will appear as a larger and bulkier building than the existing building and other buildings within its context, which it should respect. 90While the HDCP does not refer to the term "subservient" I accept that for the proposal to sensitively harmonise with the conservation area, it should be of a height, bulk and scale, which maintains the "landmark" quality of 123 Queen Street and 117 Queen Street. Both these buildings are dominant elements in the streetscape, principally because 119 Queen Street is "subservient". While the existing building on the site does compete, its significant setback mitigates its impact. The proposed infill building will reduce the landmark quality of 117 and 123 Queen Street and overwhelm 119 Queen Street, which will have an adverse impact on their heritage significance. 91The objectors considered the extent of demolition and alterations to 119 Queen Street and the proximity of the building at its rear would adversely impact on its heritage significance and setting. The heritage experts did not share this view and referred to positive aspects of the proposal, such as the removal of the high front fence. I accept that works to the cottage would improve its appearance from the street, however, the significant demolition, excavation under the building and changes to the roof form would result in very little of the original fabric or form of the building being retained, other than the front rooms. The proximity of the sunken courtyard and the rear building provide little separation and space between it and the cottage. From the information available, I am not satisfied that the proposal would not adversely effect the significance of this item. 92For the above reasons, I find that the proposed development has not had adequate regard to principle in cl 33(b) of SEPP 2004. It does not retain, complement and sensitively harmonise with the HCA and the heritage items to the extent that consent should be granted. Impact of traffic on Morton Lane 93The key disagreement between Mr McLaren and Mr Kennedy was the conclusion in the Independent Road Safety Audit (RSA) undertaken by Mr Winning that there would be no increase in the risk from traffic generated by the development using Morton Lane. Mr McLaren did not accept the conclusion in the RSA as it did not take into account that alternative access is available from Queen Street and the poor sight distance at the junction of Dorhauer Lane and Morton Lane. 94Mr McLaren did not question the Roads and Maritime Service (RMS) traffic generation rates for a seniors living development (1.5-3 vehicle trips per hour) adopted in the RSA. However, in his oral evidence, he considered the traffic generation rates for medium density housing should be used (8-9 vehicle trips per hour). Based on these rates, Mr Winning revised his opinion to state that the risk may increase from low to medium, but that he had not included the traffic generated by the exiting use on the site, which would also affect this conclusion. He noted that he had considered the sightlines at the Morton Lane and Dorhauer Lane intersection in the RSA and that the risks were reduced as the vehicles using the lanes would be locals who were experienced with the intersection. 95Mr Kennedy stated that a safety audit of the lane was not required but had been undertaken to address the contentions of the Second Respondent. In his opinion, it was unnecessary to investigate the option of using Queen Street for vehicle access, as this had not been supported by council due to the further loss of vegetation and potential impacts on the heritage curtilage of the site and adjoining properties. There would be no adverse traffic impacts resulting from the low level of traffic generated by the development. Morton Lane is a short dead end lane that it is a low traffic volume environment. The site is located at the end of the lane and there would be no passing traffic at the end of the lane and limited incidence of vehicles passing at the head of the driveway or in the lane. Nevertheless, measures such as a passing bay at the top of the ramp, traffic signal system and camera in the lane have been provided to enable vehicles in the car park to view the length of the lane before exiting. 96Mr Kennedy did not accept that traffic generation rates for medium density development should be applied to the proposal. He referred to recent figures released by the RMS for seniors living developments, which would result in a traffic generation for the proposal of 4.14 vehicles per hour, which is similar to the rates utilised in the RSA, and supports the conclusion that the risk would remain low. Mr McLaren was aware of these figures but still questioned their applicability to the development. Findings 97A key concern of the residents was the potential for conflict for cars and pedestrians using Morton Lane, particularly at its intersection with Dorhauer Lane. They considered that it was already difficult to access their garages in the lane, to pass cars and to enter into Dorhauer Lane. In response to these concerns, which were raised as a contention by the Second Respondent, a RSA was prepared. This concluded that as a result of the increase in traffic generated by the development the safety risk in the lane would remain low. I accept these conclusions. 98The RSA was based on traffic generation rates, which are questioned by Mr McLaren. I do not accept Mr McLaren's belated opinion that traffic generation rates for medium density development should be utilised. The traffic generation rates used in the RSA are similar to the recent RMS figures. These are based on seniors living developments in metropolitan Sydney and provide an appropriate indicator of the level of traffic likely to be generated, which is low and unlikely to result in unacceptable traffic impacts that would warrant refusal of the application. Clearly a smaller development with less units would reduce the number of cars using the lane and further reduce the potential for conflict. 99I also do not consider that the conclusions of the RSA should be discounted as it did not consider alternative access from Queen Street. While this may be acceptable from a traffic point of view it would clearly adversely impact on the heritage and landscape character of the street. Excavation 100The experts disagree on the amount of excavation and the number of truck movements likely to be generated by the proposal. Based on either figure proffered by the parties there would be significant excavation. The level of excavation can clearly be reduced by a reduction in the number of units and resultant number of car spaces in the basement. The lowering of the building to provide an additional storey within the 8m height limit under SEPP 2004 and the extensive areas of storage also unreasonably increase the amount of excavation. Groundwater 101The key difference between the parties is whether the requirement for further assessment and investigation should be imposed as a deferred commencement condition. The experts agree that the site has a shallow aquifer with high rates of water flow and there is potential to impact on the water table unless the basement is correctly designed. 102Mr Grey considers that to date there had been inadequate assessment of the groundwater flows and that a design that mitigates potential impacts may not be achievable. Changes in soil moisture may induce settlement and possible damage to adjoining structures and detailed investigation should be undertaken prior to development consent. He notes that approval from the Office of Water may be required and that this should be done at an early stage. 103Mr Zenon acknowledges that further investigation needs to be undertaken prior to the detailed design of the tanked basement and that it is standard practice that this be required as part of the conditions of approval. He has no doubt that a basement can be designed which would mitigate the potential impacts to the aquifer and adjoining properties and has designed similar systems on many other occasions. 104The council accepted Mr Zenon's approach but at the request of the Second Respondent, has imposed a deferred commencement condition requiring that further investigation and design be referred to the Office of Water. The applicant does not support the referral requirement on the basis that it is unnecessary, as by law, it must obtain any relevant approvals. 105Mr McEwen SC, for the Second Respondent, submits that it is inappropriate for a consent authority to defer consideration of a relevant issue to a later stage and referred to numerous authorities including Centro Properties v Hurstville City Council (2004) 135 LGERA 257, Parramatta City Council v Hale (1982) 47 LGRA, Kindimindi v Lane Cove Council (2006) 143 LGERA 277, Weal v Bathurst City Council (2000) 111 LGERA 181. He submits: Section 79C requires assessment prior to determination to ensure the degree and significance of impact is able to be understood. The absence of sufficient and adequate information is a proper basis for refusal. Findings 106The impact on the groundwater system is a relevant matter to be given 'proper, genuine and realistic' consideration by a consent authority in determining the development application under s 79C. Mr Zenon has undertaken investigation of the existing groundwater conditions, albeit limited, but sufficient to identify the measures to be implemented to mitigate the potential impacts, including a tanked basement. Council has accepted this assessment and the proposal for a tanked basement as being adequate to mitigate the potential impacts. The final design of the basement has not been undertaken and will require further detailed investigation and design. 107I accept Mr Zenon's evidence that there is no reason to doubt that an appropriate tanked basement can be designed or to consider that the final design will significantly alter the proposal such that the consent is not final or is uncertain. I accept that it would be unreasonable to refuse the application on the basis of inadequate investigation or the absence of detailed design. I also accept that it is inappropriate to impose a deferred commencement condition which refers to the Office of Water. If approval is required from the Office of Water this will have to be obtained. Nonetheless, if the application were to be approved, the imposition of a deferred commencement condition, which requires further investigation and detailed design of the basement prior to the consent being operative, may be appropriate. Furthermore, a reduction in the extent and depth of excavation discussed above may reduce the potential for groundwater impacts.

Orders

The appeal is dismissed
The development application for alterations and additions to an existing heritage item, demolition of an existing building and construction of a new infill self care housing development at 119-121 Queen Street, Woollahra, is refused.
The exhibits, except Exhibits 8, R8 and R, may be returned. Annelise Tuor 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: 16 October 2013

(2004) 135 LGERA 257

(2006) 143 LGERA 277

(2000) 111 LGERA 181

(1999) 110 LGERA 262

At a glance

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