Marinovic v Willoughby City Council

The proposal 8The revised statement of facts and contentions filed by the council on 20 January 2011 (based on the amended plans filed on 15 December 2010) describes the development application as "...a part four storey dwelling comprising two habitable rooms with rooftop entrance, carport and vehicle turning area, as well as a driveway, swimming pool and associated landscaping on the undeveloped site." 9However, to understand the impact of the development in its locality it is necessary to have regard to the particular design detail. The same document describes it as: (a)the dwelling would project up to 11.2 m above natural ground level and would comprise the following levels within the site: (i)Level 1 - consisting of bedroom 2 with ensuite, bedroom 3 and bedroom 4/study with attached north facing deck, separate bathroom, family room, liftwell and stair to level 2, attached pool and deck area. (ii)Level 2 - consisting of bedroom 1 with ensuite and dressing room, separate powder room, laundry, kitchen, dining and lounge with attached east facing deck, liftwell and stairs to levels 1 and 3 and void over level 1 family room. (iii)Rooftop level - car turntable, carport, entrance lobby with void, liftwell and stair to lower levels, external driveway ramp and stairs. (iv)Undercroft area at eastern end of building (b)Construction of a new swimming pool along the southern boundary of the site with pool decking connecting the pool to the dwelling. The swimming pool structure would project up to 3 m above the natural ground level. The pool has been designed to connected with family room at level 1 of the new dwelling (c)Construction of driveway with elevated ramps, an attached stair and garage enclosure and letterbox within the access handle of the site, accessed by The Bulwark. (d)Landscape works generally comprising: (a)The removal of trees within the access handle and the main body of the site (the site) to accommodate the driveway, pool and dwelling; (b)plantings within the access handle either side of the proposed driveway; (c)Bushland rehabilitation surrounding the dwelling and the proposed pool.

Setbacks 10Levels 1 and 2 and the rooftop terrace will have a 0.9 m setback at the southern boundary. It is positioned adjacent to the existing rock escarpment located on neighboring land to the south and west of the site. 11The development is positioned from eastern boundary as follows: (i)8.9 m to the face of the pool and its trough, (d)15.2 m to the eastern face of the lounge deck area, and (e)19.6 m to the nearest corner of the dwelling 12The rear of the dwelling is setback 6.3 m from the northern boundary; the pool is setback 11 m from the northern boundary. 13The dwelling is positioned from the western boundary as follows (i)7.5 m to western elevation of level I (bedroom 2) (f)1.3 to 1.5 m to the western elevation of level 2 (bedroom 1) and the rooftop turning area. (g)The driveway and attached stair within the access handle maintain a setback of approximately 0.9 m either side of the driveway. As the driveway negotiates the bend in the access handle the setback upon the western side of the driveway varies from 0.6 m to 1.5 m and on the eastern side 1.3 m to 4.5 m. (h)The letterbox and garage enclosure on the southern side of the driveway at the entrance to the access handle is located adjacent to the boundary of 104 The Bulwark and adjacent to the street boundary of The Bulwark 14The dwelling will have a maximum roof ridge level of RL30.25 being the ridge level of the entrance area to the dwelling. This roof is a parapet roof form incorporating rooftop planting. Second roof forms incorporating rooftop planting comprising the proposed carport structure and living areas of the dwelling have an RL of 30 and 27.10 respectively.

The site 15The site comprises one allotment in Lot 336 in DP 330166. As noted in the introduction it is connected to The Bulwark via an access handle adjoining the northeastern or low side of The Bulwark. The main body of the site is separated from The Bulwark by numbers 98 and 100 The Bulwark which is located to the west of the site. To the south if the site is numbers 11 and 9 The Barbican. To the north, east and west, the site is bordered by a council reserve consisting of native bushland. 16The site follows the shape of the topography of the escarpment and comprises an approximate depth of 18 m and 41 m in width. It is irregular in shape and the access handle connecting the site to The Bulwark is also irregular in shape. It has a minimum width not less than 6 m. 17There is a change of level to the rear of the site (in a direction north/south line) of approximate 10.5 m. The land rises significantly from the northern end of the access handle RL 24.5 to The Bulwark at RL 38.5 (approximately 14 m). The site has a significant crossfall from southwest to northeast of approximately 14 m and a crossfall through the building footprint of the building of approximately 9.5 m. 18The site is vacant land and is well vegetated with remnant bushland and other exotic canopy tree species. Some weed removal has been undertaken onsite. 19The site is surrounded to the south by a three-storey dwelling built (erected prior to the Griffin Conservation Area controls) to the boundary and to the west by two-storey dwelling. 20On the side of the access handle is a strip of land owned by council, which is identified as a possible site for a walkway to give access to the Castle Haven Reserve for The Bulwark. 21To the north of the property is Castle Haven Reserve including a walking trail that is accessible from The Bulwark and from Rockley Street. The reserve is adjacent to Sailors Bay. The site can be seen from the reserve and from the water (according to the evidence). This was confirmed to some extent by the Court's view from the reserve back to the site. 22To appreciate the sensitivity of the development of the site it is necessary to appreciate the controls, which affect the Griffin Conservation Area generally, and this site particularly. They are: Environmental Planning and Assessment Act 1979 (NSW) State Environmental Planning Instruments: State Environmental Planning Policy No 1 - Development Standards State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 19 - Bushland in Urban Areas Regional Environmental Planning Instruments: Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Local Environmental Planning Instruments: Willoughby Local Environmental Plan 1995 ("WLEP"): Zoning: Zone 2(a2) - Residential "A2" Scenic Protection Zone; Clauses 2, 13, 13D, 14A(c) & (d), 14C, 17(d), 18 56(a) & (d), 57(3), (4) & (5), 58 Development Control Plans: Willoughby Development Control Plan ("WDCP"): Parts A, B, C, D and H Draft Local Environmental Plan 2009: Parts 1, 2, 4, 5 and 6 23The site and adjoining properties are located within the Griffin Conservation Area. 24The site is Zone 2 (a2)-Residential "A2" Scenic Protection Zone under WLEP. Clause 13 of the WLEP provides that the Court cannot grant consent to the development unless it is consistent with one or more of the aims of the WLEP and at least one specific objective of the Scenic Protection Zone. Council identifies cl 2(b), (d), (e) and (h) as relevant aims within the WLEP. 25Clause 13D requires a consideration of the likely impact of the development on the amenity of an adjoining or nearby property. "... by causing loss of views, loss of privacy or a reduction in sunlight to the living areas or principal open space recreation areas". 26Clause 14A deals with the general objectives of the Low-density residential areas -Zone 2(a2). Council submits that cl 14A(b), (c), (d), and (e) are relevant and not achieved by this development. 27Clause 14C deals with the Specific Objective for the Zone 2 (a2) - Residential "(A2)" Scenic Protection Zone it states: (1)Specific Objective To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas, are maintained by protecting the land in the zone from overdevelopment or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. 28Clause 17 of the WLEP is also relevant. Clause 17 (d) requires a consideration of any impact of the development on " achieving the objectives of any development control plan applying to those areas ". 29Clause 18 of the WLEP deals with the height of a building in the Zone 2 (a2) -Residential "(A2)" Scenic Protection Zone it states: 18 Height A person shall not erect a building of: (2)(a) more than 2 storeys within Zone 2 (a) or 2 (a2), or (3)(b) more than one storey within Zone 2 (a) bounded by Christie Street, Northcote Street, an unnamed lane, Ross Street, Ross Lane and Henry Lane, St Leonards, unless the Council is satisfied that the building is consistent with the scale and character of other buildings in the surrounding area, or (4)(c) greater height in the Innisfallen Castle Estate than the reduced levels specified for each individual lot on sheets 13A and 13B of the map. 30"Height " is defined in the Definitions in cl5 of the WLEP as: (3) For the purposes of this plan, the height of a building is to be measured as follows: (a) if the relevant provision of this plan specifies a maximum height as a number of storeys, the height of the building is to be measured as the maximum number of storeys that can be intersected by the same vertical line through the building, 31Exhibit 16, prepared by the council, explains the evolution of the controls for the Griffin Conservation Area. Suffice to say, since 1996 when Development Control Plan No 19 ( Heritage and Conservation ) (DCP 19) was adopted, Council has attempted to conserve the basic principle for the area of which the most significant aspect is the subordination of buildings to the natural landscape. 32Section 4.2.6 of the DCP 19 has been incorporated into Part H of council's consolidated DCP, known as Willoughby Development Control Plan (WDCP) (exhibit 3 tab 48A to 54) 33Relevantly, the WDCP management policies for the Griffin Conservation Area state: "The height, scale, bulk and massing and proportions, site cover, location and visibility of new development must be such that 'the built forms are subordinate to the natural landscape' (exhibit 3 tab 52 pp 556 to 557)". 34A resounding theme in council's evidence is that the development's breach of the height standard in cl 18(a) of WLEP 1995, its location too close to the southern boundary to permit screen planting below the dwelling and the existing dwelling at 11 The Barbican (built before the heritage controls were implemented) results in a concentration of bulk and built form which is not subordinate to the natural landscape. 35The written and oral submissions of the objectors also echo this theme. 36The maintenance, protection and enhancement of views are also endorsed by the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 - which applies to the site. Clause 25 sets out matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of the foreshore and waterways including: (a) the scale, form, design and siting of any building should be based on an analysis of: (i)the land on which it is erected, and (ii)the adjoining land, and (i)the likely future character of the locality, 37Clause 26(c) requires in relation to the maintenance, protection and enhancement of views a consideration that " ...the cumulative impact of the development on views should be minimized ". 38Clause 26(a) provides that development should maintain, protect and enhance views (including night views) to and from the Sydney Harbour. 39The Council contends that the dwelling and the pool are excessive and that the undercroft will be highly visible as seen from the public reserve and Sailors Bay. This was also a concern raised by the Walter Burley Griffin Society spokesperson and resident of the area. 40The owners of the property at 100 The Bulwark to the west, raise concern that " The non compliant rooftop car park and lobby (and the partially suspended 50 m concrete driveway) are not subservient to the landscape setting and the Griffin Conservation Area. They dominate it ." The Finlays gave evidence that they were aware that the site was vacant when they purchased their property but believed it would be developed in accordance with the Griffin controls another controls. They support Council's submission that the applicant has not demonstrated that the non-compliance with cl 18 of the LEP is either reasonable or unnecessary in all the circumstances for the purposes of SEPP 1. 41The Court's view confirmed their evidence. I accept their evidence that " The proposed rooftop car park will usurp their views from the garden and ground floor levels...this is view appropriation...the rooftop car park does not create a view for the applicant...he just parks his car there... " 42Similarly, the owners of the property to the north at 11 The Barbican in their oral and written objections to the proposal complain about the breaches of the relevant WLEP height controls and setback controls and the resulting amenity impacts on their home. In particular, their primary outdoor recreation area and their two north facing bedrooms at the ground floor level. These are relevant concerns under 13D of the WLEP. 43This evidence was confirmed by the Court's view from those areas. It is a fact that the top-level development will cause an unacceptable view and outlook loss to this property. I accept that the siting of the building on the highest part of the site results in the landscape being subservient to the carpark. The amenity impact on the primary outdoor recreation area and two north facing bedrooms at the ground floor level is unacceptable. These areas lose bushland views to the reserve and privacy. While the roof is to be landscaped and non-trafficable in part its carport structure is dominating and unacceptable on Mr Sander's evidence. 44The owners of 11 The Barbican are also concerned about the safety of the steep driveway and the removal of a significant tree to facilitate the driveway access. I will deal with the safety issue later. It was confirmed by Ms Sonter that the significant tree in the access handle would need to be removed to accommodate the driveway. This will allow an uninterrupted view from the driveway into the main bedroom of 11 The Barbican and a loss of their existing privacy.

Planning evidence 45Mr Sanders and Mr Fletcher in their joint report exhibit 8, agree that the development breaches the two-storey height control in cl 18(a) of the WLEP. Mr Fletcher concedes that the building is technically four storeys, having regard to the definition of storey in the WLEP (exhibit 3 pp 295 to 296) 46He prepared the SEPP 1 objection for the applicant in exhibit A, which deals with the questions formulated as relevant in: Winton Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 In addressing the underlying purpose of the standard, I accept Council's submission that the SEPP 1 objection does not " engage with the performance criteria for height in the DCP which Council identifies as the relevant objective of the height standard ." In particular, Mr Fletcher does not address the relevant objective in performance criteria (iii) " The building does not overwhelm a public street and is of compatible scale with surrounding development ." The SEPP 1 objection does not identify the building height of surrounding dwellings: (p 3 of exhibit A) it talks of the scale in terms of bulk and FSR but not height. In my opinion the SEPP1 objection does not adequately address the underlying relevant objective of the development standard and establish that it is achieved despite numerical non-compliance or that it is not a relevant objective for this site. 47Based on the evidence of Mr Sanders, the underlying objective of cl18 is to ensure that the new development has a compatible height with surrounding development. The height poles made clear the fact that a four-storey development is not compatible with the height of surrounding development and, therefore, the development is clearly at odds with the underlying and relevant objective of cl18. Mr Sanders' evidence is that the height is excessive when compared to that of surrounding dwellings. Of particular concern to Mr Sanders is the rooftop level of the proposed house, being the proposed entry (and lift) and carport. He considers this level " contributes unreasonably to the visible height and bulk of the proposed dwelling, particular when viewed from the water. " The amended application, which reduces the extent of the rooftop structure, does not, in his opinion, adequately ameliorate this unacceptable element of the development. I accept his evidence. (Page 5, 3.9 and 3.11 joint report) Mr Sanders' evidence is that the noncomplying rooftop level will result in adverse visual impacts on the views and outlook from the adjoining dwellings at 100 he Bulwark and 11 The Barbican. I accept his assessment that the rooftop level intrudes into the existing views and outlooks enjoyed by these properties. The views from 100 The Bulwark that would be affected across Castle Haven Reserve and toward Sailors Bay and the views affected from 11 The Barbican are views into Castle Haven Reserve. I accept Mr Sanders' concern that the view loss is caused by an element of this proposed development that does not comply with council's controls and that this breach of the height control is exacerbated by the non-complying setbacks. The Court's inspection confirmed the evidence that the breach of the height control results in adverse visual impacts on the lower-level bedrooms and outdoor living area of 11 The Barbican and the living and garden area of 100 The Bulwark (3-11 exhibit A). 48Furthermore, I accept that the four-storey dwelling will result in " adverse visual impacts on the scenic quality of this landscape setting and character of the area ." 49While the aims and objective of SEPP 1 Regulation 3 is to provide flexibility in the application of planning controls operated 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 s 5 (a) (i) and (ii) of the Act. It is not made out on the evidence in this case. The noncompliance of the development standard is in my opinion inconsistent with the planning objectives for the localities and the particular zone. 50I do not accept Mr Fletcher's assessment that the noncompliance is consistent with all of the general objectives of the Residential 2(a2) Scenic Protection Zone or the specific objectives of the zone. 51The non-complying development, based on the evidence of Mr Saunders and Mr Logan, will dominate the natural scenic qualities of the locality. I do not accept Mr Fletcher's assessment that " The location of the dwelling being tucked up against the existing rock escarpment along the southern boundary of the site ensures the development will not be visually prominent from the foreshore or from adjacent properties up slope of the proposed dwelling ." The view did not confirm this evidence. I accept Mr Logan's evidence that the proposed four storey dwelling's height and upper parts are very dominant where they project above the natural topography and the canopy of nearby trees. 52The development does not follow the contours and I accept Mr Logan's assessment that it would have an adverse impact on the heritage significance of the Griffin Conservation Area where it is intended that the natural dominate the built, not vice versa. 53I accept that the Special Objective in the Residential 2(a2) Scenic Protection Zone reinforces the cliffs and tree canopy as prominent features. I accept that the breach of cl 18 is not consistent with the planning objectives identified in the Specific Objective of the Residential 2(a2) Zone. 54The underlying objectives identified in the performance criteria are relevant and necessary in achieving development subordinate to the natural. Compliance with the two-storey height development standard will, based on Mr Sanders' and Mr Logan's evidence ensure this objective is achieved. Council has consistently applied this standard in the Griffin Conservation Area. 55I do not accept, as the applicant asserts, that the objective of the standard is achieved notwithstanding noncompliance with standard. Therefore, having regard to the principles discussed by the Court in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 I do not find the objective to be well founded. It is inconsistent with the aims of the policy and the attainment of the objectives in s 5(a)(i)(ii) of the EP & A Act. The applicant has failed to demonstrate that the variation to the development standard is reasonable or necessary. 56Compliance with the standard is both reasonable and necessary on the facts in achieving the objectives of the standard. The applicant has not exhausted alternate design opportunities for a carport at the street frontage as was discussed during the hearing. The constraints of the site do not dictate a development of this height. An alternate design as discussed by Mr Sanders and Mr Logan - removing the roof level carport lift and entry - would achieve a more compliant and acceptable development. The applicant has not adequately demonstrated that satisfactory pedestrian access could not be provided to level2 of the proposed dwelling house via the access handle. 57I will briefly deal with the other issues raised in the appeal, in particular the driveway and carport on the roof level of the development - contentions 4 and 6 of the revised statement of facts and contentions. 58Part H - controls for the future development - Griffin Conservation Area (p 558 exhibit 3) that deals with garages/carports. The controls prescribe " Small-scale, car parking behind building line where possible, else 5 m setback for carport. Reduce impact of cars through the use of lightweight open carports and absorbent surface material not interfering with public view from the street ." Despite the controls the proposed driveway is a major engineering structure. Mr Saunders' evidence is that the partly elevated driveway is visually intrusive and will have an adverse effect on screening vegetation between 100 The Bulwark and 11 The Barbican. 59Mr Rogers' evidence is that the driveway is 62 m long from the back of the kerb to The Bulwark to the landing in the front of the carpark. It has a 33% gradient for approximately 23 m and 29% for approximately 8 m. Overall 50% of its length exceeds the 25% standard in the WDCP and the Australia Standard. I accept Mr Rodger's assessment that the design with a gradient of 1:3 is unsafe. The other driveways I was shown on the view were not as long or as steep. Mr Nettle advises it would be necessary to keep the driveway free of leaves and foliage to avoid friction loss. This would be difficult given the site location. I accept Mr Rogers' assessment that any benefits that may be provided by a particular surface finish would be limited. 60I find the driveway gradient unacceptable and unsafe and therefore the evidence does not support this element of the development. 61In conclusion, I accept the view of Mr Logan that the proposed dwelling is four storeys when viewed from the adjacent reserve, parts of the foreshore walk and from Sailors Bay waterway to its east. It has adverse visual impacts when viewed from those locations. I accept that the upper parts of the development would dominate the landscape in these views, rather than being subservient to the landscape in accord with the objectives and controls of the Griffin Conservation Area. I accept the evidence that these parts of the development would be clearly visible from parts of Castle Haven Reserve and the foreshore walkway, as well as from higher land within the site itself and from 100 The Bulwark, and, 11 The Barbican. In these views, the top floor of the proposal would project above the natural rock topography and the canopies of the trees. The development would obscure views into the adjacent reserve and to Sailors Bay. This is inconsistent with the WDCP controls, which require new development to be " low scale [and should] maintain and reinstate predominance of natural landscape of the built form ensure no encroachment of new buildings into public vistas . " The four-storey development will particularly block views from the access pathway - drainage easement into the nearby reserve and to Sailors Bay. 62The WDCP provides for the importance of retaining views " from nearby adjoining dwellings and public reserves, roadways, pathways and drainage reserves ". Mr Logan emphasized that the subdivision plan was designed to maintain private views as well as public; this proposal contravenes that policy because it adversely impacts on the views from adjoining properties and public reserves. 63Part D of the WDCP sets out the policy objectives for the area, including the desired future character. It states " minimizing the impact of the built environment by siting buildings, sensitively integrating the build form with the natural landscape, with the built form subservient to landscape and the predominance of the natural landscape areas or the site ". 64Part D.2 (12) of the WDCP contains special controls for development in the Zone 2 (a2) - Residential "A2" Scenic Protection Zone, which reinforce the need to ensure the development does not dominate the landscape. I do not accept Mr Brooks' evidence that it is reasonable to assume that the site will have vehicular access (exhibit 9 p 10). There is no evidence to support such an assumption. Nor do I accept his evidence that this dwelling will not dominate the natural landscape and the topography. It is my view, based on the evidence of Mr Logan and Mr Fletcher that this development will not be subordinate or subservient to the landscape as the Griffin Conservation Area Controls prescribe. 65Therefore, after an assessment of this application under s79C of the Act I have decided not to uphold the applicant's objection under SEPP 1 to compliance with cl 18 of the WLEP for the reasons stated. The site is not suitable for this development: s79C (1)(c) of the Act. Accordingly, the Court orders: 1.The appeal is dismissed. 2.Development Application DA 2010/533 for a multi level dwelling, driveway and swimming pool on Lot 336 in DP 330166 at 102 The Bulwark Castlecrag is determined by refusal. 3.Exhibits are returned . Susan Dixon Commissioner of the Court

Amendments 20 July 2011 - Typographical Error Amended paragraphs: 14 20 July 2011 - Case Title Corrected Amended paragraphs: Case Name 20 July 2011 - the word 'not' added between 'does' and 'engage' Amended paragraphs: 46 20 July 2011 - Heading Removed Amended paragraphs: 49 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: 20 July 2011