Pietranski v Waverley Council

Pafburn v North Sydney Council [2005] NSWLEC 444 CASES CITED: Tenacity Consulting v Waverley Council [2004] NSWLEC 140 Westwood v Waverley Council [2004] NSWLEC 574 Zhang v Canterbury City Council [2001] NSWCA 167

APPLICANT Mr M McMahon (solicitor) SOLICITOR LEGAL REPRESENTATIVES: ME McMahon & Associates RESPONDENT Mr S Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10308 of 2009 Tim Edward Pietranski v Waverley Council

JUDGMENT 1 This is an appeal against conditions imposed by Waverley Council (the council) on the granting of consent to a development application made under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and additions to an existing house at 58 Denham Street Bondi Beach (the site). Site and its context 2 The site is located on the western side of Denham Street between Bondi Road and Edward Street, and has an area of 250.6 sq m with a small fall from the south to the north side. The site is occupied by a single storey semi detached dwelling with a garage within the front yard. The adjoining semi is to the south, and to the north is a four storey residential flat building facing Edward Street. To the south are semi detached dwelling houses, and to the rear are semi detached dwellings and single to two storey buildings, which face Castlefield Street. 3 The development application was for approval of alterations to the rear ground floor of the existing dwelling including a deck to the rear of the dwelling; addition of a first storey including a study, two bedrooms, a bathroom and a robe area; and addition of a swimming pool in the rear yard. Planning Controls 4 The site is zoned 2(c1) Residential - Medium and High Density under Waverley Local Environmental Plan 1996 (the LEP). The development is permissible with consent. 5 Waverley Development Control Plan 2006 (Amendment No 2) (the DCP) applies to the site. The parties agree that Waverley DCP 2006 (Amendment No 4), which was adopted on 7 October 2008, only applies to applications lodged after 5 November 2008, which is after the application the subject of these proceedings was lodged. The relevant generic controls under Part D1 Dwelling House and Dual Occupancy Development of the DCP as contended by the council relate to height, size and bulk, setbacks, privacy and landscaped open space. The site is within the Imperial Avenue precinct under the DCP, and relevant controls are provided in Part F3. Background 6 The Statement of Facts and Contentions filed by the applicant outlines the background to the proposal. Development Application D/105/2008 seeking approval for the addition of a second storey at the rear of the existing house and the addition of a pool was lodged on 10 March 2008. During the notification period three objections were received. The council's Development & Building Unit prepared a report recommending conditional approval. On 6 December 2008 the council granted consent. Condition 2 of the development consent is as follows: The proposal shall be amended as follows:

(a) The pool is not approved and shall be deleted from the proposal, as it unreasonably compromised the landscaping of the dwelling and the health and retention of the existing lemon tree;

(b) The ground and first floor shall be reduced by 750mm to comply with the existing rear building line of 56 Denham Street, and the bedroom and robe area on the first-floor addition be deleted to increase the rear setback.

(c) The bi-fold doors to the rear first-floor bedroom 4 are not approved and shall be replaced with conventional windows with a minimum sill height of 1m and a louvred privacy treatment provided to the windows for privacy/solar protection.

(d) Proposed garage door be constructed of timber slats and be at least 50% transparent. 7 The proceedings were commenced onsite as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act), however no agreement was reached and the parties consented to me disposing of the proceedings pursuant to s 34(4)(b) of the Court Act, with a hearing onsite. The residents of No 50 Denham Street, No 54 Denham Street and No 3/11 Castlefield Street gave evidence. The site view included a view from No 50 Denham Street and No 54 Denham Street, both properties to the south of the site. 8 The Court heard expert evidence from Mr A Betros, consultant town planner for the applicant, and Ms I Potter, architect for the applicant, and from Mr P Bull, planner for the council. 9 The applicant provided amended plans to comply with condition 2(c), and accepted condition 2(d). The issues remaining for determination concern conditions 2(a) and (b). The applicant's Statement of Facts and Contentions states: (a) The pool should not be removed because: (i) the council's Tree Officer in the report to the development control committee recommended that the lemon tree could be removed and replaced, or in the alternative the pool could be moved 1m to the north to retain the tree; (ii) the pool does not comprise landscaping of the dwelling; the pool accommodates an area of 16.8 square metres which still allows for 58.2 square metres of landscaped areas directly accessible from the living area; (iii) the 3% non-compliance identified by the council is not sufficient justification to remove the pool.

(b)The proposed ground floor addition should not be setback 750mm as it would be within the existing screen located along the common boundary between the subject site and No 56 Denham Street;

(c) the proposed bedroom 4 and robe on the first-floor addition should not be deleted as they would not: (i) be responsible for setting an undesirable precedent as there are other properties with lesser rear setbacks along Denham Street to the south;

(ii) be responsible for adverse shadow impacts as the yard of the neighbouring property to the south would still receive in excess of 2 hours solar access on June 21 in the afternoon;

(iii) be responsible for any unreasonable view loss, as the views affected are not of any particular quality; are across several side boundaries; and the proposal is compliant being within the anticipated building envelope in terms of height, density and setbacks; and the objector's property to the south has a lesser rear setback than proposed.

(d) the proposal is within the contemplated building envelope for the site being compliant with the FSR, setback and height provisions;

(e) the proposed removal of the ground and first floors would make no material benefit to the appearance of the dwelling in the Imperial Avenue area identified under F3 of the DCP.

10 At the hearing the applicant accepted the 750mm setback required by condition 2(b). The remaining issues in dispute concern whether the bedroom and robe at the rear of the proposed first storey should be deleted, and whether the pool should be approved. First storey addition 11 Mr Bull's evidence was that the proposal generally complies with requirements apart from the rear building line. Mr Betros stated that the proposal is a more modest style of development than would be permissible under the LEP if there was a consolidation of four lots for a residential flat development. Such a development could result in a building height of 9.5m, rather than 7.5m, and a rear setback of 5m instead of 12.6m as proposed. The additions are compliant with FSR and building height. Any loss of views is reasonable because of this compliance and because the views are across side boundaries. The site is less elevated than those to the south and it is not possible to go down to build the extension. There is no impact on the green corridor as indicated in the Imperial Avenue controls in the DCP. Mr Betros stated that he understands the concerns of the residents to the south about impact on views, however there is a distance between the site and those properties, the proposal complies, the views are across side boundaries, and would potentially be lost if there were development on the properties facing Edward Street. Mr Betros accepted that the residents of No 50 and 54 Denham Street would lose all their district views and have just a view of vegetation. 12 The written submissions of the residents of No 50 and No 54 Denham Street and No 3/11 Castlefield Street raise concerns that the proposal is out of scale with the adjoining semi-detached houses along Denham Street and inconsistent with the features of the Imperial Avenue area. In their written submissions and in evidence given on site the residents of 50 and 54 Denham Street raise concerns about the loss of district views to the north from the rear of their properties; overshadowing; and loss of value to their properties. Both provided colour photographs indicating the expected view loss from their respective properties. While there was some disagreement as to whether the photographs accurately reflected the distance between the properties and the site, there was agreement that the external dimensions of the proposal were accurately shown in the photographs. Findings 13 Having had the benefit of seeing the site from both No 50 and No 54 Denham Street, I am satisfied that the first storey addition as proposed will block district views to the north from those properties. The evidence of Mr Betros is consistent with the expectation of the residents that the only views remaining would be of the vegetation on neighbouring properties. 14 The specific aims of the Waverley LEP include ensuring that new housing is compatible with surrounding development (cl 3(7)(d)), and improving the amenity of residential areas (cl 3(7)(f)). The objectives of zone No 2(c1) include (b) "to maintain and improve the amenity of the locality". The aims of the DCP include ensuring that alterations to existing dwelling houses "do not significantly detract from the amenity, privacy and views of other dwellings and public view corridors" (D1, 1.2(c)). The aims of the part of the DCP applicable to the Imperial Avenue precinct include "to minimise the negative impacts from development on the amenity of adjoining properties" (F3, 1.1(c)). 15 The DCP provides generic controls for building height (D1 5.1), size and bulk (D1 5.2), setbacks (D1 5.3), privacy and noise control (D1 5.6), and landscaped open space (D1 5.8). The proposal satisfies the maximum overall building height control of 7.5m, and the FSR requirements in 5.2. The rear building-line as proposed in the application extends 750mm beyond the predominant building-line of buildings in the vicinity, and is not consistent with the strategy at part 5.3.2 of the DCP; the applicant accepts the setback required to meet that strategy in accordance with condition 2(b). 16 Part 1.4 of D1 of the DCP states: Note: Compliance with a control does not guarantee that the strategy is satisfied. In some instances the design solutions may not be appropriate for the particular site or situation. Therefore, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require alternative design solutions. The controls may not normally be varied. However, is an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider waiving the control. Conversely, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require a more restrictive control so as to minimise or eliminate any likely impacts. 17 The decision of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167 sets out the approach to be taken in consideration of the provisions of a DCP. That approach was summarised by Moore C in Westwood v Waverley Council [2004] NSWLEC 574 at [14] in the following terms:

First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative and the other s 79C matters, when considered, may lead to a differing result from that contemplated by the DCP. 18 The proposed first storey addition complies, subject to the variation to the rear setback, with the numerical requirements of the DCP. The DCP itself, at 1.4 in Part D1, addresses consideration of a proposal that meets the controls but which otherwise does not satisfy a strategy. The central concern relating to the first storey addition as proposed relates to the impact on other dwellings in the area, in particular the semi-detached dwellings to the south of the site. The principles to be considered when assessing view sharing were set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. The Senior Commissioner said: 24. Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable.

The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 19 The council submits that while the views at issue in this matter are not water views, they are still significant, providing expansive district views including the interface between sky and land. The entire view will be lost, leaving only a view of sky. While acknowledging that it is more difficult to protect views across side boundaries, that does not mean that such views are irrelevant. The proposal will take away the only view available from the rear of the neighbouring properties. While acknowledging that there is more of an expectation that development that complies would be considered reasonable, there is an alternative way open for the applicant which is to move the first floor addition further into the roof space. The applicant submits that the significant point here is that the views at issue are side views, and that an expectation to retain such views is often unrealistic. 20 The principles to be considered when assessing impact on neighbouring properties more generally, including loss of views, overshadowing and overlooking, were set out by Roseth SC in Pafburn v North Sydney Council [2005] NSWLEC 444. The Senior Commissioner said:

26. The following questions are relevant to the assessment of impacts on neighbouring properties: * How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? * How necessary and/or reasonable is the proposal causing the impact? * How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? * Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? * Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?

21 The council submits that all of the amenity of the affected properties will be affected, and all of the views will go. The applicant could achieve the same or similar floor space and amenity by moving the first floor addition further into the roof space of the existing dwelling, and so the impacts could be overcome with little or no cost to the amenity of the applicant. 22 Adopting and applying these principles to the present case, I agree with the council that the first storey addition as presently proposed significantly detracts from the views of the dwellings to the south and thus impacts on amenity. The rear extension to No 50 Denham Street has been designed to take advantage of the outlook to the north, which will be blocked by the proposed first storey addition. Condition 2(b) as imposed by the council goes some way to reducing that impact, and would result in loss of approximately half the outlook and views from both No 50 and 54 Denham Street. While accepting that the views currently enjoyed by the properties to the south of the site are across side boundaries, and are district views rather than the iconic views referred to in Tenacity, because of the vegetation in the properties along both Denham Street and Castlefield Street and the slope of the land away from Bondi Road, those are the only views currently available. Deleting the area proposed for the fourth bedroom and robe, and moving the first storey extension further into the roof space, would reduce the impact on the neighbours while not unreasonably impacting on the reasonable development potential of the site. Landscaping and pool 23 Part 5.8 of the DCP provides controls for landscaped open space. The objectives include "(a) to enhance the amenity of the site, streetscape, and surrounding neighbourhood", and "(d) to maximise outdoor space to allow for soft landscaping including tree planting and maintenance of existing vegetation". Part 5.8.1 states the strategy to be ensuring that dwelling houses provide sufficient useable open space to meet household on-site recreation needs and service functions, and specifies that for dwelling houses a minimum of 40% of the total site is to be provided as landscaped area, with a minimum of 15% soft landscaping, and that each dwelling have a minimum of 25 sq m of private open space capable of being used for recreation including a relatively level area of at least 3m by 4m. The proposal was for 38% of the site area as landscaped area, including 22% soft open space. 24 As noted above, the site is within the Imperial Avenue precinct, for which there are specific provisions in Part F3 of the DCP. Part 4.4.2 provides that new development should relate to existing streetscape in scale and setbacks, and in particular, that existing trees should be relocated and mature trees retained. The DCP indicates (at Figure 10) existing green spaces and tree canopies that are to be retained. The resident of 3/11 Castlefield Street expressed concern that the tree canopy running along the rear of the properties facing Denham Street and those facing Castlefield Street be retained. The council accepts that if the existing citrus tree at the rear of the site is removed and replaced that would meet the requirements of the DCP. 25 Mr Betros gave evidence that the rear yard is 75 sq m in area and even after the pool is constructed there will still be 60 sq m of unobstructed functional space. The 3% shortfall in landscaped area would not be discernible. The oral evidence of Mr Bull was that the council generally has a concern with pools in smaller backyards because they can dominate, and give rise to adverse impacts on neighbouring properties. The report from the Development and Building Unit states that the variation to the required landscape is due to the proposed pool and deck area at the rear of the site, and states that the pool "unreasonably dominates" the landscaping of the relatively small backyard. None of the resident objectors raised this issue in their written submissions or evidence. Findings 26 Having seen the site from the properties to the south, which are further up the slope towards Bondi Road, I am satisfied that the existing vegetation in the area will screen the pool area and reduce adverse impacts on neighbouring properties. I agree with Mr Betros that the 3% shortfall from the DCP requirement for landscaped open space would not be discernible and that the site otherwise provides appropriate useable open space and meets the objectives of the control. There was some discussion on site as to whether if the existing citrus tree were removed and replaced by another tree on the site, the location of the pool should be moved closer to the southern boundary to increase the functional area of the rear yard. However, as that would also move the pool closer to the adjoining dwelling and would limit opportunities for landscaping, I am not satisfied that this is necessary. Other issues 27 The resident objectors raised the question of stormwater runoff. The council accepts that this can be adequately addressed by conditions. The other issues raised by the resident objectors are not such as to warrant refusal. The proposed deck at the rear of the ground floor has an area of 10 square metres and a depth of 2m, which is greater than the 1.5m required by part 5.6.2 of the DCP to minimise privacy and noise impacts. The council accepted that while technically an elevated deck, the elevation was minimal and the deck would have an acceptable impact.

Conclusion 28 For the reasons in this judgement, I have concluded that the proposed first storey addition in its current form would have an unacceptable adverse impact on the views and amenity of adjoining properties. However, condition 2(b) as imposed by the council would be acceptable. I will defer my final orders and allow the parties to prepare amended conditions, which include a deferred commencement condition requiring the provision of an amended design for the first storey addition, and conditions relating to the swimming pool, to be filed by 1 September 2009. Linda Pearson Commissioner of the Court

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