Puflett Associates Architects v Waverley Council

CASES CITED: Tenacity Consulting v Warringah C [2004] NSWLEC 140

APPLICANT Mr S Austin, SC Instructed by: Ms J Reid, solicitor Of: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr C McEwen, SC, Instructed by: Mr M Staunton, solicitor Of: Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10291 of 2006 Puflett Associates Architects v Waverley Council

1 This is a Class 1 Appeal No.10291 of 2006 between Puflett Associates Architects and Waverley Council in regard to the refusal of consent for alterations and additions to an existing old apartment block at 105 Ramsgate Avenue, North Bondi. 2 The building is above the rock shelf of the ocean shore at North Bondi. The rock shelf is known as Mermaid Rocks and extends to become the headland "Ben Buckler" just two buildings south of the site. Because of the curve in the bay around to Ben Buckler, the ocean-side facade of the building actually faces west. It looks directly across the bay at the main parts of Bondi Beach, its pavilion, park and promenade and the hotels, restaurants etc on Campbell Parade. 3 The site, known as Strata Plan 1159, is irregular in shape with a eastern frontage of 1.22 m to Ramsgate Avenue and a western frontage to Bondi Bay of 12.19 m. The southern boundary of the site is approximately 58 m, including a 27 m length of the access handle to Ramsgate Avenue. The northern boundary is approximately 29 m in length. The overall site area is 385.7 sq m and the site has a fall from the street down to the ocean.

4 The site is currently occupied by a part three part five storey residential flat building containing ten (10) units. The building is three storeys at the uphill end, and as the site falls it gains an additional two storeys at the ocean elevation facing Bondi Bay. A central stair lobby provides access to all of the units.

5 The subject building and it's neighbour at No. 107 Ramsgate Avenue are the only two buildings in Ramsgate Avenue which are located within the Bondi Beach - Campbell Parade Urban Conservation Area. The proposal 6 The subject building and Nos. 97 and 107 all of which have ocean frontage are 5 storeys high. Due to the slope in the ground No. 105 has its pedestrian entry level midway between the 2nd and 3rd floor level. The drawings are a little confusing in regard to this as the 2nd floor is called the Ground Floor and the 3rd is called First Floor. The drawings show a Lower Ground Floor, but fail to name another floor below that which I call the Lower-Lower Ground Floor. It is shown as a basement in section and elevation, but it is not shown at all in plan view. For ease of reference I shall adopt the drawing nomenclature, with the addition of the Lower-Lower Ground Floor 7 On the Lower Ground Floor there is only one unit, called Unit 1, facing the ocean, the rear uphill section of that level being underground has the shared laundry and plant rooms of the building. 8 As previously mentioned, underneath the Lower Ground Floor at the ocean front is a subfloor space that is a full storey high. By a previous consent this Lower-Lower Ground floor has been converted into the living-dining-kitchen of Unit 1 that has its bedrooms and entry lobby on the Lower Ground Floor. There is a new internal stair connecting them. 9 So, as it exists the subject building has 5 storeys, and it is proposed to add a 6th. 10 The penthouse is proposed by converting Unit 8 on the 5th floor into a combined living-dining-kitchen, and adding Unit 9 as another bedroom, bathroom and laundry, plus a new internal stair to the 6th floor for a master bedroom, robe, en suite and study. The existing hipped roof is to be replaced with a curved roof over the 6th floor. 11 A new elevator will serve the Ground, 1st and 2nd floors as on the drawings, or 3rd, 4th and 5th levels as seen in building section. Due to the pedestrian entry being at a half level, no disable access is available. 12 Currently the building has no ocean front balconies, except Unit 1 on the Lower Ground Floor has a timber deck to the bedrooms and there is an existing terrace and pool to the Unit 1 living areas on the Lower-Lower Ground Floor. The proposal adds balconies at each level facing the ocean in a cantilevered structure with a facade and openings on the outside edges connecting all the balconies in a vertical plane, and without any supporting columns at the Lower-Lower Ground level. It is said to be sympathetic to the style of the subject building and those in the group. 13 The rest of the units are to be renovated. Units 3 & 4 on the Ground Floor have bedroom windows facing the concrete driveway. To give the bedrooms added amenity and privacy the drawings show a 0.6m wide "courtyard" with timber fence on the driveway side up to the height of the windows. The bedroom windows are to be enlarged as glass bi-fold doors. 14 The concrete driveway within the allotment of No.105 outside Units 3 and 4, plus the 1.2 m wide access handle out to the street is shown as new cobblestone paving on the drawings. They also show boomgates at the driveways' street entries to control unauthorised access. They also show landscaping on adjoining lots. I was told the boomgates and landscaping had no approval of the relevant property owners.

The group of buildings around the site and on-site parking 15 The building is part of a group of 1920-1930's walk-up apartments at Nos.93, 95, 97, 99, 101, 105, 107 and 109 Ramsgate. Numbers 97 and 107 are on the north and south of the subject building respectively, and like No.105 are perched just above the rock shelf of the ocean shore. Number 95 is north of No. 97 and also perches above the rock shelf. Just uphill of them are Nos. 93, 99, 101 and 109, the four of which front Ramsgate Avenue. 16 These eight buildings are served by 3 driveways off Ramsgate between Nos. 93-99, Nos. 99-101 and Nos.101-109. The driveways are composed of parts of Torrens Title allotments on which each building sits. The ocean front buildings are on "battleaxe" shaped lots. The access handles from the street to the buildings, however, are only about 1.2 m wide within the driveways. 17 The lots and the buildings were built apparently before automobile access was a significant consideration. The side setbacks of the buildings in the driveways vary from about 1.2 m to 3.5 m. There are some Rights of Carriageway, but due to the lack of manoeuvring space, I was told, the only practical way the buildings can have vehicle access and parking is by an informal arrangement of building owners acquiescing to trespass of persons and vehicles over their parts of the driveways. 18 The driveways in from the street have only about 4 m width between the buildings, but due to recesses in some parts of the buildings, there are some parking spaces there. Numbers 99, 101 and 109 have a small number of garages underneath, accessed off the driveways. 19 In between the buildings fronting Ramsgate and the buildings fronting the ocean, there is a wider gap of about 7.5 m. In this space residents with small cars can get angled parking via a mutually agreed 1-way circulation route. Apparently the system works due to most residents knowing each other's cars and apartments, or leaving their unit or phone number on their car, so that any difficulties can be overcome. 20 The Bondi Beach area is notorious for congested parking, and Ramsgate is no different. The residents said when the street is parked out, beachgoers often try to park in this private parking area, but this is usually prevented due to residents knowing each other's cars. Already on the sites of the 8 apartment buildings there are not enough car spaces for the residents' vehicles. 21 The relevance of this arose in evidence that the buildings fronting the ocean have a setback of about 6 m from their boundaries within this parking area. The remainder of the 7.5 m width between the buildings is on other allotments. Currently these areas and driveways are wall-to-wall concrete between buildings. The subject building proposes to use part of its 6 m setback space for private courtyards outside renovated units on the ground floor, and partly for 2 parallel parked full sized car spaces. This would displace the existing area used by 4 small cars diagonally parked, but still allow the 1-way circulation route across the site. 22 Most if not all cars seen on site during the Hearing were small cars, the parking and manoeuvring constraints being the probable reason. 23 The applicant says that there will be one less unit in the building (Unit 9 being added to the penthouse Unit 8), and the same number of bedrooms, and therefore no increased demand for car parking. 24 Due to the demand for on-site resident parking and the lack of on-street parking, and the dependence of all residents on mutual acquiescence to the use of the driveways, the reduction of the number of car spaces constitutes one of the main objections to the proposal.

25 A strict interpretation of the right-of-way would prevent any courtyards or parking spaces in the driveways.

26 Associated with this is the new penthouse on top of the building, and the renovation of the building, that the objectors saw as attracting more affluent residents who are likely to have more and bigger cars. In the objectors' opinions, this must add to parking demand whilst reducing available spaces by 4. The latter being due to the elimination of shared use of the car spaces by all residents, and the allocation of the 2 replacement ones for the exclusive use of units in No. 105. 27 The remainder of the issues in the appeal related to the amenity impacts of the new penthouse and heritage matters.

The issues 1. Whether or not the proposal is an acceptable development in its Residential 2(c1) zone under of Waverley Local Environmental Plan (LEP) 1996, in respect to: (a) objective (b) of clause 10 the LEP, with regard to maintaining and improving the amenity and existing characteristics of the locality;

(b) Clause 3 specific aims for housing (7)(d) and (f), as to the proposal's compatibility with the surrounding development and improving the amenity of a residential area. 2. Whether or not the proposed development is contrary to Waverley Development Control Plan No. 1 - Multi-unit Housing (DCP) with respect to the following DCP provisions: (a) View Sharing, stipulated in Section 3.4 of DCP (Development Control Plan) 1 - Multi-Unit Housing;

(b) Height, stipulated in Section 4.2 of DCP (Development Control Plan) 1 - Multi-Unit Housing;

(c) Floor Space Ratio (Density), as stipulated in Section 4.2 (Development Control Plan) 1 - Multi-Unit Housing; (d) Vehicular Access and Car Parking, stipulated in Section 5.1 of DCP (Development Control Plan) 1 - Multi-Unit Housing; 3. Whether or not the proposal is suitable for the site as a response to the visual qualities of the setting and the Bondi Beach-Campbell Parade Urban Conservation Area. [as per s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 ].

4. Whether or not the roof top addition to the building results in an unreasonable loss of solar access to the surrounding properties. [as per s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 ].

5. Whether or not the proposal is in the public interest

Planning controls 28 The relevant statutory instruments applying to the subject site are: * Waverley Local Environmental Plan 1996

29 The relevant Development Control Plan applying to the subject site are: * Waverley Development Control Plan No. 1 - Multi-unit Housing * Waverley Development Control Plan No. 14 - Land Use and Transport; and * Waverley Development Control Plan No. 29 - Advertising and Notification of Development Applications. The evidence 30 During the on-site part of the hearing, oral evidence for the respondent was taken from: o Ms H Woods objector and resident of Unit 10-107 Ramsgate Avenue o Ms E Prochazka objector and resident of Unit 2-107 Ramsgate Avenue o Mr N Miller objector and resident of Unit 1-105 Ramsgate Avenue o Ms A Plant objector and resident of Unit 9-109 Ramsgate Avenue o Ms R Morrison objector and resident of Unit 8-109 Ramsgate Avenue o Mr D Murcutt objector and resident of Unit 6-109 Ramsgate Avenue o Ms J Kalek objector and resident of Unit 2-109 Ramsgate Avenue o Mr L Fletcher consultant town planner participated in a joint report with the applicant's experts. 31 For the applicant a previous objection was withdrawn by: - Mr A Baumgartner resident of Unit 9-101 Ramsgate Avenue. - Ms G Morrish consultant architect participated in a joint report with Mr Fletcher and Ms Sneyd. Ms Morrish also produced an urban design report in Exhibit D. - Ms J Sneyd consultant town planner and law diplomate participated in a joint report in Exhibit 3 with Ms Morrish and Mr Fletcher. 32 The expert witnesses were not called for cross examination. 33 The applicant put that the age and the condition of the subject building necessitated upgrading and the penthouse apartment would finance the project. The applicant put that the subject building and its neighbours could not be approved under current legislation, and therefore the applicable controls could not be expected to be complied with. The test of reasonable impact or change from existing amenity is the appropriate way to determine the appeal in the applicant's submission. 34 One example is the car parking, the applicant put that technically there is no parking allowed in the rights of way, so theoretically no parking on site. As a result, the 2 proposed are better than nothing, and due to the rights of way, they would have to remain informal spaces unallocated. 35 The respondent put that the interdependence and co-operation of all the residents of this group of old buildings is what enables some amenity to exist in what is a sub-standard development under current controls. The proposal effects the amenity of its neighbours by impacts of parking loss, privacy loss, view loss and shadow impact, and the community loses by an unacceptable visual impact upon one of the two buildings in the group that are in the Bondi Beach-Campbell Parade Urban Conservation Area. Who benefits? The respondent asks rhetorically, and answers, "Only the residents of NO.105". The respondent also submits that the justification of the proposal on the basis that the penthouse will provide the finance for the works is not a relevant consideration. 36 On the latter submission I agree, the appeal has to be determined on fact and merit of matters at issue under the applicable legislation, not on how the project might be financed. 37 Turning to the fact and merit issues, I summarise the objectors concerns other than the parking issue: 38 Ms Wood is concerned about shadows, due to the penthouse raising the roof of No 105 by 1.05 m. Also she said the design of the balconies at the front would cut off views of the ocean from her windows mainly related to the facade proposed on the outside of the balconies. 39 Her apartment is on the top floor of No.107 and at the east end away from the ocean. She agreed that to see the view she had to put her head out of any of the 3 windows in her kitchen/living area, and look west. But that is what many residents did in order to enjoy a narrow view across the bay to Bondi Beach. 40 The shadow diagrams were detailed and showed shadow on the external walls of No.107 and on the internal floors at various times of day in mid-winter. At present she had full sun from 9 am until after 3 pm in most windows mid-winter. The proposal would cause minor loss of sun 9 am -10.30 am, then full sun, but progressive loss of sun from 12.30 pm and almost total loss by 2.30 pm. 41 Ms Prochazka's Unit 2 at No. 107 is at the oceanfront. Her view loss and privacy loss would be out of her bedroom north side window. Whilst it is true a pleasant outlook from the side window to North Bondi Beach would be largely obstructed by the proposed balconies and facade, the full view across the bay from the main windows of the bedroom would be unaffected. There would be privacy loss due to the proximity (about 3.5 m away) of people on the balconies, and probably noise nuisance from entertainment on the balconies that does not exist now. The same window would lose about 1 hour of sun mid-winter. 42 Mr Miller's Unit 1 at No.105, the subject building, he was looking forward to an upgrade of the building because of its increasingly dilapidated state. He acknowledged there would be some adverse effects on some neighbours. He said he did not agree with the proposal for his Lower Ground Floor balcony outside his bedrooms to be partly enclosed by the new balcony with its outer facade. He thought new balconies in units above him would be acceptable. He is concerned that the new elevator is behind his bedroom and its noise of operation would cause a nuisance. He accepted the loss of parking was a difficult matter. He said the informal parking arrangement currently worked because of the camaraderie that existed amongst the residents. 43 Ms Plant had lived in Unit 9 at No. 109 for 25 years. The raising of the roof of the proposal would directly reduce her view west to Bondi Beach and some of the water between. Her view along the coast to the south had been eliminated some years ago when No. 111 Ramsgate obtained an extra storey. She was unhappy about any reduction of parking spaces. 44 Ms Morrison agreed she had purchased Unit 8 at No. 109 after the subject application was lodged. However, before that the council had approved balconies on No. 109 to several apartments on the north elevation including hers, so it is reasonable to consider their adverse impact. There are oblique views to the ocean and Bondi Beach, from her kitchen and living room windows. Large components of those views would be lost due to the penthouse proposed. Looking out of her kitchen and living room windows and turning one's head to the west, the view from the balcony when built could be seen. She had seen a photograph with a rough outline of the penthouse drawn by Mr Murcutt. Her view would be compromised. 45 Mr Peacock of Unit 8 at No. 107 is worried about shadows, noise nuisance, privacy and car parking loss and questions why more intensity should be permitted on a building that already exceeds the height limit. He feels any consent would create a precedent to add a storey to more buildings in the area. He said the North Bondi area is densely developed already with associated problems that should not be increased.

46 Mr Murcutt at Unit 6 at No. 109 had similar concerns to both Ms Morrison and Mr Peacock. He said the additions increased density of building by height and bulk when the existing already exceeded the limits. He objected to the loss of parking and privacy including aural privacy due to entertainment that would occur on the new balconies. 47 Ms Kalek of Unit 2 at No.109 had similar concerns and added that the design of the curved roof on the penthouse is inappropriate. The group of buildings including the subject No. 105 are part of the iconic identity of Ben Buckler that identifies the place as Bondi, Australia. That unique character should not be changed. She added that due to the proximity of the units to one another, noise from entertainment is already a nuisance and should not be increased by the provision of balcony entertainment areas. 48 There were other written objections from residents of the group of buildings who could not attend the Hearing. They reflected the witnesses concerns. 49 The experts review of the issues produced the following relevant comments: o The proposed internal alterations and the proposed additions to the western facade of the building will improve internal amenity of the dwellings without significant adverse impact on neighbouring properties. The additions to the western facade are considered to improve the appearance of the building and will not detract from the character of the building or the area. o The proposed courtyards and other proposed landscaping works appear to be located on part of the site affected by Rights-of-Way (ROW) in favour of other properties and may not therefore be practicable. o External landscaping and courtyards to Units 3 & 4.The proposed landscaping and driveway treatment could only be undertaken by all Strata Plans within the reciprocal rights of way, if the co-operation of owners is achieved.

50 On the 6th storey proposal, including the increased height of the building, the curved roof of the penthouse and the conservation area considerations the following is relevant. 51 The roof forms within the locality and immediate context in which this building is seen include pitched, flat and curved roofs. The experts agree that developing within the existing roof area does not offer sufficient height to allow habitable space. The applicants' experts say the provision of dormer windows will not be sufficient to enable habitable space to occur.

52 Mr Fletcher thought dormers may permit some "rooms in the roof" but if not then any additional accommodation should be within the existing building envelope. He said the subject building and No.107 are within the Bondi Beach-Campbell Parade Urban Conservation Area and they sit in the middle of a group of like buildings located prominently on the North headland of Bondi Beach. The buildings are also prominent from more distant views throughout the Bondi basin and from the coastal walk extending to the south from Bondi Beach. This group of buildings is characterised by an unadorned block form with punched openings in strong masonry walls. The buildings in the group have a consistent pattern of low pitched hipped roofs. In his opinion the proposed roof terrace and curved metal roof form are inappropriate in this context, being too bulky and incongruous with the character of the neighbouring group of buildings. Whilst the provision of some additional floor space within the roof of the building may be appropriate, the extent of the additional floor currently proposed is, in his view, excessive.

53 The experts agreed that the existing building does not comply with and exceeds the maximum permitted: floor space ratio (FSR), overall height and wall height, and does not provide the currently required car parking and landscaped area. However due to the building having been approved and built so long ago, it would therefore be unreasonable to expect full compliance in the present circumstances. 54 On first glance, the proposal only raises the existing roof height by 1.05 m. The new height is still lower than both the adjacent roofs of Nos. 97 and 107 and brings the scale of the building more in line with its neighbours. 55 The experts agreed the shadow diagrams provided (Revision A) provide a reasonable representation of existing and proposed shadow impacts. o The additional shadow impact in mid-winter is confined to Units 8 and 9 on the top floor of 107 Ramsgate Road. o In Unit 8 the rooms affected are the kitchen and the bedroom. The bedroom also has west facing windows. o In Unit 9 the impact is on the combined kitchen/living/dining room. 56 Mr Fletcher said: In assessing the level of impact for this unit the planning principles provided by the Land and Environment Court have been considered for guidance in assessing this impact. These principles provide examples which include the following: o Where a north-facing living room receives uninterrupted sunlight all day in mid- winter, the occupant is likely to perceive its reduction to 3 hours as a major loss of amenity despite the fact that 3 hours of retained sunlight complies with the rule of thumb in the RFDC. o A north facing window 900mm from the side boundary is much harder to protect, and the case to retain sun to it is not as strong o Where an impact is created by a non-compliance with the applicable controls, then the impact must be given more stringent consideration. A neighbour has a reasonable expectation of compliance. o The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight.

57 The applicant regarded Unit 9's windows to be a window facing a side boundary and therefore reducing the solar access as previously described is acceptable.

58 Mr Fletcher said due to the existing building's non-compliance with many current requirements for amenity of residents, any increase in overshadowing of neighbouring properties is inappropriate. To argue that non-compliance will justify an unreasonable impact is failing to consider the context of the site and proposed development.

59 Where the impact arises from a non-compliance, in Mr Fletcher's view it is unreasonable, in a similar manner to the assessment of reasonableness in the Court's planning principle dealing with view sharing. For this reason, and for the reasons outlined previously it is his view that the existing roof form and wall heights should essentially be maintained.

60 In regard to view loss the experts agreed: o The impacts on views are limited to views from units in adjacent apartment buildings, particularly Nos. 101, 107 & 109 Ramsgate Avenue. o Waverley Council has granted Development Consents to add balconies to the apartments on the sides of the buildings 101 & 109 Ramsgate Avenue, although neither consent has yet been implemented. o If balconies are added, the view loss potential from living areas of several of these apartments is increased. However it should be noted that the proposed balconies are along the side elevations of the buildings in question and - therefore any views are still oblique. o Not all of the properties who objected to the development were able to be inspected.

61 Mr Fletcher said: The test of reasonableness as detailed in Tenacity Consulting v Warringah [2004] NSWLEC 140, should also be considered in the context of the buildings and the manner in which the views are obtained. All buildings within the vicinity of the subject site fail to comply with the applicable planning controls. The addition has been designed to remain a lesser height than the adjoining developments and to enable corridor views between the buildings as is the existing situation.

62 In his opinion the extent of impact will vary from minor to severe. However, it is in relation to the fourth test of reasonableness that the determination of this matter is, in his opinion, critical. All of the view impacts are due to the non­compliances with the building envelope controls that apply under current planning controls. Given the extent of existing non­compliance with height and setback controls, any increase in view loss to neighbouring properties is not appropriate. For this reason, and for the reasons outlined previously, the existing roof form and wall heights should essentially be maintained.

63 On the impact on privacy, the experts agreed: - The privacy of adjoining dwellings is generally not considered to be significantly affected. o There is the potential for overlooking from the roof terrace to the dwelling at Unit 8 No. 107 Ramsgate Ave. However, it was agreed that the overall width of the roof terrace could be reduced to centralize the terrace within the building and provision of frosted glazing to 1500mm above floor height so as to avoid direct sight lines. It was noted that the use of the roof terrace area is located off a bedroom and its use may therefore be limited. 64 I note that the objector from Unit 8 said the privacy screen now proposed would add to the view loss. It seems too that similar privacy screens to other balconies of the proposal would affect other units in No. 107, and they would not reduce noise nuisance to the bedrooms from entertainment on the balconies. 65 In coming to conclusions on this matter I had regard to statements by Mr R Staas for the applicant, and Mr C Brady for the respondent, both being Heritage Architects and urban planners and Ms Morrish's report and Mr Fletcher's opinion. 66 They all favoured the new cantilevered balcony and facade design as a feature that retained the character of the 1930's style buildings, and would improve the amenity of the apartments that gained the benefit. The two buildings No.105 and No. 107 that are in the conservation zone have a role to play in the conservation area even though they are not heritage items under the legislation. 67 Their descriptions of the Ben Buckler component of the conservation area and the buildings are similar in words such as: "This group of apartment buildings is characterised by an unadorned block form, with punched openings in strong masonry walls. The buildings in the group have matching cornices and low pitched roofs. The row to the street are higher than the row facing the beach, so that all the cornices and roofs in the group are clearly visible from the beach, park and Campbell parade. The group of buildings is also prominent from more distant views from as far away as the North Maroubra headland. Given the iconic status of Bondi Beach, these publicly available views are of state and national significance, and all proposals need to be fully documented and carefully considered." 68 The point of departure in their statements relates to the penthouse and its curved roof.

69 Mr Staas says: An additional level is proposed to replace the existing hipped roof. The form and detail of this addition has been designed to minimise any undesirable amenity impacts on adjoining development and to provide an enhanced presentation of the building to the beach. While the context of the beach and its setting may have state heritage significance it is not the case that the subject buildings contribute in any significant way to the identified heritage qualities of the beach. For this reason change to elements within the group has been permitted in the past and should be considered on their merits for any contribution to the overall context.

None of the buildings have architectural or heritage significance in their own right and there is no identified heritage values associated with the group as a whole. They are similar in their overall form but vary in size and height. They are principally visible across the sea from Bondi Beach and from Campbell Parade.

The proposed roof top addition is contained within a controlled envelope which is set back from the main face of the building and is recessed below a cantilevered canopy. The addition is curved on its northern edge reducing the potential impact of shadowing on adjoining windows. The new form is metal clad and low in profile reducing any potential visual bulk when viewed from the beach.

70 Mr Brady says: The proposed replacement of the existing hipped roof with an additional curved metal roofed storey is contrary to an established pattern of recommendations for Inter War flat buildings over recent years. There has been consistent support for accommodation provided within the existing roof form and incorporating limited protrusion in the form of cohesive dormers. Removal of the existing hip roofed form detracts both from the setting and the contribution of the existing building to the established visual character of the Headland. 71 The council's expert's report says: the subject site is zoned Residential 2 (c1) - Medium and High Density and residential flat buildings are permissible subject to development consent. The aims of the 2(c1) zone are: (a) to allow for a variety of medium and high density housing forms, including boarding houses, dwelling-houses, residential flat buildings and townhouses; (b) to maintain and improve the amenity of the locality; and (c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of the existing locality. 72 The proposed development will provide for alterations and additions to an existing residential flat building and therefore satisfies objective (a).

73 The, proposal will have a negative impact on the amenity and characteristics of the locality due to loss of views and solar access, and a loss of a cohesive relationship with the surrounding buildings. This results from the non-compliances with the floor space ratio and height controls and accordingly objective (b) of the Residential 2(c1) zoning is not satisfied by the current proposal

74 Clause 30 (a) and (b) of LEP 1996, states the following: (a) within view of Port Jackson, Bondi Beach, Tamarama Beach, Bronte Beach or the South Pacific Ocean, adjacent to any arterial road (as shown on the Zoning map) or public reserve, or on land within Zone No. 6(a), the Council must make an assessment of the probable aesthetic appearance of any building or work that will result from the proposed development; or

(b) within the beach front scenic protection area, the Council must make an assessment of the appearance and visual quality of any building or work that will result from the proposed development when viewed from the South Pacific Ocean and from Bondi Beach. 75 The building is not listed as a heritage item under Council's LEP, however it is located within the Bondi Beach-Campbell Parade Urban Conservation Area. Clause 45(1)(b) states that the altering of the detail, fabric, finish or appearance of a buildings exterior within a heritage conservation area may only be carried out with development consent from Council.

76 Clause 49 of the LEP 1996 requires council to ... 'Take into consideration the likely effect of the proposed development on any heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity': 77 It is considered that the proposed works to the existing roof of the residential flat building are not consistent with the character of the existing buildings within the location. It is observed that the subject building is closely related to the southern adjacent building, and these are the only buildings in Ramsgate Avenue which are contained within the Conservation Area and as such, as a pair, they contribute significantly to the significance of the conservation area. Accordingly, the proposed modifications break up the presentation of the two buildings as a pair and are considered to detract from the character of the area, such that the proposal fails to satisfy cl 49 of the LEP.

78 The proposal exceeds the maximum building height of 10 m permissible within the zone. It is noted that the existing building has a height which exceeds the maximum permissible height by 5 m, and the proposal seeks to extend the maximum height of the building by a further 1.05 m. The objectives within DCP No. 1 for the height control are as follows: 1) To use maximum height limits to assist in responding to the existing and future character of the locality; 2) To minimise the impact of development on adjoining nearby land; 3) To control the bulk and scale of development; 4) To encourage the provision of excavated or partially excavated car parking. 79 The proposed variation results in view loss to the rear adjoining building and also a loss of solar access to the living room widows on the top floor of the southern neighbouring building No. 107 that is the pair of the subject building in the conservation area.

80 The permissible Floor Space Ratio for the site is 0.9:1 and the existing building is 1.4:1. The proposal raises that to 1.6:1. The objective of the floor space ratio is: to control the size, bulk and scale of developments to reflect the existing and desired future character of the area. 81 I was taken by the parties to view the site and the group of buildings from Bondi Beach across the bay. From there the group of buildings does have a strong identity and part of that is the hipped roofs. Although there are different shapes of roofs nearby the opinions of Mr Brady and Mr Fletcher have the greater weight over the opinions of Ms Morrissey and Mr Staas.

82 I note that both of the latter two, had felt the curved roof minimised any amenity impacts or view loss for neighbouring apartments. Such is obviously not the case when seeing the site from the effected apartments. The views they do have are iconic in that Bondi Beach is a conservation area of State significance and is probably one of the "Sydney, Australia" views most recognised world wide as one of the objectors said. The view from the beach to Ben Buckler and the buildings on the headland is part of that iconic setting, and this has been recognised by the boundaries of the conservation area.

83 The fact that the two buildings Nos. 105 and 107 have been placed in the conservation zone means any changes to them have to be considered carefully. I agree the proposed cantilevered balconies and the facade treatment proposed is sympathetic to the existing and future character of the conservation zone, and the impacts of them upon neighbours is not sufficient for refusal. Living in close proximity as the residents of the apartments do, means there is activity from entertainment already. Noise on the proposed balconies and limited overlooking will cause occasional nuisance to neighbours but only to side windows. The main windows of the effected rooms in No.107 will remain private and the side windows can be closed and the blinds drawn when occasional events need.

84 The penthouse and the curved roof are another circumstance. There is real impact on neighbours and adverse effects upon the group of buildings in the conservation zone and detriment to the setting of the conservation zone as a result.

85 The car parking and courtyards for Units 3 & 4 can only be achieved by cooperation of all the owners and residents of the buildings using the driveways. I would not favour granting consent to that part of the proposal unless there is a joint plan of management or a joint development application.

86 The internal changes to the existing apartments except for the penthouse appear acceptable, however the proposal as it currently stands should be refused. 87 Therefore the Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits A, B, and 3.

      K G Hoffman
      Commissioner of the Court
      rjs

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