Ray Fitz-Gibbon Architects Pty Ltd v Warringah Council

10625 of 2004 Fitz-Gibbon Architects Pty Ltd v Warringah Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Warringah Council (council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (2002/1587DA) to demolish the existing buildings and to construct a residential flat building at 25-29 Delmar Parade, Dee Why (the site). The site and its context 2 The site is located on the northern side of Delmar Parade, below street level. It has an area of approximately 1,800 sq m and slopes to the north and north west. Construction of the approved development has commenced. To the east and west of the site residential flat buildings are also under construction. 3 The existing character of the northern side of Delmar Parade is of an area undergoing transition with older houses being replaced by residential flat buildings. 4 The southern side of Delmar Parade is developed with single and two-storey houses, which are elevated above street level. 5 From the street and the properties on either side of the street there are views towards the north to Collaroy ridgeline and to the north east towards Long Reef. The proposal and its history 6 On 13 May 2003, council approved a development application for 18 residential units and basement car parking. The consent included the following conditions: Condition 48 The height of the building at Unit 15 level be restricted to 8.5m above natural ground level - [this will require deletion of unit 15]. Condition 78 Prior to an application for the removal of Syzygium Paniculatum tree on the Delmar Parade Road Reserve the applicant will arrange for the completion of an 8-part test under the Protected Species legislation and Environmental Planning and Assessment Act. Details of the eight-part test are to be submitted to Council. Condition 79 Instead of the proposed removal of the Syzygium Paniculatum the applicant should redesign the proposed access stairs and therefore maintain the species in the present location. Such a redesign will also require completion of an 8-part test to assess the impact of any proposed works in the vicinity. 7 On 2 October 2003, the applicant lodged an application to modify the development consent as follows: (i) Modify the description of the proposed development contained within consent 2002/1587DA to refer to 17 units consistent with the revised detail accompanying this submission. (ii) The modification of the consent 2002/1587DA dated the 13 May 2003 by amending condition 1 to refer to and incorporate the amended plan details accompanying this submission. (iii) Delete condition 48 consistent with the revised layout. (iv) delete both condition 78 and 79 (or at least 79) consistent with the recommendations of the Footprint Green Pty Ltd Threatened Species Assessment report accompanying this submission. 8 The amended plans included the reduction in unit numbers from 18 to 17, the redesign of unit 15, additional balconies to the northern side of the building, internal alterations and the reconfiguration of the basement car park. 9 Council notified the application and four objections were received. Council staff recommended approval of the application. The Independent Hearing and Assessment Panel recommended refusal of the application. Council refused the application on 9 March 2004.

Planning Framework 10 Under Warringah Local Environmental Plan 2000 (LEP 2000) the site and the northern side of Delmar Parade are located within Locality E19-Delmar Parade. Residential Flat buildings are permitted within this locality. 11 The houses on the southern side of Delmar Parade are within the E15-Wingala Hill Locality, which generally allows one house on 600sqm allotments.

12 Clause 12(1) of LEP 2000 requires that consent must not be granted unless development is consistent with relevant General Principles of Development Control in Part 4 of the LEP 2000 including: Clause 61 Views

Development is to allow for the reasonable sharing of views. 13 Clause 12(2) requires that the development must comply with the development standards set out in the Locality Statement including: Building height

Buildings are neither to exceed: (a) 2 storeys nor 8.5 metres if they address Delmar Parade, or (b) …..

Buildings must comply with both the maximum height measured in storeys and the maximum height measured in metres. Taller buildings may be permitted in the centre of large amalgamated sites. 14 Under cl 12(3) the desired future character described in the Locality Statement must be considered. 15 The desired future character is relevantly described as: The Delmar Parade locality will be developed as a residential area characterised by apartment style housing. Future development will include the construction of new apartment buildings and the upgrading of existing buildings.

Future development is to use the natural fall of the land to ensure that development addressing Delmar Parade is of a low scale and preserves existing significant public and private views. Building design is to also employ elements which serve to fragment larger building forms and, together with site landscaping, minimise the impact of development on long-distance views of the locality. 16 The applicant's submission, which was not opposed by Council, it that:

Section 96(4) of the Environmental Planning and Assessment Act provides: "The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified."

The effect of section 96(4) is to make it clear that when considering the section 96 application the consent authority is not granting development consent……. The important point for the purpose of this application is that the relevant provisions of WLEP 2000 which may or may not set the legal precondition to approval are worded in language which refers to the granting of development consent not the approval of the modification application. For the reasons set out in Lido's case (Lido Real Estate Pty Ltd & Anor v Woollahra Council NSWLEC118) and because of the operation of section 96(4) of the EPAA the applicant says that the provisions of WLEP 2000 are not applicable because these controls are only called up when the consent authority is considering granting development consent. In this case the consent authority is only considering modifying an existing consent. 17 Section 96(3) states that: In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. 18 Section 79C (1)(a) refers to the provisions of any environmental planning instrument. Both parties agreed that the relevant provisions of WLEP 2000 should be taken into consideration in the merit assessment of the application but not as a legal impediment to the approval of the modification application. 19 The applicant's submission was that: The Court will consider the desired future character of the locality, the development standards and the relevant general principles to ascertain what is the planned outcome for the locality however the relevant provisions of WLEP 2000 would not operate as legal preconditions which must be satisfied before the Court can improve the modification application. 20 In North Sydney Council v Michael Standley (1998) 97 LGERA 433, Mason P stated that: For these reasons I would hold that a consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s90 (s79C) as are of relevance to that development. 21 The Council's submission was that: The Court of Appeal in North Sydney v Standley made it clear that the consent authority is not limited in considering the LEP to the difference between what was approved by the development consent and what is proposed in the modification application. 22 The applicant's submission was that the assessment should be limited to that of the impact of the proposed amendment. 23 The key issue in this case relates to the impact of Unit 15, particularly on view loss. In assessing this impact I accept council's submission that it is relevant to consider whether the development as a whole achieves appropriate view sharing and not to look only at the incremental loss of view that will result from the proposal. 24 Warringah Local Environmental Plan 2000 (Amendment No B) has been exhibited. Both parties submitted that I should give this little weight. The issues 25 The Statement of Issues before the Court contained 5 issues. The parties agreed that Issue 1 was satisfied and the application was substantially the same as the approved development. Amended drawings were submitted and council was not concerned with other changes proposed in the s96 application except the deletion of condition 48 requiring the deletion of Unit 15. The Deletion of Conditions 78 and 79 was resolved through amended wording of condition 79.

The evidence 26 I undertook a site visit and heard from the following resident objectors: Mr P Barwell, 106 Delmar Parade, Dee Why Mr R Eilersen, 48 Delmar Parade, Dee Why Mr I Shaw, 62 Delmar Parade, Dee Why Mr D Spink, 54 Delmar Parade, Dee Why Zhi Jian Zhu and Xiu Qiong Lin, 66 Delmar Parade, Dee Why Mr A Winslow, 60 Delmar Parade, Dee Why 27 The main concerns that relate to the s96 application were the height of Unit 15, its bulk and impact on views, both public and private, and privacy. 28 No expert evidence was tendered although I read the statement of evidence of Ms D Laidlaw, prepared for the council, prior to the hearing, which had been filed. This statement was returned and I have not had regard to it in my consideration of the appeal. I have assessed the impact of the proposal based on the scaffolding provided on the site visit to indicate the extent of Unit 15. 29 In relation to view loss, I have considered the views of both council staff and the Independent Hearing and Assessment Panel in their assessment of the original application. Council officer's report to the Independent Hearing and Assessment Panel on 23 August 2003 stated that:

In order to minimise the proposal's impact upon view lines currently available to dwellings situated opposite the site in Delmar Parade a condition has been included in the draft consent requiring deletion of the uppermost level situated on the eastern portion of the building, containing bedroom and ensuite areas associated with " Units No.s 17 and 18".

It is noted that a significant degree of vegetation exists within the road reserve immediately adjacent to the western portion of the site that impacts on views currently available to properties situated on the opposite side of Delmar Parade. Whilst there will be a degree of view loss attributable to the proposal it is considered that proposal in conjunction with the above requirement will allow for the retention of view lines across the site in accordance with the adopted principle of view sharing and accordingly maintains an adequate level of amenity to the majority of adjoining residential units and dwellings. 30 The Independent Hearing and Assessment Panel did not accept the recommendation to delete Units 17 and 18 but instead considered that Unit 15 impacted upon the amenity of adjoining residents and imposed a condition that required its deletion. 31 The development as approved with condition 48 requiring the deletion of Unit 15 (the approved development) will impact on the views from the properties on the opposite side of Delmar Parade and from the street itself. These properties have their living areas and decks orientated towards the north and to the view. The previous development on the site allowed views over the existing houses and provided view corridors between these houses. The purpose of condition 48 appears to be to maintain some views and achieve appropriate view sharing. 32 The report to Council of the 9 March 2004 recommended approval of the s96 application. In relation to views this report stated: In order to provide increased opportunity for the retention of views to properties situated to the south of the subject site it is noted that the modified design has provided an increased setback to the area corresponding with Unit 15 from 2.5 metres to 6.1 metres from the main southern façade of the building. It is considered this increase setback, as discussed previously in this report, will satisfactorily address the adopted principle of view sharing and accordingly maintains an adequate level of amenity to the majority of adjoining residential units and dwellings. 33 The Independent Hearing and Assessment Panel did not accept the recommendation. I do not agree with the council officer's assessment of view loss. The increased setback from the southern façade will do nothing to reduce the impact on view loss from the properties to the south. These properties either look directly at unit 15 or where there views are oblique, the setback is viewed against the backdrop of other parts of the building. 34 The key question before the Court is whether there will be a material impact on the remaining views that the residents opposite would enjoy with the approved development. I have considered the principles for view sharing established by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. I find that from the street and Nos 60 and 66, unit 15 will not impact on views largely because other parts of the development will remove the view and unit 15 will mostly be within the view corridor that is blocked by other parts of the building. 35 There will be increased view loss from No 54 and to a lesser extent No 62, which is material in its own right and in combination with the view loss resulting from the other parts of the approved development, does not achieve appropriate view sharing. 36 There would also be a view loss to No 48 but the extent was difficult to estimate from the location of scaffolding on the site. 37 A development to the west is under construction which will is likely to also impact on the views, particularly of No 54. The impact on views from the removal of removal of trees in the road reserve and replacement planting in the landscape plan is not clear and I have not considered this in the assessment of view loss. 38 The parties held different opinions as to whether the height of the proposal exceeded the height limit in LEP 2000. Mr Howie's submission, for the council, was that the relevant height limit was two storeys and 8.5m above ground, which the proposal exceeds. Mr Galasso's submission, for the applicant, was that taller buildings were permitted in the centre of large amalgamated sites, and that as unit 15 was set back from its north and west boundary it met this provision. Based on the parties' submissions on the role that the provisions in the LEP have to play, I do not need to adjudicate on this difference of opinion as to whether the proposal complies or not. However, regardless of this, the impact on views would be a relevant consideration in determining the appropriateness of a taller building in the centre of the site. 39 The approved development exceeds the 2 storeys and 8.5m height limit. When viewed from the street the development appears as a two storey building with one to two storeys setback from the street frontage. If measured from ground level at the face of the building, rather than street level, the development exceeds the height limit of both storeys and metres. In this context the condition requiring the deletion of unit 15 is reasonable, as it will result in the development as a whole achieving view sharing. Whereas the retention of unit 15 will have a material impact on views which are already impacted upon by the approved development. 40 In relation to the impact of unit 15 on the streetscape, the increased setback has reduced the overall bulk of the development and it is unlikely to adversely impact on the amenity of adjoining residents or the streetscape. 41 While unit 15 and its terrace looks directly to the properties to the south, it is unlikely to adversely impact on privacy as it is setback sufficiently from these properties. 42 The s96 proposes a number of modifications to the approved application. Council does not oppose these changes except for the deletion of conditions 48. This condition requires the removal of unit 15 and for the reasons above is reasonable. 43 Condition 48 requires the height of the building to be restricted to 8.5m above ground by the removal of unit 15. The parties disagreed on the extent of what is required to be removed by condition 48. The lift well and access to other units are not required to be removed by the condition. These structures would impact in views and therefore make it unnecessary to remove those parts of unit 15, which are to the north of these structures. Therefore the removal of only that part of unit 15 to the west of the lift well is necessary to retain views (18.9m from the western boundary). 44 Parts of the terrace and its solid balustrade are above 8.5m and impact on views. It is therefore reasonable that with the removal of part of the unit the extent of terrace and balustrade also be reduced to the size that is currently approved (7.5m from west to east) which would enable further stepping of the building. A larger terrace may be appropriate if it can be demonstrated that it will not impact further on views. These changes would necessitate redesign of unit 15 and I accept the parties' suggestion that an amended plan should be submitted which shows the final configuration of the top level. This amendment will require consequential changes to other drawings. Therefore my final orders will not be issued until amended drawings are provided.

      Annelise Tuor
      Commissioner of Court

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