Raymond & Kennedy v Woollahra Municipal Council

Land and Environment Court (NSW)|2004-05-28

CITATION : Raymond & Kennedy v Woollahra Municipal Council [2004] NSWLEC 286 APPLICANT Raymond & Kennedy PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10824 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- Residential Flat Building Impact on Residential Amenity LEGISLATION CITED: Woollahra Local Environmental Plan 1995 CASES CITED: DATES OF HEARING: 18/12/2003 and 19/02/2004 DATE OF JUDGMENT: 05/28/2004

APPLICANT Mr G Green Solicitors Pike, Pike & Fenwick

LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell Solicitors Michell Sillar

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application for a residential flat building at 42 Bundarra Road, Bellevue Hill. The site and its context

2 The site is located on the south western side of Bundarra Road. It is rectangular in shape with an area of 696.7 m2, a frontage to Bundarra Road of 15.24m and a depth of 45.72m. The site falls approximately 8m from the rear towards Bundarra Road. It has a single story house setback above the street and a single garage built into the site at the street front. There is vegetation around the perimeter of the site, including a row of pine trees along the street front.

3 Development in the surrounding area is characterised by single and two-storey houses in landscaped settings interspersed with recent residential flat buildings. Adjoining the site on either side are single storey houses. Adjoining the site to the rear at 41-43 Bennelong Crescent is a residential flat building. There are also residential flat buildings in Bundarra Road. Background

4 The development application (770/2002) was lodged on 18 September 2002. Council advertised the application and a number of objections were received. Council refused the application on 3 March 2003. 5 I had the advantage of a site visit and heard from residents. After the site visit and as a result of joint conferences between the planners: Mr A Rohan, for the council, and Mr A Darroch, for the applicant; amended plans were prepared and renotified to adjoining residents. The main changes included increasing the rear setback from 7.5m to 9m, lowering the height of the building from RL 59.2 to RL 58 and maintaining the natural landform of the front of the site in Bundarra Road. These plans resolved the issues between the parties and a number of concerns raised by the residents. However, the residents still had outstanding concerns and there were conditions in dispute between the parties. Proposal 6 The development application is for the demolition of an existing house and the construction of a three storey residential flat building with two apartments and basement car parking for four resident and one visitor cars. Statutory framework

7 The site is zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP 1995). Residential flat buildings are permissible within this zone. The proposal complies with the numerical standards in the LEP: including height, floor space ratio and minimum site frontage. 8 Local Environmental Plan 1995 - Amendment No 43 (LEP 43) was gazetted on 6 June 2003. This LEP reduced the maximum FSR applicable to the site from 1:1 to 0.75:1 and included a savings and transitional provision. The application was lodged prior to the gazettal of LEP 43 and therefore, under the savings provision, the application is to be determined as if this plan had been exhibited but not made.

9 The Woollahra Residential Development Control Plan 1999 (RDCP) is also relevant. Issues 10 The Statement of Issues contains 14 issues. As a result of the amended plans all the issues were resolved between the parties except for the concerns of the residents and disputed conditions. 11 The main concern of the residents to the rear of the proposal in Bennelong Crescent, particularly 41-43 Bennelong Crescent, was that the proposal provided insufficient setback and did not comply with the requirements of the RDCP. They considered that this resulted in a building that was too high, too bulky and would cause overshadowing and privacy impacts. 12 The RDCP requires the front setback to be consistent with those of the adjoining properties and the rear setback to the 25% of the average site length. The front setbacks of the adjoining properties are 14.5 m (south) and 21 m (north). The required front setback is therefore 17.75m. The proposal has a setback of 14.9m to the ground floor of the building and 18.5m to the third floor. The experts agreed that this setback was adequate. 13 The RDCP would require the rear setback of 11.45m. The proposal has a rear setback of 9m. 14 Mr Darroch's evidence was that if the proposal complied with both the front and rear setbacks it would have a building area of 16.52m or 36.1% of the site length. Both he and Mr Rohan agreed that the 9m rear setback provided sufficient separation and would not result in adverse amenity impacts for the properties to the rear. 15 There is approximately a 3m change in level between the ground level of 41-43 Bennelong Crescent and the courtyard and ground level of apartment 1. Due to this change in level, the proposal will appear as a two-storey building from the properties to the rear. The rooms that face 41-43 Bennelong Crescent are bedrooms and bathrooms and while there is a courtyard to apartment 1, the primary areas of open space are the terraces in the front of the proposal that face northeast. The experts agreed that in midwinter there would be an increase in overshadowing to the courtyard of 41-43 Bennelong Crescent of about 0.9m beyond the existing fence shadow at 9 am. At 12 noon the shadow would fall within the area of the site shadowed by the fence and 40 Bundarra Road and from 2pm to 3 pm there would be a minor sliver of shadow along the rear elevation of 40 Bundarra Road. The proposal therefore would comply with the requirements of the RDCP in relation to solar access. 16 I accept the experts' opinions that the 9 metres separation is adequate. The proposed development will not have excessive height or bulk and will not have an adverse impact on the amenity of the properties to the rear. 17 Dr Streimer of 40 Bundarra Road, raised a number of concerns in relation to the application. While these were not resolved by the amended plans, Dr Streimer's main concern was to ensure that the privacy to his property would be maintained and that this was reflected in appropriate conditions, which are discussed below. Conditions 18 Mr Rohan and Mr Darroch gave evidence on the following conditions which were in dispute:

Condition 4: Treatment of front setback Council's wording of this condition should remain. The purpose of maintaining the existing levels within the front setback is articulated in the condition as being to minimise alterations to the existing landform and the retention of trees. In the absence of levels in the landscape plan, the existing levels should be maintained except in the pathway, driveway and inclinator. I have amended the condition to also include the inclinator.

Condition 8: Entry Foyer The revised wording of this condition was agreed between the parties. Dr Streimer considered that the glazed screen should be extended along the entry passage that adjoins his verandah. The passage is about 2.5m away from and 1.35m below the level of his verandah with a landscape screen between. I accept that this will provide sufficient privacy and is unlikely to cause noise disturbance beyond that to be expected from a residential use, particularly as the proposal is only for two apartments.

Condition 11:Terrace, ground floor apartment 2 The purpose of this condition is to prevent overlooking of the adjoining properties from the ground floor terrace of apartment 2. The condition requires that the planter box be widened by 700 millimetres and that a glazed screen be provided inside the planter box. I consider it reasonable to increase the width of the planter box to provide adequate screening. The terrace is generous in length and the extra planting will not interfere with its usefulness as it will line up with the edges of the building. I do not consider the glazed screen to be necessary, as this will affect the future residents enjoyment of this terrace by placing a glazed screen between the terrace and the landscaping. The planter box will result in a distance of three metres between the users of the terrace and the boundary, which is sufficient to maintain privacy even if the landscaping were not maintained or if the adjoining properties were to be developed. Condition 12: first floor apartment 2, planter box around the master bedroom For the reasons given above, I have retained Council's wording of this condition. I accept that privacy between the terrace and the adjoining existing houses is acceptable. However this would not be the case if these properties were redeveloped.

Condition 14: living room windows at first floor level, south east elevation These are secondary windows to the living area about three metres from the boundary. I accept that the condition is reasonable to ensure privacy of the existing house at 40 Bundarra Road and also if this property were redeveloped.

Condition 15: study/retreat windows, first floor apartment 2 These are secondary windows to a study/retreat that are about 4.5 metres from the boundary. I do not accept that the condition is necessary as the use of the room, the separation and the planter boxes will ensure adequate privacy for the existing houses and if the properties are redeveloped.

Condition 16: Bathroom and stairwell windows The stairwell does not appear to have windows and therefore this part of the condition is unnecessary. In relation to the bathrooms, it is not unreasonable that the lower panes should be translucent glass and not be reliant on planting for privacy.

The appeal is upheld.
Development application 770/2002 to demolish the existing house and to construct a residential flat building at 42 Bundarra Road, Bellevue Hill, is determined by the grant of development consent subject to the conditions in Annexure A.
The exhibits, except exhibits J and 9, may be returned.

                                                      Annelise Tuor
                                                      Commissioner of the Court

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Judgment (19 paragraphs)

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