Stromer v Woollahra Municipal Council

CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373

APPLICANT Ms S Duggan, barrister Solicitors LEGAL REPRESENTATIVES: Spiegel & Assoc. RESPONDENT Mr M Connell, solicitor Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10978 of 2005 Stromer v Woollahra Municipal Council

1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application (DA 793/2004/1) to demolish an existing two storey house and swimming pool and construct a four storey house with basement garage and swimming pool at 15-17 Fairfax Road, Bellevue Hill (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its locality 3 The site and its locality is described in the Statement of Basic Facts as: The site

The subject site comprises two allotments (lots 8 & 9, DP 12722) located on the south eastern side of Fairfax Road. The site is rectangular in shape with a site area of 1,694.5m2 and a frontage of approximately 35m to Fairfax Rd. The site has a fall from the rear to the front of approximately 9.5 metres. Fairfax Road also slopes down from north to south.

Existing on the site is a two-storey dwelling house with an in-ground swimming pool and a grass tennis court to the rear. There are two garages existing on the site. One of them is fronting Fairfax Road while the other is incorporated within the existing dwelling with a driveway from the street.

The existing dwelling has a minimum front setback of 19.2m, a minimum side boundary setbacks of 12.4m to the north and a minimum rear setback of 14.6m. The maximum setback to the southern boundary is 2.7m and in one area there is a nil setback.

Due to the slope of the site there are several retaining walls sloping up the site.

Surrounding development is residential, comprising of dwelling houses of varying sizes and architectural styles.

Adjoining the site to the north is a 2-3 storey detached dwelling (No 19). To the south is 1-2 storey detached dwelling (No.11B). Both are located on steeply sloping sites similar to the subject site. Similarly, detached dwellings are located to the rear of the site with frontages to Tarrant Avenue. The proposal and its history 4 The application was lodged on 6 December 2004 and was notified to adjoining and nearby residents. Council received a number of objections. The application was amended more than once and refused by Council under delegation on 7 September 2005. 5 The application is similar to an application (DA 961/2003), which was approved by Council on 6 April 2004, subject to conditions (the 2004 consent). The key differences that are relevant to this appeal are:

· Garage level - additional excavation for car parking and storage; a new pedestrian entry off Fairfax Road; the deletion of the approved new vehicle entry of Fairfax Road and additional landscaping within the front setback. · Lower ground floor - additional excavation to provide a swimming pool, gymnasium, outdoor pool terrace and pool plant room. · Ground floor - Additional excavation to provide additional plant room and laundry. · First-floor- minor changes. · Second floor - increase in size of Bedroom 1 and relocation of terrace. · Changes to chimney/architectural feature. Planning Framework 6 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is permissible within the zone with consent. 7 Cl 12 and the height map of LEP 1995 specify a maximum height limit for the site of 9.5m. The proposal complies with this standard. The 2004 consent exceeds this standard to a minor extent. 8 C1 18 of LEP 1995 provides:

(1) When considering an application for consent for development involving the excavation of any land, the Council shall have regard to how that excavation may temporarily or permanently affect: (a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process, and (b) public safety, and (c) vehicle and pedestrian movements, and (d) the heritage significance of any heritage item that may be affected by the proposed excavation and its setting, and (e) natural landforms and vegetation, and (f) natural water runoff patterns.

(2) The Council may decline to grant such a consent unless it has considered specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and dilapidation reports of properties, which may be affected by the proposed excavation.

(3) Consent for an excavation may be granted when consent is granted for any other development proposal for the carrying out of which the excavation is necessary. 9 Woollahra Residential Development Control Plan 2003 (DCP 2003) includes the following objectives and controls which relate to excavation:

O5.2.4 - To limit site excavation and minimise cut and fill to ensure that building form relates to the topography and to protect the amenity of adjoining properties both during and after construction.

C5.2.15 - The building footprint is designed to minimise cut and fill.

C5.2.16 - The outer edge of excavation, piling and all sub-surface walls shall not be less than 1.5 m from a front, side or rear boundary.

C5.2.17 - To minimise cut and fill on sloping sites and to encourage good quality internal environments, any habitable room must have at last one external wall fully above existing ground level. 10 C5.2.9 of DCP 2003 specifies a maximum floor space ratio (FSR) for sites over 450sqm of 0.55:1. The experts agreed that the proposal has an FSR of 0.87:1 and that the 2004 consent has an FSR of 0.77:1. I note that the planner's report assessed the 2004 consent on the basis that the FSR was 0.63:1. The discrepancy between this figure and the current figure was not stated or addressed in the hearing. 11 The site is within the Bellevue Hill North Precinct under DCP 2003. As I understand the evidence, the proposal complies with the controls for this precinct in C4.7.9 with the exception of front setback (C4.7.9.2) and building height - storeys (C4.7.9.3) illustrated in annotated street section. 12 C4.7.9.2 requires that the front setback conform to the requirement in Part 5.2. This requires that the front setback to be consistent with that of adjoining buildings. 13 C4.7.9.3 provides:

Development is to have a maximum height of two storeys. Where the landform of a site falls more than two metres from the street to the rear of a property an additional basement storey may be permitted as long as all other RDCP controls are met. 14 The site falls more than two metres and the annotated street section details the requirements of the storey control which development should conform to. 15 The development's compliance with these controls are issues in the appeal that are addressed further below. 16 At the time the 2004 consent was determined, Woollahra Residential Development Control Plan 1999 (DCP 1999) was the relevant DCP. This DCP did not include a storey control and the desired future character statements for the Bellevue Hill precinct are different in DCP 1999 and DCP 2003. 17 An issue raised by the residents was the reliance on the 2004 consent as justification for the current approval. I find that little weight should be given to this approval. It is relevant as a circumstance of the case as a valid application that may or may not proceed. It was approved under a previous DCP that did not contain a control which limited the number of storeys. Although the overall height limit did not change, this control in conjunction with the FSR and excavation control is an important consideration. The application before the Court is not a s96 modification but a new application and the obligation of the Court is to consider this application under the current planning controls. 18 The consideration to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly 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 a local environmental plan. Thirdly, 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. The evidence 19 Mr D Brindle, the Court Appointed Planning Expert, Mr A Porebski, the applicant's architect and Dr F Barda, the applicant's structural engineer provided Statements of Evidence and evidence on site. Mr M Adler, geotechnical and civil engineer, provided a Statement of Evidence on behalf of the applicant. 20 The court heard evidence on site from the following residents: · Mr and Mrs Hoy, 11B Fairfax Road · Mr B Napier and Ms M van den Beck, 19 Fairfax Road · Mr P Talbert, 21 Fairfax Road · Ms P Murray, 5 Fairfax Road · Mr S Foster, 8 Tarrant Avenue · Mr P Henningham, on behalf of Mr and Mrs Newman, 6 Tarrant Avenue 21 The main concerns of the residents were the height and bulk of the proposal, its four storey appearance and setback from Fairfax Road, the exceedance in the FSR control. Adjoining residents were particularly concerned about the extent of excavation, its proximity to their boundary and likely impact on their properties. The owners of 19 Fairfax Road also raised issue with loss of views and solar access and impacts of noise from the proposed front terrace and the mechanical ventilation. The owners of 11B Fairfax Road considered that the proposal would impact on privacy in their living room but agreed that a masonry fence along the boundary would address this issue. The issues 22 The Statement of Issues before the Court contained 11 issues. The parties agreed that these can be categorised as:

i) Whether the extent of excavation is likely to have an adverse impact on adjoining properties and the landform of the site. ii) Whether the height, bulk and scale of the proposal are acceptable. iii) Whether the setback of the proposal is consistent with adjoining properties and has an acceptable streetscape impact. Excavation 23 Mr Adler prepared a preliminary geotechnical investigation report for the 2004 consent. He updated the report for the current application and concluded that:

My preliminary report is still appropriate for the new proposed works. The minor changes in the excavation do not give me reason to change the comments and recommendations I made in that report. 24 I note that Mr Adler in both reports considered that there would be no excavation within 1.5m of the boundary. 25 Dr Barda outlined the proposed method of excavation and construction techniques for the current application. This method proposes two rows of contiguous piers. The first row is along part of the north and south boundary with the second row set back from these boundaries. 26 Dr Barda concluded "if careful planning is undertaken, it is expected that there will be no damage to adjoining properties". He recommended methods such as vibration monitors, further geotechnical advice on rock strength and location, choice of machinery to reduce vibration, strict adherence with geotechnical advice and dilapidation reports. Some of these recommendations have been incorporated into specific conditions of approval. 27 The other recommendations are incorporated into the proposed condition 49, which requires that the proposed development works be carried out in accordance with the recommendations of Mr Adler and Dr Barda. There is however, a degree of contradiction and ambiguity between these recommendations. For example the report of Mr Adler considers rock anchors on adjoining properties would be required whereas Dr Barda stated on site was that this would not be necessary, but it is not confirmed in his report or in the conditions of approval. If the proposal were to be approved there should be a greater degree of certainty in the conditions to reflect Dr Barda's conclusion that the proposed excavation can safely occur provided there is careful planning. 28 Council did not seek to cross examine either Mr Adler or Dr Barda and did not provide any contrary expert evidence. I note that the council assessment report on the 2004 consent stated that "the proposed excavation is acceptable in terms of cl 18". The report did not deal with any requirements under DCP 1999 in relation to excavation but I assume that the requirements in DCP 2003 were not contained in the earlier DCP. 29 Mr Brindle did not deal with the technical excavation impacts but addressed the affect on the natural landform. In his opinion "the natural landform of the site and the surrounding area has been significantly modified by urban development." He accepted that the "proposed development requires a significant amount of excavation. However, this will not affect any part of the site that can be considered to contain natural landform." He based this opinion on an understanding that excavation would be no closer than 1.5m from the side boundaries. 30 Mr Brindle stated that

Despite the excavation, it is considered that the proposed development relates to the topography in that it forms part of a pattern of development stepping down the hill. The overall height of the development is compatible with that of adjoining development. The lower levels of the development when seen from the street will be screened by the proposed streetwall and landscaping such that the lower level containing the pool and gym and guests room will generally not be visible…Views of the lower ground floor will be effectively screened by landscaping. Views that are obtained from the street would be of a stone cladding to the structure of the lower level. The main levels of the dwelling will be visible above this level. 31 The current proposal increases the extent of excavation to provide additional habitable space to that approved in the 2004 consent. The largest increase occurs on the lower ground floor to provide a gym and swimming pool. This is below the area that would be excavated to provide accommodation on the ground floor level and the northern terrace, which are below the existing ground level on the site. As stated by Dr Barda, "the additional excavation will have the same impact to neighbours buildings as the approved DA". However, in determining whether this impact is acceptable it must be considered within the framework of the current planning controls. 32 From the evidence before me, the requirements in the DCP 2003 in relation to excavation have changed since the 2003 approval. They include that cut and fill should be minimised (O5.2.4 and C5.2.15), excavation should not occur within 1.5m of a boundary (C5.2.16) and that habitable rooms should not below ground level (C5.2.15). 33 While I accept the expert evidence that technically the excavation, if carried out in accordance with the reports and conditions, will not cause damage to adjoining properties, I do not accept that the proposal meets the requirements of DCP 2003. The site is not a natural landform as it has been extensively altered but this is not a valid reason to increase the degree of change from a site, which still maintains a slope, albeit altered, to one that is a series of terraces. 34 The excavation on the boundary is necessary to implement the preferred excavation method. However, the need for this degree of excavation appears to result from the excavation of the ground floor and terrace and proximity of the excavation to the southern boundary to provide access stairs. Whether contiguous piers along these boundaries would be necessary to achieve a different design (which did not require excavation along the boundary and better retained the existing ground level) was not clear from the evidence. However, excavation that is at least 1.5m from a boundary would have less impact and less associated risk than excavation on the boundary. 35 I do not accept that the excavation is occurring solely within the footprint of the building. While the habitable rooms are within the footprint, the excavation is clearly not. I do not accept Ms Duggan's distinction between excavation to provide accommodation and excavation that is backfilled. This argument may be more persuasive if the backfill retained the existing ground level but not where, despite the backfill, the existing ground level is altered to place a substantial part of a building below natural ground level thereby necessitating excavation of the site to provide light and air to habitable rooms. 36 No drawing was provided which showed the extent of excavation but the sections indicate the existing ground level and the proposed ground level. Section CC and Section DD show the ground level adjacent to Fairfax Road largely retained. The existing driveway is to be removed and replaced with landscaping which is a positive feature of the development. The level to the east of the driveway is to be excavated. This is notated on drawing 486.A.101 B as being currently an "area of site containing randomly placed rocks and landscaping". While not "natural landform" it generally follows the topography of the land. Section CC shows about 3.5m of excavation adjoining the guest living, which reduces as the land slopes to the west. Section DD shows about 3m of excavation adjoining the gymnasium. This excavation is to provide light and air to these rooms. 37 The guest living was approved under the 2004 consent whereas the gym was not habitable space but was a series of stepped stone garden walls. This excavation, while not materially different to the 2004 consent, does alter the slope of the site and adds considerably to the bulk of the building. It is argued by Mr Brindle that this additional bulk will be screened by the planter boxes and vegetation proposed. However, the bulk of the building should be acceptable without relying on vegetation. Vegetation should be utilised to soften a building but not to hide undesirable elements or bulk. Even with the proposed vegetation, the four storeys of the building will be clearly visible from certain vantage points including the front entry. 38 While it is reasonable to expect that the landscape plan will be implemented, the ability to require or enforce long term maintenance of shrubs is questionable. This has added importance where residents desire for views clearly outweigh a desire for landscaping. This was confirmed in the evidence of adjoining residents and the conditions agreed to by the applicant to limit the height of landscaping to part of the adjoining southern and western boundary to effectively 1.5m above the ground level of the adjoining properties. 39 I find the extent of excavation is unreasonable in this case. The unacceptability is compounded by the exceedance in the FSR control. As stated above, I have given little weight to the 2004 consent and while I accept that the removal of the existing driveway is a positive feature of this development I do not accept that of itself this justifies an approval in circumstances where the DCP control, which I am required to consider, have changed and the proposal clearly does nor meet the objectives of these controls. Height, bulk and scale 40 The proposal straddles two blocks and complies with the height control of 9.5m in LEP 1995 but not the number of storeys or FSR control in DCP 2003. In his Statement of Evidence, Mr Brindle considers the height, bulk and scale to be acceptable. 41 The site is located in an area described in DCP 2003 as "predominating one to three storey residential houses and flat buildings set in the winding streets that follow the contours of the landscape." In relation to height, Mr Brindle considered that the proposal achieved the desired future character objectives for the Bellevue Hill North Precinct of DCP 2003 despite its non compliance with the two storey control. 42 Mr Brindle stated that the proposal complies with 9.5m control, whereas the 2004 consent did not, and its overall height is consistent with that of surrounding buildings. From the rear it is two storeys. Mr Brindle considered the four storeys from Fairfax Road to be acceptable as views of the lower ground are restricted by topography, proposed landscaping and setbacks. The ground and first floor are at lower heights than the adjoining two houses. The second floor is setback from the side boundaries, has a limited width to the street and is a less dominant form than a pitched roof. 43 In relation to FSR, Mr Brindle considered the exceedance to be acceptable as the 2004 consent also exceeded the FSR control and "the increase in FSR in the proposed development compared to the approved development has no significant impact on the bulk and scale of the development." Mr Brindle also stated that the purpose of an FSR control is mainly to limit the bulk and scale of a development. In this case the FSR exceedance was largely below ground and largely not visible from the street. He did not consider that it had an unacceptable impact, particularly as the overall height of the building was consistent with the height of other buildings in the area and that the site could be developed separately as two houses. 44 I accept the overall height of the house is consistent with the adjoining houses and surrounding development. The height complies with the control in LEP 1995, although I note that the 9.5m height is measured from existing ground level. However, the number of storeys and the height measured from the excavated ground level is not consistent with the desired future character for the precinct in DCP 2003. Views of the lower ground level will be limited but from certain vantage points the building will read as four storeys. This combined with its occupation of two sites, results in a bulk and scale of development that is not envisaged by the current planning controls, despite the quality of the design. 45 The two storey height limit was not in DCP 1999, a fact that was not addressed in the hearing but on which I sought clarification from the parties through an e-court communication of 24/02/06. No evidence was presented to me on the rationale for the inclusion of this control, but I assume that the 9.5m control, the two storey height limit, the excavation controls and the FSR controls seek to discourage the provision of habitable floor space through excavation which increases the perceived height and bulk of a development. 46 I do not accept that the extra floor space above the control will not add to the bulk of the building. The excavation of part of the front of the site exposes an extra level, whether this is a base to a building or habitable rooms, it adds to the height and bulk of the building. It will be visible and is not appropriate to rely on landscaping to screen it from view. Similarly, the upper level, while set back from the sides is not setback from the front face of the building. This results in it appearing as an extra storey, although with a smaller floor plate than the floors below. 47 I do not accept that the 2004 consent is a valid reason for approval of this application. Council considered that the 2004 consent reflected the planning controls at that time. The planning report for this consent stated that the development had a FSR of 0.63:1, which would be reduced by the conditions requiring setbacks to bring it into greater conformity with the FSR control. The recalculation of this FSR at 0.77:1 is not explained in the evidence. The current proposal has an FSR of 0.87:1. While the bulk of the current proposal is substantially the same as that approved in the 2004 consent it is greater than a building that would comply with the planning controls in DCP 2003. 48 The definition of gross floor area in DCP 2003 includes "any other areas of the building where the height of those areas exceeds 1.5m above ground level". While the objectives of the FSR control are not stated in DCP 2003, it does provide an explanation for the control which states that:

To achieve the maximum permissible floor space ratio a development must satisfy all relevant controls applicable to the land. It is intended that the gross floor area for a building or buildings resulting from the floor space ratios specified in Woollahra LEP 1995 and in this RDCP be contained within the building volume created by the maximum building height in metres for buildings specified in Woollahra LEP 1995 and the controls for building footprint, building height in storeys, and front, side and rear setbacks specified in this RDCP. 49 The building volume created by the implementation of these controls does not envisage floor area below the existing ground level from which the height control is measured, particularly if this results in additional storeys. The proposal does not satisfy all these controls and the exceedance of the FSR control is not justified.

Setback and streetscape 50 The proposed development does not strictly comply with the setback control in DCP 2003. Mr Brindle considered the setback to be acceptable as it varies on different levels of the building. The closest part of the building to the street is the lower ground level entry portico and the ground floor terrace which is setback between 10.5m and 13.5m. Mr Brindle considered that the different setbacks added to the articulation of the building and assisted in breaking down its bulk. While non complying, the proposal still has a substantial setback to the street which Mr Brindle considered would ensure that the proposal does not dominate the streetscape or impact on the views from No 11B Fairfax Road. He stated that there is no consistent pattern of setbacks in the street and that the proposed setback is appropriate in this context. 51 The setback of the building in relation to its two adjoining neighbours does increase the perception of bulk from the streetscape, which is also exacerbated by its occupation of two lots. There is no consistent pattern of setbacks in the street, but the setback of four houses to the north of 11B Fairfax Road gradually increases and in this group there is a consistent pattern. The proposed setback is generally consistent with 11B Fairfax Road but does not step in a similar manner to the other houses. The setback of the proposal is not of itself a reason to refuse the application. However in combination with the other issues, it does add to the bulk of the building. 52 The impact on the outlook from 11B Fairfax Road is acceptable. The views from this property of part of the adjoining front garden will change. From the side windows of 11B Fairfax Road, built form will be visible but within a garden setting and the extensive views to the harbour from the front windows will not be affected. I do not consider it a reasonable expectation that built form on an adjoining property should not be visible from side windows. Orders 53 For the above reasons the Orders of the Court are:

2. The development application (DA 793/2004/1) to demolish an existing two storey house and swimming pool and construct a four storey house with basement garage and swimming pool at 15-17 Fairfax Road, Bellevue Hill, is refused.

      Annelise Tuor
      Commissioner of the Court

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