Theodor Homes Pty Limited v Woollahra Municipal Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10741 of 2004 Theodor Homes Pty Limited v Woollahra Municipal Council

JUDGMENT 1 This is an appeal against the refusal by Woollahra Municipal Council (the council) of DA No. 1070/2003 for the demolition of an existing dwelling and the erection of a residential flat building containing 2 dwellings at 23 Wilberforce Avenue, Rose Bay (the site). The appeal was conducted as an On Site Hearing.

2 The subject site is zoned Residential 2(b) under the provisions of Woollahra Local Environmental Plan 1995 (the LEP). The proposed use is permissible within this zone. The LEP contains development standards relating to lot frontage, height and floor space ratio. The proposed development satisfies the later two development standards. An objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) was lodged to show that compliance with the minimum lot frontage standard was unreasonable and unnecessary in this instance.

3 The Woollahra Residential DCP 1999 (the DCP) also applies and contains a number of relevant requirements. These relate to side setbacks (cl 5.2.3), building footprint (cl 5.2.3), deep soil landscape areas (cl 5.3.3) and overshadowing.

4 The council filed a Statement of Issues containing 6 issues. These can be grouped into the following main areas:- 1. whether the SEPP1 objection is well founded?

2. whether the proposal has an unacceptable impact on the streetscape considering the design and the breach to the footprint control, setbacks and deep soil planting areas.

3. whether the proposal creates unacceptable overshadowing impacts on adjoining properties. 5 The side setback controls are found in cl 5.2.3 of the DCP. P6 provides for a minimum side setback of 1.5 m at ground level and 3.6 at the first floor level although P8 allows for a variation to this setback for a site that is contiguous with "a public place". The proposal provides for setbacks ranging from 0.2 m to 0.75 m at the ground and first floor levels.

6 Mr Vickers an architect and planner provided evidence for the council and raised objection to the setbacks on the basis of inadequate area available for landscaping and consequent impact on the character of the area.

7 With the benefit of a view of the surrounding areas, I am not convinced that the side setbacks, as proposed have an unacceptable impact. It seems that P8 of the DCP contemplates exactly the situation that occurs on the subject site. In my view, the design responds appropriately to the side street with articulation of the façade that will create relief and interest. Areas are still available for landscaping and this is proposed through planter boxes. I do not see it being necessary that this area provide the opportunity for large trees as these can be provided elsewhere on the site.

8 Consequently, I accept that the variations to the side setbacks are appropriate based on the concessions available in P8.

9 The footprint controls are found in cl 5.2.3 and require a building footprint to occupy no more than 40% of the site. The council calculates the proposed development at 44.3% and the applicant at 41.4%. In my view, the difference is not significant in the determination of this issue. 10 Mr Vickers argues that the variation is symptomatic of the unacceptable design for the site whereas Mr Darroch the applicant's town planner argues that it is inconsequential in the overall understanding of the proposed development in its setting.

11 In this matter I agree with Mr Darroch. Even if the council's assessment is adopted, the additional footprint will not be noticeable when viewed in its context. In coming to this conclusion I am mindful of the proposed development's satisfaction, and in some areas, significant satisfaction with other design elements such as height, front and rear setbacks and also floor space ratio.

12 Requirements for deep soil landscaping are found in cl 5.3.3 and require an area of 40% of the site area. The council calculates the area at 35.3% and the applicant at 34.9%.

13 Mr Vickers and Mr Darroch reiterate the same arguments for the building footprint to show why the variation to the deep soil landscaping should not be supported or supported.

14 On this matter, I accept the conclusions of Mr Darroch. I do not accept that an adequate level of deep soil planning could not be provided in the area shown on the proposed development. It is not reasonable to suggest that a difference of some 5 sq m of site area would be the difference between an acceptable and unacceptable level of landscaping.

15 Overshadowing is addressed in cl 5.2.3 where sunlight is to be provided to at least 50% (or 35 sq m with minimum dimension 2.5 m, which ever is the smaller) of the main ground level private open space of adjacent properties for a minimum of 2 hours between 9.00 am and 3.00 pm on June 21. 16 The impact of any overshadowing falls on the adjoining property at 25 Wilberforce Street. Mrs Staff, the owner of the property provided evidence to the Court and expressed the view that the overshadowing would impact on her rear patio and well as restrict sunlight access to 2 windows in the elevation adjoining the subject site.

17 In terms of the DCP requirements, there was no dispute that the proposed development satisfied the requirements in cl 5.2.3 (P16). The Court was also advised that the proposal also satisfied the more stringent but not applicable standard in cl 5.6.3 (P8) regarding sunlight to windows of adjoining properties.

18 While Mr Vickers urged the Court that greater solar access could be achieved with the redesign of the proposal, I am not convinced that this is an appropriate course of action. The role of the Court is to consider whether the design before the Court is appropriate and not whether another design would be acceptable.

19 As the proposal satisfies the solar access requirements in the DCP, I agree that it is acceptable. I am also mindful that the proposal satisfies the side setback requirements adjoining Mr Staff's property as well as being below the maximum height permissible for this form of development.

20 In relation to the lot frontage, cl 10B(1) of the LEP requires a minimum lot frontage of 15 m or more. The subject site has a frontage of 13.715 m. In terms of the breach of the minimum lot frontage development standard, an SEPP1 objection was lodged with the Statement of Environmental Effects. A further SEPP1 objection was tendered at the hearing from Mr Darroch.

21 The SEPP1 objection from Mr Darroch addresses the objectives of the development standard found in cl 10A although the council raised issue with only objectives (a) and (b). The SEPP1 objection concludes that strict compliance is unreasonable and unnecessary as the proposed development will not hinder the attainment of the relevant objectives of the Environmental Planning and Assessment Act 1979 (EPA Act) nor will it undermine the objectives of the standard contained within the LEP. The Court also had the benefit of a report from the council's officers who also considered the SEPP1 objection and concurred with the conclusions of Mr Darroch. 22 The appropriate manner of dealing with a SEPP1 objection is found in the decision of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26 where a number of different questions are proposed. These questions are adequately addressed in the SEPP1 objection from Mr Darroch. Objective (a) deals with the compatibility between scale, density, bulk and landscape character of building and allotment size and objective (b) deals with the need to provide sufficient space between buildings to maximise daylight and ensure adequate space for deep soil landscaping.

23 For the reasons mentioned previously in the judgment on these issues, I accept that the proposed development satisfactorily addresses these specific objectives. For this reason strict compliance with the development standard in cl 10A is not necessary or reasonable. Consequently, I find the SEPP1 objection is well founded.

24 It follows that the appeal should be upheld. Further discussion between the parties is to take place on disputed conditions and if necessary, leave is granted to restore the matter if there is still dispute over any conditions after further discussion.

25 The Orders of the Court are: 1.The appeal is upheld.

2. Development Application 1070/2003 for the demolition of an existing dwelling and the erection of a residential flat building containing two dwellings at 23 Wilberforce Avenue, Rose Bay is approved subject to the conditions in Annexure 'A".

3. The Exhibits are returned with the exception of Exhibits 5 and A.

G T Brown Commissioner of the Court ljr

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