Tobias Partners Pty Ltd v Waverley Council

Woronora Investments Pty Limited v Waverley Council 2005 NSW LEC 679 Woronora Investments Pty Limited v Waverley Council number 2, 2007 NSW LEC 562 CASES CITED: CG Australasia v Waverley Council 2007 NSW LEC 868 Zhang v Canterbury Council (2001) 51 NSWLR 589 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 4

APPLICANT Mr N Hemmings, QC SOLICITORS Allens Arthur Robinson LEGAL REPRESENTATIVES:

RESPONDENT Mr M Staunton SOLICITORS Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10910 of 2008 Tobias Partners Pty Limited v Waverley Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by Waverley Council (the council) of a development application to demolish an existing residential flat building and construct a new residential flat building at 15 Kenneth Street, Tamarama (the site). 2 The issues between the parties have been resolved through amended plans and they are seeking consent orders from the Court. 3 Adjoining neighbours were notified of the amended plans and the consent orders. Although there was some confusion in the notification process, I am satisfied, on the advice of the parties, that it is not an impediment to the determination of the application. 4 The concerns of the residents have been largely resolved through the amended plans and conditions of consent with the exception of Mr and Mrs Hall who are purchasers of units 3 and 4 at 11 Kenneth Street. They currently have a licence to occupy the units and will settle when the strata is finalised at the end of the month. As they are not registered owners, they were not notified of the amended plans. They had reviewed the original plans as part of their purchase of the property. Their principal concern is that the amended plans project balconies forward of the original existing building, which will impact on their privacy and views. Their understanding of the original plans (upon which they relied to purchase the property) was that the development was within the envelope of the existing building on the site. 5 With the parties' agreement, Mr Green spoke on behalf of the Halls, but I did not grant leave to Mr Green to cross-examine witnesses or for the report of his expert, Mr Fleming, to be tendered. 6 The Court heard expert evidence from Mr Nash, on behalf of the council. On the site, Mr Aday, for the applicant, Mr Fleming for the Halls and Mr Juradowitch, for the owner of 17 Kenneth Street were available to answer questions. The site and its locality 7 The site is located on the southern side of Kenneth Street adjoining the coastal reserve, the coastal walk and the Pacific Ocean. It is between Bondi and Tamarama Beaches, opposite a rocky inlet known as McKenzies Bay. The site has an area of 565 sqm with a frontage to Kenneth Street and the reserve of 12.1 m and a depth of about 42.5 m. It has a fall from Kenneth Street of about 11 m. 8 The site has a four-storey residential flat building with a hipped roof set back from the rear boundary and the coastal reserve about 18 m. There is no off-street car parking. 9 The surrounding development is a mixture of one, two and three-storey dwelling houses and three to five-storey residential flat buildings. The adjoining site to the west, 11 Kenneth Street, has a new five-storey residential flat building. The adjoining development to the east, 17 Kenneth Street, is a dwelling house. Background and the proposal 10 The background to the site and 11 Kenneth Street is set out in the Statement of Environmental Effects, the Statement of Facts and Contentions and the Statement of Facts and Contentions in Reply and in the following decisions of the Court: · On 17 November 2005, in Woronora Investments Pty Limited v Waverley Council 2005 NSW LEC 679, Brown C approved consent orders for a development application for a residential flat building at 11 Kenneth Avenue. This development has recently been constructed. · On 7 August 2007, in Woronora Investments Pty Limited v Waverley Council number 2, 2007 NSW LEC 562, Brown C upheld, in part, a s 96 application for 11 Kenneth Street. The part of the s 96 application that was refused was the amendment to reduce the southern setback of the upper levels by 2.505 m. · On 21 December 2007, in CG Australasia v Waverley Council 2007 NSW LEC 868, Brown C refused a development application for a residential flat building on the site. 11 A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) for the original plans was held on site on 1 December 2008 with Brown C presiding. No agreement was reached and the conference was terminated. A report under s 34(4)(a) identified the following issues remaining in dispute:

1. The setback to the coastal walk - the council maintains a minimum setback of 6 m should be provided.
2. View loss from 17 Kenneth Street - the council maintains that view loss in a westerly direction is unacceptable because of the proposed rear building setback.
3. View loss from 11 Kenneth Street - the council maintains the view loss in an easterly direction at ground level is unacceptable because of the extension of the building to the rear. Also the loss of water views from Bedrooms 1, 2, and 3 on Level 2 of 11 Kenneth Street is unacceptable.
4. Loss of natural light/sky views from 11 Kenneth Street - the council maintains the loss of natural light to Bedrooms 1, 2 and 3 on the eastern side (Levels 1 and 2) is unacceptable. 12 Following the s 34 conference, the parties held further discussions, which resulted in the amended plans. The main changes include: · setback of the lower ground floor (Level 1) from the rear boundary increased to six metres to comply with DCP control; · the deletion of part of the Level 2 unit south of the existing rear building line and revisions to the internal layout to incorporate Levels 1 and 2 into a single dwelling unit; · reduction in car parking to 6 spaces to comply with DCP requirements; · increase in the design, shape, dimensions and area of the proposed balconies on Level 2-5 to satisfy the minimum requirements under SEPP 65 and the Residential Flat Design Code Guidelines. · Reduction in the number of proposed dwellings from 5 to 4. 13 I note that the increase in the balconies was achieved by moving the balconies forward of the building line of the existing building while also increasing the size of the living/dining/kitchen area. 14 The amended proposal now seeks approval to demolish the existing building and construct a residential flat building over five levels, comprising four dwellings and basement parking for six cars. Planning controls 15 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) and State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) are relevant. 16 The site is zoned 2(b) Residential Medium Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed use is permissible with consent within this zone. Waverley Development Control Plan 2006 - Amendment 2 (DCP 2006) applies. Part D2 provides requirements for multi-unit housing. Specific controls are provided for height, floor space ratio (FSR), setbacks, building length and depth, building separation, landscaping, solar access and other matters. 17 Clause 3.4 of DCP 2006 permits a maximum FSR of 0.6:1 for the 2(b) zone. The existing building has an FSR of 1.18:1 and the proposal has an FSR of 1.38:1. Clause 4.12 of DCP 2006 provides the opportunity for bonus FSR through the provision of affordable housing. The parties have agreed to enter into a voluntary planning agreement (VPA) to provide a monetary contribution for affordable housing. The VPA has been advertised and no submissions were received. The parties agree that the requirements of cl 4.12 are met by the VPA, the satisfaction of environmental criteria and the site specific opportunities afforded by the sloping nature of the site. 18 The proposal does not comply with the height control in cl 3.3 of DCP 2006, however, it does not exceed the overall height of the existing building when viewed from Kenneth Street and the coastal reserve. 19 The parties have agreed on a more merit-based assessment rather than an assessment under the DCP 2006 requirements, given that the existing development in the area exceeds the planning controls. This is the approach that was adopted by council in the redevelopment of 11 Kenneth Street. Issues 20 Unfortunately, the Court was not provided with a compliance table or planning assessment other than that in the Statement of Environmental Effects prepared by the applicant. Mr Nash indicated that he had considered the Statement of Environmental Effects in assessing the application and preparing the Statement of Facts and Contentions and his position paper dealing with the remaining issues after the s 34 conference. Mr Nash provided oral evidence in relation to the contentions in the Statement of Facts and Contentions and how these had been addressed by the amended plans. 21 In summary, Mr Nash stated that the key contentions in relation to over-development of the site (contention 2), rear setback (contention 4), and impact on the coastal walk (contention 8), related to the proposed two storey part of the original plans that extended to within 4.3 m of the rear boundary. The removal of the second level and the increase in the setback to 6 m addressed Mr Nash's concern in relation to these contentions. 22 Mr Nash stated that the ground level would not be perceived from the coastal walk and overall the building would have a similar height, bulk and scale to the existing building and other buildings in the vicinity when viewed from the coastal walk thereby meeting the objectives for the FSR and height control. 23 Mr Nash did not consider that the extension of the balconies of the upper level would increase the bulk of the building when viewed from the coastal walk as these would be lightweight structures. 24 Mr Nash considered that the other issues of solar access (contentions 5 and 6), internal amenity (contention 9) and landscaping (contention 10) had been addressed. In particular, the increase in the depth of the balconies to a minimum of 1.3 up to 2.5 m better met the objective of cl 5.3 of DCP 2006 and provided an area of 12 sqm with a minimum width of 2 m, which would meet the requirements of SEPP 65. 25 The only outstanding contentions related to view loss (contention 1) and public interest (contention 11) in relation to the Halls' concerns about privacy impacts and bulk. 26 Mr Nash considered the Hall's objections in his position paper. In summary, he considered that the balcony structure south of the existing building line would have a negligible impact on the expansive water views from levels 3, 4 and 5 of 11 Kenneth Street. He acknowledged that there would be potential overlooking from the balconies of levels 3 and 5 of 15 Kenneth Street to the terraces and living areas of levels 3, 4 and 5 of 11 Kenneth Street. However, he considered the impact to be acceptable due to the difference in levels between the balconies of the two buildings and that the balconies are currently overlooked by large windows on the western façade of the existing building at 15 Kenneth Street. The proposal has no windows on the western façade. 27 Mr Nash concluded that the status quo for overlooking would be largely maintained for the occupants of levels 3, 4 and 5 of 11 Kenneth Street. He did not consider privacy screens to be necessary. However, the applicant has agreed to a condition to full height privacy screens on the eastern and western sides of the balconies, which would address any privacy issues.

Findings 28 Commissioner Brown in CG Australasia stated:

By way of additional comment I find it necessary to state that following three separate hearings on two separate development applications in Kenneth Street the proper assessment of development applications is severely hampered by a lack of strategic direction in the council's planning instruments that apply to the area. It is clearly unsatisfactory to deal with each application on its merits and in the absence of properly formulated planning controls. There seems little doubt that there will be further redevelopment of the Kenneth Street area and if the relevant concerns of council over matters such as the impact on the coastal walk, appropriate rear setbacks and reliance on the existing building form as a basis for redevelopment are not properly addressed and set out in planning documents, all parties in the development process, including the Court, will continue to consider applications in an ad hoc and inconsistent manner. This is clearly unsatisfactory. 29 I concur with these comments and state that while the obligation of the Court is to deal with the contentions in dispute between the parties these are inter-related with matters such as FSR and height. It is difficult to deal with consent orders in the absence of a thorough assessment of the application given the significant non-compliance with the numerical requirements of a number of controls in DCP 2006. 30 While the parties may agree that a more merit based assessment is appropriate, unless the controls are abandoned, the obligation of the Court is to consider the application with the DCP controls as the 'focal point' (see Zhang v Canterbury Council (2001) 51 NSWLR 589 and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). A consideration which requires an assessment of whether the proposal meets the objectives of the controls, even if the numerical controls are not met and, if not, why the controls should be varied. 31 In the context of the redevelopment of an existing building which already exceeds the requirements in DCP 2006, the application should move towards compliance and should not result in a greater impact than those resulting from the existing building. 32 I generally accept Mr Nash's assessment of the application in relation to meeting the requirements of DCP 2006. However, in relation to the remaining issue of the balcony extensions past the rear line of the existing building, I do not accept Mr Nash's opinion. As I understand it, in the redevelopment of 11 Kenneth Street the upper levels extended past the existing building on that site but were limited to the rear building line of 15 Kenneth Street. Although 11 Kenneth Street is not correctly shown on the plans before the Court (as it was under construction and the outline is not based on the survey) the setback of the upper levels as built is in line with the existing building at 15 Kenneth Street. The rear setback is to the line of the balconies with the glass line of the building set back some 2.8 m further to the north. 33 In dealing with the s 96 application to allow the building line of the upper floors at 11 Kenneth Street to extend forward by 2.05 m Brown C found this to be unacceptable due to the view impacts from two units in 7 Kenneth Street and the additional bulk when viewed from the coastal walk. 34 I have reached a similar conclusion in relation to the current proposal. I do not accept Mr Nash's evidence that the balconies are lightweight structures that do not add to the bulk of the building. The balconies extend up to 2.2 m beyond the building line and have significant blade walls on one side at alternating levels with full height privacy screens on the other sides. 35 While the balconies are a sophisticated resolution that adds interest to the façade they would also add to the bulk of the building. The bulk of the existing building when viewed from the coastal walk as shown in the photographs in Exhibit C and the Statement of Environmental Effects is significant. While there is no established building line along the coastal walk the aerial photos in the Statement of Environmental Effects indicate that, with the exception of 25 Kenneth Street, the buildings to the east of the site are set back further than the upper levels of the existing building. 36 The area is one that is likely to be further redeveloped. The setback of 11 Kenneth Street and the existing building establish a building setback for the upper storeys, which in the absence of more detailed controls may have an appropriate impact on the coastal walk. There is no justification that the proposal should extend past this line other than for minor encroachments, particularly given the exceedence in the FSR beyond the control in DCP 2006 and the FSR of the existing building. There is also no justification to extend the balconies as the original plans indicate that there is adequate space within the living/dining/kitchen area with balconies that are generally behind the rear building line. If greater depth of balconies is required this should be obtained from within the internal area, not as an extension. 37 In relation to the impacts on levels 3, 4 and 5 of 11 Kenneth Street, while the privacy impacts can be dealt with by the blade walls and privacy screens these add to the bulk of the building and reduce views. I also do not accept Mr Nash's evidence in relation to the existing windows on the western side of 15 Kenneth Street. These are secondary windows to these living areas with other windows in the room facing south towards the ocean and the view. The privacy impacts from these existing windows are unlikely to equate to the privacy impacts resulting from balconies which are the principal areas of open space for the apartments and likely to be used extensively. 38 In relation to view loss, the balconies of 11 Kenneth Street currently have extensive views to the south and south-west. To the east they face the wall of the existing building which extends some 2.8 m past the glass line of its living areas and into the view corridor. However, there are ocean views beyond the wall. The proposed projection of the balconies will extend this wall and further intrude into these views. 39 For the reasons given above, the proposal can achieve an appropriate level of internal accommodation and amenity and outdoor space without extending past the existing building line and intruding further into the view. 40 I therefore accept that the consent orders sought by the parties subject to the plans being amended so that the balconies on levels 3, 4 and 5 do not extend any further than as shown on the original plans. The depth of the balconies shall be increased to ensure that a minimum dimension of 2 m is achieved for an area of 12 sqm. 41 With the agreement of the parties and upon submission of amended plans that incorporate the required changes to the balconies the following consent orders will be granted. Orders 42 The consent orders are: (1) Leave is granted to the Applicant to rely on the amended plans referred to in Condition 1 of Attachment A. (2) The appeal is upheld. (3) Development consent is granted to DA 331/2008 for the demolition of the existing residential building and construction and a multi-unit residential building at 15 Kenneth Street, Tamarama, subject to the conditions in Attachment A. (4) The exhibits, except exhibits 3, 5, A, D and F may be returned. (5) Pursuant to s 97B of the Environmental Planning and Assessment Act 1979 the Applicant pay the Respondent $5000 being the Respondent's costs incurred as a result of the application relying on amended plans referred to in these orders.

      Annelise Tuor
      Commissioner of the Court
      ajl

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