Turner Architects v Waverley Council

APPLICANT Mr M McMahon, solicitor M McMahon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S Paterson, solicitor SOLICITORS Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10449 of 2007 Turner & Associates Architects Pty Limited v Waverley Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application No. 132/07 by Waverley Council (the council) for the demolition of an existing dwelling and the construction of a new dwelling at 75 Gardyne Street, Bronte (the site).

2 The proceedings were originally set down as a Preliminary Conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) to be heard on site on 28 June 2007. No agreement was reached on that day between the parties as to the terms of a decision that would be acceptable to both parties in accordance with s 34(3)(a) of the LEC Act. The parties however consented to the disposal of proceedings with a further hearing in accordance with s 34(3)(b)(ii) of the LEC Act to be heard on 26 September 2007. The judgement provides the reasons for the decision given on site and relevant details contained within the Statement of Facts and Contentions. The site and immediate area 3 The site is Lots 22 and 23 Sec 2 in DP 2806. It is rectangular in shape with a 13.715 m frontage to Gardyne Street and a 36.375 m frontage to MacPherson Street and a site area of 498.9 sq m. The site slopes from the east to west with views to Bronte Beach. An older style single storey brick and tile dwelling and other improvements are located on the site.

4 A residential flat building of 3 storeys in height is located to the west (144A McPherson Street) and a 4 storey residential flat building is located to the north of the site (73 Gardyne Street). Further residential flat buildings are located in the immediate area in addition to single dwellings. The proposal 5 The proposal provides for the demolition of the existing single storey dwelling and other existing improvements and the construction of a two-storey detached dwellings with the roof access and swimming pool in the rear yard. Relevant planning controls 6 The site is within the Residential 2(a) -Low Density zone under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed use is permissible with consent within this zone. Clause 10(2) provides that consent must not be granted unless the development meets one or more of the zone objectives. The relevant objective is: (b) to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses; and 7 Waverley Development Control Plan 2006 (DCP 2006) also applies. Part D applies to residential development. Clause 4.0 provides details of the Bronte Residential Character Study. Clause 5.1 provides requirements for building height, cl 5.2 provides requirements for size and bulk, including requirements for floor of space ratio (FSR), cl 5.3 provides requirements for setbacks and cl 5.6 provides requirements for privacy and noise control. The issues 8 The issues raised by the council are: 1) the setback to Gardyne Street is inadequate, 2) the location of the proposed building creates unacceptable view loss to nearby residential development, 3) the ability to access the roof area from within the proposed dwelling will potentially create unacceptable amenity impacts in terms of loss of privacy and noise to adjoining and nearby properties, and 4) the proposed building has unacceptable size, bulk and scale because of the breach of the setback, height and FSR requirements. The evidence 9 Mr Lee Kosnetter provided town planning evidence for the council and Mr Brett Brown provided town planning evidence for the applicant. The following local residents further evidence on site: o Mr Jon Cheadie of 5/73 Gardyne Street, o Ms Brigita Walker of 36 St Thomas Street, o Ms Erica Rink from the Bronte Beach Precinct Committee, o Mr Chris Vavayis and Mr Savas Vavayis of 1 Pembroke Street, and o Ms Margaret O'Connor of 73 Gardyne Street. 10 Additional issues not raised by the council but by local residents were: o loss of a heritage building, o loss of sunlight to 73 Gardyne Street, o noise from the proposed pool, and o loss of property values. Setback to Gardyne Street 11 Clause 5.3 of DCP 2006 does not provide any numerical requirements for setbacks. Instead, cl 5.3.1c provides that the "front building line of any dwelling house proposal shall be built to the predominant front building line of buildings in its vicinity". Mr Kosnetter and Mr Brown differed on what was the predominant front building line.

12 Mr Kosnetter adopted an upper zone and lower zone for the five properties on the western side of Gardyne Street. The site and the residential flat building at 73 Gardyne Street were the upper zone and the lower zone consisted of the buildings at 67, 69 and 71 Gardyne Street. Mr Kosnetter maintained that the building line for the site should be consistent with the 9 m setback of the adjoining residential flat building at 73 Gardyne Street. The setbacks in the lower zone are around 3 m. These setbacks need to be compared to the proposed setback of 4.8 m. 13 Mr Brown states that the proposed setback is greater than the predominant front building line. The predominant building line is created by the three properties at 67, 69 and 71 Gardyne Street and not the single setback of 73 Gardyne Street. The proposal represents a median position between the prominent setback and the setback of 73 Gardyne Street and as such provides an appropriate degree of consistency in the existing streetscape.

14 With the benefit of the site view, I agree with the conclusions of Mr Brown. Clause 5.3.1c requires that the setback for a new dwelling to be the predominant front building line of buildings in its vicinity. The clause does not envisage multiple building lines. While Mr Kosnetter and Mr Brown concentrated their assessment on the development along the western side of Gardyne Street, I see no valid reason why the assessment of the predominant building line should not include the development on the opposite side of Gardyne Street. In this location, Gardyne Street forms a small cul-de-sac of approximately 10 dwellings. These 10 dwellings are all within the visual catchment of the street when viewed from the intersection Gardyne Street and MacPherson Street. The buildings are clearly in the vicinity of the site. The setback of the dwellings on the eastern side of Gardyne Street are generally consistent with the setback of the three properties at 67, 69 and 71 Gardyne Street and when included in any assessment of a predominant front building line further support the conclusions of Mr Brown.

View loss 15 View loss was a significant issue from 36 St Thomas Street and 1 Pembroke Street. Each site was inspected on the site view and with the benefit of a series of photomontages prepared by the applicant; the impacts on views created by the proposed development could be determined. The photomontages provided an outline of the building with the setback proposed by the applicant and a separate outline of the building with the setback proposed by the council. The photomontages were prepared using height polls certified by a surveyor.

16 Clause 2.3 states, in relation to views and vistas, that the Desired Future Character Objectives is: To minimise the impact of new development on views and vistas from the public and private domains 17 The planning principles in Tenacity Consulting v Waringah [2004] NSWLEC 140 are also relevant.

18 The view from the rear patio of 36 St Thomas Street is largely retained with the exception of a sliver of water towards the beach but not including the water/beach interface. There is little difference in the view loss between the proposed building line and that advocated by Mr Kosnetter, i.e., the same alignment as 73 Gardyne Street. Based on the third test in Tenacity Consulting the view loss would be described as negligible. 19 The view loss from 1 Pembroke Street is more significant. The most westerly windows in the northern elevation suffer a greater view loss than the most easterly windows. The most westerly window is from the kitchen/dining area of a separate flat where the view two an area of water below the headland at Mackenzies Point is lost. The view to the majority of the headland is retained, as are the ocean views in a more easterly direction. Based on the third test in Tenacity Consulting the view loss from this location would be described as moderate. The most easterly window maintains most views and the view loss from this location would be described as negligible.

20 The fourth test in Tenacity Consulting is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. In this case, the area of the proposed building that impact on views satisfies the council's height requirement of 7.5 m and the setback to Gardyne Street (see previous comments on setback). Even if Mr Kosnetter's building line was adopted, the difference between this setback and the proposed setback is not significant and would not alter my conclusions. In terms of reasonableness, any redevelopment of the site (within the council's requirements) is likely to have a similar effect on views from 1 Pembroke Street. 21 Even though the proposed development exceeds the FSR (0.62:1 v 0.55:1) the additional floor area does not impact on view loss, this being directly related to the setback and height at the front of the site. I am satisfied that the additional floor area does not raise any issues associated with bulk, scale or streetscape that would warrant the building to be reduced in size. The roof area 22 The development application originally proposed a rooftop terrace with internal access however this was amended to provide for a rooftop garden only. The internal access was to be retained. The local residents opposed the use of the rooftop area as it was seen as a potential source of overlooking and noise generation and a subsequent impact on the amenity of nearby properties.

23 I agree with the concerns of the local residents, particularly considering the proximity to the residential flat building at 73 Gardyne Street. The deletion of the internal access will also allow for the removal of the hooded structure over the stair, further reducing the overall height and ensuring full compliance with the 7.5 m height limit. The removal of any internal access will also remove any potential source of overlooking from the roof area. Other issues 24 The existing dwelling was included in a draft heritage register compiled by the council although the council did not oppose the demolition of the building. A number of residents supported the retention however in the absence of any expert evidence to say that the dwelling should be retained I accept the position of the council that there is no heritage reason why the building cannot be demolished.

25 The loss of sunlight to 73 Gardyne Street is not a matter that would warrant the refusal of the application taking into consideration the compliance with the council's height requirement and its location on the northern side of the site.

26 Noise from the proposed pool is also not a matter that would warrant the refusal of the application as the pool is a complimentary use to a residential dwelling and while some noise may be associated with its use it is unlikely to consistent and disturbing in a residential context. 27 The loss of property values to surrounding dwellings is not a concern that can be substantiated considering the residential nature of the development and it's satisfaction with the objectives and significant compliance with the numerical requirements of the councils planning controls.

28 I am also satisfied that the overall design is an appropriate response to it's context having noted on the site view a large number of residential redevelopments that have a similar architectural theme and that the proposal meets objective (b) in accordance with cl 10(2) of LEP 1996.

Orders The Orders of the Court are: 1) The appeal is upheld. 2) Development Application No. 132/07 for the demolition of an existing dwelling and the construction of a new dwelling at 75 Gardyne Street, Bronte is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of Exhibits 2, 4 and C.

      G T Brown
      Commissioner of the Court

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