Wagner v Woollahra Council

Issues 3The contentions in the matter are in regard to three conditions of consent, 'C.1 Modification of details of the development', which are:

• (e) The attic level is to be deleted and replaced with a pitched roof with a maximum height of RL68.1.
• (i) The existing magnolia tree adjacent to 22 Ginahgulla Road is to be retained.
• (j) The three windows on the eastern elevation for bedroom 1 on the first floor level are to contain fixed and obscure glazing to a height of 1.7m above finished floor level.

The site and its context 4The site is located on the southern side of Victoria Road and is a battleaxe allotment with a right-of-way alongside 24 and 24B Victoria Road. The site is irregular in shape, with a site area of 2567 m2, of which approximately 250 m2 is contained within the access handle. The shared driveway is on the northern side of the site. 5The site previously contained a large dwelling house, which has been substantially demolished. The Victorian house, 'Leura', at 24 Victoria Road, is located on the adjacent site to the west. 'Leura' is a heritage item, listed on the NSW State Heritage Register. The site was originally part of the 'Leura' estate. 616 Ginahgulla Road is to the south and rear of the site. 22 Ginahgulla Road is to the east of the rear portion of the site and 20 Ginahgulla Road is to the south-east of the site. 20 and 22 Ginahgulla Road are both battleaxe allotments. 7The Magnolia tree is located directly adjacent to the eastern boundary and its canopy overhangs both the site and the rear yard of 22 Ginahgulla Road to the east.

Background and the proposal 8Development application No.DA2011/8/1 was approved by Council on 31 October 2011. The approved development includes a two storey dwelling over a basement level and a tennis court and pool. 9A section 96 of EPA Act (s96) modification application No. DA2011/8/2 was approved by Council on 26 March 2012. The approved development includes various internal and external modifications. The s96 proposal was amended by the conditions of consent. 10The applicant seeks to have three of the amendments, required by the conditions of consent, deleted.

• The approved development includes an amendment requiring the retention of a Bull Bay Magnolia (Magnolia grandiflora) (Magnolia tree), directly adjacent to the eastern boundary. The proposal is to demolish the existing mature Magnolia, to excavate the area to be approximately level with the proposed ground floor, at a finished floor level (FFL) of RL60.0 and to plant a replacement advanced Magnolia tree, closer to the dwelling and further away from the boundary.
• The approved development includes an amendment requiring the attic level to be deleted and replaced with a pitched roof with a maximum height of RL68.1. The proposal includes an asymmetrical hipped roof over the main house with ridge levels of RL69.1 and RL70.0 and a flat roof running north-south RL70.0, housing a room, 5.8 m x 7.4 m, with storage, bathroom and stair access and a small terrace on the northern side, referred to as the 'attic level'.
• The approved development includes an amendment to require the three eastern elevation first floor windows of bedroom 1 to be fixed, with obscure glazing to a height of 1.7 metres above finished floor level. The proposal is for openable windows with transparent glazing.

The planning framework 11The site is zoned Residential 2(a) pursuant to the provisions of the Woollahra Local Environment Plan 1995 (LEP 1995). The proposal is permissible with consent. 12The aims and objectives of the LEP 1995 include, at 2(f), in relation to landscape, (ii) to promote the retention of trees and the planting of suitable new trees in appropriate locations 13 The Woollahra LEP 1995 height map specifies a maximum height of 9.5 metres (m) for the site. 14The objectives of maximum building height development standards, at clause 12AA of LEP 1995, include: (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, 15Clause 12AA includes an explanatory note, as follows: Note. The maximum permissible building height is not "as of right". To achieve the maximum permissible building height, development must satisfy other relevant controls applicable to the land concerned. Clause 5(d) of LEP 1995, clarifies the role of 'Notes' within the plan as: Matter that appears under the heading "Note" is an explanatory note only and does not form part of this plan. It is provided to assist understanding. 16In relation to the height of building, clause 12 of LEP 1995 states: (1) A building shall not be erected on land within a height zone to a height greater than the maximum height shown on the height map as applicable to land within that height zone. 17The applicable development control plan for the site is the Woollahra Residential Development Control Plan 2003 (DCP 2003). 18The objectives of DCP 2003 include, at clause 1.4: (b) to retain and enhance significant trees and vegetation to conserve Woollahra's leafy character; (c) to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties; 19The desired future character objectives for the Bellevue Hill North Precinct of DCP 2003 include: 4.7.3 To reinforce the precinct's landscape setting by minimising alterations to the landform and preserving the existing tree canopy; 4.7.8 To ensure the precinct's tree canopy continues to form a green backdrop when viewed from Sydney Harbour and the surrounding districts. 20The desired future character performance criteria - Bellevue Hill North Precinct of DCP 2003, includes, at control 4.7.1: Development respects and enhances the existing elements of the local neighbourhood character that contribute to the Bellevue Hill North Precinct including:

• The tree canopy formed by both street and private yard plantings; 21The Bellevue Hill North street section of DCP 2003, includes, at control 4.7.9.3 Building Heights - Storeys: Development is to have a maximum height of two storeys. Where the landform of a site falls more than two meters from the street to the rear of a property and additional basement storey may be permitted as long as all other RDCP controls are met. 22Section 5.2 Building size and location of DCP 2003 includes, at control 5.2.3: Buildings have a minimum rear setback of 25% of the average site length (see Figure 5.2.4). 23The maximum building footprint for dwelling houses is determined by a graph at Figure 5.2.7 of DCP 2003. For a site area of 1200 m2 or more, the maximum building footprint is 30% of the site area. 24The maximum Floor Space Ratio (FSR) for the site is determined by a graph at Figure 5.2.9 of DCP 2003. For a site area of 450 m2 or more, the maximum FSR is 0.55:1. 25Section 5.3 of DCP 2003, Open Space and Landscaping, includes at objective 5.3.2: To retain important existing mature trees, vegetation and other landscape features. 26Section 5.5 of DCP 2003, Views, includes, at control 5.5.6: Building forms enable a sharing of views with surrounding residences, particularly from the main habitable rooms of surrounding residences (see Figure 5.5.2). 27The definitions of DCP 2003, at Part 6, include: Attic level Means a room or rooms contained within the roof space under the beams of the roof where the roof of the building pitches from the ceiling level of the uppermost floor. Storey Means any separate level within a building (not including levels below existing ground level provided for car parking or storage, or both, that protrude less than 1.2m above existing ground level, or an attic level). In determining the number of storeys which a building contains, the number shall be deemed to be the maximum number of storeys, floors or levels of a building which may be intersected by the same vertical line, not being a line which passes through any wall of the building.

Evidence 28The Court, in the company of the parties and their experts, conducted a view of three neighbouring properties in Ginahgulla Road and heard from a resident objector at each property. The resident at 22 Ginahgulla Road, a battleaxe allotment to the east of the site, wants the Magnolia tree retained, as it is a beautiful specimen of a tree; forms a backdrop to his rear yard and pool and provides visual privacy between the properties. 29Expert evidence was heard from arborists, Ms Sue Wylie on behalf of the applicant and Mr Andrew Simpson on behalf of the Council. 30The experts agree that the Magnolia tree is in fair health, with a crown density of 75-90% and the presence of new season extension growth. 31The experts disagree as to the extent of any impact from the recent construction of the pool at 22 Ginahgulla Road. According to Ms Wylie, the extent of detrimental effects is inconclusive and according to Mr Simpson, there is no evidence that the works on the adjacent property have had any impact on the structural stability of the Magnolia tree. 32According to Ms Wylie, the tree would be better replaced with a new and advanced specimen, as the opportunity exists prior to the construction of the new dwelling to replace it with a tree with a known history, no structural concerns and greater longevity. Once the new dwelling is constructed, it will no longer be possible to replace the tree with an advanced specimen. 33According to Mr Simpson, the tree is healthy, appears structurally stable and is likely to have a useful life expectancy in excess of 40 years. The tree has a high retention value and there is no evidence justifying the removal of the tree at this stage.

Findings 34I accept the evidence of both experts that the Magnolia tree is in fair health and that it is possible that the construction of the swimming pool at 22 Ginahgulla Road has affected the health of the Magnolia tree. I note that the experts agree that the Magnolia tree has a reasonable density and the presence of new season extension growth. 35I accept the evidence of Mr Simpson's that the tree is appears structurally stable and is likely to have a useful life expectancy in excess of 40 years and that there is no justification for the removal of the tree. 36I understand that the ideal location for a mature tree, from the point of view of the applicant, is approximately level with the proposed ground floor within a purpose built garden bed that relates in level and design to the family room. The ground level around the existing tree is RL61.74, which will require a garden bed at a significantly higher level than the proposed family room, FFL RL60.0. I find, however, that the position of the tree immediately adjacent to the boundary does not impose an unreasonable constraint on the design or layout of the new dwelling and the position of the existing retaining wall can be utilised to accommodate the level change between the tree and the new dwelling. 37The Magnolia tree has a healthy lower canopy and is of a size that would take many years to replicate. It is a significant tree, which contributes to the valued leafy character of the area. The benefit of retaining the tree outweighs the gain of providing a new tree, in a more convenient location. The tree will continue to provide visual privacy between the site and 22 Ginahgulla Road.

Evidence 38The Court, in the company of the parties and their experts, conducted a view of 16 and 20 Ginahgulla Road in relation to the impact of the proposed attic level. The perceived impacts raised can be summarised as follows:

• The resident (evidence was provided by the resident's grandson) at 16 Ginahgulla Road, to the south of the site, is concerned that the proposal will obscure part of the existing views to the north, across the treetops of Bellevue Hill, towards Point Piper and the harbour from their living area, outdoor terrace and tennis court.
• The resident at 20 Ginahgulla Road, to the south-east of the site, is concerned that the attic level will contribute to the visual bulk of the dwelling and obscure views towards the harbour. 39Expert evidence was heard from planners, Mr Andrew Darroch on behalf of the applicant and Mr David Ryan on behalf of the Council. 40The planning experts agree that the proposal does not comply with control 4.7.9.3 Building Heights - Storeys of DCP 2003, requiring a maximum building height of 2 storeys, as the proposal contains 3 storeys. 41The planning experts agree that the proposal does not comply with control 5.2.3 of DCP 2003, requiring buildings to have a minimum rear setback of 25% of the average site length, which is 15.6 m for this site and the setback is 3.4-4.8 m. 42The planning experts agree that the proposal does not comply with the FSR control for the site of 0.55:1, as the proposal has a FSR of 0.63:1. 43The planning experts agree that the proposal, including the attic level, complies with the 9.5 m height limit for the site. 44The planning experts agree that were the attic level wholly contained within the roof structure, it would not be classified as a storey and the proposal would be two storeys. 45Mr Darroch is of the opinion that the proposed modifications of the proposal reduce the overall floor space and add the reduced floor space to the attic room. The 'above ground' component of the FSR is 0.47:1 as the remaining floor space is located in a basement level. 46According to Mr Darroch, the conditioned maximum roof height of RL68.1 will necessitate reducing the roof pitch from the proposed 22.5 degrees to 12.5 degrees, which will appear as a flat roof from surrounding properties and will not be consistent with the heritage setting of 'Leura' and the heritage items located along Ginahgulla Road. 47Mr Ryan is of the opinion that the attic level should be removed as it unnecessarily adds to the height, bulk and scale of the development, which adds to the impacts of the development on adjoining properties. 48Both planning experts referred to the principles on view sharing in Tenacity Consulting v Waringah [2004] NSWLEC 140 (Tenacity) in terms of the extent of the impact of the proposed attic room on views from private properties in Ginahgulla Road. The principles on view sharing in Tenacity state: 25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step 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. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 49The planners agree that the impact of the attic level on the view from the tennis court of 16 Ginahgulla Road is less important than the impact of the attic level of the view from the rear terrace. They agree that the impact of the attic level on the view from the rear terrace is minor, using the qualitative assessment proposed by Tenacity. According to Mr Ryan, the impact on the views from the terrace of 16 Ginahgulla Road are unacceptable. 50According to Mr Darroch, the impact of the attic level on the view from the living area of 20 Ginahgulla Road is minor and according to Mr Ryan it is moderate. The planners agree that the view is across a side boundary and they agree that the impact of the attic level on the upper levels of 20 Ginahgulla Road is negligible. According to Mr Ryan, the attic level will add to the visual bulk of the proposal when viewed from the living area of 20 Ginahgulla Road. According to Mr Darroch, the approved development will impact on the views from the living area of 20 Ginahgulla Road and the difference between the impact of the approved development on the view and the proposed attic level on the view is not significant. 51The planning experts raised the Pafburn planning principle (Pafburn v North Sydney Council [2005] NSWLEC 444 at par 26) The following questions are relevant to the assessment of impacts on neighbouring properties:· How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? · How necessary and/or reasonable is the proposal causing the impact? · How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? · Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? · Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? 52According to Mr Darroch, the proposal is reasonable on the basis that it complies with the 9.5 m height limit (RL70.03). Mr Ryan considers that the attic level is not reasonable, as the proposal exceeds the DCP controls for floor space and height in storeys and the room could be located elsewhere on the site.

Findings 53I do not accept Mr Darroch's evidence that the 'above ground' FSR is O.47:1 on the basis that the accommodation contained in the basement level is below ground. The guest quarters, at RL56.5 on the basement plan are not subterranean, but at ground level, overlooking the driveway with the proposed tennis court over, as the existing ground level in the position of the proposed guest quarters is RL56.55. The basement level accommodation contributes to the FSR for the site of 0.63:1 and there is no justification for ignoring its contribution. The natural ground level of this site slopes from the southern boundary towards the northern boundary, albeit that there are retaining walls and slabs remaining from the now demolished former dwelling. 54I note that the proposed attic level, coupled with the approved development, will result in a non-compliance with the FSR control. I do not find that the additional floor space is unreasonable, if it can be accommodated without significant amenity impacts on the adjoining properties. 55The attic level, due to the definition in DCP 2003, is a third level. While the proposal does not comply with the two storey limit, I do not find that the proposed attic level fails on the basis of its definition as a third level, if it can be accommodated without significant amenity impacts on the adjoining properties. 56The approved development is located adjacent to the southern boundary, which is the highest part of the site and harbour views will be enjoyed from both levels. While the location of the approved development is a less common configuration and does not comply with the rear setback control, I understand that its location is a response to the unique nature of the site and circumstances and I accept that the location of the dwelling results in a better outcome, both in terms of the layout of the site and its relationship to 'Leura'. However, as the site is sloping and the development is located on the high side and rear of the site, the impact of the height of the development on adjoining properties is an important consideration and there cannot be an expectation to necessarily achieve the maximum permissible height limit, under those circumstances. 57I note the objective of the maximum building height development standard is to 'minimise impact of new development on existing views of Sydney Harbour...' Importantly, the maximum permissible building height is not an entitlement. 58The proposed attic level, while it is within the 9.5 m height limit, would have a detrimental impact on the views from the living area and external terrace of 16 Ginahgulla Road and from the tennis court. The proposed attic level would obscure the foreground of the view, leaving the Point Piper headland and harbour view visible over the roof, when viewed from the terrace. There would be no district views from the tennis court. 59I accept that the approved development will impact on the existing views from 20 Ginahgulla Road, however the views will be over the hipped roof with a ridge height of RL68.1. The proposed attic level roof is flat, perpendicular to the ridge line, extends across the depth of the proposal and is at RL70.0, which would have a much greater impact on the view enjoyed from 20 Ginahgulla Road. 60The approved development at 24A Victoria Road will provide harbour views from both the ground floor and the first floor towards the north. While I accept that the proposed attic level would provide another opportunity for even better harbour views, it would be at the cost of a significant impact on the harbour views enjoyed from 16 and 20 Ginahgulla Road. 61On balance and considering the principles of view sharing, I find that the impact of the proposed attic level on the harbour views from 16 and 20 Ginahgulla Road is unreasonable and that the condition of consent requiring the maximum height of the roof to be RL68.1 should be retained. 62I do not find that the resulting shallow roof pitch of the proposal will impact on the heritage significance of 'Leura'. It is not necessary to have a steeply pitched roof, in order to provide a sympathetic development on the adjoining property. The shallow roof pitch is also function of the significant depth of the approved development.

Eastern elevation first floor windows - Condition 1.C(j)

Evidence 63The planning experts agreed that the amendment to the approved development, requiring fixed windows with obscure glazing to a height of 1.7 m should be deleted, because the main living areas of 22 Ginahgulla Road will have a reasonable level of privacy.

Findings 64I agree with the planning experts that reasonable privacy will be provided to the rear yard of 22 Ginahgulla Road from the bedroom and dressing room windows, by the mature Magnolia and the setback of the eastern elevation. The windows in Bedroom 1 and the dressing room are therefore to be transparent and openable.

Orders 65The orders of the Court are:

1. The appeal is upheld in part.
2. The application to modify development consent DA2011/8/2 is approved by the deletion of condition C.1 (j) and the retention of conditions C.1 (e) and (i).
3. The exhibits are returned, except for exhibits 2, 8, A and E. Susan O'Neill Commissioner of the Court

Amendments 28 May 2012 - Catchwords added to the Judgment. Amended paragraphs: Cover page - Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2012