Wehbe v Hunters Hill Council

Issues

1. The Council's contentions can be summarised as:

• The proposal fails to respond to the prominent character of development in the vicinity of the site. The proposal comprises an eclectic mixture of architectural treatments, elements and materiality and contains design features out of character with the area including twin basement driveway ramps. It is overly ambitious with 5 bedrooms, 4 bathrooms and swimming pools for both dwellings. The design in not in keeping with the streetscape and the area's desired future character.
• The proposed building envelope is excessive and compromises the amenity of adjoining properties. The buildings are excessive in scale and the voids on the first floor unnecessarily contribute to the bulk of the building envelope. The first floor is unnecessarily elongated and directly contributes to the unnecessary and excessive overshadowing of adjoining backyards. The separation between the two dwellings is insufficient and contrary to the character of the locality.
• The proposal fails to conserve the heritage significance of the Hunters Hill HCA and the heritage significance of local heritage items within the vicinity of the site.
• The proposed building footprint, driveways and basement will have adverse impacts on existing trees on the site and adjoining properties. Tree 13 is within the public domain and excavation works associated with the driveway proposal is likely to impact on the structural root zone and there is inadequate assessment in regard to the impact on the tree arising from these works.
• The proposed basement is excessive in area and of a design that impacts unacceptably on the streetscape.
• The proposal will have unacceptable impacts on surrounding properties.

The site and its context

1. The site is located on the western side of Passy Avenue, Hunters Hill. The site was formerly part of the property of the dwelling now known as "Tranby" at 6 Passy Avenue and part of the tennis court of Tranby was once located on the site.
2. The site has an area of 942.2m2.
3. The site shares its south-western side boundary with the rear boundaries of 6, 8 and 10 Woolwich Road.

Background and the proposal

1. The proposal is to demolish the existing dwelling and the former tennis pavilion which was relocated from its original position to the rear of the site.
2. The proposal is for a dual occupancy development, including two detached dwellings over three storeys each with a swimming pool, with the following accommodation:

• Basement storey occupying the entire footprint of both dwellings and the narrow separation between the dwellings. The basement level includes a single driveway access on the northern side of the site, to a shared undercroft area, with access to separate double garages beneath each dwelling and storage and plant areas.
• The ground floor of each dwelling includes an entry foyer, stair and lift, study/guest bedroom, bathroom, kitchen, dining, living and laundry.
• The first floor of Unit 1 includes four bedrooms and three bathrooms with a large void overlooking the kitchen and dining area on the ground floor. The first floor of Unit 2 includes the same accommodation as Unit 1 in a U shape around a single storey portion.
• The proposal includes a swimming pool for each dwelling at the rear of the site.
• The dwellings are separated by a 900mm gap over the basement for a length of nearly 18m with a gap of 2m for the initial 3.5m depth at the front.

1. Unit 1 is located on the southern side of the site adjacent to the shared boundary with 6, 8 and 10 Woolwich Road and Unit 2 is located on the northern side of the site.

Planning framework

1. The site is zoned R2 Low Density Residential pursuant to the Hunters Hill Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The relevant aims of LEP 2012 are: (a) to maintain and enhance the character and identity of established neighbourhoods in Hunters Hill by regulating the use and development of land, ... (c) to conserve Aboriginal heritage and European heritage that influence the character and identity of the municipality, (d) to accommodate a range of housing that will maintain the garden suburb character of the municipality, while responding to the needs of a growing population and changing demographics, ... (i) to promote high standards of urban and architectural design quality.
2. The relevant objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. ... • To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities. • To provide for high levels of amenity that are consistent with a low density residential environment.
3. The height of buildings development standard for the site is 8.5m. The parties agreed that the proposal complies with the height of buildings development standard.
4. Clause 4.4(2B) of LEP 2012 relevantly includes the following in relation to the floor space ratio (FSR) development standard: (2B) Despite subclause (2), the maximum floor space ratio for a building being used for one of the following purposes is: (a) a dual occupancy - 0.5:1, ...
5. The site is within the Hunters Hill Heritage Conservation Area (Hunters Hill HCA) and within the vicinity of numerous heritage items listed in Sch 5 of LEP 2012, including 2, 4, 6, 8 and 10 Woolwich Road (where 6, 8 and 10 adjoin the southern boundary of the site) as well as 1 Passy Avenue opposite the site and 6 Passy Avenue to the north of the site. Clause 5.10 of LEP 2012 relevantly includes the following in relation to Heritage conservation: (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Hunters Hill, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, ... (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
6. Clause 6.2 of LEP 2012 relevantly includes the following in relation to earthworks: 6.2 Earthworks ... (3) Before granting development consent for earthworks and associated groundwater dewatering (or for development involving ancillary earthworks), the consent authority must consider the following matters: ... (d) the effect of the development on the existing and likely amenity of adjoining properties, ... (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
7. The Hunters Hill Consolidated Development Control Plan 2013 (DCP 2013) is a relevant consideration in the assessment of the proposal. DCP 2013 applies to all types of development at section 2.2.1 and requires a site analysis plan to be provided.
8. The aims and objectives of DCP 2013 at section 2.2.2 are relevantly to conserve and enhance the character and environmental identity of the Hunters Hills Municipality, including the landscaped setting of buildings, and to ensure that development does not detract from the existing character of landscaped settings.
9. The existing character of Hunters Hill is articulated in detail in section 2.2.3 of DCP 2013. Generally, development should maintain and enhance the character of existing streetscapes which contribute to the identity and history of the Municipality.
10. Development of a property located in the Hunters Hill HCA should address the following requirements at section 2.4.5: "(b) Proposed works should neither destroy nor detract from qualities which are influenced by elements of the area's existing character which include: (i) Streetscape character and amenity. (ii) Topography and established gardens. (iii) Buildings with pitched roofs. (iv) Facades which incorporate a high proportion of wall-to-window area. (v) Windows and doors that have vertical proportions. (vi) Building colour schemes which do not clash with established garden settings."
11. Chapter 3.4 Multi-unit residential of DCP 2013 applies to dual occupancy development at section 3.4.1.
12. The objectives for height at section 3.4.2 include: to avoid adverse impacts upon the existing residential area; to ensure that the development is compatible with the height, scale and built of the locality's existing and desired characters and to minimise adverse visual impacts and loss of privacy or sunlight to existing residential development.
13. The objectives for setbacks at section 3.4.3 include to maintain adequate garden space between buildings for compatibility with the Municipality's existing character and to minimise adverse visual impacts for adjacent properties. Front boundary setbacks should be consistent or compatible with existing character of the surrounding streetscape. Side boundary setbacks for dual occupancies should not be less than 1.5m or one third of the height of the exterior walls which face the boundary, whichever is the greater and should provide a staggered alignment for walls in order to avoid a "gunbarrel appearance".
14. The objectives for landscaped areas at section 3.4.4 include ensuring that development is compatible with the Municipality's character which is defined by buildings set in gardens. The minimum landscaped area is 45% of the site area, which excludes an area with a dimension of less than 2m.
15. Section 3.5.2 Solar access of DCP 2013 includes an objective to preserve solar access for existing properties and development should not overshadow more than one third of an existing private open space which currently has sunshine between 9am and 3pm on the winter solstice.
16. Section 3.5.3 Visual privacy of DCP 2013 includes an objective to limit overlooking into neighbouring dwellings and private open space.
17. Section 3.6 Garages and carports of DCP 2013 states that large garages have a detrimental impact on townscape where they compete with traditional streetscape elements such as leafy gardens and stone walls which contribute to the special character of the Municipality.

Public submissions

1. Four resident objectors and a town planner engaged by a group of resident objectors gave evidence at the commencement of the hearing onsite. The concerns of the resident objectors can be summarised as:

• The proposal will impact on the heritage significance of the heritage conservation area and the landscaped setting of the local heritage items at 6, 8 and 10 Woolwich Road;
• The future residents of the southern Unit 1 will be able to overlook the private open space at the rear of the dwelling at 10 Woolwich Road from their balcony on the first floor street elevation;
• The proposal presents as a wall over 6m high adjacent to the northern boundary of 6, 8 and 10 Woolwich Road and will impact on the amenity of these dwellings by overshadowing and overlooking the private open space of 6 Woolwich Road from the first floor bedroom windows in the rear elevation. The private open space at the rear of 6, 8 and 10 Woolwich Road is small relative to the generous front setback of these local heritage items;
• The proposal will add two swimming pools adjacent to the rear shared boundary of 13 Ferry Street which will be noisy.

Expert evidence

1. The applicant relied on the expert evidence of Mr Jeff Mead (planning), Dr Anne Warr (heritage) and Mr Stuart Pittendrigh (arboriculture and landscape).
2. The Council relied on the expert evidence of Mr Adam Byrnes (planning), Mr Greg Patch (heritage) and Mr Guy Paroissien (arboriculture and landscape).

Impact on the Hunters Hill HCA

1. I accept the agreed evidence of the heritage experts that the demolition of the existing dwelling is acceptable.
2. I accept the agreed evidence of the heritage experts that the former tennis pavilion of Tranby at 6 Passy Avenue, which has been relocated to the rear of the site, can be demolished, subject to a condition that the heritage significance of the structure be investigated and a report provided to Council including a detailed photographic record (Ex 9).
3. I accept and prefer Dr Warr's evidence that the proposed front setback, which generally conforms to the building line established by the rear garage of 10 Woolwich Road and the front setback of the apartment building to the north, is acceptable, because the dwellings in Passy Avenue have a variety of forms and front setbacks and so there is not a consistent pattern that contributes to the specific heritage character in the street.
4. I accept Dr Warr's evidence that the proposed finishes and colours as amended by the architectural plans tendered as Exhibit E are acceptable in the context of the Hunters Hill HCA, as they are appropriately contemporary and give variety, texture, scale and definition to the building elevations.
5. The amended driveway follows the southern extent of the existing driveway, but descends approximately 2m into an undercroft area over a distance of approximately 8m. This feature is, in my view, although not determinative, intrusive to the character of the Hunters Hill HCA. The deletion of the undercroft and the addition of a garage door at the entry to the basement, with access to an internal shared basement area with secure garages, would be more consistent with the better designed contemporary basement garages in the vicinity of the site than the amended proposal.

Landscaped setting

1. The planning experts agreed that the proposal complies with the minimum landscaped area numerical control for dual occupancies of 45% at Section 3.4.4(a) of DCP 2013.
2. The proposal includes a basement level that occupies the footprint of both dwellings, including the gap between the two dwellings. The front section of the basement is proposed to be used as a shared undercroft to manoeuvre vehicles, with a double garage accessed beneath the footprint of each dwelling from the undercroft area. There is a substantial area behind the garage of each dwelling, approximately 12-13m deep, which is unidentified on the plans (Ex J DA05), but which the applicant submits will be used as "storage and plant".
3. The large basement was added to the proposal between the application relied on at the commencement of the hearing (Ex A) and the amended application (Ex E). The increase in the basement level encroaches into the tree protection zone of the existing Jacaranda tree adjacent to the southern boundary and at the rear of Unit 1. The arboricultural experts did not address the impact of this amendment on the viability of the Jacaranda tree in their oral evidence, because the tender of Exhibit E was after they gave their concurrent evidence. Mr Paroissien was of the view that the Jacaranda should be retained and Mr Pittendrigh agreed. The Jacaranda is easily visible from surrounding properties, including the backyards of the properties to the south of the site. I accept and agree with Mr Paroissien's evidence that the Jacaranda is an important and prominent landscape feature on the site and it should be retained. I am not certain that the retention of the Jacaranda is viable given the significant encroachment of the excavation required to construct the basement of Unit 1 into the tree protection zone of the Jacaranda. For this reason, I am not satisfied that the proposed earthworks required to construct the substantial basement level incorporate appropriate measures to avoid, minimise or mitigate the impacts of the development, pursuant to cl 6.2(3)(h) of LEP 2012.
4. The arboricultural experts disagreed on whether Trees 3 and 4 should be retained. Trees 3 and 4 are positioned adjacent to the northern boundary, behind Tree 2, which is retained by the proposal. According to Mr Paroissien, Tree 3, a Gordonia tree, and Tree 4, a Fiddlewood tree, should be retained as they are visually prominent and significantly contribute to the landscaped setting of the streetscape. In Mr Paroissien's view, the loss of Trees 3 and 4 will negatively impact on the existing landscape character of the site and view of the site from the property to the north of the site. The experts agreed that the proposal does not provide for the retention of trees due to the extent and proximity of excavation for the basement and the proposed building footprint. Mr Paroissien noted that a greater side setback to the northern boundary would have permitted the retention of Trees 3, 4 and 5, which would have preserved the existing landscaped character established by these trees. According to Mr Paroissien, a 4.7m side setback from the northern boundary at the trunk of Tree 4, equivalent to the position of the northern façade of the existing building, would be an acceptable minimum side setback to permit the retention of Tree 4.
5. In Mr Paroissien's opinion, the retention of Tree 2, forward of Trees 3 and 4, is insufficient to retain the existing landscape character established by the group of trees in the north-eastern portion of the site.
6. I accept Mr Paroissien's evidence regarding the desirability of retaining Trees 3 and 4. The proposal is oriented parallel to the southern boundary and the northern boundary splays so that the width of the site is increased at the front of the site. The footprint of Unit 2, on the northern side of the site, steps, so that the unit is wider at the front, to take advantage of the splayed northern boundary and to maintain a consistent, albeit stepped, side setback. If Unit 2 had a similar footprint to Unit 1 and their alignment to the southern boundary was maintained, the splay of the northern boundary would provide an increasing side setback towards the front of the northern side passage, in the location of Trees 3 and 4, allowing sufficient room for these trees to be retained.
7. I accept the agreement of the arboricultural experts that the Camellias in the front setback can be successfully replanted.
8. The detached dwellings are separated by 900mm for a length of approximately 18m. The front portion of the gap between the dwellings is 2m for a depth of 3.5m. The ground surface of the entire gap between the dwellings is the concrete slab that forms the roof of the basement level, which prevents any landscaping between the dwellings. I am not satisfied that this feature successfully achieves a garden setting commensurate with the established character of the municipality.

Overshadowing of 8 Woolwich Road

1. The planning experts agreed that the proposal does not comply with control (b)(iii) of section 3.5.2 of DCP 2013 to ensure that development will not overshadow more than one third of an existing private open space which currently has sunshine between 9am and 3pm on the winter solstice, because the proposal overshadows the private open space at the rear of 8 Woolwich Road on the winter solstice as follows (Ex F):
2. I note that the site survey (Ex L) excludes the allotment boundaries and building footprints and ground levels of 6, 8 and 10 Woolwich Road. This information should be included on the site survey and used as the basis for the shadow diagrams to demonstrate the accuracy of the calculations. It is therefore uncertain whether the outlines of the features of the dwellings at 6, 8 and 10 Woolwich Road on the shadow diagrams (Ex F), other than the garage abutting the shared boundary at 10 Woolwich Road, are accurate. I raised my concern regarding this issue during the hearing.
3. A substantial proportion of the backyard of 8 Woolwich Road is overshadowed during the winter solstice for a substantial period during the day, particularly during the morning and the middle of the day until 2pm. The overshadowing of the backyard of 8 Woolwich Road is significantly increased when compared to the existing shadow cast by the existing buildings on the site.
4. The applicant submits that the existing hedge along the rear boundary of 8 Woolwich Road overshadows a significant proportion of the backyard of 8 Woolwich Road throughout the day on the winter solstice (Ex 4, attachment DA15). I accept Mr Byrnes' view in relation to this submission that filtered sunlight through a hedge cannot be compared to the obstruction of sunlight caused by a neighbouring dwelling. Furthermore there are no ground levels shown on the site survey for 8 Woolwich Road and the hedge is noted as being "Shrub screen approximately 3m high" for the majority of the southern side of the southern boundary of the site, which is insufficiently detailed information to demonstrate the accuracy of the shadows cast by the hedge shown on DA15.
5. In Mr Mead's opinion, the overshadowing of the backyard of 8 Woolwich Road is acceptable for the following reasons:

• The backyard of 8 Woolwich Road is most affected by overshadowing during the morning of the winter solstice;
• At 9am the shadow falls on the roof of 8 Woolwich Road, so an increase in the side setback of Unit 1 would not benefit the backyard of 8 Woolwich Road at this time, it would merely result in an increase in sunlight falling of the roof of the existing dwelling at 8 Woolwich Road;
• The most useful portion of the backyard of 8 Woolwich Road is the paved area directly at the rear of the dwelling and this area is in sunlight from 11am onwards on the winter solstice;
• The proposal is compliant with the height of buildings development standard of 8.5m in LEP 2012 and the wall height control of 7.2m (Table 3.1, section 3.4.2 of DCP 2013);
• The site is to the north of 8 Woolwich Road and shares a side boundary with the rear boundary of 8 Woolwich Road and so it can be reasonably expected that a development on the site will overshadow the backyard of 8 Woolwich Road on the winter solstice.

1. The detrimental impact on the amenity of 8 Woolwich Road by the proposal is in my view determinative of the refusal of the application, because it is the location and bulk of the building envelope on the site that results the overshadowing of the backyard of 8 Woolwich Road, notwithstanding compliance with the height of buildings development standard and the wall height control.
2. The overshadowing of the backyards to the south of the site is caused and exacerbated by the volume of the building envelope of the upper level of Unit 1, which is a consequence of the dwellings being detached; of the significant accommodation within each dwelling (5 bedrooms, 4 bathrooms and kitchen, dining and living areas); and the upper level void within Unit 1 and the external void on the upper level southern side of Unit 2. The upper level void of Unit 1 does not contribute to the gross floor area (GFA) and consequently is not measured by the floor space ratio (FSR), but it nevertheless contributes to the significant volume of the building envelope. Similarly, the external void on the upper level southern side of Unit 2 contributes to the overall building envelope of the development without providing any obvious advantage to the design. The extension of the upper level of Unit 1 towards the rear of the site, overhanging the covered deck on the ground level below, significantly contributes to the amenity impacts on the properties to the south of the site, both in terms of its presentation as a wall extending past the rear boundaries of the Woolwich Road adjoining properties and by significantly overshadowing the backyards of the Woolwich Road adjoining properties, particularly 8 Woolwich Road. An increase in the rear setback of the upper level of Unit 1 would significantly improve the amenity impacts on the properties to the south of the site.
3. I accept that Mr Mead's opinion is correct that an increase to the side setback near the upper level internal void of Unit 1 will not make a significant difference to the extent of overshadowing of the backyard of 8 Woolwich Road. The building envelope of Unit 1 at the upper level has to be carefully redesigned to minimise overshadowing of the properties to the south.
4. The proposal fails to meet the relevant objective for solar access in section 3.5.2 of DCP 2013 to preserve solar access for existing properties.

Conclusion

1. For a dual occupancy proposal to achieve the character objectives in section 2.2 of DCP 2013, the two detached dwellings have to be, together, proportionate to the site's dimensions and responsive to the existing character of the Hunters Hill Municipality. It is not possible to impose two large detached dwellings, each equivalent to the proportions and accommodation of a single dwelling, on the site, and preserve the existing character of the locality. This does not mean that two dwellings cannot read as two separate dwellings on the site.
2. The significant volume of the building envelope is exacerbated by the internal void in Unit 1 and the external void on the upper level of Unit 2, as well as the cantilevering of the upper level at the rear of Unit 1.
3. This site is constrained by its relationship to its southern neighbours at 6, 8 and 10 Woolwich Road and the existing mature trees on the site which contribute to the landscaped setting of the Hunters Hill HCA and the nearby heritage items. The proposal has failed to respond appropriately to these identified constraints.
4. The substantial excavation of a basement level that occupies the footprint of both dwellings as well as the gap between the dwellings is unjustified and poses a significant risk to the successful retention of the Jacaranda tree. The gap between the dwellings is unable to be planted because the ground level is the surface of the slab that forms the ceiling of the basement.
5. The proposal fails to maintain and enhance the character and identify of the established "Passy Estate" neighbourhood. The loss of significant existing trees on the site fails to maintain the garden suburb character of the municipality.

Orders

1. The orders of the Court are: 1. The applicant is granted leave to amend the application for development consent by relying on the architectural plans revision D tendered as Exhibit E, as amended by those architectural plans revision E tendered as Exhibit J. 2. The appeal is dismissed. 3. Development Application No. 2018-1059 for a dual occupancy development including two detached dwellings with basement garages and swimming pools and strata subdivision at 2 Passy Avenue, Hunters Hill, is refused. 4. The exhibits, other than Exhibits 6 and B, are returned.

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Susan O'Neill Commissioner of the Court

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