Wells v Woollahra Municipal Council

The site and its context

1. The site, legally described as Lot 93 in DP 10127, is currently occupied by an existing dwelling.
2. The lot has a frontage to Kings Road of 18.95m, a rear boundary that measures 10.16m, and a total site area of 613.3m2, according to the survey (Exhibit B, Tab 11).
3. The site is a part of a discrete suburban block formed by Kings Road and Princes Avenue, bounding 19 properties that essentially radiate from a common alignment of rear yards, arranged to benefit from the ridgeline prospect that affords elevated views to the Pacific Ocean to the east, Manly to the north, and Sydney Harbour and the CBD beyond to the west.
4. The properties so bounded are all within an R2 Low Density Residential zone, identified by Woollahra Local Environmental Plan 2014 (WLEP), in which dwelling house development is permitted with consent where consistent with the objective for development in the R2 zone.
5. Those objectives are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
6. The site is also within the Vaucluse East residential precinct in accordance with the Woollahra Development Control Plan 2015 (WDCP).
7. The Precinct character statement for the precinct is set out at Section B1.11.1 of the WDCP in the following terms: "The Vaucluse East Precinct comprises an elevated plateau which provides an extensive backdrop and significant scenic presentation to Sydney Harbour along its eastern foreshore. A spectacular feature of the precinct is the public foreshore land on the eastern side of Old South Head Road which contains the Macquarie Lighthouse, a prominent harbour landmark and parkland. The highest parts of the precinct afford 360° views of both the harbour and ocean. Vantage points include Johnsons Lookout, Samuel Park, Gap Park, Christison Park and Lighthouse Reserve. The precinct contains a wide range of housing types and styles reflecting important stages in its development. Large areas are characterised by Federation and Inter-War bungalows. Inter-War residential flat buildings are also important contributors to the local character. However, the dominant development type is the dwelling house, located within a garden setting and highlighted by consistent street setbacks and side setbacks that allow for views between buildings. The precinct's exposed location at the plateau of the peninsula has resulted in a sparser foliage and tree canopy compared with the more protected streets of the Vaucluse West precinct."
8. The desired future character of the precinct at Section B1.11.2 of the WDCP is in the following terms: "The Vaucluse East precinct is to maintain the evolution of low density residential development, generally through the introduction of well-designed contemporary dwelling houses. Development may be three storeys, but should establish a two storey presentation to the street with a reduced scale on the third floor, which will help reduce building bulk and scale. On sloping sites, development should step down the site to maintain views, protect the privacy and solar access of adjoining and adjacent properties, and minimise cut and fill. The built form should not detract from the unique features of the natural landscape, or be of such a scale that it dominates adjoining development, or is visually intrusive when viewed from the streetscape or the harbour. In particular development is to retain views of the harbour from public spaces and provide for view sharing from private properties; these can be achieved by providing suitable side boundary setbacks and fencing, roof forms and thoughtful distribution of building form across the site. Within this precinct, some land fronting Old South Head Road is zoned R3 Medium Density Residential, and may provide opportunities for renewal of existing building stock."

The issues are distilled

1. In essence, the dispute relates to the degree of view loss resulting from non-compliances with certain controls within the WDCP.
2. The Respondent contends that the bulk and scale of the proposed development contravenes the building envelope controls at Section B3.2.1 of the WDCP, and the floorplate size provisions at Section B3.3 of the WDCP.
3. The excessive bulk results in view loss from neighbouring properties at Nos 44 and 46 Kings Road that a more skilful design could avoid.
4. The Applicant submits that, firstly, the non-compliances arise from the circumstances of the site and secondly, the only views lost are across a side boundary, and are minor when the totality of the panoramic view available to the affected properties is considered. When these factors are considered, it is appropriate to apply the provisions of the WDCP flexibly, in accordance with s 4.15(3A) of the EPA Act.
5. A photograph of the panoramic view taken from No 44 Kings Road is contained in the architectural plans (Exhibit E), re-produced below. The area of view in contest is located to the right of the Norfolk Pine shown in the image.
6. The Court was assisted by experts in town planning Mr Anthony Betros on behalf of the Applicant, and Mr Max Moratelli on behalf of the Respondent who conferred in the preparation of a joint expert report (Exhibit 2).
7. When the view analysis that forms part of the amended plans at Exhibit E is considered, Mr Moratelli agrees that the views from No 57 Kings Road are improved; that the view loss from No 44 Kings Road is acceptable, and that view loss from a bedroom located on the northern side of No 46 Kings Road is either not affected, or marginally improved if the proposed west facing terrace is amended as drawn in Exhibit H.
8. The primary view loss that remains is that currently enjoyed from the west-facing external terrace of No 46 Kings Road, in a direction that is perpendicular to the side boundary to the north, in the direction of North Head.
9. The Respondent submits that the Court would find, as it did in Furlong v Northern Beaches Council [2022] NSWLEC 1208 (Furlong), that the view loss to the North Head peninsula is devastating which alone is a reason to dismiss the appeal.

Floorplate

1. Section B3.3 of the WDCP states relevantly that the floorplate control applies to development on land in the R2 zone, but not where a floor space ratio (FSR) control applies.
2. It is agreed between the parties that no such FSR control applies to the site, although Mr Rigg submits that a draft local environmental plan containing such a provision has been exhibited, but is not relevant to these proceedings.
3. The floorplate control is described in Section B3.3, in part, as follows: "The development potential for a site is determined by the total floorplate. This is calculated as a percentage of the buildable area. The buildable area is the area of the site that is identified once the front, rear and side setbacks have been established (refer to Figure 10). The maximum amount of development permitted on the site is determined by multiplying the buildable area by a factor of 1.65 (165%). This is the maximum permitted total floorplate. For example if the buildable area is 150m2 the maximum floorplate yield is: 150m2 x 1.65 = 247.5m2 The floorplate is measured at each level. A level is defined as the space between a floor and a level above. If any part of a level is above 1m above exist ground level that area of the level is counted as floorplate (refer to Figures 11 and 12)."
4. The Applicant provides calculations at Drawing DA1401 showing a floorplate that exceeds that permitted on the site by around 100m2.
5. The area calculation undertaken by the Applicant is contested by Mr Moratelli on two grounds: 1. Firstly, as the area of the outdoor shower, totalling around 4m2, and covered by the rumpus room above, is omitted. 2. Secondly, in the manner in which the contribution made by the area of the garage contributes to the calculation of the floorplate area.
6. Mr Betros calculates an exceedance of around 25% over the floorplate permitted on the site, while Mr Moratelli calculates an exceedance of around 43% above that allowed.
7. Whatever the numerical exceedance of the floorplate area control in the WDCP, the parties agree that the impact is isolated to the bulk on Level 1. The Respondent argues that the view loss results from failure to reduce the floor area at the upper level as intended by explanatory figures to the floorplate control, such as Figure 13 (Exhibit 4, folio 117).

Wall height and inclined plane

1. A closely related aspect of the floorplate exceedance, according to the Respondent, is the breach of the wall height and inclined plane control at Section B3.2.5 of the WDCP.
2. A wall height of 7.2m, measured from a point above natural ground line, applies to the site. Above this, an inclined plane at 45 degrees from the horizontal dictates the building envelope.
3. Mr Moratelli has marked areas of non-compliance with the control at par 37 of the joint expert report, re-produced below.
4. The breach of the control also overshadows No 46 Kings Road to a greater extent than would a complying envelope, however I note the solar requirements at Section B3.5.2 of the WDCP are achieved.
5. Mr Moratelli's oral evidence is that the pergola awning above the west facing terrace to Level 1 also exceeds the envelope formed by the wall height and inclined plane but that it is the concrete slab forming the terrace itself that obscures a view from No 46 Kings Road to North Head.
6. A further setback of the built form at Level 1 would reduce the exceedance of the floorplate control, and more appropriately share views from private property in a manner intended by Section B3.5.3 of the WDCP.

View loss

1. As stated, the site, and other properties in the street, enjoy expansive views in an arc that extends from the west south west, taking in the south of the Sydney city CBD, around to the north to Manly, and north east towards North Head.
2. It is commonly held that the proposal will obstruct a portion of the view currently enjoyed by Nos 44 and 46 Kings Road in the direction of North Head.
3. The extent of view loss is depicted in the visual analysis that forms part of the architectural drawings, denoted by the drawings Nos LEC011, LEC012 and LEC013.
4. Mr Moratelli considers North Head to be an iconic view, embodied in what he describes as the 'golden cliffs' evident in some of the images in evidence, and currently visible from certain vantage points.
5. By contrast, the Applicant submits that only a portion of North Head is obscured which nonetheless represents a 'miniscule' proportion of the panorama currently enjoyed by the neighbour at No 46 Kings Road.
6. The Applicant acknowledges the Court's planning principle found at Tenacity Consulting v Waringah Council [2004] NSWLEC 140 (Tenacity) is specifically invoked in Section B3.5.3 of the WDCP, but identifies a distinction in the objectives of the Section between views from the public domain and those from private properties.
7. Objective 01 seeks "to protect and enhance existing views and vistas from the public domain", while Objective O3 is "to encourage view sharing as a means of ensuring equitable access to views from private property".
8. As such, the objectives place the protection and enhancement of existing views and vistas from the public domain higher than a mere encouragement to share views gained from private property in an equitable manner.
9. Additionally, the view loss is experienced over a side boundary, identified in Tenacity as more difficult to protect.
10. The Respondent submits that North Head should be understood as a whole, as was the case in Furlong. A view of the peninsula assists the viewer in locating themselves in Sydney, as a point of orientation.
11. The Applicant has foregone no amenity for themselves, and not sought a more skilful design that would share those views now obstructed.
12. The Respondent has prepared a development control plan following public consultation that is in force and has been consistently applied, consistent with those matters set out in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, at [92]. The WDCP reflects certain expectations for parts of its area, and which has the effect of confining the intensity of development in that area otherwise permitted by the WLEP subject to view sharing provisions. As such, the provisions of the WDCP should be a focal point in determining this case (Zhang v Canterbury City Council (2001) 115 LGERA 373).
13. Furthermore, the WDCP adopts the four-step assessment method set out in Tenacity with the conclusion that the nature of the view loss is iconic, can be preserved through a more skilful design, without which the impact is devastating and can only be said to result from a proposal that fails to conform to the building envelope controls.
14. Having considered the evidence of the experts and my own assessment formed at the onsite view, I do not agree that the view loss is devastating for the property at No 46 Kings Road.
15. When the whole view enjoyed by No 46 Kings Road is understood, the view of North Head, or a portion of it as may be more accurately observed, is gained by a person standing outside on the west facing terrace, away from the panoramic view re-produced at [22], so as to directly address the northern orientation. To do so virtually turns ones back on the sweeping panorama of the harbour so as to address the adjoining site at No 48 Kings Road.
16. When the degree of view loss is assessed in quantitative terms, I accept the Applicant's description of it being miniscule when the quantum of view is understood. In qualitative terms, I consider North Head to be only one of many iconic features of Sydney comprising the panorama enjoyed today, the loss of which does not detract from the magnificent view of Sydney enjoyed from No 46 Kings Road.
17. Turning to the reasonableness of the proposal, while the building envelope controls are breached, I accept Mr Betros' evidence that notwithstanding the breach: 1. The increased setback to the southern boundary will expand views to the Sydney Harbour Bridge from No 57 Kings Road to include the northern pylon. 2. No view loss arises from the breach of the wall height and inclined plane provisions, and the western setback is well within the envelope formed by the geometry of those provisions, other than a portion of the open pergola above the Level 1 terrace. 3. The overshadowing to No 46 Kings Road does not result in a non-compliance with solar access requirements of Section B3.5.2 of the WDCP. 4. The western setback is well within the rear building alignment, retaining a view to the waters of Watsons Bay, and Manly beyond from the west facing terrace at No 46 Kings Road.
18. In summary, while the proposal unquestionably results in some view loss to Nos 44 and 46 Kings Road, my assessment of the views affected, and from where they are obtained, the extent of impact and the reasonableness of the proposal imposing the impact leads me to the conclusion that it is unreasonable to ask for that portion of the view that is lost, to be retained. Instead, I find the proposed development is sited and designed to enable the sharing of views, consistent with the controls at Section B3.5.3 of the WDCP.
19. While the Respondent invites the Court to follow the decision in Furlong, the factual circumstances of the extent of view, the circumstances of the site, and the degree of view retained by the amended plans, are so different as to lead me to a different conclusion.
20. On the basis of the view taken from the first floor of No 57 Kings Road, I find that the breach of the wall height and inclined plane does not result in view loss. Rather, it is the setback of 2.3m to the south that facilitates views between buildings and which, in the case of No 57 Kings Road, expands the iconic view of the Harbour Bridge.

Privacy and overlooking

1. The Respondent contends that the proposal imposes privacy impacts by overlooking adjoining properties, to the north and south of the subject site, contrary to the objectives and controls at Section B3.5.4 of the WDCP, which apply to habitable rooms.
2. The Applicant submits that the proposal has sought to address any overlooking by providing sill heights above the height of the existing windows, which are currently in the order of 750mm at the ground floor, and 600mm at the first floor.
3. I accept the properties bounded by Kings Road and Princes Avenue currently receive and impose a high degree of mutual overlooking, as a result of the radiating arrangement of lots, the sloping topography and the preference for large openings and external terraces to maximise views.
4. In my view the proposal adequately mitigates the degree of overlooking to properties to the north by adopting measures found in the controls at Section B3.5 of the WDCP including deep sills and an intermittent transom, also deep, in the master bedroom, and bedroom 4, and both fixed and operable screening to the large north facing opening to the Level 1 living area.
5. The proposal deals with privacy to the south by locating vertical circulation and service areas to that setback, and by proposing no window openings to that elevation.

Jurisdictional preconditions

1. The proposed development complies with the height of building standard at cl 4.3 of the WLEP.
2. The site is located within an area identified as class 5 acid sulfate soils by the relevant map at cl 6.1(2) of the WLEP, but is not within 500m of another class of land.
3. I have considered the extent of earthworks proposed on the site, that is helpfully depicted on architectural drawing DA1403. On the basis of the Geotechnical Investigation Report prepared by Geotechnical Consultants Australia dated 24 November 2022 (Exhibit D), and conditions of consent at Condition C.11, I find the proposal will not have a detrimental impact on the environmental functions, neighbouring uses or features of the surrounding, pursuant to cl 6.2 of the WLEP.
4. I have also considered whether the site is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Having regard to the historical information contained in the Heritage Assessment and Demolition report prepared by Mr Michael Bogle dated 18 July 2022 (Exhibit B, Tab 8) and the Statement of Environmental effects prepared by ABC Planning dated July 2022 (Exhibit B, Tab 6), I conclude the site is not contaminated and is suitable for the purpose for which development is proposed.
5. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site and the removal of two trees is proposed.
6. By virtue of certain savings and transitional provisions, Chs 6-12 of the Biodiversity SEPP apply to the site that is within the Sydney Harbour Catchment. I have considered the relevant planning principles at s 10.10 of the Biodiversity SEPP. On the basis of the Stormwater Drainage Plans prepared by AE Consulting Engineers (Exhibit C), I am of the view that water quality and frequency of urban run off will be improved by provision of onsite detention. On the basis of the architectural plans, compliance with the height of building standard and the natural tones selected in materials and finishes nominated on the architectural elevations, I also conclude the proposal will maintain and protect the visual qualities of Sydney Harbour.
7. The development application is accompanied by a BASIX certificate (Cert No. 1320394S_04 dated 14 March 2023), prepared by Paul & David Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environment Planning and Assessment Regulation 2021.

The conditions of consent are disputed

1. At the close of the proceedings, the Court directed that parties confer and file, if possible, an agreed set of without prejudice conditions of consent no later than 16 March 2023.
2. The conditions of consent were filed, and three conditions were disputed. They are: 1. C.1 - Modifications to the details of the development 2. C.9 - Acoustic certification of mechanical plant and equipment 3. C.10 - Road and public domain works 4. F.3 - Certification of Electric Vehicle Charging System

Modification to the details of the development

1. Condition C.1 (a) and (b) as proposed by the Respondent seeks amendments to the development that would increase the sill height of windows facing north, and the extent of fixed screen to the opening described at [63].
2. Similarly, Condition C.1(c) seeks amendments to mitigate view impacts to properties to the south of the site.
3. Finally Condition C.1(d) nominates a height for mature planting to the northern boundary.
4. The Applicant submits that there is no evidence before the Court in respect of the amendments sought by the Respondent in Condition C.1(a) and (b), and that the Respondent's preferred form in Condition C.1(c) goes beyond the design changes the subject of expert evidence, but that alternate wording is provided, consistent with the amendments to the west-facing terrace depicted in Exhibit H.
5. As stated at [63], I consider privacy and overlooking to be sufficiently addressed by the sill heights and transom detail shown on window openings to bedrooms, and by the part-fixed, part-operable screen that is set forward of the large north-facing opening to the living area, for which a detail is provided on Drawing DA1303. Accordingly, the Respondent's amendments proposed by Condition C.1(a) and (b) are deleted.
6. As it is my understanding that the improvement in view cited at [24] results from the increase in radius to the west-facing deck, I adopt the Applicant's alternative Condition C.1(c). For the removal of doubt, I re-produce the relevant section of Exhibit H below:
7. Whether the mature height of planting to the north is 4.5m in height, as preferred by the Respondent, or 4m as preferred by the Applicant matters not, in my view. However, when regard is had to the location of window openings to the northern elevation, a mature plant height of 4m appears to balance the value of northern sunlight into rooms on the subject site, with the privacy of neighbours to the north. The Applicant's preferred form of wording to Condition C.1(d) is adopted.

C.9 - Acoustic Certification of Mechanical Plant and Equipment

1. The Respondent seeks to impose a condition requiring certification by an acoustic engineer that the noise from mechanical plant and equipment will not exceed the background noise level, where measured from the nearest strata, stratum or community title land.
2. Acoustic performance was not contended in the Statement of Facts and Contentions filed 11 November 2022. Nor was the Court addressed in submissions on the matter.
3. The Applicant proposes an alternative form of words that address the noise emitted from swimming pool or spa pump, where measured from the boundary.
4. However, the architectural plans depict air conditioning unit(s) and a Hot water Service south of the lift, close to the boundary with No 46 Kings Road. As it is unusual for a dwelling this scale to assume the positioning of such plant and equipment on a roof, in an external location, I find the Applicant's preferred form of the condition unnecessarily constrains the performance required to be achieved to swimming/spa plant.
5. That said, as I do not understand where there may be a strata, stratum or community title land to which the Respondent's condition is directed, I adopt the Respondent's preferred form of Condition C.9 but for two aspects that are: 1. Firstly, the performance to be achieved in background level plus 5dB(A) as is commonplace in such circumstances, and 2. Secondly, the noise level is to be certified at the southern boundary.

C.10 Road and Public Domain works

1. The Respondent seeks to impose a condition requiring a separate application to be made, under s 138 of the Roads Act, for the removal of the existing vehicular cross over, and construction of a new 3m wide cross over.
2. The Applicant seeks to reuse the existing vehicle cross over which it submits is in good condition with no reason to demolish.
3. The driveway is, in the view of the Court, consistent with driveways in the area and appears in good condition with no evidence to the contrary.
4. The condition is deleted.

F.3 - Certification of Electric Vehicle Charging System

1. The Respondent proposes a condition requiring appropriate certification that provision for electric vehicle charging is installed in accordance with the construction certificate plans and specifications that are set out in Condition C.6.
2. Condition C.6 requires, in summary, preparation of an electrical plan that includes details and specifications for an electric vehicle charging point prior to the issue of the Construction certificate.
3. The Applicant does not contest Condition C.6 but asserts there is still uncertainty as to whether electrical or hydrogen-powered vehicles will prevail in the future, and so such certification is unreasonable.
4. I consider Condition F.3 to be a reasonable and uncontroversial consequence of Condition C.6. It is common for electrical circuitry to be certified for the use it is intended to serve, and the Respondent's preferred form of Condition F.3 is adopted.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development application No DA 304/2022/1 for the demolition of the existing dwelling and construction of a new dwelling, swimming pool and associated landscaping, at 48 Kings Road, Vaucluse (legally known as Lot 93 in DP 10127) is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All exhibits are returned, except for Exhibit B, G and 3. …………………… T Horton Commissioner of the Court Annexure A

Amendments 01 May 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to paragraph 2 amending the date and party name. 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: 01 May 2023