Land and Environment Court of New South Wales CITATION : Elliott v Waverley Council [2005] NSWLEC 74 APPLICANT Elliott PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11230 of 2004 CORAM: Tuor C. Development Application :- New dwelling - deferred commencement conditions bulk and scale KEY ISSUES: excavation privacy impacts and outlook from adjoining properties LEGISLATION CITED: Waverley Local Environmental Plan 1996 CASES CITED: Tenacity Consultancy v Warringah Council (2004) NSWLEC 140 DATES OF HEARING: 09/02/2005 EX TEMPORE JUDGMENT DATE : 02/10/2005 APPLICANT Mr C McEwen, SC SOLICITORS LEGAL REPRESENTATIVES: Spiegel & Associates RESPONDENT Mr S Patterson, solicitor Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 10 February 2004 11230 of 2004 Elliott v Waverley Council JUDGMENT 1 This is an appeal against the deferred commencement conditions imposed by Waverley Council (the council) for a development application (556/03) to construct a house at 532 Bronte Road, Bronte. The development application, approved on 13 September 2004, was described in the Notice of Determination as "to demolish the existing dwelling and erect a new two storey dwelling with double garage basement and attic levels". 2 The deferred commencement conditions in dispute between the parties, which I have numbered for ease of reference, are: (1) the basement areas forward (to the east) of the proposed laundry shall be deleted and the extent of excavation reduced correspondingly; (6) the roof deck be deleted and the roof not be accessible from the study; (7) the eastern front cantilever of the first floor level be reduced by 1.2 m from the base of the building; (8) the ground floor dining, living and external deck areas be lowered to as close as possible to the eastern garden ground level. 3 Ms D Laidlaw, the Court appointed planning expert, prepared a Statement of Evidence which reviewed the development and the proposed conditions. Ms Laidlaw's report suggested certain matters be addressed and concluded that the development then had an acceptable impact. 4 The applicant prepared amended plans that addressed the deferred commencement conditions not in dispute and matters raised by Ms Laidlaw. 5 The site is in a highly prominent location adjacent to the Bronte tram cutting, Calga Reserve and the coastal walkway. It has a frontage to Bronte Road of approximately 6m and a depth of approximately 47m with an area of 243sqm. It is developed with a single storey house. The eastern end of the site narrows to follow the curve of the tram cutting. An unformed public walkway adjoins the site to the south and the east above the sandstone rock face of the tram cutting. 6 Adjoining the site to the north is a single storey house. The character of the area is predominantly one and two storey houses on larger allotments than the subject site. 7 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996 (LEP1996). The proposal is permissible with consent. The tramway cutting is identified as a landscape heritage item under the LEP. 8 Development Control Plan No 2 - Dwelling House Development (DCP) is also relevant. This permits a floor space ratio (FSR) of 0.84:1; a wall height of 7.5m; an overall height of 9.5m, minimum side setbacks of 900mm and front and rear setbacks that are consistent with adjoining buildings. A draft DCP is currently being prepared but the parties agreed that this could be given little weight. 9 The Court undertook a site inspection and heard evidence from the following residents: § Mrs J Barett, 526 Bronte Road; § Mrs J Grieve, 530 Bronte Road; § Mrs C Panterier, 522 Bronte Road; § Ms V Milson, on behalf of the Bronte Beach Precinct Committee; § Ms L Main, a Waverley councillor speaking as a resident; and § Mr S Hall, 510 Bronte Road. 10 The residents raised general issues about the impact of the development when viewed from the coastal walkway and Calga Reserve. They considered it to be an overdevelopment of the site due to part of the basement level being above ground, the rooftop study and its adjoining terrace and the cantilevered projection of the first floor towards the east. 11 The residents also raised concerns about the extent of excavation of the site to provide the basement accommodation. They considered this to be unacceptable as it added to the bulk of the building, may cause damage to adjoining properties and would adversely impact upon the amenity of residents and users of the coastal walkway during construction. 12 Excavation was the main concern of the adjoining resident Mrs J Barrett, particularly as she and her husband are virtually housebound due to their mobility. Mrs Grieve was also concerned about the extent of excavation and the resultant noise and potential for damage. Mrs Grieve's other concerns were privacy and the change of outlook from her kitchen window and second bedroom. 13 In relation to bulk and scale of the development, its impact on adjoining properties and the public domain, Ms Laidlaw considered that the floors above ground complied with the FSR control. The area of the basement below ground was excluded from FSR calculations by virtue of the definition of gross floor area, which excluded "any other areas that do not contribute to the bulk of the building". A small triangular part of the basement projected above ground level and in Ms Laidlaw's opinion added to the bulk of the building and was, therefore, technically part of the FSR calculation. However, she stated that: it is difficult to provide any meaningful calculation to the extent of variation because all that would contribute to bulk is a triangular portion of the building rather than a full floor. 14 Ms Laidlaw considered that the placement of garages below ground and the modest roof form rather than a pitched roof, which would both contribute to the overall bulk of the building, offset any minor non-compliance with FSR. 15 Ms Laidlaw concluded that the bulk of the proposal was consistent with that anticipated by the planning controls and with other buildings in the area. In her opinion the need to remove part of the basement under deferred commencement Condition 1, to reduce the cantilever required by deferred commencement Condition 7, or to lower the living and dining area required by deferred commencement Condition 8, were not necessary for reasons of bulk. 16 As stated above, the site is a prominent location and the proposal will be clearly visible when viewed from the south along the coastal walk and the Reserve. I do not accept that the proposal will appear as an overdevelopment of the site or that it will be of a bulk that adversely impacts upon the public domain or adjoining residents. It will appear as a two storey building upon the sandstone plinth of the tram cutting with a sculptured rooftop element. The cantilevers at the eastern and western end are not intrusive elements, on the contrary they break up the bulk of the building by giving the first floor the appearance of "floating" over the ground floor. 17 The proposal responds to its setting in a contemporary manner and as stated by council's heritage architect: In assessing the proposal it is apparent that this is a conscious attempt to resolve the requirements of a typical accommodation brief (for the area) with the sensitive and exposed nature of the setting. The building strength lies within its emergence from the site, extending the natural stone of the surroundings as a base above which a contemporary form is juxtaposed in a design of notable quality. 18 The bulk of the proposal does not result in any impacts on adjoining properties beyond those anticipated by the planning controls. I note that the floor level of the ground level is the same as the floor level of the existing house and both the wall height and overall height of the proposal are within the height controls in the DCP. 19 In relation to excavation, the geotechnical assessment prepared by Mr W Davies of Davies Geotechnical Pty Limited states that: there is no geotechnical requirement for the reduction in basement area required by deferred commencement Condition 1. 20 The report concludes that from the geotechnical viewpoint, the proposed basement excavation for No. 532 can be undertaken, with suitable controls, so that the effects of the excavation on the Bronte Tram Cutting are kept to a negligible level…. normal engineering design and controls can be determined for the excavation of No. 532 and included in the construction that would ensure stable support of the land on No. 530. 21 The recommendations in the Davies report have been incorporated into the conditions of approval, including the requirement that saw cutting be used. 22 The conditions also include requirements to minimise disturbance to adjoining residents during excavation, including sound levels and a limit on the period of excavation to a maximum of four weeks, although a significantly shorter period is estimated. The requirement for a dilapidation report for a number of properties is also required. 23 On this basis I am satisfied that the excavation is technically feasible, is unlikely to result in damage to the cutting or adjoining properties or have adverse impacts during construction beyond those that can reasonably be expected. 24 The requirement to delete the basement required by deferred Condition 1 is therefore not necessary for reasons of either bulk or adverse impacts from excavation. 25 In relation to Mrs Grieve's other concerns relating to privacy and outlook from her kitchen and bedroom windows, the privacy concerns have been addressed by the lowering of the terrace area and the provision of a planter box. The need to lower the ground floor dining and living areas, as required by deferred commencement Condition 8, is not necessary for reasons of privacy as there are no windows proposed along the northern wall and the eastern doors and terrace of the living areas are screened. 26 The privacy impacts of the proposal on No 530 are less than those currently experienced The existing house on the site has windows along the north façade that look directly into the garden of No 530 and the existing deck and access stair adjoins the second bedroom window of No 530. 27 The change to the outlook of the kitchen of No 530 is acceptable. The kitchen currently looks out onto a blank wall set back approximately 1m from the boundary with oblique glimpses to the ocean. The placement of the proposed wall along part of the boundary while not complying with the DCP is not unreasonable given the width of the site and will not result in unreasonable impact on the outlook from the kitchen. 28 The window of No 530 currently provides views of the ocean, Waverley Cemetery and the sky from a children's bedroom. This outlook will be changed by the proposal. The ocean and the cemetery views will be filtered through the vegetation screen and the sky view will be largely removed by the cantilever of level 1. A reduction in the length of the cantilever would do little to retain this outlook unless it was removed from in front of the windows, which would effectively mean that the whole of the cantilever would need to be deleted and would result in the loss of a bedroom from the development. 29 While the outlook from the bedroom of No. 530 will change, it will still retain distant views above the planter box and below the cantilever, and the level of light to the south facing window will remain largely unaffected. The living areas of No 530 will not be impacted on by the proposal and these enjoy spectacular views to the ocean and the cemetery. 30 I do not consider that the proposal will have an unreasonable impact on the outlook from the second bedroom given the use of this room, the retention of other views in the house, the reasonable expectations for development on the site as even a single storey development with a lesser front setback would block the outlook completely. I consider that the proposal satisfies the principles expressed by Senior Commissioner Roseth in Tenacity Consultancy v Warringah Council (2004) NSWLEC 140 and achieves appropriate view sharing. The reduction in the cantilever required by deferred commencement Condition 7 is, therefore, not reasonable. 31 In relation to the deletion of the roof terrace required by Condition 6, the terrace has been reduced in size to 10sqm. The DCP does not include any specific provisions relating to roof terraces but requires that elevated decks not exceed 10sqm and have a depth of no more than 1.5m so as to minimise privacy and noise impacts. The Draft DCP states that roof terraces are generally not acceptable but again the objectives of the control relate to privacy and noise impacts. 32 I accept Ms Laidlaw's opinion that the proposed deck achieves acceptable privacy and noise impacts. The width of the screen will effectively limit the views to the north over the adjoining properties. The size and location of the terrace next to a small study and away from the living areas means that it is unlikely to be used for gatherings and will, therefore, not result in unreasonable noise impacts. 33 It is intended for the terrace to be used as in a private open space less exposed to overlooking from the walk way and the windows of No. 530 than the ground level garden area. The orientation of the terrace is towards the ocean and the reserve, overlooking these spaces will not have an adverse impact. On the contrary it is consistent with the principles of providing informal surveillance of public spaces. While there are no other roof terraces in the area, the proposed terrace is acceptable as it does not result in adverse privacy or noise impacts. 34 For the above reasons the imposition of the deferred commencement conditions in dispute is not necessary. The other deferred commencement conditions have been satisfied either by the provision of further information, the amended drawings or incorporated into conditions of approval and are, therefore, no longer necessary. Orders 35 The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 556/03 to demolish the existing dwelling and erect a new two storey dwelling with double garage, basement and attic levels at 532 Bronte Road, Bronte, is approved subject to the conditions in Annexure "A". 3. The exhibits, except Exhibits A and 7, may be returned. 4. No order as to costs. __________________ Annelise Tuor Commissioner of the Court rjs 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. 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