> Land and Environment Court of New South Wales CITATION : Megron Developments Pty Ltd v Woollahra Municipal Council [2003] NSWLEC 242 APPLICANT Megron Developments Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : (1)0379 of 2002 CORAM: Nott C KEY ISSUES: Development Application :- Development application for six units in a residential flat building - frontage of site 15.1 m - development standard requiring 21 m frontage for four or more units - loss of solar access and daylight and outlook for adjoining properties - objection under SEPP 1 not well founded - non-compliance with side setback and parking requirements of the DCP LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 Woollahra Local Environmental Plan 1995, cl 10B CASES CITED: North Sydney Municipal Council v Parlby No. 10617 of 1985, 13 November 1986, Stein J (unreported) ; Bennett Taylor Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 77 DATES OF HEARING: 15, 16 and 17 January 2003 DATE OF JUDGMENT: 04/23/2003 APPLICANT Mr I Hemmings, barrister SOLICITORS Gary Cassim & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms M Hawley, solicitor SOLICITORS Phillips Fox JUDGMENT: In the Land and Environment Court of New South Wales (1)0379 of 2003 Nott C 23 April 2003 Megron Developments Pty Ltd v Woollahra Municipal Council 1 This is an appeal in respect of the council's refusal of a development application to erect six units in a residential flat building at 159 Victoria Road, Bellevue Hill. The amended proposal for which consent is sought is seen in the plans SEA-01F to 09F (exhibit G, as amended by exhibit N). Landscaping is proposed in accordance with exhibit L and as described in the report (exhibit D) of Mr R Wallman, landscape architect. 2 Evidence in support of the proposal included the expert town-planning and architectural evidence of Mr M Neustein. Evidence for the council was given by consultant town planner Mr A Rowan and by residents in the adjoining residential flat buildings on each side of the subject land. 3 The issues between the parties are set out in an amended statement of issues dated 9 December 2002. The main issues related to the non-compliance with a development standard in cl 10B(2)(b) of the Woollahra Local Environmental Plan 1995, relating to the width of the frontage (which governs the number of units); the impact on residential amenity of the units on each side of the subject land; non-compliance with the number of carparking spaces required under the Woollahra Residential Development Control Plan (DCP); and non-compliance with the side setback control of the DCP. 4 The subject land is a long, narrow block, almost rectangular in shape. The site has a frontage to Victoria Road on the west of 15.12 m. The perpendicular width between each side boundary is just 15 m. The site has an average depth of about 75 m. The area of the site is 1,127 m2. There is a fall in the land from the street alignment at about RL 86 to the rear boundary at about RL 70, a fall of 16 m. However, this fall is more pronounced in the first 31 m from the front of the site. On the site at the present time is a partly one and partly two-storey fibro cement dwelling with a tiled pitched roof. This dwelling is set back from the street by about 39 m. Between the front of the house and the street in this large setback area are many trees, giving a parklike appearance for residents in the joining residential flat buildings on each side of the subject land. From the street frontage, these trees provide a marked contrast to the built forms on adjoining properties. The existing dwelling on the site is on a relatively low part of the land, and the top of the gutter of this dwelling is at RL 73.8 and the ridge at RL 77.8. This dwelling will be demolished as part of the proposed development. 5 The proposed new building for which consent is now sought contains 6 units comprising 2 two-bedroom units, 3 three-bedroom units and 1 four-bedroom unit. There are six levels in the proposed building (ground floor, and first to fifth floors). There is one unit only on each of these six levels. Unit 1 is on the ground floor and unit six is on the top or fifth floor. As well, carparking spaces are provided internally to the west of the units on the second and third floors. Access to the parking area within the building is via an entry into a car lift at the fifth floor of the proposed building, which is at about street level. The car lift is on the northern side of the proposed building, set back 1.5 m from the common boundary with the residential flat building at 157 Victoria Road. Internally, on the second and third floors, ten carparking spaces are provided. As well, at the street level towards the southern side of the site between the front of the building and street alignment, an additional space is provided, designated as "Disabled Parking". Each unit has a large terrace facing east. The proposed building can be seen in more detail in the plans exhibit G and in the computer-generated graphic colour model exhibit J. 6 The subject land is zoned residential 2(b) under the Woollahra Local Environmental Plan 1995 . Of importance in this appeal are the following provisions of the LEP: 10A. Objectives of site area and site frontage standards for residential flat buildings The objectives of the minimum site area and frontage standards set by cl 10B are as follows: (a) to achieve compatibility between the scale, density, bulk and landscape character of buildings and allotment size, (b) to provide sufficient space between buildings, to maximise daylight and sunlight access between buildings, to ensure adequate space for deep soil landscaping and to preserve view corridors, (c) to prevent permanent barriers to sub-surface water flows, (d) to ensure that there is sufficient land for car parking on site, (e) to encourage consolidation of allotments in appropriate locations to enable the development of a diversity of dwelling types. 10B. Site area and frontage standards (1) A site must not be developed for the purpose of a residential flat building containing 3 dwellings or fewer unless the width of the site at the front alignment is 15 m or more. Note : No minimum site area requirements apply. (2) A site must not be developed for the purpose of a residential flat building containing 4 or more dwellings unless: (a) the site area is 930 m 2 or more, and (b) the width of the allotment at the front alignment is 21 m or more. Of particular importance are the objectives in pars (a), (b) and (d) of cl 10A. 7 The subject site has a width at the frontage of 15.1 m. This is barely the minimum frontage required for the erection of a residential flat building containing three or fewer units: see clause 10B(1) of the LEP. The proposed development comprises two small-to-medium units and four large units—twice the maximum number of units referred to in cl 10B(1). 8 In accordance with cl 10B(2)(b), 21 m or more is required for the width of the allotment at the front alignment, in order for four or more dwellings to be erected. The proposed development is substantially in breach of this development standard, in that the width is only 15.1 m. Moreover, it is not four units that the applicant proposes to erect but six. (I note, however, that once the development standard of 21 m is met, there is no limitation on the number of units above four that may be erected—the number of units would depend on their size and on the general merits of the proposal, and on compliance with other provisions of the LEP and of the DCP.) 9 An objection under State Environmental Planning Policy No. 1—Development Standards in respect of non-compliance with cl 10B(2)(b) is set out in the statement of evidence of Mr Neustein (exhibit A). In this case, it seems to me that a consideration of the SEPP 1 objection overlaps with a consideration of the merits generally under s 79C(1) of the Environmental Planning and Assessment Act 1979: cf. North Sydney Municipal Council v Parlby No. 10617 of 1985, 13 November 1986, Stein J (unreported) referred to in Bennett Taylor Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 77. 10 The evidence of residents in the adjoining residential flat buildings is particularly pertinent to objectives (b) and (d) of cl 10A (above). The residential flat building immediately adjoining the subject site to the north is at No. 157. This building is partly five storeys and partly six storeys in height. It is set back from the street alignment by about 12.5 m and extends down its site by almost 37 m, which is about 10.1 m further east than the eastern alignment of the proposed building. The building at No. 157 was erected in the 1930s. It has a setback from the common boundary with the subject land of 2.3 m. The development application as lodged did not give sufficient information as to the relationship of that building to the proposed building. However, during the hearing two sheets of plans dated 16 January 2003 (exhibit O) were tended showing all the windows in the southern elevation of No. 157 and superimposing that elevation upon a plan of the proposal. The floor level of unit 8 in No. 157 is at about the same level as the floor level of the proposed fourth floor containing proposed unit 5. 11 Mrs C Vainzof has lived in unit 8 of No. 157 with her husband since 1987. She submitted a number of letters of objection to the council and gave oral evidence. Her unit and unit 4 below her unit would be among the most affected units in No. 157 if the proposed development is carried out. The main windows of these units 4 and 8 and of several other units face southward across the subject site. Although there are some windows in the western elevation, these windows look out to the blank wall of a garage at the street alignment and provide little amenity to units 4 and 8. In addition, for privacy, curtains or blinds have to be closed to prevent overlooking into unit 8's western windows from the elevated walkway to the entrance of No. 157. Mrs Vainzof was concerned that proposed development would substantially obstruct her outlook from the main windows on the southern side of their unit and would block daylight. She objected particularly to the closeness of the sidewalls of the car lift and of the carpark. She was also concerned about aural and visual privacy between the rooms in her unit and rooms in proposed unit 5, and about privacy impacts of the terraces. She further objected to the proposed development on the ground that it did not provide sufficient carparking spaces. Another objection was that structural damage would possibly occur to No. 157 through excavation for the proposed building. 12 The northern wall of the proposed car lift is set back from the common boundary with No. 157 by only 1.5 m, yet this wall rises with its roof to RL 89.95, which is a height of about 10.5 m above natural ground at the north-western corner of the car lift wall. This wall could be seen from the sunroom of unit 8, although it is not directly in front of it. At the fourth floor, bedroom 2 of unit 5 would look towards the sunroom window of unit 8. Landscaping in a planter box would assist visual privacy between the proposed building and No. 157. This proposed bedroom is 3 m from the common boundary. On the next level up, bedroom 2 of unit 6 has external timber shutters in front of the bedroom window that are located 2.5 m from the common boundary. Although these shutters would prevent overlooking down to the windows of unit 8 or across to the windows of the unit immediately above unit 8, these shutters add to the bulk of the building in proximity to No. 157. 13 In accordance with the side setback control referred to later, there should be a greater setting back of the upper parts of the car lift wall and of other parts of the northern façade of the proposed building, with the setback increasing as the building increases in height. The kitchen wall of unit 6, immediately opposite and rising above the living or lounge rooms of units 8 and 4 of No. 157, is set back 3.8 m from the common boundary. The ground level below this wall is approximately RL 77 and the top of the wall is RL 88.2. So the top of the wall of the proposed building at the north-western corner of the kitchen of proposed unit 6 should be setback not 3.8 m but 5.6 m. 14 On the proposed fourth floor, the wall height is still in breach of the setback control, because the land is falling away from the street towards the east. At about the north-western corner of the top of the planter box outside the dining room of proposed unit 5, the wall rises from about RL 75.95 to the top of the planter box at RL 82.9, a height of about 7 m. This planter box is 2 m from the common boundary and should be up to 3.5 m away. Below the fourth floor, there is the upper level carpark with its northern wall only 1.5 m from the common boundary. 15 The car lift and the car manoeuvring and parking area has a northern wall parallel to the common boundary with No. 157 for a distance of 22.5 m, 14.5 m of which is directly opposite units in No. 157. This wall has a set back of only 1.5 m from the common boundary. 16 Clearly, if there were only three units (with three or four bedrooms each) proposed for the subject site, there would not need to be an objection under SEPP 1. And such a smaller development suitably designed would better achieve sufficient space between buildings, as envisaged in cl 10A(b). There would be better daylight access available for the main rooms of units on the southern side of No. 157, and there would be more space available for landscaping along the side of any such building (with the branches or foliage being able to spread out), at least where the wall was higher than 3 m above the existing ground. 17 The evidence indicates that some of the residents in No. 157 are elderly and presumably spend more time in their units, so that it is important that the amenity of these units not be compromised unreasonably. If there was no development standard relating to lot-width (which regulates the number of units), perhaps the applicant's case might be stronger, but still the impact of the proposed development would have to be considered under s 79C of the Environmental Planning and Assessment Act 1979. 18 Because of the overshadowing of the subject land by No. 157 and by any boundary fencing along the common boundary with the subject land, I am inclined to accept the evidence of Mr Rowan, notwithstanding in the expertise of Mr Wallman, that it is doubtful whether the trees and shrubs shown on the landscape plans will achieve the heights shown on the plans. 19 It is reasonable for the many unit-owners in No. 157 and in the adjoining residential flat building on the other side of the subject land at No. 161 to expect that any redevelopment of the subject land would comply with the planning provisions of the LEP and DCP. The development standard relating to site width may of course be varied under SEPP 1, but the objectives of the development standard in cl 10A of the LEP should be met. In respect of the subject development, I am of the opinion that those objectives have not been met, or not sufficiently met, and that therefore it would not be appropriate to grant a dispensation under SEPP 1. 20 I should also say, however, that it would be an unreasonable expectation on the part of adjoining unit-owners that the subject land should be developed in such a way that there would always be the many canopy trees in the central part of the site. A reasonable form of development having regard to the planning controls will require the removal of many of these trees, but at the same time, an appropriately landscaped proposal could be designed. I note that where the trees to be removed have a height greater than the proposed building, there may be improved long-distance views from the adjoining units that are higher than the proposed building on the subject land. 21 In relation to building size and location, objective O2 of part 5.2.1 of the DCP provides that a purpose of the side setback control is: O2 To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents. The explanation in part 5.2.2 goes on to state that: In all circumstances, applications must conform to the RDCP's numeric controls for setbacks and the building footprint. And the purposes of the side setback controls include: * protect the visual and aural privacy of residents in adjoining buildings; * provide side access to the rear of properties where rear lanes do not occur; * enable opportunities for screen planting; * protect significant vegetation; * avoid an unreasonable sense of enclosure; and * safeguard privacy and minimise noise impacts for dwellings. 22 The relevant performance criterion of the setback controls is P6, which reads: P6 Development has a minimum side boundary setback of 1.5 m. At any point where the lot width exceeds 12.0 m, the side setback is increased on a pro rata basis by 0.5 m for each metre the building height adjacent to the boundary exceeds 3.0 m. (see Figure 5.11). Figure 5.11 23 The computer-generated graphic representation of the proposed building (exhibit J) partly shows the extent to which the proposal does not comply with the side boundary setback control. The building is seen from an elevated perspective to the south-east. What exhibit J does not show is the full extent of the non-compliance on the northern side of the proposal. 24 A four-unit development or a smaller development than that presently proposed could more readily comply with the side setback control. The mere compliance however with this control does not mean approval should automatically be granted, because there are other provisions of the LEP and of the DCP that need to be taken in to account. Among other things, if there is to be a variation of the development standard in cl 10B(2)(b), the objectives of cl 10A should generally be met. 25 There were objections also from the residents of the units in the six-storey residential flat building at 161 Victoria Road. Significant overshadowing of the windows on the northern side of No. 161 would occur from the proposed development. At present, some overshadowing occurs on the northern façade of No. 161 from the shadow cast by No. 157, and there is dappled shading from the canopies of trees on the subject site. The degree of overshadowing is shown in the plans exhibit F. This exhibit also purports to show the amount of overshadowing that would occur from a building complying with P6 of the setback control. However, the hypothetical building that is casting the shadows in this exhibit would appear to have a floor space ratio (FSR) far in excess the development standard of 1:1, because the hypothetical building has multiple levels and a much larger footprint than the proposed building. 26 It seems to me that a building complying with cl 10B of the LEP could be designed for the subject site that would cause less overshadowing of No. 161 than the present proposal, even though some of the lower units would probably still have some overshadowing, which would be unavoidable. 27 A smaller development would also require fewer carparking spaces, and the required number of spaces in accordance with DCP could more readily be provided. The present proposal is deficient by one space. Although the existing dwelling house on the subject site does not have a carparking space, the proposed development would result in the loss of at least two on-street carparking spaces. Having regard to the existing high demand for parking spaces, because many of the older residential flat buildings have no on-site parking or little on-site parking, it seems desirable that the DCP should be complied with. 28 In support of the SEPP 1 objection, reference was made to the fact that the proposed development complies with the FSR of 1:1. However, the narrow width and steepness of the site, together with the need to comply with other planning controls, would make it difficult or impractical for any building to achieve the maximum FSR. The position might be different if the land was wider or if there was an additional access available from a street at the rear. 29 Mr Neustein rightly said that the locality is characterised by residential flat buildings, the majority of which are larger in scale and accommodation than the subject proposal. However, as Mr Rowan stated in reply, regard must be had to the development standards that apply within the residential 2(b) zone, in particular to the site frontage controls of cl 10B of the LEP. The LEP envisages that not all sites within the 2(b) zone have the capacity to be developed for a residential flat building. In my opinion, the subject site is not conducive to the development of a residential flat building of the size presently proposed. In the light of the planning controls and the constraints of the subject site and its location, the proposed development is an overdevelopment. 30 Accordingly, the orders of the Courts are: 1. The appeal be dismissed. 2. The exhibits, other than F, G, H, J, N and O, may be returned. A J Nott Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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