Land and Environment Court of New South Wales CITATION : Bensen & Partners Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 382 APPLICANT Bensen & Partners Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 11602 of 2005 CORAM: Tuor C Development Application :- Construct a house, swimming pool and landscaping KEY ISSUES: Removal of significant tree Height, bulk and form LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 DATES OF HEARING: 12/04/2006 DATE OF JUDGMENT: 06/30/2006 APPLICANT Mr C McEwen, SC Solicitors Staunten Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr J Bingham, solicitors Solicitors Deacons Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 30 June 2006 11602 of 2005 Bensen & Partners Pty Ltd v Woollahra Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application (DA 849/2004) under the Environmental Planning and Assessment Act 1979 (the Act) to demolish an existing house and construct a new house, swimming pool and landscaping at 57 Latimer Road, Bellevue Hill (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted. The site and its context 3 The site is located on the western corner of Latimer and Balfour Roads, Bellevue Hill. It is irregular in shape with an area of 665sqm and frontages to Latimer Road of 9.98m and Balfour Road of 32.57m. The southern side boundary is 43.7m and its western rear boundary is 29m. The site falls approximately 6.75m from east to west. The site is developed with a one to two storey house. There is a mature Magnolia grandiflora (Bull Bay Magnolia) adjacent to the south west corner of the existing house. 4 Surrounding development is detached houses in landscaped settings. The adjoining property to the west, 112 Balfour Road, has a single storey house. The adjoining property to the south, 59 Latimer Road, has a one to three storey house. The history of the proposal 5 The application was lodged on 24 December 2004 and was notified to adjoining and nearby residents. Council received four objections. Council refused the application on 21 March 2005. Subsequently the applicant lodged a s82A application which was recommended for approval but refused by council on 19 December 2005. In response to comments of the Court appointed experts amended plans were prepared which relocated the proposed garage and driveway. Planning Framework 6 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is permissible with consent within the zone. 7 The objectives of the zone relevantly include: a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses. 8 Clause 12 of LEP 1995 specifies a maximum height of 9.5m. The proposal complies with this control. 9 Woollahra Residential Development Control Plan 2003 (DCP 2003) is also relevant. DCP 2003 provides relevant controls including storey height, floor space ratio (FSR) for the site which is within the Bellevue Hill North Precinct. The evidence 10 The Court heard evidence from Mr G Goodyer, the Court appointed planning expert and Mr D Ford, the Court appointed arboricultural expert. 11 The Court heard evidence on site from the following residents: · Mr and Mrs M Gauchat, 59 Latimer Road, Bellevue Hill · Dr J Hirshorn, 112 Balfour Road, Bellevue Hill 12 Mr and Mrs Gauchat sought leave to be joined in the case and for evidence to be presented by their arborist who had prepared a submission on their behalf in response to council's notification of the s82A application. This report was tendered as part of council's bundle of documents (exhibit 1). For the reasons I gave during the proceedings I did not grant this leave. The issues 13 The Statement of Issues before the Court contained 6 issues. Issue 5 (the location of the proposed driveway) was resolved by amended plans and council did not press Issue 3 (side setbacks). The remaining issues can be summarised as whether: i) the removal of the Bull Bay Magnolia is acceptable. ii) the height, bulk and form of the proposal is consistent with the existing character of the area and the adjoining properties. Removal of tree 14 The magnolia tree provides significant amenity to 59 Balfour Road by improving privacy as well as a pleasant outlook. The owners were concerned about the loss of the tree in its own right and also because of the time that it would take for a replacement tree to reach a size that would effectively screen the bulk of the building. As part of their submission to council they provided a report from Mr I English, arborist, who drew different conclusions to Mr Ford. Mr Ford reviewed this report and stated that he would not alter the conclusions of his report, with the exception of rebuilding the retaining wall away from the existing wall. 15 Mr Ford recognised that the tree was important to the adjoining property and also when viewed from the street. He stated that the tree is in good health but in poor structural condition, primarily due to the two subtrunks having been lopped, the growth of epicormic stems and bulges indicating internal decay. He considered the tree to be prone to failure. 16 Mr Ford stated that the root system is also severely constrained by surrounding retaining walls. He considered cracking in the retaining walls and stairs to be as a result of root activity and the retaining walls would need to be reconstructed. This would cause damage to the tree unless the existing wall was retained and a new wall constructed adjacent to it. He stated that "the tree is close to the limits of root expansion, so that in the near future a decline is likely to begin". In his opinion, the safe useful life expectancy of the tree is 5 to 15 years. It may live longer than 15 years but would need to be removed for safety or nuisance reasons. 17 Mr Ford stated that: Retention of the tree would essentially divide the land into two small usable areas. In my opinion the values of the tree are not so high that the usage of the land should be compromised to the required extent. 18 Mr Ford concluded that the practical resolution would be to: Allow the removal of the subject tree Provide adequate space for realistic replacement planting. 19 The amended plans, proposed landscaping and conditions met Mr Ford's requirements. Findings 20 I recognise that the loss of the magnolia tree will reduce the amenity currently enjoyed by the occupants of the adjoining property, particularly from their terrace. However, I accept the opinion of Mr Ford that while the tree is healthy it is in poor structural condition and will require removal in 5 to 15 years. If structurally sound, the retention of the tree would place constraints on the redevelopment of the site. However, whether the tree could be retained with a reasonable level of development would need to have been investigated prior its removal being justified on this ground alone. It would not be reasonable to impose such a constraint on a development for a tree, with a limited life span. 21 I do not accept Mr Bingham's submission, for the council, that further investigation needs to be carried out as no probing or root mapping has been undertaken. About five different arborists, including the most recent council officer's report, have examined the proposal. Mr Ford did not consider further investigation to be necessary and I accept that there is sufficient evidence to form the basis of a decision. 22 The proposal provides three magnolia trees and a Blueberry Ash. The application was further amended during the hearing to relocate the swimming pool 4m closer to Balfour Road to enable a proposed magnolia to be planted in the south west corner of the site. This will improve the outlook for the adjoining properties and move the swimming pool further from the boundary with 122 Balfour Road. 23 The replacement trees will in time provide benefit. In assessing the application against the requirement of LEP 1995 and DCP 2003, I find that it is not reasonably feasible to preserve the existing canopy by retaining the tree. However, the canopy will reinstated by the replacement trees and therefore the objectives are met. Height, bulk and form 24 The Bellevue Hill North Precinct in DCP 2003 describes "the predominating one to three storey residential houses and flat buildings set in the winding streets that follow the contours of the landscape". 25 C4.7.9.3 of DCP 2003 provides: Development is to have a maximum height of two storeys. Where the landform of the site falls more than two metres from the street to the rear of the property an additional basement storey may be permitted as long as all other RDCP controls are met. 26 Clause 5.2.9 of DCP 2003 permits a maximum FSR of 0.55:1. The amended proposal has an FSR of 0.59:1 which equates to an additional 27sqm of floor area. While there is no increase in the bulk of the building the increase in FSR results from the relocation of the garage. Previously the proposal exceeded the FSR control in Mr Goodyer's opinion by about 11sqm. 27 Mr Bingham submitted that because of the excess FSR and side setback non compliance, the three storey control was not applicable. I do not accept this submission. The key question to be answered is whether the height and bulk of the development is consistent with what is envisaged for the area. The explanation at 5.2 of DCP 2003 states that: The RDCP controls are designed to ensure that the scale and bulk of housing is compatible with site conditions and the desired future character for the locality…. 28 In relation to the setbacks, Mr Goodyer considered that in places the setbacks were less than the requirement but in other places they exceeded the requirement. On average they complied and where outlook was important to the neighbours the setbacks were greater. Council did not press this issue. 29 Mr Goodyer considered that the height, bulk and form of the development were consistent with the character of the area. 30 In relation to FSR, Mr Goodyer explained that: However, the proposal has taken advantage of the slope of the land in a way that reduces the buildings bulk and scale, by stepping the building down the slope of the land and providing areas which are below the street level and therefore less visible from the public domain. 31 The basement is included in FSR but is largely below ground level and does not add to the bulk of the building. The only part of the building that is four storeys is the stairwell but in Mr Goodyer's opinion it will appear as a two to three storey building. When viewed from Latimer Road the house is two storeys. From Balfour Road it is three storeys with the forth storey apparent from limited vantage points. Due to the setback of the upper floor the house will appear as three storeys when viewed from 112 Balfour Road. Mr Goodyer agreed that the open pergola over the ground floor western terrace was a substantial structure that added to the bulk of the building. Its removal would reduce the three storey appearance of the building. I have included a condition to this effect in the approval. 32 The owners of 59 Latimer Road were concerned about the bulk of the proposal when viewed from their property. Mr Goodyer recognised that the outlook, especially from the terrace and garden would be altered as there would be building where there is currently none. However, he considered this to be consistent with the planning controls. The main bulk of the building is located to the east of the site, where the existing house is currently located. The height and bulk of this part of the building would not unreasonably impact on 59 Latimer Road. 33 The house proposes a parapet and flat roof which is different in form to its adjoining neighbours which have pitched roofs. However, Mr Goodyer considered this to be consistent with the Objectives O4.7.6 "to maintain the evolution of residential building styles through the introduction of good contemporary building" and Performance Criteria C4.7.1 for the Bellevue Hill North Precinct to respect and enhance "the rich mixture of residential architectural styles and forms". I note that the council officer's assessment of the s82A application stated that "The proposal is considered to [be] a high quality architecturally designed contemporary building". The report also raised no issue with the height or FSR of the house. Findings 34 For the reasons outlined by Mr Goodyer, I accept that the height, bulk and form of the proposed house are acceptable and satisfy the relevant objectives in LEP 1995 and DCP 2003. Other Issues 35 Mr Goodyer raised concerns about the 1.8m height of the fence along Latimer Road which did not meet the requirements of C4.7.9.4 in DCP 2003. He recognised that a higher fence was appropriate along the Balfour Road frontage to provide privacy to the rear garden. He considered that the existing fence should be retained and added to. Based on the site inspection and the submission of Mr McEwen SC, for the applicant, I find that the condition of the existing fence does not justify its retention. Otherwise I accept the recommendations of Mr Goodyer which have been incorporated in to the conditions of approval. 36 The other issues raised by the residents have been addressed by Mr Goodyer and, where appropriate, by conditions of approval. Orders 37 For the above reasons the Orders of the Court are: 1. The appeal is upheld. 2. The development application (DA 849/2004) to demolish an existing house and construct a new house, swimming pool and landscaping at 57 Latimer Road, Bellevue Hill, is approved subject to the conditions in Annexure "A". 3. The exhibits, except exhibits 8, A and B, may be returned. __________________ Annelise Tuor 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. 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.