Land and Environment Court of New South Wales CITATION : Erman v Woollahra Municipal Council [2006] NSWLEC 759 APPLICANT Peter G Erman PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10139 of 2006 CORAM: Hoffman C KEY ISSUES: Development Application :- Demolition of a dwelling, erection of a three storey house, privacy, sustainability, floor space ratio, side setbacks, bulk, tree protection State Environmental Planning Policy 2004, Building Sustainability Index: BASIX, State Environmental Planning Policy No. 55 Remediation of Land Sydney Regional Environmental Plan No. 23 Sydney and Middle Harbours LEGISLATION CITED: Woollahra Residential Development Control Plan 2003 Vaucluse East Precincts Development Control Plan for the Sydney Regional Environmental Plans 22 and 23. Woollahra Access Development Control Plan Development Control Plan for Advertising Applications for Development and Modification of Development Consents DATES OF HEARING: 22-23/11/2006 EX TEMPORE JUDGMENT DATE : 11/23/2006 APPLICANT Mr J Johnson, barrister Instructed by Mr P Erman, solicitor Of: Peter Erman Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor With Ms C Davis, Of: Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 23 November 2006 10139 of 2006 Peter G Erman v Woollahra Municipal Council JUDGMENT 1 This is a class 1 appeal No. 10139 of 2006 between Peter G Erman and Woollahra Municipal Council in regard to the refusal of the demolition of an existing house and the erection of a new house at 44 Kings Road, Vaucluse. The site is situated in an area that is generally characterised by two storey detached dwelling houses. 2 The adjoining property to the south, No. 42 Kings Road, is occupied by a two storey dwelling house with tiled gable roof forms. The adjoining property to the north, 46 Kings Road, is occupied by a two storey dwelling house with a pitched roof. The adjoining property to the rear, No. 12 Princes Avenue, is occupied by a two storey dwelling house with a pitched tile roof. 3 The slope of the land down to the west from Kings Road is such that most of the houses including Nos. 42 and 46 have an high rear elevation, giving a similar height or impression to a 3-storey dwelling. 4 The site is located on the western side of Kings Road, Vaucluse. The site has a frontage to Kings Road of 18.59 m, a southern side boundary of 42.6 m, a north side boundary of 42.5 m and a western rear boundary of 10.16 m and an area of 613.6 sq m. The site falls approximately 2.6 m from the eastern side to the western end of the property. The site is currently occupied by a 3-storey at the rear, 2-storey at the front, cement rendered dwelling house, probably of 1920 to 1930 vintage, with a pitched tile roof and a swimming pool in the rear yard. 5 A large significant Norfolk Island pine tree is located adjacent to the front boundary of the site. The subject land is zoned Residential 2A under the Woollahra Local Environmental Plan 1995. The applicable statutes are the State Environmental Planning Policy 2004, Building Sustainability Index: BASIX, State Environmental Planning Policy No. 55 Remediation of Land and Sydney Regional Environmental Plan No. 23 Sydney and Middle Harbours. 6 The applicable controls are the Woollahra Residential Development Control Plan 2003 Vaucluse East Precincts and the Development Control Plan for the Sydney Regional Environmental Plans 22 and 23. Also the Woollahra Access Development Control Plan and the Development Control Plan for Advertising Applications for Development and Modification of Development Consents. 7 The proposal as amended for this hearing involves a demolition of the existing dwelling house and ancillary structures and the erection of a new part 2-storey and part 3-storey cement rendered flat roofed dwelling house and a new swimming pool. The amended proposal represents two storeys to Kings Road and three storeys to the rear. Features of the amended proposal are as follows: (a) The amended proposal involves three levels, lower ground floor, ground floor and first floor; (b) Three garage spaces are provided with vehicular access off Kings Road in the north-eastern corner of the subject site; (c) The existing Norfolk Island pine tree within the front setback is proposed to be retained; (d) The lower ground floor level comprises study, garages and home theatre. A new swimming pool is proposed to be constructed at the rear of the property; (e) The ground floor level comprises meals, family, kitchen, dining and lounge rooms. Due to the slope of the subject site from the high point on the eastern boundary down to the low point on the western boundary, the lower ground floor level on the western portion is elevated above natural ground level, thereby giving rise to the three storey appearance at the rear. There are also roofed balconies provided at the ground floor level, both on the eastern and western facades; (f) The first floor level comprises a sitting room, gallery and three bedrooms with roofed balconies on the eastern and western facades; and (g) As previously advised, a new pool is proposed at the rear with associated timber pergola to a height of 2.4 m across the full width of the rear boundary. The pergola is not a complex structure. It consists of single beams 3 m apart spanning from the rear masonry fence to columns set about 3 m out from the rear boundary. The masonry fence was proposed at 2.4 m height but has been reduced to 1.8 m height during the hearing. A water feature is proposed in the centre of this rear wall. 8 The original development application was refused by council and a subsequent s 82A Review also resulted in refusal. The current design before the Court has reduced the size of the house considerably. This is seen mainly by the increased side setbacks at the second and third storey. The existing house is set at about the middle of the allotment. The proposed new house is set closer to the street to match the setbacks of the neighbours' houses on the north and southern sides. 9 Also the new house, by moving towards the street, has resulted in a larger rear yard than existing, with an increased setback to the rear boundary. The rear boundary is shared with No. 12 Princes Street to the west and for a short distance No. 14 Princes Street. Due to the slope of the hillside down to the west, most properties enjoy panoramic views from Manly to Bradleys Head and to the Opera House and Bridge. 10 The issues as they were prior to the hearing are: 1 Whether the proposal should be approved having regard to the likely impact upon the existing significant and mature Norfolk Island Pine tree in the front yard of the subject site. Particulars The proximity of the dwelling house to the Norfolk Island Pine tree will compromise the health and stability of the tree, which is contrary to Clauses 2(2)(f)(iii) and (iv), 2(2)(I)(iii) and 18(1)(e) of Woollahra LEP 1995 (LEP) and 04.14.2, C4.14.1 and C4.14.7.8 of Section 4.14 of Woollahra RDCP 2003 (RDCP). 2. Whether the proposal should be approved having regard to the non-compliance with the floor space ratio control outlined in C5.2.9 of Section 5.2 of the RDCP. Particulars The subject site has a permissible floor space ratio of 0.55:1 (337.5m2) whilst the proposed development seeks a floor space ratio of 0.714:1 (438.4 m2). This involves a non-compliance of 101.9 m2 or 30% and results in a dwelling house that is excessive in scale and bulk and generally incompatible with the surrounding streetscape, particularly when viewed from properties to the rear (west). This is considered to be contrary to objective 05.1.1 and 05.1.3 of Section 5.1 of the RDCP. 3. Whether the proposal should be approved having regard to the non-compliance with the minimum side setback control outlined in C4.14.4 of Section 4.14 of Woollahra RDCP 2003. Particulars The proposed development has a non-compliance with the side setback control of up to 3.0 m. This results in a significant impact upon the amenity of adjoining properties (42 and 46 Kings Road) including a sense of enclosure and lack of building separation. 4. Whether the proposal should be approved having regard to the additional overshadowing to the northern elevation of the adjoining property to the south (42 Kings Road). Particulars Where more than three hours is currently received, the proposed development will eliminate all solar access to a bedroom window at the front of the ground floor level of 42 Kings Road. This is considered to be unacceptable and inappropriate, and inconsistent with the intent of C5.2.14 of the RDCP. 5. Whether the proposal should be approved having regard to the extent of overlooking to adjoining properties . Particulars The proposed development will result in an unacceptable level of overlooking from the rear balconies on the ground and first floor levels to the rear yards (main private open space) of the adjoining properties to the south and north (42 and 46 Kings Road respectively). This is contrary to C5.8.6 of Section 5.8 of the RDCP, and objective 05.8.1 of the RDCP. 6. Whether the proposal should be approved having regard to the concerns raised by resident objectors. 11 The council advised at the hearing that due to the latest amendments to the design since the refusal of the s 82A Review, the issues had been resolved satisfactorily. The respondent's evidence was in the form of reports of council staff at the various stages including Ms L Bennett, Team Leader Tree Management of the Council. The applicant's evidence was in the form of architectural landscape and drainage plans and a report from Mr P Richards, tree and landscape consultant. 12 The parties had agreed on a joint town planning expert, Mr J A Moody, who also provided a report and had participated in joint meetings that resulted in the amended plans before me. They had been advertised for comment. 13 At the hearing a representative of 42 Kings Road, a Mr Storey, said the increased side setbacks and the privacy screens on the sides of the balconies had resolved their concerns including the concern about shadows and they removed their objection, although they still noted the floor space ratio exceedence. 14 Dr Smith of 46 Kings Road said her concerns were all satisfied and she only asked the privacy screen louvres be fixed so they could not be rotated to give vision to her house, and that they should be in non-reflective neutral colours. 15 Dr Ng of 10 Princes Street, is downhill and to the south of the subject property and maintains her objection that the house was too big and should have a pitched roof to fit into the local character and would create privacy impacts on her home. Also she was concerned about sustainability and global warming issues and asked if the proposal complied with the BASIX index. 16 The applicant showed that the original and the s 82A Review Scheme had complying BASIX certificates and since then the design had included a stormwater detention and storage system to capture and reuse water for irrigation and toilet flushing. Thus the BASIX index would have improved to an even higher standard. 17 Dr Ng said the house should only have a two car garage instead of three to reduce use of petrol and that would reduce the size of the house. 18 The applicant pointed out that the third car space was in an excavated section of the new house below ground level and did not add to bulk, and that to date, the statutes and controls did not limit the number of cars. 19 In walking around the area during the view I saw a number of Art Deco style houses nearby with flat roofs dating from the 1920s and 1930s and a number of more recent houses with flat roofs in amongst pitched roof houses. 20 In regard to Dr Ng's concern, I do not think the proposal would be out of character with the locality by virtue of its flat roof. 21 Mrs F W Li of 12 Princes Avenue also was concerned about the bulk and size of the proposal as seen from her backyard and the proposed height of the back masonry fence. Being downhill she thought it would look like a prison wall from her yard. The height that she was considering was the original 2.4 m height. 22 I went to look both from the upper storey of the existing house, that is about at the same height as the upper floor of the proposal, and to the back yards of Nos. 10 and 12 Princes Street, to observe the likely impact of the proposal. In Dr Ng's property, one could not see the existing house which is larger and closer to the back fence than the proposal. The existing vegetation and the slope down the hill appeared to be the reason why the existing house was not visible. Dr Ng said she had an approved new house, and at night people at the proposal would be able to see into her lighted windows in her new house. Mrs F W Li was also concerned about privacy. 23 Mr Moody said that the separation distance between either of those two houses and the proposal would be about 35 m, which is well in excess of any normal standard for visual privacy to be acceptable due to separation. 24 In addition, in looking down into 12 Princes Avenue from the subject property one could only see a kitchen window, a back door and a very small portion of the back yard. 25 Mr Moody was content that the separation distance alone was sufficient for normal residential privacy. It might be noted also that there is a significant amount of mutual overlooking from adjoining houses in this locality possibly due to the fact that they all have panoramic views to the harbour. In seeking to retain those views everybody can see some part, if not the majority, of their neighbours' backyards. 26 Mrs F W Li was concerned that the proposed dwelling would be much too large. In comparing the proposal with the existing house it was noted that from her property the proposed new house would be up to 3 m further away and in fact was slightly lower than the existing dwelling. Therefore, as seen from her backyard, the proposal would actually look smaller than the existing house, and have less view into her yard than at present. 27 In regard to the rear boundary fence, there was an extensive wisteria vine on the existing boundary which grew in Mrs F W Li's backyard. It added to the softening of vision to any structure uphill. The wisteria vine could be preserved during construction of the new boundary fence. 28 Mrs F W Li indicated that she would probably prefer the existing fence height of about 1.3 m to remain, however the applicant sought the normal 1.8 m high fence. This would maintain reasonable privacy between the neighbours, and the applicant wished to take all necessary steps to ensure that the wisteria vine was preserved such that it could grow on the new wall and presumably onto the new pergola beams. 29 Combined with the fact that the new house would appear smaller from Mrs F W Li's property than the existing building, it seemed to me that the opportunities for overlooking and any impression of bulk would be reduced from the existing situation and was not something that could justify further changes to the dwelling or its refusal. 30 In regard to the floor space ratio exceedence, Mr Moody, as I have said, participated in meetings and suggested amendments to the proposal in order to reduce its impact. He made the following points: (i) The proposed front setback ranges from a minimum of 6 m to approximately 10 m from Kings Road. The proposed front setback easily achieves compliance with Council's requirement of 5.7 m; (ii) The proposed rear boundary setback is approximately 13.6 m to the ground floor and more to the upper floors, which set back further to the east. Therefore even the minimum boundary rear setback is well in excess of the council's requirement of 10.7 m; (iii) The height of the proposed development achieves compliance with Council's 9.5 m height requirement; (iv) The proposed building footprint complies with council's minimum requirement providing the landscaped area required on the rest of the allotment. (v) The proposed two storey elevation to the street is sympathetic with adjoining development; (vi) The proposed three storey rear elevation is consistent with a number of adjoining dwellings and is of a comparable height to adjoining dwellings; (vii) Although there are some breaches of the council's side boundary setbacks, these breaches are reasonable for the following reasons: (a) Proposed side boundary setbacks at the lower ground floor are equivalent to or greater than that provided on adjoining properties; (b) There are no visual or oral privacy impacts on adjoining properties; (c) The proposed side boundary setbacks provide for side access to the rear yard; (d) There is no encroachment of the proposed dwelling on adjoining properties; (e) Screen planting can be provided along parts of the side boundary setbacks; (f) There is no loss of significant vegetation within the side boundary setbacks; (g) The lower ground level will not create an unreasonable sense of enclosure to adjoining properties; in fact it will be reduced compared to the existing house; (h) The amended proposal is significantly articulated, particularly at the upper levels and the proposal will not create any privacy or overshadowing impact of any significance; and (i) The proposed side setbacks in the western half of the building are greater than the existing and therefore the visual impact of the proposal from the west will be less than the existing dwelling. 31 The side setbacks at the ground floor level range from 1.5 m to 3.5 m on the north and 1.8 m to 2.7 m on the south. 32 Based on the council's controls and the wall height requirements, there would need to be setbacks at the upper levels in the order of 3.5 m to 4.5 m, based on a 15 m wide block at the midpoint, such as the existing allotment is, such side setbacks would leave a very small space for any upper storey. This is caused by the tapering of the site towards the rear. 33 Mr Moody had discussions with Mr S Taylor for the council and Mr L Fletcher, consultant planner for the applicant, and they had agreed adherence to the council's planning controls was not reasonable in the circumstances provided upper storey side setbacks were increased. The applicant had subsequently made amendments to provide side boundary setbacks at first floor level of 2.5 m to 4 m on the north side and 1.8 m to 3.5 m on the south side. 34 These changes had resulted in giving the building very strong articulation with side boundary setbacks equal to or greater than adjoining properties. There was no loss of views to adjoining properties or the public domain and in fact the views would be increased slightly for the neighbours. There was no loss of significant vegetation and there was in fact a lesser impact to any sense of enclosure or lack of building separation compared to the existing building. 35 Mr Moody observed that part of the breach of the floor space ratio is due to the areas of the balconies. Balconies in excess of 20 sq m are to be included in the floor space ratio under the council's Residential Development Control Plan. He considered that the balconies, whilst they did add somewhat to bulk and scale because they were roofed, they did not contribute to the same extent as enclosed rooms. 36 Also, part of the additional floor space ratio was due to the third car parking space, which council's Development Control Plan requires to be included. Mr Moody confirmed that much of this third car space was below ground level and did not add to bulk. For these reasons he considered that the design now before the Court was acceptable and satisfied the objectives of the floor space ratio control in the Development Control Plan. 37 In coming to a conclusion on the matter, I was satisfied with the conditions drafted by the parties to ensure the conservation of the Norfolk Island pine tree at the front of the site. I accept the evidence in regard to the non-compliance with some of the side setback controls of the council's Development Control Plan and the reasons given by the experts for it now being acceptable. 38 I note that the issue in regard to overshadowing has been withdrawn. The extent of overlooking to adjoining properties, apart from the fact that there is mutual overlooking already, it seems to me that reasonable residential suburban privacy has been maintained. In regard to the rear boundary fence, it seems to me that the normal 1.8 m height is a reasonable provision, as a lower fence height would enable people in the subject property, if standing close to the fence, to look down into 12 Princes Street and it is reasonable to prevent this. 39 In regard to the floor space ratio, I note that it is not a statutory requirement, it is a control plan requirement and I accept the evidence of the experts that the current design has met the objectives of that control and that there is no reason otherwise sufficient for the development to be refused. 40 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to the demolition of the existing house at No. 44 Kings Road, Vaucluse and the erection of a new house as shown on Job No. J05-04 drawing Nos. A-01D, A-02C, A-03C, A-04C, A-05C, A-06C, A-07C, A-08C and A-09C by Alec Pappas Architect and Landscape Plan L01/1-R9902 Revision A by Michael Siu, Landscaping and drainage plans by John Romanous & Associates Drawing Nos. 710 sheets S1, S2 and S3 all Rev. F. all as amended by and built in accordance with the conditions in Annexure "A" hereto. 3. The exhibits are returned to the parties except Exhibits A, B, 1, 2, 6, 7 and 8. ___________________ K G Hoffman 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.