Land and Environment Court of New South Wales CITATION : Jahn Associates Architects v Woollahra Municipal Council [2004] NSWLEC 371 APPLICANT Jahn Associates Architects PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10431 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Loss of views - visual bulk and scale - floor space ratio LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Residential Development Control Plan CASES CITED: DATES OF HEARING: 06/07/2004 EX TEMPORE 07/06/2004 JUDGMENT DATE : APPLICANT Ms M-L Taylor, solicitor SOLICITORS Norman Waterhouse Incorporating Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor SOLICITORS Michell Sillar JUDGMENT: - 6 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 6 July 2004 10431 of 2004 Jahn Associates Architects v Woollahra Municipal Council JUDGMENT 1 This was a Class 1 Appeal No. 10431 of 2004 between Jahn Associates Architects and Woollahra Municipal Council, in regards to the refusal of alterations and additions to a home at No. 83B Drumalbyn Road, Bellevue Hill. The house was part of a number of battleaxe lots between Victoria Road and Drumalbyn Road and was accessed by a reciprocal right of way that included amongst other properties No. 83A, another house on the north eastern side of the subject site. On the south eastern side of the subject site was No. 85 Drumalbyn Road, a 1950's style block of flats, 3 storeys high above ground level carparking. 2 The land sloped up steeply on all 3 properties and the slope continued uphill to Victoria Road, where there is another line of houses above those three properties. 3 The existing house had a garage down at the road level and a swimming pool on top of the garage. Entry steps rose up beside the pool on the North Eastern side to a terrace at pool level. The ground floor living areas of the house were at that level. On the next floor up were three bedrooms and bathrooms and on the flat roof above that level, there was another room reached by a spiral stair in a glass lobby from the second storey. 4 The proposal was to put two bedrooms, two bathrooms, two dressing rooms and two terraces with a much larger footprint than the existing room on the roof. The spiral stair was to be deleted and a new formal staircase up to the roof level was to be built in an existing garden area between the house and the laundry. A new laundry was to be incorporated. 5 The issues were: 1. The proposal was unsatisfactory in terms of cl. 8(5) of the Woollahra Local Environment Plan 1995 (the "WLEP") as it in inconsistent with objective (a) of the Residential 2(a) zone, which requires the maintenance of the amenity of the local area. In this regard the proposal will adversely affect the amenity of the adjoining property to the south-east (85 Drumalbyn Road) in relation to loss of views and loss of privacy and will adversely affect the amenity of the adjoining property to the north-west (83A Drumalbyn Road) in relation to the excessive visual bulk and scale of the proposal. The proposal also exceeds the floor space ratio control of 0.55:1 having a floor space of 0.62:1. 2. The proposed addition would extend to within a distance of 3.2 m from the south-west boundary, which is less than the minimum requirements of 3.2 – 4.9 m under Part 5.2.3 of the Council's Residential Development Control Plan 1999. The non-complying area of the addition would be highly visible from the adjoining property to the north-west at 83A Drumalbyn Road and will adversely affect the amenity of the property having regard to excessive bulk and scale. 3. There would be an unacceptable loss of views to 85 Drumalbyn Road and adverse privacy impacts to neighbouring properties. 4. Matters raised in submissions to the Council which include submissions from 85 Drumalbyn Road, 83A Drumalbyn Road and a petition from the owners of units 1 – 9 in 85 Drumalbyn Road which raised concerns about: · Loss of views · Loss of privacy · Overshadowing · Inadequate setback · Excessive floor space ratio 6 The on site hearing was attended by the following for the Respondent; § Mr Michael Connell, solicitor (Michell Sillar) § Mr Reg A Wickers, 9 / 85 Drumalbyn Road § Mr Steven Rares & Ms Madelein Rares, 83A Drumalbyn Road § Mr Jim Lukas, Council's town planner § Mr Lawrence Rayner, Owner of No. 85 Drumalbyn Road § Mr Richard Anthony Sweeney, 4/85 Drumalbyn Road 7 The on site hearing was attended by the following for the Applicant; · Ms Mary-Lynne Taylor, solicitor (Norman Waterhouse incorporating Taylor & Kelso) · Mr Norman Waterhouse, (Norman Waterhouse incorporating Taylor & Kelso) · Mr Michael Eugene Neustein, architect/urban planning expert · Mr Peter Lancaster (Ostor No. 14 P/L), Applicants Representative 8 The issues were summarised as: · Loss of views to No. 85 Drumalbyn Road · Loss of privacy · Bulk and scale 9 The applicant put that there had been three development applications for extensions to this house. The first in 2002 was refused by Council for similar reasons to this one, the third development application was approved by Council in 2003 but the applicant had decided it did not want that solution and this appeal was on the second development application No. 02/899. 10 By the end of the hearing the applicant had suggested additional conditions that resolved the anxiety that were held by the owners of No. 83A in regard to privacy to a reasonable extent given proximity of houses and yards in a suburban situation. In regard to shadows it was shown that at the relevant times mid winter under the statute and controls there is no shadow on No. 83A from the proposal. In fact no shadows from equinox to equinox. It was only in summer that some early morning shadow would occur prior to 9 am and that was acceptable under Council's controls. The concern of No. 83A of loss of sunlight was somewhat reduced by the proposal being of light coloured finishes facing No. 83A (the existing house was all white in any case). The remaining concern was the bulk of the new rooms on the roof as seen from below through the glass roof of the kitchen of No. 83A. 11 The question of bulk flowed through most of the anxieties and the actual impacts of the objectors and the Council's evidence. The applicable floor space ratio (FSR) was 0.55:1 and the house would be about 50 sq m bigger than that, most of it on the roof level. The additions being mostly at the roof level came into the view of all the apartments in No. 85 Drumalbyn because all the units faced the north east to obtain the favourable solar access and views to the harbour. Although some trees on the subject site and No. 85 obscured the view to some extent, the objectors said the trees were deciduous and gave full views at various times of the year as well as filtered views at the time of the view. 12 There were concerns about loss of privacy and potential noise from the proposed terraces disturbing the quiet amenity of the apartments but the most important issue was view loss. 13 Whilst most of the apartment occupants and the owner had objected to the proposal they could not attend the hearing due to work commitments. The owner and Mr Wickers and Mr Sweeney spoke and had keys to the apartments that were viewed. 14 From the evidence and the on-site inspection it was shown that Units 2, 3 and 6 were those affected, Unit 2 being the most affected. The applicants' expert suggested some conditions to change the north east wall of the roof extension to reduce the view loss and the respondent's expert suggested more changes. But the two experts could not agree on a solution. These alternative solutions were demonstrated on the roof top by a template frame set up to show the eastern corner of the roof top extension proposal and the corner of the other extension that the Council had already approved. During the demonstration the Court stood on the roof of the subject house at the rear on the same line of view as shown in Exhibit 8 photo taken from Unit 3's balcony and on the line of view from Unit 2's balcony. 15 The Court came to the conclusion that Mr Lukas's estimate of harbour view loss to Unit 2 of 66 to 75% was about correct. The applicant experts suggested changes would reduce harbour view loss to Units 3 and 6 a little, but for instance Unit 6 which was one floor up from Units 2 and 3 would see over the roof of the proposal to see the harbour from a point about between Nielson Park and Mosman, but would loose all the closer and wider expanses of water at Rose Bay. Unit 3 would lose at least 50% of its view of water more or less being west of the line between Nielson Park and the subject site. Unit 2 would lose nearly all of its water view except the very southern end of Rose Bay. 16 Bearing in mind the Council Statute cl. 2(2)(h)(iv) and 8(5) and the Zone 2(a) Residential Objective (a) and the Residential Control Plan's view sharing objective O2 and the performance requirements P5 and P6, and applying the principals in Tenacity Consulting v Warringah and CSA Architects P/L v Woollahra, the loss of views to those three dwellings, Unit 2 especially exceeds any reasonable view loss even though that view is across an adjoining property. One of the reasons for the view loss must be the position of the FSR exceedance. As Mr Lukas says cl 5.2 of the Residential Development Control Plan on Building Size and Location in which the FSR control is found states Objective O2 as "to ensure size and location of buildings allow for the sharing of views and preserve privacy and sunlight access to neighbouring residents". In this case the view loss to several apartments in No. 85 Drumalbyn Road is fatal. One could make the observation the 2003 approval by Council of another design on the same house also exceeds the FSR but placed the extension in a position that achieved much less impact. 17 The Orders of the Court are as follows: 1. The appeal is dismissed. 2. The Exhibits are returned to the parties except Exhibits A and 3, 6 and 8. K G Hoffman Commissioner of the Court Nmc/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.