Land and Environment Court of New South Wales CITATION : Wang v Woollahra Municipal Council [2008] NSWLEC 3 APPLICANT James Wang PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10645 of 2007 CORAM: Hussey C KEY ISSUES: Section 96 Modification :- Dwelling house modification, height/bulk, excavation, setback, heritage, amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Woollahra Local Environmental Plan 1995 DATES OF HEARING: 09/11/2007, 13/11/2007 and 14/12/2007 DATE OF JUDGMENT: 10 January 2008 APPLICANT Mr J. Wang, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr R. O'Gorman-Hughes, barrister Instructed by Mr J. P. Merlino of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 10 January 2008 10645 of 2007 James Wang v Woollahra Municipal Council JUDGMENT Background. 1 This matter concerns an appeal against the refusal of a s96 application for modifications to a previous development consent allowed by the Court for the demolition of an existing dwelling and construction of a new dwelling at 9 Dunara Gardens, Point Piper. 2 The approved dwelling consists of: * Lower ground floor; pool, sauna, a wine cellar, bathroom, plant rooms and deck * Ground floor; double garage, kitchen, lounge, dining/living area, a timber deck * First floor; 4 bedrooms, study, 4 bathrooms, roof terrace * Second-floor; master bedroom with ensuite, retreat room, roof terrace * New front and side fences * Landscaping. 3 The subject site is located on the eastern side of Dunara Gardens, which is a private road off Wentworth Street. It has an irregular shape with a total area of 646.6 sq m., which is subject to a 1.5 m wide easement that is part of a right of way (ROW) along the northern boundary. This leaves an effective area of 571.6 sq m. 4 Adjacent to the subject site is No 10 Dunara Gardens, which contains a residence that is a listed heritage item 'Dunara' and this site is also subject a 1.5m wide easement. The combination of the two easements results in a ROW of 3m width to provide access to the rear properties known as 2 Dunara Gardens and 6 Wunulla Road. Proposed Modifications. 5 The s 96 application is predominantly for a new car stacker, lift, the relocation of the swimming pool and alterations and additions to the approved dwelling and fence. There are also a number of other modifications, which have been listed in the statement of facts as follows: * Alterations and additions to the approved lower ground floor to provide a new wine cellar, lift, car stacker, new laundry area and spa. The approved pool, bathroom and sauna to be relocated * Alterations to the internal layout of the ground floor and additions to the fenestration on the northern, southern and western elevations * Deletion of the approved gas fireplace located on the approved ground floor * The front portico has been increased in height by 1.5m * The proposed bi-fold garage doors are to be changed to a standard garage door * Modifications to the rear yard including alterations to stairs and deletion of a garden bed * Extension of the first floor towards the northern and front boundaries and deletion of existing front first floor balconies * Internal modifications to the layout of the first floor * Modifications to the existing fenestration at first floor level * Extension of the second floor towards the northern boundary * Modifications to the internal layout and the fenestration on the second floor of the building * New satellite dish to the rear * Modifications to the approved front fence including increases to the height of the approved pillars * Modifications to the balustrades to the front elevation and first floor level * The metal deck roof has been changed to a concrete roof * Additional balustrade to second floor * Increases to the approved roof terrace * Modification to the overall height of the building, increase of 500mm (as the applicant has stated that the ground level was incorrectly indicated of the approved plans) * Deletion of Condition 64, which states: o Building, excavation for demolition materials and plant must not be stored on any part of the right of way that services the Dunara Gardens Estate, with such storage being set back at least 2.5m of the Right of Way * Modification to Condition 17: To remove two (2) Agonis flexuosa Willow Myrtle trees located to the rear of the site and replaced with Leightons Green trees. Planning Controls. 6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Woollahra Local Environmental Plan 1995; 7 Under which the site is zoned 2 (a) Residential and the proposal is permissible with consent. The following clauses have been listed as relevant in this matter: + Clause 2 (2) (f) (iii); relating to existing significant trees, + Clause 2 (2) (ii); relating to the heritage significance and setting of heritage items, + Clause 2 (2) (h) (ii); relating to the visual impact of new development from the harbour, + Clause 2 (2) (l) (iv); relating to excavation works, + Clause 12; height, + Clause 18; excavation, + Clause 19; harbour foreshore scenic protection area, + Clause 27; heritage. Woollahra Residential Development Control Plan. (RDCP) 8 This RDCP contains the main non-statutory controls for the regulation of housing design and includes the following relevant objectives: (a ) to facilitate housing in a way that reflects desired future character objectives for precincts; (b) to retain and enhance significant trees and vegetation to conserve Woollahra's leafy character; (c) to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties;.. (i) to provide a balance between flexibility and certainty in the development assessment process. 9 Section 4.5.1 contains the description and desired future character objectives for the Point Piper precinct. It also specifies the associated building footprint and side boundary setback controls. The evidence. 10 Detailed evidence on behalf of Council was presented by: o Ms L Northridge; senior assessment officer, o Mr M D'Alessio; development/heritage officer. o Ms A Hopwood/Mr A Simpson; joint arboricultural and landscape report. 11 In addition to this, the parties agreed to the appointment of Mr B Walker as the single expert for geotechnical matters and he prepared an initial assessment, together with an addendum report. 12 A number of objections were lodged against the modifications and these include: o Mr G Farkas; 10 Dunara Gardens, o Drs P & V Papadakis; 2 Dunara Gardens, o Mr P Ryba; 3 Dunara Gardens, o Mr C Handler; 4 Dunara Gardens, o Mark Hurcum Design Practice; Objections on behalf of owners of 1 Wentworth Street. 13 In presenting his own case, Mr Wang says that the main purpose the s 96 application is to facilitate the introduction of the home lift for a multi-level house to give the residence convenience and efficiency. Whilst he acknowledges there is an increase in the basement floor space, he submits it is minimal and in any case should not be counted because it does not exceed the 1.5m above ground level development control. 14 Nevertheless, he says that the modified building design borrows some references and characters from the surrounding area, especially No 10 Dunara Gardens and No 3 Wentworth Street and is consistent with the character of the area. Also, the proposed modifications will not result in any impacts on the neighbouring properties. Whilst he relies to a considerable extent on other planning officer assessments and opinions, some of which apply to different building designs, he ultimately submits that this application merits consent. 15 Against this, Mr O'Gorman-Hughes submits that whilst there are a considerable number of detailed changes proposed, the unsatisfactory matters can be summarised into the following categories: - Adequacy of plan details, - Bulk and scale, - Heritage, - Excavation - Privacy impacts, - Fencing proposal. - · Public interest 16 Accordingly, I deal with these matters. The main issue arises from the position of the lift and car lift/stacker adjacent to the ROW, due to its height, partial (zero) setback and associated impacts on 'Dunara' and other neighbouring properties. 17 The first matter concerning the plan detailing occurs due to the standard of detailing of the modifications and an apparent misrepresentation of the ground levels on the original survey details. From the updated survey details in exhibit B, it now appears that the ground levels are 500 mm higher, which could then exacerbate compliance with the building height controls, particularly the relationship of the northern elevation with the heritage residence 'Dunara'. 18 The statement accompanying the updated survey states that "the average ground RL around building footprint was RL 31.4 AHD." However, this is of little use considering the relatively steep cross-fall on the site. At the critical location of the lift structure, which will be clearly discernible on the front, rear and northern side elevations, the ground level is shown as RL 31.28. The lift well section indicates that a total height of RL 41.3 (including 200 mm slab) is required to construct this part of the proposal. 19 Consequently, the height of this part of the structure is in the order of 10.02m above ground level, although this is not readily discernible from the s 96 modification application detailing. The relevant height control is stated in cl 12 of the LEP where the height map allows 9.5m above ground level at this property. The effect of this non-compliance with the height control is subsequently discussed. 20 Other detailing concerns were raised regarding the transition of the natural ground level to the proposed ground floor levels and the resultant need for steps and retaining walls adjacent to the southern boundary. From my consideration of the evidence concerning the plan detailing, I agree with councils' submissions that there is a lack of specificity, which I consider is a negative aspect of the application and not something that in the current circumstances that should be remedied by conditions of consent. 21 The associated bulk and scale issues mainly concern the impact of the additional basement space and above ground elements associated with the lift structure, relative to the setback to neighbouring properties. In this regard, the controls in the RDCP provide guidelines for the allowable building footprint control, whose purpose is to: - limit site coverage and excavation of new buildings; - maximise on-site infiltration of stormwater; - maximise deep soil landscape areas; - maintain natural landform; - maintain subterranean water flows; - protect significant vegetation; and - minimise the likelihood of land instability due to excavation. 22 Of relevance in this matter, are the following controls: Height ; 23 Clause 12 of the LEP prescribes a maximum height of 9.5m. The objectives of the height development standard include: (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings, (d) to minimise detrimental impact on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing, (e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and special qualities of the streetscapes . 24 As I have previously noted, this modification application introduces additional building height due to the lift, adjacent to be 'effective' northern boundary of the site. It appears to me that height of this part of the structure is in the order of RL 41.3, which results in a maximum height in the order of 10m. Accordingly, this exceeds the height development standard by approximately 500 mm, whereas the existing consent complies with the standard. Ms Northridge does not consider it reasonable or appropriate to allow this non-compliance with the maximum height development standard, "especially given the proximity of the heritage item at No 10 Dunara Gardens and as the non-compliance with height control has never part of the SEPP 1 test." 25 In my assessment of the evidence, no compelling reason or circumstance were presented by the applicant to justify this non-compliance with the development standard, apart from his private desire to obtain greater internal convenience and efficiency. I therefore consider this a negative aspect of the proposal, particularly due to the increased height adjacent to 'Dunara' and do not consider it satisfies the objective to provide compatibility with the adjoining residential neighbourhood. Floor space ratios (FSR); 26 Cl 11 of the LEP restricts the allowable FSR to the sliding scale shown on the density map, which is 0.55:1, in this case. 27 The assessment of reasonable floor space was one of the matters considered in granting original development consent. That assessment resulted in the approval of an FSR of 1.07:1, taking into account the allowance for the basement area. According to Ms Northridge's calculations, the proposal would now result in an increase in the FSR to approximately 1.34:1, which she considers unacceptable because it: * is excessive in these circumstances resulting in an over-development of the site, * necessitates an unreasonable level of excavation primarily along the northern side of the property, * is incompatible with the general pattern of development in the immediate area and inconsistent with the desired future character of the Point Piper precinct. 28 Against this, Mr Wang submits that the additional floor space is minimal and substantially contained within the basement area, where it is predominantly 1.5m below ground level. Therefore, he says it should not be counted as floor area, in accordance with the definition for gross floor area. Insofar as there are differing interpretations on the basement area to be included, nevertheless I am satisfied that on this sloping allotment, a substantial part of the basement area adjacent to the southern elevation is 1.5m above ground level and should therefore be included in the gross floor area. Whilst this area is difficult to accurately calculate, it will result in an increase in the FSR to approximately 1.2:1., clearly exceeding the maximum 0.55:1 development control. 29 The applicant ultimately submits that as the proposed modification works are contained within the approved building footprint and there are no material environmental effects on the adjoining properties, then the objectives are achieved and the lower ground levels can be permitted without adding bulk and scale to the building. 30 However, I give diminished weight to this submission that the absence of environmental effects justifies this significant departure from the numeric controls. Instead, I am inclined to give more weight to Ms Northridge's opinion that this level of floor space is excessive and not consistent with the development controls, which have been adopted to achieve the stated desired future character of this area. 31 Also of importance in my opinion, are the following RCDP provisions: To achieve the maximum permissible floor space ratio a development must satisfy all relevant controls applicable to the land. It is intended that the gross floor area for a building or buildings resulting from the floor space ratio specified in Woollahra LEP 1995 and in this RDCP be contained within the building volume created by the maximum building height in metres for building specified in Woollahra LEP 1995 and the controls for building footprint, building height in storeys, and front, side and rear setback specified in this RDCP. 32 The modification application proposes a significant increase (over 100%) in the permitted FSR, which when considered with the other development control non-compliances, contributes to the over-development of the proposal, in my assessment. Side boundary setbacks; 31 According to the RDCP, the purpose of the setback controls includes to: * relate new development to existing boundary lines along frontage; * protect visual and aural privacy of residents in adjoining buildings; * avoid an unreasonable sense of enclosure,… 33 The stated objective in 5.2.3 is: To ensure the form and scale of development is not excessive and maintains the continuity of building forms and front setbacks in the street. 34 Section C 5.2.5 prescribes development to have a minimum side boundary setback of 1.5m. Also, At any point where the lot which exceeds 12.0m, the side setback increased on a pro-rata basis by 0.5m for each metre or part thereof the building height adjacent to the boundary exceeds 3.0m. Where the lot width is 12.0m or less, the side setback this increased on a pro-rata basis by 0.5m tall each metre or part thereof the building height adjacent to the boundary exceeds 6.5m. 35 Ms Northridge says that the proposed s 96 application results in a non-complying development, compared to the approved development (with stepped setbacks at the upper levels), which complied with the minimum northern boundary setback. She does not support the proposal because in her opinion, these non-compliances do not provide sufficient separation to allow for the maintenance of visual and aural privacy to the residents of 'Dunara'. 36 Furthermore, she says that: "The reduction to the northern boundary setbacks results in a wall that is over 9.0 metres in height right up to the edge of the right of away. The deletion of the articulation of this wall significantly adds to the bulk and scale of the approved building and encroaches into the visual curtilege of the heritage item…" 37 Insofar as, the approved dwelling has a stepped set back from the edge of the right of way, in the manner compared to "wedding cake tiering", Mr Wang says that due allowance should be given to the sites frontage width of 12.58m, which does not require any setback on the first floor. 38 It seems to me that the side boundary setback controls are one of the important elements in determining the allowable building envelope. These controls provide for additional setbacks on the upper level of dwellings, to which this proposal does not comply due to the position of the lift and associated building elements. I am satisfied that the original consent represents an appropriate balance in the compliance with these setback controls, and that the proposed non-compliance in the current application does not merit consent. Excavation ; 37 In conjunction with the building footprint controls, the following site excavation guidelines provide: C 5.2.15 The building footprint is designed to minimise cut and fill. C 5.2.16 The outer edge of excavation, piling and all subsurface wall shall not be less than 1.5m from a front, side or rear boundary. C 5. 2 .17 To minimise cut and fill on sloping sites and to encourage good quality internal environments, any habitable room of a dwelling must have at least one external wall fully the above existing ground level. 39 The assessment of this issue involves firstly the extent of the excavation and secondly the effects of allowing such excavation. 40 Ms Northridge estimated that the lower ground floor is to be increased by 95.44 sq m., resulting in an additional volume of excavation in the order of 280 cu m. She does not consider this consistent with provisions of C 5.2.15 and says that it is excessive and inconsistent with the desired future character of the Point Piper precinct. Also, that this would require an additional 28 truck movements to remove the excavated material, over and above the 46 truck movement required to remove the approved excavation material from the site, resulting in considerable disamenity to the neighbourhood. 41 She also expresses concern that the excavation work will extend to within 1.5m of the northern boundary (which is located in the centre of the existing right of way) within 1.3m of southern side boundary and will be within 5m from 'Dunara'. As the approved basement excavation is 15m from 'Dunara', Ms Northridge considers that the proposed additional excavation represents an unreasonable and unnecessary risk to the stability and significance of this heritage item, particularly given the extent, volume and location of the additional excavation works. 42 The feasibility assessment of the proposed excavation was undertaken by Mr B Walker. He stated that the main geotechnical engineering issue is the proximity of the proposed lower ground floor level excavation to the heritage item 'Dunara' and its associated brick "boundary" wall, and the ROW to properties to the east. He says that "if the retention system is not appropriately designed and constructed, then there is a possibility that ground movements could affect the heritage item at No 10". 43 Based on his assessment of the proposal and site conditions, Mr Walker says that piles can be embedded along the ROW and by using the "top down construction" method, acceptable resistance against wall movements should be achievable. However, his support for the additional excavation is qualified by the need for additional subsurface investigation being undertaken prior to the commencement of pile wall construction and the need to impose stringent conditions for the construction works. 44 Additionally, he acknowledges that there is a possibility of sub surface ground movement, which could affect 'Dunara'. Accordingly he says that "it may be appropriate to have a "sinking fund" provided by the applicant as a bond against such a contingency." However, this approach is not considered appropriate by the Court. 45 In response to the objections expressed on behalf of the owners of 1 Wentworth Street, concerning possible instability and impact on the masonry fence adjacent to the southern boundary, Mr Walker provided a further addendum report. As the amended location of the pool will require additional excavation, he says that is likely additional pile penetration for stability will be required along the southern elevation wall of the dwelling. Also, that in view of the proximity of this wall to the common boundary with 1 Wentworth Street, "the design of the wall and floor slab system should be based on assuming no lateral resistance is offered above ground level on No 1." 46 Mr Walker said that further survey details along this southern boundary would be required to better define the location of existing walls and associated ground levels to avoid geotechnical problems. He suggested that the respective parties confer and negotiate satisfactory stabilisation arrangements along this boundary, so that the proposed steps, footpath and landscaping can be satisfactorily implemented. 47 Having considered this evidence, I accept Mr Walker's opinion that it is possible to undertake the proposed additional excavation, but that it introduces an additional degree of risk to adjoining properties and requires compliance with stringent conditions of consent controlling the actual construction works. 48 Accordingly, the outstanding question is whether this additional excavation should be allowed in these circumstances, when the development controls clearly prescribe the minimisation of cut and fill. In my assessment, this proposal maximises excavation for the basement, which increases stability risk to adjoining properties of therefore I do not consider it adequately satisfies the development controls to minimise cut and fill. Heritage; 49 The relevant heritage conservation provisions are found in the aims and objectives listed in Part 1 cl 2(g) and Part 4 cl 27 of the LEP and are as follows: 2(g)(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas, (v) to provide for the detailed control of development associated with or in proximity to heritage items and heritage conservation areas… 27 Development in the vicinity of heritage items, heritage item group, heritage conservation areas, archaeological sites or potential archaeological sites. The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage item group, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development of land in its vicinity. 50 The other relevant controls for front fencing are contained in the RDCP and provides: Objective 5.4.1; To ensure fences and walls improve amenity for existing and new residents and contribute positively to streetscape and adjacent buildings. Performance criteria 4.5.7.6 states: Front fences to a maximum height of 1.5 m may be permitted where 50 per cent of the fence is transparent. Performance criteria C5.4.2 states: The design and materials of front fences and walls are compatible with those fences and walls to contribute positively to the streetscape and with the heritage context of the streetscape (in the case of heritage conservation areas) and satisfy the desired future character objectives for the locality described in Part 4. 51 The heritage issue concerns primarily the impact of the building modifications and secondly the amended front fence proposals on 'Dunara'. These issues were addressed by Mr M D'Alesio, councils heritage officer. From his assessment, he does not support the modification because: "26. The proposed modified northern boundary setback and height located in close proximity and in line with the front setback of the item "Dunara" will be more visible from the significant approaching views of the item and will appear more dominant than that which was originally approved. 27. The proposed noncompliant modified northern boundary setback and height together with increases in the front fencing will unreasonably impact on the setting of "Dunara"; these modifications will result in a more visually dominant development than was originally approved. These modifications will adversely impact on the experience of seeing the item. 52 Accordingly, it is obvious that this application introduces additional building height and bulk adjacent to the northern boundary of the site, the proximity of which is not sympathetic to and detracts from 'Dunara', in my opinion. 53 The proposed modifications to the front fence involve raising the height of the gate pillars to approximately 2.1m, from the existing approved 1.8m height. The applicant contends that this is necessary to suit the sloping site conditions and also to provide a satisfactory level of security for the new property. He are also says that this is consistent with other boundary fencing in the immediate neighbourhood. 54 However, Mr D'Alesio says that: "29. The proposed modification sought to the height of the masonry front pillars and fencing to the front boundary will not contribute positively to, but adversely impact on, the setting of "Dunara"… 32. Views of "Dunara" exist over and through the approved front fencing to the subject site and form part of the principal approach views of "Dunara" from the Dunara Gardens roadway. 33. Additional increases to the approved height of the masonry front pillars and fencing are inconsistent with a more sympathetic maintenance of principal approach views of "Dunara". 55 Having considered the evidence on this matter, I note that in the original assessment of the merits of the proposal, discretion was exercised to allow the front fence pillars to be 1.8m and therefore exceed the performance criteria by some 300mm. This assessment took account of the existing site conditions and the prevailing controls, which do not seek to replicate other higher fences in this immediate neighbourhood. Therefore in the absence of any compelling evidence on significant changes of circumstances, I rely on the evidence of Mr A'Alesio, that this modification to the front fence does not merit consent. Privacy; 56 Part 5.8 of the RDCP deals with the controls for acoustic and visual privacy as follows: Objective 5.8.1; To ensure adequate acoustic and visual privacy for occupants and neighbours. Clause 5.8.5; Habitable room windows with a direct sightline to the habitable room windows in an adjacent dwelling within 9 m: - offset from the edge of one window to the edge of the other by distance sufficient to limit the use into the adjacent windows; or - have sill heights of 1.7m above floor level; or - have fixed obscure glazing in any part of the window below 1.7m above floor level. Clause 5.8.7; Windows and balconies of an upper level dwelling designed to prevent overlooking of the private open space of a lower level dwelling directly below and within the same development. 57 The application proposes a number of modifications, which are not supported by Ms Northridge on the following basis: "43. The following changes to the approved balconies/roof terrace and fenestration are considered to have an adverse impact on the privacy of surrounding properties: o A new rumpus/gym window has been proposed on the southern elevation, this new window will overlook No. 1 Wentworth Street; o Floor to ceiling windows to the southern elevation of the ground floor have replaced smaller windows containing translucent glazing, which will increase overlooking to the private open space at No. 1 Wentworth Street; o The southern ground floor balcony to the rear has been increased in sized from 850mm to 1200mm, which has increased overlooking of the private open space at the southern adjoining property; o The approved lounge room window on the southern elevation was conditioned (Condition 5) to contain translucent glazing, although the function of this room has been changed to a bedroom, this window has been increased in size and does not contain translucent glazing. This allows for direct overlooking to habitable rooms at the southern adjoining property; o The proposed S96 application has not compiled with Condition 7 of the approved development as the planting area to the south of the second floor balcony has not been made non-trafficable by way of a physical barrier in a form of a balustrade of at least 1.0 metre high. This non-compliance with the Condition 7 will allow for overlooking of the private open space at the southern adjoining property; o The trafficable area of the roof terrace at second floor level could be potentially increased as the balustrade surrounding the roof terrace has been extended on the southern side. This would increase overlooking to the private open space at the southern adjoining property; o 3 additional habitable room windows to the northern elevation have been proposed, this would increase overlooking to the northern adjoining property (No. 10 Dunara); o The roof terrace on the second floor has been increased on the northern side, which will increase overlooking to the private open space at the northern adjoining property; o The S96 application does not comply with Condition No. 4 of the approved development as the northern side of the rear first floor balcony does not contain a privacy screen. In addition planting on the northern side of this balcony has been deleted. This will allow for overlooking of the private open space at the northern adjoining property; o The flat roof area located at first floor level along the southern side of the site could be made trafficable as a 1 metre high parapet wall has been proposed and could be accessed via the rear first floor balcony. This new trafficable area would result in overlooking of the southern adjoining properties; o The flat roof area located at second floor level on the north-western corner of the building could be made trafficable as a 1 metre high parapet wall has been proposed and could be accessed via full length windows/doors. This new trafficable area would result in overlooking of the northern adjoining properties; o The flat roof area located at second floor level on the south- western corner of the building could be made trafficable as a 1 metre high parapet wall appears to be proposed and could be accessed via full length windows/doors. This new trafficable area would result in overlooking of the southern adjoining properties. 44. Whilst, some of these changes to the fenestration and to the balcony arrangements would have a minor impact on the privacy of the adjoining properties, the cumulative impacts of these changes would be unacceptable." 58 As I have previously noted, the application proposes a significant number of relatively minor detailing changes, some of which alone would be acceptable. However I accept Ms Northridges opinion that the cumulative effect of these changes creates unreasonable amenity impacts on the neighbouring properties and therefore do not merit consent. Public Interest; 59 This application attracted a number of objections from neighbours, which can be summarised as follows and dealt with in the merit assessment: o adverse visual impact on the heritage item 'Dunara', o basement excavation is excessive exposing "Dunara' to unreasonable levels of risk to settlement and cracking, o inadequate setback and excessive height for the building elements adjacent to the ROW, o excessive FSR, which will result in a new dwelling being dominant rather than subservient to the heritage item, o lack of detailing in the application to enable appropriate merit assessment-particularly accuracy of ground level information, o impact on the existing trees, o loss of privacy, o concern about potential damage to boundary fence adjoining No 1 Wentworth Street, o ability and willingness of property owner to safely maintain access over the ROW during construction, considering the recent encroachment of the front gate pillar. Other Matters; 60 One of the other matters raised concerns the landscaping involving the proposed removal and replacement of 2 mature Willow Myrtle trees located on the eastern boundary of the site. Their condition is considered poor by Ms Hopwood and Mr Simpson, due to repeated lopping and they say that the trees do not contribute greatly to the amenity of the locality. However, they consider the trees provide some screening benefits and should be maintained during construction and then replaced with appropriate screening species. 61 Accordingly, it seems reasonable to impose conditions to achieve this. 62 Another matter that arose during the hearing concerns possible impacts along the southern boundary due to excavation work and the need to stabilize and retain the plantings and footpath along this boundary. In view of the inaccurate levels originally provided, I consider appropriate conditions as suggested by Mr Walker be imposed on the consent. 63 With regard to the proposed satellite dish being of excessive size and exposed location, I accept Ms Northridge's opinion that conditions of consent can be imposed requiring its relocation so as to be less visual and intrusive from surrounding properties. 64 Condition 64 concerning the possible usage and restrictions on the ROW during construction was discussed and I am satisfied this condition can be modified to: 64A Building, excavation for demolition materials and plant must not be stored, nor any part of the building erected, on any part of the right of way that services the Dunara Gardens Estate. Conclusions 65 Having considered the evidence, the submissions and undertaken a view, I have determined this s 96 application on the following basis. Firstly, I am satisfied that the application refers to the same development, although it proposes a significant number of modifications, which result in changes to the character of the dwelling. Also, that the application has been notified and a number of objections received, the merit of which have been assessed. 66 In determining the merits, I note that the property is situated in a prominent location, within the Point Piper Precinct and adjacent to the heritage item 'Dunara'. The relevant controls prescribe various development control elements to achieve the allowable building footprint control for this precinct. 67 However, I do not consider that this overall modification application has paid sufficient regard to these controls to merit consent. The modification proposes an increase in the excavation of the basement area to allow the inclusion of additional facilities including a lift from the basement to the second floor level and this is contrary to one of the fundamental objectives to minimise cut and fill. 68 Consequently, the modified proposal would result in a significant increase in the allowable FSR (0.55:1) for the site, to approximately 1.2:1. Together with this, the overall height of the lift section exceeds the height development standard and the 'stepped' side boundary setback controls, which results in an overdevelopment of the site, creating an undesirable sense of enclosure for users of the ROW. This outcome of a significant overdevelopment of the site, is not consistent with the development controls and results in the failure of the application, in my assessment. 69 The location of the site, in the vicinity of the heritage item 'Dunara' requires consideration of the likely effect of the proposed development on the item. In my assessment, the increased bulk and height of the lift structure adjacent to the ROW has not been designed sympathetically to 'Dunara" and this will detract from the heritage significance of the item and its setting. 70 In this regard, I rely on the substantially unchallenged evidence of Mr D'Alessio opinion in refusing the modifications. This includes the various external fenestrations and particularly the enlarged front portico. 71 The opportunity for these significant modifications and the enhancement of the existing consent arises from the additional basement excavation being extended to the edge of the ROW. This results in a maximisation of excavation, which is not consistent with the development control provisions and I do not accept Mr Wang's submissions that as he considers there will be no material impact on neighbouring properties, this non-compliance should be allowed. 72 Insofar as, Mr Walker agreed that it is physically possible to undertake the additional excavation, he never the less acknowledged the likelihood of increased risk to 'Dunara' and the need for strict compliance stringent conditions of consent regarding all construction works. Under these circumstances, I am satisfied that the existing consent, which does allow some exceedance of the development controls, represents a reasonable balance in the application of the relevant development controls. 73 In the ultimate then, I am not satisfied that the substantive modifications for the additional excavation, lift construction and associated internal modifications should be allowed. However, some of the peripheral modifications such as the landscaping, satellite dish size and location and restrictions along the southern boundary can be undertaken, subject to final conditions. 74 Consequently, I intend to make the following orders. Court Orders 1 The appeal is upheld in part. 2 The s 96 modifications to DA 2003/929/2 for demolition of the existing dwelling and construction of a new dwelling at 9 Dunara Gardens, Point Piper are approved, subject to the conditions in Annexure A. 3 The exhibits may be returned except for 3 and A. ___________________ R Hussey Commissioner of the Court ljr 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.