Land and Environment Court of New South Wales CITATION : CSA Architects Pty Limited v Waverley Council [2008] NSWLEC 1166 APPLICANT CSA Architects Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10088 of 2008 CORAM: Watts AC KEY ISSUES: Development Consent :- Streetscape, Views, Reasonableness given the non-compliance with FSR and setbacks. LEGISLATION CITED: Waverley Local Environmental Plan 1996, (WLEP) Waverley Development Control Plan 2006, (DCP2006) CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 18/04/2008 DATE OF JUDGMENT: 30 April 2008 APPLICANT: Ms S M Hill, solicitor SOLICITORS: Susan Hill & Associates, Lawyers Pty Limited LEGAL REPRESENTATIVES: RESPONDENT: Mr S H Patterson, solicitor SOLICITORS: Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts AC 30 April 2008 10088 of 2008 – CSA Architects Pty Limited v Waverley Council JUDGMENT 1 This involves an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a modification of development consent No L – 359 – 2001 to erect a town house development at Lot 15, DP 59124 and Lot 3, DP303643, being Nos 18 – 22 Diamond Bay Road, Vaucluse. 2 I visited the land in company with the parties on the morning of the on-site hearing. Local residents gave evidence. 3 I have concluded that the proposed modifications to Town House No 1 closest the street should not be approved except perhaps in its originally approved form or setback further from the street in a rectilinear form. 4 As a result of preliminary findings given on 18 April 2008 the applicant requested the opportunity to amend the plans to delete all reference to the proposed amendments to the plans in relation to this town house. This decision was given in chambers after the plans were amended to delete changes to the layout of Town House No 1 and provided for the reinstatement of the disabled access ramp. The land 5 The land is situated on the northern side of Diamond Bay Road near its intersection with Old South Head Road. It comprises two allotments of land that together form an 'L' shaped parcel with a frontage to Diamond Bay Road of 13.05m and a depth of 91m and an area of some 1730m2. 6 Before the partial construction of the approved building, there was a two-storey residential flat building at No 18 Diamond Bay Road, and a dwelling at No 22 Diamond Bay Road. These have since been demolished and the approved town house development is under construction. 7 Nearby there are other two-storey town houses and three-storey residential flat buildings and the streetscape is characterised by buildings built in the 1960s and 70s of varied styles. 8 Development application No DA 359/2001 was approved by the council on 29 October 2002 to erect fifteen town houses with partial basement car parking for thirty-one vehicles. 9 The council modified this consent on 28 August 2007 to permit a mix of two bedroom and three bedroom units in lieu of four town houses. At that time two new lifts were also added. Relevant planning controls 10 Under the provisions of the Waverley Local Environmental Plan 1996 (WLEP) the land is zoned Residential 2 and the proposal is permissible with consent. Waverley Development Control Plan 2006, (DCP2006) applies. The floor space ratio, (FSR) that is allowed under the DCP2006 is 0.9:1 and the original modified consent would have a FSR of 1.18:1. The modification proposal and its history 11 The modification of development consent No 359/2001 was lodged with the respondent council on 12 December 2007 to erect a changed town house development on the land. The proposed changes were: o redesign and new layout of Town House No 1 fronting Diamond Bay Road; o increase in the gross floor area, GFA on each level of the proposal; o converting the attic of Town House No 1 into a floor; o deleting the disabled access ramp and replacing it with landscaping; o widening the front entry stairs from 1m to 2.3m with the consequent shift of the car entry to the west; o internal changes to the town houses to add new laundry areas; o increase in the size of the windows to Units No 10 and 11 and increase the size of Unit No 11; o extend the entrance to Unit No 8; o add new balconies to Units No 10 and 11. 12 The modification plans were prepared by CSA Architect and were those in Exhibit B. Notification 13 The application was notified to nearby owners and occupants and the council received four objections. The council's decision 14 When the appeal was filed the council had not made its determination and as a result the applications is deemed to have been refused. The hearing 15 The appeal was filed on 1 February 2008. 16 At the hearing the Court heard evidence on behalf of the respondent council from: o Mr Arif Faruqi, North Team, Planning and Environmental Services, Waverley Council; o Mr David Sgammotta, on behalf of the owner of Unit No 3, 16 Diamond Bay Road, Ms Claudia Sgammotta; o Ms Margaret Hope, Waverley Access Committee; and o Ms Mora Main, Waverley Access Committee. 17 On behalf of the applicant evidence was given by: o Mr Anthony Betros, consultant town planner; o Mr Alex Smith, architect. The contentions 18 On 11 April 2008 the council filed a statement of contentions. The principal contested issues are: o loss of views from the first floor Unit No 3 at 16 Diamond Bay Road; o contrary to the aims set out in cl 1.3(a) of Part D2 of DCP2006 in relation to the bulk and scale of proposed Town House No 1; o negative impact on the streetscape; o deletion of the access ramp and replacement by a stair lift would be not in the public interest and contrary to Part J1 – Access for People with Disabilities of DCP2006. The evidence and findings Loss of views from the first floor Unit No 3 at 16 Diamond Bay Road 19 At the hearing Mr Sgammotta, on behalf of his sister who is the owner of No 3/16 Diamond Bay Road, stated that if the proposed modifications to Town House No 1 on the subject land, were erected, the view from Unit 3 on the first floor of the block to the west of the land would be truncated from a standing position on the balcony, or in the living room and bedroom of that unit. Despite not being able to gain access to the unit because it was rented, the parties satisfied themselves as to the likely view impacts by standing at ground level under the balcony and window and looking towards the view. Later the parties constructed view corridors on a map of the area to clarify what was observed. 20 It was accepted that some easterly water views to the south of the late Harry Seidler landmark building on Diamond Bay that are presently available from the balcony and living room neighbouring unit would be lost. The parties accepted that to a greater extent the existing water views from that unit's bedroom would be lost. Presently, from that bedroom a sliver of view to the north of the Seidler building is available and this would be truncated were the proposal permitted. Mr Sgammotta indicated that from memory, also water would be seen over the top of the Seidler building from a standing position within the unit in question. 21 Mr Faruqi supported Mr Sgammotta in his understanding of the view loss. Messrs Betros and Smith concurred with the view loss suggested by the constructed sight lines. 22 Mr Faruqi, for the council, pointed to the fact that when the consent was granted the floor space ratio (FSR) of the proposal exceeded the allowable FSR of 0.9:1. This was calculated to be around 484.4m2 of gross floor area (GFA) in excess of the allowable. This represented the floor area of at least four town houses. Also, the proposed amendments to Town House No 1 would increase the GFA of that unit. It is the views around Town House No 1 of the proposal that would be cut off if the modifications were approved and it is this part of the proposed development that would be in excess of the allowable GFA. Also, it is that part of the development that would be closer to the side boundaries than would now be permissible. It is also that part of the proposal that protrudes past the front building line of 6m from the street frontage. It is this infringing part of the proposal that would cut off the view from Unit No 3 in No 16 Diamond Bay Road. 23 In Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, Dr Roseth, Senior Commissioner considered planning principles relating to views and stated: The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the some development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 24 Under Principle 4 of Tenacity Consulting v Warringah Council I consider the proposed additions to Town House No 1 must be rejected as being 'unreasonable', and not in the public interest. 25 Under Principle 1 the views that would be affected by the proposed changes to Town House No 1 are of water over the roofs of buildings. These views could not be considered 'iconic', however as Mr Sgammotta pointed out they are important to the occupants of his sister's unit. 26 Under Principle 2 the views in question are over the front setback area of the proposed town house development not directly over the side boundary and Ms Sgammotta would anticipate these views would be provided with greater protection than others further along the side boundary. The standing views would be more easily protected than the seated views. Mr Sgammotta sought to protect the standing views. 27 Under Principle 3 the views from the living room are sought to be protected. The evidence suggests that other views are not available from the living room. It is accepted that the bedroom has views to the east over the front setback area of the subject property and other windows to the south. 28 When the original proposal was approved, the council granted concessions to the applicant by permitting decreased side setbacks and a greater FSR. The proposed amendments before the court seek an even greater concession, to the extent that the proposal would be excessive in footprint and would now be unreasonable. Under Principle 4 the proposal would result in unreasonable and unnecessary impacts in the view loss of neighbours as a result of the non-compliances with the FSR and setback requirements. If approval were granted to the present proposal the integrity of the planning system would tend to be undermined. It would also set an undesirable precedent. 29 In support of the application, Mr Betros pointed to the improvements in the street façade and to the streetscape as a result of the changes to Town House No 1. I do not disagree that the relationship of the proposal to the neighbouring buildings would be improved by the rectilinear design as now proposed. However, the positioning of the front façade closer to the front alignment, being wider and slightly higher than approved would not be setback far enough from the street to be acceptable in the streetscape. If the proposed rectilinear design of the street façade were further setback around 5m, I am satisfied that the proposal would fit in with the context better. Such a setback would also ensure that the view from the Sgammotta unit would not be further encroached upon. The applicant did not pursue the rectilinear design but instead opted to maintain Town House No 1 as originally approved. 30 The gross GFA of a complying development on the land would be 1,557m2 at 0.9:1 FSR and the proposal would have a GFA of 2,041.4m2 or a FSR of 1.18:1. The difference in GFA of 484.4m2 is roughly equivalent to the area of four town houses proposed for the land. The proposed changes would increase the discrepancy between the allowable and approved, as Town House No 1 would increase in area from 112m2 to around 134m2. This would have a detrimental impact on the views from the Sgammotta unit and is unreasonable in the circumstances. 31 Given these findings, the applicant agreed to resubmit the modification application drawings with the proposed amendments to Town House No 1 deleted. With the agreement of the council representatives, I adjourned the hearing to permit the applicant to amend the plans. The council agreed to inform the objectors of this course and invite submissions in respect of the further amended plans. Contrary to the aims set out in cl 1.3(a) of Part D2 of DCP2006 in relation to the bulk and scale of proposed Town House No 1 and negative impact on the streetscape 32 As explained above, I agree in part with this issue. I am satisfied that the proposed amendments to Town House No 1 would have a negative impact on the streetscape, primarily, because they would create a plan that would be wider and closer to the street than originally approved. Being of greater floor area and closer to the street in front of the approved building line by 1m this townhouse would tend to dominate the street. Despite being of improved architectural design (if setback further), I am satisfied the amended proposal would be out of context. Deletion of the access ramp and replacement by a stair lift would be not in the public interest and contrary to Part J1 – Access for People with Disabilities of DCP2006. 33 The proposal would come so far towards the street that there would be insufficient land area in the front to accommodate the disabled ramp that was originally proposed. The applicant seeks to obtain permission for a stair lift to replace the original ramp. This stair lift would be situated on the eastern side of the widened front stairs. 34 If the front façade were set back further there would be sufficient space available for a disabled ramp. The ramp solution, would not be operated mechanically, and this is an advantage to users; would be less stigmatising for the user and easier to maintain in the harsh coastal environment. 35 With the plans amended to delete the proposed changes to Town House No 1 the original access ramp can be maintained. 36 With the plans amended and for the above reasons, the appeal is upheld. Conditions 37 The conditions are those formulated by the council. Consent orders 38 The consent orders are: 1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld. 2. The modification of development consent No L/359/2001 lodged with the respondent council on 12 December 2007 and as amended by 22 April 2008, to modify a consent to erect a town house development at Lot 15, DP 59124 and Lot 3, DP303643, being Nos 18 – 22 Diamond Bay Road, Vaucluse, is approved subject to Conditions No 1 to in Annexure A. 3. The exhibits except for Exhibits B, F, G and H are returned. ____________________ S J Watts Acting Commissioner of the Court sw 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.