Land and Environment Court of New South Wales CITATION : Wright v Woollahra Municipal Council [2008] NSWLEC 1457 APPLICANT Norman Wright PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10791 of 2008 CORAM: Brown C - Taylor C KEY ISSUES: Development Application :- demolition of an existing dwelling house and major alterations and additions to the remaining structure for a new dwelling - bulk/scale of third storey - front fence - view loss LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 CASES CITED: Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 29/10/08 DATE OF JUDGMENT: 30 October 2008 APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C with Taylor C 30 October 2008 10791 of 2008 Norman Wright v Woollahra Municipal Council JUDGMENT 1 COMMISSIONERS: This is an appeal against a refusal by Woollahra Municipal Council (the council) of DA 391/2008/1 for the substantial demolition of an existing dwelling house and major alterations and additions to the remaining structure for a new dwelling at 2 Marine Parade, Double Bay (the site). 2 The issues raised by the council relate to the unsuitability of the third floor, the construction of the street boundary fencing and view loss. The site 3 The site is located on a corner and has a 13.7 m frontage to Marine Parade and a 34.125 m frontage to Wiston Gardens. The total site area is 634.2 sq m. It is flat with no significant vegetation. An existing dwelling is located on the site and is currently undergoing repairs and/or renovations. 4 The surrounding area has a mix of residential dwellings and residential flat buildings. On the opposite side of Marine Parade is a large public reserve adjacent to Sydney Harbour. Relevant planning controls 5 The site is zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP 1995). Clause 2 provides aims and objectives for the plan, cl 12AA provides objectives for the maximum building height development standard and cl 12 provides for a 9.5 m maximum height as shown on the height map referred to in the clause. 6 Woollahra Residential Development Control Plan (the DCP) applies. Part 1 provides objectives for the DCP and Pt 4 provides controls for specific precincts. This part contains desired future character objectives and a range of planning controls for various precincts. The site falls within the Darling Point Precinct. Part 5 provides general controls that relevantly relate to streetscape, building size and location, setback, fences, and walls and views. 7 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies but was not relevant to the issues raised by the council. The third storey The evidence 8 Town planning evidence was provided by Mr Gary Chapman for the applicant and Mr Thomass Wong for the council. They provided a joint report that addressed the issues in dispute. The principal area of dispute related to the third storey component of the proposed dwelling. 9 Mr Wong stated that Control 4.1.18.3 of Pt 4.1 of the DCP still restricts a residential dwelling to two storeys, notwithstanding satisfaction with the 9.5 m height limit in cl 12AA of LEP 1995. In his opinion, the breach of the storey requirement will increase the apparent bulk and scale of the dwelling and create unacceptable view impacts from the residential flat building at 12 Wiston Gardens, particularly unit 7, based on the planning principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140. 10 Mr Chapman states that the proposal will not create unreasonable visual and scale impacts when viewed from Marine Parade, the foreshore reserve or Sydney Harbour, because of the relatively small floor area of the third level, the maximum height being only some 430 mm above the height of the existing dwelling on the site, and the fact that it is comparable in height with the recently renovated dwelling adjoining at 1 Marine Parade. The building is also comparable with the scale of buildings in the immediate area. Mr Chapman also states that the proposed dwelling meets the desired future character objectives in Pt 4 of the DCP and that the streetscape objectives in Pt 5.1 of the DCP are also satisfied. On the issue of view impact, Mr Chapman states that the proposal meets the view-sharing principles in Tenacity. Findings 11 Much of the discussion at the hearing centred on how the DCP should be applied. Put simply, the council placed greater emphasis on the non-compliance with the two storey limit whereas the applicant placed greater emphasis on compliance with the desired future character objectives for the precinct and compliance with the 9.5 metre height limit in LEP 1995. 12 The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83-92. Relevantly, at par 87 his Honour states: A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental planning instrument however, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning instrument. 13 His Honour further states (at par 87) the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to be given to the development control plan. These are the level of consultation with interested persons, including the affected community, any consistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making. 14 The emphasis to be given to a DCP is also addressed in Zhang v Canterbury City Council [2001] 115 LGERA 373. Spigelman CJ (at par 75) raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process, particularly if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of a DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative. 15 The Residential 2(b) zone provides for a diversity of dwelling types including medium and high-density residential development (zone objectives (a) and (b)). LEP 1995 provides limited development controls. In this case the controls are limited to a maximum 9.5 m height. Consistent with Stockland, the DCP provides further detailed planning controls. We note that there was no evidence to suggest that the DCP should be given any reduced weight because of the specific matters identified in Stockland. 16 On this basis, the principal assessment criteria for the development application are: o the 9.5 m height control in LEP 1995, o the desired future character objectives for the Darling Point Precinct in the DCP, o the specific controls for the Darling Point Precinct (including the two-storey limit) in the DCP, and o the general development controls in the DCP. 17 These assessment criteria must be considered conjunctively. There is nothing within LEP 1995 or the DCP to suggest that any one criterion should be given preference over any other criterion. If the numerical requirements are considered, the controls provide for a dwelling house with a maximum height of 9.5 m, have two storeys with the difference between the 9.5 m height and the two storey limit to be set aside as roof space. This is clearly shown on the diagram in the Control 4.1.18 of the DCP. A development of this form would in most instances satisfy the desired future character objective for the precinct. 18 We would however accept that strict compliance with the numerical controls may not always be possible given the relatively steep parts of other areas in the precinct. This is recognised in Control 4.1.18.3 where an additional basement storey (beyond the normal 2 storey requirement) may be applicable on a site with a fall of greater than 2 m. This however does not apply to the subject site because it is generally flat. 19 If the qualitative requirements are considered, the streetscape requirements in the DCP seek to achieve housing forms of a scale and character in keeping with the desired future character of the locality and to have cohesive streetscapes. This raises the issue of the character of the locality and streetscape that the proposed dwelling should be tested against. Mr Chapman's area of consideration includes a diversity of dwelling types, including single dwellings on flat sites and higher density development on steep sites. While Mr Chapman relied on a wider area for his assessment of character and streetscape we do not accept that this is the appropriate test. 20 We are satisfied that the appropriate test is against the form of development along Marine Parade. This area has a consistent single dwelling character of two storeys with pitched roofs including the recently renovated dwelling at 1 Marine Parade (which was reduced from three storeys to two storeys as part of the renovations). In our view this is the appropriate context to consider character and streetscape as it forms a succinct visual catchment, has a similar flat topography, and has a consistent form of residential development. 21 The approach adopted by the applicant may have been more appropriate in an area where there was a variety of different housing forms, and where the steep topography would dictate that strict compliance with the two-storey requirement may not be possible. 22 Consequently we find that the breach of the two-storey requirement, if considered in this context, cannot be justified in this case and that the development application should be refused for this reason. 23 For completeness we will deal with the other issues. View loss 24 The impact of the proposed building on views from unit 7, 12 Wiston Gardens, was considered from inside different rooms within the unit and with the help of high poles locating the third floor of the proposed dwelling. Taking into account the principles in Tenacity we are satisfied that view loss would not be a reason to refuse the application, putting aside the third storey issue. The third floor blocked some existing views, however other areas were opened up through the removal of the existing pitched roof. We also note that the third level is located at a greater distance from unit 7 than the existing roof form, thereby reducing the bulk of the building from this unit. 25 We also understood that a number of the existing trees at 1 Marine Parade have been removed as part of that approval, and that existing trees on the southern boundary of the site are also to be removed thereby increasing the views from unit 7, however, we have not taken these matters into account in considering the potential view loss, and the principles in Tenacity. Front fence 26 The issue relating to the front fence was addressed by the council in a condition that required the height to be maintained at 1.5 m and 50% of the fence to be provided with transparent panels. This is consistent with the requirements in Control 4.1.18 of the DCP. 27 The proposal seeks a height of 1.5 m to match the existing fence on 1 Marine Parade along the Marine Parade frontage, and generally a 1.8 metre high solid fence for the remainder of the site, including the Wiston Gardens frontage. We are satisfied that the proposed form of fencing is acceptable, largely because it is consistent with the fencing on the adjoining property at 1 Marine Parade. We note that the council did not require compliance with Control 4.1.18.1 when the alterations and additions were approved for this dwelling. 28 We also accept that the 1.8 metre high fence is appropriate for a corner site as it will provide an acceptable level of privacy for the outdoor recreation area and the dwelling from Wiston Gardens without unacceptably impacting on the streetscape. Orders 29 The orders of the Court are 1. The appeal is dismissed. 2. DA 08/0391 for alterations and additions to an existing dwelling house at 2 Marine Parade, Double Bay is refused. 3. The exhibits are returned. _________________ G T Brown Commissioner of the Court __________________ Dr M Taylor 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.