Land and Environment Court of New South Wales CITATION : Building Code Certifications Pty Ltd v Hornsby Shire Council [2008] NSWLEC 1382 APPLICANT Building Code Certifications Pty Ltd PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10485 of 2008 CORAM: Hussey C KEY ISSUES: Development Application :- Shed for communications facility, permissibility Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 1994 LEGISLATION CITED: Sydney Regional Environmental Plan No 20. State Environmental Planning Policy No 44. Rural Lands DCP Carparking DCP DATES OF HEARING: 19/09/2008 EX TEMPORE JUDGMENT DATE : 19 September 2008 APPLICANT Mr P. McEwen S.C. Instructed by Ms M-L Taylor of Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT Mr N. Eastman, barrister Instructed by Mr I Woodward of Storey & Gough Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 11 September 2008 10397 of 2008 William Paul Tulloch v Manly Council JUDGMENT Background 1 Mr Tulloch lodged this appeal against council's refusal of a development application for the demolition of an existing dwelling and construction of a new multi-level dwelling at 11 Barrabooka Street, Clontarf. 2 The main issues identified for the appeal can be summarised as follows: - Non-compliance with the development controls, particularly the height, FSR, number of storeys, side setbacks and amount of excavation. - Impact on views. - Amenity impacts on neighbouring properties. - Impact on vegetation. The Proposal 3 This proposal involves the demolition of the existing A-frame dwelling and detached carport. The proposed replacement dwelling initially comprised 4 levels but during the course of the appeal, it was amended to contain a maximum of 3 levels, substantially presenting as a 2-storey residence. 4 A swimming pool and deck is proposed at the lower level. The proposal also includes the removal of some vegetation, including a deformed Angophra costata. The site 5 This site is described as Lot 12, Section K in DP 2610. It is situated on the western side of Barrabooka Street, to which it has a 10.365m frontage. The area of the property is 470.4 sq m. 6 The site slopes relatively steeply and extends in a westerly direction to the unformed House Street, which adjoins Sydney Harbour National Park. 7 The existing 2/3 storey A-frame house has an elevated rear terrace. Planning Controls 8 Manly Local Environmental Plan 1988. Under this LEP the site is within the Zone No 2 – Residential zone and the proposal is permissible with consent. The zone objectives contain a number of relevant objectives including: (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Municipality, (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment. ( h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment , and … 9 The site is also within the Foreshore Scenic Protection Area and subject to the provisions of cl 17, which provides that development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 10 Manly Development Control Plan for the Residential Zone 2007 – Amendment 1. This DCP provides the controls, considerations and requirements for developments in the residential zones. It contains a number of objectives where the following were identified as relevant: f) To protect the amenity of existing and future residents; h) To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences; i) To provide for view sharing for both existing and proposed development; j) To maximise the provision of open space for all residential development; o) To encourage a responsible development approach resulting in design of architectural merit that interprets and complements site characteristics, streetscape and the surrounding built and natural environment; q) To ensure compliance with the objective of each standard; ... 11 The design considerations require the development to respond to the slope of the site and include limitations on the amount of excavation. Part 3 contains the development controls for the various sub-zones. It states that previous approvals do not create a precedent for an application for a similar form of development. 12 The subject site is within sub-zone 7, where the following controls apply: o Maximum FSR, cl 3.4.2 allows variation where the objectives are met; 0.40:1, o Maximum wall height depending on slope; 7.9m o Maximum number of storeys 2. 13 Sydney Harbour Foreshores and Waterways Area – DCP. This DCP applies because the site is within a Scenic Foreshore Protection Area. It identifies various landscape character areas and the site is within 'Character Type 6'. Built form guidelines are included for assessment of development proposals. The Evidence 14 Detailed evidence for council was presented by Mr K Nash, a consulting town planner. He did not support the initial proposal on a number of grounds, which he considers contribute to the overdevelopment of the site. A number of written objections from neighbours were made and these have been considered together with the oral objections. These objections mainly concern non-compliances with the controls, overdevelopment of the site, loss of privacy, impact on views and vegetation. 15 Following consideration of these objections Mr Tulloch responded with a number of amendments to the proposal. These include the lowering of the roofline, deletion of undercroft areas and reduction in the level of the excavation with consequential reduced floor areas on the ground and lower ground floor levels. However, Mr Nash still considers the amended proposal represents an overdevelopment of the site. Accordingly, I deal with the disputed controls on the following basis. FSR 16 The amendments have resulted in the dwelling having a floor area of 327.1 sq m. However, after review by Mr Nash the floor area has been further reduced at the pool deck level and with the elimination of the blade walls and reduction at bedroom 4. The resulting gross floor area is in the order of 282 sq m, which complies with the maximum allowable of 300 sq m according to cl 3.4.2(b). But he still does not consider the proposal adequately satisfies the associated objectives. 17 My reference then to these objectives shows that the scale of the development does not obscure important landscape features and that it minimises disruption to views. In my assessment, it marginally improves views of the land/water interface on the western side of Middle Harbour and this is partially attributable to the demolition of the A-frame and reduction in the height of the sloping roofline. 18 Next, I am satisfied the development is consistent with the existing and desired character of the neighbourhood as it has acceptable streetscape impacts and is consistent with the scale of neighbouring properties. Whilst it has limited impact on the solar access of the adjoining property (No 9), I do not consider this sufficient to reject the application because most of the effected rooms in this dwelling have alternate windows and outlooks. 19 I am satisfied the complying floor space then satisfies the control objectives. Excavation 20 The initial proposal involved extensive excavation in the order of 3m, which then allowed additional floor space. This exceeded the current maximum limit of 1m. Mr Tulloch submitted that the additional excavation should be allowed because it complied with the 3 m limit allowed in the previous DCP. 21 Insofar as one of the critical objectives is to 'limit excavation', I am satisfied the amended proposal substantially achieves this objective. Whilst there is a non-compliance near bedroom 4, the further restrictions agreed by Mr Tulloch are reasonable and acceptable in my assessment, considering the sloping topography of the site. Conditions of consent can cover the sub-surface drainage impacts. Therefore I do not consider the application should be refused on these grounds. Wall height and building height 22 The proposal complies with the wall height control for this sloping site. However, the overall design still results in the sloping roofline being too high according to Mr Nash. The main area of concern is the western elevation gutter line, which affects the viewing opportunities from properties on the eastern side of the street, particularly No 2. 23 The proposed gutter level is RL 58.4. After further examination, Mr Nash agreed that a reasonable level would be 58.2, as stated in council's draft conditions. Having considered the competing evidence it seems to me there are reasonable opportunities to achieve this level, by reductions in the room ceiling heights, or the structural detailing. The proposed beams in the living room with depths of approximately 900mm seem excessive in the circumstances. This confirmed by Mr Wong's (certified engineer) opinion. 24 In considering this matter, I note that the overall height demonstrates comfortable compliance with the height envelope. However, I am satisfied the building height should be reduced to a maximum RL of 58.2m along the western gutter level. This represents a reasonable balance between the competing interests of internal amenity and view sharing. Number of storeys 25 Clause 3.5.4 provides that buildings in this sub-zone shall not exceed 2 storeys unless specific physical site constraints warrant voiding this requirement. Insofar as Mr Nash expressed concerns about the building's western elevation presentation, I am satisfied the degree of non-compliance in the vicinity of bedroom 4, is minimal following the further reduction in the area of its en-suite. This consequently reduces the amount of excavation, so the dwelling presents substantially as 2 storeys. 26 Mr Nash says the street elevation is acceptable and reference to the elevation drawings, particularly the western elevation confirms the compatibility of the building envelope with the adjoining dwellings. I am therefore satisfied the amended application reasonably satisfies the number of storeys control. Side boundary setbacks 27 The proposed dwelling is required to demonstrate reasonable compliance with the setback controls in section 3.6 of the DCP. The relevant associated objectives in this matter are: a) To maintain and enhance the existing streetscape. c) To provide equitable access to light and sunshine. e) To facilitate view sharing. g) To control the nature of development adjoining open space lands and national parks so as to not unduly detract from the nature of those lands and to satisfy the provisions of SEPP 19 – Urban Bushland. h) To maintain adequate space between buildings to limit impacts on views and vistas from private and public places; and i) To provide for bushfire asset protection zones. 28 Considering the allowances for the sloping site, the setbacks are: Proposed Required Ground/Upper Northern boundary 920mm 1100-2470mm Southern boundary 935mm 1100-2600mm 29 The proposal incorporates the required setbacks at the upper level and the non-compliance at the ground level is 180 mm (north side) and 165 mm (south side). Mr Nash's main objection to these non-compliances was the impact on views, streetscape and restriction on side landscaping. 30 Taking into account the slope of the land away from the street and the proposed front area landscaping, I do not consider the additional setback of approximately 180 mm at ground level will materially affect the streetscape or landscaping opportunities. From the evidence presented, any side landscaping would probably be restricted to low planting in order to maintain limited water views. 31 The more critical setback in my assessment is that at the upper level because the building at this level does impact on views. The main property impacted is No 2, which has oblique views along the southern side and enhanced views along the northern boundary and over the roofline, as a result of the removal of the A-frame. In this regard, I also note that a pitched roof some 3m above the wall height could be allowed, which would be more restrictive on views. 32 Under these circumstances, I am satisfied the non-complying side setbacks at ground level are relatively minor, but in any case the associated objectives are reasonably achieved and the application does not warrant refusal on this basis. View impacts 33 The DCP incorporates the LEC view sharing planning principle. Applying the principle in the subject matter, my findings are: - The main view impacts are on No 2 Barrabooka Street, and to a lesser extent, neighbouring dwellings. - The view is an attractive one to part of Middle Harbour. It seems to me the primary view over the new roofline will be improved because there will be continuation of the land-water interface on the Mosman side. This is currently not available due to the A-frame structure. With the removal and replacement of Tree 7, the view corridor along the northern side will be improved. As the view along the southern side is at an oblique angle, limited water views are retained. - I consider there is an overall improvement in water view opportunities from No 2, although from parts of the living room there is some diminution. - The amended building envelope presentation to the street, which affects the views, shows comfortable compliance with the current controls and I consider this design represents a reasonable balance between view impacts on neighbouring properties and internal amenity. Landscaping and open space. 34 The main landscape issue concerns the impact on Tree 7 Sydney Red Gum (Angophora costata). This tree is located towards the rear of the existing dwelling and adjacent to the northern boundary. The proposal is to remove it because it is too close to the building and pool. Mr Nash prefers the tree to remain because of its landscaping contribution in screening built form from the national park and the harbour. 35 In support of the tree removal, Mr Tulloch provided an arborist report from Mr A Scales of "Naturally Trees". He says that: o While the tree is in good health, it is deformed and the structure is deformed by poor pruning techniques, trunk wounding and associated swelling. At the wound, he says it is highly probable there is decay. o The tree is likely to be adversely impacted upon by building works in proximity to its root system. o The tree has a 'short' SULE, with a remaining life span of 5 – 15 years. o He supports the removal of the tree on the basis of its replacement with 2 mature Red Gums of 7.8m height and 3.2m width, which will provide instant screening to the development and be suitable for long term retention. 36 The council also provided a statement from its tree officer, who says this tree is in reasonable condition and with some pruning and deadwood removal could see it continue to grow. 37 From my observations at the view, I am satisfied the tree is significantly deformed and at risk with any building works. Considering its condition and limited screening contribution, I am satisfied a preferable longer term, environmental outcome is achieved with the removal and the 2 mature tree replacement and maintenance proposal. Foreshore and Waterways Planning and Development Advisory Committee . 38 After consideration of the earlier design, the committee expressed concerns about the box like shape of the building, extensive use of reflective materials and external colour finishes. I am now satisfied the amended proposal with its complying upper level setbacks responds satisfactorily to the site and its narrow dimensions. Also, the conditions restrict the reflective materials and colours to recessive tones to be approved by council. Conclusion 39 Having considered the evidence, the submissions and undertaken a view, I am satisfied this amended proposal reasonably satisfies the controls to merit conditional consent. 40 It is apparent that the existing A-frame represents an obvious under-development of this attractive site, relative to the current control opportunities. In my assessment, the amended proposal responds to the sloping site and now provides an acceptable building form that does not degrade the amenity of surrounding residents or the existing quality of the environment. 41 This building form importantly contains complying upper level side setbacks and a sloping roofline that marginally improves water views from properties on the eastern side of the street. Accordingly, I am satisfied the proposal demonstrates reasonable compliance with the view impact controls. 42 Taking into account the amendments that have reduced the scale of the building and consequential visual impacts of the proposal, together with the restricted building materials and replacement mature landscaping, I am also satisfied the proposal does not have a detrimental effect on the Foreshore Scenic Protection Area or Sydney National Park. Court Orders 1 The appeal is upheld. 2 Development consent is granted to DA No 373/06 for the demolition of an existing dwelling and carport and construction of a new dwelling house and swimming pool at 11 Barrabooka Street Clontarf subject to the conditions in Annexure A. 3 The exhibits may be returned except E, H 18 and 19. ___________________ 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.