Land and Environment Court of New South Wales CITATION : Mete v Warringah Council [2008] NSWLEC 1383 APPLICANT Anthony Mete PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10385 of 2008 CORAM: Hussey C KEY ISSUES: Development Application :- Partial demolition of dwelling and construction of dwelling - amount of demolition, consistency with Desired Future Character, impacts on neighbours. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000 CASES CITED: Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 681 Den Gillespies v Warringah Council [2002} NSWLEC 224 DATES OF HEARING: 28/08/08 and 29/08/08 DATE OF JUDGMENT: 24 September 2008 APPLICANT Mr P. Clay, barrister Instructed by A. Mete of Harbord Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms J. Hewitt, solicitor of HWL Ebsworth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 24 September 2008 10385 of 2008 Anthony Mete v Warringah Council JUDGMENT Background 1 This appeal was lodged against the deemed refusal of a development application for the partial demolition of an existing garage and dwelling to enable building alterations to the dwelling at 33 Wyndora Avenue, Freshwater. 2 The issues identified for the appeal are summarised as follows: - Consistency with the desired future character, - Overdevelopment of the site, excessive height, inadequate setbacks, - Internal amenity, - Public interest, regarding amenity impacts on neighbouring properties. The site 3 The site is described as Lot 48 DP 5396 and is located on the northern side of Wyndora Ave, to which it has a10.06m frontage. The total area is 404.76 sqm. 4 There is a medium land slope in the order of 5.8m from the rear boundary to the street. Currently there is a single level dwelling located at the rear of the property with a 690mm rear setback. There is level open space area at the front of the dwelling, which connects to the excavated garage at street level. The proposal 5 The details of the proposal are: - Partial demolition of the garage and construction of a new front stair entry, new storage room with external stairs and lift access to a home office/study on the second floor, and a rumpus room on the third floor. - Excavation and construction of a 5.5m x 2m swimming pool in the front open space area, which separates the study/rumpus room from the main residence. - Partial demolition of the existing dwelling and construction of a new dwelling, comprising 2 storeys with a terrace on the upper storey adjacent to the parents retreat. - Construction of a new front fence. - Landscaping works. Planning controls 6 Warringah Local Environmental Plan 2000 (LEP). Under this LEP the site is within the F5 Curl Curl Locality and the proposal is a Category One use. The LEP requires consideration to be given to the development standards in the Locality Statement. 7 Clause 18 deals with built form controls, including compliance with the desired future character of the locality and associated development standards. Clause 20 allows discretion for non-complying developments. 8 The desired future character for this Locality F5 is that: …it will remain characterised by detached style housing in landscaped settings interspersed by existing apartment style housing and a range of complementary and compatible uses… Future development will maintain the visual pattern and predominant scale of detached style housing in the locality. The streets are to be characterised by landscape front gardens in front building setbacks which are consistent with surrounding development. The exposed natural sandstone rock outcrops throughout the locality will be maintained… 9 A maximum building height of 8.5m is prescribed and the minimum front setback is 6.5m, together with a minimum rear setback of 6m. 10 Other controls include: - State Environmental Planning Policy – Building Sustainability Index - SEPP No 55 – Remediation of Land. - Warringah Development Control Plan. The evidence 11 Detailed planning evidence was presented by Mr M Edwards, council's development assessment officer and Mr G Goodyer, the applicant's consulting town planner. A number of neighbours expressed their concerns about: - Excessive bulk and scale of the proposal. - Likelihood of adverse structural impacts on No 35 Wyndora Avenue. - Overshadowing of pool at No 31 Wyndora Avenue. - Insufficient setback and unsatisfactory overlooking opportunities from the elevated deck. Excessive bulk and scale 12 As part of the assessment of these issues, the planners referred to the planning principle dealing with the extent of demolition and alterations stated in Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 681, where the Commissioner said: 52. A development application to alter and add to a building will be taken to be that relating to a new building when more than half of the existing fabric of the building is demolished. The area of the existing external fabric is to be the surface area of all the existing external walls, the roof measured in plan and the area of the lowest habitable floor. 13 The reference to this principle arises due to the limited extent of demolition of the existing dwelling and in particular, the retention of the ground floor rooms with a 690mm setback to the northern boundary. The planners have substantially agreed with extent of the existing fabric to be retained, except for the following: - The garage; - The areas of the dwelling below the lowest floor level; - The floor area in the dwelling; - Windows and doors contained within the area of the walls to be retained. 14 On this basis, Mr Goodyer calculates 57% of the existing external fabric is retained and therefore the proposal does not constitute a new building. However Mr Edwards calculates that 43% of the existing external fabric is retained. Consequently his opinion is that the existing house should be entirely demolished and the new house setback from the rear boundary to enable complete (or near) compliance with the applicable built form controls. He also prefers that the rumpus room be removed to achieve better streetscape impact. 15 Considering the disagreement by the planners to the various elements that contribute to the calculation of whether half of the external fabric of the building, I am nevertheless satisfied that the calculations are around the critical half way level. But it seems to me that this planning principle should be considered in the locational context. In the subject case, the existing dwelling with minimum rear setback has existed for a considerable period and consequently there is an established amenity and impact relationship with its neighbours. 16 This relationship is to be substantially maintained except for 1st floor level bedroom/retreat and terrace impacts, which I deal with subsequently. The other associated issues can be covered by conditions of consent on my reading of the planner's evidence. In the circumstances of the subject matter, I do not consider strict compliance with this planning principle is necessary, instead it is a question of fact and degree in each case. Garage, study and rumpus room components 17 Insofar as Mr Edwards considers the rumpus room should be removed because of unsatisfactory streetscape impacts. In this regard, an important element is that the front elevation complies with the 6.5m setback control. 18 Then I note that both the ceiling height and building height constraints were checked for the amended plans. This was based on the review of the natural ground line from information provided by the neighbours. Reference to sheet 7 of the proposal shows that the height of this rumpus room over the garage and study still demonstrates comfortable compliance with the height control. 19 Whilst there is a non-compliance with the building height plane on the southern elevation, I consider it is minor and not of sufficient magnitude to warrant the deletion of this otherwise complying height rumpus room. 20 These house components are based on the existing garage, part of which is to be demolished. Whilst the existing garage does not comply with the specified 900mm side setback to the western boundary, nevertheless the planners agree this is acceptable in the subject case. 21 Accordingly, I rely on this agreement and my assessment is that this setback non-compliance is acceptable, particularly taking into account the proposed 750mm landscaping strip adjacent to the common boundary. This is also subject to satisfactory certification from a structural engineer of the structural adequacy of this garage substructure. On this basis I am satisfied the proposal will result in a satisfactory streetscape impact. Pool area 22 The application basically proposes to retain the internal open space area between the rumpus room and altered dwelling, although it will be more compounded with the introduction of the rumpus room. However this design necessitates raising the open space level by approximately 500mm. 23 This change in level and use of this area causes some concerns to the neighbours on the western side, particularly the loss of privacy, shadowing and loss of outlook from rooms along this common boundary. However the applicant has responded to this concern by providing a landscaping strip along this common boundary, at the existing levels. 24 It seems to me that this represents a reasonable balance in amenity impacts. It is also likely that the absence of higher building structures over this area will better maintain solar access and amenity to this part of No 35, rather than the alternative of higher building walls in much closer proximity. Open space, internal amenity 25 The built form controls require a minimum area of landscaped open space of 40% in this locality. This proposal provides 30.4%, part of which is shaded. Mr Goodyer considers this adequate in the circumstances, whilst Mr Edwards says this is a negative factor supporting the complete demolition of the existing dwelling and providing a more appropriate design. 26 In determining this issue, I have considered Mr Clay's submission that there is a cross reference to the general principles of development control in cl 63 and 64 of the LEP. Clause 63 lists the objectives for landscaped open space and by reference to these, I am satisfied the proposal demonstrates reasonable qualitative compliance because: - It will allow appropriate plantings to maintain the streetscape and enhance it with the additional planting strip along the western boundary. - It will allow appropriate plantings consistent with the area and the extensive underlying rock areas, which will enhance privacy between buildings over that which currently exists. - It will accommodate the dwelling occupant's needs of providing a small pool in the open space area. 27 Furthermore, Mr Clay submits that due regard should be given to cl 64, which specifies a minimum private open space area of 60 sq m being required for dwelling houses. The controls then require 50% of this to be capable of receiving 2 hours of sunlight on June 21. 28 From this, I am satisfied to rely on Mr Edward's opinion that the proposal incorporating the pool and associated landscaping reasonably satisfies the overall objectives of the control. Whilst it is deficient in private open by approximately 30 sq m, I do not consider it is of such significance materially affect the desired future character controls or amenity impact considerations, so as to warrant rejection. Rear terrace 29 From my assessment of the evidence, this is the most contentious component of the development. As I have stated, the alterations to the ground floor, whilst not complying with the rear boundary setbacks, nevertheless maintains the existing level of amenity. 30 The concerns arise from the main bedroom and its associated parents retreat and terrace. However the retreat has a complying setback of 6m and is acceptable in the context. The associated terrace proposed is 4m long and 3.58m wide and surrounded by a landscape planter approximately 1.2m wide, with buxus planting clipped at 1.4m above the planter wall. This results in it having a 2.42m setback from the rear boundary with No 1 Loch Street. The owner of No 1 Loch street expressed concerns about overlooking and possible noise disturbance from use of the terrace. 31 During the hearing the applicant conceded the terrace could be reduced in width to 3m to minimise disamenity. Also, a timber slat privacy screen could be erected on the southern edge of the planter on the northern edge of the terrace to height of 1.5m above floor level. Mr Goodyer supports the proposal on this basis. 32 Whilst Mr Edwards prefers the entire demolition, nevertheless he agreed a smaller terrace in the order of 1.5m – 2m wide could be allowed, in any approval. 33 In my assessment of these disparate positions, it seems reasonable to allow an appropriate terrace at No 33 to enable the occupants to take advantage of the distant water views, consistent with neighbouring properties. This is subject to its design/size restricting overlooking and its general usage. 34 Accordingly, I consider the installation of the 1.5m privacy screen on the northern elevation could provide reasonable privacy to No 1 Loch Street, bearing in mind that any overlooking opportunities are not into any main private open space areas of No. 1 and the principal view attraction is away from this property towards the water. As the terrace is designated off the parent's retreat, presumably it can be of a limited size to restrict its usage. It seems to me from variable planners opinions that a terrace of 2.5m internal width, would represent a reasonable balance in the circumstances. This would allow its usage as part of the parents retreat and restrict it from general entertaining, thereby reducing any adverse amenity impacts. 35 In these circumstances, if the proposed landscaping species was reviewed to plant and maintain suitable species to 1.5m, rather than the buxus at 1.4m, then the 1.5m privacy screen could be eliminated to address Mr Edward's concern about excessive building bulk. Conclusion 36 Having considered the evidence, the submissions and undertaken a view, my assessment is that this application merits conditional consent. During the course of the appeal a number of revisions have been made, whereby I am now satisfied the proposal demonstrates reasonable compliance with the relevant development controls. 37 The built form is of a modern style, multi-level dwelling that responds to the rocky topography and contains elements common to other new dwelling in the immediate neighbourhood. Whilst there are some numeric non-compliances, nevertheless I consider the proposal is consistent with the general development control principles and desired future character of Locality F5 to warrant consent under the provisions of cl 20 of the LEP. 38 In this regard, I note Ms Hewitt's reference to the authority in Dem Gillespies v Warringah Council [2002] NSWLEC 224, wherein His Honour Bignold J dealt with the meaning of consistent. His determination was that "consistent" could be interpreted as "capable of existing together in harmony". I am satisfied that the revised proposal, together with the conditions of consent will reasonably achieve this. Court orders 1 The appeal is upheld. 2 Development consent is granted to DA 2008/0363 for partial demolition of the dwelling and garage at 33 Wyndora Avenue, Freshwater to allow building alterations and construction of a pool subject to the conditions in Annexure A. 3 The exhibits may be returned except for 2, 3.A, B and C. _______________________ 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.