Gergely & Pinter Architects Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1356

Land and Environment Court of New South Wales

CITATION : Gergely & Pinter Architects Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1356

APPLICANT Gergely & Pinter Architects Pty Ltd PARTIES : RESONDENT Woollahra Municipal Council

FILE NUMBER(S) : 10833 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :- Height

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995

DATES OF HEARING: 16 December 2010

DATE OF JUDGMENT: 24 December 2010

APPLICANT Mr G Farland SOLICITOR Lander & Co. LEGAL REPRESENTATIVES:

REPONDENT Mr N Howie SOLICITOR Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Morris C

24 December 2010

10833 of 2010 Gergely & Pinter Architects v Woollahra Council

JUDGMENT 1 Commissioner: This is a determination of proceedings pursuant to the provision of s34(4)(b)(ii) of the Land and Environment Court Act 1979. The appeal is made against the refusal of Development Application No. 624/2009 by Woollahra Council (the council). The application proposed the demolition of an existing two-storey dwelling, pool, outbuildings and retaining walls and the construction of a new three-storey dwelling, pool, ancillary building and retaining walls. 2 The proceedings commenced as a s34 conciliation conference where the parties addressed the matters which were in contention and agreed on a form that the development could take that would satisfactorily address those contention. The parties agreed that I determine the application on the basis of what had occurred at the conciliation conference. The site and its context 3 The land to which the application relates is known as Nos. 73-75 Wolseley Road, Point Piper (the site) and comprises Lot 2 in DP 792955. The site is located on the higher, eastern side of Wolseley Road and has a frontage of 19m which widens towards its rear to approximately 25m. Site area is 1112.4sqm and a right-of-way off Wentworth Street provides the current primary vehicular access. 4 The site is elevated above Wolseley Road with the primary open space/ground level of the existing dwelling approximately 12m above footpath level. It has extensive views to Sydney Harbour. A sandstone retaining wall approximately 6-8m high is erected on the front property boundary, such walling being common to the adjoining properties. The stone walling at Nos. 63-69 Wolseley Road is an item of environmental heritage. A pedestrian gate and a garage door are located within the existing wall. The site continues to rise towards its rear, which is bounded by a cliff face comprising exposed bedrock, landscaping and a man-made block wall. 5 A two-storey dwelling house with a pitched roof is erected towards the rear of the site. An attached single storey garage is located to the rear of the dwelling and the entire rear yard area comprises hardstand surfaces. The front part of the site comprises a series of winding stairs and planters that open to an intermediate level that houses an in-ground pool and associated entertaining area. Above this level is a landscaped garden and lawn area that forms the primary open space for the dwelling. 6 To the north of the site is No. 77 Wolseley Road which has a tennis court adjacent to the front boundary wall on its lower level and a three storey dwelling erected across the site on a similar alignment to the projecting front portion of the existing dwelling on the site at the higher level. That adjacent dwelling also incorporates a pitched roof. 7 Adjoining the front southern boundary is No. 69 Wolseley Road which has a one and two storey dwelling house located to its frontage at a level lower than the proposed building platform for the site. No. 31 Wentworth Avenue also adjoins the site's southern boundary and this property comprises a two storey dwelling with its private open space, including a pool, adjacent to its rear. 8 Behind the site is a cliff face with dwellings, including the heritage item Uig Lodge, perched above. A number of multi-storey residential flat buildings and large dwelling houses ranging from single to three storeys are located within the vicinity of the site. Background and the proposal 9 The original development application was lodged with the council on 30 November 2009 and subsequent replacement applications, which attempted to address the concerns of the council and objectors, lodged on 17 February and 29 May 2010. The latter two applications were recommended to the council by its officers however the application was ultimately refused on 27 September 2010. It is the second replacement application that is the subject of the appeal. 10 Notification of the original application attracted five submissions. The second replacement application was renotified and two submissions were received. It is apparent to me from a review of the documents lodged with the application, the reports prepared by council officers, review of correspondence received by the objectors and hearing from one adjoining owner on site that considerable work has been done by the applicant in an attempt to address all concerns raised by those objectors. Those matters that remain relate to non-compliance with the numerical provisions of the council's controls and these are addressed later in this judgment. 11 The plans before the court comprise the rebuilding of the sandstone retaining wall including the relocation of the existing garage door and entry gate to a position in the centre of the site. Two openings that provide light to the existing stairwell would be closed. The garage door would provide access via a tunnel to be excavated into the site to a garage area that provides parking for two vehicles. This garage is located directly below the proposed dwelling and would be connected by a lift that serves all levels of the dwelling. 12 The existing pool and pool house are to be demolished and this area lowered by approximately two metres. A new pool, deck, spa, changeroom and gym are proposed to be erected in this area. This gym area would be built below the main open space area for the dwelling which would extend to within 6.5m of the front property boundary. It is intended to excavate the existing ground level between 1.2m and 1.5m to reduce the impact of the development when viewed from the roadway and the harbour. 13 The proposed dwelling would be setback 3.0m further than the existing house however, as the existing dwelling is L-shaped, the northern portion of the dwelling would extend some 3.5m forward from the existing alignment of the rear wing and the balconies a further 2m. The dwelling would be setback approximately one metre further than the building at No. 77. A 2m wide balcony is provided across the entire frontage at each level with a glazed, curved element protruding in the central upper floor level. The western or Wolseley Road elevation comprises vast glazed windows and doors to optimise the views to the harbour. 14 At the request of the adjoining owners the existing masonry boundary walls are to be retained and in places extended to address the privacy concerns of neighbours. 15 The ground floor footprint is the largest and is a regular shaped structure which is excavated into the rear of the site. The first floor is reduced, particularly at the rear to provide a more extensive rear yard area than is currently available. That yard is to be constructed at a similar level to that existing on site and will comprise greased areas and landscaping. The upper floor is setback further from the side and rear boundaries than the level below. 16 Overall height of the building including lift fits within the 9.5m height limit established by the council's controls due to the flat roof and small parapets that surround that roof. This is 800mm below the ridge height of the existing dwelling. The Planning Controls 17 The site is zoned Residential 2(a) pursuant to the provisions of the Woollahra Local Environmental Plan 1995 (the LEP). The objectives of the zone are: (a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses, (b) to allow certain non-residential development of low intensity which is compatible with the residential character and amenity of the locality, (c) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and (d) to protect the environmental attributes of the coastal and foreshore lands.