Land and Environment Court of New South Wales CITATION : Jones & Anor v Woollahra Municipal Council [2007] NSWLEC 409 APPLICANT Paul Jones and Carolyn Jones PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10202 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- Building alterations/first floor extension - impact on view. LEGISLATION CITED: Environmental Protection and Assessment Act 1979 Woollahra Local Environment Plan 1995 CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 DATES OF HEARING: 2 July 2007 EX TEMPORE JUDGMENT DATE : 2 July 2007 Applicant Mr. M. McMahon, solicitor of M. E. McMahon & Associates LEGAL REPRESENTATIVES: Respondent Mr. S. Simmington, solicitor of Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 2 July 2007 10207 of 2007 Paul Jones and Carolyn Jones v Woollahra Municipal Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 This appeal was lodged against Council's refusal of a development application proposing alterations and extensions to an existing dwelling situated at 3 Myall Avenue, Vaucluse. The full details of the site, proposal and planning controls are contained in the Statement of Basic Facts, on which I rely. 2 Insofar as a number of amendments to reduce the scale of the extensions have been made to the original proposal, the main outstanding issues at the appeal concern the loss of view and privacy from the neighbouring property (No 1), arising from the proposed first floor extensions. The Site . 3 The subject site is located on the southern side of Myall Avenue. It is rectangular in shape with a site area of 562.1 sq m and frontage of 16.765m. 4 At present, there is a single storey dwelling, over basement garage constructed on the site. To the east of the site, is a more recently constructed two-storey dwelling (1 Myall Avenue). There is a single story dwelling on the western side of the property (5 Myall Avenue). 5 The locality is characterised by one and two-storey dwelling houses and units, set on relatively large allotments. The topography within the street slopes significantly from the east to west along Myall Avenue. Extensive views of Sydney Harbour and the city are available from parts of the dwellings in the street. The Proposal . 6 The proposed works involve alterations to the existing single-storey dwelling house, including partial demolition and reconfiguration of some existing internal ground floor walls, a new rear terrace with pergola, a new second-floor addition with terrace, a new swimming pool, demolition and reconstruction of a masonry fence to the street frontage, landscaping and associated site works. Planning Controls 7 Woollahra Local Environmental Plan 1995; under which the site is zoned Residential 2(a) and the development is permissible with consent. The following clauses have been identified as relevant in this matter: o Clause 8 - Objectives of the Residential 2(a) zone, o Clause 12 - Height, o Clause 18 - Excavation of Land, o Clause 25 - Water, wastewater and stormwater system, o Clause 25D - Acid Sulfate Soils. 8 Woollahra RDCP 2003: o Part 4.14 - Vaucluse East Precinct o Section 5.1 - Streetscape o Section 5.2 - Building Size and Location o Section 5.3 - Open Space and Landscaping, o Section 5.4 - Fences and Walls, o Section 5.5 - Views, o Section 5.6 - Energy Efficiency, o Section 5.7 - Stormwater Management o Section 5.8 - Visual and Acoustic Privacy, o Section 5.9 - Car parking and driveway. o SEPP 55 – Remediation of Land The Evidence 9 Detailed planning evidence was presented by Mr A Betros (Town planner for the applicant) and Mr M McCubbery (Town Planner for the Council), in the form of a joint planning report – Exhibit 3. 10 Objections were lodged by Mr & Mrs Cooley, neighbours from No 1 Myall Street. These objections concern the intrusion of the proposed upper level extension into their view corridors of Sydney Harbour/Bridge and city, which they do not consider represents a reasonable balance based on view sharing principles. They request that this part of the building extension be further reduced in width, to maintain views of the Sydney Harbour Bridge, including the northern pylon, from their upstairs lounge room. They accept that the proposal will result in other view losses from the northern terrace. 11 Other objections were lodged by neighbours and these are included in Council's bundle of documents and have been considered. 12 In their joint report, the planners considered the following parts of the Woollahra RDCP as relevant: C 4.14.2 Views and vistas - Development maintains the views and vista corridors shown on the precinct map. C 5.5.2 To encourage view sharing as a means of ensuring equitable access to views from dwellings. C 5.5.6 Building forms enable a sharing of views with surrounding residences, particularly from the main habitable rooms of the surrounding residences. 13 For the assessment of the view impacts, the planners note that the potential view loss from 1 Myall Street is across its side boundary from a purposely-designed, upper level lounge room. Also, that the applicant has undertaken several amendments to reduce the size of the upper level structure to minimise view loss. 14 Notwithstanding this, Mr McCubbery considers that further amendments are reasonable so as to achieve a reasonable balance in view sharing. Such amendment would involve a further reduction or shifting the upper level extension by approximately 2m north. 15 Mr Betros disagreed with this suggested amendment as being unreasonable. In support of this position, he relies on the DCP provisions and view sharing principles stated in Tenacity Consulting v Warringah [2004] NSWLEC 140. 16 . Accordingly, he applies the principle as follows: 1. What are the views to be affected? The affected views consist of iconic harbour and CBD views and features, including the Sydney Harbour Bridge, Sydney Opera House, CBD skylines and the land/water interface along the Vaucluse peninsula and Mosman Peninsula. 2. What part of the property the views are obtained . The views are obtained from the side wall of the 1st floor west facing window. The window is 5.5m in length and 1.3m high. These windows service a combined lounge and main bedroom. 3. Extent of the impact . The icons are maintained from the left side of the lounge area and a progressively lost, when moving past the bedroom area. "The level of view loss is moderate from inside". 4. Reasonableness of the proposal. The reasonableness of the proposal is dependent on its compliance with the Council's planning controls, extent of impact and whether a more skilful design could overcome the view impact. 17 The proposal is substantially below the LEP and DCP controls which determine a potential building envelope contemplated on the subject site. The proposal is also below the maximum FSR and height and exceeds the required setback from the objectors property to the east at 1 Myall Street, as demonstrated in the following table: CONTROL STANDARD PROPOSED FSR 0.55:1 0.475:1 (41.85 sq m under, excluding below ground storage) HEIGHT 9.5 metres 6.5 metres (3-metres under) WESTERN SETBACK 1.5 metres 3.2 metres at ground floor, 4.5 metres at first floor (exceed by 1.7-3 metres) 18 Accordingly, Mr Betros considers the proposal is considered of modest scale and well within a potentially greater/complying addition or a new 2-3 storey dwelling that is permissible and that would be compatible with the bulk and scale of surrounding dwellings. Furthermore, the suggested shift would cause excessive costs in relocating the proposed staircase. Conclusions 19 Having considered the evidence, the submissions and undertaken a site inspection, I accept that there will be a significant impact on the existing iconic views enjoyed by the residents of 1 Myall Street. However, applying the DCP controls and Tenacity Principles, I consider it somewhat inevitable in this case, that some of these view losses will occur, considering that they experienced from the side wall, over adjoining dwellings. The adjoining dwelling, being the subject of the proposed development and currently developed as a single storey building, is below its potential two-storey height limit, allowed under the current controls. 20 It also seems to me that the applicant has been mindful of the impact of its proposal on the objectors property, and consequently it is of less bulk and scale than allowed by the numeric development controls. 21 In the current circumstances, the proposals degree of impact on the views depends on a subjective assessment, particularly from the viewing location in the lounge/bedroom. Taking into account the configuration of this room, I consider a reasonable observation/control point is approximately 3/4 across the room. At this point most of the iconic views would be retained, including the northern pylon of the Harbour Bridge. To achieve this, the upper level would require a further amendment of shifting the rear wall approximately 500mm, northerly towards the street frontage. 22 In my assessment, this further amendment, together with associated ancillary detailing, represents a reasonable balance in terms of the controls and Tenacity Principles, between the owners' expectations for internal amenity and optimisation of the views of the property, when compared to the degree of view loss from the neighbouring property from side-wall windows. 23 With respect to the other the objections, these have been fully assessed in the joint planning report, resulting in the agreement of the planners that they are not of sufficient magnitude to warrant rejection or further amendment of the proposal. From my observation at the view, I accept these conclusions are reasonable. Therefore, the amended development merits conditional consent. Court Orders 1. The appeal is upheld. 2. Development consent is granted to DA 689/2006/1 for alterations and additions to the dwelling at 3 Myall Street, Vaucluse, including a new first-floor addition and swimming pool, subject to the conditions in Annexure A. 3. The exhibits may be returned except for A, 3 and 4. _______________________ R Hussey Commissioner of the Court A.K/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.