Land and Environment Court of New South Wales CITATION : Valmorbida v Woollahra Municipal Council [2008] NSWLEC 8 APPLICANT Adrian Valmorbida PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10859 of 2007 CORAM: Whelan AC KEY ISSUES: Development Application :- floor space ratio Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan (LEP) 1995 [Darling Point Precinct] Woollahra Residential Development Control Plan 2003 CASES CITED: Edgar Allan Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790 DATES OF HEARING: 12/12/2007 DATE OF JUDGMENT: 23 January 2008 APPLICANT Mr D. Wilson, barrister Instructed by Lakos & Copmany Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms J. Hewitt, solicitor of Home Wilinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Whelan C 23 January 2008 10859 of 2007 Adrian Valmorbida v Woollahra Municipal Council JUDGMENT 1 COMMISSIONER: This is a Section 97 appeal against a condition imposed in a DA by Woollahra Municipal Council (The Council) of a development application (DA) to demolish the existing dwelling house and erect a new house comprising a basement car park and storage area and vehicular ramps. A ground floor with living/dining, kitchen, sun room, pool and deck and an outdoor entertainment area. A first floor with four bedrooms with ensuite, rear balcony off the master bedroom and two front balconies. Together with a rain tank under the front set back area. 2 The matter was set down for a Section 34 Conference, on site. The proceeding commenced at first instance by way of conciliation. The parties did not reach an agreement and thereafter consented for the commissioner to dispose of the proceeding by adjudication. The parties agreed that only one issue was outstanding being an appeal in regard to Condition C.1 (b) of the consent which states:- "the under croft area on the basement level is deleted and this area is to remain unexcavated" The Site 3 The site is known as No. 80 Darling Point Road, Darling Point. It is described as Lot 3 in Deposited Plan 332190. The land has a frontage of 12.19m, a depth of 39.55m and a rear dimension of 12.19m to Beverly Lane. The area of the allotment is 482m². 4 The site is on the western side of the road, northerly from the intersection of Yarranabbe Road. The existing dwelling is two storeys in height with a garage underneath. 5 Erected upon the adjoining land, to the north is a four storey residential flat building. On the southern side there is a three (3) storey dwelling house. In general terms other dwellings in the vicinity are two (2) to three (3) storey houses. High-rise residential flat buildings stand to the west of the site. 6 The property is subject to a height restriction by virtue of an existing covenant. The Proposal and It's History 7 The applicant proposes to demolish the existing building on the site. The applicant proposes to erect a new dwelling house. 8 The applicant lodged the DA on 22 December 2006. Council determined to grant consent to the DA on 7 November 2007, (DA No. 883/2006) with 68 conditions. The conditions in dispute – C.1 (b), relates to the under croft area on the basement level. Relevant Planning Controls Woollahra Local Environmental Plan (LEP) 1995 [Darling Point Precinct] 9 The LEP zones the site – Residential 2(a). The Council in their "Assessment Report" considered the proposal to be consistent with the aims and objectives of the LEP. The proposal for the overall height of 8.2m was acceptable as the code prescribed a maximum height of 9.5m. 10 In regard to excavation the Council imposed conditions C.1 (b) in order to minimize the amount of excavation and to further reduce the overall floor area of the basement. Woollahra Residential Development Control Plan 2003 (RDCP) "The RDCP controls are designed to ensure that the scale and bulk of housing is compatible with site conditions and the desired future character for the locality. Important considerations include the protection of privacy, access to sunlight and views enjoyed by residents neighbouring properties and surrounding streets and public open space". 11 The RDCP's floor pace ratio requirements is set out in paragraphs C.5.2.9 to C.5.2.17. The code indicates floor space ratios of 55:1. The proposal is for a floor space ratio of 0.925:1. This includes the under croft area. 12 The Council's Desired Future Objectives are contained within clause 1.4 (a) to (i) inclusive of the RDCP. The Issues 13 The existing building has an approximate height of 7.15m; the proposal is to a height of 8.2m and the LEP sets the height at 9.5m. Council's concerns are in regard to: (i) the additional floor space ratio in terms of the Streetscape and (ii) the additional excavation in terms of clause 18 of the WLEP. Height, Bulk, Scale and Streetscape 14 Ms Francis, Town Planning expert for the applicant, states that it can be deduced that Council objects to the "under croft excavations" because it would increase the floor space ratio by adding approximately 56sqm. She states that the proposal will not affect the amenity of surrounding properties or impact on the development as viewed from the street. She further states that Council considers that "a FSR of 0.81:1 would be more acceptable in the circumstances. The proposal will result in a FSR of 0.925:1". 15 The applicant indicated, with reference to plan No. 0592 DA-03, that vehicles would need to be turned around, in the basement area, to ensure forward movement when exiting to the rear lane. As a result no satisfactory storage would be available in the area designated for vehicular movement. The loss of space impacts on the owners use and amenity. The applicant proposes to use the under croft area for storage purposes. 16 Ms Francis states that the increase in the floor space ratio is a consequence of:- a. the small size and dimensions of the site (482sqm) b. it's physical constraints (being approximately 1m below the ground level of No. 87 and being surrounded by 3 and 4 storey buildings; and c. the existence of a covenant which seeks to maintain views over any building located on it. 17 Had the covenant not encumbered the land then the height of the building would have been increased with the possibility of providing roof storage. 18 Mr Potis from the Council draws attention to WRDC provision C5.10.2 as a basis of establishing that "storage of at least 8m² per dwelling is acceptable". It is conceded that this provision applies to residential flat buildings and not to a dwelling house. 19 Ms Francis in her report refers to the fact that:- The Council officer acknowledges that the majority of the excavations will be at a depth of only 1.5m and that this will be confined within the building footprint. The whole of the under croft is within the building footprint. 20 In Edgar Allan Planning v Woollahra Council (2006) NSW LEC 790, Commissioner Watts, was faced with similar circumstances. In that case the proposed excavation was to be within the existing building footprint. The Commissioner concluded that:- "the proposed excavation would be within the existing footprint and would not decrease the area of the land available for deep soil planting" and further on:- "I would not decline to grant consent to the present application despite the breach of the FSR control under the RDCP. Those areas of the proposal in breach of the FSR do not add to the visible bulk". Conclusion 21 The subject site has significant constraints. The covenant restricts development in the vertical plane; although I would give this element limited weight. The DCP's height restriction results in any proposal for a new dwelling not to exceed adjoining buildings. The buildings on either side are well in excess of the DCP controls. In consequence views from the proposed dwelling will in effect be neutralised by virtue of the neighbour's building. 22 The inclusion of the under croft area proposed to be used for storage does not impact on the DCP's desired future objectives. I concur with the findings of Commissioner Watts as expressed above. 23 The variation of the FSR represents a marginal increase of 56 m2 in the basement area. This increase will provide useful space to the proposed dwelling. This area is within a space which is wholly within and below the proposed building envelope. The proposal will not adversely affect the street scape. The appearance of the building, from the outside will not change as a result of the inclusion of the additional storage area. 24 For the above reasons I support the appeal. Order 25 For the reasons expressed in the proceeding paragraphs the Orders of the Court are:- 1. The appeal is upheld. 2. Condition C 1 (b) of development Consent No. 883/2006 is amended to permit the under croft area on the basement level, as shown in Drawing No. 0592 DA-03 . 3. Such under croft area shall only be used for storage purposes. 4. The exhibits are returned ___________________ M. Whelan Commissioner of the Court mw 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. 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