Land and Environment Court of New South Wales CITATION : Martin–Weber v Woollahra Municipal Council [2008] NSWLEC 36 APPLICANT Robyn Anne Martin–Weber and Mitchell Martin–Weber PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 11006 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- alterations and additions to an existing dwelling - ·excessive bulk and scale - adverse amenity impacts - unacceptable heritage impacts - adverse impacts on the streetscape - public interest. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 DATES OF HEARING: 17/12/07 DATE OF JUDGMENT: 1 February 2008 APPLICANT Mr T Robertson SC SOLICITORS Herbert Geer & Rundle LEGAL REPRESENTATIVES: RESPONDENTS Mr S Simmington, solicitor SOLICITORS Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 1 February 2008 11006 0f 2007 Robyn Anne Martin–Weber and Mitchell Martin–Weber v Woollahra Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of DA 571/2006/1 for alterations and additions to an existing dwelling at 51 John Street Woollahra (the site). The site 2 The site has a southern boundary of 11.28 m to John Street, a 10.67 m northern boundary to Bowden Street, an eastern boundary of 36.335 m and a western boundary of 36.375 m giving a site area of 399.2 sq m. A single storey Victorian house is located on the site and is setback 9.4 m from John Street. To the rear of the original cottage is a double storey addition. A double garage is located with access off Bowden Street. A mature liquidambar tree is located within the front setback area. 3 The general area is predominantly residential in nature and consists of a number of Victorian era terraces, semi-detached dwellings and freestanding houses. The streetscape also includes some post-war infill development and recent contemporary additions. The proposal 4 The proposal provides for substantial alterations and additions to the existing dwelling. The single storey Victorian house is to be retained with a reconfigured internal layout, partial demolition of the rear with a new two storey addition located around a central courtyard and extending to Bowden Street. The dwelling will contain a kitchen, three bedrooms, study, library, sitting room, television room, and a double garage fronting Bowden Street. A cellar, laundry, plant room and storeroom are located in a basement area below the double garage and with internal access to the additions. Relevant planning controls 5 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed use is permissible with consent within this zone. The site is not an identified heritage item under LEP 1995 but falls within the Woollahra Heritage Conservation Area. The site also falls within the Foreshore Scenic Protection Area under LEP 1995 although no issues were raised in relation to this control. 6 Woollahra Heritage Conservation Area Development Control Plan 2003 (DCP 2003) applies. The site falls within the West Woollahra Precinct. The relevant requirements relate to Desired future character for the Woollahra Heritage Conservation Area (cl 2.3), Contemporary design (cl 2.5), Alterations and additions (cl 3.2.3), Single storey-houses (cl 3.3.1), Building location and built form (cl 3.4.3), Building height, form, bulk, scale and character (cl 3.4.4), Parking and garages (cl 3.4.9) and Acoustic and visual privacy (cl 3.4.12). The issues 7 The Statement of Facts and Contentions filed by the council identified the following issues: o excessive bulk and scale, o excessive excavation, o adverse amenity impacts, o unacceptable impacts on the existing cottage, o adverse impacts on the streetscape, and o not in the public interest. The evidence 8 Mr George Karavanas provided town planning evidence for the applicant and Ms Alison McCabe provided town planning evidence for the council. Mr Zoltan Kovacs provided heritage evidence for the applicant and Mr Robert Staas provided heritage evidence for the council. Prior to the hearing the experts discussed the outstanding issues and amended plans were produced. A joint report was prepared by Mr Karavanas, Ms McCabe, Mr Kovacs and Mr Staas that addressed the amended plans and concluded that the amendments addressed any previous town planning and heritage concerns and that the proposed development was now acceptable. 9 The following residents provided evidence on site: o Mr Peter and Mr Tom Schutzimegel on behalf of their mother, Ms Annie Emms of 53 John Street, o Mr Douglas Small and Mr James Brownlow of 49 John Street, o Ms Jill Hickson Wran of Bowden Street, and o Ms Linda Wilhelm of 38 Wallis Street. 10 Notwithstanding the agreement by the experts, the residents maintained objections that related to: o the bulk and scale of the proposal brought about by excess floor area resulting in loss of sunlight to internal areas of an adjoining dwelling, loss of privacy, visual bulk, view loss and loss of outlook, o the change in character with residential use of the area adjoining Bowden Street, o acoustic and visual privacy associated with the residential use of the area adjoining Bowden Street, o the impact on the heritage conservation area, and o the precedent for similar applications. Bulk and scale 11 The concern over bulk and scale centred on the non compliance with the floor space ratio (FSR) requirements in DCP 2003. The proposal has an FSR of 0.77:1 or an FSR of 0.626:1, if the basement area is excluded whereas DCP 2003 requires a FSR of 0.55:1. 12 With the benefit of the site view and an understanding of the relevant planning controls, I accept that the form of the proposed development is generally acceptable but only with some amendments that reduce the floor area to provide an FSR closer to that required by DCP 2003. The reduced floor area also provides greater compliance with other areas of DCP 2003 and reduces amenity impacts on adjoining residential properties. This and some other minor changes are explained in greater detail in the following paragraphs but essentially involve: o the deletion of the first floor study that has an area of some 16 sq m. to provide an FSR of around 0.58:1 (excluding the basement area), o the deletion of the dormer windows to Bedroom 1, and o the amendment to the balustrade to the balcony of Bedroom 2. 13 Loss of sunlight to internal areas of 49 John Street – Objective O9 of cl 3.4.3 of DCP 2003 requires that overshadowing of private and public open spaces are to be "minimised". Control C8 of cl 3.4.4 of DCP 2003 requires sunlight be provided to at least 50% of private open space for a minimum of two hours between 9 a.m. and 3 p.m. on June 21. 14 The dwelling at 49 John Street was inspected on the site view. It is designed generally as two pavilion structures with an enclosed walkway linking the two pavilions. The walkway and a large part of the rear pavilion containing living areas have floor to ceiling glass to allow sunlight penetration. A significant concern of Mr Small and Mr Brownlow was the loss of sunlight to the walkway and living areas by the proposed development, particularly the first floor structure. 15 The applicant prepared 3-D diagrams to show the sunlight penetration into the dwelling at 49 John Street. These showed the shadows cast by the existing building and also the shadows cast by the proposed building at 30-minute intervals in the critical morning period at the equinox and winter solstice. They reveal a marginal increase in shadowing within the adjoining dwelling of Mr Small and Mr Brownlow. While Mr Small maintained a concern over the modelling undertaken for the shadow diagrams, the council was satisfied that the modelling was accurate and properly reflected the shadow impact of the proposed development. 16 Mr Karavanas described the shadowing impacts as negligible on 49 John Street. In terms of the external open space areas, he notes additional shadowing only on a small part of the rear yard in late afternoon in midwinter. In his opinion, the proposed development would satisfy the relevant AMCORD requirements and Control C8 of cl 3.4.4 of DCP 2003. 17 With the removal of the first floor study, the first floor could be set back a further 4 m in a southerly direction. In accepting that the additional overshadowing is relatively small, the additional setback will ensure that there is no change to the existing level of sunlight. This is not an unreasonable expectation considering the breach of the FSR requirements. On this basis, I am satisfied that the proposal satisfactorily addresses Objective O9 of cl 3.4.3 of DCP 2003 in that overshadowing is "minimised" and Control C8 of cl 3.4.4 of DCP 2003 is satisfied. 18 Loss of privacy – Objective O1 of cl 3.4.12 of DCP 2003 seeks to ensure an adequate degree of aural and visual privacy in building design. Objective O2 seeks to minimise the impact of new development on the acoustic and visual privacy of existing development on neighbouring land. Control C7 provides that windows, balconies, screening devices and landscaping must be located to minimise direct overlooking of the main living areas and private open spaces of neighbouring properties. Control C9 provides that rear and side balconies must not impact on the privacy of the buildings occupants and the occupants of neighbouring properties. Privacy screens may be required. Control C11 requires that a direct sightline between habitable rooms require additional treatment if less than 9 m. 19 Bedroom 2 on the ground level of the proposal has a zero setback to the eastern boundary with 53 John Street for a distance of some 7.5 m from the rear boundary. The upper floor accommodates Bedroom 1 and has a side setback of 1m for a distance of 6.66 m. There are no windows in the side wall but full height glass doors are located in the northern wall that leads to a 1 m wide balcony. There is a return on the eastern side wall across the eastern end of the balcony to protect direct overlooking into 53 John Street. There is existing vegetation within 53 John Street that provides some screening and additional vegetation is to be provided on along the common boundary as part of additional landscaping proposed in the landscape plan. 20 Overlooking from the first floor Bedroom 1 balcony into the dwelling and the private open space area was an issue raised by Mr Peter and Mr Tom Schutzimegel. It was suggested that of the balcony be removed and replaced with a juliette balcony or additional screening be provided. While the potential for overlooking is relatively small through the orientation of the balcony, separation distances and the existing and proposed landscaping, I accept that the potential can be further reduced without a significant impact on the utility and amenity of Bedroom 2 by moving the balustrade from the edge of the balcony to the edge of the building. This will not require any alteration to the design of the building but will simply deny access to the narrow balcony area. It will also not be necessary for the balustrade to be translucent or solid in construction when moved. The relocation of the balustrade has the advantage of increasing the sightline to the dwelling at 53 John Street and further restricting the potential for overlooking into the private open space area of his property. 21 Visual bulk, loss of outlook, loss of views - the perception of bulk was raised by a number of local residents. Mr Peter and Mr Tom Schutzimegel expressed concern at the bulk of the building when viewed from the private open space area brought about by the zero setback along part of the eastern boundary. Mr Small and Mr Brownlow raised objection with the visual presence of the building and the loss of outlook when viewed from inside the dwelling near the rear pavilion and the walkway. Ms Jill Hickson Wran indicated the unacceptable bulk and appearance of the building and view loss when viewed from the ground floor living area, the rear yard and first level balcony of her dwelling. 22 The zero setback to 53 John Street occurs only at the ground floor and is partly obscured by the existing garage on this property that is located on or near the common boundary. The existing vegetation also screens that part of the building with the zero setback. The more visible part of the proposed development in this location is setback 1 m at the first floor level. I am satisfied that there are no visual bulk issues from this property. 23 From the internal area of 49 John Street, part of the proposed development will be visible however a large part of the outlook to the sky will remain. With the removal of the first floor study in the proposed development and the first floor set back a further 4 m in a southerly direction, the rear pavilion of 49 John Street will align with the revised setback thereby largely restricting any view of the first floor additions. Again, this is not an unreasonable expectation considering the breach of the FSR requirements. 24 The visual bulk from the dwelling at 30 Wallis Street is not significant or overbearing when viewed from the rear yard and ground floor of the dwelling and is generally consistent with that anticipated by DCP 2003, subject to the removal of the dormer windows (see par 30). The only area where long distant views are potentially impacted are from the first floor balcony of 30 Wallis Street. With the benefit of a view from this location it was observed that the additions will be located in the foreground of the existing vegetation in John Street so that the panoramic views towards the Sydney CBD will be unaffected. 25 Even though the proposed development exceeds the FSR requirement in DCP 2003, but with the amendments contemplated in par 12, I am satisfied that the proposed development does not create unacceptable bulk and massing impacts for adjoining properties or impact generally on the outlook of properties beyond what could be expected with any redevelopment of the site. In my view, the design of the proposed development is generally successful in reducing any impacts of bulk and massing on surrounding properties notwithstanding the floor area above that required by DCP 2003. The change in character of Bowden Street 26 Control C2 of cl 3.4.4 of DCP 2003 provides that the character of new development is to be consistent with the character of nearby significant items and of the streetscape. Objective O5 of cl 3.4.9 of DCP 2003 seeks to limit loft structures over garages to appropriate locations. In this regard Table 3.29 identifies laneway garages with roof lofts as being permitted in appropriate situations in West Woollahra. As I understand, the council accepted that Bowden Street was an appropriate location given the existence of a number of laneway garages with roof lofts. Garage maximum dimensions are provided at Figure 3.30. 27 The character is also controlled through its location within the Woollahra Heritage Conservation Area. Clause 28(2) requires the Court to consider the extent to which the carrying out of the proposed development would affect their heritage significance of the heritage conservation area. Clause 3.1.2 of DCP 2003 contains the significant characteristics of the West Woollahra Precinct. 28 The character of Bowden Street varies considerably in its relatively short length. Generally, between Dorhauer Lane and Bowden Lane, Bowden Street has a character more akin to a rear lane where single and double garage doors and solid walls prevail on the street alignment. There are some lofts located above garages. Further to the east beyond Bowden Lane, the character is more a residential in nature with Victorian terraces having their presentation and frontage to Bowden Street. 29 The consistent concern by the residents was that the proposal extended the residential use of the property to Bowden Street where the use is currently limited to garages and lofts above some garages. 30 I am satisfied that the part of the proposed development at the Bowden Street frontage is generally acceptable although I do not accept that the dormer windows are appropriate in this location. I acknowledge the work undertaken by the applicant in the multiple redesigns of that part of the proposed development facing Bowden Street. The most recent, and preferred option provides for a roof pitching back from the Bowden Street at the first level. It has the distinct advantage of reducing the visual bulk from this location. The pitched roof however has a three dormer windows extending from this roof. These windows are strong and dominant elements in this elevation and are not replicated anywhere within the immediate area. A subtler and less obtrusive means should be found to provide ventilation and sunlight to Bedroom 1 considering the form of nearby and adjoining development and its location in a heritage conservation area. 31 Putting aside the issue of the dormer windows, the form of development fronting Bowden Street is acceptable for a number of reasons. Firstly, lofts above garages are seen as appropriate in this location by Control C13 of cl 3.4.9 DCP 2003. Even though Table 3.29 indicates a single garage only, in my view it would be inappropriate to impose such a restriction when a double garage already exists on the site. The eave height of the proposed development is also only marginally higher than that indicated in Figure 3.30 (4.5 m v 4.7 m) however with the proposed pitched roof form, the additional height is largely unnoticeable. The proposal is acceptable if measured against the requirements in Control C13. Secondly, the use of the area above garages for residential use is not inconsistent with the use as a loft. LEP 1995 and DCP 2003 do not define lofts however it could be reasonably presumed that a loft would ordinarily be used for uses associated with a residential dwelling. Thirdly, the form of the proposed development at Bowden Street is consistent with the character of adjoining of nearby development, i.e., solid vertical walls and garage doors on the street alignment. Fourthly, the residential nature of the proposal at the Bowden Street is consistent with the residential character further to the east beyond Bowden Lane. Acoustic and visual privacy 32 Acoustic and visual privacy is addressed in cl 3.4.12. Objective O1 requires an adequate degree of acoustic and visual privacy in building design. Objective O2 requires new development to minimise the acoustic and visual privacy on neighbouring land. Control C3 requires bedroom windows to be located at least 3 m from streets, shared driveways and parking areas of other dwellings. Additional requirements for garages are located in Control C13 of cl 3.4.9 DCP 2003. 33 While the windows for Bedroom 1 are located closer than 3 m to Bowden Street I am generally untroubled by the need to strictly comply with this requirement given the relatively quiet nature of Bowden Street and also the direction that the dormer windows are to be redesigned. Any concerns that the acoustic privacy of adjoining residents will be unacceptably impacted on by Bedroom 1 cannot be supported in my view because of the separation distances and also the use of the room as bedroom. Similarly, any future design of the windows for Bedroom 1 should ensure that there is no direct overlooking into 30 Wallis Street. 34 I am satisfied that the windows for Bedroom 1 can be adequately addressed through an amended design and the issue of acoustic and visual privacy will not arise. Impact on the heritage conservation area 35 Clause 3.1.2 of DCP 2003 contains the significant characteristics of one West Woollahra Precinct. Control C1 provides for two-storey additions to a single storey building provided the additions are separated from the principal form by a lightweight single storey link. The additions must be designed to respect and enable interpretation of the form of the original dwelling and must not be visible from in front of the dwelling. 36 The proposed development does not provide the lightweight single storey link although both Mr Kovacs and Mr Stass did not see this as a significant issue. The proposed development will also be visible from in front of the existing dwelling, and again both Mr Kovacs and Mr Stass did not see this as a significant issue. 37 In my view, non-compliance with the requirements in Control C1 is not necessarily fatal to the application however greater compliance can be achieved with the requirement for a single storey link between the existing single storey dwelling and two-storey additions with the reduced floor area on the first level. The increased setback at the first floor level from John Street will also further reduce its visibility and provide greater, if not total satisfaction with Control C1. Precedent - 38 Precedent is a valid planning consideration however I accept that the particular characteristics of this site have required their own specific design solutions so that little if any reliance can be placed on these design solutions for other sites in the area. Directions 39 The applicant is to provide amended plans that provide for: o the deletion of the 16 sq m first floor study, o an increased setback to John Street of 4 m for the proposed second storey additions, o a single storey connection between the existing dwelling and the proposed second storey additions, o the deletion of the dormer windows to Bedroom 1, and o the relocation to the balustrade to the face of the building for the balcony of Bedroom 2. 40 The applicant is to file and serve the amended plans by 8 February 2008. 41 The respondent is to file and serve draft conditions of consent by 13 February 2008. 42 Leave is granted for either party to restore the matter on 24 hours notice if there is disagreement on compliance with these Directions. 43 If leave is not sought to restore the matter, Final Orders will be made in Chambers after 18 February 2008. ______________ G T Brown Commissioner of the Court 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.