Land and Environment Court New South Wales Medium Neutral Citation: Marsh Cashman Koolloos Architects v Woollahra Council [2011] NSWLEC 1014 Hearing dates: 18 and 19 October 2010 Decision date: 21 January 2011 Jurisdiction: Class 1 Before: Murrell C Decision: 1. The appeal in respect of the property known as no. 12A The Crescent, Vaucluse is upheld 2. The development application submitted to Woollahra Council and as amended, is granted development consent subject to the conditions in Annexure 'A'. 3. The exhibits are returned to the parties with the exception of: exhibits 1, 2, 5, 6; and exhibits A, E, F, G, H and K. Catchwords: DEVELOPMENT CONSENT - erection of 3 storey dwelling house- impact on views; privacy; streetscape; and neighbours. Legislation Cited: Environmental Planning and Assessment Act 1979; Woollahra Local Environmental Plan 1995; Woollahra Residential Development Control Plan 2003 Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Marsh Cashman Koolloos Architects (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Ms S Duggan Senior Counsel (Applicant) Solicitors: Gadens Lawyers (Applicant) Mr P Rigg Solicitor (Respondent) Norton Rose Australia (Respondent) File Number(s): 10495 of 2010 Judgment 1The applicant in these proceedings is seeking to construct a three-storey dwelling house on the property known as 12 A The Crescent, Vaucluse. The aerial photograph at Figure 1 shows the site in its context. The proposal involves the demolition of the majority of the existing 2 to 3 storey dwelling house located towards the rear of the site and the erection of a new part single, part two, and part three-storey flat roofed dwelling house with an attached double garage at ground floor level and an inground swimming pool to the western rear garden of the site that adjoins the Parsley Bay Reserve. Figures 2 and 3 show the site plan and elevations of the proposed dwelling. 2The roof of the front single-storey component is proposed to be landscaped rooftop planters. This component accommodates a double garage, guest bedroom and a family media room, separated by 3 courtyards with landscaping with an additional excavated landscaped area at the front of the site. The proposal includes a stone footbridge to extend from the street frontage over the roof of the front single storey component to the entrance of the dwelling at the second level of the 2 to 3 storey portion of the dwelling located towards the rear of the site. Site and Environs 3The site has a 12 m frontage to The Crescent and the western rear boundary to the Parsley Bay Reserve is some 12.5 m. The side boundaries are about 55 m yielding a site area of 636.5 sq m. The site slopes approximately 7 m from the street frontage to the western boundary with the Reserve. Currently erected on the subject site is a two to three-storey dwelling house. 4The development surrounding the site is residential and consists mainly of dwellings ranging from single-storey up to three storeys in height. 5The aerial photograph at Figure 1 shows the relationship of the subject site to the adjoining properties, the Parsley Bay Reserve and the Sydney Harbour foreshore. From this the location of the dwellings to the east and west can be seen and their setbacks as well as the battle axe dwellings in the area. Contentions 6The contentions in the council's Statement of Facts and Contentions raises the following: (1)Whether the proposal is inconsistent with objectives 04.13.1 (scenic quality) 4.13.2 (landscaped setting) 4.13.3 (landscape character) 5.2.1 (preserve established tree and vegetation networks) and 5.2.4 (minimise cut and fill of the Woollahra Residential Development Control Plan 2003. (2)Whether the proposal involves extensive excavation thereby involving a significant change to the natural landform, and as such is inconsistent with clause 18 of Woollahra LEP . (3)Whether the proposal should be supported, given the numerous non-compliances with council's envelope controls, being building footprint, floor space ratio and setbacks. Statutory planning framework 7The subject site is zoned residential 2(a) under the Woollahra Local Environmental Plan 1995 (LEP). 8The LEP contains a number of aims and objectives including to protect the amenity and natural environment of area. In relation to the aims for the landscape, include: (i)to protect and enhance the natural landscapes throughout the area of Woollahra. (ii)to promote the retention of trees and the planting of suitable new trees in appropriate locations. (iii)to control or minimise the impact of future development upon natural features such as significant trees or land within any view of any waterway. (iv)to protect and enhance the environmental quality, through the appropriate management and conservation of the existing pattern of vegetation. (v)to protect the native flora and fauna. 9The objective of the Residential A zone is: "to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses..." 10In relation to the excavation of land the aims of the LEP are: (i)to minimise any impact on the amenity of the neighbourhood. (ii)to protect the natural foreshore areas. (iii)to protect trees and significant vegetation. (iv)to avoid potential damage to neighbouring public and private land. 11Clause 18 of the LEP states that: (1) When considering an application for consent for development involving the excavation of any land, the Council shall have regard to how the excavation may temporarily or permanently effect: (a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process and (b) public safety, and natural landforms and vegetation. (f) natural water run off pattern (2)The council may decline to grant consent unless it has considered specialist reports, including geotechnical reports structural engineering reports, hydrology reports and dilapidation reports of properties which may be affected by the proposed excavation. (3) Consent for excavation may be granted when consent is granted for any other development proposal for the carrying out of which the excavation is necessary. 12The Woollahra Residential Development Control Plan 2003 uses a performance approach to direct the design of housing development. In the preliminary part of the plan it states, this allows flexibility for innovation and expression in building design while at the same time ensuring developments meet important neighbourhood character and site planning objectives. 13The objectives of the DCP include: (c) to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties. (h) to encourage innovation in housing design, and (i) to provide a balance between flexibility and certainty in the development assessment process. 14The DCP requires a site analysis and performance criteria, including those relating to the desired future character objectives of the relevant precinct. 15The objectives of the site analysis are: ·to ensure development preserves or enhances the special qualities of individual sites. 16The performance criteria are that the development fits into the surrounding environment and pattern of development by responding to: ·urban form ·local topography and landscape ·view corridors. ·surrounding neighbourhood character and streetscape and ·local street pedestrian networks. 17The subject site is in the Vaucluse West Precinct and the desired future character objectives include: ·to reinforce the precincts landscaped setting by minimising alterations to the landform and preserving the existing tree canopy ·to maintain the evolution of lowrise residential building styles through the introduction of good contemporary buildings. ·to protect important views from the public spaces of the precinct to the harbour, the city skyline and the surrounding districts. 18For precinct character the DCP requires development to respect and enhance the existing elements of the local neighbourhood character including: the relationship of the precinct to the harbour; the rich mixture of residential architectural styles and their emphasis on their connection to the landform; buildings set within highly visible gardens; buildings addressing the street. 19The desired future character objectives for the Vaucluse West Precinct are: 4.13.1 To retain the scenic qualities provided by the dramatic topography, natural vegetation and low scale built elements that provide an attractive setting on Sydney Harbour; 4.13.2 To reinforce the precinct's landscape setting by minimizing alterations to the landform and preserving the existing tree canopy; 4.13.3 To maintain mature street trees, grassed verges and garden plantings; 4.13.4 To protect important views from the public spaces of the precinct to the harbour, the city skyline and to the surrounding districts; 4.13.5 To maintain the evolution of low rise residential building styles through the introduction of good contemporary buildings. 20For the description of the Vaucluse West Precinct the DCP states: "sited along the foothills of the harbour foreshore between Rose Bay and Watsons Bay. The precinct contains a wide range of housing forms and styles. The dominant development type of detached houses within a garden setting is highlighted by common street setbacks and side setbacks that allow for views between buildings. The precinct's landform, street trees, domestic gardens and substantial foreshore parklands create a dominant visual impression of a well treed landscape". 21The DCP requires garages and car parking and driveways designed and located so as not to dominate the streetscape and generally to be provided behind the building line. The provisions for front setbacks require that: "On the low side of the street a variation to the front setback to a minimum of 4m may be considered where the gradient is greater than 1 in 3 and in such instances garages must be incorporated into and not project forward of the rest of the building." 22The building height and storeys control in the DCP states: "a development is to have a maximum height of 2 storeys. However, where the landform of the site falls more than 2 m from the street to the rear of the property an additional basement storey may be permitted providing that all other DCP controls are met". The maximum height of development is determined by the LEP map and for the site height is 9.5m. 23The deep soil landscape at the frontage must be a minimum of 40% of the front setback for the Vaucluse West Precinct. For roof forms the DCP requires buildings to be designed having consideration for enabling amenity, overlooking, streetscape suitability and to maintain views across the precinct. 24For the question of setbacks, the DCP states that applicants may choose where to locate the building footprint, provided that it occurs within the outer limits of the front side and rear setbacks and subject to other controls. The purpose of the front side and rear setback controls is to: ·relate new development to existing boundary lines, along with frontage ·protect the visual and aural privacy of residents in adjoining buildings ·enable opportunities for screen planting; ·avoid an unreasonable sense of enclosure and ·safeguard privacy and minimise noise impacts for dwellings. 25The objectives of the setbacks include: ·to preserve established tree and vegetation networks and promote new networks by ensuring sufficient areas for deep soil planting and sufficient setbacks between the rear of buildings; ·to ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access to neighbouring residents; ·to ensure the form and scale of development is not excessive and maintains the continuity of building forms in front setbacks in the street; ·to limit site excavation and minimise cut and fill to ensure the building form relates to the topography and to protect the amenity of adjoining properties both during and after construction. 26The DCP provides for a minimum side setback at 1.5m, and where a lot is greater width of 12m this is increased on a pro rata basis by 0.5m for each metre or part thereof where the building height adjacent to the boundary exceeds 3 m. Where the lot width is 12m or less, the side setback is increased or a pro rata basis of for each 0.5 m or part thereof of the building height adjacent to the boundary exceeds 6.5 m. 27Building footprints are calculated on a sliding scale as are the floorspace ratios for sites and according to the tables in the DCP and for the subject site these are 42% and 0.55 respectively. The proposal has a footprint of 44.6% and an FSR of 0.63. 28The open space and landscaping provisions are contained within s5 and the objectives are: ·to ensure the adequate provision of accessible and usable private and communal open space ·to retain important existing mature trees vegetation and other landscape features ·to protect or enhance indigenous wildlife populations and habitat through appropriate planting of indigenous vegetation species ·to enhance the appearance amenity and energy efficiency of housing through integrated landscape design ·to enhance stormwater management ·to ensure that the location and the use of tennis courts, swimming pools, does not have the detrimental impact on the amenity of private and public lands on streetscapes and on the important character features of localities. 29Private and communal open space for dwelling houses is to be at least 50% of the unbuilt upon area located at ground level and comprising deep soil landscape area. A minimum area of 35 sq m is required with minimum dimensions of 3m and the principal area is to have a minimum area of 16 sq m with a minimum dimension of 4 m. 30The landscape design is to use vegetation types and landscaping styles, which: ·blend the development into the streetscape; ·improves privacy between dwellings; ·and uses plantings that are complimentary to the desired future character objectives for the locality. 31Views and vistas are considered to be special elements of Woollahra's unique character. The DCP provisions on view sharing seek to strike a balance between facilitating new development, while preserving as far as practicable, access to views from surrounding properties. The performance criterion for private views is: ·building forms enable a sharing of views with surrounding residences, particularly from the main habitable rooms of surrounding residences. 32The DCP has an objective to ensure adequate acoustic and visual privacy for occupants and neighbours. Performance criteria include the location of bedrooms, habitable rooms and balconies. 33The DCP provides guidelines for car parking and driveways such that they are not to detract from the appearance of the development and the surrounding streetscape Evidence and Findings 34The court met onsite the first morning of the proceedings to undertake a site inspection and heard from resident objectors to the proposed development. The submissions of neighbours expressed concern that the proposal is an over development of the site in terms of the floor space ratio and number of storeys and that it does not comply with the council's controls, resulting in a development that is insensitive and not neighbourly. Neighbour concerns raised also include the adverse amenity impacts of the proposal on privacy and view loss. 35Residents also made the comment that the proposal will change the general landscape and will create noise and disruption caused by the excavation required. The issue of drainage and the flow of storm water in the area was also brought to the Court's attention. Inadequate setbacks of the proposed building for the side, rear and front setbacks and noncompliance with the development control provisions were also raised by the residents . 36On behalf of the respondent council Mr Anthony Betros, consultant town planner provided evidence, and for the applicant MrAndrew Darroch, consultant town planner, gave evidence. 37In their joint statement, the planning experts agree that the development approval issued by the Council in 2007 has been commenced, and that this is similar to the eastern portion of the proposal in the appeal before the Court. MrDarroch considers that this is a relevant circumstance of the case, whereas Mr Betros considers the previous approval is unsuitable development. The experts also agree that the existing dwelling on the subject site is three storeys, however Mr Betros is of the opinion that the proposal should satisfy the DCP as third storeys are only permitted on the basis that all other DCP controls are met and in this opinion, the proposal does not comply with the FSR, side setbacks, deep soil landscaping and building footprint. 38On the question of the extent of excavation the experts agree that the greatest depth of excavation occurs at the front of the site where it is some 4 to 5m deep in a limited area and that most excavation across the site is at a depth of 1.5 to 2m deep. Mr Betros considers the extent of excavation alters the character of the site and the proposal is inconsistent with cl 18 of the LEP. 39On the contention of view loss the experts agree the proposal does not affect the views of number 12 The Crescent from the kitchen, dining room or sunroom and that in fact no internal views are affected. They agree the only view impact arising is limited to a distant water view through a dense tree canopy. 40For the calculation of private open space Mr Betros considers that there is not an area of 35 sq m as required by the controls, whereas Mr Darroch considers that there is more than 75 sq m in the rear yard with a further terraced area of 27sqm. Mr Betros does not include this area as it incorporates a swimming pool, and he considers that the private open space is fragmented or hard surfaces and there are no suitable child play areas. 41On the contention of deep soil landscaping Mr Betros considers the courtyards at the front are part of the building footprint, and therefore cannot be considered as deep soil landscaping and the proposal only provides for 18% compared to the requirement of 29%. On the other hand Mr Darroch considers the courtyards at the front are unobstructed deep soil and landscaped areas. 42The planers agree that the non-compliance with the rear setback requirements has no negative impact on the Parsley Bay Reserve. 43The planners also agree that excavation from the side boundaries is in excess of 1.5 m except at the northeast corner, where it is approximately 1.3 m over a length of less than 1m. Mr Betros considers that the 1.5 m requirement is to provide an opportunity for effective deep soil landscaping when viewed from the public domain. 44The requirement of the DCP plan for setbacks is relative to the width of the site, which is generally less than 12 m. However, for the lower portion it is between 12.2 and 12.3 m wide. Mr Darroch considers that there is sufficient setback to accommodate the proposed banksias and lillypilly screen plantings, whereas Mr Betros considers that there should be a greater setback and that this will result in adverse visual impact and privacy impacts. 45For the contention about the raised pedestrian entry and its impact on the dining room window of number 12 The Crescent, the planners agree that the entry ramp is 6m from the dining room window, which has a sill height of RL 20.32 and the entry ramp has an RL of 19.24 to 19.85. The planners agree that the users of the ramp are in transition and views to the dining room window are to the side and at an angle. 46Mr Darroch concludes that there are no significant privacy impacts from the entry walkway and that the relationship is consistent with dwellings characteristic of this area. MrBetros, however, is of the opinion that the elevated walkway would generate unnecessary and unreasonable visual privacy impacts between the properties and that there would be direct overlooking when windows are open at night or when the room is illuminated. 47On the question of the streetscape presentation, the experts agree that the proposal will retain significant plantings in the front setback and height of the 1200mm front fence is consistent with the DCP. Mr Darroch considers that the courtyards at the front of the dwelling and the landscaped roof will read as a landscaped front setback to the dwelling. 48Mr Betros on the other hand considers that the excavated courtyards at the front and the exposed northern wall and pedestrian bridge are inconsistent with the existing and desired future character and the change to the landform results in inappropriate streetscape presentation. 49With respect to the screening to number 14, Mr Darroch considers this to be sufficient angle and overlap to achieve a reasonable balance between privacy and views whereas Mr Betros considers that there would be direct overlooking of the private open space of number 14. 50The contention raised by the Council about the car access and the reliance on the car stacker/turntable, Mr Betros considers that this highlights the proposal is an over development and Mr Darroch considers that this is completely reasonable given the low frequency that it would be required to be used in a domestic situation. 51During the proceedings a long section of the driveway and garage entry was provided to show that with minor amendments to the configuration of the plans, that access to both garages can be achieved without the need for a car turntable. The applicant proposed these minor alterations to accommodate a double garage with direct access to both spaces. 52It was submitted for the Council that the proposal fails on the primary DCP controls and that the applicant cannot justify the non-compliances on the basis of the existing current approval. The Court was also referred to the Court of Appeal decisions in Botany Bay City Council v Premier Custom Services and Zhang v Canterbury City Council . From these authorities I understand that the Court cannot substitute its own standards in assessing a development application and that I must have genuine regard to the Development Control Plan provisions as a fundamental element in and a focal point of the decision making process. At the same time, I note in Zhang at paragraph 74: A development control plan is not an environmental planning instrument. Accordingly, the requirement in s80(2) that a consent authority "must refuse" an application that would result in a contravention of such an instrument does not apply to a development control plan...Nor can such a plan contain a non-discretionary development standard which if complied with would take away a consent authority's discretion under s79C.. 53The site analysis plan submitted with the development application shows the subject property with the location of the existing dwelling house, in relation to the adjoining property at number 12 that is afforded bush land and water views across the side boundary of the subject site by the exceptionally large setback of the dwelling on the subject site. The site analysis also shows the location of the dwelling at number 14 and the relationship of its windows to the subject site. Information on orientation, Harbour sea breezes and views to Parsley Bay from the upper level of the existing dwelling are noted on the site analysis. 54The architectural plans show the dwelling levels and the elevations of the proposed dwelling, with the existing dwelling being retained in part only. Figure 2 shows the site plan of the new dwelling, including the walkway from the street to the front door and the roof garden proposed with the courtyards at the front of the dwelling. The elevations in Figure 3 shows the relative height of the proposed dwelling to the dwellings at no.s 12 and 14. 55The plans show the driveway for the proposed dwelling to be fully contained within the subject site, and the proposal does not rely on the right of carriageway that also services the battleaxe allotment at the rear of the dwelling at number 14 onto the public reserve. From the site plan it can be seen that the dwelling at number 14 is built relatively close to the street and this has provided the opportunity for a vacant allotment at the rear of number 14 adjoining the existing and proposed dwelling house at number 12A. The dwelling at number 12 is also set forward on its allotment and has a large rear garden with a swimming pool. 56The relative height of the proposed dwelling to the top of the lift is 23.38m and the RL of number 12 is 25.12 to the uppermost point of the ridge. The dwelling house at number 14 has a maximum ridge, RL of 26.20. Figure 3 shows the elevations from the street and the Reserve. 57State Environmental Planning Policy 19 B ushland in Urban Areas requires consideration of the environmental impact of development on land, which adjoins bushland. This has not been raised as a contention and I note the council officer's report that the proposal is satisfactory in terms of protection of significant trees on the adjoining reserve, and a condition is proposed that requires the removal of undesirable species and noxious weeds from the subject site, which will reduce the incidence of weed invasion into the adjoining reserve. The council proposes further conditions designed to prevent any environmental degradation of Parsley Bay Reserve. 58The Sydney Regional Environmental Plan, (Sydney Harbour Catchment ) 2005 and accompanying DCP requires consideration of the visual impact of the development on Sydney Harbour and the adjoining foreshore areas. The council officer's report notes that there will not be any significant adverse visual impact upon Sydney Harbour and adjoining foreshore areas or any significant adverse impact upon views of Sydney Harbour from private properties. 59My assessment also requires consideration of clause 9 of SEPP 19 'bushland in urban areas' and SREP 'Sydney Harbour Catchment' clauses 25 and 26 concerning visual impact. I am also satisfied that the proposal is consistent with the provisions of these instruments. 60Clause 10 of the Woollahra LEP requires a site area of 675sqm and the subject site is 636.5 sqm. However, subcl 2 states that this does not operate to prohibit erection of a dwelling house on a substandard size allotment which was in existence as a separate allotment on the day the plan was gazetted and a dwelling house could have been erected on same. Subject site was created in 1906, prior to the gazettal of the LEP. 61Clause 12 of the LEP imposes a 9.5m height restriction. The application submitted to the Council exceeded this and the height was 10.6 m at the highest point. The plans have subsequently been amended that are the subject of these proceedings and a State Environmental Planning Policy objection is not required due to the compliance. 62Clause 18 of the LEP requires consideration of a development application involving excavation to have regard to how that excavation may temporarily or permanently affect the criteria set out in the clause cited above. The council officer's report comments on each of the subclauses and with respect to impact on neighbourhood amenity, a number of conditions are recommended requiring a construction management plan, adequate sediment/soil management, dust mitigation, limiting the times and duration of machine excavation, requiring the preparation of dilapidation reports, compliance with recommendations of the geotechnical hydrological report submitted with the DA and the implementation of hydrological/geotechnical and vibration monitoring programs, requiring the adequate supervision monitoring of the excavation process by a qualified and practising geotechnical engineer. The officer considered the proposal was satisfactory with regard to these issues. 63For the subclauses relating to public safety and vehicle and pedestrian movements, the council officer's report recommends a number of conditions, requiring security fencing a construction management plan, a safe pedestrian route and the structural support of neighbouring buildings and public places during excavation. 64The subclause referring to heritage impact, it is noted that there are no heritage items or settings impacted by the proposed development. 65For the subclause relating to natural landforms and vegetation, the council officer's report notes that the proposal is satisfactory, in terms of excavation, in the vicinity of significant trees and that the proposed excavation will not significantly alter the existing landform and does not adversely affect any significant vegetation. 66The subclause relating to natural water and run-off patterns, the council officers assessed the excavation for the proposal and considered it to be satisfactory, subject to conditions. Overall, the council officers stated that subject to conditions, the extent of excavation associated with the proposal is considered to be satisfactory with regard to the provision of cl18 of WLEP 1995. 67The concern of residents relating to stormwater was also assessed by Council officers in the report of December 2009, having regard to the provisions of cl25 of the LEP and subject to conditions, council's development engineer considered the proposal as satisfactory. I accept Dr Perren's evidence that "the proposal makes adequate provision for the disposal of stormwater". I note this matter is not contested by the Council. 68For the building height and storeys control in the DCP I note that the site falls by more than 2 m over its length, (approximately 7 m). In the council officer's report the third storey is considered to be acceptable in this instance for the following reasons: ·due to the 40.4 m downhill separation of the third storey from The Crescent, the upper level of the proposed dwelling will be only 2.4m above the footpath level and therefore will not have any adverse visual impact on the streetscape. ·the flat roof of the proposal is approximately equal to the height of the existing roof height and will be 1. m below the height of the adjoining two-storey property to the south (number12) and 2.6m below the height of number 14 The Crescent. ·the western elevation will present three storeys to Parsley Bay Reserve and due to the impact, an additional 2m setback is required. ·the proposal will not have any adverse visual impact upon the amenity of the remainder of the Parsley Bay Reserve ... due also to screening provided by tall, dense, evergreen native vegetation within the reserve. ·the lower ground floor level is excavated at the northern boundary and as such will present a maximum of 2.5 storeys to the rear section of the adjoining property to the north at number 14. ·however, concern is raised that the 7.4 to 8.6 m high northern elevation of the third storey setback only 1.3 to 1.5 m from the northern side boundary will have a significant adverse visual impact upon the main private open space area to the north for number 14. In order to mitigate this impact, it is recommended that the uppermost level is set back an additional metre from the northern side boundary and the still privacy screens be deleted and replaced with more sympathetic privacy screening or alternatively, fixed translucent glazing. The additional 2m from the western boundary will also reduce the visual impact upon number 14. ·the lower ground floor is excavated 0.6 to 1.4 m below ground level at the southern boundary and as such will present a maximum of 2.5 to 2.75 storeys to the rear section of the adjoining property to the south, number 12. ·whilst the third storey will cause additional overshadowing to numbers 10 and 12, solar access is maintained in accordance with council's minimum requirements. ·the third storey is considered to be acceptable in terms of privacy and view impacts upon surrounding residential properties. ·subject to the third storey complying with council's 9.5 m height standard. 69For the setback from the street, the council officers consider that the front courtyard is below street level and constitutes deep soil landscaped area, it will not have any significant adverse impact upon the amenity of the locality and no objection is raised in relation to this area of non-compliance. Similarly, council officer considered that the setback to the reserve, with the conditions proposed for a further setback of the upper level, means the proposal would not adversely impact. 70With respect to the northern boundary set back the additional 1m setback for the upper level achieves a 1.5 to 2.5 m setback and this would be compliant if the western portion of the site was 300 mm narrower. I am satisfied in the circumstances the portions of the boundaries where there is non compliance meets the DCP objectives and does not create any significant adverse impact on the amenity of the adjoining property in terms of overshadowing, privacy, view loss or visual impact. I am also satisfied the proposed southern setback is adequate to meet the objectives of the DCP and the noncompliance does not create unreasonable adverse impact upon the amenity of the adjoining properties, numbers 10 and 12, in terms of overshadowing, privacy, view loss or visual impact. 71I also agree with the council officer's report and I am also satisfied that adequate space over the length is provided for deep soil landscaping adjacent to the boundaries. Similarly I agree with the applicant's expert and council's officer that the reduced setback to the public reserve does not create any adverse impacts. 72For the floorspace ratio exceedence, a number of conditions were recommended to achieve consistency with the objectives including the provision of adequate deep soil landscaping, the protection of significant trees, satisfactory hydrological impacts and the satisfactory maintenance of the amenity of adjoining properties in terms of views, solar access and privacy. 73Similarly for the building footprint it is 44.6% of the site area, therefore it exceeds the 42% requirement. The council officer is of the opinion that in the absence of any significant adverse geotechnical hydrological or tree impact, the extent of the proposed building footprint is considered to be satisfactory. "The proposal, as conditioned, achieves consistency with the objectives including the provision of adequate deep soil landscaping and maintenance of amenity of adjoining properties ... accordingly no objection is raised in relation to non-compliance". I accept this and I am also persuaded by the applicant's expert and the building site coverage is consistent with the objectives. 74On the question of excavation, the council officer's report states that there are no significant adverse geotechnical hydrological or tree impacts and the proposal as conditioned achieves consistency with the objectives, including the provision of adequate deep soil landscaping. Once again based on the evidence to the Court I am persuaded that the extent of excavation is acceptable in the circumstances of this case. 75For the amount of overshadowing for no's 10 and 12, the Council officers report states that, "whilst the proposal will cast additional overshadowing to the rear private open space of the adjoining property to the south at numbers 10 and 12, solar access to adjoining properties will be maintained in accordance with council's requirements." Exhibit L in the proceedings provides an analysis and based on the evidence I am satisfied that reasonable solar access is maintained to the properties. 76On the open space and landscaping performance criteria, the council officer considered that the original proposal as conditioned as satisfactory. On the question of view loss from number 12, even though this was considered to be minor by council's officer for the original proposal, at the same time there was a recommendation for an additional 2 m setback of level 1 to maintain the existing views from this property and this is provided in the plans the subject of the Court's assessment. 77Following council officer's initial assessment amended plans were submitted to the Council and a further assessment report was prepared by an officer of Council in May 2010. This report considered the amended plans to show full compliance of the 9.5 m height standard and an additional 2m setback on the Western boundary for the upper level and an additional 1m setback to the northern elevation. The recommendation was for approval, however the Council resolved to refuse the application 28June2010 and the appeal is in respect of the amended plans. 78The respondent contests that the proposed development is inconsistent with the objectives of the desired future character for the Vaucluse West Precinct. In particular council contests the proposal would not "retain the scenic qualities provided by the dramatic topography natural vegetation and those scale built elements that provide an attractive setting on Sydney Harbour" (objective 4.13.1). In my assessment of all the evidence to the Court including the site inspection the scenic qualities of the area would be retained and the proposed development allows the topography to be read from the street. As shown in figure 3, the elevations of the building in relation to the adjoining dwellings, and together with the landscape plan in my assessment from the streetscape this will provide an attractive setting for the dwelling with the backdrop of the Reserve and Parsley Bay. The design also allows for the garages, not to be the dominant element in the streetscape and the excavation for the front component provides for a low scale built element. 79The precinct objective 4.13.2 is to reinforce the precincts landscaped setting by minimising alterations to the landform and preserving the existing tree canopy. In my assessment, I accept Mr Darroch's evidence and council's officer's opinion that the proposal, while excavation is required will not significantly alter the landform or change the existing tree canopy of the precinct. The proposed development will sit comfortably on the site with the concentration of the bulk towards the rear. This minimises the impact of the bulk on the streetscape and allows the relatively steeply sloping topography to be read. When viewed from Parsley Bay Reserve the parties agreed that the presentation is appropriate. 80In my assessment the proposal is not inconsistent with the objective "to maintain mature street trees, grass verges and garden paintings". The landscape plan provides for deep soil planting to complement the built form and provide the appropriate landscape setting to satisfy this objective. 81The other objectives for the desired future character are not contested nonetheless in my assessment the proposal is consistent with "protecting views" and maintaining "the evolution of low rise residential building styles through the introduction of good contemporary buildings". The footbridge provides an effective and visible entrance to the dwelling and I do not accept that it has an unreasonable impact on the aural or visual privacy of no.12. The entrance and path is not an entertaining area and the rooftop garden provides the necessary view corridor for no.12. 82The objectives in the DCP for building size and location that the respondent contests that the proposal is inconsistent includes: 5.2.1 "to preserve and establish vegetation networks by ensuring sufficient area for deep soil planting and setbacks between the rear of the building". I accept the applicant's evidence and the council offices report and I am satisfied that the design of the proposal meets this objective, and provides for adequate deep soil planting as shown on the landscape plan. 83The other objective contested is that of limiting site excavation and minimising cut and fill so that the building relates to the topography and to protect the amenity of adjoining properties both during and after construction. While the design of the building requires excavation I am satisfied the building form relates to the topography and the amenity of adjoining properties is protected. In this regard, a geotechnical and hydrological report was furnished. This makes recommendations for the proposed excavation, including the requirement for dilapidation reports of adjoining dwellings and the methods of excavation. This report also anticipates the proposed development would not have a significant effect on the natural groundwater flow. 84The second contention raised by the respondents is specifically on clause 18 of the LEP relating to excavation and in my assessment I accept the evidence of the applicant's experts and the officer's comments that appropriate conditions can be imposed that satisfy the criteria set out in subclause 1 cited above. 85The design of the dwelling in my assessment provides a good resolution to satisfying the objectives of the DCP despite numeric non-compliances. Furthermore the development control plan calls for a performance-based approach to direct the design of housing developments as this allows flexibility for innovation and expression in building design, while at the same time ensuring developments meet important neighbourhood character and site planning objectives. 86The DCP in the preliminary section also advises designers of the need to read all sections of the DCP in order to make sure that they have met the DCP's performance requirements for individual precincts. Mere compliance with the numeric controls would not necessarily warrant approval of a development application and the precinct objectives must be carefully considered together with the view sharing objective. In this regard, a dwelling that complied with the side and rear boundary setbacks and storeys and built forward on the site as for the adjoining dwellings would not provide a view corridor for No.12 as the design before the Court maintains. 87Furthermore, and importantly, the variations to the DCP controls, including the third storey, do not create adverse impacts for adjoining dwellings that would warrant refusal of the application in terms of privacy, aural or visual, overshadowing, or bulk and height. Similarly the additional floor space from 0.55 to an FSR of 0.63 does not impact on amenity, or view loss or result in a building that is bulky. 88The proposal before the Court in my assessment meets the objectives and intent of the DCP on a holistic assessment. Furthermore there are no non-compliances of the numeric provisions either in isolation or collectively that would warrant refusal of the application. 89I have assessed the development application before me under section 79C and I do not rely on the existence of the current consent or the location of the existing dwelling on the site to justify the proposal. By way of comment only, the current consent has similarities with the proposal before the Court, however the council approved development provides car parking at the front of the site as opposed to the proposal where the double garage is accessed off the driveway under the roof top garden and is contained on the site. 90The third contention raised by the respondent refers to numerous non-compliances with council's envelope controls, building footprint, floor space ratio, and setbacks. These matters have formed part of my assessment above and in isolation or in combination these also would not warrant refusal of the application that in my assessment has merit when assessed against the suite of controls and guidelines. 91I accept the provisions of the DCP must be a central focus to take into consideration in my assessment of the merits of the application. However, in the circumstances of this case having regard to a holistic reading of the DCP, including the performance based approach required and the objectives, the plans now before the Court in my assessment satisfy the objectives, including those identified by the Council in the contentions above. 92Accordingly, based on my assessment above, the formal orders of the Court are: (1)The appeal in respect of the property known as no. 12A The Crescents Vaucluse is upheld. (2)The development application submitted to Woollahra Council and as amended, is granted development consent subject to the conditions in Annexure 'A'. (3)The exhibits are returned to the parties with the exception of: exhibits 1, 2, 5, 6; and exhibits A, E, F, G, H and K. J S Murrell Commissioner of the Court ********** Annexure 'A' - Conditions of Consent 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. Decision last updated: 03 February 2011