Land and Environment Court New South Wales Medium Neutral Citation: Lambropoulos v Waverley Council [2011] NSWLEC 1119 Hearing dates: 28 March 2011 Decision date: 29 March 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The applicant is to serve amended plans by 5 April 2011. 2. The council is to serve amended conditions by 8 April 2011. 3. The parties are to file agreed plans and conditions by 12 April 2011. 4. Liberty to restore on two days notice. Catchwords: APPEAL:- Development Application -residential flat building. Side setbacks and use of attic level for living areas and terraces. Impacts of height, bulk, privacy, solar access and view loss. Amended plans. Legislation Cited: Waverley Local Environmental Plan 1996 Category: Principal judgment Parties: APPLICANT Harry Lambropoulos RESPONDENT Waverley Council Representation: APPLICANT Mr G Green, solicitor RESPONDENT Mr M Staunton, barrister APPLICANT Pikes Lawyers RESPONDENT Wilshire Webb Staunton Beattie File Number(s): 10582 of 2010 Judgment 1COMMISSIONER: This is an appeal against the deemed refusal by Waverley Council (council) of a development application (278/ 2010) to demolish the existing dwellings and construct a residential flat building with fifteen units and basement parking for sixteen cars at 37-41 Ramsgate Avenue, Bondi (site). 2The site, its locality, the history of the application and the planning controls are detailed in the amended Statement of Facts and Contentions. Evidence 3The Court visited the site and heard evidence from objectors. Their principal concerns related to the loss of views, inadequate parking provision, noise and privacy impacts and loss of solar access. 4Ms A McCabe, for the applicant and Mr N Kennan, for the council provided expert planning evidence. 5The experts agreed that the proposal does not comply with some numerical controls in Waverley Development Control Plan 2006 (WDCP). However they disagree whether, despite these numerical non-compliances, the proposal meets the objectives of these controls. 6The proposal has a floor space ratio (FSR) of 1.36:1, which exceeds the FSR control in part D2 3.4 of WDCP of 0.9:1. Mr Staunton, for the council, submits that strict compliance with the FSR control is not pressed provided the proposal achieves an envelope that meets the other requirements of WDCP, principally the western side setbacks. 7Part D2 3.7 of WDCP requires a minimum side setback of 4.5 m whereas the proposed western setback is 3 m. 8Part D2 4.4 requires the attic level to be setback a minimum of 2 m from the edge of the building below. The proposed attic level is setback less than this. 9The other key issue in dispute is the compliance of the attic level with the controls in part D2 4.4 and 5.2 of WDCP, in particular, the use of the attic for living and dining rooms and the provision of roof terraces. 10The compliance, or otherwise, with numerical controls must be considered within the framework established by part D2 1.5 of WDCP, which relevantly provides: This Part contains objectives, performance criteria, strategies and controls. The objectives for each topic describe the intention of the control, the strategy describes the process of achieving the objective, the controls outline criteria required to achieve compliance with this Part. ...... Development controls are not normally varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider relaxing the control. Conversely, having regard to the physical characteristics of the site and the nature and proximity of adjoining nearby development, Council may require a more restrictive control so as to minimise or eliminate any likely negative impacts. Side setbacks 11The objectives of the side setback control in part D2 3.7 are: + to minimise the impact of development on light, air, sun, privacy, views and outlook for neighbouring properties, including future buildings, + to retain development patterns that positively defines the streetscape. 12Ms McCabe and Mr Kennan held different opinions on whether these objectives for the western side setbacks were achieved. In Ms McCabe's opinion, the proposed setback minimises the impact on neighbouring properties and is consistent with existing gaps between buildings and the streetscape. She considers that the adjoining residential flat building at 35 Ramsgate Avenue is unlikely to be redeveloped given the scale and site coverage of the existing building and that it is orientated to three street frontages. Mr Kennan is principally concerned that the reduced western setback would restrict options for redevelopment of 35 Ramsgate Avenue, particularly refurbishment, which he considers to be highly likely given the existing internal access way is orientated to the east and towards views of the beach. Findings 13I do not accept that compliance with the side setback control is unreasonable or unnecessary in the circumstances in this case. The proposal exceeds the FSR in WDCP and there are no particular features of the site or constraints, which necessitate varying the side setback control to the extent proposed. 14I acknowledge that the existing house on the site is setback less than the proposal, however the existing house is single storey and of considerably less bulk than what is proposed. A greater gap between the proposal and 35 Ramsgate Avenue is required to limit the combined bulk of these two buildings and prevent them reading as a single mass. Further, while the gap between other buildings and the street is smaller than what is proposed, this does not 'positively define the streetscape' nor does it provide opportunity for landscaping and separation to the extent sought by the controls. 15I note Mr Green's submission, for the applicant, that the eastern side setback exceeds the control by providing a setback of 5 m, however this does not justify a reduced setback on the western side. The setback on the east accommodates the driveway access to the development and is required to reduce overshadowing of the adjoining building at 43 Ramsgate Avenue. The 4.5 m side setback control in part D2 3.7 is a minimum which may need to be increased to meet the objectives of the control, including overshadowing. 16The recent development to the rear of the site at 138-140 Warners Avenue is set back 4,125 mm from its western boundary. The proposal should be set back the same distance. This would provide a consistent gap between these two buildings, which would 'positively define the streetscape'. This gap would provide opportunities for views to Campbell Parade, and potentially Bondi Beach, for pedestrians using Ramsgate Avenue, occupants of buildings opposite the site and any future refurbishment or redevelopment of 35 Ramsgate Avenue. Attic level setback 17The attic level is not set back 2 m from the building below on the western side as required by D2 4.4 of WDCP. Ms McCabe considers that this is acceptable as there is a considerable setback to the east, which minimises overshadowing impacts on 43 Ramsgate Avenue and facilitates view sharing to properties on the northern side of Ramsgate Avenue. Ms McCabe acknowledges that due to the reduced setback the attic level will be visible but does not consider this to be unacceptable. 18Mr Kennan considers that the height control envisages a three-storey building and that to achieve this the attic level should be set back from the street wall. Findings 19The objectives of part D2 4.4 of WDCP for attic levels includes: + to minimise the impact of attic levels and plant/service areas when viewed from the street. 20This objective needs to be considered together with the objectives, strategies and controls for height in part D2 3.3. In particular, the height control for the 2 (c1) Residential Zone limits the maximum number of storeys to three, but may permit an attic level in accordance with the requirements of part D2 4.4. The minimum setback of 2 metres of the attic level assists in maintaining the overall appearance of the building as three storeys while permitting additional accommodation on the upper level. 21There are no particular circumstances of this case whereby compliance with the attic level setback control is unreasonable or unnecessary or constraints that mean that the required 2 m setback cannot be achieved. The reduced setback results in the proposal clearly reading as a four storey building from certain vantage points which does not achieve the objectives of the height control. The attic level should be set back 2 m from the western edge of the building below. Use of the attic level 22Unit 12 and 13 propose living and dining rooms and associated terraces at the attic level with bedrooms on level 3. The principal disagreement between the planners is the use of the proposed attic level and the precedent that this may set. Mr Kennan is mainly concerned that the large terraces accessed of the living and dining areas are the principal outdoor areas of these units. He considered that these terraces would be used to a much greater extent than smaller terraces accessed off bedrooms and are inconsistent with the objectives and controls for attic levels. Mr Kennan acknowledges that the visual privacy impacts could be mitigated by planter boxes but considers that the increased usage of the terraces would result in adverse acoustic privacy impacts for nearby residents. In his opinion, the attic level should be used for bedrooms and the living and dining areas should be on level 3. 23Ms McCabe considers that the separation of the terraces and living and dining areas from other buildings together with the planter boxes would ensure a level of both acoustic and visual privacy consistent with the urban context of the site. Findings 24The objectives in part D2 4.4 for Roof Design of Attic Levels provide: + to maintain the impact of attic levels and plant/service areas when viewed from the street. + to allow a variety of roof forms in response to the context. + to maximise the environmental performance of attic rooms. 25The controls in part D2 4.4.3 for Part Additional Floor/Flat roof attic in the 2(c1) Residential zone include: (e) Part additional floors must not contain independent dwellings and must be connected to a unit on the level below. (f) Part additional floors may not be used where they compromise the privacy of residents within the development, or within neighbouring buildings. (g) Part additional floors may access a roof terrace. These areas are to be designed to minimise opportunities for overlooking. 26The controls in part D2 4.4.3 for Roof Structures and Building Service Elements also include the following requirement: Roof terraces are generally not permitted throughout the Waverley LGA. Small roof terraces (areas of less than 15sqm) may be permitted only in areas where the predominant character includes roof terraces and the proposed roof terrace will not result in unreasonable amenity impacts on the surrounding neighbourhood. 27Part D2 5.2 provides the following objectives and strategies for Habitable Attic Rooms: Objectives + ensure that attic rooms achieve good residential amenity and environmental performance. Strategy + Design attic rooms to perform at an environmental level comparable to other habitable rooms within the development. + Restrict the size and impact of attic room on the overall scale of the development. 28The controls in part D2 5.2.3 relevantly include: (d) Attic spaces must not contain living and dining rooms, and must be attached to the unit on the floor below. (e) Attic rooms must not allow overlooking of adjacent dwellings or their private open spaces. 29The principal concern of Mr Kennan relates to the use of the large roof terraces which are accessed off living and dining rooms. I accept his evidence that these areas would be utilised to a greater extent than if they were accessed off bedrooms and that the terraces have the potential to be used, albeit only occasionally, more intensively and with greater impact than that envisaged by the planning controls. However these likely impacts need to be considered against the particular circumstances of the case. 30The attic level enables views over 138-140 Warners Avenue to Bondi Beach and would therefore provide considerable amenity to indoor and outdoor living areas of the development. The attic level is above the height of 138-140 Warners Avenue and therefore a terrace at this level, if restricted in size, may result in less impact than a terrace off a living and dining area at level 3, which would be at the same level as the bedrooms of 138-140 Warners Avenue. The terraces on the attic level to the north, which face 56, 58 and 60 Ramsgate Avenue, are set back further than the terraces proposed on level 3 which are off bedrooms. If the attic level terraces were restricted in size, they would result in a similar or lesser impact than if the terraces on level 3 were off a living and dining area. 31Given these circumstances, while the use of the attic level for living and dining areas does not comply with part D2 5.2.3(d) it meets the objective of the control "to ensure that attic rooms achieve good residential amenity and environmental performance". Of itself, the use of the attic does not result in any unacceptable overlooking of adjacent dwellings nor would the use of these rooms for living and dining areas result in unacceptable acoustic privacy impacts. It is the use of the terraces off these areas about which there is concern and it is these areas that must be reduced in size to better comply with the control in part D2 4.4.3 which seeks to limit the size of roof terraces. 32The variation to the control in part D2 5.2.3 responds to the particular circumstances of this case. Other applications would need to be considered on their merits and their particular circumstances. This approval would therefore not set a precedent for other applications. Other matters. 33The principal concern of the objectors related to view loss. The planners agree that acceptable view sharing to the units in 60 Ramsgate Avenue has been achieved given the increased eastern setback and the retention of the primary views of Bondi Beach and the land-water interface. The planners also agree that views of the ocean and sky from the residential flat building at 46-48 Ramsgate Avenue would be removed but that this was the inevitable consequence of developing the site in accordance with the planning controls. 34The number of proposed parking spaces complies with the requirements of the WDCP and was not raised as an issue by council. 35The noise of the car park door and concerns about damage during construction raised by the owner of 43 Ramsgate Avenue can be addressed by conditions. 36Council did not press the issues raised by the owner of 138-140 Warners Avenue in relation to overshadowing. The planners did not consider that the overshadowing of this property was unacceptable. 37I am therefore satisfied that the changes outlined in this judgment would reduce the impact of the proposal to an acceptable level which meets the requirements of Waverley Local Environmental Plan 1996 and Waverley Development Control Plan 2006. 38Mr Green indicated during the hearing that the applicant would agree to changes if required by the Court. Mr Staunton raised no objection to further changes provided that amended plans were submitted rather than the changes being required as conditions of approval. In these circumstances, it is appropriate that Directions be issued to finalise the plans and conditions. Final orders will be issued in Chambers that uphold the appeal once the amended plans and conditions, which reflect this decision are finalised. Directions 1. The applicant is to serve amended plans by 5 April 2011. 2. The council is to serve amended conditions by 8 April 2011. 3. The parties are to file agreed plans and conditions by 12 April 2011. 4. Liberty to restore on two days notice. Annelise Tuor 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. Decision last updated: 23 May 2011