Land and Environment Court New South Wales Medium Neutral Citation: Lederer v Woollahra Municipal Council [2011] NSWLEC 1190 Hearing dates: 30 June and 1 July 2011 Decision date: 11 July 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to amend the development consent (95/2009) for the demolition of the existing dwelling and construction of a new dwelling at 108 Wolseley Road, Point Piper, is refused. 3. The exhibits, except Exhibits C and D, may be returned. Catchwords: APPEAL - application to modify the development consent for a dwelling to provide two single garages at the street front and consequential internal changes. Impact on streetscape, landscaping and view corridors. Desired future character. Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley [2004] NSWLEC 91 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Paul and Eva Lederer (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel Mr J Ayling, SC (Applicant) Mr N Howie, solicitor (Respondent) Solicitors Landerer & Co (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10314 of 2011 Judgment 1This is an appeal against the refusal by Woollahra Municipal Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to amend the development consent (95/2009) for the demolition of the existing dwelling and construction of a new dwelling at 108 Wolseley Road, Point Piper (the site). The proposal 2The application is seeking to amend the approved single garage (south garage) by relocating it forward to the street alignment and provide an additional single garage (north garage), which also extends from the house to the street front. The proposal involves consequential internal amendments to provide a study in an area approved as part of the garage. The application also seeks approval to relocate the car lift in the south garage and reduce the size of the approved basement, which provides an additional two car parking spaces. The excavation for the approved basement garage has already occurred and consequently the amendment would require part of this area of the site to be filled. The site and its locality 3The site is located on the lower, western side of Wolseley Road. It has a street frontage of about 18.5m and a total area of 918sqm, which includes an area of land (25sqm) on the harbour frontage that houses a boatshed and slipway. This part of the site is accessed via stairs and a tunnel access from the house to the boatshed has been approved under a modification to the development consent (DA/95/2009/3). The site slopes from Wolseley Road to the Harbour about 24m. 4The previous house and garage have been demolished and the site is presently being excavated in accordance with the development consent. 5The site adjoins a driveway to the north that provides access to houses at 110 and 112 Wolseley Road which are located below and to the rear of the site. The site has a right of carriageway (RoW) over this driveway. 6At street level, to the north of the (RoW), is a two storey dwelling (114 Wolseley Road) which is setback from the street front with a double garage built to the street alignment. The Court has granted consent orders ( Lim v Woollahra Municipal Council [2010] NSWLEC 1252) to a development application to demolish the existing house and garage and construct a new house which is setback about 4m from the street front with a double garage incorporated within the dwelling. A subsequent modification approved an awning over the pedestrian entry to the dwelling. Construction of the dwelling in accordance with the development consent has not commenced. 7To the south, the site adjoins a dwelling which has a single storey double garage and entry area built to the street alignment (106A Wolseley Road). 8The western side of Wolseley Road slopes down to the harbour and development in the vicinity of the site is predominantly detached one and two storey houses with no consistent architectural style. Garages, carports, walls and some houses are built to the street alignment, others are setback to varying degrees. There are gaps and driveways between some houses which provide views to the water. 9Dwellings on the opposite side of Wolseley Road are elevated above the roadway with the front boundary formed by either an exposed rock shelf and/or retaining walls with various openings for garages and pedestrian entries. 10Further to the south, development on Wolseley Road is predominantly residential flat buildings of different periods and sizes. Planning controls 11The site is zoned 2(a) Residential under Woollahra Local Environmental Plan 1995 (WLEP). The proposal is permissible with consent. The zoning on the western side of Wolseley Road changes to 2(b) Residential to the south of 80 Wolseley Road. Residential Flat Buildings are permitted within the 2(b) zone. 12Woollahra Residential Development Control Plan 2003 (DCP) is also relevant. Part 4 of the DCP includes precinct controls that contain Desired Future Character Objectives and Performance Criteria for individual precincts. The site is within the Point Piper Precinct (s 4.5) which relevantly includes controls for Precinct Character (C 4.5.1), Views and Vistas (C 4.5.2), Side Boundary Setbacks (C 4.5.4), Location of Garages (C 4.5.5), Front Setbacks (C 4.5.7.1) and Deep Soil Landscape at the Frontage (C 4.5.7.7). 13Part 5 of the DCP provides general controls which relevantly include Streetscape (s 5.1), Building Size and Location (s 5.2), Views (s 5.5) and Car Parking and Driveways (s 5.9). 14Part 1 of the DCP explains its structure and s 1.5 provides that developments need to comply with each part of the DCP. The note provides that if there is a disparity, the Precinct Controls in Part 4 take precedence. 15Sydney Regional Environmental Plan (Sydney Harbour Catchment ) 2005 (the REP) also applies to the site. Clause 26 includes matters to be taken into consideration in relation to the maintenance, protection and enhancement of views. Evidence 16The Court visited the site and viewed the street. Mr G Shiels and Professor P Webber, for the applicant, and Ms D Laidlaw, for the council, provided expert planning and urban design evidence. Whether the proposal addresses the street 17The different conclusions reached by the experts reflect the fundamental difference in their approach to the assessment of the proposal. Mr Shiels and Professor Webber's approach is that: ...the proposal is consistent with the established streetscape character which includes numerous garage structures, dwellings and fencing on or close to the street boundary and is therefore acceptable in context. 18Ms Laidlaw takes the view that: ...these pre-existing structures (most approved under previous planning control regimes) represent negative streetscape qualities, and that the desired future character guided by the current DCP controls is to secure an improved streetscape, characterised by a greater degree of spatial separation between built structures and the street, a greater contribution of soft landscaping and improved view slots to the Harbour and the City. The proposal in replicating negative aspects of existing character in lieu of what the DCP control now seek, is unacceptable. 19The experts also had different philosophical approaches to other factors. Mr Shiels and Professor Webber gave consideration to the previous building on the site, which provided no view corridors, and had a double garage built to the street front. They considered that the built form in Wolseley Road is unlikely to change in the foreseeable future, as it is one of the most expensive streets in the world. They also considered that council had consistently departed from the DCP, citing approvals at 70-72, 88-90 and 114 Wolseley Road. 20In Ms Laidlaw's opinion, the applicant has chosen to redevelop the site and the previous house no longer exists or contributes to the streetscape and is therefore not a relevant matter. She considered that incrementally development and change in Wolseley Road had occurred and is likely to continue. She gave little weight to the previous approvals, noting that 70-72 Wolseley Road is in the 2(b) zone which she considered had a different character. The previous approvals within the 2(a) zone responded to the objectives of the DCP given the constraints of their sites. She noted that 88-90 Wolseley Road has two separate double garages, and the setback varies from nil to 4m to respond to the splayed frontage. The northern garage is open on three sides and permits views to the harbour. The double garage in 114 Wolseley Road is incorporated into the building which, except for a minor entrance canopy, is setback 4m from the street frontage. 21The difference in approach between the experts can be summarised as whether the proposal should respond to the existing character of the street or the desired future character sought by the DCP. There was some disagreement on the extent of non-compliance with the numerical controls in the DCP, the acceptability of the non-compliance and the impact on the streetscape. The key controls in dispute relate to the garages being forward of the building line, the width of the garages and the amount of deep soil landscaping. The differences are discussed in the following findings. Findings 22The approach to the planning framework established by the DCP and its application is set out in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ at [75] raises three important propositions. Firstly, although the Court has wide-ranging discretion, the discretion is not at large or unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element or a focal point in the decision making process, particularly if there are no issues relating to compliance with the local environmental plan. Thirdly, a provision in the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative. The third proposition provides for some flexibility in the application of provisions in the DCP. 23The introduction to Part 4 of the DCP explains the application of the Precinct Controls as: The desired future character objectives for each precinct describe the outcomes that are required to be achieved through development within the precinct. ..... The performance criteria describe specific ways in which the desired future character objectives can be met. In particular, the performance criteria for each precinct require developments to preserve or enhance the important character elements for the precinct, where these are relevant to the site. 24The Desired Future Character Objectives for Point Piper Precinct relevantly include: .... O 4.5.2 To maintain the sense of the historic grand estates by retaining the garden settings and streetscape elements; ...... O 4.5.5 To ensure that residential development addresses the street; O 4.5.6 To ensure that built form and streetscape elements reinforce the hierarchy of curving streets and lanes; O 4.5.7 To protect important views from the public spaces of the precinct to the harbour and to the surrounding districts; .... 25The Desired Future Character Performance Criteria for Precinct Character provides: C 4.5.1 - Precinct Character: Development respects and enhances the existing elements of the local neighbourhood character that contribute to the Point Piper Precinct including: · a rich mixture of architectural styles and forms; · the stepping of development on the hillside; · the well established gardens and trees; · the curvilinear streets following the contours of the land; · the mature street trees; and · the extensive views afforded from the public spaces. 26Mr Ayling SC, for the applicant, and Mr Howie, for the council, made different submissions as to whether the proposal achieves the Desired Future Character objectives and complies with performance criteria for the Point Piper. 27Mr Howie submits that the proposal does not meet the Desired Future Character objectives, in particular that residential development address the street, as the garages do not comply with a number of the Desired Future Character performance criteria, including front setback (C 4.5.7.1), location of garages (C 4.5.5) and deep soil landscape at the frontage (C 4.5.7.7). Mr Ayling interpreted these performance criteria in a manner that led him to conclude that the proposal complies with these criteria and therefore meets the objectives. 28The performance criteria for front setback in C 4.5.7.1 of the DCP provides: The front setback is to conform to the front setback requirements specified in Part 5.2. Buildings are to address the street frontage. On sites on the low side of the street, Council may consider a variation to the front setback control - to a minimum setback of 4 metres - where the gradient measured to a distance of 7 metres from the street frontage is greater than 1 in 3. In such instances garages must be incorporated into - and not project forward of - the rest of the building. 29The assumption of the experts and the basis for assessment of the development application for the site and the application at 114 Wolseley Road is that a minimum front setback of 4m is required in accordance with C 4.5.7.1. 30In Mr Ayling's submission, C 4.5.7.1 requires the front setback to conform to the requirements in s 5.2. In oral evidence, Mr Shiels and Ms Laidlaw attempted to calculate the front setback required under C 5.2.2. Mr Shiels estimated that a nil setback would be required whereas Ms Laidlaw estimated the setback to be between 3 to 4.5 m. Mr Ayling, submits that the variation to the front setback control which permits a minimum setback of 4 m is not relevant as the control is nil and is therefore already below the minimum permitted by the variation. 31I acknowledge that there is a degree of ambiguity in determining the required setback for a building on the site. A final determination of the setback would require a closer analysis of the DCP and the adjoining buildings. However, it is not necessary for me to determine the minimum front setback as the development consent approves a front setback of 4 m to the garage and the ground level colonnade, with the front wall of the house setback 6 m. 32C 4.5.5 (B) of the DCP requires that 'all garages and car parking structures are to be behind the building line'. Under the DCP 'building line' is defined as: Building line means the street addressing wall of a dwelling house, dual occupancy or residential flat building (not including forward projections accommodating car parking and the like). 33Under the development consent the 'street addressing wall' which constitutes the building line, is setback 6m from the front boundary. The development consent permits a variation to C 4.5.5 (B) by allowing the approved south garage to project two metres forward of the building line. The proposal seeks a further variation to allow the south garage to project 6m forward of the building line and a new north garage to also project 6m forward of the building line. 34Even if a minimum nil front setback were permissible under C 5.5.2 the house is setback with an approved building line of 6m. There is no proposal to change the approved building line. Therefore the proposal does not comply with the requirement in C 4.5.5 (B) for garages to be behind the building line. 35C 4.5.5 (B) of the DCP also includes the requirement that 'all garages and car parking structures...are limited to a width, as presented to the street,...no greater than 40% of the site frontage width - where the frontage is less than 20 m'. Ms Laidlaw estimated that the garages occupy 49.7% of the frontage, whereas Mr Shiels and Professor Webber estimate 39%. The difference results from whether the garage width is measured at the street frontage where it is narrowest (Shiels and Webber) or one metre from the street front where it its wider width presents to the street (Laidlaw). 36I accept Ms Laidlaw's position. The width of the garages that would be presented to the street would be the wider dimension given that this is setback only a small distance from the front of the garages. The width of the garages, as presented to the street, would also be emphasized given that they project forward of the building line. 37C 4.5.5 (A) includes the requirement that 'a ll garages, car parking structures and driveways are designed and located so as not to dominate the streetscape'. 38The key dispute between the experts was whether the projection of the garages forward of the building line and their width dominate the streetscape. 39There is a mixture of styles and types of garages as well as high fences and dwellings which are located on or close to the street boundary in Wolseley Road. The experts generally agree that this forms the established streetscape character. As such it could be argued that the existing garages 'dominate the streetscape'. The question is therefore whether two additional garages will further dominate the streetscape. The evidence of Mr Shiels and Professor Webber is that the proposed garages are consistent with this existing character. I accept this position, but in doing so I accept that they will further contribute to a streetscape character which is dominated by garages. 40Mr Ayling submits that the objectives and performance criteria for Streetscapes in s 5.1 of the DCP seek to 'ensure that development contributes to cohesive streetscapes' (O5.1.3). He submits that existing garages form a cohesive streetscape character and that the proposal will contribute to this character. This submission ignores the other objectives of s 5.1 which seek to achieve development 'in keeping with the desired future character for the locality' (O 5.1.1) that 'contributes to...desirable pedestrian environments' (O 5.1.3) and recognizes predominant streetscape qualities'. The Performance Criteria for Street Character in C 5.1.2 provides: The design and location of garages, parking structures and driveways is to conform to the desired future character objectives and performance criteria for the locality described in Part 4. 41The Desired Future Character objectives and performance criteria for the Point Piper Precinct do not identify the character of Wolseley Road to be one where garages are dominant elements in the street. On the contrary, C 4.5.5 requires that garages are to be behind the building line and occupy only a percentage of the street frontage so as to not dominate the streetscape. 42I accept Ms Laidlaw's approach to the precinct controls in the DCP as being one which does not seek to emulate negative aspects of the existing character of Wolseley Road but rather seeks to identify and reinforce 'streetscape qualities' of the precinct. The reinforcement of a streetscape characterised by garages is not identified in the Desired Future Character objectives or as being elements that contribute to the precinct character in the performance criterion (C 4.5.1). Rather garden settings are what is sought to be achieved. 43The agreed position of the experts is that the proposal will result in a net loss of deep soil landscaping of 6.65sqm. Ms Laidlaw notes that there will be a further reduction of 5.3sqm of landscape area (not deep soil as it is over the approved basement garage). She considers that there will be a qualitative loss in the landscape setting of the dwelling. Whereas, Mr Shiels and Professor Webber consider that the proposal will result in a central courtyard area of deep soil landscape which will result in a qualitative improvement in the streetscape and be consistent with the design of the dwelling. 44C 4.5.7.7 of the DCP requires a minimum of 40% of the front setback to be deep soil landscape. Mr Ayling submits that as a nil front setback is required, no deep soil landscape is required and the proposal complies with the performance criteria in C 4.5.7.7. I do not accept this submission. As stated above, the development consent is approved with a front setback of 4m. This setback is therefore required to be provide deep soil landscaping in accordance with C 4.5.7.7. 45The assessment report for the s96 application states that the approved deep soil landscaping in the front setback is 25sqm (32%) where 31sqm (40%) would be required to comply with the performance criteria in C 4.5.7.7. This amount will be reduced by a further 6.65sqm by the proposal. In addition, some 5.3sqm of what was approved as landscape area would be occupied by the north garage. While this area was not technically deep soil (as it was over the basement garage) it contributed to the landscape setting of the dwelling. The increase in deep soil planting (7.2sqm) achieved through the reduction in the basement area was also approved as landscaped area and contributed to the landscape setting of the dwelling. 46The approved landscape plan shows the front setback area as being a 'planted sculptural entry forecourt with mixed topiary evergreen and deciduous shrubs aligned to grid seasonal interest and scent'. Qualitatively the approved area, which includes both the areas of deep soils landscaping and landscaping, provides a landscape setting for the house which would be reduced by the proposed garages. There is no justification to further vary the control in C 4.5.7.7. 47The fact that the previous double garage was located on the street front has little relevance to the s 96 application given that the structure is no longer part of the streetscape and, even if it was, it is not what is sought by the Desired Future Character for the precinct. 48The previous approvals under the DCP provide no justification to support the current application. Variations to numerical controls are acceptable provided the objectives of the control are achieved and there are circumstances of the case which justify a variation. In assessing those applications council found that the variations to the numerical controls were appropriate. This does not indicate that council has inconsistently applied or abandoned its controls rather that in the particular circumstances of those applications variations were considered appropriate. 49Further, I do not accept that other sites in the street are unlikely to be redeveloped because of the value of the land and that the Desired Future Character for the precinct will not be achieved. On the contrary, the value of the land appears to facilitate the replacement of existing dwellings with new dwellings that better meet their owners' expectations as evidenced by the approval on the site and the adjoining approval at 114 Wolseley Road. Even individually, these two approvals will make a significant contribution to the achievement of the Desired Future Character in this part of Wolseley Road. 50Roseth SC in Super Studio v Waverley [2004] NSWLEC 91 and Pafburn v North Sydney Council [2005] NSWLEC 444 established the principle that: in assessing an impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal than adding a balcony to a dwelling that already has six balconies. 51In this regard, I note that the development consent approves a single garage at street level with a further two spaces approved at basement level accessed via a car lift in the south garage. I recognise that it would be more convenient if an additional garage could be provided at street level but I do not accept that the need for this space overrides the objectives and performance criteria for the precinct. Particularly as the development consent is to replace an existing dwelling with a new dwelling on a site of over 900sqm with a street frontage of over 18m where significant excavation and changes to topography have been approved. 52It would appear to be a relatively easy exercise to provide a double garage or alternatively two single garages at street level behind the building line (or in line with the approved colonnade). This would require internal replanning but is clearly achievable. Alternatively, a car space in addition to the approved south garage may be able to be provided but this would depend on maintaining the landscape character of the front set back through the use of permeable surfaces and planting. Views 53The other issue in dispute is whether the garages would impact on the view corridors created by the side setback of the building. The experts agree that the south garage would have a negligible impact on the view corridor approved along the southern boundary. The north garage will impact on the view corridor approved along the northern boundary but the experts disagree on the reasonableness of the impact. 54Mr Shiels and Professor Webber considered the proposal increased the views available when compared to the previous house on the site and other houses in the street. Further, the proposal was an improvement when compared to the approved landscape plan which included palms in the southern setback which would impact on views. They did not consider the street to be highly used by pedestrians or that the maintenance and enhancement of views to be significant given the existing context of the street. 55Ms Laidlaw considered the impact on the view corridor to be unacceptable given that the approval already did not provide the 3m side setback required under C 4.5.4 of the DCP and the performance criteria for views and vistas in the Point Piper Precinct. (C 4.5.2). Ms Laidlaw accepted that Wolseley Road was not a major pedestrian street but stated that it was used by pedestrians. In her opinion, the views through the proposed corridors and other corridors in the street across the Harbour to the City, Harbour Bridge and North Sydney provided significant amenity to the public domain. She also did not accept that, when mature, the approved palms would significantly intrude into the view corridor. Findings 56Mr Ayling submits that the Desired Future Character objectives and performance criteria for the Point Piper Precinct in Part 4 and in the general controls in Part 5 of the DCP seek to preserve important views. He submits that these are limited to those views identified on the Point Piper Precinct Map and to existing views. I do not accept this submission. A review of the planning framework in which the application must be assessed clearly indicates the importance of protecting and, where possible, providing views from public places, including streets. 57The description of the Point Piper Precinct includes: Where available, the views and glimpses of the harbour between buildings and trees allow for a stimulating pedestrian environment. The streetscape qualities of the precinct, however, vary in their landscape quality, and often front fences and walls and car parks on the street edge block views from the footpath. 58The Desired Future Character objectives include: O 4.5.7 To protect important views from the public spaces of the precinct to the harbour and to the surrounding districts; 59The Desired Future Character performance criteria for Precinct Character (C 4.5.1) identifies ' the extensive views afforded from the public spaces' as an element that contributes to the existing character which should be respected and enhanced . The performance criterion for Views and Vistas (C 4.5.2) provides: Development maintains the views and vista corridors shown on the precinct map. Development on the low side of the street is to preserve views from the street to surrounding areas by providing substantial breaks between buildings, car parking and other structures and front fences. 60The general controls in s 5.5 of the DCP explain the importance of: Public views from streets, footpaths, parks and other public areas are among Woollahra's most prized assets and are key elements of the municipality's identity. These may take the form of discrete views between buildings and vegetation, more open views across the harbour and local landscape from public parks, or more defined vistas along streets terminating at Sydney Harbour or local landmarks. Important views and vistas are identified in Part 4: Precinct Controls. The preservation and, wherever possible, enhancement of public views help to maintain legibility within Woollahra by allowing people to see and interpret the surrounding landscape and landmark features. Public views also allow interpretation of Woollahra's scenic beauty and special character. 61The objectives and performance criteria in s 5.5 seek to 'protect' and 'provide additional views and vistas from streets... where opportunities arise' 62The importance of protecting and, where possible, providing and enhancing views from public places is also recognised in the aims of WLEP (cl 2(2)(h)(v) and the matters to be considered in SREP (cl 26). 63The question is therefore whether the impact on the views from the public street to the surrounding area available through the approved corridor is acceptable. 64Mr Ayling submits that no view corridors were previously available and the development consent approved palm trees in the north corridor which would restrict views. The south corridor is more important as it provides views to the City and the Harbour Bridge and this will not be affected by the proposal. In his submission, pedestrians do not use the street. Given these factors, the impact on the view corridor from the north garage is acceptable. 65The performance criterion for side setbacks in C 4.5.4 requires a 3m side setback. The development consent does not comply with this requirement. The approved setback on the northern boundary is a minimum of 1.5m, which was considered reasonable given that it adjoins a RoW. The projection of the north garage will result in a minimum side setback of 700mm at the front boundary. The garage has glass openings on three sides to maximise views along the corridor created by the side setback. However, the structure will intrude to some extent into the views and will reduce the side setback at the street frontage. 66While I acknowledge that the north garage has been designed to minimise its impact on the view corridor, the agreed position of the experts is that there will be reduction in the view corridor available. As discussed above, the magnitude of the impact needs to be balanced against the necessity and reasonableness of the proposal that creates it. In undertaking the balancing exercise, the necessity for the proposal does not justify a further variation to the side setback control or a further reduction in the view corridor. The deletion of the palms from the approved landscape plan would be of some benefit but, of itself, this would not warrant approval of the north garage. Orders 1. The appeal is dismissed 2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to amend the development consent (95/2009) for the demolition of the existing dwelling and construction of a new dwelling at 108 Wolseley Road, Point Piper, is refused. 3. The exhibits, except Exhibits C and D, may be returned. 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: 12 July 2011