Burgess-Hoar v Waverley Council [2012] NSWLEC 1160

Land and Environment Court New South Wales

Medium Neutral Citation: Burgess-Hoar v Waverley Council [2012] NSWLEC 1160 Hearing dates: 7 and 8 May 2012 Decision date: 09 May 2012 Jurisdiction: Class 1 Before: Tuor C Decision: (1)The appeal is upheld; (2)The development application for two new dwellings, subdivision and boundary adjustment at 1 and 3 Tipper Avenue, Bronte, is approved subject to the conditions in Annexure A; and (3)The exhibits, except Exhibits A, B, H and 2, may be returned. Catchwords: DEVELOPMENT APPLICATION - dwelling house. Impact on public and private views, building bulk and location of garage. Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Lisa Burgess-Hoar (Applicant)

Waverley Council (Respondent) Representation: Dr S Berveling, barrister (Applicant)

Mr S Patterson, solicitor (Respondent) Solicitors Gadens Lawyers (Applicant)

Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10232 of 2012

Judgment This determination was given extemporaneously and has been edited prior to publication 1COMMISSIONER: This is an appeal against the deemed refusal by Waverley Council (council) of a development application under the Environmental Planning and Assessment Act 1979 for 1 and 3 Tipper Avenue, Bronte (site). 2The application involves: * re-subdivision of 1 Tipper Avenue from 730.6 sqm to 325 sqm and 3 Tipper Avenue from 668.2 sqm to 1,073.8 sqm; * demolition of the existing house on 1 Tipper Avenue and construction of a new two storey dwelling; * demolition of most of the existing house on 3 Tipper Avenue and the addition of a new part one/part two-storey dwelling over the sandstone foundations of the existing house, the demolition of the existing two-storey garage and its replacement with a new two-storey building with a double garage and the construction of a single storey wing along the southern boundary of the site which connects the two buildings; * The application also includes construction of a swimming pool on 3 Tipper Avenue and landscaping works to both properties. 3The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the council. 4The Court visited the site and adjoining properties and heard evidence from a number of objectors. The main concerns of the objectors can be summarised as: * the location of the proposed garage of 1 Tipper Avenue is dangerous as it adjoins public stairs which link the upper slopes of Bronte to the beach and are heavily used by children. The setback of the garage from the stairs is inadequate and will not maintain the view corridor that currently exists. * The unbroken bulk and height of the wing along the southern boundary (known as the Grand Hall) impacts on the amenity and outlook of the units in 5 Tipper Avenue. * The owner of 166 Macpherson Street was concerned to ensure that the proposal would not result in an increase in height above the existing house on 3 Tipper Avenue and impact on his views. He also raised concerns about the height and reflectivity of the photovoltaic cells and solar panels. * The owners of 164 Macpherson Street stated that they had not been notified of the proposal, although Council records indicate that letters were sent to each owner. They were concerned about the impact on their views by the north-west corner of the proposed house on 3 Tipper Avenue. * The objectors also raised concerns about impacts during construction of the proposal. 5The Court heard expert planning evidence from Mr A Darroch, for the applicant, and Mr G Boston, for the council. 6As a result of the concerns raised by Council in its Contentions, the additional issues raised by the objectors and the recommendations of the planning experts, the applicant agreed to the imposition of conditions requiring changes to the development application. These changes were illustrated in sketch plans, which were made available to the objectors for further comment. Mr Darroch and Mr Boston provided a summary of the changes and how these addressed the Contentions and the other matters. Contention 1 - height and view loss 7164 Macpherson Street - The original plans resulted in view loss to 164 Macpherson Street from the north-west corner of 3 Tipper Avenue (bedroom 1, en-suite and robe). The applicant has accepted a condition which moves this part of the building south by 4.4 m and limits the depth of the balcony and eaves of bedroom 1 and living room 2 to 930 mm. With these measures the experts are satisfied that acceptable view sharing is achieved. The residents of 164 Macpherson Street supported the changes. 85 Tipper Avenue - The height of the wall of the Grand Hall along the southern boundary of 3 Tipper Avenue has been reduced by 500 mm in the condition as initially proposed. The residents maintained their concerns that this wall was still too high and should be further reduced. The applicant has accepted a further change to the condition which reduces the wall height along the boundary by 900 mm and provides a 900 mm setback from the boundary for the clerestory windows. The Grand Hall, other than the clerestory windows, will have a floor to ceiling height of 2.7 m; the same as the adjoining living areas. 9The experts agree that the southern wall of the Grand Hall would be below the height of the boundary fence of 5 Tipper Avenue and that the clerestory window setback and reduced height is adequate. In their opinion, there would be no impact on views and the bulk of the wall and clerestory window would be no different to a boundary fence and a single storey building. 10The experts also agree that the landscaping on the roof should be deleted as it necessitates an increased height of the building, results in maintenance issues and an uncertain appearance. They recommended a non-reflective Colourbond roof of a recessive colour, which has been incorporated into a condition. 11166 Macpherson Street - The experts agree that the revised location of the photovoltaic cells and solar panels will not impact on the views from 166 Macpherson Street. Contention 2 and 3 - garage and setbacks 12The proposed changes increased the setback of the garage to 1.8 m and the house to 2.2 m from the eastern boundary of 1 Tipper Avenue along the public stairs. The applicant agreed to these changes. 13Mr Darroch considered the setback to be beyond what is required to maintain the view corridor and pedestrian safety. Mr Boston considered the setback responded to the setback of 16 Pacific Street, which is set back 3.0 m to the main house and 1.8 m to the projecting fin walls. In his opinion, the amended setback of 1.8 m and 2.2 m would maintain and enhance the view corridor, reduce the sense of enclosure to the walkway and 1A Tipper Avenue and provide opportunities for landscaping. The proposal exceeds the 900 mm side setback requirement in Waverley Development Control Plan 2010 (DCP 2010). However, the increased setback meets the Objectives for the Bronte Terraces Area (s 4.4 of DCP 2010) by providing a "sensitive building envelope which minimises view obstruction". 14Mr Boston noted that the increased setback of the building and the reduction of the terrace size would also address concerns raised by the owner of 1A Tipper Avenue in relation to access to light and privacy to an acceptable level. 15To address safety concerns the level of the garage is being lowered by 400 mm to better align with the natural ground level to the west at the top of the public stairs. The parapet level of the garage is being lowered by 200 mm in response to the lowering of the garage floor. The experts agree that a further reduction is difficult to achieve due to the floor level and ceiling height of the entry lobby. 16The experts did not raise other safety concerns about the garage. They noted that it is not unusual for cars to reverse across a footpath and that the garage, as amended, is now separated from the public steps and the guardrail. Although not considered necessary, Mr Darroch agreed to a condition requiring a mirror on the garage. Both experts did not consider there were any circumstances that would necessitate deletion of the garage altogether. Other contentions 17Other than the contention in relation to public interest (Contention 4), Council did not press the contentions in the Statement of Facts and Contentions in respect of geotechnical report (Contention 5), construction management plan (Contention 6), stormwater management plan (Contention 7 and tree retention (Contention 8). Council was satisfied that these, and the matters in Contention 9 -12 were dealt with by the submission of further information and the proposed conditions. Findings 18The applicant has agreed to the imposition of conditions which the experts agree address the Contentions raised by Council. I am satisfied that, with these changes, the application may be approved. The application was recommended for approval by Council staff, the Development and Building Unit and the Independent Hearing and Assessment Panel. These assessments found the proposal to be acceptable and outlined its compliance with the relevant planning controls for the site. The proposed amendments have also largely addressed the issues raised by objectors and, in particular, have achieved a more acceptable relationship of the development with the public walkway by retaining the view corridor, as well as with 5 Tipper Avenue by reducing the height of the Grand Hall and with 164 Macpherson Street by achieving appropriate view sharing. 19I accept the evidence of the experts and find that the application may be approved.