Land and Environment Court New South Wales Medium Neutral Citation: Gallard-Grant v Waverley Council [2012] NSWLEC 1247 Hearing dates: 22 August 2012 Decision date: 31 August 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Alteration and additions to residential flat building, bulk, scale, impact on views, whether aesthetic upgrade of a building warrants departure from planning controls. Legislation Cited: Waverley Local Environmental Plan 1996 Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 Texts Cited: Draft Waverley Local Environmental Plan 2011; Waverley Development Control Plan 2010 Category: Principal judgment Parties: Gale Gallard-Grant (Applicant) Waverley Council (Respondent) Representation: Counsel Mr S Nash (Respondent) Solicitors Ms M Taylor, Bartier Perry (Applicant) Ms C Morton, Sparke Helmore(Respondent) File Number(s): 10300 of 2012 Judgment 1Ms Gallard-Grant owns a unit, known as Unit 1, at No. 52 Fletcher Street, Bondi. Unit 1 is the upper level unit and occupies the entire top floor of the building. Her architect lodged Development Application DA-108/2011 with Waverley Council on 14 March 2012 seeking consent to carry out alterations and additions to the strata titled residential flat building. The council refused consent and Ms Gallard-Grant is appealing that decision. Background and the proposal 2Consent was sought for the following works: * Removal of the existing pitched roof and replacement with a new level, making the building in the location of the works a 4 level building. The new level would contain 2 bedrooms, bathroom, ensuite, open terrace and internal stairway extension that would form part of unit 1. * Extension of the lower level of unit 1 in a northerly direction to increase the living area of that unit. The extension occupies an areas currently used as a covered terrace. * Provision of a pergola to the north of the extended living area to unit 1. * Refurbishment of the remaining open deck with paving and replacement of the existing brick balustrade with glass balustrading. * Installation of new, larger windows to unit 1. * Provision of lift access from the garage level to units 1, 2 and 4 and to the street entry level. * Provision of a pergola and timber screen from the front entry stairs along the western side of the building to the southern entry foyer. * Enlargement/realignment and enclosure of the front balconies with louvred screens. * Enclosure of the west facing balconies to units 2 and unit 1 (existing level). * Provision of an additional terrace of the existing and proposed extended living area on the eastern side of unit 1. * Internal refurbishment of existing unit 1. * Alterations to the garage area of unit 1 to accommodate the proposed lift and general access from the stairwell. * Painting the building. The site and its context 3The site is located on the northern side of Fletcher Street between Sandridge Street and Marks Park. It is a rectangular allotment with a frontage of 10.975 m, depth of 49.885 m and area of 547.2 sq m. The site falls from the road to the rear with an approximate 4 m cross fall. 4The existing residential flat building comprises garaging at the lower level and three residential levels of units above containing a total of 7 units. A driveway runs along the eastern side of the building providing access to those garages and a series of paths and stairways along the western side of the building provide pedestrian access. The building is stepped to follow the topography of the site. The highest portion of the building is towards the street and it has a pitched, tiled roof. The terrace area to the north of unit 1 forms the roof of the rear section of the building. 5Buildings to the west of the site are single storey detached and semi-detached dwellings. To the immediate east of the site is a two storey flat building above podium garages with older style flat buildings and dwelling houses varying in height and presenting as two and three storeys to the street further east. Development on the opposite side of Fletcher Street is also mixed and comprises a four storey unit building on the corner of Marks Lane, single storey dwellings and two and three level multi-unit housing. There is an eight storey residential building to the north-west of the site. The planning controls 6The site is zoned Residential 2(b) under Waverley Local Environmental Plan 1996 (the LEP). Residential flat buildings are permitted with consent in that zone. 7The LEP contains general and specific aims and, in accordance with the provisions of clause 3, those specific aims must be taken into consideration in assessing any development application. The specific aims relating to housing are: (a) to provide for a range of residential densities, (b) to encourage a range of housing types to meet the changing housing needs of the community, (c) to encourage the development of new rental housing where appropriate, (d) to ensure that new housing is compatible with surrounding development, (e) to increase the population by maintaining and increasing the number and variety of dwellings to a level which is commensurate with the capacity of the natural environment and the present and likely future social and physical infrastructure of the Council's area, and (f) to improve the amenity of residential areas. 8Clause 10 requires that consent shall not be granted unless the Council (in this case the Court), is satisfied that the development meets one of more of the objectives of the zone. The objectives of the zone are: (a) to allow for a variety of housing forms, including dwelling-houses, townhouses and boarding houses, (b) to maintain and improve the amenity and existing characteristics of the locality, and (c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of medium density attached housing. 9The council has prepared and exhibited draft Waverley Local Environmental Plan 2011 (draft LEP 2011). Under that plan, the site would be zoned R3 Medium Density Residential and the height controls for the site would limit development to 9.5 m and its floor space ratio (FSR) to 0.6:1. This accords to the current controls contained within Waverley Development Control Plan 2010 (the DCP) as it applies to the site. 10Part D2 of the DCP applies to Multi-Unit Housing. The objectives of the part are: (a) Ensure the scale of development is appropriate for the streetscape and buildings in the vicinity. (b) Ensure proposed development does not significantly detract from the amenity, privacy and views of other dwellings and public view corridors. (c) Ensure development does not significantly detract from the amenity, privacy and views of other dwellings. (d) Ensure regard to principles of ecologically sustainable development when assessing applications to construct or make alterations and additions to development. (e) Ensure multi-unit housing is sympathetic in form and character with other buildings in their vicinity. (f) Maximise environmental sustainability and energy efficiency of dwellings; reduce waste generation and the impact of excessive water run-off from land on which dwellings are situated and to assist in the reduction of crime through design. (g) Encourage developments have high design standards. 11Clause 1.4 of Part D2 explains how to use the part and states: This Part contains Objectives, Performance Criteria, Strategies and Controls. The Objectives describe the intention of the Controls. The Strategy describes the process of achieving the Objective. Controls outline criteria required to achieve compliance with this Part. It should be noted that simply complying with a control does not guarantee that an objective will be satisfied. 12Building envelope controls relevant to the application are FSR with a maximum of 0.6:1 permitted; height, 6.5 m external wall height and overall building height of 9.5 m allowed; storeys, maximum of 2 with an attic level permitted provided it is fully contained within the roof form; side setbacks, 3 m and 4.5 m where living areas primarily address side boundaries. The evidence 13The hearing commenced on site with evidence heard from residents of three premises in the vicinity of the site, all of whom objected to the proposal. The concerns of the residents are summarised as follows: * Height of building is out of character with the area which is 1-3 storey buildings; * Reliance on the 8 storey building in Sandridge Street is inappropriate as it is out of context in the locality; * Development has total disregard to the council's planning controls; * Building is already larger than planning controls contemplate; * Excessive height, bulk and scale, particularly when viewed from the east; * Contrary to future planning intent identified in the draft LEP; * Approval would set an undesirable precedent in terms of height, storeys, wall height, FSR and setback controls; * Finding finance to upgrade the building does not justify the proposal; * Development will require additional parking that is not provided; * Overlooking/privacy; * View loss; 14Expert town planning evidence was heard from Mr Saunders for the applicant and Mr Kennan for the council. The planners had prepared a joint report and in that had agreed that there would be no unacceptable impact to views from the public domain or between buildings. Subsequent to the filing of the joint report, Mr Kennan prepared a further report in relation to view loss from three properties in Sandridge Street. Sandridge Street runs north/south and is elevated so as to provide ocean views in an easterly direction whereas that part of Fletcher Street where the site is located runs east/west. The council's notification of the application did not include those properties in Sandridge Street. The joint owners of the property on the north-western corner of Sandridge and Fletcher Street provided on-site evidence and their main concern was with regard to view loss from a building that exceeds the planning controls. 15Mr Kennan's second report provided an assessment of the impacts of the proposal on three adjoining dwellings in Sandridge Street and he concludes that the proposal will take some of the views in that part of the development that is outside the extent of the existing roofline but will also give back some views where structure is not proposed within the roof envelope. His evidence is that the replacement of the existing hipped roof structure with a wall height of 2.6 m would interrupt the existing rhythm created by the hipped and tiled roof structures, which dominate the existing views from Sandridge Street. He concludes the development would result in adverse visual impact resulting directly from the proposed additional non-compliance with the council planning controls and should not be allowed. 16The existing building already exceeds the FSR, height and side setback controls however, the proposed works add to the extent of non-compliance. The planners agree that the height of the proposed building would be up to 400 mm above the existing ridge height and the wall height would increase by 2.6 m so that, depending on where on the site it is measured, its height would be up to 15.3 m. 17Mr Saunders reviewed the various photographs contained in Mr Kennan's supplementary report and concludes that the nature and extent of the impacts of the proposed development, including the extent of the gain and loss of water views are, to all intents and purposes, the same. 18The planners agree that there would not be any significant impact to the privacy of the adjoining development to warrant refusal of the application, that the proposed 5th floor level is not an attic and that the existing building is outdated and in need of renovation. 19Mr Keenan says the development would not be compatible with the character of the local area or of its desired future character (DFC). He says the DFC is dictated by the planning controls which apply or are proposed to apply in the future and notes that those controls restrict development to a FSR of 0.6:1, a maximum height of 2 storeys or 9.5 m in the case of draft LEP 2011, (acknowledging an attic level is allowed but not proposed in this case). He submits the existing building is one which is significantly in excess of the existing and proposed planning controls and is not in harmony with other buildings in the street, particularly those to the immediate west of the site, that the addition of a 5th level would exacerbate the existing height and visual differences between the existing building and those buildings surrounding the site and would increase its non compatibility. He concludes that the proposed development would be contrary to the specific aim of the LEP, which is to ensure that new housing is compatible with surrounding development. 20Mr Saunders is of the opinion that the proposed development would lead to a material improvement in the appearance of the building and that, without the additional floor space, the refurbishment of the exterior of the building could not be as readily achieved. He says the development would improve the amenity and environmental quality of the built environment in that it would lead to a material improvement in the appearance of the building compared with its present appearance and improve its presentation to the street. It is his opinion that the proposed development is not of an excessive bulk and scale nor out of character with the mixed character of the surrounding area because it displays no consistency in the height of development. He concludes the proposal is not incompatible with that character and approval of the development would not be contrary to the specific aim of the LEP nor the general aim. 21Mr Saunders says the development achieves objective (b) for the 2(b) zone because it would improve the amenity of the locality. Mr Kennan disagrees and says that because the development is not compatible with the area it does not improve its amenity. 22The council contends that the development if approved, would be contrary to objectives of Part D2 of the DCP which are to ensure the scale of development is appropriate for the streetscape and buildings in the vicinity, does not significantly detract from the amenity, privacy and view of other dwellings and public view corridors and from the amenity, privacy and views of other dwellings, and responds to the desired scale and character of the local street. It also has an objective to control the size, bulk and scale of development to reflect the existing and desired future character of the area. 23Mr Kennan says, that the proposed 1.03:1 FSR is 1.72 times the maximum allowed under the current and proposed planning controls, its height would further exceed those controls and that there is no exceptional circumstance that warrants further deviation from the controls. He submits that it would be possible to sufficiently modernise the building to upgrade its economic life without the addition of the 5th level and that the development ignores the controls and introduces a development more akin to a 2(c1) medium and high density residential zone. 24Mr Saunders says the scale of the development is not inappropriate in the context of the existing building and the streetscape and other buildings in the vicinity, does not reduce view corridors or affect private views or views from the public domain. It is Mr Sanders' opinion that the variations to the planning controls are justified on the basis that there are no adverse impacts associated with the variations or its scale and that its improved appearance has a consequential benefit to the public domain. He says the minor changes to the manner in which the building's overall bulk is perceived from certain, but not all vantage points is such that there would be no detrimental effect on the streetscape and so concludes the development is not contrary to the DCP objectives. Conclusion and findings 25Having regard to the evidence, I prefer that of Mr Kennan and agree that the proposed development would not meet the objectives of the DCP and is inconsistent with the DFC for the area. 26The development provides for a number of separate elements, all of which increase the bulk and scale of the building. Those elements are the balcony enclosures, liftwell, additional balcony area and importantly, the additional building level. The additional elements to the side of the building further reduce setbacks from boundaries and the additional floor would result in the building reading as a four storey building from the public domain, particularly from Marks Reserve and from streets to the west of the site. 27Whilst the design of the building is of a high standard and, would, as submitted by Mr Saunders, improve its appearance without adverse physical impacts to adjoining properties, I am not satisfied that the development has regard to the council's planning controls. 28The scale of the development is not appropriate for the streetscape when considered in relation to buildings in vicinity of the site, particularly those to the immediate west which are single storey but also the locality in general. I concur with Mr Kennan that the bulk and scale of the building would detract from the amenity of the area, which is low density residential in character. It does not accord with the current or future character envisaged under the planning controls and it would be far in excess in terms of size, bulk and scale to any other development in the locality, with the exception of the 8 storey flat building which is in itself an exception to the local character. 29In accordance with the principles in Zhang v Canterbury City Council [2001] NSWCA 167, the DCP must be the fundamental element in and focal point of my determination. I am of the opinion that the development fails to satisfy the aims, objectives and controls contained within the DCP and that it would not be appropriate to allow a building of the height, bulk and scale proposed on the basis that it does not result in any immediate physical impact and improves the building's appearance. There are other impacts and those are to the streetscape and character of the area. There is no evidence that the building is structurally unsound and therefore the cosmetic upgrade to the façade of the building could take place at little cost without the need for the major structural additions proposed. 30Ms Taylor, for the applicant, submits that other councils in Sydney encourage, through policies that provide for additional floorspace, the upgrading of residential flat buildings. Waverley Council has no such policy and it is not for the Court to influence such a policy or to take into account policies that do not apply to the area in which a particular development is located. That is a matter for the council in consultation with its community as to whether it considers there is a need to implement such a policy and if it did, under what circumstances it would apply. There is no evidence of any proposal before the Court. 31I do not consider that the impact of the works would have significant impacts of the views enjoyed from properties in Sandridge Street and that factor alone would not be a reason to refuse consent. 32Mr Nash, for the council, submitted approval of the development would have a precedential effect for future development in the area. I do accept that there are a number of similar older style residential flat buildings in the vicinity of the site and that approval of this application may lead to subsequent applications being lodged with the council. Because each application would have to be considered on the merits of the case, I do not consider that precedent in this case is a reason to refuse consent. 33In view of my findings, I make the following Orders: (1)The appeal is dismissed. (2)DA-108/2011, which proposed alterations and additions to an existing residential flat building at 52 Fletcher Street, Bondi, is refused consent. (3)The Exhibits, other than Exhibits B and 6 may be returned. Sue Morris 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: 31 August 2012