Land and Environment Court New South Wales Medium Neutral Citation: Yarranabbe Developments Pty Limited v Woollahra Council [2014] NSWLEC 1007 Hearing dates: 11-13 December 2013 Decision date: 14 January 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Development application: residential flat building, SEPP1 objections, foreshore building line, bulk, scale, height, impact on adjacent properties Legislation Cited: State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 1 - Development Standards; State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65); Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; Woollahra Local Environmental Plan 1995; Cases Cited: Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) Wehbe v Pittwater Council [2007] NSWLEC 827; Texts Cited: Woollahra Residential Development Control Plan 2003 Category: Principal judgment Parties: Yarranabbe Developments Pty Limited (Applicant) Woollahra Council (Respondent) Representation: Counsel Mr P Clay SC (Applicant) Solicitors Ms A Spizzo Lander & Rogers Mr P Rigg Norton Rose Fullbright File Number(s): 10771 of 2013 Judgment 1Yarranabbe Developments Pty Ltd (YDPL) lodged Development Application DA485/2012/1 with Woollahra Council seeking consent to demolish two adjacent dwelling houses at 83 and 83A Yarranabbe Road, Darling Point and construct a residential flat building containing 6 dwellings and underground parking, swimming pool, gym and associated site landscaping. Council refused consent and YDPL is appealing that decision. 2The issues in the case are whether the variation to the council's planning controls in terms of the siting in regard to the site frontage width, foreshore building line, side boundary setback, bulk, height and scale of the development are appropriate, whether the landscaping proposal is adequate to compensate for the trees to be removed from the site and whether the development is contrary to the terms of a covenant that applies to the land. The site and locality 3The site comprises two adjoining allotments Lots 11 and 12 in Deposited Plan 598514 known as Nos 83A and 83 (respectively) Yarranabbe Road Darling Point. Lot 11 is a battle-axe allotment accessed by a right-of way over Lot 12. Lot 12 fronts Yarranabbe Road, has a frontage of 18.665m and site area of 639.4sqm. Lot 11 has a 25.465m frontage to Sydney Harbour and site area of 814sqm. A jetty extends into the harbour at the north-eastern portion of the site and would be retained. 4The combined area of the two allotments is 1453.6sqm and the side boundaries are splayed (western) and stepped (eastern). 5Lot 11 contains a three storey dwelling house with a double garage along the street frontage. The dwelling is separated by its rear garden incorporating a swimming pool from the house on Lot 12. That lot contains a two storey dwelling house which is set back from the foreshore by varying distances with a minimum of 12m. A swimming pool is located in the garden area between the dwelling and the foreshore. A garage for three cars is located on the roof of the dwelling house and accessed via a raised driveway along the eastern boundary of No. 83. The rear lot is relatively flat whereas the front lot falls significantly from the south (approx RL15.8) to the north (approx RL3.3). 6Vegetation on the site include two large tree canopies in the south-eastern corner of the site that currently rise above the existing buildings and are highly visible from Yarranabbe Road and the properties further to the south. These are a Camphor Laurel (Tree 5) and an Avocado (Tree 3). In addition, there is a mature Canary Island Date palm in the north-east corner of the site among other dense vegetation that is visible from the Harbour. 7The site is within a residential area however the form of development varies significantly. Fronting the harbour that development ranges from a single storey waterfront house three lots to the west, seven and ten storey residential flat buildings to the immediate east with a 3-5 storey residential flat building to the immediate west. Other forms of multi-unit housing are located to the south of the site also ranging from single dwelling houses to townhouse development and high-density residential flat buildings. 8A covenant registered as M167009 applies to Lot 11 (previously Lot 1 in DP 546887). A copy of the covenant and associated plans was provided as Exhibit 9 and the terms of that covenant state That no building shall be erected or placed or suffered to be erected or placed upon the said Lot 1 other than a private dwelling house for use and occupation by a single family. Pursuant to clause 5(c) of that covenant, the restrictions may be released, varied or modified only by Woollahra Council. The Council has not resolved to vary those restrictions. Background and the proposal 9The original development application was lodged on 14 November 2012. Amended plans were lodged with the council on 13 May 2013. Those plans were accompanied by revised objections to the floor space ratio (FSR), building height and site frontage development standards contained in Woollahra Local Environmental Plan 1995 (LEP). Subsequently, the applicant lodged an appeal against the council's determination of 1 July 2013 to refuse the application and was directed by the Court to file a consolidated set of plans. Those plans were filed with the Court on 29 October 2013 and are the subject of the proceedings. Further amendments were made to the plans during the preparation of expert reports and in response to the issues raised by those experts. Those plans, the Version C Plans were tendered as Exhibit H and made further amendments to levels 3, 4, 5 and 6. 10The plans filed with the Court propose the construction of a residential flat building over 6 levels, each level containing one apartment. The original plans provided for an approximate minimum setback from the foreshore of 13m at ground level with the terrace area encroaching that setback by approximately 6m in parts. Side boundary setbacks on the lowest level, Level 1 vary from 1.4m at a point near the centre of the building and increasing to approximately 4m at the northern (harbour) end and 1.5m at the southern or Yarranabbe Road end of the building. 11Levels 1 and 2 occupy similar building footprints. Level 3 is stepped back in a southerly direction by approximately 6 metres, level 4 by a further 7m. Level 5 is also setback with this level constructed on a 30m setback from the foreshore. Level 6 has an approximate 6m additional setback. 12The proposed lap pool and gym are located at level 2. 13Vehicle access to the site is proposed from a driveway in a similar location to that which currently services the garage of the front dwelling house. The raised driveway that runs along the eastern boundary of the site to the rear dwelling would be removed and the area landscaped. A double garage is proposed in the south-western corner of the site erected on a 1.507m alignment to Yarranabbe Road and between 1.5m and 1.833m from the western boundary. That garage forms part of the top floor unit. Parking for the remaining units is accessed via a car lift located to the immediate north of the driveway on an approximate building alignment of 9m to the street. Extensive excavation to access the garaging is required across the southern section of the site. 14The proposal presents as a single storey building to the street and provides for landscaping within the setback area with "green roof" proposed above the garage and the eastern portion of the top unit. Planter boxes are incorporated along parts of the side and northern facades of each unit. 15The area between the northern face of the building and the harbour would be grassed with a central low island planting bed and seating area, and low planting around the perimeter of that space which is to be fenced so as to enclose that space for use by the lower level unit only, however a gate is provided in the fence. A pathway along the eastern side of the building facilitates access by all residents to the jetty. An existing stand of trees will be retained along the western boundary of the site and the palm tree will be transplanted adjacent to the proposed lap pool. 16Balconies are provided along the northern face of the upper level units. The planning controls 17The site is zoned Residential 2(b) and is within the Harbour Scenic Protection Area under the LEP. The aims of the LEP are listed in clause 2(1) as follows: (a) to replace all existing local environmental plans and planning schemes which apply to the land to which this plan applies with a single local environmental plan: (b) to provide a comprehensive planning instrument that is clear and explicit but which provides flexibility in its application, (c) to promote the management, development, conservation and economic use of property within the area of Woollahra, (d) to provide for an appropriate balance and distribution of land for commercial, retail, residential and tourist development and for recreation, entertainment and community facilities, (e) to ensure that growth within the area of Woollahra occurs in a planned and co-ordinated manner, (f) to facilitate the provision of urban infrastructure, (g) to conserve the environmental heritage of the area of Woollahra, (h) to protect the amenity and natural environment of the area of Woollahra, and (i) to provide the framework for more detailed controls to be contained within development control plans. 18The objectives of the plan in relation to residential development as detailed in clause 2(2)(a) are: (i) to promote the development of land to which this plan applies as a comprehensively planned residential community providing recreational, commercial, retail and community facilities of a type which are appropriate to meet the needs of the population to be accommodated, (ii) to relate population density to the capacity of the existing road network, the availability of parking, the provision of public open space, the capacity of the natural environment to accept change without losing its attributes, the capacity of existing utility networks, the level of service by public transport, and the proximity to the city centre, schools, shops, health services and community facilities, (iii) to zone land in order to create separate areas of residential and non-residential use in the interests of residential amenity, a balanced distribution of services and employment and efficient traffic distribution, (iv) to encourage and facilitate opportunities for diversity in dwelling density, type and tenure in suitable locations throughout the area of Woollahra, and (v) to encourage and promote sustainable development by extending the use of existing and new residential buildings through the provision of fully accessible and adaptable housing requirements and by increasing the number of fully accessible and adaptable houses in the area of Woollahra, 19Landscape objectives are detailed in clause 2(2)(f) as follows: (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 stands of trees, ridgelines or land within view of any waterway, (iv) to protect and enhance the environmental quality of the area of Woollahra through the appropriate management and conservation of the existing pattern of vegetation, and (v) to protect the native flora and fauna, 20Clause 2(2)(h) details the objectives in relation to the area's foreshores and the harbour foreshore scenic protection area as: (i) to seek the retention of public foreshore lands for public purposes, (ii) to encourage development which, through its form, scale, materials and design is compatible with the natural and environmentally acceptable built landform of the foreshore areas as viewed from the water, (iii) to recognise the residential, recreational, tourist and commercial characteristics of the foreshore area and to co-ordinate development in order to protect the area's scenic and natural attributes, (iv) to consider the impact of development on the views of Sydney Harbour enjoyed by existing residents and promote the practice of view sharing, (v) to protect and, where possible, improve the view of Sydney Harbour and its foreshore areas obtained from public land, (vi) to protect the natural, scenic and cultural attributes of the area's foreshores, including the visually and ecologically significant beaches, inter-tidal rock formations, vegetation, rock faces, shelves and outcrops, (vii) to preserve existing public open spaces along the foreshores and to promote the dedication, acquisition, lease or occupation of additional useable areas so as to provide further public pedestrian access to and along the foreshores in appropriate locations, and (viii) to protect the native flora and fauna, 21Clause 8(5) requires that: The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. 22The objectives of the 2(b) zone are: (a) to provide for areas of medium and high density residential development in appropriate locations, (b) to encourage a diversity of dwelling types and tenure, (c) to allow non-residential development of low intensity which is compatible with the residential character and amenity of the locality, (d) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and (e) to protect the environmental attributes of the foreshore lands. 23Residential flat buildings are permitted with consent in the 2(b) zone. 24Part 3 of the LEP contains additional provisions for the development of land and, relevant to the application, development standards for site area and frontage (clauses 10A and 10B), floor space ratio (FSR) (clauses 11AA and 11), height of buildings (clauses 12AA and 12) and foreshore building line (clause 22AA and 22). The objectives of the respective standards are: The objectives of the minimum site area and frontage standards set by clause 10B are as follows: (a) to achieve compatibility between the scale, density, bulk and landscape character of buildings and allotment size, (b) to provide sufficient space between buildings, to maximise daylight and sunlight access between buildings, to ensure adequate space for deep soil landscaping and to preserve view corridors, (c) to prevent permanent barriers to sub-surface water flows, (d) to ensure that there is sufficient land for car parking on site, (e) to encourage consolidation of allotments in appropriate locations to enable the development of a diversity of dwelling types. The objectives of the floor space ratio standards set by clause 11 are as follows: (a) to set the maximum density for new development, (b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities, (c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and (d) to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point. The objectives of the maximum building height development standards set by clause 12 are as follows: (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings, (d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing, (e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes. The objectives of the foreshore building line standards set by clause 22 are as follows: (a) to retain Sydney Harbour's natural shorelines, (b) to provide larger foreshore setbacks at the points and heads of bays in recognition of their visual prominence, (c) to protect significant areas of vegetation and, where appropriate, provide areas for future planting which will not detrimentally impact on views of the harbour and its foreshores, (d) to protect the amenity of adjoining lands in relation to reasonable access to views and sunlight, (e) to preserve the rights of property owners to maintain an encroachment on the foreshore building line by an existing main building, (f) to protect rock platforms and the intertidal ecology. 25In accordance with the provisions of clause 10B(2), a site must not be developed for the purposes of a residential flat building containing 4 or more dwellings unless the site area is 930sqm or more and the width of the allotment at the front alignment is 21m or more. The site complies with the development standard for area but does not meet the standard for lot width. 26The LEP map for FSR provides for a maximum of 0.875:1. The proposal has a FSR of 1.79:1 therefore exceeding the development control. The height map provides for a maximum building height of 12m and the proposed building height is 17.6m so exceeds the development standard. The foreshore building line (FBL) for residential flat buildings is 30m. A dwelling house may be erected on a FBL of 12m. Clause 22(4) permits, subject to an assessment of the probable aesthetic appearance in relation to the foreshore of the structure, consent to be granted for structures within the FBL. Those structures are baths (swimming pools) and ancillary buildings, boat sheds, wharves, jetties, structures or works below or at the surface of the ground. 27Clause 16A of the LEP provides for the suspension of certain agreements, covenants and similar instruments. The land to which this clause applies is listed in Schedule 5 of the LEP. The site is not identified within that list. 28Clause 19 requires that, for consent to be granted, an assessment of the visual impact when viewed from Sydney Harbour of the proposed development, including the colours, textures, styles and types of materials to be used and the type and form of any roof and the impact of the proposed development on the natural landform and topography. 29The applicant has submitted objections to those development standards listed at [24] pursuant to the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP1). Consideration of those objections is provided later in this judgment. 30Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site. Clause 20 requires a consent authority to consider the matters listed in Division 2 of the plan. Those matters of particular relevance to the application are listed in clauses 25 and 26 as follows: The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows: (a) the scale, form, design and siting of any building should be based on an analysis of: (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, (c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores. The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised. 31State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65) and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also apply to the application 32Woollahra Residential Development Control Plan 2003 (DCP) applies to the site. Parts 3, 4 and 5 are particularly relevant to the application. 33The council exhibited Draft Woollahra Local Environmental Plan 2013 (Draft WLEP 2013) from 21 August to 13 November 2013. The parties agree that the plan is neither imminent nor certain. The evidence 34The hearing commenced on site with evidence heard from a number of residents who object to the proposal. A site view was conducted which included observation of the development site from adjacent residential developments and from Sydney Harbour. The issues raised by the objectors are summarised as follows: * The proposal is an overdevelopment of the site, is too high, close to boundaries and excessively bulky, contrary to the planning controls; * The development fails to comply with the 30m FBL to Sydney Harbour; * Variations to development standards are significant, up to twice what the community expect to see occur on the site; * Removal of significant vegetation and inadequate replacements; * Adverse impacts on the amenity of adjoining units from overshadowing, loss of light and sunlight, overlooking and loss of privacy; * Contrary to covenant that applies to the land; * View loss; * Construction impacts will have severe health implications to residents of adjacent building; * Development should not reflect the two large buildings on the peninsula that are considered to "stand out like a sore thumb" but rather should reflect the desired future character outlined in the council's planning controls. 35Mr G Paroissien (applicant) and Mr D Grey (council) provided a joint expert report addressing arboricultural issues. These experts were not required for cross-examination, having explained the location of the trees the subject of their report during the site view. They agree that tree 3 (avocado and Tree 5 (camphor laurel) are of high landscape/amenity value to the site and immediate locality, that both trees exhibit structural faults that limit their safe useful life expectancy (SULE) to a short SULE (5 to 15 years) and due to their locations within the site and extent of tree protection zone required to sustainably retain the trees, their retention would be a significant constraint on the development potential of the site. Given the trees' short SULE and the constraints associated with their retention, they support the removal of these two trees on the basis that adequate replacement tree plantings are undertaken. A landscape plan, Exhibit D, was assessed by the experts who agree that the replacement plantings, 2 Cupaniopsis anacardioides (Tuckeroo) and 3 Elaeocarpus reticulatus (Blueberry Ash) are satisfactory replacement tree plantings. 36The experts agree that the Canary Island Date Palm is a mature specimen of around 6m height with a canopy spread of 8m and is in good health, is currently partially obscured by other vegetation when viewed from the harbour but would become more visible upon removal of the surrounding vegetation as proposed in the application. Due to its limited dimensions the tree is currently of moderate landscape significance but it has the potential to contribute to the character of the site in the longer term, as viewed from the harbour, due to its location within the site, its predicted longevity and its increase in height over time and could be retained by a minor re-alignment of the proposed pathway to the jetty around the base of the tree. 37Expert town planning evidence was heard from Ms S Francis for the applicant and Mr T Wong for the council. Ms G Morrish provided urban design evidence. All three prepared a joint report, Exhibit 4, and gave concurrent evidence during the hearing. Ms Francis and Ms Morrish had not been able to gain access to the interiors of the units within the adjoining residential flat building to the west of the site, Nos. 77-81 Yarranabbe Road prior to finalisation of the expert report and only gained access during the site view. As a result of the observations carried out during the view, they recommended further amendments to those that had been incorporated into the joint report. In particular further changes were recommended to the northern and western setbacks, planter locations and balcony locations in an attempt to address the concerns of residents in relation to setbacks, overshadowing and overlooking. Version C plans were prepared to reflect those recommendations. Those plans, Exhibit H, involved changes to levels 3 - 6. A summary of the changes is as follows: Level 3 * Western wall to terrace, living, dining and kitchen setback an additional 1.3m; * Landscaping shown in eastern planter; * The roof area over the level 2 unit where the building is setback is developed as a planter with 300mm soil depth. Level 4 * Western slab edge adjusted to reflect increased setback to level 3 (no change to unit or terrace size of level 4 unit); * Northern planter width increased and western planter deleted. Level 5 * Northern wall of living area setback approximately 4m further south and external area that is the roof of level 4 used as increased terrace area (living area reduced in size); * Western wall to living area moved east by 1m and roof area above level 4 converted to planter box; * Planter added along northern and western edge of terrace; Level 6 * Northern living and bedroom 1 walls adjusted towards the north to increase the size of those rooms; western wall of living room moved east by 1m (narrows width of room in that location); * Terrace off living room deleted, terrace added to north of bedroom 1 incorporating a planter box along the northern and eastern sides. 38The applicant was granted leave to rely on the amended Version C plans. 39An addendum to the expert report was prepared reflecting these further changes (Exhibit 8) and correcting reference to building levels and other minor errors. 40These experts agree that the 'overarching' contention is the height, bulk and scale of the proposed building in its prominent waterfront location and whether it is inconsistent with the planning provisions. Development standard for site frontage 41In relation to the development standard for site frontage, they agree that the minimum frontage required under the control for the construction of a residential flat building (RFB) containing 4 or more dwellings is 21m and that the site, with a frontage of 18.65m does not satisfy that standard. 42Ms Francis says the site has a width similar and in some cases wider than adjoining lots including the lot immediately to the west at 77-81 Yarranabbe Road that has a width of 15m and contains a RFB with 4 dwellings and that lots with widths under 21m appear to be characteristic of lots on the upper, southern side of Yarranabbe Road. The site widens to 25.465m at the water. In response to the objectives of the standard, she says that objective (b) and the reference to "space between buildings' refers to side boundary setbacks and notes that the development generally satisfies or exceeds the minimum side boundary setbacks when viewed from the water, acknowledging that in this location the RFB encroaches the FBL and that in some locations the setback control is not met, that the adjacent RBF (No. 77-81) does not comply with the relevant side setback requirements of the DCP and that the main issue is the relationship of the proposed development forward (northward) of the southernmost kitchen window on the eastern elevation of 77-81, where the building at that point achieves a setback of approximately 4.3m-5.5m. 43The experts agree that the Version C plans would block sun to the level 3 kitchen window of the unit at No 77-81 at 9am where sun is currently available. At 9.30am it is agreed that all three kitchen windows in that adjacent building currently receive sun and the version C plans block sun to level 1 and 2 and most of level 3 but allows a sliver of sun to the upper hopper window at 9.30am. By 10am all 3 windows to the kitchens currently have sun and the amended proposal will maintain solar access to level 2 and 3 at 10am. By 10.30am all windows currently enjoy solar access and this would be maintained by the amended proposal. The situation would be unchanged for the rest of the day. 44Ms Morrish says that the site is 2.35m short of the standard however consideration of the site context and what is an appropriate built form should occur. The site is ringed by apartment development of substantial scale and is in effect an isolated site with no opportunity to acquire additional land to increase the frontage width. That context is created by large narrow fronted 6 storey apartments to the west built in very close proximity to the site boundary (with its carpark structure close to the boundary) and to the east, a very large 8 storey apartment development which locates its car parking structures against the boundary. To the south are 20 storey apartments as well as 4-5 storey apartments tucked into the street wall. The character of this street changes, to the west, past the bend in the road there are some dwelling houses remaining and the scale of the street is lower and more intimate however closer to the site the character is dominated by flats ranging from 3 storey apartments on the street to single storey garages and forecourt areas. 45Ms Morrish says that the new proposal fits comfortably within what is a highly urbanised environment where built form dominates the landscape qualities of the area. The proposal provides deep soil setback areas to the street, which allow for a major tree and 1.5m of landscape in front of the garage and is supplemented by the green roof to the garage and the highest apartment as well as climbing plants over a pergola structure for the garage. The other location for some landscape in this context is the side boundaries of the lots. The proposal provides landscape planting down both boundaries. The soil is deep soil and terraces down through a series of planters to provide landscape with widths between 1.7 to 3m to the east and 1.5m to 4.2m to the west. Those setbacks are similar to or greater than the landscape setback for the building to the west and both side boundaries will contribute to the landscape separation between this development and its neighbours. The extent of landscape is compatible and in character with the streetscape and offers more landscape than many of the developments in proximity. 46Mr Wong says that the scale, density and bulk of the building is determined by various development standards applicable to the site and that the RFB is not compatible with the allotment size in terms of its bulk, scale, density and landscape character. The excessive visual bulk and appearance is due to the substantial non-compliances with various numerical development standards. As a result of the non-compliances, the proposal presents a bulk and scale that is out of scale in relation to the allotment size. Levels 5 and 6 are non-compliant with the building height and side setback controls and adds to the apparent bulk of the overall development which are not maximising daylight and solar access to adjoining properties. It could be designed with a reduced bulk and scale that would have a lesser impact in terms of overshadowing, loss of daylight, sense of enclosure and visual bulk from the water and neighbouring properties. Both neighbouring properties and the public could have a better visual appearance to the subject site. He notes that the improvement of the view is due to tree removal and whilst he accepts the advice of the arborists, he says the trees provide a visual foreground of greenery that will be lost. Development standard for floor space ratio 47In relation to the FSR, the experts agree that 6 dwellings on the lot are acceptable however Mr Wong considers that the size of the dwellings is excessive and is the cause of the non-compliance with the development standard. 48Mr Wong says that the bulk and scale of the proposal is not compatible with the site context, especially when viewed from the harbour, will be overpowering and dominant in its context as the visual bulk of the proposal does not fit into the context along the waterfront. The objective of the control is to minimise impact on amenity and because the proposal increases bulk and removes the green space between the dwellings the aspect and visual appearance will change, the proposed building will replace the green space in areas that exceed FSR and height controls and reduce amenity to adjoining residents who will look onto a bigger, bulkier building. 49Ms Francis and Ms Morrish consider that the variation to the FSR development standard achieves the objectives of the control having regard to the Darling Point precinct statement and the desired future character (DFC) objectives. They says the proposed development does not intrude into or effect the natural ridgeline's dominance, its stepped form reinforces the sloping topography, the proposal addresses the street and provides a contemporary reinterpretation of apartment design that maintains the evolution of residential building styles. An assessment of the view impacts of the proposal show that the development will improve the views of many of the surrounding properties both by providing a lower height at the water front with greater setbacks to the building from closer to the water and by reducing the vegetation which has become very overgrown on the site. 50 They consider the only issue raised in regards to amenity by the council is the proximity of the development at level 5 and 6 relative to the kitchen windows of No 77-81 and consider the Version C plans address this concern. In regard to character, they say the proposal at the street is the same height as the existing dwelling, its scale and extent is similar to 77-81 and sits as a grouping with that building, it is a lower height close to the foreshore edge that the current dwelling and is recessive in its form relative to other development along the foreshore edge. The proposal blends into the slope and allows other development to be dominant and it is in character in terms of its scale and bulk to other development in the vicinity. They conclude that the proposal on balance minimises environmental impact and in some instances improves the current situation and meets the objectives of the FSR control. 51Ms Morrish acknowledges that the sense of openness will change but the development won't adversely affect sky view and daylight so the impact is minimal and acceptable. Development standard for building height 52In consideration of the development standard for height, the experts agree the existing building on the site, located at the street is not compliant with height controls if it has taken the existing ground line, the waterfront house is lower than the existing height control other than a small portion over the garage and the proposal improves the views available to some apartments around the site and increases the extent of iconic views through the removal of trees. 53Ms Morrish and Ms Francis say in terms of overall height the proposal is consistent with the maximum height of the existing building and is less than the height of the existing dwelling house at the waterfront side of the site, the proposal matches the existing envelope of the house towards the street, exceeds the height in the middle of the site and is less than the height limit at the waterfront which reduces its visual impact over that of the existing dwelling house at that point. The proposal will be read as a layered form up the slope in a similar manner to that of other development along the foreshore. 54Ms Francis compares the height controls to that of the proposal, considers the application of an extrapolated ground line when compared to the LEP definition of existing ground level and says that a building satisfying the 9.5m height limit would have a building not only approximately half the height of the existing building at 83 (street lot) and thus two storeys below the level of the street for most of the development but also three levels at the street frontage. Neither complaint solution would be satisfactory in terms of massing to the street, views, street character, overshadowing and internal amenity for future occupants of the development. When assessed against the objectives of the height development standard she says that views are enhanced and improved, is compatible with the character of the area both existing and desired by virtue of the provisions of the draft LEP 2013. 55Ms Morrish says that it is important to address the street and therefore the extent of non-compliance in height close to the street is reasonable and is also evident in the existing dwelling. Referencing the objectives of the standard, she says that the proposal does not impinge on any of the views to the harbour, its iconic elements or the skyline, and does not appear incongruous or unreasonable in its height relative to the context. It provides for a stepped form and the non-compliant portion of the height is not able to be discerned from the harbour as it is seen against the backdrop of a building which would occur even it it was compliant with the height plane (based on the extrapolated line) or against built form in any event if a sense of address is to be provided for the development. The only difference is the setback to this form, the proposal brings the building closer to eh water in the centre of the site. There are no privacy impacts and the proposal delivers a development at the waterfront that has a lower scale and height and provides greater side setbacks than the existing dwelling. 56Mr Wong disagrees and says that the existing buildings on the site are compatible with the existing character and site context. The two existing dwelling houses on the site are easily discernible from the harbour, because of the different architectural styles, the clear separation between the two built forms, the existing mature trees and vegetation between that built form and the siting of the houses. The proposed development with a flat roof will reach the height of the ridgeline of the existing dwelling house of No. 83 and this height extends horizontally towards the foreshore beyond the envelopes of the two existing houses and as a result the apparent height, bulk and scale of the proposed RFB will be amplified, presenting an out of scale development on the foreshore. The non-compliant building height will overpower the neighbouring properties particularly 77-81 and is not compatible and does not fit into the context from the waterfront. Development standard for foreshore building line 57There are two different lines that apply to the site. If a dwelling house was to be erected, a FBL of 12m would apply however, in accordance with the provisions of clause 22(3), a RFB must be erected on a FBL of 30m. 58The experts agree that the proposal does not offend objectives a, d and f of the development standard and, subject to the retention of the Canary Date Palm (Tree 40) and the removal of the pool, would not offend objective c in comparison with the existing circumstance. There is disagreement whether objective b is met. This is to provide larger setbacks at the points and heads of bays in recognition of their visual prominence. 59Ms Francis and Ms Morrish say the site is not visually prominent from a bay or a point and, when viewed from the east, the foreshore is locked by the existing building at No 85 (Santina), which is built to the mean high water mark. That component of the proposed RFB forward of the 30m FBL has a smaller scale, mass, increased setbacks, both side and to the harbour, and reduced height than the existing dwelling house on the allotment and any future dwelling house on the lot which might reasonably be approved and for that reason, they consider that it is reasonable to vary the standard because the objectives are achieved. 60Ms Morrish says that when viewed in the context of the site, the alignment of the proposal achieves a sense of transition from the existing development Santina to the east and the RFB No 77-81. The removal of the pool allows for increased areas of vegetation and the only notable benefit is a larger area of private open space for the ground floor unit and some additional space for low plantings which will not have an appreciable impact on the perceived bulk or scale of the development. 61Mr Wong says that because the proposal involves the demolition of the existing dwelling house the RFB should not totally ignore the 30m FBL. The proposed development brings the RFB 17m closer to the foreshore and, when combined with the height, bulk and scale of the building being further increased behind the 30m FBL, contributes to an overdevelopment, overpowering and domination in the site's waterfront context. He says the building should comply with the 30m development standard to provide for future planting enhancing a better visual and landscaping quality when viewed from the harbour and will further enhance objective c and a consistent foreshore setback will be established along the waterfront. He acknowledges the there are 2 or 3 RFBs that are non-compliant but says the majority of development in the locality is compliant with the controls and sees the site as a dividing line between buildings that do not comply and those that do and if there is to be any transition it should be more than provided, be visually compatible so a lower scale development that more closely complies and therefore achieves a better outcome. Other controls 62The experts held similar views in relation to the DCP controls for side boundary setbacks and number of storeys and agreed that the Canary Date Palm should be retained. Conclusions and findings 63It is uncontroversial that the building significantly exceeds four development standards established in the LEP, those being for site frontage, FSR, building height and FBL. The applicant has submitted objections to those development standards under SEPP1. For consent to be granted, those objections must be upheld. Upholding the SEPP 1 objection is a precondition that must be satisfied before the proposed development can be approved on consideration of merit. 64Determination of objections to development standards, in accordance with the determination of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, require consideration of three matters, firstly, whether the objection is well founded; secondly, whether granting of consent to that development application is consistent with the aims of SEPP1 as set out in clause 3; and thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection. 65The aim of SEPP1 as set out in clause 3 provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act. Those objects are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, 66The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 67It is necessary to consider each of the objections rather than as a package of controls. The development standards are, however, a package of controls that determine the built form and therefore, a number of similar considerations apply. 68The fact that the application relies on four objections and the extent of variation proposed are not of themselves matters that would lead to the rejection of the application. The SEPP1 objections were prepared by Ms Francis prior to the preparation of the version C plans and are included in Exhibit B. Site frontage 69The objectives of the control are outlined at [24] and apply to both site area and frontage. The site complies with the area requirement and therefore, consideration of the frontage development standard is required. 70Having regard to the evidence, I am satisfied that objectives c, d and e are met however, I am not satisfied that objectives (a) and (b) are met. 71The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. Relevant considerations are: 22 There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of existing together in harmony . Compatibility is thus different from sameness . It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?....... 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character........ 72Much of the objection is couched on the terms that the proposal is in keeping with the bulk, scale and density of the neighbouring apartment buildings to the east and presents a similar streetscape. There is no debate that these buildings are tall and closer to the foreshore than provided for under the council's planning controls. Whilst I accept that the development is compatible with the development on those two sites, it is necessary to take a broader view. They are however the antithesis of those controls and, by that very nature, are different from the broader built form in the locality. It is not a form of development envisaged under the current and future planning controls. 73The development is not compatible with the development to the west and is out of scale, is a bulkier building with that bulk located in the centre of the site contrary to the existing situation and that of the remaining development to the west. The proposal does not provide the landscape setting of that development, particularly in regard to the area within the FBL whereas the two adjoining RFBs to the west respect that setback or the central landscaped spine currently evident on the site and continuing to the west. The setback to the harbour is an important consideration in this case and, whilst not a consequence of lot frontage, is a consideration of the site's suitability to accommodate a building of the scale proposed. 74I accept that the RFB to the west is constructed close to the boundary. Whilst the Version C plans have increased the setbacks of the upper, western levels, limited area is available down both sides for replacement planting on either side of the building to compensate for the loss of the two significant trees to be removed. The arborists' evidence is that the replacement trees are appropriate however, I am not satisfied that sufficient width along the side of the buildings is available to allow those trees to mature with a canopy large enough to compensate for the planting lost and achieve the objective of the control. 75Nor does it maximise daylight and sunlight access between buildings. There is a loss of sunlight to adjoining properties, albeit for a short period of the day, however, because of the design of those properties, having a limited number of windows along the eastern boundary with small apertures, that sunlight is particularly important to the amenity of those dwellings. The SEPP1 objection does not establish that the proposed development maximises sunlight and daylight that would occur if the site complied with the minimum site width development standard. 76For these reasons I am not satisfied that the SEPP1 objection is well founded. Nor am I satisfied that the proposal promotes the coordination of orderly and economic use of the land consisted with the council's planning controls. Finally, for reasons that will become evident in my assessment of the FSR and FBL development standard, I consider that there is public benefit in maintaining the planning controls adopted by the environmental planning instrument. Floor space ratio 77Exhibit G provides calculations of the FSR of the original development application, the amended plans and the Version C plans. The FSR of the latter, being the plans before the Court, is 1.66:1 and therefore in excess of the 0.875:1 that applies to the site. 78The objectives of the control are to establish maximum densities for new development and to control density, bulk and scale in order to achieve the DFC of a locality, minimise adverse environmental effect on the use or enjoyment of adjoining properties and relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape, harbour and any other panoramic viewing point. 79The DFC is informed by the objectives of the LEP and the 2(b) zone and the Darling Point precinct controls and performance criteria contained in the DCP. The development has been designed to step down the slope enabling the ridge line to be read as the dominant element of the precinct and would maintain the evolution of residential building styles through the introduction of a well designed contemporary building. That building does not address the street with only garaging at the road frontage, similar to adjacent developments. It does not maintain the garden setting, the highly visible tree canopy or roof forms nor does it minimise adverse environmental effects on the use and enjoyment of the common open space of the adjacent property to the west of the site due to the positioning of part of the RFB in the area currently occupied by the dwelling at No 83. As discussed in consideration of the FBL development standard, no part of the residential flat building should be constructed within the 30m FBL and therefore, there would be no impact on the use of that space. 80The SEPP1 objection relies heavily on the extent of non-compliance with FSR and bulk of adjacent development to the east and the south in Thornton Street. These tower blocks were approved prior to the LEP and are not consistent in any way with the objectives of the current controls. Whilst they do form part of the character, so too does the development to the west of the site and the density, bulk and scale of those buildings contrasts with the tower buildings. The latter is more consistent with the DFC, particularly having regard to the fact that the purpose of the FSR is to establish a maximum density. That density is a FSR of 0.875:1 and the adjacent development tis consistent with that density. 81The current garden setting and tree canopy between the buildings will be lost and replaced by additional floor space that also breaches the height control, with only linear areas available for planting. This aspect of the development results in excessive bulk, particularly when compared to the adjoining site No 77-81, which complies with the FSR development standard. I consider that the bulk and scale of that development reflects the DFC as outlined in the council's planning controls. The development fails to achieve the objectives of the control. 82I am not satisfied, having regard to the evidence, that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case. Similarly, there is no evidence that the control has been abandoned and for that reason, there is benefit in maintaining the control and to do so would provide for the orderly development of the site in accordance with community expectations and the aims of SEPP1. Height of buildings 83Having regard to the objectives of this development standard and the evidence, I am satisfied that objectives a, c, d and e are met. I have considered the issue of compatibility in my assessment of the site frontage development standard and found that the development is not compatible with the adjoining residential neighbourhood, particularly to the west of the site. Similar to the FSR, the non-compliant building height is in the area at the centre of the site, an area currently providing an open, landscaped setting when viewed from the adjoining properties. The height results in excessive bulk and enclosure when viewed from the adjoining property and the Harbour. 84For this reason, I am not satisfied that all of the objectives of the development standard for building height are satisfied. There is no evidence that, since the adoption of the LEP, the standard has been abandoned. Therefore, I find that the objection is not well founded. Foreshore building line 85The proposal is for the construction of a residential flat building and accordingly a 30m FBL applies. Had the proposal been for the construction of a dwelling house, a 12m FBL would apply however, this is not the case. The proposal seeks to locate the lower two levels and part of levels 3 and 4 of the RFB forward of the 30m FBL. Levels 5 and 6 are constructed behind the FBL. 86The objectives of the control are detailed at [24]. The boundary of the site with the harbour is currently a seawall and there are no rock platforms to be protected or any impact to the intertidal ecology and therefore objectives a and f are not relevant to the application as there is no natural shoreline to retain. The site is located at the northern extremity of Darling Point forming part of its outermost head and is visually prominent when viewed from the harbour. The applicant's SEPP1 objection relies an assessment of setbacks of adjoining development as shown in Figure 4, page 9 of the document at Tab B4 or exhibit B. Those setbacks have no regard to the fact that the two adjoining RFBs to the west of the site comply with the 30m FBL. The objection states: Given the existing built form of neighbouring sites is predominantly forward of the boundaries of the subject site, the proposed development does not risk reducing the visual prominence of the peninsula or the existing built form. Furthermore, the proposal provides a landscaped setback area to the foreshore in excess of the 12m FBL which assists in improving the presentation of the foreshore area as viewed from the Harbour. This proposal will allow for an improvement to the presentation of the Darling Point peninsula, and will not reduce visual prominence. 87At page 13, the author notes that: The set back to the built form will be increased in this proposal. Some vegetation will be retained, some inappropriate species of trees removed, which in and of themselves provide significant increased views from adjoining development and more planting provided in between views will be improved by setting the built form of building on No. 83A back a further 1m from the 12m FBL and views not otherwise available to No. 77-81 will be provided to moving the mass of development from the western boundary to the eastern boundary by approximately 17m forward of the 30m. 88The consideration addressed the FBL for a dwelling house rather than for a RFB. It again relies on the non-compliant development to the east of the site and whilst acknowledging that No 77-81 complies with the development standard, takes the view that the site did not contain a dwelling house forward of it with similar circumstances applying to the RFB at No 73-75. It concludes that the unique circumstance of this site and the development thereupon and its immediate neighbours, mean the underlying objective of the standard has no relevance to the proposal and that variation to the FBL would not have any consequence for any adjoining development by way of precedent. 89I do not agree. The development is not a dwelling house. Whilst objective e does have regard to the preservation of rights of property owners to maintain an encroachment of the FBL, I consider that the proposal goes beyond what is envisaged by that provision. The property owner is not seeking to rebuild the dwelling house, the application is for a RFB. Different development standards apply to that form of development. It is an issue that was the subject to much deliberation and discussion during the hearing. There must however, be some planning purpose in the different setback controls. In Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported), Cripps J said (at 6): It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression "circumstances of the case", it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. ... Furthermore it is now established that although the discretion conferred by SEPP No. 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act. 90It is clear that the council has sought to implement the objectives of providing larger foreshore setbacks for RFBs in accordance with the development standards. This is evident when viewing development to the west of the site. That area is available for use by all of the residents of those buildings and, as evidenced during the site view, is an important part of the enjoyment of that property. The marginal increase to the setback as proposed provides no significant area for planting as that setback area forms part of the terrace to the lowest level unit. No communal open space is provided within the development. Compliance with the development standard would provide areas for future planting that may be used for communal benefit. The objective is not met because of the extent of building within the FBL. 91Compliance with the control would actually enhance the views and sunlight available to residents of adjoining properties to the west. It may also open views not currently available to lower floor units within No. 85 however, I have no definitive evidence that this will occur and do not consider in the particular circumstances that this is a relevant consideration as these views are not currently available. 92In view of the above and having regard to the evidence, I am not satisfied that the objectives of the standard are met, or that compliance with that standard in the circumstances of the case is unnecessary or unreasonable in the circumstances of the case that involves the construction of a RFB and not a dwelling house. It is clear that council has not abandoned the control. 93Having found that none of the SEPP1 objections to development standards should be upheld, the preconditions to the grant of consent have not been met and therefore, a full assessment of the application under the provisions of s79C of the Environmental Planning and Assessment Act 1979 or consideration of the effect of the covenant is not required. However, based on my findings in relation to the size, bulk, scale, height and siting of the proposed development such merit assessment of the application would demonstrate the site is not suited to the development proposed. 94The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application DA485/2012/1 to demolish two adjacent dwelling houses at 83 and 83A Yarranabbe Road, Darling Point and construct a residential flat building containing 6 dwellings and underground parking, swimming pool, gym and associated site landscaping is refused consent. (3)The exhibits, other than exhibits B, C, D, H and 2 are 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: 14 January 2014