Land and Environment Court New South Wales Medium Neutral Citation: 746 OSH Pty Ltd v Woollahra Municipal Council [2016] NSWLEC 1174 Hearing dates: 5 May 2016 Date of orders: 12 May 2016 Decision date: 12 May 2016 Jurisdiction: Class 1 Before: Tuor C Decision: 1 The appeal is upheld. 2 The development application (DA447/2015) for a residential flat building at 746 New South Head Road, Rose Bay, is approved subject to the conditions in Annexure A. 3 The exhibits, except Exhibits 1 and A, are returned. 4 Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as agreed or assessed. Catchwords: DEVELOPMENT APPLICATION: Residential flat building. Existing use rights, resident objections, view loss, privacy, height, bulk and scale, access. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014 Woollahra Planning Scheme Ordinance Cases Cited: Ashfield Municipal Council v Armstrong [2002] NSWCA 269 Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Category: Principal judgment Parties: 746 OSH Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant) Solicitors: Mr A Boskovitz of Boscovitz & Associates (Applicant) Ms J Hewitt of HWL Ebsworth Lawyers (Respondent) File Number(s): 11140 of 2015 Judgment 1. 746 OSH Pty Ltd (applicant) is appealing under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Woollahra Municipal Council (council) of a development application (DA447/2015) for a residential flat building (RFB) at 746 New South Head Road, Rose Bay (site). 2. Council does not press the contentions raised in the Statement of Facts and Contentions filed on 4 February 2016. It accepts that the contentions have been resolved by amended plans, further information, conditions and the evidence of the planning experts. However, council is not seeking consent orders from the Court and as the appeal is a deemed refusal it could have determined the application. Site and locality 1. The site is a battle axe allotment with an access handle providing vehicular and pedestrian access from New South Head Road. It has a total area of 923 sqm or 780sqm, excluding the access handle. It falls approximately eight metres from the New South Head Road frontage to the western rear boundary. The western end of the site is developed with a two storey RFB with 6 x 2 bedroom units. There are garages and a hard stand area at the eastern end which is at a higher level than the RFB and adjoins a cheese tree located near the access driveway. 2. To the north and east, the site adjoins dwelling houses (754 and 750 New South Head Road). To the south, it adjoins a three storey RFB (744 New South Head Road and, to the west, it adjoins Rose Bay Beach. 3. The locality is characterised by a mixture of dwelling houses and RFBs of various architectural styles. 4. There are reciprocal rights of way for 744 and 746 New South Head Road to use the driveway access handle from New South Head Road. The reciprocal rights of way do not extend beyond the access handle and access to the garages on 746 and the carport on 744 is technically only available from the area within each respective lot. However, historically each property has utilised the other to gain access. The site is burdened by a covenant restricting the height of development. Planning controls 1. The existing RFB was approved in 1928. In 1972, RFBs were prohibited under Woollahra Planning Scheme Ordinance (PSO) and remain prohibited in the R2 - Low Density Zone under Woollahra Local Environmental Plan 2014 (the LEP), in which the site is located. The development relies on existing use rights under s106-109B of the Act. Although initially in dispute, the provision of further information has satisfied council that the site enjoys existing use rights and the development is permissible. The parties agree that the principles established in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 and Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 are relevant. 2. The maximum height of a building that would be permissible under cl 4.3 of the LEP is 9.5m. The amended proposal is below this height. No floor space ratio control applies to the site. Under cl 6.4 a foreshore building line (FBL) applies to the site. The RFB does not encroach within this area. Clause 1.9A provides that any covenant that would restrict development in accordance with the LEP does not apply. 3. While Woollahra Development Control Plan 2015 (the DCP) does not apply it provides guidance as to the existing and desired future character of the area. In particular, the site is located within the Rose Bay Precinct (B1.9). Controls that would apply to the area that were initially in dispute include a rear setback of 16.9m (B3.2.4) of which at least 50% should comprise deep soil planting (B3.7). Section B3.5 provides overshadowing controls, which include that north facing windows to upper level windows of adjacent dwellings should receive at least 3 hours of sun in midwinter. Background and proposal 1. The development application was lodged in September 2015 for demolition of the existing two storey RFB and the construction of a new three storey RFB comprising three units (original application). The application also involves demolition of the existing garages and construction of a new garage and a new double garage with two car stackers and landscaping. The original application was notified and a number of submissions objecting to the proposal were received. 2. The applicant filed a Class 1 appeal against the deemed refusal of the application on 7 December 2015. A conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) was held on site on 11 February 2016 at which objectors to the application attended and outlined their objections to the proposal. The parties subsequently did not reach agreement and the conciliation conference was terminated. 3. The parties agreed to my disposing of the proceedings under s34(4)(b)(i) of the LEC Act and that the site view and objector evidence would be evidence in the proceedings. 4. At the commencement of the hearing, the applicant sought and was granted leave to rely on amended plans (amended application) subject to an order for costs under s 97B of the EPA Act. The amended application had been advertised and submissions in response to the amended and original application were tendered into evidence. 5. The key changes are the building is lowered by one metre to 9.4m, the rear, western setback on ground and first floor is increased by 1.3m and the second floor setback is increased by 4m, the southern façade is amended to remove angled sections and blade walls and realigned to increase the southern setback to about 2m, privacy louvres, planters and articulation are added. Evidence 1. During the hearing, the Court heard further evidence from objectors and expert planning evidence from Mr G Karavanas, for the applicant, and Ms L Samuels, for the council. 2. The primary issues raised by the objectors reflect those initially raised by council. Additional issues include solar access, impacts during construction, noise from the stacker, AC and plant and the existing covenant on the site. Solar access and the covenant are discussed below. The other matters were addressed by council and the planning experts in their consideration of the application and would not be reasons to refuse the application. Proposed conditions of consent include the requirement for acoustic certification of the stacker, AC and plant (condition C.19-C22), geotechnical certification and monitoring during construction (condition C.9), dilapidation report and assessment of the foundations of adjoining buildings(D.8-D9), construction management plan (condition D.10). 3. The planning experts provided a joint report and oral evidence which summarised how the contentions had been addressed and the reasons that they considered the contentions had been satisfied, which are outlined below. Contention 1 – existing use rights 1. As discussed above, the applicant has submitted further information and the parties agree that the site enjoys existing use rights. Contention 2 – View loss 1. The experts reviewed the view analysis prepared by Dr R Lamb and considered the impact for each affected property under the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. 750 New South Head Road 1. The proposal will result in the loss of the water and Harbour Bridge views at ground floor level (balcony and living room) and will impact on part of the water views at first floor level (sunroom and bedroom), but the Harbour Bridge view will be retained and the impact on views is reasonable for the following reasons: • The height of the RFB has been lowered from 10.4m to 9.4m and minimised as much as possible to maintain the first floor level iconic views. The proposed height is appropriate in the context of the surrounding development (the proposed RFB is 4.29m lower than the ridge of 744 New South Head Road) and complies with the maximum height control under the LEP, which would apply if the subject site did not benefit from existing use rights. • The side setback of the southern elevation has been increased from 1.3m to 2m, to maximise any view corridors obtained from the southern side of the ground floor balcony and would comply with the required side setbacks if the control applied and the subject site did not enjoy existing use rights. The proposal also has greater side setbacks than the existing building on site. • The view analysis diagrams demonstrate that a development that complies with the permissible R2 envelope would still result in the total loss of the Harbour Bridge and water views from the ground floor level 9/744 New South Head Road 1. The proposal will have an impact on the side views of Rose Bay beach, obtained from the kitchen and living room which is reasonable for the following reasons: • The amended plans increased the rear setback of the first floor level by 4m, which will allow for the side views of Rose Bay beach to be retained from the living room. • While the proposal will have an impact on the view from the kitchen, this is an oblique view from a side boundary obtained over the roof of the existing RFB. It is noted that side views are more difficult to retain, as expressed in Tenacity • The proposal will not have any impact upon the primary iconic views obtained from the balcony and primary living areas. 8/744 New South Head Road 1. The proposal will have an impact on the side views of Rose Bay beach, obtained from the kitchen and living room. The proposal is considered to be reasonable in this regard for the following reasons: • Given that the rear setback of the proposed RFB is greater than the rear setback of the existing building, the proposal will improve the existing side view of Rose Bay Beach from the living room. • The proposal will have an impact on the outlook (trees) from the kitchen window. This is a side view and is therefore more difficult to retain. • The proposal will not have any impact upon the primary iconic views obtained from the balcony and primary living areas. Contention 3 – rear setback 1. The amended proposal has a rear setback of 10.8m - 11.7m, which is acceptable as the building will not extend beyond the northern elevation wall at 744 New South Head Road that will minimise any amenity impacts. The proposed setback is greater than the setback of the existing building and will provide an appropriate transition between 744 and 754 New South Head Road. The top floor has been set back an additional 4m, which results in a setback of 17m from the rear boundary, which will reduce the bulk and scale of the first floor level when viewed from the harbour and the neighbouring properties. Contention 4 – deep soil landscaping 1. The increased rear setback allows for sufficient deep soil landscaping to be provided on the site and within the rear setback area. Contention 5 – height 1. The height of the RFB has been lowered and is less than the maximum height control under the LEP and is below the height of 744 New South Head Road. Contention 6 – building footprint 1. The amended proposal has reduced the building footprint by 23.7sqm, which results in a footprint that is only 16.3m2 larger than the existing building. The front, side and rear setbacks of the amended proposal are acceptable which indicates that the footprint of the building is an appropriate response to the site. The reduced building footprint allows for sufficient deep soil landscaping to be provided on the site and acceptable stormwater management. Contention 7 – bulk and scale 1. For the above reasons the amended proposal has achieved an acceptable bulk and scale. Contention 8 – stormwater management 1. Amended stormwater plans were submitted and reviewed by council. Subject to the recommended conditions of consent, the proposal is acceptable with regard to stormwater management. Contention 9 – vehicular access 1. The amended proposal and Traffic Statement demonstrate that B85 vehicles will be able to access and exit the site in a forward direction without encroaching over the neighbouring property where the right of way does not exist. 2. The parties agree that the grant of reciprocal right of way easements over both 744 and 746 to access their respective properties is preferred. This was also supported, in principle, by 744 New South Head Road and a condition is proposed, which seeks to achieve this outcome (condition C.24). However, in the event that this does not eventuate and considering the width of the existing driveway, particularly adjacent to the existing Cheese Tree (2.5m wide) a condition is proposed (condition F1) requiring that a positive covenant, pursuant to Section 88E of the Conveyancing Act, is created on the property title advising future and present owners that due to the narrow width of the driveway (and to prevent any encroachment of vehicles onto the neighbouring driveway at 744 New South Head Road), no access shall be provided to vehicles larger than an Australian Standard B85 (4.91m in length). 3. Conditions are also proposed that require the new paving for the driveway to be graded to ensure that there is no change in level between the driveway of 744 and 746 and that the owners of 746 pay for the repaving of the driveway on both properties (conditions C.1(a) and E25). Contention 10 - privacy 1. The northern and southern elevations contain only high level windows, narrow hallway windows and windows screened by louvres, which would not result in any adverse privacy impacts upon the neighbouring properties. The ground and first floor balconies are screened by privacy louvres, which would prevent any overlooking of the neighbouring properties. To minimise any overlooking from the second floor balcony, a 1.5m wide planter box has been provided along the western side of the balcony and a 0.8m wide planter box has been provided along the southern side of the balcony. 2. Further conditions are proposed which require the privacy louvres on the southern side of the balcony on the ground and first floors to be angled and a privacy screen on the second floor to prevent overlooking of 744 New South Head Road (condition C.1 (c) and (d)). Objectors Concerns 1. The objectors concerns were also addressed by the planning experts and largely duplicate the discussion above. Additional matters are discussed below. Solar access 1. The objectors raised additional concerns about impacts on solar access to 2/744 New South Head Road, which is on the ground floor and has north facing windows. Mr Robb, on behalf of the owner of Unit 2, acknowledged that the north facing windows to the kitchen/living area of Unit 2 were already overshadowed by the existing building on the site but considered that additional overshadowing that would result from the extension to the east of the proposal, beyond the footprint of the existing building on the site, was unreasonable. Although he acknowledged that this impact would result from any building in this location on the site that is greater than one storey. The overshadowing would be to two bedrooms and a bathroom, however, one bedroom had a second window the east. Mr Mirams, the owner of 9/744 New South Head Road, suggested that greater solar access to the kitchen/living area of unit 2 could be provided if part of the upper level of the proposal were reduced in height by 1.3-1.5m. The experts did not consider such a change to be reasonable as these rooms in Unit 2 are already overshadowed by the existing building and the change would result in a significant reduction in the usable floor plate of the upper level of the proposal. Furthermore, they considered the additional overshadowing of the bedrooms would result from any complying development on the site. The DCP recognises the difficulty in retaining solar access to ground level units as s B3.5 provides overshadowing controls which require retention of solar access to north facing windows only at upper levels. Height covenant 1. A height covenant exists on the title of the site, which states that the maximum height of development shall not exceed 27 feet above any point on a level corresponding to the level of the stone wall along the water frontage. The objectors considered that the height covenant should be enforced. 2. In accordance with cl 1.9A of the LEP, the restrictions within the covenant do not apply. Findings 1. I accept that the amended proposal had been adequately assessed by the planning experts and that the contentions between the parties have been resolved. A RFB would not be permissible within the R2 zone, other than through the existing use rights benefiting the site. Nevertheless, the amended proposal generally complies with the planning controls that would apply to a residential development on the site. In particular, it is below the height limit in the LEP. While there would be a non-compliance with the numerical requirements for the rear setback, the development provides an appropriate transition between the adjoining buildings and adequate deep soil planting. The height and setbacks result in a building footprint and envelope that are compatible with the bulk and scale of existing surrounding development and the desired future character sought for the locality. While there will be some impacts on adjoining properties, in particular, the loss of views to the ground level of 750 New South Head Road and solar access to 2/746 New South Head Road, these are not beyond what would be reasonably anticipated under the planning controls. I therefore accept the evidence of the planners and the submissions of the parties that the appeal may be upheld and the application approved. Orders 1. The appeal is upheld. 2. The development application (DA447/2015) for a residential flat building at 746 New South Head Road, Rose Bay, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1 and A, are returned. 4. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as agreed or assessed. Annelise Tuor Commissioner of the Court 11140 of 2015 Tuor (C). (740 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2016