Land and Environment Court New South Wales Medium Neutral Citation: Parker Logan Property Pty Ltd v Woollahra Council [2017] NSWLEC 1409 Hearing dates: Conciliation held 26 June, Hearing 26 July 2017 Date of orders: 04 August 2017 Decision date: 04 August 2017 Jurisdiction: Class 1 Before: Dickson, C Decision: The orders of the Court are: (1) The applicant is granted leave to rely on amended plans; (2) As agreed between the parties, pursuant to s97B of the Act the Applicant is to pay the Respondents the sum of $2,200 within 14 days from these orders, with the sum representing the respondents costs thrown away as a result of amending the development application; (3) The appeal is upheld; (4) Consent is granted to Development Application No. DA591/2016/1 for demolition and construction of two, three storey boarding house buildings over shared basement car parking at Lot 13 DP13528 and SP 16395, subject to the agreed conditions and the following agreed condition: I.11 privacy screens; the owner(s) must in accordance with this condition install, maintain, renew and repair if necessary the privacy screens identified on plans marked LEC 201 and LEC 202 (detailed in condition A) for the life of the consent. (5) The exhibits are returned with the exception of Exhibit A,B, 1 and 7. Catchwords: DEVELOPMENT APPEAL: Boarding house – traffic access from Old South Head Road – Stormwater – View Loss – Impacts on neighbours – Compatibility with character of street – experts agreed amended design should be approved. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Affordable Rental Housing) 2009 Woollahra Local Environmental Plan 2014 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Texts Cited: Nil Category: Principal judgment Parties: Parker Logan Property Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Solicitors: Lindsay Taylor Lawyers (Respondent) Boskovitz and Associates Solicitors (Applicant) File Number(s): 2017/72361 Publication restriction: No Judgment 1. COMMISSIONER This appeal was lodged in response to the refusal by Woollahra Municipal Council of development application DA591/2016/1. The application sought approval for demolition and construction of two, three storey boarding house buildings over shared basement car parking at 42 - 44 Old South Head Road, Vaucluse on land described as Lot 13 DP13528 and SP 16395 (the Site). 2. The matter commenced by way of a conciliation conference. A number of objections were lodged to the development application, and during the onsite view the objectors were given the opportunity to express their concerns. Subsequently a view of the site, and adjoining properties was undertaken by the Court and the parties. 3. At the commencement of the hearing leave was granted by the Court for the applicant to rely on amended plans. These plans were informed by the conciliation and expert joint conferencing process. 4. It was agreed by the representative of Council that the: amended plans; stormwater details; plan of management for the operations; and the conditions proposed for any consent, address the issues initially raised by the council and detailed in the statement of facts and contentions (Exhibit 1). In the Councils view, the matters outstanding for determination relate to the issues raised in the resident submissions. 5. The issues before the Court therefore are: whether the agreements between the experts are well founded and satisfy the matters for consideration in s79C (1)(a)-(c) of the Act; and to consider the matters raised the submissions made by the public in response to the notification of the development application (s97C(d) and (e) in the determination of the application. The site and its context 1. The subject site is located in the western side of Old South Head Road between Captain Pipers Road and Clarendon Street. The combined site area of the two properties is 1,366m ². 2. The site is surrounded predominately by residential dwelling houses and duplexes interspersed with other residential dwelling types including residential flat buildings. The Rose Bay North local commercial centre is approximately 100m to the south of the site. The proposal 1. The proposal, as amended, involves the following: * Demolition of all existing structures on the site; * Construction of two 3-storey boarding house buildings, over a shared basement car parking area. The development proposes a total of 27 rooms; * Fences, landscaping and site works; * Creation of rights-of-way and rights-of-footway benefitting each lot. 1. The Court heard from a number of objectors on site at the commencement of the conciliation conference. During the hearing a summary of these objections was tendered (Exhibit 5) and their central concerns with the proposal can be summarised as: 1. The incompatibility of the building design with the character of the locality, noting that compatibility is required by the planning provisions; 2. Specifically the extent of glazing on the front and the form of the roof and the three storey presentation is uncharacteristic. 3. At the rear of the development the boarding rooms and balconies provide a direct view into the adjoining properties, creating unreasonable privacy impacts. 4. The development lacks appropriate privacy measures; 5. There is potential for 55 residents to be accommodated where currently two residences are located. The density of the proposed development is out of character and will result in unreasonable amenity impacts. Of particular concern is the overflow of parking, noise generation and the intrusion into the current peacefulness of the neighbourhood; 6. The development is of a commercial scale and should not be allowed in a residential environment; 7. The plan of management proposed is inadequate, refers to a different location and does not state the minimum period of residence. It should be amended to address many of the issues raised by residents. 8. Loss of solar access to the neighbour to the south of the proposed development; 9. The development will impact on district and water views; 10. The excavation may pose a structural risk to the adjoining properties. Key Changes 1. Since the lodgement of the appeal the applicant has made the following amendments to the proposal: 1. Relocation of the lifts to the centre of the built form to reduce the scale of the development adjoining 40 and 46 Old South Head Road; 2. Increase in the front setback of the development on 44 Old South Head Road by 2.5m. 3. Reduction and relocation of the basement car parking to reflect the amendments to the lift locations; 4. Amendment of the upper floor to be contained within a "mansard roof form" to reduce the bulk and scale of the building; 5. Reduction in the glazed area of the façade to be more consistent with the character of the locality; 6. Reduction in the extent of the top storey (consequential reduction in room numbers to 27); 7. Addition of privacy screens and obscure glazing to the rear first floor balconies and side boundary facing windows; 8. Increase in the size of the onsite storm water detention tanks; 9. Amendments to the driveway grades and slays to improve sightlines. (Exhibit G) Planning Framework 1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest. 2. The application was lodged pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). This policy includes, at cl 30A, a test of compatibility with the local character of the area. This clause states: a consent authority must not consent to development to which this division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 1. It is agreed between the parties and the experts that the proposal meets the remaining provisions of SEPPARH, where relevant to the proposal. In particular the proposal complies with the mandatory standards is set out in clause 30 (1) of the SEPP which are a precondition to consent. The compliance of the original proposal with cl 30A (the character test) was a contention between the parties. 2. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. 3. Woollahra Local Environmental Plan 2014 (LEP 2014) applies to the site. Pursuant to LEP 2014 the site is zoned R2 Low Density Residential. The development is permissible through the provisions of SEPPARH. 4. The development is subject to the requirements of Woollahra Development Control Plan 2015. The relevant planning controls are contained in: * Part B1.11: Vaucluse East Precinct * Part B3.2: Building Envelope * Part B3.4: Excavation * Part B3.5: Built Form and Context * Part B3.7: External Areas * Part E1.7.4: Parking Spaces for People with a Disability * Chapter E1: Parking and Access * Chapter E2: Stormwater and Flood Risk Management * Chapter E3: Tree Management * Chapter E4: Contaminated Land * Chapter E5: Waste Management * Chapter E6: Sustainability Planning Evidence 1. The Court heard expert planning evidence from Mr Lewis Adey, for the applicant, and Mr Geoff Goodyer for the Council. The experts participated in a joint conferencing process on the amended proposal prior to the hearing. At the conclusion of the joint conferencing process they prepared a report which was tendered as Exhibit 2. 2. The planning experts addressed four main issues: 1. The compatibility of the amended proposal with the character of the local areas (as required by SEPPARH); 2. The overshadowing impact of the amended proposal on neighbouring properties; 3. The impact of the amended proposal on the visual and acoustic privacy of the adjoining properties; 4. The reasonableness of the impact of the amended proposal on existing views of the neighbouring properties. Compatibility 1. At the commencement of the proceedings Council had contended that the development should be refused as the design of the development was incompatible with the character of the local area. Following conciliation a number of amendments were made to the design. 2. In the joint report of the planning experts they state that, following the amendments to the design, the proposal is in their opinion compatible with the character of the local area and satisfies cl 30A of SEPPARH. 3. They provide the following reasoning in support of this conclusion: The development comprises two separate buildings such that the frontages of each of the buildings is consistent with the neighbouring dwelling houses and apartment buildings. The roof form has been amended to provide a mansard roof with rooms with that that mansard roof form such that the buildings have the external character of a 2-stroey building plus rooms in the roof. The side elevations have been articulated in the amended plans through the introduction of "notches" in the facades, reducing the maximum length of unarticulated wall to 10.5 metres. The amount of glazing in the front facades of the buildings has been reduced in the amended plans and the amount of masonry increased to increase the solid to void ratio and provide greater compatibility with neighbouring buildings in terms of presentation to the street. Overshadowing 1. Council originally contended that the application would result in unreasonable and excessive overshadowing of the living areas and private open space of 40 Old South Head Road. This concern was also raised during the onsite view by a representative of the resident of this property. 2. Following consideration of the amended proposal the planning experts have reached the following agreed conclusions: We agree that the extent of overshadowing of 40 Old South Head Road has been reduced by the amended plans and that the amended proposal provides reasonable solar access to neighbouring properties. … We agree that the amended proposal provides sunlight to more than 50% of the main ground level private open space of all adjoining properties, including 40 Old South Head Road, for over 2 hours between 9am and 3pm on June 21, as required by Part 3.5.2 of WDCP 2015. 1. They provide the following reasoning in support of this conclusion: The amended plans have reduced the western extent of the upper floor of the proposed building on 42 Old South Head Road by 6 metres through the deletion of one boarding room and the reconfiguration of another boarding room. This will increase solar access into the west-facing living room glazed doors of 40 Old South Head Road. … We agree that the expectation to retain sunlight to the ground floor north-facing windows of 40 Old South Head is unrealistic. However, we agree that the amended proposal has been skilfully designed to retain sunlight to the ground floor living room west facing windows of 40 Old South Head Road. Loss of Privacy 1. Council originally contended that the application would result in unreasonable and excessive overlooking and noise which would reduce the amenity of the neighbouring properties. These concerns were also raised during the onsite view by surrounding residents. 2. Following consideration of the amended plans the experts have reached agreement that the amended proposal provides adequate privacy to the neighbouring properties. They are also satisfied that in combination with the agreed conditions of consent the development and the balcony size any potential noise impacts will be minimal. 3. They provide the following reasoning in support of this conclusion: The amended proposal has introduced screening to balconies to reduce direct lines of sight to neighbouring properties, particularly 40 Old South Head Road. The separation distance between the proposed buildings and the properties to the west of the site, 15-17, 21 and 23 Captain Pipers Road, is sufficient to mitigate potential privacy impacts arising from the development. The proposed rear balconies are small, being only 1.4m deep, therefore limiting opportunities for sitting and gathering. As such potential noise impacts will be minimal, compared to, for example, potential impacts generated from the use of swimming pools in immediately surrounding residential properties. 1. During the proceedings the parties agreed to the following additional condition to ensure the maintenance of the privacy screens while ever the use operates: Condition I.11 The owner must in accordance with this condition install, maintain, renew and repair if necessary the privacy screens identified on plans marked LEC 201 and LEC 202 (detailed in condition 1) for the life of the consent. 1. In relation to noise, relevantly the agreed conditions of consent include: a maximum of two boarders to be accommodated in each room; and the mandating of the operation of the premises in accordance with the Plan of Management (POM). Relevantly the POM incorporates a number of 'House Rules' which are incorporating in the boarders occupancy agreements. These rules include: 6.7 Noise Live music will not be permissible on the property at any time. No amplified music is permitted at any time within the outdoor communal areas, on the street in front of the property and in the general vicinity of the Property. Recorded or amplified music is permissible indoors during daylight hours between 8:00am and 8:00pm Monday to Thursday and between 8:00am and 10:00pm Friday to Sunday. An on-site Manager will be available 24 hours per day, 7 days per week to ensure the site is being appropriately monitored and any noise which could be heard at nearby properties is kept to a minimum. If a lodger or lodgers are found to have not complied with this house rule on more than one occasion, the Manager will require them to leave the property. Lodgers will also be warned against the use of the outdoor communal space outside of permitted hours and will be warned if they do not comply with clause 8.0 of this Plan of Management. All lodgers will receive two warnings and if they continue to breach the conditions of the Plan of Management, the Manager will require them to leave. 7.0 Use of Indoor and Outdoor Communal Area The use of the outdoor communal area shall be restricted to between the hours of 7:00am and 10:00pm, 7 days per week. The use of the indoor communal space shall be restricted to between the hours of 6:00am to 12 midnight, 7 days per week. No amplified music is permitted at any time within the outdoor communal area. Noise is to be kept to a minimum by all users of the Communal Open space. The Manager and Owner will be responsible for ensuring that this rule is complied with and if it is not complied with will be at liberty to warn any Lodger about their responsibilities in this Plan and in the House Rules. View Sharing 1. The Council originally contended that the application should be refused as it resulted in unreasonable and excessive view loss for neighbours. 2. As part of the onsite view the parties were able to view and assess the potential view impacts of the proposal from a number of neighbouring properties. 3. The experts undertook an assessment of the view impacts of the amended proposal utilising the view sharing principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. Following this assessment the experts agree that the amended proposal provides adequate view sharing for neighbouring properties. 4. The experts conclude that: Affected views from neighbouring properties comprise local and district views of urban development and are considered to be of low to moderate value. Views of the Pacific Ocean are retained by neighbouring properties. The impact of the proposal on views is considered to be negligible. The proposal complies with the relevant built form planning controls. We agree that when assessed using the view sharing principles in Tenacity Consulting v'Warringah Council [2004] NSWLEC 140 to proposal provides for the reasonable sharing of views. 1. Following consideration and assessment of the amended plans the planning experts conclude that the remaining issues in contention in relation to the adequacy of laundry facilities, the POM and the provision of a BASIX certificate have been adequately addressed. 2. The planning experts raise no outstanding issues that would warrant the refusal of the application. Traffic Evidence 1. The Court heard expert traffic evidence from Mr Ramy Selim, for the applicant, and Ms Qian Liu for the Council. The experts participated in a joint conferencing process on the amended proposal prior to the hearing. At the conclusion of the joint conferencing process they prepared a report which was tendered as Exhibit 3. 2. In relation to traffic, vehicular safety and manoeuvring the Council originally contended that the application should be refused due to the unsafe egress to Old South Head Road, which is a classified road. 3. At the conclusion of the joint conference during which the amended plans were discussed and assessed the experts reached agreement as follows: 2 1 1 The experts agree that a ramp gradient of 1 in 20 (5%) for first 5 5m into the property boundary as shown in the amended plans is acceptable on the basis that the footpath along Old South Head Road is setback from the property boundary by 600mm It is the experts' opinion that the overall length of the ramp section containing a gradient of 1 in 20 exceeds 6m and hence satisfies Clause 3 3 of AS/NZ 2890 1 2004 2 1 2 The experts agree that the provision of a 2 0m x 2 5m pedestrian splay at the property line north of the driveway as shown in the amended plans complies with Clause 3 2 4 of AS/NZ 2890 1 2004 2 13 The experts agree that the gradients of the access driveway and the ramp as shown in the amended plans comply with AS/NZ 2890 1 2004 Clause 3 3 and Clause 2 5 3 2 1 4 The experts agree that adequate headroom clearance at the car park entrance has been provided in accordance with AS/NZ 2890 1 2004 Clause 5 3 1. 1. The experts have identified no areas of disagreement in relation to the safety of the proposed egress from the property onto Old South Head Road. The relevant conditions proposed by the experts in their report have been included in the agreed conditions of consent at C1 (c) and (d). Stormwater Evidence 1. The Court heard expert stormwater evidence from Mr Michael Green, for the applicant, and Mr Robert Lam for the Council. The experts participated in a joint conferencing process on the amended proposal prior to the hearing. At the conclusion of the joint conferencing process they prepared a report which was tendered as Exhibit 4. 2. Council initially contended the application failed to provide sufficient on site detention of stormwater and had the potential to create adverse impacts on surrounding properties and infrastructure. 3. Following the conciliation the applicant has amended their proposal to incorporate the reconstruction of Council's stormwater pipeline. Council has provided the following condition to effect this agreement: Relocation or reconstruction of Council's stormwater drainage system The developer must meet all costs for the relocation and/or reconstruction of the existing Council's pipeline (including design drawings and easements) required to carry out the approved development. In this regard, the applicant shall prepare all engineering drawings (plan, section and elevation views) for the new 450mm diameter steel reinforced concrete pipelines in accordance with the submitted stormwater plans, prepared by Green Arrow, drawing no. H-08-A, dated 29/6/17. The design plans must be lodged and approved by Council prior to the issue of any Construction Certificate. Any 1%AEP flow from the upstream catchment shall be intercepted and safely conveyed through the northern boundary of the site by a dedicated overland flow path (grassed or concrete open channel) in accordance with Council's Woollahra DCP Chapter E2 – Stormwater Flood Risk Management – Overland Flow Paths. … 1. This condition has been incorporated into the agreed conditions of consent at C17. 2. The experts have identified no areas of disagreement in relation to the stormwater management. The experts have agreed and documented a number of conditions that they recommend should apply to any consent. These conditions address the reconstruction of Council's infrastructure and the creation of a reciprocal right-of-way and drainage easement. These conditions have incorporated into the agreed conditions of consent. Consideration 1. It is agreed between the parties and the experts that the mandatory provisions of SEPPARH are met by the amended plans. The planning experts are in agreement that the character test in cl 30A of SEPPARH is met by the amended plans. 2. I have reviewed the comments made by experts, and their agreements. I am satisfied, subject to the agreed conditions, they appropriately consider the issues raised by the contentions, the appropriate planning controls and I accept their conclusions. 3. It remains now to assess the matters raised the submissions made by the public in response to the notification of the development application and whether they are satisfactorily addressed in the determination of the application. 4. It is the submission of Mr Boskovitz that the further amendments undertaken by the applicant after the conciliation were responsive to both the issues raised by the Council and those raised by the residents. In particular he argues that the 'House Rules' section of the POM seeks to define the behaviour and requirements of the residents of the boarding house, to minimise any impact the use may have on adjoining properties. 5. It is the submission of Ms Puckeridge that the reduction in the number of boarding rooms has result in an improvement of solar amenity for the adjoining property, and the inclusion in the amended plans of obscure glazing and privacy screens address the Council's concerns in relation to visual privacy. She submits that the amended plans (Exhibit A) address the contentions originally pressed by the Council, and the Council relies on the evidence of the experts who have concluded that they are satisfied that the development is satisfactory. 6. I am satisfied that the issues raised by the objectors are satisfactorily addressed and do not constitute issues that warrant the refusal of the application. The reasoning that supports this conclusion is as follows: 1. I have accepted at paragraph 46 the evidence of the experts that the development is compatible with the character of the locality, the privacy and view impacts are acceptable, and the POM is satisfactory. 2. The intensity of the development has been reduced by the amendments and the agreed conditions have ensured that the maximum number of occupants is capped at two per boarding room. 3. The conditions also clarify that any change in use, such as for serviced apartments or short term holiday rental would require a new development consent; and 4. I am satisfied that the agreed conditions of consent contain requirements that address dilapidation, support for adjoining structures and reasonable controls over the constriction process. 5. The excavation may pose a structural risk to the adjoining properties. 1. As outlined in [9], as part of the onsite view, the Court had the opportunity to hear from members of the public in relation to their concerns with the proposed development. The issues raised by the residents were pressed by the Council and through the conciliation process a number of amendments were made to the application by the applicant. These changes to the proposal are detailed in [10]. The applicant and the Council have also agreed to a set of conditions that provide additional safeguards and certainty in relation to the management of impacts of the development. 2. I find that in evaluating the development application the amendments and conditions are appropriately responsive to public submissions and the potential impacts of the development [s79c(1) (b)(e)]. There are no material issues raised by the residents that remain to be considered. Findings: 1. For the reasons set out in the judgment, after considering the relevant matters under s79C(1) of the Act, the amended plans, the expert reports, the proposed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances. Orders: 1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. As agreed between the parties, pursuant to s97B of the Act the Applicant is to pay the Respondents the sum of $2,200 within 14 days from these orders, with the sum representing the respondents costs thrown away as a result of amending the development application; 3. The appeal is upheld; 4. Consent is granted to Development Application No. DA591/2016/1 for demolition and construction of two, three storey boarding house buildings over shared basement car parking at Lot 13 DP13528 and SP 16395, subject to the agreed conditions and the following agreed condition: I.11 privacy screens; the owner(s) must in accordance with this condition install, maintain, renew and repair if necessary the privacy screens identified on plans marked LEC 201 and LEC 202 (detailed in condition A) for the life of the consent. 5. The exhibits are returned with the exception of Exhibit A,B, 1 and 7 ……………......... D M Dickson Commissioner of the Court 72361.17 (Conditions) (809 KB, pdf) 72361.17 Dickson - 2017.07.14 - Management Plan - 44 Old South Head Rd Vaucluse 1.02 (221 KB, pdf) ********** Amendments 10 August 2017 - Order (4) amended to reflect the addition of condition I.11 in Annexure A 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: 10 August 2017