Land and Environment Court New South Wales Medium Neutral Citation: Leda Holdings Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1394 Hearing dates: 26 – 27 July 2018 Date of orders: 01 August 2018 Decision date: 01 August 2018 Jurisdiction: Class 1 Before: O'Neill C Decision: The Court orders that: 1) The appeal is dismissed. 2) Development Application No. 226/2017/1 for alterations and additions to a dwelling house currently under construction at 21-23 Cranbrook Road (also known as 11 Cranbrook Lane) Bellevue Hill, including a new tennis court, widening of the vehicular entry, site works and landscaping, is refused. 3) The exhibits, other than exhibit 1, are returned. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling currently under construction; new tennis court; exceedance of height of buildings development standard; impact on streetscape. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Leda Holdings Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: S Duggan SC (Applicant) Solicitors: Addisons Lawyers (Applicant) S Puckeridge, Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/31129 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 226/2017/1 for alterations and additions to a dwelling house currently under construction, including a new tennis court, widening of the vehicular entry, site works and landscaping (the proposal) at 21-23 Cranbrook Road, also known as 11 Cranbrook Lane, Bellevue Hill (the site), by Woollahra Municipal Council (the Council). 2. The appeal was subject to mandatory conciliation on 26 July 2018, in accordance with the provisions of s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference it was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of oral evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. 3. Leave was unopposed and granted by the Court during the hearing for the applicant to rely on an amended proposal (exhibit E) which incorporated minor changes to the proposal agreed upon by the experts during the conciliation conference, including sandstone facing to the exposed face of the tennis court structure, a 1.5m high palisade fence around the exposed perimeter of the tennis court to match the approved fencing to the terrace over and the tennis court lighting fixed to the face of the dwelling. Issues 1. The Council contends that the height of the proposed tennis court within the front setback is not compatible with the Cranbrook Road streetscape and that the height of the tennis court above the existing ground level is not an appropriate response to the topography of the site. The Council contends that the written request to vary the height of buildings development standard does not justify the contravention of the development standard. The site and its context 1. The site has an area of 2,138m2 and frontages to both Cranbrook Lane to the west and Cranbrook Street to the east. The site is on the high side of Cranbrook Road and falls to the north along the Cranbrook Road frontage. The site falls from Cranbrook Lane to the lowest point at the north-eastern corner of the site adjacent to the Cranbrook Road frontage. 2. The approved development has been designed to front Cranbrook Lane. There is vehicular and pedestrian access to the site from Cranbrook Road. 3. There is an existing dwelling at 15 Cranbrook Lane on the southern side of the site. There is an approved but not yet constructed dwelling proposed at 25 Cranbrook Road adjoining the site on the southern side and to the east of 15 Cranbrook Lane. There is an existing dwelling at 19 Cranbrook Road on the northern side of the site. Background and the proposal 1. The proposal is to replace the existing tennis court positioned in an approximate north-south orientation parallel to the Cranbrook Road frontage with a new tennis court at a higher level with a landscaped setback between the proposed tennis court and the Cranbrook Road boundary, below the level of the proposed tennis court. 2. The existing tennis court surface is at RL20.02 in the north-eastern corner as shown on the site survey. 3. The proposed tennis court is parallel to the Cranbrook Road boundary and setback 2.5m. The proposed tennis court surface is at RL23.92. The proposed tennis court is to be supported by structural columns and beams and the area beneath the tennis court is to be occupied by rainwater storage tanks. 4. The experts agreed that the existing ground level below the north-eastern corner of the proposed tennis court is RL16.4. The site survey shows a spot level of RL16.36 taken on the footpath of Cranbrook Road close to the north-eastern corner of the existing tennis court. 5. The proposal includes a 1.5m high palisade fence at the exposed edge of the proposed tennis court and three posts along the eastern edge supporting a wire to accommodate a retractable net. The experts agreed that the top of the posts and wire is at RL26.92. 6. The proposal includes a small increase in the height of the sandstone wall along the Cranbrook Road boundary and the widening of the garage entry. Neither of these elements of the proposal were controversial. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to the Woollahra Local Environmental Plan 2014 and the proposal is permissible with consent. The relevant objectives of the R2 zone, to which regard must be had, are as follows: • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. 1. The height of buildings development standard for the site is 9.5m (Height of Buildings Map Sheet HOB _002 LEP 2014). The objectives for the height of buildings development standard in LEP 2014 are as follows: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas. 1. Clause 4.6 of LEP 2014 provides for flexibility in applying certain development standards, including the height of buildings development standard in LEP 2014, subject to the terms of the clause. 2. The provisions of the Woollahra Development Control Plan 2015 (DCP 2015) are a relevant consideration in this matter. The site is located with the area identified by DCP 2015 as the 'Bellevue Hill North Precinct'. The desired future character statement for the Bellevue Hill North Precinct includes the following: On sloping sites, development should step down the site to maintain views, protect the privacy and solar access of adjoining and adjacent properties, and minimise cut and fill. The design of roofs and fences should also facilitate view sharing opportunities, and carports and other parking structures must not to dominate the streetscape. Streetscape character and key elements of the precinct c) buildings set within highly visible gardens; d) the tree canopy formed by both street and private yard plantings; e) mature street trees, grassed verges and sandstone walls; Desired future character objectives O1 To respect and enhance the streetscape character and key elements of the precinct. O4 To reinforce a consistent building scale with streets. O5 To ensure that development responds in form and siting to the street and subdivision pattern. O6 To design and site buildings to respond to the topography and minimise cut and fill. O7 To reinforce the landscape setting and maintain the existing tree canopy which forms a green backdrop when viewed from the harbour and the surrounding districts. 1. The building envelope control in DCP 2015 at B3.2.1 is established by applying the front side and rear setbacks, the maximum wall height of 7.2m, an inclined plane of 45 degrees taken from the maximum wall height and the height of buildings development standard. 2. The objectives for the front setback at B3.2 are to reinforce the existing streetscape, to provide consistent front setbacks in each street and to provide for landscaping area and deep soil planting forward of the building. 3. The objectives of the wall height and inclined plane control in DCP 2015 at B3.2.5 include the objective of limiting the bulk, scale and visual impact of buildings as viewed from the street and from adjoining properties. 4. The objectives and controls for tennis courts, as ancillary development, in DCP 2015 at B3.7 include a control requiring the tennis court to be a maximum of 1.2m above or below existing ground level. Public submissions 1. The owners of the adjoining properties on either side of the site objected to the proposal. The Court, in the company of the parties and their experts viewed the site from both adjoining properties. The owner to the south of the site fronting Cranbrook Lane is concerned that the fencing around the proposed tennis court will interrupt their harbour views to the north-east. The owner to the north of the site is concerned that the occupants of the proposal will overlook their private outdoor area from the tennis court and from the stair access on the northern side of the proposal. 2. The concerns of the objectors were not pressed as issues by the Council following the viewing of the site from the adjoining properties. Expert evidence 1. The applicant relied on the expert evidence of Mr James Lidis (planning) and Mr Rohan Dickson (urban design and landscaping). The Council relied on the expert evidence of Mr Philip North (planning). 2. The experts agreed that the maximum height of the proposal above existing ground level is 10.52m at the north-eastern corner of the tennis court to the top of the posts and wire that support the retractable net. The top of the palisade fence in the north-eastern corner of the tennis court is 9.02m above existing ground level. 3. The experts disagreed on the acceptability of the proposal. According to Mr North, the proposed tennis court is positioned too high above the site within the front setback and while the changes made to the proposal in exhibit E are an improvement on the original scheme, any benefits of those changes are outweighed by the significant increase in height of the proposed tennis court when compared to the existing tennis court, particularly when viewed from the public domain to the north-east of the site. In Mr North's opinion, whether or not Cranbrook Road is considered as the frontage of the site, the proposal has an unacceptable impact on the Cranbrook Road streetscape. It is Mr North's view that the proposal is unresponsive to the topography of the site. 4. According to Mr Lidis and Mr Dickson, the proposed tennis court is an appropriate response to the architectural brief to have a level entertaining area leading from the children's bedrooms and swimming pool. The proposal does not have an unacceptable impact on the streetscape of Cranbrook Road and the additional landscaping is designed to complement the proposal. Submissions 1. Ms Duggan SC submits that the proposal "lifts up and slides back" the existing tennis court to improve the front setback with the introduction of a 2.5m wide landscaped area and by removing the detracting existing elements of the tennis court, while retaining the sandstone boundary wall. The retention of the sandstone wall and the introduction of the landscaping are consistent with the desired future character objectives for the Bellevue Hill North Precinct in DCP 2015, as opposed to the existing arrangement where there is no opportunity for landscaping between the sandstone boundary wall and the tennis court structure. In this way, the proposal takes an inconsistent and incompatible existing feature and renders it compatible with the desired future character for the precinct. 2. Ms Duggan SC submits that the proposal is consistent with the inconsistent character, height and scale of development along the high side of Cranbrook Road, including the approved development on the adjoining property to the south which has a retaining wall on the boundary and a dwelling close to the front boundary due to the unusual configuration of the site. In addition, the contravention of the height of buildings development standard is by an element of the proposal that is not visually intrusive and the netting will only be in place while the tennis court is in use. 3. Ms Duggan SC further submits that the proposal does not compromise the privacy or harbour views of adjoining properties and this has been agreed by the Council's expert as the contention was not pressed. 4. Ms Puckeridge submits that the proposal exceeds the floorplate numerical control in DCP 2015 of 1998.88m2 for this site area by a considerable magnitude. The proposed floorplate area, including the approved development floorplate area of 3,390.09m2, is 3,763.1m2 (exhibit A, sheet 003). Consideration Contravention of the height of buildings development standard 1. The experts agreed that the maximum contravention of the 9.5m height of buildings development standard in LEP 2014 is a height of 10.52m above existing ground level at the north-eastern corner of the tennis court to the top of the post and wire accommodating the retractable net. 2. In order for development consent to be granted for a development that contravenes a development standard in LEP 2014, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2014) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2014) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2014). 3. The applicant's written requests for the contravention of the development standard in LEP 2014 justifies the numerical non-compliance with the 9.5m height of buildings development standard as follows: * The breach of the height control by the approved development is a result of past excavation on the site which modified the landform so as to lower the existing ground level when compared to the natural topography. The existing breach of the height of buildings development standard arises from the previous development on the site which has resulted in generally significantly lower existing ground levels compared to the natural ground levels that would have pre-existed on the site. * The proposed height is compatible and consistent with the existing and approved development on the site and in the immediate streetscape context. Despite the breach of the height development standard, the height of the proposal relates appropriately to the height of approved neighbouring development and the existing pattern of development on the site. * The tennis court structure is well below the height of buildings development standard. The tennis court fence is visually recessive. The tennis court net will be used intermittently, minimising its visual impact from the street. * The tennis court structure is screened from the street by the proposed layered landscaping which would reach the top of the lower fixed part of the vertical retractable tennis court fence. * The proposal results in a better planning outcome because it increases the setback from the Cranbrook Road boundary and permits landscaping within this setback when compared to the existing configuration. * The works to the parapet wall at the outer edge of the lawn are works to the approved development and therefore this aspect of the proposal that breaches the development standard is considered to be merely a technical breach. * The objectives for the height of buildings development standard are met by the proposal. 1. I have considered the applicant's written request under cl 4.6 of LEP 2014 and I am not satisfied that the written request justifies that compliance with the height of buildings development standard is unnecessary or unreasonable in the circumstances of the appeal. 2. The proposed tennis court surface is suspended 7.5m above the existing ground level at the north-eastern corner of the site and setback from the Cranbrook boundary by 2.5m. The posts and wire supporting the retractable net extend to 3m above the tennis court surface. The location of the exceedance of the height of buildings development standard on the site, close to the Cranbrook Road boundary, makes its extremely conspicuous and intrusive to the established character of Cranbrook Road when viewed from the public domain in Cranbrook Road. 3. I do not accept that the retractable netting necessarily ameliorates the impact of the overall height of the proposal because the opening and closing of the netting is at the discretion of the occupant of the dwelling. 4. The exceedance of the height of buildings development standard is not merely a function of prior excavation of the site. The site levels near the Cranbrook Road boundary correspond to the fall of the footpath and the road at the north-eastern corner and while there has certainly been excavation on the site and within the locality, the level of the proposed tennis court does not respond to the natural topography of the site or the locality. 5. The proposal is not consistent with either the existing or the desired future character of the Bellevue Hill North Precinct. The proposal does not respect and enhance the streetscape character of Cranbrook Road nor does it reinforce a consistent building scale within Cranbrook Road. The significantly raised platform of the proposed tennis court ignores the constraint imposed by its proximity to Cranbrook Road and the natural topography of the locality. The properties on the high side of Cranbrook Road generally create a layered effect of terracing, gardens and built form stepping up the steep hill above Cranbrook Road. The proposal presents as a high wall to Cranbrook Road and the height of the structure prevents views of the terraced garden and dwelling beyond and above the tennis court when viewed from Cranbrook Road. This feature of the proposal is contrary to the established character of the high side of Cranbrook Road. 6. I do not accept that the narrow margin of landscaping to be introduced between the Cranbrook Road boundary and the raised platform will ameliorate the detrimental impact of the height of the structure above existing ground level, when viewed from Cranbrook Road, particularly at the north-eastern corner. The proposal does not reinforce the landscape setting of the Bellevue Hill North Precinct. Conclusion 1. I am not satisfied that compliance with the height of buildings development standard in LEP 2014 is unreasonable or unnecessary in the circumstances of this case. The proposal is contrary to the height of buildings development standard objective to establish building heights consistent with the desired future character of the neighbourhood. The height of the proposed tennis court, including the posts and wire supporting the retractable net, combined with its close proximity to the Cranbrook Road boundary, would have a detrimental and unacceptable impact on the Cranbrook Road streetscape and its established character. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 226/2017/1 for alterations and additions to a dwelling house currently under construction at 21-23 Cranbrook Road (also known as 11 Cranbrook Lane) Bellevue Hill, including a new tennis court, widening of the vehicular entry, site works and landscaping, is refused. 3. The exhibits, other than exhibit 1, are returned. ____________ Susan O'Neill 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: 01 August 2018