Land and Environment Court New South Wales

• Medium Neutral Citation: Donohoe v Manly Council [2014] NSWLEC 1214
• Hearing dates: 18-19 September 2014
• Decision date: 20 October 2014
• Jurisdiction: Class 1
• Before: O'Neill C

Decision

1. The appeal is upheld.

2. Development Consent No. 21/2012, for 46 White Street, Balgowlah, is modified by enlarging the basement, adding a study to each townhouse, modifying the form of the roofs and making minor changes to the internal layout of each townhouse, in accordance with the consolidated conditions of consent at Annexure 'A'.

3. The exhibits, other than exhibits 2, 7 and A, are returned.

• Catchwords: MODIFICATION APPLICATION: impact on views, extent of excavation, building bulk and landscaped area
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
• Cases Cited: Donohoe v Manly [2013] NSWLEC 1113; Evans v Balog [1976] 1 NSWLR 36
• Category: Principal judgment
• Parties: Shane Donohoe (Applicant); Manly Council (Respondent)
• Representation: Mr M Staunton Barrister (Applicant); Ms C Schofield Solicitor (Respondent); Sattler & Associates (Applicant); Pikes & Verekers Lawyers (Respondent)
• File Number(s): 10289 of 2014

Judgment

1 COMMISSIONER: On 9 August 2013, the Court granted consent to Development Application No. 21/2012 (the consent) for the demolition of a dwelling house and swimming pool and construction of 3 x 2 storey dwellings over a part basement garage, including courtyards, balconies and landscaping works, at 46 White Street, Balgowlah (the site) (Donohoe v Manly [2013] NSWLEC 1113 [Donohoe]). This is an application made to the Court, pursuant to the provisions of s 96(8) of the Environmental Planning and Assessment Act 1979, to modify that consent, by enlarging the basement, adding a study to each townhouse, modifying the form of the roofs and making minor changes to the internal layout of each townhouse (the proposal).

Issues

2 The Council's contentions in the matter can be summarised as:

• The proposal would cause an unreasonable adverse impact on the views enjoyed from the adjoining property to the west, 48 White Street and this loss is caused by the addition of pergolas to the terrace areas on level 3 of Townhouses 1, 2 and 3.
• The extent of the proposed excavation is excessive, fails to comply with the relevant objectives and controls of Manly Development Control Plan 2013 (DCP 2013) and is contrary to the Commissioner's judgment in Donohoe.
• The enclosure of the additional study rooms increases and bulk and gross floor area of the proposal and the floor space ratio (FSR) exceeds the maximum FSR permitted by the Manly Local Environment Plan 2013 (LEP 2013) and is contrary to the Commissioner's judgment in Donohoe.
• The proposed area of open space is less than the minimum required by DCP 2013 and this results in excessive site coverage and building bulk which is inconsistent with the Commissioner's judgment in Donohoe.

The site and its context

3 The site is on the northern side of White Street, on a hill falling to the east and south-east, with views to the south-east. The area of the site is 910.5sqm (exhibit G).

4 48 White Street and 58 West Street are both to the west of the site and higher up the hill; 58 West Street is to the north of 48 White Street.

5 The Court, in the company of the parties and their experts, viewed the site at the commencement of the hearing. The site is currently being excavated.

The proposal

6 The approved development and the proposal have been designed by Woodhouse & Danks Architects and the landscape by Selena Hannan Landscape Design.

7 The approved development is for basement parking for 5 cars and a visitor parking space, with three detached townhouses over, stepping up the site as it rises to the north. Each townhouse is two storeys high.

8 The proposal includes widening the basement 1m to the west and to the north to provide additional vehicle manoeuvring area, adding a car parking space, adding a study to Level 2 of each townhouse, modifying the roofs of each townhouse and adding a pergola over the north-eastern terrace of each townhouse.

Planning Framework

9 Development Application No. 21/2012 was assessed under Manly Local Environment Plan 1988 (LEP 1988) and Manly Development Control Plan for the Residential Zone 2007 (DCP 2007) (exhibit 2, p 1).

10 The proposal is zoned R1 General Residential pursuant to LEP 2013. The maximum FSR for the site is 0.5:1 (LEP 2013 FSR Map Sheet FSR_003, exhibit 1) and the objectives of the FSR development standard, at cl 4.3(1) of LEP 2013 are as follows:

(a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,

(b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,

(c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,

(d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,

(e) to provide for the viability of business zones and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres.

11 Clause 6.2 of LEP 2013, 'Earthworks', includes the following:

(1) The objectives of this clause are as follows:

(a) to ensure that earthworks and associated groundwater dewatering for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b) to allow earthworks of a minor nature without requiring a separate development consent.

(2) Development consent is required for earthworks unless:

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

12 'Earthworks' is defined in the dictionary of DCP 2013 as excavation or filling. Excavation is defined as the removal of soil or rock, whether moved to another part of the same site or to another site, but does not include garden landscaping that does not significantly alter the shape, natural form or drainage of the land.

13 'Landscaped area' is defined in the dictionary of LEP 2013 as a part of a site used for growing plants, grasses or trees, but not include any building, structure or hard paved area.

14 The relevant objective for amenity at cl 3.4 of DCP 2013 is to protect the amenity of existing and future residents and minimise the impact of new development, including alterations, on privacy, views, solar access and general amenity of adjoining and nearby properties.

15 The relevant objectives for open space and landscaping, at cl 4.1.5 of DCP 2013 are to maximise soft landscaped areas, encourage appropriate tree planting and maintain existing vegetation and to enhance the amenity of the site, streetscape and surrounding area.

16 The minimum total open space requirement for the site is 55% of the site area, of which 35% is to be landscaped area, at cl 4.1.5.1 of DCP 2013.

17 Clause 4.1.5.1(b) of DCP 2013, 'Minimum dimensions and areas (for total open space; landscaped area and principal private open space) must have a minimum horizontal dimension of 3m and unbroken area of 12sqm.

18 Minimum dimensions and areas of landscaped area, at cl 4.1.5.2 of DCP 2013, is a soil depth of 1m for all landscaped areas either in ground or above ground in raised planter beds and a minimum horizontal dimension of 0.5m measured from the inner side of the planter bed/box, wall or any other structure which defines the landscaped area.

19 DCP 2013 includes, at cl 4.1.6.5(b), that particular attention should be given to separating pedestrian entries and vehicular crossings.

20 Clause 4.4.5 of DCP 2013, 'Earthworks (Excavation and Filling)', has as its objective to retain the existing landscape character and limit change to the topography and vegetation of the Manly Local Government Area by limiting excavation, discouraging alteration of natural flow of ground and surface water, ensuring sediment does not enter drainage lines and limiting the height of retaining walls and encouraging native plant species. Earthworks are to be limited to that part of the site required to accommodate the building and its immediate surrounds to protect significant natural features of the site including vegetation and prominent rock outcrops, at cl 4.4.5.1(a). Natural and undisturbed ground level must be maintained with 0.9m of side and rear boundaries, at cl 4.4.5.1(b). Excavation is generally limited to 1m below natural ground level with the exception of basement parking areas (which will be contained within the footprint of the building) and swimming pools, at cl 4.4.5.2(a).

Public submissions

21 Two written objections to the proposal are included in the Council's bundle of documents (exhibit 1, ff 18-20). The first is from the owner of 58 West Street, who objects to the extent of excavation required by the proposal at the foot of the rocky cliff which supports their house (referred to in this judgment as the rock formation) and the second, is from the owner of 48 White Street, who has moved out of his house for the duration of the construction and objects generally to the loss of views from their house as a result of the approved development and presumably, would be concerned if the proposal further exacerbates their view loss.

Expert evidence

22 Dr Ritu Shankar (planning) and Mr Ben Hubbard (traffic) provided expert evidence on behalf of the Council and Mr Greg Boston (planning) and Mr Ray Dowsett (traffic) provided expert evidence on behalf of the applicant.

Vehicle manoeuvrability in the basement

23 Conditions 19-22 of the consent (exhibit E) require the development to comply with AS/NZS 2890.1:2004 - Parking Facilities - Off-street car parking (the standard). The traffic experts agreed that the approved development, as shown on the plans, does not comply with the standard, as the driveway (apron) width of 4.39m is insufficient. They originally agreed, at the time of the first appeal, upon a driveway width of 4.39m as a minimum workable apron width, on the assumption that vehicles would be able to overhang the adjacent pathway to assist in manoeuvring, on the basis the planter between the footpath and driveway would be a maximum of 150mm high (exhibit 4, pp 3-4). Notwithstanding their agreement, the landscape plan that forms part of the consent (exhibit 5), specifies a '600[mm] high masonry planter box' between the driveway and the pedestrian pathway.

24 The pedestrian pathway is positioned along the eastern side of the basement and provides pedestrian access to the development. The driveway is adjacent to the pathway and provides vehicular access to the garages on the western side of the driveway. The pedestrian pathway starts at the approximate level of the existing footpath in White Street (RL44.99) and gradually rises, as does the driveway, towards the rear, northern end of the basement (RL46.05), where it joins a stair accessing the rear, landscaped area of the site. The entry lobby of each townhouse is accessed by crossing the driveway. There is a retaining wall on the eastern side of the pedestrian pathway, which increases in height towards the rear of the site, as the site rises more steeply to the north than the level of the basement. There is a planter and landscaping on either side of the pedestrian path. The basement is open to the sky above the pathway.

25 The traffic experts agreed that the development would need to be amended in some form to widen the width of the driveway to 5.6m, in order to comply with the relevant conditions of consent, either by lowering the planter and including the pedestrian pathway in the apron width calculation, or by widening the basement in order to accommodate a wider driveway.

26 Council submits that their preferred option is either one or a combination of the following (illustrated in section, exhibit 6):

• lowering the 500mm wide and 600mm high planter to 150mm high and including the pedestrian pathway in the apron width calculation;
• deleting the 300mm wide and 300mm high planter between the pedestrian pathway and the eastern retaining wall of the basement, and the 180mm wide strip of vegetation on either side of the pathway.

27 The proposal is to maintain the entry pathway and planters and widen the driveway to 5.6m by extending the basement 1m to the west, for the full length of the basement, approximately 35.5m.

28 The traffic experts agreed that the garage widths and lengths of the proposal comply with the minimum garage dimensions required by the standard and that their ideal and preferred position is to have an apron width compliant with the standard, while maintaining a separate pedestrian access (exhibit 4, p 2).

29 Relevantly, Council's traffic engineer, Anneli Karlsson, provided the following comments in an internal Council referral in relation to the proposal (exhibit 1, f 14):

The proposed amendments will result in an improvement in terms of traffic. The number of off street parking spaces will increase and the realignment of the northern wall will provide extra space for manoeuvrability compared to previous proposal [sic].

30 I accept the agreement of the traffic experts that their ideal and preferred position is to widen the basement in order to achieve the standard apron width of 5.6m and maintain a separate pedestrian access. The widening of the basement to achieve compliance with the standard is preferable, in my view, to vehicles overhanging an adjacent low planter and footpath to assist in manoeuvring, in the interest of pedestrian safety. The 600mm high planter will provide a sense of security to pedestrians, separating them from the vehicles on the driveway and complies with cl 4.1.6.5(b) of DCP 2013. Retaining the planters and landscaping on either side of the pathway is desirable, as the landscaping will soften the pedestrian entry and provide amenity.

Extent of excavation

31 The proposal is to enlarge the basement as follows:

• by extending the basement 1m to the west, over a distance of approximately 35.5m, so that the outer face of the retaining wall on the western side of the basement will be setback 1.1m from the western boundary;
• by enlarging the basement on the southern side of the lift to Townhouse 3 to provide an additional car space; and
• by extending the basement at the northern end to provide additional vehicle manoeuvring area.

32 The planning experts agreed that the proposal does not alter the natural flow of ground and surface water on the basis of the geotechnical report (exhibit F).

33 In Dr Shankar's view, the northern extension of the basement is acceptable as it is under Townhouse 3 and provides additional vehicle manoeuvring area, however the extension of the basement to the west, beyond the footprint of the building over, and the addition of a car space, are not acceptable. According to Dr Shankar, the amount of excavation is excessive and is contrary to both the controls relating to excavation and the judgment of the Commissioner in Donohoe, as the proposal fails to protect the natural features of the site.

34 There are two areas of rock noted on the site survey (exhibit G). One is a significantly large area of rock, noted as "rock outcrop" occupying the north-western corner of the site and the other is adjacent to the western boundary, near the dwelling at 58 West Street, noted as "rock formation".

35 The Commissioner, in her judgment in Donohoe, stated the following at par 27 in relation to the rock outcrop:

Similarly, the redesign of the first and second floor of Townhouse 3 to remove the stair void and redesign/relocate the kitchen/pantry and, if necessary, the study could easily remove the requirement to excavate the rock feature. While I accept that technically there is likely to be no constraint to this excavation, I do not accept that it meets the objectives in cll 2.5.1, 3.4.1 and 3.7.1 of the DCP. The rock outcrop is a significant feature of the site, it is not necessary for it to be formally identified as such or for it to be visible from the public domain for it to be a natural feature, which if reasonably possible, should be maintained. Given that the proposal exceeds the FSR control in the DCP, there is no reason why the development cannot be amended to retain this feature.

36 The applicant submits that the amendments made to the development by the Commissioner in relation to Townhouse 3, 'to redesign Levels 2 and 3 of to remove the stair void and relocate the kitchen/pantry and, if necessary, the study to limit removal of the rock outcrop and minimise excavation' (par 34) were intended to preserve the rock outcrop at the north-western corner of the site and did not relate to the rock formation near the western boundary. I accept this submission by the applicant, because the Commissioner, who had the site survey before her which differentiates the rock outcrop (north-western corner) and the rock formation (western boundary), refers to the rock outcrop in her judgment and she required the applicant to modify the layout of the kitchen/pantry and study (on the north-western corner of Levels 2 and 3 of Townhouse 3) in order to preserve the rock outcrop. The changes made to the original proposal before the Commissioner (exhibit H), when compared to the proposal she granted consent to (exhibit E), significantly chamfered the north-eastern corner of Townhouse 3, so that the building abuts and retains most of the rock outcrop shown on the site survey in the north-western corner of the site (exhibit G).

37 The approved development requires part of the rock formation on the western boundary to be removed, or excavated, which is clearly evident when I overlay the survey (exhibit G) and the approved Level 2 of Townhouse 3 plan (DA02 Rev E, exhibit E). Despite the position of the rock outcrop dotted on DA02 E, which indicates a comfortable margin ranging between 1.5m and 0.6m between the western side of Townhouse 3 and the rock formation and rock outcrop, the reality is not quite so comfortable when the footprint of Townhouse 3 is overlaid on the site survey. The top of the rock formation is shown at RL51.57 at its eastern extent and the FFL of Level 2 of Townhouse 3 is RL50.14, which will require the rock formation to be removed to the extent required not just for the footprint of Townhouse 3, but also to construct and access footings and the external western wall of Townhouse 3. Consequently, I am of the view that consent has already been granted to the removal of a significant proportion of the rock formation.

38 The proposal has no additional impact on the rock outcrop when compared to the approved development because the proposal is confined to the area to the south of the lift of Townhouse 3, well away from the rock outcrop. The proposal will have a negligible additional impact on the rock formation, when compared to the approved development, because the additional excavation affects the southern end of the rock formation as it tapers towards the western boundary (as shown on the site survey, exhibit G), however, the major impact on the rock formation is caused by the approved development, over and to the north of the proposal. In coming to this conclusion, I have had no regard to the excavation that has actually taken place on the site, which has in fact removed a large part of the rock formation and inserted rock anchors running back towards the western boundary.

39 Dr Shankar agreed under cross-examination that the only non-compliance of the proposal with the objectives and controls for excavation in DCP 2013 is that the basement is not contained within the footprint of the building (cl 4.4.5.2(a)). In her view, the landscaping along the western boundary may potentially be compromised by the extension of the basement beyond the building footprint over.

40 Firstly, I accept Dr Shankar's evidence that the northern extension of the basement is acceptable.

41 Secondly, while I understand and appreciate Dr Shankar's concerns in regard to the extent of excavation (the western 1m extension and the additional car space), I am satisfied that the proposal for the enlargement of the basement, is acceptable for the following reasons:

• the proposed landscaping in the western setback, as designed and specified by the landscape designer, will form part of the consent for the modification application;
• The landscaping within the western side setback, while providing an important landscaped buffer between the development and the adjoining neighbours, does not form part of the total open space area calculation or the landscaped area calculation;
• I am persuaded that the layout of the basement in terms of manoeuvrability is improved and now complies with the standard, as required by the consent and provides for pedestrian safety, based on the agreed evidence of the traffic experts and the comments of Council's traffic engineer (refer to pars 29-30);
• the area to the south of the lift to Townhouse 3, the additional parking space, would need to be excavated to construct the approved development and backfilling this area, beneath Townhouse 3, does not provide any particular benefit, in my view, as it has basement on three sides and building over (other than the small portion of the car space that forms part of the 1m western extension of the basement);
• the 1.1m setback of the basement from the western boundary complies with cl 4.4.5.1(b) of DCP 2013; and
• the additional vehicle parking space is justified on the basis that there is no parking on the northern side White Street in the vicinity of the site.

42 Finally, in relation to the objection by the owner of 58 West Street; based on the evidence before me, which includes the report by Mr Don Katauskas, Consulting Geotechnical Engineer as an attachment to the Construction Certificate issued for the bulk excavation of the approved development (exhibit F) and condition 4 in the consent (exhibit 8) requiring the preparation of a dilapidation report for 58 West Street, I am satisfied that the objection raised, regarding the potential risk to 58 West Street associated with the excavation of the site, has been adequately addressed, to the extent that it can be, by a development consent. In the event of tortious damage to an adjoining building caused by the excavation or construction of the development, it would presumably result in an action for damages for nuisance or negligence for the harm to the property itself (for example, Evans v Balog [1976] 1 NSWLR 36). Ultimately, it is a risk that cannot be eliminated by the imposition of conditions of consent and conversely, it is unreasonable to constrain the development potential of the site solely on the basis of any potential risk associated with the construction of the development and without compelling evidence of an unacceptable magnitude of risk.

Open space and landscaped area

43 The Council contends that the proposal does not achieve the minimum open space required by the DCP 2013 and fails to achieve the objectives for open space and landscaping in DCP 2013. Furthermore, Dr Shankar is of the view that the changes made to the northern courtyards of Townhouses 1 and 2 result in poor amenity for those townhouses.

44 Firstly, in order to properly understand this contention and its evolution during the hearing, it is necessary to explain the many iterations of the landscape plan. There are three versions of the landscape plan in evidence. Exhibit 5 is the landscape plan that was granted consent, with a LEC date stamp of 8.8.13 (LS01 Rev C dated 31.7.2013). At the commencement of the proceedings, the applicant, but not the Council, had understood that a different version of the landscape plan had been granted consent (LS01 Rev C dated 31.7.2013, exhibit E). It is my understanding that neither party realised, at the commencement of the hearing, that there were two versions of LS01 Rev C dated 31.7.2013. Despite the identical revision letter and date on both plans, exhibit 5 shows both courtyards as roughly 2/3 grass and 1/3 paving with a planter on the northern and western sides and exhibit E shows the courtyards as completely paved with the same planter on the northern and western sides. The landscape plan on the file from the original proceedings (11223 of 2012) is the same as exhibit 5 and the applicant conceded during the hearing, when this plan was produced by the Court, that the exhibit 5 version of the landscape plan, although an error, is the plan that forms part of the consent.

45 The proposed landscape plan is LS01 Rev E dated 12.9.14 (exhibit B) and shows the courtyards as completely paved with a planter on the northern and western sides.

46 In the original proceedings, the Commissioner handed down directions for the basement plan to be amended, by removing some of the areas of basement beneath Townhouse 3 and redistributing the basement area along the western side of the site, beneath the courtyards of Townhouses 1 and 2. In the original plans (exhibit H), the areas under the courtyards were proposed as backfill, to create an area of deep soil beneath the courtyards to support soft landscaping. When the basement plan was amended, logically the landscape plan should have also been amended and exhibit E should have formed part of the drawing set filed with the Court. The grassed areas of the courtyards, shown on exhibit 5 as RL47.65, became, in the amended plans that were granted consent (exhibit E), the level of the top of the slab of the basement that forms the floor level of the courtyards. On the basis of the two iterations of the landscape plan in evidence, exhibits 5 and E, it appears that the applicant filed the wrong version of the landscape plan with the Court, which was not helped by the fact that the revision letter and date were not changed when the landscape plan was amended from exhibit 5 to exhibit E, to show the courtyards as paved.

47 In oral evidence, Dr Shankar acknowledged that the grass was probably not a viable option as no allowance has been made for the depth of soil required to support a grassed courtyard. She agreed that the planters on the northern and western sides of the courtyards, which are more than 1m higher than the courtyard level, could be increased in area to augment the amount of soft landscaping in the courtyards. In her view, this would provide an increased level of amenity for Townhouses 1 and 2.

48 Notwithstanding the initial confusion over the extent of modifications proposed by the landscape plan (that is whether the paving of the courtyards in their entirety is a modification between the proposal and the consent, or not); the planning experts disagreed on the correct interpretation of the controls for minimum landscape area in DCP 2013. On Mr Boston's interpretation, the proposal complies with the landscaped area requirement and on Dr Shankar's interpretation, it does not.

49 The Council submits that the correct interpretation of the provisions of 4.1.5.1(b) and 4.1.5.2 of DCP 2013, which is the one that Council staff have adopted, is to apply the minimum 3m in any direction and unbroken area of 12sqm in calculating both the minimum total open space (55% of the site area) and the landscaped area (35% of total open space).

50 The applicant submits that the correct interpretation is to apply the minimum 3m in any direction and unbroken area of 12sqm in calculating the minimum total open space (55% of the site area), however once the minimum total open space requirement is determined, this total open space area may comprise of a combination of landscaped area, paved areas, retaining walls and so on, and so the landscaped area cannot also be subjected to the minimum dimensions required for total open space, as it makes up only a portion of this area. The applicant submits that this interpretation is supported by the heading at cl 4.1.5.1(b) "Minimum dimensions and areas (for total open space; landscape area and principal private open space)", because the brackets denote that the minimum dimensions and areas are applied to the total area referred to within the brackets. In addition and importantly, cl 4.1.5.2(b) provides different minimum dimensions for landscaped area, when compared to the minimum dimensions for total open space.

51 I prefer and adopt the applicant's submission regarding the interpretation of cll 4.1.5.1(b) and 4.1.5.2(b). The definition of total open space in the dictionary of DCP 2013 is that part of a site which is designed or designated to be used for active or passive recreation, and includes landscaped area, hard paved areas (un-enclosed pedestrian walkways and access paths...), swimming pools occupying less than 30% of total open space and private open space; but excludes any area for parking, outbuildings and roof top decks on dwelling houses [italics added]. The minimum horizontal dimension for landscaped area of 0.5m, at cl 4.1.5.2(b) is incompatible with requiring a minimum horizontal dimension (for landscaped area) of at least 3m in any direction, at cl 4.1.5.1(b). Logically interpreted, DCP 2013 requires firstly a calculation of total open space on the site, according to the definition and coupled with the minimum dimensions of 3m in any direction and unbroken area of 12sqm, and then, as a subset of total open space, a calculation of landscaped area, which, according to the definition in LEP 2013, is the part of the site for growing plants, grasses and trees, but does not include any building, structure or hard paved area.

52 Total open space in the proposal therefore includes:

• the front setback west of the bin store;
• the 3m eastern side setback (because the pathway is 'un-enclosed');
• the paved courtyards and planter boxes to Townhouses 1 and 2 extending to the western boundary; and
• the rear setback.

53 Of that total open space area, landscaped area will include any soft landscaping with a minimum horizontal dimension of 0.5m and soil depth of 1m, excluding paved areas, retaining walls and the walls of the planter boxes.

54 To comply with DCP 2013, as the site area is 910.5sqm, the total open space should be 500.78sqm, of which 175.27sqm should be landscaped area and strictly in accordance with the definition in LEP 2013 and the minimum dimensions in DCP 2013 for landscaped area.

55 The applicant has calculated the total open space of the proposal to be 427.9sqm (DA02Ja exhibit A) which represents 47% of the site and the soft landscaped area to be 262.8sqm.

56 The proposal does not meet the minimum total open space area required by DCP 2013 and in regard to total open space, I am willing to exercise the flexibility afforded by s79C(3A)(b) of the Environmental Planning and Assessment Act 1979, because the footprint of the development has already been determined and has not significantly changed.

57 I am not convinced that the applicant's calculation of landscaped area has complied with the definition in LEP 2013 for landscaped area, by excluding 'any building, structure or hard paved area'. For example, the calculation for the rear setback is 133.5sqm for total open space, of which 112.4sqm is landscaped area, leaving only 21.1sqm attributed to paving, retaining walls, stairs or any landscaped area that is not a minimum horizontal dimension of 0.5m and depth of 1m. The drying court (hard paved, according to the legend, exhibit B) is 8sqm, the paving to Townhouse 3 is approximately 15sqm, the stone block steps are roughly 4sqm and there are retaining walls, which adds up to more than 21.1sqm, suggesting that the landscaped area calculation has not complied with the definition in LEP 2013 and the minimum dimensions in cl 4.1.5.2(b) of DCP 2013.

58 However, the applicant's landscaped area calculation of 262.8sqm significantly exceeds the 175sqm required by DCP 2013 (as a proportion of the minimum total open space area) and therefore, even when measured strictly in accordance with the definition in LEP 2013, the landscaped area is still very likely to achieve the minimum 175sqm. As the proposal complies with the landscape area controls in DCP 2013, I cannot impose a more onerous standard with respect to the landscaped area, pursuant to s79C(3A)(a) of the Environmental Planning and Assessment Act 1979.

59 In addition, the approved landscape plan (exhibit 5) shows the grassed courtyards at the same level of the top of the basement slab and as a consequence, the grassed courtyards in the consent would not have complied with the minimum soil depth of 1m (cl 4.1.5.2(b) of DCP 2013) and therefore, could not have contributed towards the landscaped area calculation, even if they had been retained in the proposal. For this reason, it is my view that the landscape plan (exhibit B) does not include any significant modifications when compared to the consent and nothing turns on the differences between exhibits 5 and E.

Addition of study to each townhouse

60 The proposal includes infilling a small courtyard on the northern elevation of each townhouse on Level 2, to provide a study.

61 According to Dr Shankar, the small courtyard articulates the facade of each townhouse and provides a private and sheltered seating area for each bedroom level of the development and should be retained.

62 The facade of the building around the courtyard does not correspond to a similar 'cut-out' on the level over, so it does not achieve any logical or discernable articulation of the form of the development and 'filling in' the area with a study does not alter the envelope, so while it may add minimally to the numerical FSR, it adds nothing to the bulk of the development. The northern facade of each townhouse on Level 2 is not visible from the public domain and probably not even visible from the neighbouring dwellings. In my view, the addition of the study to each townhouse makes very little, if any, impact on the overall form of the development.

Pergolas over approved terraces

63 The proposal includes the addition of pergolas over the terraces on the north-eastern corner of Townhouses 1 and 2 and a Vergola (operable louvre roof system manufactured by Vergola (NSW) Pty Ltd) over the balcony on the north-eastern corner of Townhouse 3.

64 The planning experts agreed that the proposed pergolas (and Vergola) will not give rise to unreasonable adverse impacts on any view corridors and agreed on a condition of consent to limit the height of the pergolas, to not exceed the eaves of each townhouse (exhibit 3, p 4). The condition of consent 2(vi) (exhibit 8) states the following:

The proposed pergolas located above balconies at Level 3 of Townhouse1, 2 and 3 are to be limited in height to no more than the eaves in that location.

65 I accept the agreement of the planners that the pergolas (and Vergola) will not further erode the view corridors across the site and the imposition of a condition of consent in regard to the maximum height of the structures is acceptable. I am satisfied that the position of the pergolas will not have any additional impact on the views to the south-east from 48 White Street, as the pergolas are on the north-eastern corner of each townhouse and are located within the building envelope, created by the northern and eastern facades of the approved townhouses and what remains of the view corridor from 48 White Street is across the front, southern balcony of Townhouse 1 (over the 1.6m screen on the western side of the Level 3 balcony) and the front setback.

66 However, I am not satisfied that the proposed condition is sufficiently specific, as I note that the roof, in the north-eastern corners over the balconies, is a 'cut-out' of the corner of the otherwise conventional hipped roof, so that the eaves around the terraces are not horizontal, but will rise at the same pitch as the roof. The pergolas are shown on the elevations as horizontal with the top of the pergola matching the height of the eaves of the principal elevations (Section D and Section F, DA13 Rev G, exhibit A). Notwithstanding what is depicted on the drawings, it could be inferred from the wording of the condition drafted by the planning experts, particularly the inclusion of the words, "in that location", that the maximum height of the entire area of the pergola structure can match the eave at the south-east corner of each terrace, which will be significantly higher than the eaves of the principal elevations (as shown in Section C, DA12 Rev H, exhibit A). In order to avoid any confusion, the following wording for condition 2(vi) in the conditions of consent is to be substituted for the agreed wording, as I am of the view this version better reflects the evidence of Dr Shankar. The maximum RL for the pergolas for townhouses 1 and 2 (which have a lower floor to ceiling height than townhouse 3) are 2.6m above the finished floor levels of Level 3 in order to ensure a comfortable floor to ceiling height under the pergola.

The proposed pergolas (or Vergola), above the balconies on Level 3 of each townhouse, are to be at a maximum height as follows:

Townhouse 1 RL53.05

Townhouse 2 RL54.35

Townhouse 3 RL55.84

Changes to the roof form

67 The proposal is to delete the section of roof over the stairs and extend the hipped roofs over the stair, so that the approved 'pop-up' skylights over the stairs are deleted. This will lower the overall height of the roofs of each townhouse.

68 The roof of Townhouse 3 impacts on the views from the dwelling at 58 West Street. The planning experts agreed that the RL of the topmost part of the approved roof of Townhouse 3 scales on the drawing at RL57.24. The proposal reduces the topmost height of the hipped roof at the ridge to RL56.94.

69 The planning experts scaled the RL of the proposal (as there is no RL for the roof ridge shown on the sections or roof plan) and agreed that using a scale ruler, the RL of the proposed roof of Townhouse 3 is shown at RL56.7. Dr Shankar is concerned that the plans may have been misleading for the adjoining neighbours when the plans were notified, because the RL sought by the applicant for the ridge of Townhouse 3 is now slightly higher than what was drawn on the plan.

70 While I understand and appreciate Dr Shankar's concern, I am satisfied that the RLs submitted by the applicant at the end of the hearing for the ridge of the roofs of the three townhouses are acceptable, because the proposal reduces the overall height of the approved each of the townhouse roofs when compared to what is approved and will result in a small improvement in the views to be retained from 58 West Street.

Conclusion

71 I am satisfied that the proposal can be granted consent, following amendments setout in the directions below, to the architectural and landscape plans and consolidated conditions of consent, for the following reasons:

• The widening of the basement 1m to the west, in order to achieve compliance with the standard, is preferable, in my view, to vehicles overhanging an adjacent low planter and footpath to assist in manoeuvring, in the interest of pedestrian safety and I accept the agreement of the traffic experts that this is their ideal and preferred position.
• The proposed enlargement of the basement is acceptable because the area to the south of the lift to Townhouse 3, the additional parking space, would need to be excavated to construct the approved development and backfilling this area, beneath Townhouse 3, does not provide any particular benefit in my view, as it has basement on three sides and building over; the 1.1m setback of the basement from the western boundary complies with cl 4.4.5.1(b) of DCP 2013; and the additional vehicle parking space is justified on the basis that there is no parking on the northern side White Street in the vicinity of the site.
• The proposal will have only a negligible additional impact on the rock formation adjacent to the western boundary, when compared to the approved development, because the additional excavation affects only the southern end of the rock formation as it tapers towards the western boundary and the major impact on the rock formation is caused by the approved development, over and to the north of the proposal. The proposal has no impact on the rock outcrop, because it is confined to the area to the south of the lift of Townhouse 3, well away from the rock outcrop.
• I am willing to exercise the flexibility afforded by s79C(3A)(b) of the Environmental Planning and Assessment Act 1979 in regard to the total open space calculation because the footprint of the development has already been determined and has not significantly changed; and I am satisfied that the proposal meets the landscaped area requirement of 175sqm.
• The addition of the study to each townhouse makes very little, if any, impact on the overall form of the development.
• I am satisfied that the position of the pergolas will not have any additional impact on the views to the south-east from 48 White Street, as the pergolas are on the north-eastern corner of each townhouse and are located within the building envelope and what remains of the view corridor from 48 White Street is across the front, southern balcony of Townhouse 1 and the front setback.

Directions

72 Directions were handed down on 24 September 2014, requiring the following:

The applicant is to amend the architectural and landscape plans as follows:

to be consistent;

maximum RLs are to be shown on the roof ridges on the architectural plans, Townhouse 1 RL54.1; Townhouse 2 RL55.35; Townhouse 3 RL56.94;

the landscape plan is to be amended to accurately show the extent of the rock formation on the western boundary adjacent to Townhouse 3 being excavated and any proposed plantings in that excavated area;

the landscape plan is to include a dimension of 500mm for the setback of the stairs in the north-eastern corner of the site from the eastern boundary; and

the architectural plans are to delete the additional paving shown at the rear of the site.

The respondent is to file amended conditions of consent as follows:

condition 2(i) is to be amended to delete "An additional" and replace with "A second" (for clarity, as two Melaleucas are shown on the landscape plan exhibit B);

condition 2(ii) is to be deleted;

condition 2(iv) is to be clarified by the Council's traffic expert, it should probably be "a minimum internal dimension of 5.4m" as the wording "a minimum length" lacks clarity;

condition 2(vi) is to be amended in accordance with paragraph 66 of this judgment;

the wording of condition 3B is to be changed to delete "until a new Construction Certificate is issued" and replaced with "prior to the issue of a Construction Certificate";

list the amended plans revision numbers and dates; and

the conditions are to be in accordance with this judgment.

The applicant is to file and serve the amended plans by Friday 10 October 2014 and the respondent is to file the amended consolidated conditions of consent no later than Friday 17 October 2014. Liberty to restore on 2 days notice. Orders will be made in chambers.

73 The amended plans and the amended, consolidated conditions of consent were filed in accordance with the directions.

Orders

74 The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent No. 21/2012, for 46 White Street, Balgowlah, is modified by enlarging the basement, adding a study to each townhouse, modifying the form of the roofs and making minor changes to the internal layout of each townhouse, in accordance with the consolidated conditions of consent at Annexure 'A'.

(3) The exhibits, other than exhibits 2, 7 and A, are returned.

Susan O'Neill

Commissioner of the Court

Annexure 'A'

Decision last updated: 20 October 2014