Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council

Land and Environment Court (NSW)|2006-02-17|Before: Mr P, Ms P

CITATION : Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2006] NSWLEC 55

APPLICANT: PARTIES : Allan Robert Cooley and Janet Louise Patterson RESPONDENT: City of Sydney Council

KEY ISSUES: Development Consent :- Whether or not the development consent should be modified.

CASES CITED: Windy Dropdown Pty Limited v Warringah Council [2000] NSWLEC 240

DATES OF HEARING: 12/01/2006 Section 34 Conference adjourned to allow the applicant to amend the plans. Mention 13/02/2006

APPLICANT: Mr P Tomasetti, barrister, instructed by Mr G L Pignone, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Kemp Strange RESPONDENT: Mr S Kondilios, solicitor, with Ms P Whitford, solicitor SOLICITORS: Maddocks

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11038 of 2005 - Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by the Council of the City of Sydney (the council) of a modification application to alter and add to the building as part of the change of use of an art gallery at Lot 1, DP 59925, being No 9 Darley Street, Darlinghurst. 2 I visited the land in company with the parties on the morning of the s 34-conference and I heard from local residents. 3 I have concluded that the development as shown in the further amended plans showing the proposed modifications of consent are satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979. The approval subject to conditions is appropriate under s 96 of the Act. The land 4 The land is situated on the western side of Darley Street, about 25m north of the intersection with Burton Street and to the north of the National Arts School, East Sydney campus. The land has an 11.175m frontage to Darley Street, and a depth of around 33.5m giving an area of some 374.3m2. Darley and Liverpool Streets intersect around 100m to the north of the land. There is no rear vehicular access to No 9 Darley Street and the premises presently is unoccupied. There are various cross easements for support of adjoining properties. 5 The subject premises is a single storey Victorian terrace with attic located within a predominately residential area. 6 The premises is listed as a heritage item under Schedule 2 of the South Sydney Local Environmental Plan 1998 (Item No 335), and is also within the East Sydney and Darlinghurst Conservation Area (Area No CA18) and is within the vicinity of other heritage items, being Nos 11-15 Darley Street, No 5 Darley Place and Nos 106-112 Burton Street. 7 Nearby in Burton Street are mixed uses such as cafes, retail shops and other commercial uses. 8 The western side of Darley Street is characterised by two, three and four-storey residential buildings. The eastern side of Darley Street is characterised by four and seven-storey residential buildings. 9 The rear of the subject premises abuts No 5 Darley Place, for which the council received another s 96(2) modification application on 13 May 2005. Relevant planning controls South Sydney Local Environmental Plan 1998, (SSLEP) 10 Under the provisions of the SSLEP the land is zoned 2(b) Residential (Medium Density) and the proposal is permissible with consent. Other planning controls · Draft South Sydney Local Environmental Plan 1998 - Amendment No 9, (SSLEP9); · South Sydney Development Control Plan 1997: Urban Design, (SDCPUD); · South Sydney (Heritage Conservation) Development Control Plan 1998, (SSDCPH); · The City of Sydney Access Policy, (Access Policy); · Guidelines for Alterations and Additions to Terraces, (Guidelines); and · City of Sydney Roof Extensions and Dormer Windows Policy 2005, (Dormer Policy). The proposal and its history 11 The first modification of development application No D/2004/81 was lodged under s 96 of the Environmental Planning and Assessment Act 1979, (the 'B" modification) with the respondent council on 20 September 2004, seeking a review of Condition 2 of the development consent (D/2004/81). 12 On 21 April 2004, the council had approved by grant of development consent a change of use to the ground floor of a dwelling to an art gallery by development consent No D/2004/81. 13 The 21 April 2004 approval (development consent No D/2004/81) for the change of use to an art gallery was limited to the following fit-out works:

painting of internal walls,
installation of lighting,
racking system for the storage of paintings, and
floor sanding. 14 Condition 2 of the development consent No D/2004/81, related to the fire rating of "…the ceiling separating the gallery from the residential use". Approval was granted for the s 96-modification application by amendment of development consent No D/2004/81 on 24 September 2004 (D/2004/81A). 15 The applicant lodged a second s 96(2) modification application on 13 May 2005 seeking a number of variations to that approved development consent No D/204/81A including:
to alter the roof pitch to the rear skillion addition,
to raise the wall height of the rear skillion addition by 1400mm,
to enclose rear verandah, and
internal works under the modification application No D/2004/81B, the present application. The application was lodged after the council advised the applicant that a s.96 application was required to facilitate notification of works and assessment of alleged unauthorised works. 16 The second modification application appeal under s 96(6) of the Act is de novo and the Court is required to consider the modification afresh. 17 The applicant submitted a set of amended plans on 19 May 2005, which formed part of the original notification documentation for this application. During the notification period, the applicant submitted on 31 May 2005, another set of amended plans. As a result, the 31 May 2005 modification application was renotified. 18 Emergency Orders were made under the Environmental Planning & Assessment Act 1979 in April 2005, after it was identified that works (including the demolition and rebuilding of the rear wings, the construction of a new stair and related roof-top structure) were being carried out without development consent. 19 The works the subject of the Emergency Orders were not approved under D/2004/81 or D/2004/81A, however they are included in the s 96(2) modification application D/2004/81B that is the subject of this appeal. 20 The terms of the Emergency Order are to the effect that the Notice of Determination for D/2004/81B did not approve the following works (Condition 1): The following works are not approved and shall be demolished and made good: a. The extension to the roof related to the new attic stair. A new attic stair may be constructed but shall be within the original building envelope. Applicant to submit amended drawings for approval by Council.

21 Further, Condition 1 of the notice of determination for D/2004/81B requested that the following works be amended and altered on site: The following works shall be amended and altered on site: a. The roof of the west wing along the southern boundary shall be lowered so as not to exceed the height of the structure it replaced; b. The external walls of the new extension constructed of studwork and 'blue board' shall to be clad in a material that acknowledges their light-weight nature; and c. The internal wall linings shall be altered in order to reveal the two front windows and the original chimneybreast in the north east room. 22 This work has not been carried out in accordance with the condition of consent and is thus the subject of this appeal. Notification 23 On 27 May 2005, the modification application No D/2004/81B was notified in accordance with the provisions of the City of Sydney Notification of Planning & Development Applications Development Control Plan 2005. 24 On 28 June 2005, the modification application was renotified to objectors, based on amended plans being submitted by the applicant. The council's decision 25 By notice dated 13 September 2005 the council under delegated authority conditionally approved the s 96(2) modification application No D/2004/81B the subject of this appeal. The applicant is now appealing specific conditions of that determination. The hearing 26 The appeal was filed on 8 September 2005 as a deemed refusal. 27 At the hearing the court heard evidence on behalf of the respondent council from: · Mr A Smith, heritage architect; · Ms A Leong, town planner of the City Council; · Mr S Atkins, resident of No 11 Darley Street, Darlinghurst; · Mr E Atkins, owner and resident of No 11 Darley Street, Darlinghurst, on 13 February 2006; and · Mr R Ekstrom, resident of No 7 Darley Street, Darlinghurst. 28 On behalf of the applicant evidence was given by: · Mr S Davies heritage planner; · Mr P Lonergan, architect; · Mr A Cooley, owner and applicant. The issues 29 The applicant in respect of the modification application No D/2004/81B takes issue with the 13 September 2005, consent conditions for the reasons given below. Condition 1(a)(i) It is unreasonable to require the demolition of the roof to the attic stair, as that roof has no discernible environmental impact of any objectionable kind. Condition 1(a)(ii)a There is no reason why the roof should be lowered. The present height does not adversely impact neighbours and otherwise cannot be seen from public places. Condition 1(a)(ii)c The adaptive reuse of the building is for an approved gallery. The wall linings are temporary and light in construction and provide hanging space for gallery purposes. The front elevation of the building is unaffected by the internal linings and the streetscape is therefore not affected. The linings can be removed when the use ceases to reveal the original fabric of the building including the chimneybreast. Condition 1(a)(iv) The condition lacks certainty. The applicant proposes to paint the building white. Condition 1(a)(v) The condition lacks certainty although the applicant does not intend to do any work other than that which is shown on the plans. Condition 1(a)(vi) The condition lacks certainty and is unreasonable. Some chasing may be appropriate and if done will be under instruction from the person identified in condition 1(a)(vii). Condition 1(a)(viii) The condition lacks certainty. Condition 1(a)(ix) The condition lacks certainty.

30 The principal contested issue is whether the consent may be modified by the deletion of conditions of consent imposed by the council, subsequent to the deemed refusal or by further modifications of the consent. There was no dispute that Windy Dropdown Pty Limited v Warringah Council [2000] NSWLEC 240, (17 November 2000), the decision of his Honour Talbot J, applies and development consent may be granted retrospectively and subject to conditions. The major unauthorised work is the attic stair roof. The evidence and findings Whether the consent should be modified 31 I have concluded that were the applicant to seek consent to the unauthorised works the subject of this appeal under s 97 of the Environmental Planning and Assessment Act 1979 I would grant consent. I consider that were approval sought for the new roof over the attic stair I consider it would be satisfactory when considered afresh. Rear skillion east/west extension 32 Mr S Atkins at the s 34 Conference, gave evidence on behalf of his father who was overseas at the time, that the twin skylights to the kitchen of No 11 Darley Street, nearest the party wall between Nos 9 and No 11 Darley Street, would be overshadowed by the increased height of the party wall especially around midday in midwinter. This is graphically depicted in Cross-section 3-3 on plan No S96B, dated 5 May 2005, attached to the Class 1 application, prepared by the architect. He was also concerned for the loss of daylight to these skylights. 33 These skylights were oriented with the long side north/south and the northern edge of the skylights was situated around 300mm to 400mm from the southern side of the modified party wall. Each skylight was around 1.2m in length and about 600mm wide. The twin skylights closest to the party wall were supplemented by another pair of skylights further to the south in the roof of the kitchen of No 11 Darley Street. 34 Despite it being difficult to estimate the extent of the unauthorised increase in height of the party wall, the consensus of those present on the s 34 Conference was that the height of the wall might have increased in part by around 770mm. In part, the wall was apparently erected within the easement for support, shown on the survey in Exhibit G. Judging by the view from within the kitchen of No 11 Darley Street and Cross-section 3-3, the angle from the northern edge of the skylights to the top of the new party wall would be around 45-degrees. Some overshadowing would likely occur over the northernmost pair of skylights in midwinter. This was shown by the sun angle at 12midday on the drawing. 35 I have concluded that the overshadowing of the kitchen skylights would not be so severe for most of the year as to warrant refusal of the application. Although there would be likely to be some shade on the northern part of the skylights in midwinter, during the summer months from the equinox there would be expected to be little overshadowing. Also sunlight to the southernmost skylights would be unaffected. 36 Also, even taking into account that the occupants of No 11 Darley Street have been enjoying the benefit of daylight in the kitchen afforded by the skylights for many years, possibly more than 20 years, the modified party wall would not be of such a height as to warrant refusal of the application. I have taken into account that the party wall would probably not penetrate a plane set at an angle of 45-degrees from the northern edge of the skylight nearest the party wall. Thus I am satisfied that the skylights would continue to provide adequate daylight at all times of the year and this would not be a reason to refuse the modification application. Planning principle - access to daylight 37 Where a person has been enjoying daylight (as distinct from sunlight) from a window or skylight of a dwelling for a considerable period of time, the preservation of this amenity should be given major weight. If a structure is to be erected near the window or skylight, it should not intrude in a significant way within a plane set at 45 degrees to the horizontal at the sill (or, in the case of a skylight, the edge of the skylight nearest the structure), and vertical planes at 45 degrees in plan fanning out from each side of the window. Attic stair roof 38 During an adjournment of the hearing, the applicant prepared amended drawings of the roof over the new unauthorised stair that links to the attic within the roof of No 9 Darley Street. The design of the roof over the attic stair incorporated a roof pitch to match the pitch of the existing rear section of the main part of the roof and a short lean-to roof also at the same pitch, against the side wall of No 11 Darley Street. 39 Mr E Atkins, the owner of No 11 Darley Street, gave evidence on 13 February 2006 and confirmed the concerns expressed by his son, Mr S Atkins at the s 34 Conference that such a roof would facilitate unauthorised access to the western stair window of No 11 Darley Street nearest the northern boundary of that property. 40 He stated that were the applicant to provide lockable louvred shutters to that window his objection to the proposal would be overcome. 41 I am satisfied that some form of security is required for the rear westward facing stairwell window of the dwelling at No 11 Darley Street, given that a person intent on entering that property would be given greater access by reason of the proximity of the new roof over the stair to the attic of No 9 Darley Street. This roof, as was pointed out by Mr Atkins, leads directly up to the window of concern. One possibility discussed with the parties was the dead bolting in an open position of the stairwell window, so that ventilation of the stair would still be provided but the gap left with the window locked open would not allow a person to enter. Other alternatives discussed were the provision of the shutters as was preferred by Mr Atkins, or a fan of spears on the top of the party wall between Nos 9 and 11 Darley Street near the window in question. Such a fan would afford the same level of security as existed prior to the works being undertaken in No 9 Darley Street. Mr Kondilios undertook to explore with Mr Atkins the possibility of a fan of spears together with dead locks on the window to the stair of No 11 Darley Street. 42 I am satisfied that were the window dead locked open, such that persons would be denied access to the interior of the dwelling at No 11 Darley Street without breaking and entering, security would be maintained and the increased access provided by the new roof over the stair would be addressed. For added security the applicant was agreeable to install the 1.5m fan of spears, if Mr Atkins gave his consent to this. 43 Mr Smith, the heritage architect of the council, maintained his concern for the "…negative bulk, form and location" of the proposed roof over the stairs to the attic, [Note: Exhibit 11]. 44 In the supplementary joint conference report of the heritage experts in Exhibit 10, Mr Smith joined with Davies and stated, [Note: Exhibit 10, p 2] "…the amended roof element shown on the filed drawings is acceptable and is consistent with discussions in court. Mr Smith believes, however, that it is unclear as to whether the element has an eaves gutter or a hip flashing." 45 I am satisfied that with the issue of security of No 11 Darley Street addressed, that the bulk, form and location of the proposed roof over the stair to the attic of No 9 Darley Street would be acceptable when assessed under s 79C of the Environmental Planning and Assessment Act 1979. In coming to this conclusion I have taken into account the submissions of Mr Tomasetti that the proposed attic stair roof would not be visible from public places and would not be visible from the rear of No 11 Darley Street and only marginally visible from No 7 Darley Street. I would not refuse the modification application sought. Easement for support 46 Mr E Atkins pointed out in Court on 13 February 2006, that the applicant has apparently erected a new section of wall around half a metre high partly on the easement for support shown on the survey plan as Vide Q406706. The length of wall in question is shown in colour on the Exhibit G plan as being around 1m in length in the vicinity of the party wall between Nos 9 and 11 Darley Street. At the s 34 Conference it was noted that similar works had taken place on the party wall between Nos 7 and 9 Darley Street. 47 The applicant agreed to comply with the amended Condition 1(x) and: …shall submit to Council a Registered Surveyor's certification dated after the service of the proposed Order to verify that the reconstructed party wall and associated building elements of the south-east wing along the southern boundary with 11 Darley Street, Darlinghurst and along the northern boundary with No 7 Darley Street, Darlinghurst, are entirely within the subject premises or, alternately, that all building elements encroaching adjoining property have the benefit of an easement or similar under the Real Property Act, 1900. 48 Mr Atkins had read that condition and I understand would be content if the applicant complied with it. I would not refuse the modification application for this reason were the applicant to comply with this condition. Internal lining and French door openings 49 The plans in Exhibit J show an internal solid door to the French door openings in the front ground floor rooms of the proposed art gallery. This would enable the internal face of the door in the closed position, to be available for hanging art works and when an exhibition has ended the panel covering the French doors could be removed to reveal the opening. 50 I accept this as a reasonable solution to the difficulty of displaying artworks while retaining the heritage significance of the item. Inadequate description of the works in the modification application 51 The applicant has filed on 19 January 2006, drawings No 01 and 02 and drawings No 02, 03, 04 and 05 by Cracknell and Lonergan Architects Pty Limited filed 10 February 2006 sufficient to describe the works. 52 These amended architectural drawings in Exhibit G, together with detail of the hipped roof over the stair to the attic in Exhibit H; detail of the door or 'plug' for the front ground floor rooms in Exhibit J; detail of materials of the door to the store in Exhibit K; detail of a removable steel safety balustrade to Room 4 in Exhibit L; and in Exhibit M the Building Code of Australia (BCA) extract with commentary dated 19 January 2006 are sufficient to describe the works. 53 I am satisfied that these drawings meet the requirements of the practice direction with regard to documentation of applications. I would not reject the s96 modification for reason of inadequate description of the works. 54 For the above reasons, the appeal is upheld. Conditions 55 The conditions are those in Exhibit 1 as amended during the conference. Orders 56 My orders are:

The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.

Development Consent No D/04/00081B is modified in accordance with Drawings No 01 and 02 prepared by Cracknell and Lonergan Architects Pty Limited filed 19 January 2006 and drawing Nos 02, 03, 04 and 05 by Cracknell and Lonergan Architects Pty Limited filed 10 February 2006, subject to Conditions 1 to 19 in Annexure A.

The exhibits with the exception of Exhibits A, B, F, G, H, J, K, L, M, 1 and 6 are returned.

S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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