Blainey North & Associates Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2021-07-14|Before: Preston CJ

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application DA-272/2019/2 (the modification) by Woollahra Municipal Council (the Respondent). The modification sought consent to modify the parent Development Application DA-272/2019/1 (original consent) at 7 Paddington Street, Paddington (the site).
The key features of the modification include: 1. Replacing the internal stairs between the garage and loft above, and instead constructing a partly external stair and doorway to access the loft studio along its northern-facing facade. 2. Altering the design of the loft window.
The Court arranged a conciliation conference and hearing under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 July 2021. I presided over the conciliation conference and subsequent hearing.
Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams.
During the conciliation conference, the parties were unable to reach agreement to the terms of a decision that would be acceptable to the parties. Accordingly, the conference was terminated and a hearing held forthwith.
As a matter dealing with a Modification Application, the 3 June 2021 decision of Preston CJ in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 247 LGERA 318; [2021] NSWCA 112 formed a procedural consideration at the hearing, with the parties each making submissions on an appropriate course for dealing with any proposed design changes to the modification.

The site and its context

The site is located at 7 Paddington Street, Paddington and is legally described as Lot 1 in DP 976861.
The allotment is generally rectangular in shape with a skewed front boundary. The site area is approximately 128.1sqm. The site has a primary frontage of 4.46m to Paddington Street, and a rear boundary with a secondary frontage to Dudley Street of 4.015m. The common boundary with 9 Paddington Street is 33.815m in length. The common boundary with 5 Paddington Street is 31.75m in length.
The site is characterised by a gentle topography, falling from Dudley Street at the rear of the lot to the north-east frontage to Paddington Street by approximately 1.3m.
The site is currently occupied by a two-storey attached terrace dwelling house that includes a habitable third-level attic contained within the roof form. The dwelling house likely dates from the 1900s and forms one of a row of three similar terraces at 3, 5 and 7 Paddington Street.
Consent for alterations and additions to the terrace dwelling, including a new attic level with rear facing dormer and a new loft addition above the existing garage, was granted to the original development application on 27 February 2020, and construction work appears to have largely been completed.
Generally agreed between the parties however, is that some building works have not been completed in accordance with the approved architectural drawings (which form Exhibit H in these proceedings). Rather, the final amended proposal, the subject of this appeal, largely represents building work as executed, and is an attempt to 'normalise' works undertaken without consent or contrary to consent.
In accordance with the Court's COVID-19 Pandemic Arrangements Policy, and in lieu of the usual site view, the Court benefited from a series of photos and a video recording, forming Exhibit L in these proceedings, which assist in describing the site and its context.
The immediate vicinity surrounding the site comprises a reasonably consistent urban character.
Paddington Street presents as a characterful residential street within the inner-urban Sydney suburb of Paddington. Dwellings in the immediate vicinity of the site form cohesive rows of traditional terrace dwellings sharing a range of similar features.
The terrace dwellings at 3, 5 and 7 Paddington Street share similar features and together also form a cohesive row of three. A defining characteristic of these three terraces is their relatively narrow lot width, each of approximately 4m. I note that the narrow lots in concert with the typical form of terrace houses places pressure upon side boundaries for the achievement and maintenance of visual privacy between neighbouring dwellings.

The planning controls

The key relevant statutory controls are as follows: 1. EPA Act 2. EPA Reg 3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 4. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) 5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) 6. Woollahra Local Environmental Plan 2015 (WLEP) 7. Woollahra Development Control Plan 2015 (WDCP).
The site is zoned R2 Low Density Residential under cl 2.2 of the WLEP.
Pursuant to cl 5.10 - Heritage conservation - of the WLEP, the site is situated within the Paddington Heritage Conservation Area and identified within Sch5 - Environmental heritage - of the WLEP.
The terrace dwelling at the site is also identified as a contributory building in accordance with the terms of Part C1.1.7 of the WDCP.

History of the Modification Application

The Respondent's Amended Statement of Facts and Contentions, filed with the Court on 26 March 2021 and forming Exhibit 1 in these proceedings, sets out the history of the modification. A concise summary follows.
The original Development Application DA-272/2019/1 was approved on 27 February 2020, subject to conditions of consent.
The Modification Application DA-272/2019/2 was lodged on 14 October 2020.
The modification was notified from 28 October to 11 November 2020. One submission was received, which objected to the modification and raised issues associated with adverse privacy impacts upon adjoining properties.
The Respondent undertook a site inspection of the neighbouring property at 9 Paddington Street on 24 November 2020, recording photographs (now forming Exhibit L) and observing: 1. External stairs and a doorway to the upper floor loft had been constructed contrary to the stamped approved plans of DA-272/2019/1. 2. The approved internally facing loft window had been replaced with two non-identical windows (both of which are operable) contrary to the stamped approved plans of DA-272/2019/1. 3. Building works which had been carried out to date were also, at least in part, inconsistent with the modification lodged as DA-272/2019/2.
On 25 November 2020, the Respondent refused the modification for the following reasons: 1. The proposal is inconsistent with the aims of cl 1.2(2)(f), (g), (j) and (l) of the WLEP. 2. The proposal is inconsistent with a number of the objectives of the R2 Low Density Residential zone set out in the Land Use Table of the WLEP. 3. The proposal is inconsistent with a number of the objectives and controls set out in the WDCP. 4. The proposal is contrary to the public interest pursuant to s 4.15(1)(e) of the EPA Act.

The issues

The contentions pressed by the Respondent can be found in the Amended Statement of Facts and Contentions forming Exhibit 1 in these proceedings.
These contentions are summarised as follows, and all remain pressed by the Respondent: 1. The final amended proposal is inconsistent with the aims of the WLEP as listed at cl 1.2(2)(f), (g), (j) and (l). 2. The final amended proposal is inconsistent with the objectives of the R2 Low Density Residential zone as set out in dot points 3 and 4 of the R2 Land Use Table within the WLEP. 3. The final amended proposal is inconsistent with Objectives 2 and 8 as set out in C1.3.4 - Multi-storey terrace style housing - of Chapter C1 of the WDCP. 4. The final amended proposal is inconsistent with Objectives 1 and 2 as set out in C1.4.5 - Building height, bulk, form and scale - of Chapter C1 of the WDCP. 5. The final amended proposal is inconsistent with Objective 6 as set out in C1.4.10 - Acoustic and visual privacy - of Chapter C1 of the WDCP. 6. The final amended proposal is inconsistent with Objectives 3 and 6 as set out in C1.5.7 - Lofts over garages and studios - of Chapter C1 of the WDCP. 7. For these reasons, the final amended modification will not be in the public interest and will set an undesirable precedent in the immediate locality.
It is helpful to distill these occasionally intersecting contentions into a series of related design and planning issues: 1. The stair as constructed is located partly external to the loft, and thereby contributes to a reduction in visual privacy between neighbouring properties. This same configuration adds building bulk not anticipated in the original consent. 2. The more recent introduction of timber lattice screening which, in seeking to mitigate against visual privacy impacts, further exacerbates issues of bulk and scale, and in any case imperfectly resolves visual privacy. 3. The loft door and windows as variously constructed with operable sashes and clear glazing do not - in their current form - achieve an adequate level of visual and acoustic privacy. 4. In combination, the elements of the external stair, timber lattice screening, operable clear windows and proposed timber shutters result in an architectural solution that is not of a high standard of design, and does not meet the desired future character.

The evidence

The Court was assisted by experts in planning and heritage, who conferred to prepare a joint report of planning and heritage experts. The experts are Mr George Lloyd (planner) for the Respondent, and Mr Robert Chambers (planner) and Ms Alexandria Barnier (heritage consultant) for the Applicant. Their joint expert report forms Exhibit 2 in these proceedings.
In their joint expert report, at par 10, Mr Lloyd, Mr Chambers and Ms Barnier generally set out their agreement to a number of key points, including: 1. The status of various iterations of the architectural drawings and particularly those forming Exhibit C as the subject of this appeal. 2. The fact that the works have been implemented does not prevent consent being granted to the modification.
In his oral evidence, Mr Lloyd restated his view, as set out from par 14 of the joint report, that the final amended proposal does not adequately conserve the built environmental heritage, nor adequately protect the amenity of neighbouring properties, most particularly 9 Paddington Street.
With reference to the photographs and video comprising Exhibit L, Mr Lloyd described a series of vantage points within the property at 9 Paddington Street from which the loft stair, loft entry door and loft windows constructed at 7 Paddington Street are, at least, partly visible.
The narrowness of the lots in the vicinity result in a pattern of cross viewing typical in Paddington, and which Mr Lloyd described as 'endemic'.
Consequently, it is the presence of the external stair, loft door and clear glazed windows, and associated opportunities these afford for cross viewing that is central to Mr Lloyd's concern for the loss of amenity.
My Lloyd did accept a distinction that the external stairs generally provide for circulation and passage rather than for dwelling, and hence this reduces the likelihood and duration of cross viewing from the external stair.
Additionally, Mr Lloyd noted the recent addition of the timber lattice screen - in an attempt to mitigate against cross viewing - created further unnecessary bulk in addition to the bulk created by the external stair itself, neither of which were contemplated in the original consent.
Mr Lloyd then went on to describe the external stair as an 'incongruous' element within the local context, and noted the relevant provisions of the WDCP which seek to ensure that loft access is 'provided internally'.
Under cross examination, Mr Lloyd accepted that as constructed, the stair serving the loft is partly external (being the first and second flights, including proposed treads 1-8) and partly internal to the loft (a third flight of winders, including proposed treads 9-13).
Additionally, Mr Lloyd accepted that the introduction of timber lattice screening went some way towards the achievement of visual privacy and thereby satisfied some objectives of the relevant WDCP controls.
Nonetheless, Mr Lloyd's view remains that the screening now constructed does not go far enough to ensure the maintenance of privacy between neighbouring properties, and that 'a greater proportion' of screening would be required to do so. And at the same time, he restated his earlier view that the introduction of the external stair and screening contributed to other concerns for unnecessary bulk.
Turning to the proposed windows and shutters on the inward-facing facade of the loft, Mr Lloyd stated his view that the constructed double-hung window serving the loft still requires its lower sash to be fixed and made of obscure glazing in accordance with conditions of the original consent.
Similarly, he stated that the constructed trapezoidal casement window serving the ensuite requires its glazing to be obscure in accordance with conditions of the original consent.
Referring to the pair of timber shutters indicated within the final amended proposal, Mr Lloyd offered his view that these should be omitted (or deleted by condition of any consent) as they are not appropriate and appear 'clumsy' in their composition.
The joint report further sets out Mr Lloyd's concerns for each of the contentions pressed by the Respondent.
In his oral evidence, Mr Chambers confirmed he had visited the subject site on two occasions since the installation of the timber lattice screens.
Mr Chambers went on to estimate the height of the timber lattice screen relative to ground level in the rear courtyard of 7 Paddington Street at approximately 4m, effectively an approximately 1m timber lattice extension of an existing 3m high boundary wall.
Mr Chambers assessed the resultant overshadowing due to the lattice screening as 'not critical' given other existing site features and the general orientation of the site and neighbouring dwellings.
Turning to the final amended proposal, Mr Chambers described the modification as 'minor in nature', creating 'no substantial impacts' upon privacy, and configured in a manner that is not visible from any public vantage point.
The joint report further sets out the extent of Mr Chamber's disagreement with each of the contentions pressed by the Respondent.
In her oral evidence, Ms Barnier confirmed her general view of the acceptability of the final amended proposal, with particular reference to its impacts upon the heritage values of the Paddington Heritage Conservation Area.
Ms Barnier described these impacts as having 'very little consequence' and noted that none of these heritage impacts are observable from any public vantage point.
Further, at par 16(b) of the joint report Ms Barnier states: "The modified development has no physical impact on any contributory fabric. The modified development does not obscure or visually dominate any fabric on site which contributes to the conservation area."

Findings

I now propose to uphold the appeal and grant consent to the modification, subject to conditions. The modification is to be based on the final amended proposal described in the architectural plans tendered as Exhibit C in these proceedings. In proposing this course, I set out my reasons in the following paragraphs.
Firstly, I find it is acceptable for the development described in the final amended proposal to be granted consent. In reaching this determination, I accept a number of the submissions of the Applicant and in particular, I note the building work is not visible from any public vantage point and brings with it only impacts of a very minor nature, which I am satisfied may be resolved by conditions of consent.
As required by s 4.55(2)(a) of the EPA Act, I am satisfied the final amended proposal will result in development that is substantially the same as the original consent.
In a circumstance such as this - where building work has been undertaken without consent, or where building work has been carried out contrary to the original consent - the parties agree that s 4.55 of the EPA Act makes available the retrospective grant of consent.
The parties directed me to a central authority on this question, being Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSW LEC 240 (Windy Dropdown), which establishes the convention for retrospective modification of a development consent. I am satisfied my findings in this matter are consistent with the convention established by Windy Dropdown.
The Respondent, during closing submissions, noted a concern that this particular sequence of events may offer the Applicant a development 'gain' or 'advantage' that would otherwise not be available to them, and described the situation as an 'abuse of process'. In the circumstance of this matter, I am satisfied there is no material development advantage gained by the Applicant.
In forming this particular view, I note the final amended proposal does not contravene the principal development standards for height of building (cl 4.3) or floor space ratio (cl 4.4) of the WLEP, and although I accept the resultant development does marginally increase the bulk and scale of the garage and loft, and alters its form to a small extent, I am satisfied there is no material development advantage at play.
Having formed such a view, I also note that in no way is this judgment intended to endorse or encourage building work being undertaken contrary to a development consent or without development consent in the expectation that a favourable consent might be retrospectively granted.
In terms of other jurisdictional considerations prior to the grant of any consent, I am satisfied the final amended proposal is consistent with the relevant aims of the WLEP as set out at cl 1.2.
Specifically, and pursuant to WLEP cl 1.2(f), I am satisfied the final amended proposal does not detract from the conservation of built environmental heritage within the Paddington Heritage Conservation Area, as it is minor in nature and is not visible from any public vantage point.
Pursuant to WLEP cl 1.2(g), I am satisfied the final amended proposal is configured in a manner that protects the amenity and visual privacy of neighbouring properties. Conditions of consent are to be imposed to ensure this privacy is maintained and improved.
Pursuant to WLEP cl 1.2(j), I am satisfied the final amended proposal is of an appropriate and acceptable standard of design, however conditions of consent are to be imposed to substitute the existing unpainted timber lattice with a more robust, durable and characteristic material.
Similarly, conditions are to be imposed that delete the proposed timber shutters, which I find to be inconsistent with the overall composition and expression of the inward-facing elevation of the loft.
Pursuant to WLEP cl 1.2(l), I am satisfied the final amended proposal, as a relatively modest terrace dwelling with a garage and loft, is consistent with the desired future character of the local vicinity, notwithstanding the relatively minor departure from relevant controls of the WDCP, which results in a portion of the loft stair being situated external to the building.
I am satisfied the final amended proposal is consistent with the relevant objectives of the R2 Low Density Residential Zone so far as the development is compatible with the character and amenity of the local vicinity and is of a general form and scale that is consistent with the desired future character of the area.
For these reasons, I am also satisfied the final amended proposal is in the public interest as required by s 4.15(1)(e) of the EPA Act.
The parties agree, and I am satisfied, that the Court has power to grant consent, and there are no remaining jurisdictional obstacles to doing so.
In proposing to grant consent, I have determined to impose a series of conditions of consent to further mitigate against issues of visual privacy and to ensure an acceptable standard of design is evident in the final amended proposal. These conditions are set out in the following paragraphs
In order to ensure improved visual privacy between neighbouring properties, the existing glazed loft entry door is to be fitted with obscure glazing.
In order to ensure improved visual privacy between neighbouring properties, the existing loft window is to have its lower sash permanently fixed and the lower sash fitted with obscure glazing.
In a similar fashion, in order to ensure improved visual privacy between neighbouring properties, the existing ensuite window is to be fitted with obscure glazing.
In order to ensure the final amended proposal achieves an acceptable standard of design, the proposed external shutters are to be omitted.
In order to ensure visual privacy between neighbouring properties is maintained, and in order to ensure an acceptable standard of design, the timber lattice screens are each to be substituted with the equivalent extent of metal framed privacy panel.
Noting the materials and finishes used to form the existing balustrade and handrail on the external stair, the substitute privacy screens are to match the general expression, character, material and finish evident in the existing balustrade and handrail.
Each substitute panel is to provide an equivalent level of privacy as the timber lattice it replaces, and may be fabricated including woven mesh, perforated or laser cut metal sheet. Each panel is to be capable of supporting climbing vegetation.
For the reasons set out above, I now propose to uphold the appeal and grant consent to the amended modification, subject to conditions.

Directions

The Court directs that: 1. The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Woollahra Municipal Council as the relevant consent authority pursuant to cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Modification Application DA-272/2019/2 to reflect the architectural plans which form Exhibit C in these proceedings. 2. The Respondent, Woollahra Municipal Council, as the relevant consent authority, is to effect lodgement of the amended Modification Application on the NSW Planning Portal within 7 days of the date of this order and notify the Applicant. 3. The Applicant is to file a copy of the amended Modification Application with the Court within 7 days of the Respondent notifying the Applicant that lodgement has been effected on the NSW Planning Portal. 4. The Respondent is to prepare conditions of consent reflecting the reasons set out in this judgment and consistent with the Applicant's amended Modification Application, and file these conditions with the Court within a further 7 days. 5. Upon receipt of the filed amended Modification Application (from the Applicant) and corresponding conditions of consent (from the Respondent), the Court will give consideration to the making of appropriate final orders. ………………………

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: 06 October 2021

(2021) 247 LGERA 318

(2000) 111 LGERA 299

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (3)