Boyd v Bega Valley Council

APPLICANT Mr P. Boyd, litigant in person

LEGAL REPRESENTATIVES: RESPONDENT Mr McMahon, solicitor of M E McMahon & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is an extempore judgment for an appeal under s.96(6) of the Environmental Planning and Assessment Act against the refusal by Bega Valley Shire Council of a modification application for the property known as No. 10 Main Street Merimbula The matter has been heard today as an on-site hearing. By way of background the Court previously heard an appeal for the subject property in 2003 for alternations and additions. The Court dismissed the appeal in terms of the conditions that were appealed against. However, the Council's conditional approval was granted. That is the Court stated that the balcony accessed from what is called the loft area upstairs was to be deleted and the consent was such that it required the submission of an amended plan to delete the balcony and to appropriately insert windows instead of doors at that same setback but with the deletion of the balcony. 2 The applicant has now come forward with a s 96 modification to the consent previously granted. The modification is to allow the wall of the so called loft area to be moved forward some 900 mm and as such there would be a small portion of the roof to remain 'in situ'. The proposed extension for the first floor room upstairs (the loft) has access from the ground floor living room via a spiral staircase. The term 'loft' is not an accurate description but rather it is a second storey addition over one portion of the building.

3 The council advertised the s 96 modification application and this resulted in a number of submissions. The resident objectors included: Mr and Mrs Douglas the owners of No. 12 Main Street and they are concerned about the privacy impacts to their front open space recreational area; and Mrs Purss of No. 8 Main Street, is concerned about the additional impacts on their property from the subject dual occupancy at No. 10.

4 The Court has the benefit of the site inspection this morning and hearing from the objectors. The Court also has the benefit of hearing from the applicant's architectural draftsman, Mr McNeal and the Court has also heard evidence from Mr Moore, councils Manager of Planning.

5 The council is of the view the modification application should be refused as the proposal will impact on the amenity of the adjoining properties. The council is also of the opinion that under the Act the s 96 application is not substantially the same the development as the development application previously approved by the council and the Court.

6 The applicant on the other hand considers that the amended application will make the living space more liveable upstairs especially in light of the need to remove the balcony and that it will not create significant impacts in terms of the bulk and scale by a reduced setback half a metre back from the existing eave line.

7 By way of comment only, as noted the Court has the benefit of having assessed this application previously and at that time the Court provided comments to the effect that the application raised concerns because of the lack of architectural integrity of the dual occupancy development and the additional first floor space for the subject dwelling. At that time concern was also expressed by the Court about the design because the subject site is a waterfront location and as such when viewed from the public domain, that is the water, the development must be assessed in terms of its visual impact on the waterway.

8 The issue now is will the reduced setback impact on the foreshore and impact on the adjoining properties. Council has taken the Court to the controls and these were read out earlier this morning and I have taken these into consideration in my assessment.

9 The objective for attached dual occupancy development is to ensure the building design provides sufficient separation between buildings to protect privacy and sunlight access to neighbouring properties. In this appeal there is no objection from the other dwelling of the attached dual occupancy also owned by the applicant. But there is an objection from the single detached dwelling to the north and the adjoining single storey detached dwelling to the south. The objective for privacy relates to siting and design of the development to achieve visual, acoustic privacy in dwellings and private open space for the occupants and nearby residents and there are guidelines for the layout etc.

10 The Bega Local Environmental Plan 2002 includes the objectives of the residential 2(a) zone to ensure that developments does not have an unacceptable impact on adjoining land by way of shadowing, invasion of privacy, noise and the like. So privacy clearly includes acoustic and visual privacy.

11 In terms of the provisions of the LEP pertaining to development for the use of buildings clause 65(8) requires to be taken into consideration in granting development that consideration be given to views enjoyed from parks and reserves, roadways, footpaths and other public places and the public domain.

12 On the issue of setbacks this is referred to in DCP No. 6. The Court has now been advised by the Council that there is no setback requirement for this waterway of Merimbula, however the DCP also refers to setbacks in terms of consistency with adjoining development and it provides for a rear boundary and a no building zone area and for front boundaries there is also a minimum setback of 7.5m.

13 The LEP provides a definition of dual occupancy and an attached dual occupancy means "two dwellings on one allotment, which has to be attached and characterised by having the appearance of a single house with similar roof and external finishes and design features". This definition informs one in terms of what is envisaged in council's planning regime and in the design of attached dual occupancy development.

14 As I stated the issue for the Court in these proceedings is whether the proposal, to increase the room size by some 28% or thereabouts, has unreasonable impacts when viewed from the public domain, the water, and its impact on the adjoining properties and whether such impacts would warrant refusal. On balance I am of the view that the proposal should not be approved on the basis that the impacts of the poor design of the building would be exacerbated and would the resultant development would not be satisfactory in terms of its visual impact. Furthermore in terms of what is clearly envisaged for dual occupancy development the application fails.

15 The development has that has already been approved on the site is also not entirely consistent with the definition of dual occupancy. The building containing the two dwellings clearly reads as something quite separate - the roof lines are quite different and the roof line of the loft area will be a hiccup in the design.

16 By bringing the second storey element further forward in the Courts opinion will exacerbate what is already a poorly resolved design element. In my assessment the architectural integrity would not be enhanced by bringing the room forward. While the applicant may find this amendment to be more useable and convenient in that the second level at this point would sit above the wall of the floor below it would not be appropriate in urban design terms. As approved the second storey element while only setback 900 mm further this will clearly allow the roof to be read above the ground floor in front of the second storey wall.

17 As I have said this is not a loft it is just a second storey room placed on top of the existing building. In my assessment much greater care and consideration should be given to the proper resolution of providing the additional space in terms of urban design and architectural integrity. Clearly a design that provides for a further setback from the water way would be more appropriate in terms of reducing the visual impact when viewed from the foreshore. A more sensitive design would also have the benefit of safeguarding and maintaining the privacy for the adjoining single detached dwellings.

18 In my overall merits assessment of the modification application I am not satisfied the proposal warrants approval. The design is inappropriate for a foreshore location and it would create adverse impacts for adjoining properties. On the question of whether the modification is substantially the same development to that approved I am satisfied in this regard. However the modification application fails on a merits assessment

19 Accordingly the formal orders of the Court in this matter are: 1. The appeal under s 96(6) of the Environmental Planning and Assessment Act for the property known as No. 10 Main Street Merimbula is dismissed. 2. The s 96 modification application submitted to Bega Valley Shire Council is determined by refusal. 3. The exhibits with the exception of Exhibit A and 1 are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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