Carbone v Council of the City of Ryde

The site and its context

1. The site comprises a single allotment which is legally described as Lot 23 in DP 222878, at a street address of 38 Conrad Street, North Ryde. The site is located on the eastern side of Conrad Street and has an area of 602.8 square metres.
2. The site currently accommodates a part single/ part two storey brick and tile dwelling.
3. The site has approximately 3.2m of cross fall from the street boundary to the eastern boundary at the rear of the allotment.
4. The site is surrounded by predominately single storey detached dwellings of varied age and scale.

Planning Controls

1. Ryde Local Environmental Plan 2014 (LEP 2014) applies to the site. Pursuant to LEP 2014 the site is zoned R2 Low Density Residential. The proposed development is permissible with consent in the zone.
2. The objectives of the R2 Low Density Residential zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a variety of housing types.
3. The development is subject to the requirements of the Ryde Development Control Plan 2014 (DCP 2014). The planning controls relevant to the subject development are:

• Part 3.3 - Dwelling Houses and Dual Occupancy;
• Part 7.1 - Energy Smart, Water Wise;
• Part 7.2 - Waste Minimisation and Management;
• Part 8.2 - Stormwater Management;
• Part 9.3 - Parking Controls.

Public Submissions

1. The application was notified to surrounding residents in accordance with DCP 2014. In response four submissions were received by Council from or on behalf of the adjoining owner at 36 Conrad Street (Statement of Facts and Contentions). The submission raise the following concerns:

• The development is not substantially the same development
• Impact on the tree on the neighbouring property
• Adverse impacts on privacy and acoustic amenity
• Privacy impacts from first floor balcony
• Landscaping;
• Increased size of driveway
• Setback to northern boundary
• Proposed carport
• Insufficient deep soil
• Parking non compliance

1. At the commencement of the proceedings representatives of the adjoining owner at 36 Conrad Street raised similar concerns to the proceeding. In addition they raised concern in relation to the accuracy of the boundary location relied on by the Council in the approval of the original development application.
2. The objectors request a survey to provide certainty as to where the existing structure stands today (in relation to the boundary) and therefore where the structures and paving are approved to be located with respect to the boundary.
3. An amendment to the type of screening at the edge of the driveway is proposed by the modification application. However, the amendments sought do not affect the alignment of the driveway and the works in relation to the common boundary. I am satisfied the objectors concern relates to the consideration of the original application and its approval, not to the scope of works proposed by the modification application. However, I note that the applicant has since prepared an additional survey which has been provided to the adjoining owner and the Council.

Amended Plans

1. Since the conciliation conference the applicant has made the following changes to the works proposed under the modification application:

• a reduction in the width of the driveway
• an increase in the setback of the driveway and the northern boundary (now a minimum of 1m)
• removal of the proposed barrier to the southern side of the driveway
• inclusion of a privacy screen to the existing elevated balcony at the rear of the dwelling
• a reduction in the level (height) of the driveway
• inclusion of semi-established planting to the boundary with 36 Conrad Street to a maximum height of 3 metres
• provision of a 1.8m high privacy screen at the edge of the elevated portion of the driveway. (Joint Expert report)

1. In relation to notification of the amended proposal I am satisfied that the above changes do not significantly differ from the original modification application and do not increase the impact on the adjoining properties. Consistent with cl. 2.9(a) of DCP 2014 I am satisfied notification of the amendments is not warranted.
2. The applicant seeks for the Court to provide consent to these amended plans. I note that pursuant to s 8.15 of the Act consideration of any costs that arise as a result of the amended plans is excluded as the matter is a proceeding under s 34AA of the Land and Environment Court Act 1979.

Expert Evidence

1. The Court was assisted by expert planning evidence from Mr Jonothan Wood for the applicant and Ms Julie Horder for the Council. Their expert report was filed with the Court on 23 May 2018 (Joint Expert report).

Issues

1. The issues for the Court to determine are:

• whether the development 'substantially the same' and 'of minimal environmental impact' (s4.55 (1A) of the Act);
• whether the agreement of the planning experts that the application is worthy of approval is accepted.

Is the development substantially the same and of minimal environmental impact?

1. The agreed evidence of the experts is as follows: 2.2.13 The experts are satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted for the following reasons: • The modification maintains the approved elevated driveway structure including the approved levels; • The development as approved did not prevent the utilization of the elevated driveway for parking as is now proposed; • The proposal is largely the same as the approved development given that the proposal does not seek to alter the use or footprint of the driveway. • The visual appearance and relationship to the adjoining developments are similar to that approved under the original scheme and the dwelling maintains a similar presentation to that originally approved. (Joint Expert report).
2. Having considered the existing consent and the modification application I accept the agreed evidence of the experts that the scope of works proposed by the modification application is "essentially" or "materially" the same as the approved development (Moto Projects (No.2) Pty Ltd v North Sydney Council [1999] NSWLEC280 at [55]).
3. In relation to the test of whether the modification is of minimal environmental impact, the assessment approach is elucidated in by Preston CJ in Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 which at [57] states: Furthermore, the task required by s 96(1A)(a) demands a comparative assessment of the environmental impacts of the development as originally approved and the development as modified. As with the task required by s 96(1A)(b), this comparative assessment required by s 96(1A)(a) is not to be done in a "sterile vacuum" by comparing the bare terms of the consent as originally granted and the consent as modified, but rather is to involve an appreciation, qualitative as well as quantitative, of the developments and the environmental impacts of those developments.
4. The modification works (refer paragraph [1]) sought by the application were the subject of amendment as detailed at paragraph [17]. These amendments seek to reduce the impact of the proposed development, in particular any impact to the adjoining property at 36 Conrad Street.
5. Having considered the environmental impact arising from this amended proposal, and that arising from the existing consent, I am satisfied that the proposed modification is of minimal environmental impact.
6. With the above preconditions met it is appropriate to turn to the merit of the modifications sought.

Is the agreement of the experts on the merit of the application accepted?

1. The planning experts are agreed that the application as now amended is worthy of approval by the Court. The following extracts of the joint report demonstrate their reasoning:

Impacts on adjoining neighbours:

1. The experts agree that the amendments improve the amenity of the adjoining property, as follows: 2.1.2 The experts agree that the above amendments improve the amenity of the adjoining property by locating the driveway further away from the common boundary with No.36 Conrad Street. 2.1.3 The experts agree that the landscaping will soften the appearance of the driveway and screen the driveway when viewed from No.36 Conrad Street. Particular (b) is satisfied by the amendments. 2.1.4 The experts agree that the bulk and scale of the screen and visual impact on the adjoining property and the streetscape has been improved by reducing the length of the privacy screen. Additionally, the physical barrier along the southern side of the driveways has been removed from the plans. As such, Particulars (c), (d), (e) and (f) have been addressed 2.1.5 The expert agrees that the development as amended presents an integrated design and form an integrated whole given the use of render with associated paint finish to the face and use of the existing roof tiles. The existing windows are maintained with the replacement of the window to the sitting room, noting the proportion and size of the new window relates well to the existing dwelling. Therefore Control (a) would be satisfied. 2.1.6 The experts agree that Control (b) is relevant and note that it expresses that 'alterations and additions are to improve the amenity and liveability of dwellings and sites, including practical and useable external spaces'. We note the alterations to the dwelling are proposed to improve the functionality and liveability of the dwelling. … 2.1.8 It was agreed that the elevated driveway would enable persons entering and exiting a vehicle to overlook into the adjoining property at No. 36. It was noted that there is a physical separation of approximately 8m between the driveway edge and the adjoining dwelling at No.36 and what appears to be a kitchen and living room window and an outdoor courtyard area. It was also noted that the existing front balcony adopts the same finished level and the northern edge overlooks into the adjoining property. It was also agreed that this impact would also be generated by the approved plans associated with the original development application as the levels and location of the elevated driveway is comparable. The privacy screen of 1.8m as now proposed will provide mitigation to this visual privacy impact. The screen with a length of 3.6m along the northern eastern portion of the driveway and the provision of semi-established planting along the northern boundary will prevent overlooking from residents of No.38 Conrad Street into the outdoor courtyard area from the driveway. The physical separation of the driveway from the living room and kitchen window and the provision of the screen and landscaping will also significantly mitigate overlooking from residents of No.38 Conrad when utilising the driveway. (Joint Expert report)

Car Parking

1. The experts agree that the number of parking spaces proposed complies with the maximum parking rate contained in Section 2.2 of Part 9.3 of DCP 2014, being one space, which is less than the maximum of two spaces.
2. Further they agree that the objectives of the above controls 'are satisfied by the development in that the proposal provides for 1 parking space, and by not adopting an enclosed space ensures that parking structures are not prominent features in the streetscape'(Joint Expert report).
3. Whilst the development is a variation of the requirement in DCP 2014 to provide a covered parking space, the experts conclude that 'the provision of the open stand parking space is the most preferred outcome from a streetscape perspective'.
4. The agreed conclusion of the experts, is that the 'open parking space proposed is acceptable and (a) variation to the control would be acceptable based upon the site location, site constraints with regard to topography, and relationship to the streetscape'(Joint Expert report).

Conditions

1. The planning experts are agreed that it is appropriate for two conditions to be applied to the consent for the modification application.
2. The first relates to the addition of a planter box to the external wall of the sitting room. The draft condition states: Amended Landscape Plan. The Landscape Plan is to be amended to show a 1m wide planter box located along the outer length of the 'existing sitting room' window facing the driveway. The planter box is to incorporate screen planting which attains a mature height of 1.2m above the finished floor level of the sitting room. Details of these design changes must be included in the documentation submitted with the application for a Construction Certificate. (Joint Expert Report)
3. The intent of this condition is to ameliorate the potential for overlooking to No.36 Conrad Street. I am satisfied the condition proposed is relevant to the scope of the modifications sought and relates to issues raised in the public submissions (s.4.15(1)(e) of the Act)
4. The second condition seeks to provide certainty to the setback of the proposed landscaping at the front boundary of the site. Such a condition would be worded as follows: Sight Lines: Setback of Northern Boundary landscaping The proposed landscaping to the northern boundary is to be setback 2 metres from the property to permit adequate sight lines to be maintained for vehicles exiting the driveway of No.38 Conrad Street.
5. The intent of the above condition is to maintain pedestrian safety. I am satisfied the condition proposed is relevant to the scope of the modifications sought and seeks to address a potential impact of the development (s.4.15(1)(b) of the Act).

Findings

1. I have reviewed the agreed evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that the experts have appropriately considered the issues raised by the contentions, the submissions of the public, the appropriate planning controls, and I accept their conclusions.
2. In assessing the merits of the proposed modification under s 4.15 of the Act, the Court must consider the expert and lay evidence and give appropriate weight to the permissibility to carry out the use on the land: BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399 per McClellan CJ at [117]. In this case, the expert evidence supports a conclusion that the amended modification application will not generate unacceptable impacts.
3. I accept the agreement of the planners that the variations requested by the applicant to Council controls are warranted as they meet the relevant objectives of the controls, and the alternative is appropriate in the circumstances of the case.
4. I am satisfied that the proposal, now amended as detailed in the judgement, will provide a satisfactory development. As there is no evidence before the court of a substantive issue that warrants refusal of the application, the development application can be granted development consent.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans as listed in Condition 1 of Annexure 'A'; 2. The appeal is upheld; 3. Consent is granted to applicant's modification application number. MOD/2017/0143, which modifies consent LDA/2011/343 for alterations and additions and landscape works to the property at 38 Conrad Street North Ryde which is by the grant of consent subject to the modified conditions of consent detailed in Annexure 'A' 4. The exhibits are returned with the exception of the Council's Statement of Facts and Contentions (filed 15 November 2017) and the Joint Expert report (filed 23 May 2018). ……………. D M Dickson Commissioner of the Court Annexure A (70.9 KB, pdf)

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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: 29 May 2018