Connoisseur Property Holdings Pty Ltd v North Sydney Council

Facts

1. The Council's statement of facts and contentions filed on 20 November 2018 sets out the background facts and the statutory controls in this case. They have not changed in any material way since the hearing of the original DA.
2. The site remains zoned R2 Low Density Residential under the North Sydney Local Environmental Plan 2013 (LEP) and adjoins on its eastern boundary by a two storey residential dwelling at 20 Illiliwa Street. The surrounding locality comprises a range of residential dwellings, predominately one or two storeys in height.
3. The application was notified as required by s 4.56 of the EPA Act and several objectors lodged submissions opposing the modifications. However, a number of the submitters raised matters beyond the scope of this modification application and sought to revisit their objections to the development more generally. Accordingly, I attempted to explain at the site view to those residents attending, that this case is constrained to a resolution of the application before the Court to modify the approved use on the site. Concerns about traffic or drainage are not relevant to the issues before the Court at this time.

Lay evidence

1. Mr Sprott, the owner at No. 20 Illiliwa Street, resides next door to the site in a two storey dwelling which is setback approximately 1.6m from its eastern boundary. He was an objector to the original DA and now opposes the proposed modifications. He believes it further compromises the privacy and amenity of his family's property. According to Mr Sprott, the proposed increase in the building envelope on the eastern side by 700mm will exacerbate the overbearing nature of the approved built form. Mr Sprott is also concerned about the impact of the proposal on the level of solar access to his study, dining room and the bedrooms along that elevation.
2. Mr Sprott also spoke for his neighbours at 11 and 14 Illiliwa who were unable to attend the hearing. In summarising their written objections (which were provided to the Court) he said that his neighbours supported his concerns and were also concerned about the impact of any increase in bulk in the streetscape, and the impact of the use for traffic and drainage. Two other local residents addressed the hearing at that time and generally agreed with the submissions put by Mr Sprott.

Expert evidence

1. The proposal has been assessed by the parties' planners Mr Anthony Betros (applicant) and Mr George Youhanna (Council). These experts were also involved in the earlier appeal which dealt with the original development consent. A copy of their earlier report was filed in these proceeding and marked Exhibit C.
2. They also provided a joint report in relation to the modification application that is also before the Court in marked form (Exhibit 3). It was supplemented with oral evidence both onsite and in Court.

The contentions

1. At the outset it needs to be recorded that there is no jurisdictional impediment to the Court granting approval to the applicant's modifications as it is accepted that the resulting development will be substantially the same as that originally approved by the Court before any amendment: s 4.56(1)(a).
2. Rather, the Council's complaint in this case is that the modifications will generate: 1. inadequate side setbacks and inadequate building separation; and 2. unacceptable building bulk and scale.
3. The Council also contends that an approval of the modifications is contrary to s 4.56(1A) of the EPA Act because the modifications sought are inconsistent with the reasons given by the Court for the grant of consent.
4. The section is set out below: 4.56 Modification by consent authorities of consents granted by the Court (cf previous s 96AA) (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if: (a) it is 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 and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with: (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification. (3) The regulations may make provision for or with respect to the following: (a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent, (b) the effect of any such deemed determination on the power of a consent authority to determine any such application, (c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act. (Emphasis added)
5. I will deal with the matter raised by s 4.56(1A) in due course and after I have summarised the experts' evidence.

Summary of the expert evidence

1. Relevantly, the experts agree in the opening of their joint report that the development, if modified as proposed, will not generate any additional overshadowing of the living room windows or private open space in the adjoining residence at number 20 between 9am and 3pm, midwinter and that there are no impacts on the view
2. They also agree that the proposed changes to the lower ground floor windows of the development are below the fence line of the eastern neighbour - as demonstrated on the northern elevation (Exhibit A), and that an increase on the boundary at that level is not a basis for refusal of the application having regard to the internal layout and orientation of the eastern dwelling at 20 Illiliwa Street.
3. That said, Mr Youhanna was clear in his written and oral evidence both onsite and in Court that he does not support the proposed amendments.
4. His primary concern is that the proposed setbacks further compromise the already reduced setbacks approved in the original consent. At paragraph 28 of the joint report he states: "The setbacks approved through the previous appeal proceedings were considered to be a significant but reasonable compromise with regard to the circumstances of the case, with particular regard to the site having existing use rights and it is very unlikely that the approved setbacks would have been supported by the Council (respondent) if the site did not have existing use rights."
5. And, referring to the marketed up plan at p 13 of the joint report, he invites me to appreciate the extent of the reduced setback (which is the area coloured orange) to the eastern boundary - being a 1.5 m reduction in the side setback, from 3 m down to 1.5 m for a substantial proportion of the building at ground level and level 1 which, in his assessment, will generate unacceptable bulk for the neighbour and the streetscape. He does not accept that the extended boundary to the east will be hidden behind one or two trees at the frontage but instead should be read as a development which is inconsistent with the existing rhythm of setbacks in this part of the street.
6. Furthermore, he believes that the reduced eastern side setbacks will negatively impact on the bedroom and dining room windows of Mr Sprotts' property and cause an adverse visual and acoustic impact at that residence. Mr Youhanna also said that the newly positioned windows may also allow oblique views to the dwelling and rear yard of 20.
7. Mr Youhanna is of the opinion that a reduction in the side setbacks down to a minimum of 1.5 m cannot be justified after having regard to the AGD design principles. The approved master bedroom exceeds the AGD design criteria (minimum area of 10 m²) and all other bedrooms exceed the AGD design criteria - minimum area of 9 m². In Mr Youhanna's assessment, the approved bedroom areas, configurations and dimensions and orientation provide a high level of amenity to these bedrooms, future occupants and any additional amenity provided by increasing the size of the bedrooms is unjustified and unnecessary. The proposed enlarged building envelope will be discernible from the street frontage and any reduction from the approved eastern side setback is contrary to the AGD design guideline that requires a residential flat development - to transition when adjacent to lower density residential development - to reduce any adverse amenity impacts. Furthermore he is of the view that the proposed setbacks are inconsistent with the desired future character of the R2 Low Density Residential zone, which is a relevant consideration in the circumstance of this case for the public interests under the EPA Act.
8. In his mind the approved minimum setback of 3 m was a significant concession, made in the context of an existing use right appeal and the modifications proposed cannot be supported.
9. Mr Betros disagrees. In his expert assessment, the increased building bulk and reduced separation to No. 20 will not have any adverse visual impacts when viewed from that property. This accords with the agreed position of both planners that the proposed extension of the built form toward the east does not generate any adverse shadow impacts, noting that the primary kitchen, living and dining areas and entire private open space are unaffected by the amendment. This is not surprising as in his assessment, the orientation of the windows of the development along the eastern side setback have been specifically designed to avoid direct east facing overlooking impacts. The proposed changes do not change this outcome in is assessment.
10. Moreover, the location of the windows on the ground and first floor of the development, whilst being at similar levels to the ground and first floor of the neighbouring property to the east, are not orientated in a sideway manner toward the neighbour at No. 20. They are different to his window design. Coupled with the fact that these windows on No. 20 are of a passive nature - bathroom and bedrooms and one window in a dining room - the proposed extension towards the east cannot be said to generate any unreasonable visual or acoustic privacy impacts.
11. He believes that the internal layout and orientation of No. 20 is relevant when assessing the visual and acoustic privacy relationship with the site. The dwelling has a north orientation.
12. Additionally, Mr Betros believes that the modified eastern side setback will not generate any inconsistency with the streetscape pattern or rhythm of the development. The dwelling at No. 20 is 1.5 m from the eastern side boundary and the proposed dwelling will at its worst have a similar setback. It cannot be argued that this outcome is unsympathetic to the existing streetscape which is varied in any event. Mr Betros believes that the additional tree at the frontage will soften and shield the increase if it is in fact able to be perceived from the street, which he doubts.
13. Despite being a residential flat building in an R2 zone, Mr Betros is of the opinion that the modest nature of the built form as it presents to the street and compatible bulk with neighbouring development, including the large two storey houses and duplexes proximate to the site, ensures that the modifications will not generate any adverse impact for the existing or desired character of the street. As it stands the proposed setbacks will in any event be greater than those required under the council controls for 2 and 3 storey dwelling houses and the proposed site coverage is compatible with that allowed for dwelling houses and below that allowed for dual occupancies. He refers the Court to the North Sydney DCP 2013 site coverage controls at 1.5.5 and Table B 1-6. The site falls within the 500-749 m lot size category and a dwelling house can have 40% maximum coverage, 50% dual occupancy site coverage and a 45% residential flat building. In this case the coverage is 41.8% after the modification - similar to that applicable for a two storey dwelling. On that basis Mr Betros submits that the bulk complained about by the increased 700mm setback on the eastern boundary will not be perceivable.
14. Mr Betros believes that it is justified on the evidence to increase the internal floor space generated by the proposed 700mm pushing out of the building on the eastern boundary aligning with the master bedrooms, two other bedrooms and dining room and balcony in circumstances where no unacceptable impacts will be generated. Accepting that the amenity is compliant and acceptable does not mean that a more usable space ought not to be provided above the minimum if it can be introduced into the design without adverse impacts - such as the case at hand when assessed against the guideline controls in the AGD and the Council's DCP.

Consideration

1. I will deal first with the Council's contention concerning s 4.56(1A).
2. The section requires that in addition to taking into consideration the matters of relevance listed in s 4.15 of the EPA Act I must also take into consideration the reasons given by the Court for the grant of the consent that is sought to be modified.
3. The parties accept that my earlier judgment sets out the reasons for the grant of consent that is sought to be modified.
4. The Council submits that my written judgment in respect to the original grant of consent was based on the agreement of the planners in relation to acceptability of the side setbacks proposed to be 1.5 m and 2.57 m on the eastern boundary. It is further submitted that the Council would not have supported the currently proposed setbacks at that time. Therefore, it follows that the Court may have reached a different conclusion on the acceptability of the proposal. As there is presently no agreement about the proposed modified setback, an approval of this application would be inconsistent with my earlier reasons.
5. The applicant submits that the Council's current view on the proposed setbacks is irrelevant. The section requires a consideration of the reasons for the grant of consent, and it submits that in this case there is nothing in the written reasons for the grant of the original consent which precludes a further modification of the eastern boundary setback or amendments which seek to improve the internal amenity of the building. This is not a case where the Court has set out a definitive position in its reasons to indicate that the setback cannot be reduced or that the bedrooms or balcony cannot be marginally increased by a future application to that effect. For example, the applicant has not in this case sought to achieve a particular setback at the outset of the case and then amend its plans to achieve consent, and then sought to re-agitate its original position through a modification application.
6. I agree with the applicant's analysis of the judgment dealing with the grant of the original consent and its interpretation of the section of the EPA Act.
7. In short, the section asks me to consider the original reasons which supported the approval along with other relevant matters in s 4.15 of the EPA Act. Having undertaken that consideration, I do not find any reasoning in the judgment which precludes me from entertaining a further reduction in the setback to increase the amenity of the bedrooms and the balcony or approve an additional tree at the frontage into the future. At that time I dealt with the application before me and found the setback adequate and the amenity acceptable in the context of the evidence then. Similarly, I am required to assess the current modification application based on the evidence as presented today.
8. Accordingly I find that having considered the reasons given for the original approval in accordance with s 4.56(1A), there is no inconsistency with me assessing the current application under the EPA Act.
9. I will now turn to the expert's assessment of the application and the objectors' concerns which I have earlier summarised.
10. Based on my observations of the site and its interrelationship with the property adjoining at No. 20 - I accept Mr Betros' assessment of the impacts of the proposed modifications and find that moving the approved building footprint a further 700 mm toward the eastern boundary in some locations will not have any unreasonable impact on the visual or acoustic amenity of the adjoining dwelling. There will be no overshadowing or unreasonable loss of solar access to the windows on that elevation. It is also my considered opinion, consistent with Mr Betros' evidence, that the modified built form will not present as an uncharacteristically large building that is inconsistent with the development permissible on the surrounding sites. Rather for the reason articulated by Mr Betros, I accept that the increased setback to the east will be hardly discernible from the street frontage and will not be out of character with the North Cremorne Planning Area character statement in the DCP.
11. The fact is that there is no consistent setback between buildings on this side of the street and for the reason outlined by Mr Betros as summarised the movement of the approved building by some 700 mm will not result in development which is inconsistent with the setback Objectives Q1 and Q4 in the Council's DCP. That is, the modified building will reinforce the characteristic pattern of setbacks and building orientation within the street as much as there is one. In that regard the minimum setback of the building at 1.5 m off the eastern boundary will not be dissimilar to the setback of the large dwelling at No. 20. And while this development is a different use to its neighbour, its building footprint or site coverage of 41% is very close to that permitted under the DCP controls for a dwelling house let alone a flat building.
12. I have considered the objectors' evidence but in this instance I do not accept that these minor changes will generate the impacts that they anticipate. Mr Sprott has planted a hedge of layton greens on his land that adjoins the eastern boundary of the site and no doubt in time the hedge will assist to further protect his privacy on that boundary. The rooms in his house are oriented to the north as are the balconies off the kitchen living area and his bedroom. Importantly the experts agree that the modifications will not generate additional overshadowing of living room windows or private open space between 9am and 3pm, midwinter and that there are no impacts on the view. Ultimately I must assess and weight the evidence against the relevant planning controls in accordance with the EPA Act and in this case an approval of these relatively minor modifications to the approved development is appropriate. The modifications will improve the internal amenity of the development for the future occupants without generating unacceptable impacts for the adjoining development or the street more generally.
13. Accordingly, the Court orders are: 1. The appeal is upheld. 2. The modification application number DA 460/16/4 for consent to modify the development consent DA 460/16 for a residential flat building at 18 Illiliwa Street, Cremorne is approved subject to the agreed conditions of consent filed with the Court on 10 April 2019 and marked Annexure A to this judgment. 3. The exhibits are returned except for Exhibits A and 4.

Amendments 26 April 2019 - Typographical amendments made at [26], [28], [42] and [45]. 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: 26 April 2019