Derums v Leichhardt Council

CASES CITED: Pafburn v North Sydney [2005] NSWLEC 444

APPLICANT Dr S Berveling, barrister

LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor SOLICITORS Pikes Lawyers

JUDGMENT:

• 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10272 of 2010 Yanis Derums v Leichhardt Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Leichhardt Municipal Council (the council) of an application to modify an approval for alterations and additions to an existing dwelling at 7A Johnston Street Balmain East. The Land and Environment Court granted the approval for the alterations and additions on 17 September 2004, subject to deferred commencement conditions. On 9 December 2004 the council issued an operational consent; the deferred commencement conditions having been satisfied. 2 The appeal was subject to a conciliation conference on 12 November 2010 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceedings forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conferences held on 26 August 2010 and 1 October 2010 pursuant to s 34(4)(b)(ii). 3 The modification application seeks a number of modifications although not all modifications are opposed by the council. The areas of contention relate to the modification of the second level floor plan for the rear module of the proposed residential development. The modification sought to change the roof form, increase the floor area by 6 sq m and reconfigure the internal space. The contentions raised by the council relate to: (1) unacceptable increase in bulk and scale through the new roof form, (2) unacceptable increase in floor space ratio (FSR), (3) unacceptable overshadowing, (4) unacceptable loss of privacy, and (5) breach of the Building Code of Australia (BCA).

Roof form/bulk and scale/ FSR 4 The concern over the bulk and scale amended roof form relates to the upper most level on the western elevation where the previously approved roof form springs from a height just above the upper floor level, whereas the proposed new roof form springs from a height of around 1.9 m above the upper floor level. The roof form above the 1.9 m wall angles away from the wall consistent with but at a greater height near the western boundary than the approved roof form. The modification provides a greater setback from the building alignment of the lower floors and different materials are used for the second floor wall than on the lower two floors. The overall height of the proposal is unchanged. 5 Clause 9(2) of LEP 2000 provides for a maximum FSR of 0.7:1. The approved floor space ratio was considerably greater than 0.7:1, although the experts, Mr Goldsmith for the applicant and Mr Turner for the council, did not agree on a figure. From the evidence, the figure ranged between 1.35:1 to 1.5:1 and depending on whether the existing Right-of-Way was included. I did not however understand there to be any disagreement that the additional 6 sq m increased the FSR by 0.02:1. 6 As the original approval breached the FSR development standard, Mr Turner stated the assessment of the FSR (for the modification) should be reassessed against the provisions of cl 9(2) whereas Mr Goldsmith stated that the assessment of the modification should be against the approved plans. 7 In my view, and while the Court needs to consider the development standard in cl 9(2), it would not be reasonable to completely ignore the approval already granted on the site. In practical terms, the proposal could be constructed notwithstanding the breach of the FSR development standard, as presumably the breach was considered acceptable when approval was granted in 2004. It is important to assess any potential impacts created by the additional floor space of 6 sq m in determining whether the additional floor space should be allowed. 8 Notwithstanding Mr Turner's approach to assessing the additional floor space in isolation to the previous approval, I understand he and Mr Goldsmith accepted that an assessment of the additional impact created by the additional floor space was a reasonable approach to adopt in this case. 9 Mr Turner saw the bulk and scale of the modification as being unacceptable because of the increased volume of the roof form and proximity to the adjoining residential properties towards the western elevation. Mr Goldsmith was of the view that the amended roof form provided little change to that approved, and there was no significant change that would warrant the refusal of the modification application. 10 With the benefit of the site view, the photomontages produced by the applicant and an understanding of the proposed modification, I agree with Mr Goldsmith. While the roof form moves closer to the western boundary, the increase is relatively small. It will be noticeable but not to the extent that the bulk, scale and appearance could be seen as unacceptable or overbearing when viewed from surrounding residential properties. The roof form is a relatively recessive element in the western elevation compared to the two storey walls on or close to the boundaries on the north, south and western elevations.

Overshadowing 11 The issue of increased overshadowing was addressed through shadow diagrams prepared by the applicant. These diagrams indicate an additional 2 sq m of shadowing at 9am in mid-winter to the rear yard of 64A Darling Street and around 1 sq m at 11am and 2 sq m at midday in mid-winter on the external glass enclosed stairwell at 9b Johnston Street. 12 Mr Turner states that the additional overshadowing was unacceptable largely because of the excessive FSR. Mr Goldsmith described the additional shadowing as "minimal and of little consequence." 13 On this matter I agree with Mr Goldsmith. The quantum increase in overshadowing is very small and even if the properties currently have sub-optimal solar access, the additional overshadowing would not warrant the refusal of the application. I accept Mr Goldsmith's evidence that the additional shadowing at 9am at 64A Darling Street would be gone by 9.30am and that the additional shadowing to 9b Johnston Street is minimal and also does not relate to a living area in the dwelling or any part of the dwelling where solar access could be seen as being beneficial. Loss of privacy 14 Loss of privacy was seen to be an issue from the slot windows in the proposed bedroom and en-suite towards 64 Darling Street although Mr Goldsmith and Mr Turner agreed on a condition to address the privacy issues to these windows. 15 Having found that the additional 6 sq m of floor area does not create any unacceptable amenity impacts on adjoining properties, there is no valid planning reason to refuse the application based on the planning principles in Pafburn v North Sydney [2005] NSWLEC 444 Building Code of Australia 16 Mr Turner also raised non-compliance with the BCA although he accepted that his concerns related only to the "deemed to comply" requirement for room height. He acknowledged that the BCA provides the opportunity for other solutions based on satisfaction with the relevant objectives for the specific BCA requirement. In any event, Mr Goldsmith was confident that this issue could be addressed given that there was BCA certification for the original plans that have a similar room height to that proposed in the modification application. I accept Mr Goldsmith's evidence on this contention. Orders 17 The orders of the Court are: 1. The appeal is upheld. 2. The application to modify D/2003/623 for alterations and additions to an existing dwelling at 7A Johnston Street, Balmain East is approved subject to the following modifications: 2.1 Condition 1 of the Conditions to consent D/2002/623 be amended to read as follows:

The development shall be implemented in accordance with the details set out on the drawings by Connor and Solomon Architects entitled "Hybrid Scheme" numbered: DA_00 dated October 2010, Rev C DA_01 dated October 2010, Rev B DA_02 dated October 2010 DA_03 dated October 2010, Rev C DA_04 dated October 2010, Rev C DA_05 dated October 2010, Rev C DA_06 dated October 2010, Rev C DA_07 dated October 2010, Rev C DA_08 dated October 2010, Rev C DA_09 dated October 2010, Rev C

together with the landscape plan Rev B dated 27 February 2004 by Michael Siu, as amended, and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder ( .2.2 Condition 2A of the Conditions to consent D/2002/623 be amended to read as follows:

Amended plans and specifications incorporating the following amendments must be submitted with the application for a Construction Certificate: (a) The width of the westernmost skylight be reduced from 1,000mm to 900mm. (b) No consent be granted for any lift overrun structure protruding above the building and the method of lift operation shall be specified in the construction certificate. (c) The two skylights on the west elevation part of the roof shall be openable to permit ventilation of the proposed bedroom and en-suite on the second floor. The two windows as shown on the west elevation at the second level shall have obscure glazing and be of casement construction (with an opening no greater than 300mm) so as to avoid overlooking toward 64A Darling Street. (d) Deleted (e) Deleted 3. The exhibits are returned.

      G T Brown
      Commissioner of the Court

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.