The Applicant has commenced proceedings pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the Council's refusal of an application for the modification of a development consent, DA2014/1139, granted by the Court on 8 May 2015 (the Original Consent).
The Original Consent approved alterations and additions to an existing dwelling at 10 De Milhau Road, Hunters Hill (the Site). The Applicant now seeks approval to modify the following aspects of the existing house:
Provide for the enlargement of the south facing eave; and
Enlargement of the approved first floor balcony; and
Modification of the privacy screen along the eastern elevation of the first floor balcony.
[2]
Overview of the background
The Site is zoned R2 - Low Density Residential under the Hunters Hill Local Environmental Plan 2012 (LEP 2012) and is located on the eastern end of De Milhau Road. It fronts the Tarban Creek and accommodates a partially completed two storey brick dwelling, detached garage, in-ground pool and a timber jetty with pontoon into the Creek.
Opposite the Site, on the other side of the waterway, is a large area of public reserve. To the west is the St Joseph's College boatshed, and to the east are single and two storey dwellings - back from the waterway - of mixed architectural styles. The street also contains heritage items.
The Council's Statement of Facts and Contentions (SOFC) dated 29 July 2016 records that building works commenced on the Site in or about early 2014 pursuant to a Complying Development Certificate (CDC). Some of the works, undertaken pursuant to the CDC, caused controversy between the Applicant and his immediate neighbour at 5 George Street. Suffice to say; in May 2014 the neighbour commenced Class 4 proceedings against the Applicant in respect of the validity of the CDC (Dowling V Haralambides [2015] NSWLEC 173). These proceedings were resolved, on terms, by consent orders.
Before that, the Council had issued a stop work order for the development. In response, on 18 August 2014 the Applicant lodged a building application which was ultimately appealed to the Court. These proceeding were also resolved, on terms, by consent orders (10980 of 2014).
On 22 August 2014 the Applicant lodged the DA which in the subject of this modification appeal (Original Consent). The Original Consent was approved by the Court on 8 May 2015 in accordance with an agreement reached between the parties pursuant to s34 of the Land and Environment Court Act 1979 (the Court Act).
The modification application, which is the subject of this judgment, was lodged with the Council on 27 November 2016. It was notified by the Council and two letters of objection were received from the immediate neighbours at 5 George Street and the owners at 7 George Street further along the waterfront.
The Council refused its consent to the proposed modifications on 22 January 2016 and the Applicant appealed the Council's determination to the Court on 29 June 2016.
[3]
Contentions
The Council contends that the appeal should be dismissed for the following reasons:
Firstly, that the development as modified will not be substantially the same development as that approved by the Court and agreed by the parties. The Council submits that the following circumstances in which the Original Consent was granted are relevant:
1. the consent was granted pursuant to as34 agreement following a s34AA conciliation /hearing.
2. the s34 agreement resulted in, amongst other things , design changes which required a reduction in the size of the balconies , the addition of a small privacy screen, and a reduction in the eave overhang;
3. the amended plans that were the subject of the s34 Agreement and in particular the terms of condition 8 of the Original consent.
4. the public interest.
In the alternative, it is submitted that if the Court is satisfied that the proposal satisfies s96AA (1) (a) of the EPA Act , then as a matter of discretion, the Court should not approve the proposed modifications having regard to the LEC Act, the public interest and the circumstances of the case. Detailed particulars said to support this argument are set out in the SOFC at [2.1]. In summary, the Council believes that the Applicant should not be allowed to agitate for the reinstatement of the works he had earlier agreed to delete in the s34 agreement the subject of the Court's orders.
The Council also objects to the construction works proposed below the Foreshore Building Line (FBL). It contends that they increase the built form in the sensitive foreshore area, and create an adverse visual impact when viewed from the water and adjoining properties. In short, the proposal will permanently increase, exacerbate and entrench non-conforming structures below the FBL.
Furthermore, the proposal does not satisfy the:
1. objectives of clause 6.6 of the Hunters Hill Local Environmental Plan 2012;
2. the criteria in cl 6.6 (3) (a) (b) (g) or cl 6.7(1) (b), cl 6.7 (3) (a) (b) of the Hunters Hill LEP.
3. cl2.2 4(a) ,(c) and cl 3.3.3(b) , (c) and (e) of the Hunter Hill LEP ;
4. and, that the proposal is contrary to cl14 (a), (d) 25(a) (b) of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and cl 5.3 and 5.4 of the Sydney Harbour Foreshores Development Control Plan.
The Council contends that the proposal will result in a loss of privacy, amenity and outlook for the adjoining owners at no 5 George Street and is contrary to Objective 4 of the zone and cl3.5.3 of the Hunters Hill Development Control Plan.
The objectors concerns including: adverse impacts on privacy, overlooking, encroachment toward the waterway, overshadowing.
[4]
Expert Evidence
The Court has received a statement of evidence from Council's planning consultant Mr Mark Adamson (Exhibit 3), and the Applicant's consultant, Mr Gary Chapman (Exhibit D). Their joint planning report is (Exhibit C).
[5]
Local Objectors
The owners of the property at 5 George Street, Hunters Hill, Martin and Pauline Dowling are the principal local objectors to this application. I have read their most recent submission, prepared by their architect, Stephen Grech (Exhibit 6) along with their earlier written objection which is located within the Council's bundle of documents.
Mr Dowling addressed the Court orally at the commencement of the hearing from his property and at the Site. He spoke on behalf of his wife who was also present.
In summary, the Dowlings said that they are concerned about a loss of amenity and privacy to the rear of their home generated by an increase in the bulk and scale of the Applicant's dwelling within the 10m foreshore building line. In particular, they raise objection to the enlargement of the first floor balcony as they believe it will provide opportunity for overlooking into their outdoor spa and their main outdoor entertaining area which is located at the rear of their property. They also object to the proposed privacy screen to that balcony level. They do not believe that the screen will do anything to protect their present amenity but instead present as a large dominating structure adding bulk and height to the Applicant's dwelling on the waterfront.
The other written objection received by the Council in relation to the modification application was from the owners of 7 George Street, Vivian and Frank Ng. These objectors live two houses away on the waterfront side from the proposed development. They also raised concern about a loss of privacy caused by the protrusion of the first floor balcony, and an encroachment of building works into the foreshore building line.
[6]
The s34 conciliation conference/agreement
Before I deal with the jurisdictional question raised by s 96AA of the EPA Act and then the merits of the proposal, I need to make plain my view about the relevance of the s 34 conciliation conference that preceded the approval of the development and the views expressed by the parties during that process.
Much of the Council's case rested upon the proposition that the modification application seeks to agitate issues which had been resolved by agreement during the s 34 conciliation process and the building certificate proceedings.
In fact, it is submitted that the building elements which are sought to be modified were "important material and essential elements" of the s34 agreement/development consent, without which Council would never have agreed to an approval, and which the Applicant specifically agreed, would not be modified. It is further submitted that condition 8 of the development consent reflects such an agreement. Condition 8 provides:
A construction certificate is required to be approved and issued by the Council or an Accredited Certifier, prior to the commencement of any works on the site. Construction certificate plans must not show any change or variation whatsoever from the approved plan referred to I conditions 2 above in relation to:
- the balconies to bedroom 2 and 3 (in particular the size of these balconies)
- the obscure glass privacy screen on the eastern and southern eaves
- the current absence of any privacy screen type structure adjacent to the south facing window f bedroom 1
- the obscured glass panelled balustrade to the balcony of bedroomn1
- the landscaped area (as defined in the Hunters; Hill Local Environmental Plan 2102) as shown on the landscape Plans prepared by Irene Thanogiannia dated 2 April 2015 no Lo1, lo2 lo3 lo4 and Revision D"
As I stated at the commencement of the hearing onsite, the modification appeal right is discrete and independent to the s34 process. In short, the Court's disposal of proceedings in accordance with an agreement reached between the parties or their representatives, being a decision that the Court could have made in the proper exercise of its function under s34 (3) (a), does not act as an estoppel to this application to the Court under s 96AA of the EPA Act, or, for that matter, any other statutory entitlement available to the applicant. In my opinion, the fact that the development consent sought to be modified was granted by the Court following a s 34 conciliation conference is entirely irrelevant. As s34(11) makes plain, anything said or any document prepared for the purpose of the conciliation conference is not admissible in any proceedings before the Court, unless the parties agree to that. There is no such agreement in this case.
While I accept that the comparative exercise required by s96 AA can include a consideration of the circumstances in which the development consent was granted these background facts are not determinative of my jurisdiction to deal with the modification application. Nor am I not restricted to an assessment of particular details of the consent but rather required to consider the whole development before and after modification to satisfy myself as to whether the development is substantially the same or not: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No3) [2015] NSWLEC 75 at [174] . In short, the comparative task involves a comparison of more than the physical features or components of the development as currently approved and modified (Moto [56]). The Council's submission that the present application seeks to reverse "essential matters" agreed by the Council in good faith having regard to the Court's s34 process and as such precludes my jurisdiction in this s96AA appeal is misconceived. The modification of essential details within the Original Consent does not necessarily render the modified development "not substantially the same" - the comparative analysis requires both a qualitative and quantitative assessment of the whole development.
The obligation imposed upon the Commissioner by subsection 3(a) to depose of the proceedings in accordance with the decision which is agreed between the parties "at or after" the conciliation conference conducted by the Commissioner, subject to being satisfied that the agreed decision is one open to Court to make "in the proper exercise of its functions"; affords no discretion to the Commissioner to refuse the making of the Order that is sought by the parties agreement. My task is to look at the consent document and what lead to it is not relevant in this case.
[7]
The Building Certificate
The next matter I need to clarify concerns the building certificate appeal relating to the property. The Council has sought to import the substance of that appeal into the present proceedings. Again, this modification application appeal has nothing to do with the earlier building certificate appeal which was the subject of consent orders. In short, I am not concerned about prior agreements or assurances. These historical matters do not preclude a proper assessment of this s 96AA application under the relevant provisions of the EPA Act.
Again, at the highest, these background matters are circumstances of the case under s 79C and of themselves cannot be determinative of the outcome of this appeal, absent a proper merit assessment.
[8]
Jurisdiction and the merit assessment
Now, turning to relevant matters, let me start with the jurisdictional issue as to whether the modified development is substantially the same as the development originally approved by the Court. In order to determine that question I must understand the development approved under the Original Consent and the development as modified before undertaking an analysis of the changes from both a quantitative and qualitative perspective: Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 at [54]- [56], [61] and [64].
The evidence is that the existing dwelling is located below the foreshore building line and forward of the adjacent dwelling at 5 George Street. The Original Consent approved alterations and additions to that existing dwelling house and landscaping on the Site, subject to conditions. The Court Orders (at tab 17 of Exhibit 1) contain the approved DA plans and conditions of consent including condition 8 which I have earlier referred to. These documents are the Original Consent sought to be modified.
The proposed modifications are generally contained in the Plans (Exhibit A) and marked red, although Drawing DA902 Revision L was corrected during the hearing to read, "Obscure glass screen, 1.650 high above FLL" and the Applicant ultimately reduced the length of the balcony by agreeing to a 1.1m setback from the eastern elevation to address the immediate neighbours' concerns about overlooking.
Whether the modified development is substantially the same as that which was originally approved is a question of fact and degree depending on the specific circumstance of each case. It requires a judgment and as I said an overall qualitative and quantitative assessment.
In this case the planners agree that the proposed increases do not alter the use of the site as a residence. In that respect the essence of the development remains unchanged. Additionally, it is agreed that the proposed modifications are limited to certain aspects of the development which are all within the existing building footprint namely: a bedroom balcony, the south facing eave and a privacy screen.
The table set out at [12] of the Applicant's written submissions provides a useful analysis of the "as approved" Original Consent and "as proposed". The modified consent dimensions for the privacy screen , the balcony size and south facing eave:
In my assessment the table illustrates the fact that the net increases proposed in this application are generally numerically minimal (accepting that the balcony length in the table was further reduced by its being setback 1.1m from the eastern façade of the building). While the increase in the width of the balcony is described by the Council as a 125% increase in floor area, such a description distorts the fact that the increase in width of the balcony is, in fact, only 40 centimetres, resulting in a balcony with a width of one metre, which, at best, could accommodate a chair and small side table.
As it presently stands the approved balcony does not correspond to the approved sliding door openings to bedrooms 2 and 3 (refer to plan No DA205). And, as Mr Chapman explained, the increase in length is functionally necessary in order to correspond with the approved openings from bedrooms 2 and 3. Put simply, if the sliding doors from the bedroom are opened to their full extent (as approved) there is no corresponding balcony for a person to step out onto.
The increase in the height of the privacy screen by only .65 millimetres is according to Mr Chapman, a modification which further protects the privacy of the dwelling at 5 George Street. The increase in the south facing eave by 700 millimetres, based on Mr Chapman's evidence, is an architectural feature within the existing building footprint above the lower structure to provide weather protection to the area below.
While the modifications can be described as an intensification of work below the foreshore building line area they are, according to Mr Chapman, not visually significant when viewed from Tarban Creek, the foreshore or the neighbouring residence. Mr Chapman believes that architecturally the extension of the slim design of the eave projection by 700 millimetres on the dwelling is compatible with the architectural form of the approved alterations and additions, and does not result in any increase in bulk of the structure. As stated, all of the proposed modifications are within the existing footprint of the approved dwelling. They will not be readily perceived from the waterway.
Mr Adamson has a different view. He believes that the originally proposed increased balcony is unnecessary and will generate unacceptable amenity impacts for the neighbours at 5 George Street in respect of their spa area. While he accepted that the approved balcony design does not function and something needs to be done he said that, the impacts generated by the proposed modifications outweigh the utility they may provide to the Applicant given suitable design alternatives. He suggested that the balconies should be redesigned to be setback within the areas of the bedrooms rather than be extended as proposed.
Mr Adamson said that he believed that the increased profile of the roof form on the dwelling will present as an extremely large eave overhanging from the waterway. Simply put the additional elements closer to the waterway will add to the bulk impact of the structure from the foreshore.
Accepting that "substantially" has been determined to mean "essentially and materially having the same essence", Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Stein J , I have decided, after the requisite comparison and analysis, that the modified development is essentially or materially the same as that originally approved for the reasons articulated by Mr Chapman.
On any measure of the evidence, it is my considered opinion that the proposed modifications are minor changes within the existing footprint of the building. That said, I appreciate that the neighbours at 5 George Street are concerned about overlooking from the extended balcony into their rear yard. There is no evidence to suggest that the proposed changes will have any impact of the amenity of the property owned by Mr and Mrs Ng at 8 George Street, Hunters Hill.
Mr Chapman does not believe that overlooking will be achieved from the originally proposed balcony with the privacy screen in place. He based his assessment upon the various view line drawings referred to in the evidence. As noted Mr Adamson agreed in part with Mr Chapman's assessment about view lines. He told me that he accepts that the area to the north of the view line will generally be shielded by the proposed 1.65 metres opaque screen and that overlooking from the area of bedroom 1 was not a concern. However, he is concerned about the view line into the area of the existing spa on the adjoining property. He believes it will be visible if a person were to stand on eastern edge of the originally proposed balcony.
In response, the Applicant has agreed to redesign and reduce the length of the balcony by setting it back 1.1 metres from the edge of the eastern elevation of the building. In my opinion, this change together with the 1.65 metre privacy screen will more than satisfactorily addresses any privacy concern perceived by the adjoining owners from someone standing on the eastern edge of the extended balcony. For that reason, I have decided that the conditions should reflect this change and the design should be amended to accord with this balcony setback. I do not accept that it is reasonable or appropriate to require a redesign of the bedrooms, as suggested by Mr Adamson, to locate the balconies within the volume of the existing building. This design change would dramatically decrease the useable space within existing bedrooms. I observed the bedrooms at the view. They are not large and Mr Adamson's design change in my assessment cannot be justified on the evidence.
While the works include construction within the foreshore building line, they do not, based on Mr Chapman's evidence, increase the built form in the sensitive foreshore area such to create adverse visual impact from the water or the adjoining properties. I accept Mr Chapman's evidence that the development by its sighting and design minimises the visual impact. The works are within the existing footprint: cl 6.7 of the LEP.
In my assessment of the evidence, the development as modified achieves the objectives of the R2 Low Residential Zone set out in cl6.6 under the LEP. The development will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, cl 6.6(3(g), and the appearance of the proposed structure from the waterway and adjacent foreshore will be compatible with the surrounding area, based on the evidence of Mr Chapman - which I accept after a view if the site and surrounding area.
[9]
Conclusion
For the reasons stated I have decided to approve of the proposed modifications to the Original Consent granted by the Court on 8 May 2015. The modifications include the changes outlined in red on the plans in Exhibit A, subject to a reduction of the length of the proposed first floor balcony by a 1.1 metre setback from the eastern elevation of the building and the Council's draft conditions in Exhibit 4 (except draft condition 8A).
The Court Orders are:
1. Appeal upheld.
2. Consent is granted to the s96 modification application dated 27 November 2015 to modify Development Consent No. 2014/1139 for alterations and additions to an existing dwelling at 10 De Milhau Road; Hunters Hill granted by the Court on 8 May 2015 in accordance with the architectural plans in (Exhibit A) subject to the conditions of consent attached hereto and marked Annexure 1.
3. The exhibits are returned apart from Exhibit A
………………
Susan Dixon
Commissioner
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Decision last updated: 27 February 2017