Manning v Council of the Municipality of Woollahra

Land and Environment Court (NSW)|2023-05-19

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application No DA69/2022/1 (the development application) for alterations and additions to an existing dwelling located at 301 Edgecliff Road, Woollahra (the site) and the use of portions of the existing dwelling by Woollahra Council (Respondent).
In addition to the development application, the Applicant has submitted a Building Certificate application (BIC 211268) and a s 4.55 Modification Application (DA1958/540/2) which each relate to the site. On 9 May 2023, a Building Information Certificate was issued by the Respondent.

The development application was amended

The appeal was the subject of mediation on 28 November 2022 pursuant to s 26 of the Civil Procedure Act 2005. Following the mediation discussions continued between the parties and on 18 May 2023, following an amendment of the development application, the parties applied for consent final orders.
Pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the development application was amended with the Respondent's consent. The particulars of the amended development application are as follows: 1. Works: reduction in eastern portion of timber deck to create 1000mm width of deep soil landscaping. Rounded cut-back to decking in south-eastern corner. Proposed deep soil planting in western courtyard. 300mm high louvred privacy screen fixed, overlapping and oriented in a southerly direction to top of existing masonry wall. Introduction of a fixed 450mm deep x 500 high planter and 1.5m high frosted glass balustrade to master bedroom eastern balcony both for the full length of the south-eastern edge of the balcony. 2. Use (Ground floor): garage, portico, foyer, media room, kitchen, dining room, rear terrace, and built in gas BBQ. 3. Use (First floor): foyer, bathroom, bed 1 and ensuite, bed 2, bed 3, master bedroom, walk in robe and ensuite.

The Respondent's position and the outcome of the appeal

As a result of the amendments to the development application, the Respondent agrees that the contentions it raised on the appeal have now been resolved and has signed consent orders for the grant of development consent. This conclusion is supported by a statement of evidence from Mr Brett McIntyre, the town planner engaged by the Respondent. In summary he concludes that: "… Contention 1 - Visual Privacy impacts i. Existing balcony is now proposed to remain with privacy measures implemented, being a 450mm deep, 500mm high planter and [a] 1.5m high frosted glass balustrade both to run the full length of the south eastern edge of the balcony. ii The extent of the timber decking is to be reduced, with a 1000mm setback from the rear and side boundary walls. iii A 300mm high privacy screen is to be affixed to the top of the masonry wall to the south-eastern side of the rear timber decking area and along the masonry wall along that portion of the rear boundary from which 303 Edgecliff Road can be overlooked. iv With the changes set out at i - iii above, Objectives O1 and O2 and Control C6 of C2.5.12 Acoustic and Visual Privacy [and] Objective O9 and Control C9 of Part C2.5.6 Open Space and Landscaping of the Woollahra Development Control Plan 2015 (WDCP) are satisfied. Contention 2- Private Open Space and Deep Soil Landscaping i. The area between the timber decking and the masonry boundary walls is now required to be deep soil which addresses the Council's concerns in this respect. ii. The adverse visual amenity impacts of the raised timber decking have been satisfactorily addressed and are dealt with above. Public interest i The matters raised by submitters have been satisfactorily addressed by the amended materials and conditions of consent. (c) It is my opinion that DA No. 69/22, as amended, along with the agreed conditions of consent, now satisfactorily addresses Council's contentions and is capable of approval. …" (Exhibit 2)
The Court's Practice Note Class 1 Development Appeals (the practice note) includes the following in relation to an application for consent final orders in a development appeal at paragraph [99]: "99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary."
Consistent with the requirements of the practice note, the Respondent's Hearing Bundle includes a copy of notice provided to all persons who objected to the proposal. I am satisfied that notice complies with the requirements of the practice note.

The site

The subject site is known as 301 Edgecliff Road, Woollahra (Lot 10 DP 1199381). The site is presently occupied by a two-storey Federation dwelling house with a single garage accommodating a car stacker. The site steps down from the footpath and levels where the dwelling is located. The rear setback area is currently occupied by a raised timber deck with deep soil landscaped areas located along the periphery of the timber decking.

The planning framework

The development application was made with the consent of the owner of the land: s 23 EPA Reg.
The site is zoned R3 Medium Density Residential pursuant to the Woollahra Local Environmental Plan 2014 (LEP 2014). The works and use sought under the development application are permissible with consent in the zone. The objectives of the zone, which are required to be considered in determining a development application, are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
The site is located within the Rosemont Precinct of the Woollahra Heritage Conservation Area (HCA). As required by cl 5.10(4) of LEP 2014, in determining the development application I have considered the effect of the proposed development on the heritage significance of the HCA.
I accept the agreement of the parties that the development application complies with the development standards in LEP 2014.
Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an updated BASIX certificate has been prepared in respect of the amended development application.
Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, I have given consideration to the statements in the development application which confirm that given the current and historic use of the site for residential, the potential for the site to be contaminated is low. I am satisfied the land is suitable for the proposed use.
The Woollahra Development Control Plan 2015 (DCP 2015) applies to the development application. In particular the following provisions at Chapter C2- Woollahra Heritage Conservation Area apply: " Part C2.5.6: Open Space and Landscaping Objectives … O3 To ensure the provision of permeable and semi-permeable areas of open space to assist with stormwater management. … O5 To ensure that private open space areas, plantings, swimming pools, spa pools and tennis courts are designed to minimise adverse impacts on the heritage significance of the area, services infrastructure, the fabric of buildings and the amenity of neighbours. Controls … C2: Deep soil landscaped area requirements for dwelling houses, semi-detached dwellings, attached and detached dual occupancies and attached houses are summarised below: Rosemont: Lots > 350m² = 25% of site area … C9 Stairways and ramps may be used to provide access to outdoor living space on sloping sites. The raising of open space areas to provide level access from a building will not be permitted if there would be an adverse impact on adjoining properties or the heritage significance of the property. … Part C2.5.12: Acoustic and Visual Privacy Objectives O1 To ensure an adequate degree of acoustic and visual privacy in building design. O2 To minimise the impact of new development, which includes alterations and additions to existing buildings, on the acoustic and visual privacy of existing development on neighbouring land. Controls … C6 Windows, balconies, screening devices and landscaping must be located to minimise direct overlooking of the main living areas and private open spaces of neighbouring properties. …

Public submissions

The development application was notified and advertised from 23 March 2022 to 7 April 2022. In response to the public notification, three submissions were received in objection to the development. The concerns raised in the submission can summarised as follows: 1. That a portion of the works nominated in the works appear to be illegally undertaken. The Council is unable to grant retrospective approval. 2. The documentation supporting the development application contains factual errors. 3. The proposed works and use will result in visual and acoustic impacts for adjoining properties, in particular from upper level glazing, balconies and elevated ground level decking. 4. The deep soil landscaping does not comply with the development controls in DCP 2015. 5. That the proposed and/ or existing boundary fencing is inadequate to provide privacy.

Consideration

Notwithstanding the Respondent's position, I am nevertheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made by the local residents, and the public interest.
For the reasons that are set out below, I find that each of the contentions raised by the Respondent have been resolved. I am satisfied that the matters raised by the resident objectors have either been adequately addressed, or do not warrant refusal of the development application. 1. As detailed in the preceding, the development application is compliant with the preconditions and development standards in the relevant environmental planning instruments. 2. I accept and adopt the evidence of Mr McIntyre that as a result of the amendments made the development application is now compliant with the provisions of DCP 2015. 3. The initial assessment of the development application identified two key likely impacts arising from the proposed works and use. Those were privacy impacts to the adjoining properties and a non-compliance with the private open space provisions of DCP 2015. I accept and adopt the uncontested evidence of Mr McIntyre that the amendments to the development application, specifically the inclusion of privacy measures, results in any impact arising now being acceptable. 4. On the basis of the Heritage Impact Assessment which forms part of the development application, I can be satisfied that the proposed development will not have a detrimental impact on the heritage significance of the HCA. 5. The written submissions of objectors were included in the Respondent's Hearing Bundle and admitted as evidence in the proceedings. As required by s 4.15(1) of the EPA Act in determining the development application, I have read and considered the submissions of the public and the public interest. 6. I am satisfied that the amended plans clarify the scope of the development application for consent for works and use. I accept the agreed submission of the parties that the Court has the power to authorise the future use of structures: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 at [40].
It is therefore appropriate to make orders in accordance with the signed consent orders, which are for development consent to be granted subject to the conditions of consent that are agreed by the parties.
The Court notes the agreement of Council pursuant to s 37(1) of the EPA Reg for the Applicant to amend the development application to rely on the following: 1. Architectural plans prepared by James Garvan Architecture (Rev 7) numbered DA100 DA200, DA201, DA202, DA300, DA301, DA302, DA303. DA400, DA401 & DA901 dated 31 March 2023; 2. BASIX Certificate Numbered A280005_03; and 3. Landscape plan Rev 2 Numbered DA01 & DA02 prepared by Wyer & Co dated 22 Dec 2022.
The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA No 69/2022/1 for the alterations and additions to the existing dwelling and use of the following portions of the existing dwelling: 1. Ground floor: 1. garage, 2. portico, 3. foyer, 4. media room, 5. kitchen, 6. dining room, 7. rear terrace, 8. sitting room, 9. built in gas BBQ. 1. First floor 1. foyer, 2. bathroom, 3. bed 1 and ensuite, 4. bed 2, 5. bed 3, 6. master bedroom with walk in robe and ensuite at 301 Edgecliff Road, Woollahra, subject to the conditions in Annexure A.

Commissioner of the Court 22.226604 Annexure A (565863, pdf)

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: 21 June 2023

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Judgment (9 paragraphs)

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