10329 of 2010
4 The unauthorised works include the construction of a concrete balcony with three supporting columns on the front and north western elevation on level 2. In application DA161/2004/4 the applicant sought approval for the deletion of the approved cantilevered steel and glass awning to the front (north east) elevation and the north western elevation at the base of level 2, and for the retention of the concrete structure as an awning, reduced by 1.5m on the south eastern side of the building. The concrete structure as built is approximately twice the vertical thickness of the approved glass and steel awning, and is reduced in length from the Court approved awning along the western elevation by approximately 5m.
10500 of 2010
5 Application DA161/2004/5 sought approval for modifications to the landscaping and fencing at the front of the site and modification of the front stairs and landing adjacent to the front terrace at basement level. The proposed modifications at the front of the site include the retention of an unauthorised front 1m of the garage level, the deletion of the approved deep soil landscaped front setback at the garage level and the provision of a deep planter (500mm soil depth) 9m long x 1m wide x 600m deep to the front of the garage roof; the addition of a palisade fence across the front section of the roof of the garage setback 1m from the street alignment and extending to a height of 1.6m above the garage roof slab, and the erection of a new stone retaining wall to the north west of the driveway. The proposed modifications at the south eastern side of the building include the retention of the unauthorised 1.6m x 5m section of slab adjacent to the south eastern side of the front terrace at basement level and the addition of a 500mm deep planter on it, and the modification of the front stairs and landing adjacent to the front terrace at basement level.
Issues
6 The Council identified a number of issues in the Statement of Facts and Contentions filed in each appeal. Common to both appeals were the contentions that the proposed modifications are not consistent with the objectives and criteria in parts 4.13.3; 5.1.1, 5.1.2, and 5.1.3; and 5.2 of the Woollahra Residential Development Control Plan 2003; that there are adverse visual impacts and view loss; that it is in the public interest to ensure compliance with the Court's orders made in 2008 requiring removal of the unauthorised works; that there is insufficient information concerning the asserted engineering necessity of leaving the unauthorised structures in place; and that there is insufficient engineering information regarding the as built structure.
7 The Council did not press these contentions, and the only issue in dispute identified at the hearing was the matters raised by the neighbouring residents.
Evidence
8 The hearing commenced with a site view, and evidence was given on site by the residents of Nos 36 and 40 Fitzwilliam Road, and 97 Wentworth Road. The site view included a view from 36 and 40 Fitzwilliam Road. The exterior of the building is for the most part unfinished concrete, and paint has been applied so to indicate those parts of the building required to be removed in compliance with the orders made in 2008, or proposed to be removed as part of the modifications sought in these proceedings, which assisted in an understanding of the proposed modifications and their possible impacts.
9 The concerns of the neighbouring residents expressed both at the site view and in their written submissions to the Council were the possibility of the use of the awning as a verandah, privacy impacts for 36 Fitzwilliam Road, the bulk and scale of the dwelling, and fencing along the side boundaries.
10 The expert planners engaged by the parties, Mr Stuart Harding for the applicant and Mr Tony Moody for the Council, provided a written joint report. Mr Harding was present at the site view and outlined the proposed modifications. In relation to the concrete awning the experts agreed that the construction of the awning in concrete instead of the approved glass and steel has a benefit in terms of BASIX regarding heat loads; that it does not create adverse impacts on the adjoining properties or the public domain sufficient to warrant removal; that the side boundary setback on the western side does not comply with the planning controls but that the proposed change of material does not alter the setback compared to the Court approved plans; and that the proposed awning does not have an adverse impact on the street sufficient to warrant removal and this is unchanged with the change in materials; and that the location and size of the awning is acceptable.
11 In relation to the removal of part of the slab and columns at the south eastern side of the dwelling, the experts agreed that the proposed modified works are acceptable, subject to the approved landscaping including 3m high planting within the eastern side setback; the screening of the underside of the slab from view of the adjoining property at 36 Fitzwilliam Road by continuing the external wall of the house with a rendered finish to ground level; and the reinstatement of the boundary fencing.
12 In relation to the proposed modifications to the garage wall and landscaping at the front of the site, the experts agreed that the proposed modifications are acceptable, on the assumption that there is to be a sandstone façade provided to the front wall of the garage facing the street similar to that at 36 Fitzwilliam Road, and landscaping within the Council grass verge.
Consideration
13 Section 96(1A) of the Act provides:
(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) 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
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(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
(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.
Subsections (1), (2) and (5) do not apply to such a modification.
14 The parties were in agreement that s96(1A)(b) is met. When considering the proposed modifications in the context of the development as approved in 2004, based on the material in the Council's Statement of Facts and Contentions and in the bundle of documents, I am satisfied that the threshold issues raised by s96(1A)(a) and (b) are satisfied. The applications were notified and the submissions made by neighbouring residents are before the Court in the Council's bundle of documents.
15 Section 96(3) requires that the matters referred to in s79C of the Act that are of relevance to the development the subject of the applications be considered. The relevant planning controls are those contained in the Woollahra Residential Development Control Plan 2003 (the DCP). It was common ground that while the side boundary setback of the concrete awning on level 2 does not comply with the requirements of part 4.13.3 of the DCP, the modification application presently before the Court makes no change to the setback approved by the Court in 2008. I accept the evidence of the planners that the awning does not create adverse impacts on the adjoining property, and that the reduction along the western side reduces the bulk of the development.
16 In considering the objectives and criteria in part 5 of the DCP, it was common ground that the nearest property of social, cultural or historic interest is Wentworth Church at 32B Fitzwilliam Road, and that the modification applications do not impact on this site. It was common ground that while there is a proposal to include the church building as a heritage item in a draft local environmental plan, the draft could not be regarded as being certain and imminent, and that the physical separation from the subject site means that the proposed modifications would not impact on that site.
17 The Council did not press the contentions relating to compliance with part 5.1.3 relating to streetscape. I accept the evidence of the expert planners, which was confirmed at the site view, that the proposed changes to the garage wall, palisade fencing and planting along the street frontage are consistent with the adjoining property at 36 Fitzwilliam Road and contribute to a cohesive streetscape consistent with the objective at part 5.1.3.
18 Part 5.2.2 of the DCP requires consideration of sharing of views and preservation of privacy and sunlight access for neighbouring residents. The experts agreed that with appropriate conditions for screening, plantings, and fencing along the eastern boundary, the proposed modifications relating to the removal of part of the slab and columns are acceptable. The parties have agreed on conditions addressing the privacy issues, which are discussed below.
19 The Council's Statement of Facts and Contentions included contentions that the applicant had not provided sufficient engineering information to confirm that the concrete awning at level 2 could not be removed so that the glass and steel awning approved by the Court could be erected, or that the proposed removal of part of the slab on the south eastern side of the building could be undertaken without compromise to the slab. At the hearing the Council did not press these contentions on the basis that it was now satisfied on those issues based on further engineering information provided by the applicant.
20 The neighbouring residents raised concerns about compliance with previous consents. The parties were in agreement that the modification applications must be assessed on the assumption that any conditions imposed will be complied with, and that enforcement of the conditions would be a matter for the Council in the exercise of its enforcement powers under the Act.
Conditions
21 In 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685, McClellan CJ held that conditions can be imposed by a consent authority when determining an application for modification, and that the impacts of the already approved development must at least be considered, even if the proposed modification will not exacerbate or diminish some or all of them.
22 The parties have agreed on 6 conditions which they propose should be imposed. Proposed new condition 69 provides:
The awning extending from the balcony on level 2 shall be non-trafficable and have applied to it a pebblecrete surface or the like to ensure that it remains non-trafficable.
23 This condition is proposed to address the concerns of the neighbouring residents that the awning may be used as a verandah. The plans include a balustrade set back from the edge of the awning, and it was apparent from the site view that the part of the awning to remain outside the balustrade is at a lower level than that on the other side. I am satisfied that this condition will assist in limiting the function of the concrete structure to that of an awning as is currently approved to be constructed in glass and steel, and thus address concerns of possible increase in trafficable area, and is appropriate to be imposed.
24 Proposed conditions 67 and 68 require screening of the underside of the slab at the south eastern corner once the proposed modification of the slab and stairs is undertaken by continuing the external wall with a rendered finish, and replacement of the glass in two windows by frosted glass. Proposed condition 65 relates to boundary fencing on both side boundaries and requires provision of a brush box fence to a height of 1.8m. Conditions in the form of proposed conditions 65 and 67 were supported by the expert planners, and Mr Moody supported the improvement to privacy achieved by proposed condition 68. I am satisfied that these conditions ameliorate the privacy and overlooking impacts of the development from both 36 and 40 Fitzwilliam Road, consistent with part 5.2.2 of the DCP, and should be imposed.
Conclusion
25 The contentions raised by the Council have either been addressed in the form of the proposed new conditions, or were not pressed. The matters of concern raised by the neighbouring residents relating to privacy and overlooking and the potential use of the concrete awning on level 2 have been addressed by the configuration of the awning as shown on the plans and as built, and by the proposed conditions. Having considered the relevant matters raised under s79C of the Act, including the applicable planning controls, I am satisfied that the applications to modify development consent DA161/2004, as modified by the Court in 2008, should be approved.
26 The Orders of the Court are:
Matter 10329 of 2010
1. The appeal is upheld.
2. The application DA161/2004/4 to modify the development consent DA161/2004 as modified for the erection of a dwelling house at 38 Fitzwilliam Road Vaucluse is approved subject to the imposition of new conditions 2(b), 65, 66, 67, 68 and 69 included in the consolidated conditions of consent in Annexure A.
3. Exhibits are returned except for exhibit C.
Matter 10500 of 2010
1. The appeal is upheld.
2. The application DA161/2004/5 to modify the development consent DA161/2004 as modified for the erection of a dwelling house at 38 Fitzwilliam Road Vaucluse is approved subject to the imposition of new conditions 2(b), 65, 66, 67, 68 and 69 included in the consolidated conditions of consent in Annexure A.
3. Exhibits are returned except for exhibit C.
Linda Pearson
Commissioner of the Court