Nader v Sutherland Shire Council

Nader v Sutherland Shire Council - [2009] NSWLEC 1064 - NSWLEC 2009 case summary — Zoe

[17]

6 The agreed position was that the modification application should be considered as a first step as the findings would likely determine the findings in the other two appeals. The modification application 7 The following modifications are sought by the applicant (Exhibit A): A. Second floor (roof top level) A.1 Area - allow the lift shaft room to have external dimensions of 7.48 m x 6.09 m with an internal area of 37.9 sq m. The approved external dimensions 5.9 m x 4.6 m with an internal area of 25 sq m. The Class 4 Orders required partial demolition to allow external dimensions of the 7.48 m x 4.35 m and internal area of approximately 25.9 sq m. A.2 Height - allow the lift shaft room to 2.85 m above the roof level at the front rising to 3.17 m at the rear. The approved height is unclear and is addressed later in the judgement. The Class 4 Orders required the demolition of the existing structure over 2 m above the first floor ceiling slab. A.3 Openings - the lift shaft room was approved with a single 2.08 m high door on the south elevation. The room was constructed without the approved door but with a double set of 2.4 m wide glass sliding doors on the east elevation. The Class 4 Orders did not require any alterations to these openings. The modification application seeks a new window 2.14 m wide and 2.17 m high to provide height to the stairwell in the west elevation in addition to the retention of the existing windows. A.4 Architectural improvements - allow an architectural feature comprising an external concrete beam supported by rendered masonry columns to make the external appearance of the rooftop room more compatible with other approved architectural features of the house. A.5 Use of the lift shaft room - allow part of the rooftop area as a lift and for access via the internal stairs and lift to the roof from within the dwelling. A.6 Air conditioning room - allow the room built without approval to remain. The room has external dimensions of 2.415 m x 3.275 m, a height of 3.3 m and an external area of 7.1 sq m with access through one existing single door 2.08 m high and 0.8 m wide to remain as an air conditioning room but with the roof level reduced from 3.3 m to 2.3 m. The Class 4 Orders required the demolition of the air conditioning room. A.7 Roof terrace - allow part of the roof area for a roof terrace on two sides extending to the parapet at the front end to a planter box to the north. Provide a glass balustrade to the top of the parapet to a height of 1 m above the finished terrace level to enclose the terrace area on all other open sides. Provide a planter, 0.6 m deep and 1.35 m wide, to separate the terrace from the northern parapet. The approved use of the rooftop area is unclear and is addressed later in the judgment. A.8 Parapet - reduce the parapet as constructed, to the approved depth of 1.15 m (including slab thickness). A.9 Roof slab - allow the roof slab at the height as constructed. B. First Floor (bedroom level) B.1 Privacy screens - provide two privacy screens on each side of the front elevation to minimise overlooking of adjoining properties. B.2 Height- allow the floor to ceiling height as constructed. C. Ground Floor (living area, pool and terrace level C.1 Privacy barrier - allow a privacy barrier adjoining the pool terrace. The existing welded steel frame for a stone clad fence is to be cut back and stepped down progressively from the south-west end to the front of the pool to reduce bulk and visual impact while maintaining the privacy of the adjoining owners. C.2 Height- allow the floor to ceiling height as constructed. C.3 Openings - allow modifications in opening sizes as constructed in the north-west corner of the dining room and new sliding door in the western elevation as constructed. C.4 Toilet/shower - allow modified location of the toilet and shower and a consequent changes to kitchen, toilet entry door and window as constructed. C.5 Terrace/pool - allow for additional terrace area along south side of pool and larger front terrace and longer pool as constructed. C.6 Stabilisation of rock face - allow for modified method of stabilisation of the rock face at the rear of the house as constructed. C.7 External stair - allow for external stair to link driveway to the north side of the terrace on the ground floor as constructed. D. Basement (entry lobby and garage level) and mezzanine levels (services) D.1 Height- allow the floor to ceiling height as constructed. D.2 Excavated area - allow for enlarged excavation area and construction of additional storage space, including two smaller store rooms and shower/toilet below the services mezzanine as constructed. D.3 External stair - allow for external stair to link driveway to the north side terrace on the ground floor as constructed. D.4 Garage windows - allow for the inclusion of high-level windows above the garage door as constructed. D.5 Mezzanine space - allow for additional mezzanine space in the south part of the basement area as constructed. This area accommodates services and a rainwater tank. D.6 Stair and the lift shaft - allow for modified shape from circular to rectangular of the stair and lift shaft through the entire building as constructed. The assessment approach 8 Section 96(2)(a) requires the Court to be satisfied that the consent as modified, is substantially the same development as the development for which consent was originally granted. There was no disagreement between the parties that this requirement is satisfied.

[24]

19 The applicant maintains that the approval also includes a further plan. This was tendered as Exhibit F and contains additional details on the roof area. The lift shaft room is not dimensioned but scales around 5.0 m x 6.2 m and a height of around 2.2 m. Exhibit F also contains an additional cross-section C-C. The plan contains a similar notation to the plans identified in the previous paragraph however it is unsigned. There are additional stamps on this plan identifying the plan as a supplementary plan and being received by the council on the 14 October 2003, a stamp from an Accredited NSW HER Assessor dated 20 June 2003 and an undated stamp from Yellamo Building Certifiers Pty Ltd identifying the Construction Certificate as No 37/2004. 20 I am satisfied that the further plan provided by the applicant does not form part of Development Consent DA 03/0981 for a number of reasons. Firstly, it is unsigned whereas the two sheets relied upon by the council are signed. Secondly, the further plan contains notations that are not contained on the two sheets suggesting that the further plan may be part of the Construction Certificate approval. Thirdly, the two sheets do not identify a location for cross-section C-C, which support the position that the further plan may be part of the Construction Certificate approval. Fourthly, there are a number of inconsistencies between the Exhibit 4 and Exhibit F plans such as the size of the lift room and relative levels that again support the council's position that the further plan does not form part of Development Consent DA 03/0981. The council planning requirements 21 LEP 2006 and Zone 1 - Environmental Housing (Environmentally Sensitive Land) provide a number of relevant considerations in relation to the desired appearance of development on the site. Clause 33 provides that a building must not comprise more than 2-storeys, a height of 7.2 m, as measured from ground level to any point on the uppermost ceiling in the building and a height of 9 m, as measured from ground level to the highest point of the roof of the building. The proposal satisfies only the last requirement.

[37]

37 As I understand, there was a general agreement between Mr Layman and Ms Pinfold that by restricting access to certain areas on the roof an acceptable level of protection for adjoining properties is provided if maintained in the manner proposed although Ms Pinfold still maintained her objection to the use of this area as a terrace. Notwithstanding the applicants proposal to limit the use of this area, I am not satisfied that it should be used as a terrace for a number of reasons. Firstly, the acceptability of the area relies totally on compliance with measures proposed by the applicant and while I must assume that there will be compliance; any non-compliance, whether by chance, lack of supervision or lack of knowledge of the reasons for the restrictions, could impact significantly on the amenity of the adjoining properties. Secondly, policing of the requirements by the council would be very difficult, particularly for spontaneous occurrences. Thirdly, the available area on the roof is relatively small when compared to the particularly large areas available on the decks on the lower two levels. Fourthly, the roof area does not provide any views that are currently not available from the lower two level terraces (see the planning principle in Super Studio v Waverley [2004] NSWLEC 91). Fifthly, the occupation of the roof area gives the impression of an additional level of occupation for the dwelling. Sixthly, roof top decks are not a feature of residential development in the area and as such the proposed rooftop deck would be an uncharacteristic feature of the locality. Seventhly, the modification application provides additional area to the principal terrace located on the ground floor level by extending the frontage of the terrace by some 1 m. Findings - privacy screens (B1) 38 Two new privacy screens are proposed on each side of the front elevation of the first floor level. As I understand the evidence of Mr Layman and Ms Pinfold, these screens are unnecessary and as such can be deleted. I agree with their conclusions. Findings - privacy barrier (C1) 39 There is no doubt that a privacy screen between the pool deck area and the adjoining property is required. A metal-framed structure is currently partly constructed to provide for a stone clad fence. The modification application seeks to cut back the metal-framed structure and step this structure progressively down from the southwest end to the front of the pool to reduce bulk and scale. I accept that, in principle that this is an appropriate course of action although I am not satisfied that sufficient detail has been provided with the modification application to properly assess the impact of the fence on the adjoining property.

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Parties

Cases Cited (4)