O'Rourke v Waverley Council

Judgment 1This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the determination by the respondent Council of a review under s 82A of the Act of its refusal of a development application for internal alterations to Unit 7, 228 Campbell Parade Bondi Beach (the site). 2The site is located on the northern side of Campbell Parade between Wairoa Avenue and Ramsgate Avenue, Bondi Beach. The building comprises a three storey residential flat building contain 12 units, and parking in two single garages on the street. There are four units on each level of the building, and Unit 7 is located on the rear, northern, side of the building facing Ramsgate Avenue. 3The 12 units in the building originally adopted a similar configuration, being two bedrooms, with the larger bedroom and adjoining sunroom on the southern side of the building for those units facing Campbell Parade or the northern side of the building for those units facing Ramsgate Avenue, and the living area adjoining the kitchen which is at the entrance to each unit off the central stairwell. The layout of Unit 1 has been altered, pursuant to development consent granted in 2009, to relocate the living area to the southern side of the building fronting Campbell Parade, while retaining two bedrooms. 4In 2010 the applicant undertook works to Unit 7 to create a third bedroom and to relocate the living area to the northern side of the building. The effect of the reconfiguration of the apartment was that the living area and sunroom of Unit 7 now adjoins the bedroom of Unit 8 and is above the bedroom of Unit 3 and below the bedroom of Unit 11. The former living room area between the kitchen and the first bedroom was converted into two bedrooms, with access to the kitchen from a doorway constructed from the hallway. 5The Council issued a Notice of Intention to give an Order on 17 November 2010 for works unlawfully carried out, being the conversion of the unit from two to three bedrooms and alteration of the internal configuration of the unit without prior consent. The applicant lodged Development Application DA 23/11 on 21 January 2011, seeking consent for "Internal Alteration". In response to a request from the Council, the applicant provided a report from a structural engineer dated 29 April 2011 which states that the hallway/kitchen dividing wall is a non load bearing wall, and a copy of a lease of the premises for a six month period. 6The Council's Development Control Committee refused consent on 14 July 2011 on the basis that the works create a unit configuration and density that provides for unreasonable noise and density impacts on adjoining residents. The report from the Building Development Unit, which had recommended approval of the application, noted that the internal works had already been carried out and that retrospective approval could not be granted, however recommended that no further action be taken and a Building Certificate application should be lodged. 7The applicant sought a review under s 82A of the Act, on the basis of amended plans which indicated that acoustic insulation would be installed in the bathroom, carpet installed in the lounge room, and that a layer of gyprock would be installed within the lounge room on the common wall with Unit 8. The Council's Development Control Committee refused the review application on 31 January 2012, on the basis of adverse acoustic and density impacts, and poor amenity of the proposal. The report to the Development Control Committee noted that the majority of the internal works had already been carried out, with the exception of the acoustic treatment. That report also noted that the site is identified as an item of heritage significance and within the extension of the Bondi Beach Heritage Urban Conservation Area; while the proposal generally satisfied the provisions for being exempt development, the site was a heritage item and the proposal involves the reconfiguration of rooms. 8The Council's Statement of Facts and Contentions raised as a contention that retrospective approval could not be granted and that accordingly there was no power to consent to the development application. By the commencement of the hearing, the building works had been removed, and the Council did not press that contention. 9The issues in dispute relate to the impact of the re-configuration of the layout of the unit on the amenity for residents in the building, in particular in relation to acoustic privacy. The Council contended that if development consent is granted a condition should be imposed that the unit not be occupied by more than six people at any one time and not be let or sublet for a period of less than six months. 10The hearing commenced with a conciliation conference under s 34 of the Land and Environment Court Act 1979. The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented to Pearson C determining the matter.

Consideration 21The proposed development comprises internal works to Unit 7, including the construction of a doorway into the kitchen from the hallway, the erection of walls to create two bedrooms in the area originally used as the living area, and reconfiguration of the layout of the unit by location of the living area in what was originally the main bedroom. It was common ground that the structural works do not impact on load bearing walls. The proposed development also includes the works to ameliorate acoustic impacts, including carpeting the living room and sunroom, and the construction of an upgrade to the common wall with Unit 8 to the hallway/living room junction consisting of 51 mm stud with 16mm plasterboard sheeting and 75 mm thick insulation to the stud cavity. Based on the evidence in the Council's assessment report for the s 82A review the site is a heritage item, and accordingly the proposed development is not exempt development and requires development consent. 22The evidence of the neighbouring residents was based on their experience in the 18 months since the applicant undertook the work for which he now seeks development consent. In Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 Preston CJ held that while past unlawful use is not relevant of itself, it may be relevant in evaluating likely impacts and their acceptability and any mitigatory measures: 38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 23The evidence given on site by neighbouring residents concerning adverse impacts was consistent with the written submissions made in response to the original development application and the s 82A review (exhibit 1, tabs 10 and 16). Those impacts arise in part from the pattern of occupation of Unit 7, with up to 7 to 8 people living in the unit, large numbers of people gathering late at night in the living room playing music and smoking, moving furniture around, accumulation of rubbish, people buzzing for access to the building late at night, and security issues. The impacts also arise from the reconfiguration of Unit 7, including noise of people walking along the hallway between the kitchen and the sunroom used as a dining area, and use of the living area adjacent to and above and below the main bedroom of adjoining units including noise transmission from the windows. 24Based on the evidence of Mr Taylor, the age of the building and its construction mean that it does not meet BCA requirements in some respects. In particular, the timber flooring enables transmission of impact noise to the unit below and the unit next door. The evidence of neighbouring residents was that they are aware of this issue and take steps, such as removing shoes when they enter their units, to minimise noise transmission. The planning experts accepted the conclusions of the acoustic assessment undertaken by Mr Taylor, and based on that evidence, I am satisfied that the carpeting proposed will significantly reduce transmission of impact noise, and meet the BCA acoustic requirements. While Mr Taylor was of the opinion that the existing wall construction already meets BCA requirements, I accept his evidence that the installation of plasterboard with a gap and insulation together with the carpeting will ameliorate noise impacts to the adjoining Unit 8. 25The evidence of Mr Taylor was that the proposed ameliorative works will address impacts of noise transmission to Units 3 and 8 through the floor and common wall. While it may be accepted that the other noise impacts reported by the occupants of other units in the building are not matters addressed in the BCA acoustic controls, I accept the evidence of the neighbouring residents and find that during the period when Unit 7 had three bedrooms and the living area on the northern side of the building, there were significant impacts on amenity. Based on the evidence of the objectors, those impacts arose as a consequence both of the relocation of the living area, and as a consequence of the number of people occupying Unit 7. 26The acoustic evidence is that the proposed development can achieve compliance with the BCA controls in relation to transmission of noise. However, that is only one aspect of the DCP controls. The DCP addresses acoustic privacy (in 5.6.3) by controls both (a) to reduce transmission of noise internally, through compliance with the minimum standards of the BCA, and (b) to minimise noise transmission between apartments, by locating like uses together. The design of the building, before the alterations to Unit 1, complied with 5.6.3(b). While the reconfiguration of Unit 1 has relocated the living area of that unit to the southern side of the building, I accept that as a ground floor unit with no unit below it, and with views to the beach from the approved living area, the context is different to that in the case of Unit 7. The alterations to Unit 1 did not include addition of a third bedroom. The proposed development involves the reconfiguration of the living area to provide two bedrooms, with no dining area other than the relocated living area and sunroom at the other end of the apartment from the kitchen. While I agree with Mr Betros that the internal amenity of Unit 7 would be improved by having the living area at the northern side of the building with good cross ventilation, I also accept the evidence of Mr Nash that in its original location the living area gets direct sun and has a good outlook to the northwest. 27While not determinative, the DCP must be considered as a fundamental element and a focal point of the decision making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. I am satisfied that the location of the primary living and dining area of Unit 7 above, below, and adjoining a bedroom of three units, with the consequent transmission of noise from the living area through the windows, does not comply with the DCP controls in 5.6.3, or meet the objective in 5.6.1. Further, based on the evidence of the objectors as to past acoustic privacy impacts, it would adversely affect the amenity of other residents of the building, which is not consistent with the zone objective (b). On that basis, consent should be refused. The addition of a third bedroom, and a consequent increase in the number of occupants, would, based on the evidence of the objectors, exacerbate these acoustic privacy impacts. 28The Council submitted that if consent is granted a condition should be imposed limiting the number of occupants to no more than six. Such a condition would be contrary to the special by-law limiting the number of occupants to four, added by resolution in September 2011 (exhibit 3). During his closing submissions the applicant raised the possibility of a challenge to the validity of this by-law. In written submissions after the hearing the parties agreed that, in the absence of a provision under s 28 of the Act in the LEP, both a development consent and the by-laws could operate with respect to the premises and the occupier of the premises would need to comply with both. My conclusion that the development application should be refused means that it is not necessary for me to determine whether a condition inconsistent with a by-law which, on its face, applies to the premises could, or should, be imposed.

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