Palmer v City of Sydney Council

Land and Environment Court (NSW)|2011-10-26|Before: Ms J

The applicant's position 35Ms Hewitt for the applicant contends that s 96 of the Act is a facultative mechanism to facilitate appropriate modifications to development applications. She cites Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 at [55]-[56]. 55 The requisite factual finding obviously requires a comparison between the development as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56 The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 36Ms Hewitt submits that the change from large windows to doors of the same width and a small balcony is not materially or substantially different to the original approval. Whilst the roof has changed it is not particularly apparent from any viewing point because the skillion roof was designed to sit behind the parapet. The overall height, FSR, overshadowing, setbacks and streetscape impacts have not been altered. While there will be a change, it is quantitatively very small and, in qualitative terms, insufficient to be considered as substantially different. She contends that the impacts have to be significant to warrant consideration as substantial. She also submits that the proposed reduction in size of the balcony to 3m 2 and the setback of 1.2m enabled by the SSDCP further reduces any potential negative impacts on the amenity of neighbouring properties. 37In regards to the noise and privacy concerns Ms Hewitt contends that it is a small deck off a bedroom that will be screened and will therefore improve privacy. She considers that in the context of a densely populated area noise is to be expected and the use of the deck will not adversely add to this. She asserts that the deck is designed and located not to adversely affect amenity or compromise the appearance of the building and thus complies with cl 1.2.5 of the SSDCP. 38In regards to the amenity it will afford her client, she argues that the council accepts that the site does not comply with the controls for open space, and that this fact should support the approval of the deck. Similarly, Ms Hewitt contends that as solar access to the courtyard is limited, the upper deck will enable access to midday winter sun. 39In conclusion, Ms Hewitt submits that the proposal complies with the zone objectives, the many existing upper level decks are part of the character of the area, and that a deck on this dwelling will not set a precedent given the context of it being a modern and contemporary infill development.

The respondent's position 40In regards to the s 96 issue, Mr Singh contends it would be a mistake to take the position that the proposal is still a house and therefore is substantially the same development. He also cites Moto Projects at [56] and contends that consideration of context is essential. In addition, he cites Talbot J in The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244 at [29]. 29 It is not appropriate, in my opinion, to attempt to confine the consideration of the extent of changes to the context of the whole building,..... The focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development. 41In this regard, Mr Singh contends that the proposed modification to the upper rear level of the dwelling is a critical element of that dwelling and must be considered in the context of the site's location in a heritage conservation area and being in the vicinity of heritage items. He submits that both the 'vicinity' and 'infill' controls in the SHDCP require any development to be designed and sited to protect the heritage significance of the item and compatible with the proportions of neighbouring buildings. 42Mr Singh contends that what was originally approved was a window and a non-trafficable roof. He submits that there were several early attempts to develop the site and the final design was approved because it was a sympathetic yet contemporary design that was deemed to be compatible with the front and rear facades of the adjoining heritage items. He considers that the 'boxier' roof above the living room is a contemporary element but is nevertheless a roof. The proposal will extend the outdoor recreation area and result in an addition that adds unacceptable bulk and visual impact. While he accepts that privacy problems will be overcome by the screening, this in itself does not alter the council's contention that this is a substantial change to the original development. 43With regards to the applicant's arguments concerning the need for the deck, Mr Singh contends that the starting point is cl 1.2.5 of SSDCP in that upper level decks are generally considered inappropriate at the rear of dwellings unless there is inadequate ground level open space and the amenity of adjoining dwellings is maintained. In this regard he contends that the Development Application Assessment for the original development determined that there was in excess of the minimum 16m 2 and 4m x 4m dimensions of rear private accessible open space and was therefore deemed to comply as was the solar access to that open space. He asserts that while the control states 45m 2 for open space, this is not realistically achievable in the vicinity. He argues that about 1/3 of the site is ground level open space and therefore this does not justify the construction of a rear deck that will result in unacceptable visual impacts and will potentially create an undesirable precedent.

Findings 44Section 96(2)(a) of the Act relevantly states - A consent authority may...modify the consent if 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... 45In this instance, the original approved development was for the construction of a new two storey, two bedroom residential dwelling on a vacant site. The relevant conditions of consent required the dwelling to be constructed in accordance with the approved plans and, amongst other things, the roof of the ground floor to the rear to be non-trafficable at all times. The approved plans clearly show a sloping metal skillion roof over the rear of the living room extension at the rear of the dwelling and a sliding window 1500mm high x 2300mm wide with external timber plantation shutters. 46Both solicitors have referred to Moto Projects and the need for a comparison having regard to the qualitative, as well as quantitative, differences between the developments and the context and circumstances in which the development consent was originally granted. 47It is my opinion that the proposal for an a upper floor deck accessible through full glass double doors to be screened on three-sides by a 1.5m glass balustrade and on one side by planter boxes planted with 1.5m high Lillypillies is a significant departure from the original approved development. Therefore I am not satisfied that the proposal is substantially the same development as the development for which the consent was originally granted . I agree with Talbot J in Satellite Group that is appropriate in the circumstances of this matter to consider the upper rear deck to be a 'critical element' of the overall development; the particular circumstances being the site's location adjacent to a heritage item and in the vicinity of many more, with the attendant impacts on the visual integrity of the heritage conservation area. 48The proposed deck and associated privacy screens materially change the approved development. The qualitative consequences of the modification would be to change the acknowledged sympathetic design aspects of the original approved development and create a structure that, in my view, is obtrusive and incompatible with its heritage setting. 49Even if I accepted that the proposal was substantially the same, I am not convinced on the merits and other matters to be considered under s79C of the Act. In regards to the applicant's argument that the deck is necessary to achieve better compliance with the area of private open space set down in cl 1.2.2 SSDCP, I agree with the council's assessment of the original development application that the ground level courtyard is acceptable given the overall size of the site. I also agree with Mr Girvan that it would be practically impossible for almost any property in the immediate locality to comply with 45m 2 of ground level private open space given the very small average lot size. Indeed, the site is one of the largest lots in the block and has significantly more ground level open space than any other lot in the block. The open space is designed to be a fully accessible extension of the ground floor living area. The proposed modification is a balcony off a bedroom and not a living room and therefore its use as private open space would appear to be secondary and limited in its value. 50Mr Darroch cited the decision by Tuor C in Yazbek to approve a roof top terrace in order to provide private open space. The proposal included the use of 1.8m high glass balustrades and landscaping to minimise the visual and acoustic impacts to nearby residents. In that decision, the Commissioner considered the amenity of the occupants and that of the neighbours and found the roof top terrace to be acceptable subject to conditions restricting its use. However, the circumstances of that case are distinctly different to the circumstances of the site subject to this appeal. The Yazbek site was a converted substation that occupied the entire site and therefore no opportunity existed for open space at ground level. As already noted, at least 30% of the site in Little Napier Street is accessible ground level open space. 51I am similarly unconvinced about the weight to which Mr Darroch's arguments for the need for some private (screened) open space to take advantage of the winter sun can be given. I am not satisfied that sunlight to a small balcony off a second bedroom for an unquantified duration for a limited part of the year justifies the proposal. It would seem to me that the landscaping required for privacy would inevitably limit the transmission of sunlight. The approved rear courtyard is north facing and, not withstanding the proximity of the nearby dwellings and the street trees in Albion Street, in the context of its surroundings would appear to receive adequate solar access. 52Therefore in regards to 1.2.5 in SSDCP concerning upper level decks, I agree with the council that while the proposed privacy screens and landscaping would help in restricting direct overlooking and assist acoustically, I do not consider that the existing ground level private open space is so limited or constrained that it establishes the threshold of need for an upper level deck. 53Whilst minimising impacts on residential amenity are one component of the objective pertaining to the design and location of upper level decks, it is equally important that the design does not compromise the design of the building. Mr Darroch contends that the proposed modification reads as a transitional element between the flat facades of the heritage buildings to the west and the balconies on the two contributory buildings to the east and therefore does not comprise the design. With respect to the upper level decks on the buildings to the east, the fact remains that these balconies were approved (even if not immediately constructed) in the early 1980s prior to the current SSLEP, SSDCP and SHDCP. While Mr Darroch also pointed out other examples of upper level decks and balconies in the vicinity, some approved more recently, each case must be determined on the facts and circumstances relevant to the particular proposal. 54The other relevant controls are found in the SHDCP and the heritage provisions in cl 22 of SSLEP. I find that the proportions and materials of the proposed deck and screening do not respect and compliment the alignment and finishes of the heritage items to the west and therefore the vicinity controls in cl 2.1 and 2.2 of SHDCP are not satisfied. For the same reasons, I am not satisfied that the relevant objectives and provisions of Part 4 of SHDCP in regards to the character of the heritage conservation area are met. While I agree that infill development should not necessarily copy or replicate neighbouring heritage buildings, it nonetheless needs to be sympathetic in its bulk, setback, materials and so on. It is acknowledged that the original design achieved an acceptable balance between contemporary features and harmony with the heritage items. I find that the proposed modification will compromise that balance and result in unacceptable visual bulk and form that will not be sympathetic to the materials and form of the heritage items. 55In this regard, non-compliance with those elements of the SHDCP leads to non-compliance with clauses 12(a), 12(c) and 22(e) of the SSLEP, and on this basis, consent cannot be granted for the carrying out of the proposed development. 56With respect to the applicant's argument that creating additional private open space will improve the amenity for the occupants of the dwelling and as such should be given as much weight as the needs of other nearby residents, I consider the private interests of the applicant do not outweigh public interest in retaining the integrity of the conservation area and adjoining heritage items.

Conclusion 57I cannot be satisfied that the proposed modification is the substantailly the same as the development for which development consent was originally granted on 17 June 2008 by the Council of the City of Sydney. As a consequence, I am satisifed that I do not have the power to approve the modification on the merits. 58However, if I were found to be wrong in this conclusion, on a merit assessment I am satisfied that the proposal does not comply with key provisions of the SSDCP and the SHDCP and does not satisfy the relevant zone and heritage objectives in the SSLEP, and on this basis, the modification should be refused.

Orders 59The Orders of the Court are: (1)Appeal 10730 of 2011 is dismissed. (2)Modification application D/2008/128/C for the inclusion of a rear first floor deck with a new balustrade and associated roof modifications for 16 Little Napier Street Paddington is determined by refusal. (3)All exhibits except 1, 4, 6 and C are returned.

J Fakes Commissioner of the Court 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: 04 November 2011

Planning evidence 26Mr A Darroch gave planning evidence for the applicant and Mr M Girvan for the council. The planners prepared a joint report. 27Mr Darroch's position is that the existing open space at ground level does not comply with the controls in the SSDCP and therefore, in order to improve compliance with that control, the first floor deck is permissible and appropriate. In addition, he contends that given the poor winter solar access to the ground floor open space and the extent of overlooking of that space, the first floor deck will provide a private space that will receive better solar access and thus provide greater amenity for the residents of the dwelling. 28In response to the concerns regarding privacy and noise, he contends that the 1.5m opaque glass panels and the landscaping will provide a better level of privacy than the original approved dwelling. He argues that the privacy is enhanced for the applicant and for the neighbours. Mr Darroch considers panels 1.5m high to be sufficient to prevent direct overlooking. He contends that the test in planning is impact and in this case, the proposed screening and balustrading will minimise or improve the impact on neighbours. In his individual statement of evidence, Mr Darroch cites Yazbek v Council of the City of Sydney [2010] NSWLEC 1210 as an example of the appropriateness of the option he proposes. 29In regards to issues raised about bulk and compatibility with adjoining heritage items, Mr Darroch argues that the primary form of the building will not change and the deck will be read as another layer. He considers the heritage conservation area contains many examples of upper level decks and many other elements and accretions that add to the interest of the area. In his opinion, the intent of the DCP is to protect the form of the buildings but not prevent other layers. Mr Darroch contends that the building was designed to transition between the heritage buildings to the west and the contributory buildings to the east. The rear of the building has the same upper wall setback as the heritage items but a clearly very different, and appropriate, roof structure above the living area. However to the east, the adjoining properties have upper level decks and balconies. Therefore, he contends, an upper level deck is not incompatible. He also argues that introducing landscaping onto that roof is positive and will improve the amenity of the area. 30Concerning the key contention as to whether the proposal is substantially the same as the original approved development, Mr Darroch is of the opinion that the change is minor, does not change the form of the building and therefore it is substantially the same. 31While Mr Girvan accepts the private open space control in the DCP gives an area of 45m 2 he considers that this could not reasonably be attained on a site of about 87m 2 let alone the smaller adjoining blocks. He is of the opinion that the approved ground level courtyard is appropriate in the circumstances, is much larger than the surrounding courtyards and meets the required outcomes for private open space. He also contends that the courtyard is north facing, has ample access to ambient light if not to direct winter sunlight and has a better level of solar access than adjoining properties. In this regard he contends that the upper level deck is unnecessary and does not meet the threshold in cl 1.2.5 of the SSDCP. Mr Girvan also considers that the rear balconies on the adjoining properties to the east are not appropriate precedents as they were approved in 1980 prior to the current controls. 32In regards to privacy and acoustic concerns, Mr Girvan considers that the proposed 1.5m glass balustrades could still be looked over and that 1.8m balustrades would be an improvement with respect to privacy and noise but either option results in unacceptable bulk at the rear of the dwelling. Even with a reduced area of about 3m 2 the space is large enough for several people to gather with the attendant noise issues. He contends that the approved and existing courtyard provides adequate space for entertaining. 33In Mr Girvan's opinion, the approved development successfully integrated the new dwelling with the heritage items to the west with height, roof form, and setbacks all deemed acceptable. He contends that the glass balustrades and planter boxes will introduce another structure forward of the rear wall that is not sympathetic to the form of the adjoining heritage items. Even though landscaping will soften the impact, he maintains the upper level deck will add unacceptable bulk. 34In regards to whether the proposal is substantially the same as the original approved development Mr Girvan is of the opinion that it is not. He considers the proposal for an upper level deck is not substantially the same as a terrace with a skillion roof. The qualitative impacts on amenity and privacy associated with a deck are substantially different to the amenity and privacy impacts arising from the approved development.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Cases Cited (3)