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[2012] NSWLEC 1162
Land and Environment Court (NSW)
2012-06-07
Original judgment source is linked above.
R O'Gorman Hughes (barrister) (Respondent) In person (Applicant)
J Amy (solicitor) (Respondent) Sutherland Shire Council File Number(s): 10206 of 2012
Judgment 1The applicant Veni Rani Sud has partly built a dwelling, pool and garage on land at 215 Loftus Avenue, Loftus. 2The works, however, are different to those approved by the development consent issued by Sutherland Shire Council on 28 August 2010 (DA 10/0119). To rectify that situation the applicant has lodged a modification application number (11/0365) under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) and seeks approval for the works as built and some other changes to the approved development. 3The council did not approve the modification application because it considered that the cumulative impacts of the development are of a bulk and scale that is inconsistent with the objectives in Zone 4 - Local Housing which applies, and, the provisions of cll 48 and 49 of the Sutherland Shire Local Environmental Plan 2006 (LEP). 4Clause 49 of the LEP requires the consent authority (in this case the Court) to consider specified matters before consenting to residential development. In this appeal the council submits subclauses (b) and (e) are of particular relevance. They state: (b) the extent to which any adverse impact of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised, (e) the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised, 5The council also refers the Court to cl 48 of the LEP which sets out further mandatory considerations. It submits subclauses (a) and (b) are not satisfied by this development. These subclauses state: (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire Council have been attained, or will be attained by the proposed development, (b) the extent to which any proposed buildings are designed and will be constructed to: (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned. 6In order to undertake a consideration of the mandatory matters in cll 48 and 49 it is necessary to appreciate the existing character of the distinctive location and the desired future character of the locality concerned as set out in the Zone 4 objectives. 7Council refers the Court in particular to objectives (b) and (c). They state: (b) to ensure the character of the zone, as one comprised predominately of dwelling houses, is not diminished by the cumulative impacts of development, (c) to allow development that is of a scale and nature that preserves the streetscape and neighbourhood character of the zone. 8The planning assessment report dated 19 January 2012 prepared by council's internal planning officer (at Folio 28 to 32 of exhibit 4) concludes that the proposed modifications are not acceptable after an assessment under s 79C of the Act. On the basis of that report the Council refused the application on 19 January 2012. The applicant now appeals that refusal under s 97AA of the Act and seeks an approval of the modification application from the Court. 9Before I give my reasons for approving the modifications subject to certain conditions, it needs to be appreciated that my decision is based on amended plans (exhibit A), which are different from those considered by the council. It is also based on planning evidence from council's consultant planner, Mr Nash and from the applicant's planner Mr Mead that support the approval of the modifications subject to certain conditions in exhibit 7. The planners' joint report (exhibit B) and addendum report (exhibit C) set out their evidence. Having said however, there are three matters about which the planners disagree. They are: (1) The extension of the roof form at the rear of the dwelling to fully cover the balcony below; (2) The level of the turf strip along the eastern side of the pool - at either natural ground level or finished ground level at RL 140.6 to maintain the natural drainage pattern in that location. (3) Whether the window identified as W18 on the eastern façade should be fixed obscure glazing from floor to ceiling as proposed or should it incorporate a sill height of 1500 mm masonry. 10Apart from the above three matters the planners told me having considered the mandatory considerations in cll 48 and 49 of the LEP and relevant matters in the Sutherland Shire Development Control Plan 2006 (the DCP) that the amended plans and draft conditions adequately address the contentions raised by the council. The planners also agree (subject to the above matters) that the amended plans and draft conditions also address the objectors' concerns about the bulk and scale of the modified development, overlooking, privacy, landscaping and overshadowing. 11I was able to appreciate the planners' evidence because the appeal commenced onsite and therefore I had the opportunity to view the development site, neighbouring properties and the general locality. I also heard from neighbouring residents who object to the application. 12Having seen the site I accept Mr Nash's assessment that the approved partly built dwelling is a dominant feature of the streetscape. Despite that it has been built generally in accordance with the development consent issued by the council. Apart from a minor extension of the built form on the southwestern elevation to accommodate a structural beam and a small extension of the bedroom area by the movement of the balcony door the dwelling presents to the street as approved albeit slightly lower. 13Accordingly, there is nothing that the Court can do in this appeal to change the fact that a dwelling of this size and scale has been approved on the site. I can only deal with the matters raised by this application. 14First I must be satisfied that I have jurisdiction to deal with the application. I must be satisfied that the development as modified if approved will be substantially the same development as that originally approved. Based on the evidence before me I am satisfied of that fact and believe that I have jurisdiction to determine this appeal. Next I must assess on the evidence before me if the proposed modifications are acceptable after an assessment under s 79C of the Act. 15The evidence is that the amended plans satisfactorily address council's contentions except for three matters. I accept the expert planning evidence in the joint report and addendum report. I proposed to deal with the disputed matters now.
Extension of roof form at the rear of the dwelling to fully cover the balcony below 16Having stood on the rear deck and looked out I was able to see clearly over and into the windows of the adjoining properties. The town house number 4 on the eastern boundary is in close proximity to the spa and elevated deck. In fact it looks out at the rear deck from its living room and bedroom. This elevated rear deck and concrete slab roof is also clearly visible from the backyard of the site and the rear properties through some vegetation. Based on the evidence, this heavy 200 mm concrete slab roof dominates the neighbours' properties to the east and west. When viewed from the rear of the subject site the built form roof looms largely and is out of scale with the adjoining built form. I accept the evidence of the objectors and Mr Nash that the proposed extension of the concrete slab roof over the deck adds unacceptable bulk to this already large dwelling. 17I also accept the evidence of Mr Nash that the extended roof allows for the terrace to be used as an entertaining deck during all seasons. Even with the proposed privacy screens of obscure glass at each end there is still an opportunity for people standing on the rear deck to talk and gather at the side boundaries of the deck and overlook the adjoining properties. The opportunity to use the rear terrace in wet weather is provided by the extended roof and as Mr Nash stated this means additional noise and amenity impacts for the neighbours particularly the residents of the townhouse number 4 on the eastern boundary. I did not observe any other elevated rear deck with a concrete slab roof in the immediate locality. It is in my opinion out of character with the surrounding properties in the locality. 18I agree with the council officer's assessment that approval of this aspect of the development is not consistent with the Zone 4 - Local Housing objective because it does not "ensure the character of the zone, as one comprised predominately of dwelling houses, is not diminished by the cumulative impacts of development." Based on the evidence before me, it could not be said that the character of the zone is not diminished by the cumulative impacts of development on this site. The additional roof to the rear deck increases the dwelling's bulk so that it is not of a "scale and nature which preserves the neighbourhood character of the zone." 19The bulk at the rear of the dwelling is exacerbated by the extension of this concrete slab roof and support columns. These modifications to the dwelling do not ensure that the development enhances or integrates into the existing character of the neighbourhood. None of the adjoining properties has a rear deck at this elevation or of this proportion and the extended roof only adds to and compounds the approved bulk. The adjoining townhouse number 4 on the eastern boundary has living room and bedroom windows, which look onto the rear deck. That town houses' proximity to the site side boundary means that any entertaining on the rear deck will be audible in that town house and visible from the living room and bedroom windows and outdoor areas. In an effort to ensure some visual privacy and amenity to that neighbour in particular, I cannot approve the extended roof slab and support columns. I agree with Mr Nash's evidence at 2.1.19 of exhibit B that "the roof results in considerable additional bulk". Mr Nash prefers removal of 3 m of the 4 m wide concrete roof to the rear deck in order for the awning to match that reflected on the approved plans, that is a 1 m canopy over the rear deck. He suggests that the depth of the retained canopy is to be 200 mm as built and not the 700 mm as approved originally. Mr Nash is also of the opinion that the masonry columns on the rear first floor deck should also be removed. I accept Mr Nash's assessment and do not approve the extended roof or the supporting columns as built but approve the form articulated by Mr Nash. I note Mr Mead agrees that the removal of the extended roof over the terrace will result in reduction of bulk although he does not agree it is necessary. 20In coming to this decision I have not considered any structural problems that may be associated with the removal of the extended roof because that matter is not relevant in this modification appeal.
Window W18 - eastern elevation 21I accept Mr Nash's assessment that a masonry element to 1500mm in W18 on the eastern elevation is appropriate. It will articulate the building and improve its presentation to the neighbours' properties on the eastern boundary. It is clearly visible from the bedroom of the townhouse that the Court took a view from and it is necessary that the glass be obscure in order to ensure privacy between these two bedroom areas. I do not think that the neighbourhood will be enhanced if the townhouse development were to look onto floor to ceiling obscure glass on this elevation; it is out of keeping with the character of the surrounding development and the desired future character of the locality. Having said that the dwelling has been approved and all the Court can do in this appeal to improve the presentation of the development. I accept Mr Nash's evidence that the masonry treatment to a sill height of 1500 mm is appropriate on this elevation.
Level of turf - eastern boundary 22I accept Mr Mead's evidence that a finished ground level of RL140.6 is appropriate on this boundary. It will allow for a proper integration of the pool edge to a level ground and avoid a drop in levels around the pool. I have no expert drainage evidence, which supports the concern about drainage issues for the adjoining property to the east. As Mr Mead told the Court when the turf is laid and the development has been completed, the absorbent landscaped area will no doubt absorb some of the current runoff and the site drainage works on completion will be required to deal adequately with the site drainage. It is premature, as the applicant submits to assume there is a drainage issue and in any event the applicant submits it has engineering detail, which adequately deals with this issue. If it does not then it is open to council to pursue this issue but it is outside this appeal. 23The council submits that it is open to me, in this modification appeal, to interpret the roof plan detail and make findings as to whether there has been approval for access to the roof and its use as a roof terrace. And if I determine that there is no access to the roof and no approval to use the roof as a terrace, then I am able to impose conditions to require the removal of the approved staircase to the roof and a reduction in the height of the parapet. It also contends that I may impose a condition to prevent the usage of the roof area as a terrace. 24While it would appear on my inspection of the plans that there is no egress onto the roof area I decline to make any finding in respect of this matter because it is not raised by the application. 25I do not accept as council submits that a s 96(1A) appeal enlivens the opportunity for the Court to "reconsider, at least the relevant elements of the original consent and, if it perceived a need to cure a problem, which may not have been apparent previously but now is, impose a new condition" at [54] per McClellan CJ in 1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685. 26To the extent that the application invites a consideration of relevant elements of the original consent I agree it may be possible to cure a problem as discussed at [54]. However, the discretion is limited. In North Sydney Council v Michael Stanley & Associates Pty Limited (1998) 97 LGERA 433, the Court of Appeal in explaining the then s 102(3A) (now replaced by s 96), said: In determining an application for modification of consent under the section, the consent authority must take into consideration such of the matters referred to in s 79C(1) as are of relevance to the development the subject of the application. 27Although Mason P stated at [442] that the section included an opportunity "to repent of an earlier decision in light of a political change of will" - it was not as McClellan CJ pointed out at [44] in Pittwater Rd "I do not understand the President to be suggesting an unconfined capacity to repent. The constraint is, of course, found in the nature of the application being considered. That application, being for approval for a modified consent, could be refused in which event the original consent remains. If approved, the proposal must still be development which is "substantially the same" as the original approved development". 28And at [51] "Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application." 29After a consideration of the matters under s 79C(1) relevant to the aspects of the development to which this application relates I do not believe I have the power to interpret whether there is roof access or not. This simply does not arise in this application. The removal of the concrete slab roof on the rear terrace has reduced the bulk of the dwelling and the potential intensification of the use of that terrace in all weather conditions. The reduction of bulk at the rear of the property by removal of the extended rooftop does not enliven a power to impose conditions to remove the approved stair to the roof or to change the height of the parapet that has been approved. Nor does it empower me to impose a condition to preclude rooftop access if in fact there is any such access. These matters may need to be determined separately should the applicant wish to agitate for roof access. 30As I said earlier, there is nothing the Court can do in this appeal to interfere with the fact that the Council has approved the original development. In this modification appeal the Court is being asked to improve some aspects of the original development. For example approve a reduced height of the building and require obscure glass and privacy screens to address privacy concerns. The planners support the new spa and the changes to the pool area and the internal reconfiguration of some rooms. The expert planning evidence is after an assessment under s 79C of the Act that the modifications are acceptable subject to the agreed conditions. The planners' evidence is that the amended plans and agreed conditions will result in a better planning outcome because they address the objectors' concerns about privacy, overlooking and bulk and scale of the approved development. The extended roof over the rear-elevated deck is not approved and this was a major concern for many of the objectors. 31Therefore, having regard to the above I have no planning basis on which to refuse this application as amended by this judgment and the draft conditions in exhibit 7. Therefore, I make the following orders: (1)The appeal is upheld. (2)Development consent is granted to modification application number 11/0365 as detailed in the amended plans, exhibit A and subject to the conditions in exhibit 7 including condition M which states: This modification does not approve the northern 3 m extension of the roof slab and supporting columns over the rear balcony, which was not approved in the development consent as originally granted. (3)The exhibits will be returned upon written publication of this judgment. Susan Dixon 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: 15 June 2012
Sud
Sutherland Shire Council
(1998) 97 LGERA 433