Sud v Sutherland Shire Council

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.