Tang v Waverley Council

Ms C Morton, Solicitor (Respondent) Solicitors Conomos Legal (Applicant)

Sparke Helmore (Respondent) File Number(s): 10702 of 2011

Judgment 1This is a s 97 appeal under the Environmental Planning and Assessment Act 1979 against a refusal by Waverley Council for a dual occupancy development at 56 Ocean Street, Bondi. By way of background, this commenced as a conciliation conference on site and at that time the Court met the parties on site and heard from a number of resident objectors to the proposed development. 2There was a great deal of concern expressed by objectors about the precedential effect of allowing a dual occupancy in the residential area and on a parcel of land that is below the DCP requirement of 450 sq m. The subject site is approximately 442 sq m. 3The Court heard residents' concerns about parking and about the intrusion into the streetscape of a dual occupancy development that consists mainly of single storey dwellings in this low-density residential area. I note that this is the lower of the residential densities within Waverley. However I note dual occupancy development is permissible in the zone with consent. 4The Court must assess the development application before it on the basis of the planning framework and in this regard the council has a Local Environmental Plan and a Development Control Plan, which the development must be assessed against. 5The Court adjourned the matter from the on-site hearing and I will just make mention of the fact that at that stage, when we met onsite on the first occasion, the council had decided to enter into consent orders. The Court was concerned that the spirit and process of conciliation should, in the first instance, be complied with and the residents were not given the necessary prior advice for a consent orders hearing. As such I adjourned the matter and the parties subsequently agreed to terminate the conciliation conference and agreed to me determining the matter. 6The council and the applicant's experts provided a joint town planners report to the Court when it resumed in the formal hearing. The joint expert report concluded the development to be appropriate. 7Further, by way of background, the Court enquired of the parties whether there was any objection to the Court having regard to what was seen on site and what was heard on site and the parties indicated they agreed to same. 8This is an appeal under s 34AA of the Land and Environment Court Act 1979 and as such the matter has now proceeded to a formal determination. Today, the parties have handed up consent orders. 9Following discussions during the first expert evidence that was concurrently given, the Court sought further information in terms of what would be necessary to achieve solar access for the premises at 58 Ocean Street. The son of owners of No 58 on behalf of his parents, provided evidence to the Court in respect of No 58. He is also concerned about the proposal's setback, the non-compliance of the setback from the side boundary being 700 mm as opposed to 900 mm. He is also concerned about the elimination of solar access to the rear living area of his parents' property that has glazing, sliding doors to the kitchen/family room area and advised that the eastern sun penetrates this area glazed and the proposed development eliminates the solar access mid winter. 10Since the Court met onsite, the applicant has provided further shadow diagrams including the equinoxes, as well as the winter 21 June solstice. The applicant and the experts looked at various scenarios whereby the building could be reduced in the extension to the rear. One scenario is the deletion of what is the internal courtyard, between the single storey level and the two storey component at the rear of the premises, which is the living area and upstairs is the main bedroom, bathroom and study area. An alternative is to reduce the length of the pavilion. 11The experts have now provided evidence, such that if there is a 1 m reduction in the length there would be no additional solar access provided. If there is a 1.4 m reduction from the upper portion of the southern dual occupancy then there would be an achievement of some solar access to the premises at No 56 to the glazing of the balcony area, adjoining the rear living area of the house. They also provided an analysis of a 2.4 m reduction, and clearly that would be an option where there is even greater solar access provided. 12The proposed development complies with the council's maximum height of 7.5 m and the rear portion has an overall height between 5.5 and 6.4 m. That is between 1.1 and 2 m lower than the height requirement. The floor space ratio provisions of the development control plan is 0.6:1 and the proposal is slightly less than this. 13The issue for the Court in these proceedings, is a balancing exercise in terms of the reasonableness of the development and its impacts. The Court always appreciates that neighbours and local residents will not always embrace change but as I said the role of the Court is to assess the development application against the framework of council's controls and where there are variations to those controls it is also important for the Court to assess the impact in terms of where a variation may be sought. 14In this regard it is important to refer to the judgments of Zhang v Canterbury City Council [2001] NSWCA 167 and more recently confirmed in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 that are authorities for the Court or the consent authority to make the development control plan a focal point and central to the consideration of a development application. At the same time, development control plans are discretionary and they are not mandatory and in this regard, the circumstances of the case must also be considered. 15In my assessment I have considered council's planning regime and framework and this includes the zone objectives, which I must consider in my assessment and the proposal must be consistent with one of the zone objectives. The zone objectives include: 1 Objectives of zone The objectives of this zone are: (a) to allow for a variety of housing forms, including dwelling-houses, townhouses and boarding houses, (b) to maintain and improve the amenity and existing characteristics of the locality, and ... 3 Only with development consent Development for the purpose of: advertisements; aged persons' care centres; bed and breakfast establishments; boarding houses; child care centres; dual occupancies; dwelling house; educational establishments; home based child care services; hostels; places of public worship; professional consulting rooms; public buildings; residential flat buildings; roads; small shops; townhouses; utility installations (other than gas holders or generating works). 16I am satisfied that the proposed development now represents a balance of providing some solar access to the property at No 58, while providing a development that is compliant, except for a reduced setback and the site being 442 sq m, rather than the DCP guideline of 450 sq m for a dual occupancy. I am satisfied that the proposal to reduce the building length by 1.4 m to provide some morning solar access to the eastern glazing of No 15, provides greater solar access than increasing this side setback from 700 to 900 mm, is appropriate in the circumstances of this case. 17With the orientation of subdivisions in an east-westerly direction, solar access is difficult to achieve on north facing side windows. It is often nearly impossible to achieve solar access for adjoining developments on their northern facade facing a side boundary. At the same time, the applicant is prepared to reduce the length of the building by 1.4 m to achieve what I consider to be a reasonable balance in terms of ensuring that some eastern solar access is provided to the rear glazing of No 58. 18I note for the record that there is a rear single storey extension to the rear of No 58 on the southern boundary and I am advised that this is used for non-habitable purposes at this point in time. Nonetheless the new shadow diagrams do show this will continue to enjoy very good solar access with the proposed dual occupancy. This rear extension into the rear yard has the benefit of the northern exposure from the sun. 19I am also satisfied that the rear open space achieves appropriate solar access for No 58. On behalf of No 58, concern was still expressed that the proposed development will have impacts. These impacts he enumerates in terms of the balcony off the main bedroom upstairs and the fact that there is not a fin wall to the 800 mm deep balcony provided off bedroom 1 at the upper level. 20I accept the evidence of the experts and also in my experience the use of an 800 mm balcony off a bedroom is not one that creates unreasonable privacy concerns. It is not off a living room. Furthermore, this is to the east of the subject property and in any suburban situation a certain degree of mutual overlooking must be expected. I am satisfied that this would not in any way warrant refusal of the application. 21Similarly, in terms of light spillage or privacy from walking up the internal staircase that adjoins the courtyard of the development of the dwelling on the southern side of the subject site, I agree with the experts would not warrant refusal of the application. It is common for dwelling houses to have windows on their side elevations and this is a situation that people deal with every day in a residential area and deal with by window furnishings if it is a concern. 22The Court, as I said, is concerned that there is reasonableness in terms of a balancing exercise of what is permissible on the subject site. Clearly, the dwelling is well within the height limitation and also complies with the floor space ratio control. The fact that the site is some 8 sq m below council's guideline for dual occupancy development, I agree with the planners, would not warrant refusal and the proposal is not an overdevelopment. In terms of the design and consideration of ensuring some solar access to No 58, I am satisfied there is no reason why the consent orders agreed to by the parties should not be granted for the amended plans, exhibit E. 23It is not unusual in the proceedings that come to this Court that there are amendments from the original plans. Indeed the applicant has been prepared to amend the plans and to provide what I now consider to be an appropriate development for the subject site. 24The dual occupancy development, in my assessment, will fit with the streetscape. I am also now satisfied in terms of the streetscape presentation that the proposed development with its pitched roof will provide an appropriate building within this streetscape. The development is single storey at the front, which reflects the form of many of the dwellings in this streetscape and, therefore, it will not dominate the streetscape in this regard. 25As could be seen on site, hardstand areas are characteristics of this area. Whilst hardstand areas in the front setback are not always considered from an urban design point of view to be a most desirable element, nonetheless this is not out of character with the street. In terms of practicalities the council has been prepared to accept hardstand parking areas within the streetscape. 26In this application as amended, the presentation of the hardstand areas is ameliorated by landscaping and also the treatment and finish of the landscaping and the paths to the dwelling houses. I am also satisfied in terms of the streetscape the lower fence of 1.2 m, rather than 1.8 m as proposed, provides a more appropriate presentation in the streetscape for the dwelling. In particular, having regard to the fact that one now sees the fenestration and the glazing in proportion as opposed to a high 1.8 m fence 1 m from the glazing and doors of the subject two dwelling houses. By way of description, the dual occupancy provides for a dwelling on the northern portion of the lot and a dwelling on the southern portion of the lot, both two storeys at the rear and single storey at the front with a common party wall down the centre. 27There was concern also raised about the colour of the component of the building at the rear. In this regard the architect had initially proposed a deep tone of 'weathered hardwood' colour. During these proceedings the applicant has come forward with what is regarded as a tone that will also complement the masonry part of the dwelling at the front and it will be less dominant in terms of the visual presentation to the adjoining neighbours. In this regard I consider that the change in the colour is appropriate and necessary. In particular it is not the people that are living in the dwelling that will see the colour as it is seen mainly from the adjoining properties. The lighter tone in my opinion will have less visual impact and is more restful and more in keeping with the masonry single storey front element. 28The Court has also been handed up conditions that the applicant agrees with. In my assessment the amended plans that have been tendered today as exhibit E, should be approved. The conditions are as proposed by the council with an amendment to the condition 22 such that the applicant is prepared to comply with, in that the landscape plan is to be amended prior to the issue of the construction certificate and approved by council's relevant officer. I note in this judgment the landscaping is necessary to soften the dwelling or to complement the dwelling. 29Therefore, on the basis of all the evidence to the Court and the adjournment was to address concerns of the adjoining neighbour and I am satisfied that the proposed development now before the Court in exhibit E meets what is a balance in terms of ensuring the amenity of the adjoining property to the south. In my assessment, I am satisfied the amenity for No 58 is not unreasonably impacted and that the amendment to the plan to reduce the rear element by 1.4 m for the southern dwelling achieves a good balance having regard to providing some solar access to No 58 and the extent of development contemplated by council's planning guidelines and controls. 30I say that the reduced setback to 700 mm I consider would not warrant refusal of the application. From the plans it is clear that the height of the building is more than compliant and the reduced height or the leading edge creates less overshadowing, as opposed to increasing the setback to the southern boundary by 200 mm. 31The urban environment is a fine-grained environment and skilful design can allow for a sharing of amenity between properties. This is an environment where there is an expectation of closer living and I am satisfied that the proposed development will fit with the character of the area. There is no reason as to why I would not grant the consent orders as handed up by the parties today. 32Accordingly, the formal orders in this matter are: (1)The appeal in respect of the property known as 56 Ocean Street, Bondi is upheld. (2)The development application submitted to Waverley Council and as amended and shown in exhibit E is approved, subject to the conditions contained in annexure A. (3)Each party is to pay its own costs in the proceedings. (4)The exhibits may be returned with the exception of exhibit E, exhibit 3 and exhibit 4. J S Murrell 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: 22 November 2011