Universal Equity v Waverley Council

Applicant: Mr M Della Marta, litigant in person LEGAL REPRESENTATIVES: Respondent: Mr M Staunton, barrister instructed by Mr T Flaherty, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT:

• 7 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

101003 of 2008 Universal Equity Company Pty Ltd v Waverley Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal of an application under s96 of the Environmental Planning and Assessment Act 1979 to modify the deferred commencement development consent issued by this Court on 26 October 2007, as consent orders, for an attached dual occupancy at 16A Queens Park Road, Queens Park. The consent is not operational since the applicant has not yet satisfied the council on all matters for which the consent was deferred.

The site 2 The site is at the corner of O'Sullivan and Denison Lanes, close to Queens Park Road. To the south is a two-storey house facing Queens Park Road. Before its recent subdivision the site was on the same allotment as the house. My understanding is that the new allotment has received development consent for subdivision but has not been registered. The site area is 451m2. A vacant single-storey brick workshop now occupies the site. 3 The adjoining property to the west is 14 Queens Park Road, a three-storey apartment block. To the east is 18 Queens Park Road, a single-storey house with a garage to Denison Lane. The majority of buildings facing Denison Lane are garages.

The proposed modifications 4 The s96 application proposes to modify the consent of October 2007 as follows: · Deletion of deferred commencement conditions 1 and 3 requiring the submission of a site audit and amended drawings. (The council does not press Condition 1 and Condition 3 has been satisfied.) Dwelling 16A · Increased width at the rear northern and western walls. · Increased length. · Western boundary setback reduced. · New roof terrace at first floor. · Carport width increased. · New planter boxes. · Changes to window size and location at front, rear and side. (The council does not oppose these changes.) · Increased height. (The applicant disputes this.) · New landscaping beds. (The council does not oppose these.) Dwelling 16B · Increased width at the rear northern and western walls. · Ground floor living room increased. · Internal changes to first floor. (The council does not oppose the internal changes.) · New parapet. · Terrace to Bedroom 2 increased. · Changes to window size and location at front and side. (The council does not oppose these changes.) · Increase in height. (The applicant disputes this.) · New landscaping beds. (The council does not oppose these.) 5 As is apparent from the above, the council does not oppose the deletion of Deferred Commencement Condition 1. In addition it does not oppose several minor aspects of the proposed amendments to the plans. In the applicant's submission the aspects that the council does not oppose are so insignificant that, if the Court accepts the council's position, the applicant would prefer that all the amendments be refused.

History of the application 6 On 26 October 2007 the Court granted deferred commencement consent orders for a two-storey attached dual occupancy building on the site. The agreement between the parties was reached at a conference held under s34(3)(a) of the Land and Environment Court Act 1979. In the council's submission the changes that the applicant accepted at this conference are those that it seeks to reverse by means of this s96 application. 7 The October 2007 consent is not yet in operation, as the applicant has not met all deferred commencement conditions. 8 The applicant lodged the s96 application on 21 December 2007. A further conference under s34(3) was held in April 2008. The parties did not reach agreement and did not agree to the commissioner disposing of the matter, which was listed for hearing on 27 May 2008.

Relevant planning instruments and policies 9 The Waverley Local Environmental Plan 1996 (LEP 96) zones the site Residential 2(a) - Low Density zone. Clause 3(7)(d) requires new housing to be compatible with surrounding development. Clause 3(7)(f) requires new development to improve the amenity of residential areas. 10 Development Control Plan 2006 (DCP 2006) places the site into the Queens Park Residential Character Study Area. The maximum Floor Space Ratio (FSR) for the site and surrounding area is 0.6:1. 11 Section 5.2 of DCP 2006 deals with Size and Bulk of Dwelling Houses and Dual Occupancy Development. The stated objectives are: · to ensure that new dwellings and alterations and additions to existing dwellings are of an acceptable size and bulk in relation to the size and shape of the allotment; · to ensure there is no overdevelopment of sites; · to ensure that any negative impacts on residents living in buildings on adjoining or nearby allotments are minimised and wherever possible, eliminated; · to ensure that dwelling house and dual occupancy development adds to and does not detract from the existing streetscape and character of the area; and · to ensure that the bulk of dwellings is in character with surrounding development.

Matters in contention 12 The council submitted its Statement of Contentions containing six matters. In my opinion, these may be usefully reduced to two. The first was that the proposed amendments would render the development too bulky for its context, which is Denison Lane. Denison Lane has mainly single-storey garages flanking it. The second matter in contention was that the Court should not accept the proposed changes on the grounds that they are a reversal of the concessions that the applicant made at the conciliation conference at which it reached an agreement with the council and, as a result, received consent orders from the Court.

Neighbours' representations 13 Mr Vashi Melwani, who owns the adjoining apartment building, told the Court that he had three concerns: noise from air conditioners, noise from pool pumps and proximity of pool to the driveway on his property. I note that the concern with noise has been resolved by the conditions of consent of 26 October 2007. The position of the pool is not being varied in this s96 application, so it is not relevant to my determination 14 Ms Alison Gilbert, who lives at 67 Alt Street (not close to the site), said that she supports the proposal. An alternative proposal, which would revive the use of the workshops as industrial, would be worse for nearby residents.

Bulk 15 The council's planning expert was Mr Mitchell Reid, the manager of the council's Development Assessment Unit. The applicant's expert was Mr Bruce Goldsmith, a town planner. Mr Reid pointed out that the approved development already had a higher FSR than permissible. The amendments would increase the extent of the breach of standard. 16 The parties disagreed on the floor space calculations. I have accepted the applicant's version, which is 0.72:1 for the approved development and 0.79:1 for the amended version before the Court. The permissible FSR is 0.6:1. 17 Mr Reid's argument is that the approved development is already out of scale with the lane (because it is two-storey in the context of single-storey garages), so an amendment making it larger is unjustified. Mr Goldsmith took issue, saying that · the proposal is a vast improvement on the visual impact/scale and bulk of the existing vacant buildings on the site; · the scale of the proposal is similar to that of the existing development on the site; · the amendments do not cause environmental harm and improve the amenity of the dwellings better; and · there are no objections. 18 It seems to me that there is a flaw in Mr Goldsmith's argument when he compares the s96 application with the existing buildings on the site rather than with the approved proposal. The approved proposal already involves the demolition of the existing buildings. If there is an argument (and no such argument was made at the hearing) that the approved development does not provide sufficient financial incentive for the applicant to proceed, then it is an argument that the Court cannot take into account. 19 I do not think that the scale of the buildings on Queens Park Road is nearly as relevant as the scale of those facing Denison Lane. The approved development is already two-storey high. It brings a new and increased scale into the lane. Additional floor space would exacerbate what is already an inconsistency in scale. 20 The absence of environmental harm does not justify breaching planning controls. In this case, the additional floor space is not underground or hidden from view. While additional floor space would improve the amenity of the dwellings, this is true of every proposal to make a dwelling larger. If the applicant wants a large dwelling, it should build one, rather than two, on this small site.

Change of applicant's position from s34 conference 21 The council tendered a set of plans, which accompanied the original application and was the basis of the s34 conference in October 2007, and another set, which was drawn to reflect the decisions reached at the conference. The second set of plans received approval. The plans accompanying this s96 application are similar to the first set of plans. This suggests that the applicant has reversed its position at the conference where it accepted changes suggested by the council. In the submission of the council's advocate, Mr Michael Staunton, this shows that the applicant negotiated at the conference in bad faith. Mr Staunton submits that I should take this into account in my decision. 22 In support of his submission, Mr Staunton took me to Walton v Blacktown City Council [2006] NSWLEC 45 at para 64, where Preston J said: An application under s96 of the EPA Act is not the appropriate vehicle to seek a re-hearing on the merits of a decision of the Court on a s97 appeal, unless there has been some material change in circumstance or something has been revealed which was not known at the time of the hearing of the s97 appeal… 23 In my opinion, the present case should be distinguished from the one to which Walton refers. In Walton His Honour referred to a s96 application amending aspects of a proposal that were debated at a previous hearing. In this case, however, there was no previous hearing. The consent resulted from a conciliation conference where the parties reached agreement. It may be that the applicant used the conciliation conference in a way that is inefficient and undesirable, but this is not a matter that I can take into account. My task is to assess the amendments proposed in the s96 application on their merits and to decide whether they are acceptable. For the reasons indicated above, I accept Mr Reid's evidence that they are not. The application is therefore allowed only in respect of the deletion of Deferred Commencement Condition 1, which the council does not seek to retain. The amendments to the approved plans are refused.

Orders

1. The s96 application is allowed in part.

2. Deferred Commencement Conditions 1 and 3 of the Deferred Commencement Consent issued by the Land and Environment Court on 26 October 2007 in respect of a dual occupancy development at 16A Queens Park Road, Queens Park are deleted.
3. The amendments proposed to the plans approved on 26 October 2007 are refused.
4. The exhibits are returned.

      Dr John Roseth
      Senior Commissioner

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