Wallaroy Apartments Pty Ltd v Woollahra Municipal Council

Judgment (9 paragraphs)

[1]

Mr S Simington (Solicitor) Lindsay Taylor Lawyers (Respondent) File Number(s): 11173 of 2012

[2]

Background 1This appeal was lodged following council's refusal of a development application for the demolition of existing buildings at 12 Wallaroy Crescent, Woollahra and the construction of a residential flat building containing 13 units. The following issues were identified for the appeal:

Permissibility in terms of existing use rights
Height, bulk and scale
Excavation
Compliance with the desired future character
Landscaping
Visual and acoustic impacts on adjacent properties. 2The appeal commenced by way of a s34 Conference where a number of design options were considered in response to the contentions. This s 34 Conference was subsequently terminated and the matter listed for hearing. 3Consequently, the Applicant amended the application and Council has reviewed the amendments and now agrees to consent orders. The consent orders were notified to the objectors resulting in a number of objections remaining, concerning impacts on the neighbouring properties and the satisfactory establishment of the Existing Use Rights (EUR). 4These objections were heard, including a submission from Mr Lockhart concerning the adequacy of the documentation relating to the EUR assessment. Following the provision of supplementary information by the Applicant to council, Mr Lockhart made a further submission concerning the abandonment of the use sometime after 1995. The parties responded to this in final submissions, maintaining their agreement to the Consent Orders.

The evidence 13A detailed joint planning report (Exhibit 2) addressing the contention and matters raised by objectors was presented by:

Mr P Grech; Council's consulting planner,
Mr G Karavanas; Applicant's consulting planner. 14The planners are in agreement that the amended plans satisfy the contentions and merit conditional consent. I have considered this agreement and in the circumstances of Consent Orders where there is no substantive challenge quote the following expert's opinions on these matters. 15Excessive Bulk, Scale and Height: Points in Agreement The amended plans have provided the deletion of Unit 13, removal of the rear portion of Units 4,6 and 7 and a I m additional setback from Wallaroy Crescent as recommended in the council report. The plans also provide a further setback of 1.5m (2.5m overall) for a 4m section at the eastern corner of building A and an increase to the setback of Unit 12, which is adjacent to No.10 Wallaroy Crescent, to reduce the visual impact on adjacent development. These changes satisfactorily ameliorate any privacy impact based on commonly accepted planning guidelines and practice and provide a separation from surrounding residences that adequately address the bulk and scale issues as particularised below. 16Front setback within Wallaroy Crescent: Points in Agreement With the amendments to the drawings, the front setback of the proposed development substantially conforms to a building line that extends between the south-eastern corner of No. 14 and the north-eastern corner (enclosed balcony) of No.10. That part of the proposed building that is mostly within this building line is the balcony to Apartment No.3. The balcony is not totally enclosed and provides desirable articulation to the front of this residential flat building. A condition of consent should be imposed to provide fixed vertical louvres to the south facing opening of the balcony to Apartment No. 3 to prevent any overlooking of No.10 Wallaroy Crescent. 17Existing and potential future rear setback pattern and associated impact to No. 14 Wallaroy Crescent: Points in Agreement The rear of Building A has been set back as recommended in the Council Officer's Report. The penthouse level of Building A has also been setback an additional 3m (6m overall) from the northern boundary of the site (adjacent to No.14 Wallaroy Crescent) in response to Council's issues. This additional setback generally extends to the rear alignment of No.14 Wallaroy Crescent, which provides a satisfactory outcome, subject to satisfactory landscaping along this boundary. 18The bulk and scale of Building A (as presented to the street): Points in Agreement The proposed scale of that part of Building A which would be visible above the proposed wall along the front boundary is comparable with the adjoining building to the north and south when viewed from Wallaroy Crescent. We agree that with the additional setbacks provided this issue is resolved. GK notes that: (a) The subject site is almost double in width when compared to the adjoining properties and the proposed building width is reflects this. The proposed building width is appropriate for the site, and the increased setbacks on the amended drawings assists in reducing the bulk and scale when viewed from the street. (b) Building A will be lower than No. 14 Wallaroy Crescent to the north and slightly higher than the dwelling to the south at No. 10 Wallaroy Crescent. (c) Building A is located on the podium level behind the existing sandstone wall and the scale of the building diminishes when viewed from the street. (d) Building B, on the tennis court to the rear, is to be 9m high and set back from all side boundaries and will be difficult to observe from most locations around Wallaroy Crescent. 19The upper level (level 2) of building B would be visually overbearing: Points in Agreement Apartment 13 on the upper level of Building B has been deleted in accordance with the recommendation in the Council Officer's Report. This amendment addresses the visual impact of Building B on the adjoining properties to the north. The southern end of the upper level of Building B (Apartment No.12) has been setback 6m from the side boundary of the site. This satisfactorily addresses the visual impact on No. 4a and No. 4 Wallaroy Crescent. 20Excessive Excavation: Points in Agreement The amended plans now depict planting beds alongside boundaries as follows: (a) Northern side (adjacent No.14) - predominantly 2m deep and 1.8m wide, but potentially reducing in depth as it approaches the front of the site. (b) Southern side (adjacent No.10)- generally part 2m deep and part unlimited depth by 2.5m wide, but the width of the corridor is broken into 2 steps with a vertical drop of 1.8m between the steps towards the rear of Building A. The retaining walls would reduce available planting area. (c) Additional deep soil landscaping has also been provided (an additional setback of approximately 1.2m) between the OSD tank and the street. This improves the opportunity for deep soil landscaping along these boundaries and is acceptable subject to conditions. 21Desired Future Character Objectives of the Wallaroy Precinct: Issues associated with setbacks, bulk, scale and height, excavation previously addressed. With regard to Particular 4(e) concerning the proposed architecture style and design will reinforce the nonconformity of the use and is not consistent with the form of dwelling houses in Wallaroy Crescent, the planners state: Points in Agreement This is not a significant issue relative to the opposite side of Wallaroy Crescent which is zoned to permit residential flat development with consent, and therefore could be expected to be developed with higher-density residential housing forms in the future. The southern side of Wallaroy Crescent from No.8 to Manning Road is similarly zoned. GK notes that Wallaroy Crescent has a character, which can be described as eclectic. The earlier dwelling types in the street reflected gable roofed dwellings, a number of these buildings have been converted to residential flat buildings while others have been the subject of roof top conversions. GK is of the opinion that the proposed architectural style and design will not contrast with other residences within the street, given the eclectic streetscape. The increased setback from the street and the minor additional proposed planting will assist in reducing the visual impact of the building and soften its appearance. GK notes that although the proposed residential flat building is of a contemporary form, it will complement the adjoining dwelling to the north at No. 14, which is three storeys and higher than the proposal. Similarly, the proposal will relate to the adjoining dwelling to the south at No. 10 Wallaroy Crescent. The existing street trees and the landscaping proposed will complement the contemporary style of architecture. GK states that Objective 4.3.4 of the Wallaroy Precinct is: To maintain the evolution of residential building styles through the introduction of exemplary contemporary buildings. The proposal's contemporary form, in GK's opinion, is consistent with the above objective. The street wall on the lower level, the modulation and depth achieved in the middle levels of the facade and the mansard roof present appropriately to the street and the Wallaroy Precinct. GK further notes that one of the strong character elements is the sandstone wall on the western side of Wallaroy Crescent. This wall, which varies in height from 2.2m to 4.4m, offers a podium level for the building located behind that wall. The proposal ensures that the continuity of stonework in Wallaroy Crescent will be maintained. GK notes that the proposed amendments of an increased street setback behind the street wall and additional landscaping opportunities will provide a more subtle appearance to the street, without losing the intended architectural language. While PG does not oppose the use of contemporary architecture he notes that the particularly style of contemporary architecture proposed would be distinctive as opposed to recessive within the streetscape. PG considers that the form and contemporary design of the front facade and mansard roof will reinforce the nonconformity of the use, and appear inconsistent with the existing dwellings in Wallaroy Crescent. Notwithstanding, PG considers that having regard to the potential for further residential flat building development in parts of the street and subject to the amendments to the plans proposed and the conditions that he considers appropriate, this issue is not one that should on balance warrant refusal of the development application. 22Landscape Character of the Locality: Points in Agreement The Landscape Plan and report provides details on the vegetation and re-vegetation of the rear of the site. The replacement tree species shown on the amended landscape plan at the top part of the site, adjacent the western boundary is acceptable. However, a condition of consent should be imposed requiring suitable understorey planting. 23Adverse Visual Privacy Impacts: Points in Agreement The plans have been amended to provide greater clarity in regard to proposed privacy screens and window treatments and details have been provided for the screens (see DA 19 B and DA 21 B). PG states that the remaining privacy issues relate to potential overlooking: To adjacent properties from the unscreened bedroom windows at level 2 of Building A. To adjacent properties from various windows at the penthouse level of Building A, primarily due to a lack of clarity on the plans. To the rear yard on No.14 Wallaroy Crescent from the terraces for Apartment Nos. 9 and 11 in Building B. However these matters can be addressed by conditions of consent.

Existing Use Rights (EUR) 24Insofar as this contention was originally identified, the submission of further details by the Applicant resulted in council's acceptance that the EUR is established and the issue was not pressed. However, the residents, particularly by Mr J Lockhart, challenged some of the details in this assessment. 25Mr Lockhart notes that in 1976 consent was granted to divide the front main building into 2 units. After this time the two relevant controls were LEP 1985 and LEP 1995 which both prohibited the use. 26By reference to the matter of BYT Nominees v North Sydney Council [2008] NSWLEC 164, Mr Lockhardt says that:

One must look at the position at the time of the current (1995) LEP to see if the DA can be sustained on the basis of EUR.
Accordingly, any EUR must be a 'lawful existing use' (my emphasis) pursuant to s 106(a) and it must not have been abandoned.
The documents indicate that there was family use of the two units within Building A, specifically during the period of 1996 - 1999 and that this use resulted in abandonment.
Therefore the EUR has not been positively established. 27The parties have considered these submissions and maintain their positions that the EUR is established and that the consent orders should be made. They make the following submissions regarding the objections. 28For the consideration of these submissions I note that ss 106 and 107 of the Environmental Planning and Assessment Act 1979 (EP & A Act) state: 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months 29Mr Hemmings' first submissions concerns procedural matters in dealing with this issue, which is not pressed by the council and secondly, the merit assessment of the EUR. With regard to the procedural matters, Mr Hemmings submits that:
The appeal started by way of a s34 Conference and the EUR contention was raised.
Information concerning the EUR assessment, particularly the document "history of site use" was considered by the parties.
The Applicant submitted additional information to Council. 30This resulted in the Council being satisfied that the EUR is established and the Applicant is entitled to the associated benefit for development. Consequently, the Council no longer pressed this issue. But Mr Lockhardt says that: The Court must be positively satisfied that there are existing use rights. The Applicant has not shown this. 31Mr Hemmings submits this is not a correct proposition because the nature of proceedings in the Land and Environment Court was dealt with in detail by the Court of Appeal in Segal v Waverley Council [2005] NSWCA 310. As identified by Justice Tobias, with whom the other Judges agreed: "In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them." (See paragraph [42]). 32The submission is made because the EUR issue has been satisfied, it is no longer a contention in the proceedings and there is no issue joined between the parties in relation to existing use rights. As a result, and because of the adversarial nature of the proceedings, the Court on appeal need only consider the "principal contested issues" (see Segal at [99]). The Court is not required to consider a matter that is not a principal contested issue. 33In these proceedings, as originally framed, there was a principal contested issue relating to existing use rights. The Council is satisfied that the issue no longer arises. Of itself, that is not unusual. The Court often deals with applications, that rely upon existing use rights, where the parties accept the existence of those existing use rights. 34Relevantly, the objectors do not - by making their submissions at the consent orders hearing - raise a principal contested issue that must be determined like an issue joined between adversarial parties. To the contrary, the objectors had the opportunity to be joined in the proceedings, and so squarely raise the question of existing use rights as a Contention. They have not done so. It is to be recalled that in addition to Mr Lockhart personally being a barrister, a number of the objectors (Mr and Mrs Shirley, Mr Corlett and Mr White) have been represented in these proceedings by Mr Jackson of Pikes & Verekers, a firm of solicitors specialising, and experienced, in the Land and Environment Court's jurisdiction. As a result, the Court's starting point is not one where it must be satisfied that there are existing use rights. 35From my consideration of this submission on procedure, which is supported by Mr Simmington, I am satisfied to rely on the fact that this is not an issue that the Court has to reopen and examine in depth. 36Notwithstanding this, I have considered the further submissions from Mr Hemmings and Mr Simmington regarding the objections on the EUR. Part of those objections concern the form and consistency of material used in the assessment (i.e. affidavits or Statutory Declarations), which may arise where the Rules of Evidence apply but that is not the case in these Class 1 proceedings. 37Mr Lockhardt initially refers to the need to establish a "lawful existing use" at a particular time. However, Mr Hemmings submits that this is incorrect because s 106(a) uses other wording, which specifies for "a lawful purpose". 38From reference to the assessment material, it is apparent that:
By 1921 consent had been granted for three flats on the land comprising two flats in the main building (one up, one down) and one flat over the garage
In 1978, consent was granted to convert the two flats in the main building from one up, one down to one at the street front and one behind. Importantly, when that consent was granted, it included the retention - with the express sanction of the Council (Exhibit C, Tab 1) - of interconnecting doors between the two flats at both the ground floor and the first floor. 39Consequently, as BYT makes clear the only point in time at which it is necessary to consider the "existing use" is immediately prior to the coming into force of the LEP in 1995 (published in Gazette No 28 of 10.3.1995). Prior to that date, the required statutory inquiry is whether the land was being used for a "lawful purpose". Both by its terms, and effect, that is a different inquiry. 40Relevantly, for example, land is being used for a "lawful purpose" if it is being used in accordance with a development consent (that had not lapsed) - regardless of whether there has been a lengthy period of non-use, because a development consent simply cannot be abandoned (Lederer v Sydney City Council (2001) 119 LGERA 350 at [118]; Auburn Municipal Council v Nehme (1999) 106 LGERA 19 at [19] and [24]; see also Sydney City Council v. Ke-Su Investments Pty Ltd and others (No. 2) (1983) 51 LGRA 186; Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120). 41Mr Hemmings submission continues with the objector's complaint that one family was living across the two apartments and that, apparently, they were able to have free access to each of the apartments via the interconnecting doors. The submission is that clearly, the use of the two flats, where that use included the ability to pass between the two units via the interconnecting doors, was use of the premises in a manner expressly anticipated by the Council's approvals. As a result, the use in that way is clearly for a "lawful purpose", which is consistent with BYT. 42In response to the "abandonment" challenge, Mr Hemmings' submission is:
Prior to the coming into force of the 1995 LEP, no question of abandonment arises. That is because the inquiry is directed towards use of the land for a "lawful purpose". As already submitted above, the land was being used for a lawful purpose.
Post 1995 there is the potential for the existing use to be abandoned.
There will be a rebuttable statutory presumption of abandonment (pursuant to s 107(3)) if the objectors are able to satisfy the Court that the land actually ceased to be used for a continuous period of 12 months.
The objectors are not able to provide evidence to demonstrate a cessation of the use, since 1995, for a continuous period of 12 months.
The statutory presumption is rebuttable. That is, even if the objectors were able to satisfy the Court that there had been an actual cessation of use for a continuous period of 12 months, that does not necessarily lead to an abandonment of existing use rights.
A number of uncontroversial principles apply to abandonment: 1) A use is not necessarily abandoned, even if there is no use; 2) A use is not necessarily abandoned," even if actions inconsistent with the existing use are taken; 3) A use is not necessarily abandoned, if there is a subjective intention to maintain the existing use; and 4) A use is not necessarily abandoned, even if the land is put to a different use, so long as that use is not relevantly conflicting. 43I have considered Mr Hemmings' assessment of the objectors concerns about inconsistent use of the units in the main dwelling and his reference that even accepting that an existing use may be abandoned by inconsistent user, as identified by Talbot J in Waverley Council v C M Hairis Architects [2002] NSWLEC 180, that use must relevantly conflict. In this case, the highest to which the abandonment could ever rise is to suggest that the main building was used by one family. However, that was a manner of use expressly anticipated by the approvals. It could never be said to 'relevantly conflict'. 44Mr Simmington supports these submissions on the basis that:
On 18 October 1977 council approval was granted to "the bricking up of the opening" being deleted, i.e. the common door between the two front units. This had the effect of maintaining the two separate units.
Even if there has (and there does appear to have) been use of the main building as a single dwelling house at times, particularly in the 1980s (but not exclusively), this does not mean that the lawful use of the main building for separate dwellings front and rear (as evidenced in the rental documents prior to 10 March 1995 (Exhibit 4)) is not evidence of a lawful use for the relevant use relied upon, as at the relevant date.
Exhibit 4 and the supplementary rental material now available shows continuing rental use during the period from 1992-1999.
No compelling evidence was submitted by the residents to conclusively demonstrate that the actual usage would result in abandonment. 45In summary then, I consider the Consent Orders merit consent. The merit contentions have been reasonably satisfied by way of significant amendments and I am satisfied to rely on the agreed position by the parties and submissions that the existing use rights has been established so as to enable the application to be determined on its merits.

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Judgment (9 paragraphs)

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Cases Cited (6)