Wechsler v Sydney City Council

Background and the proposal 6The original building was granted development consent in 1962. Approval was granted for alterations to that building by consent U/99/00554 on 23 August 1999 and approved changes to the building to alter it from 37 bed-sitters and one x 1 bedroom apartment to 36 x 1 bedroom apartments, one x 2 bedroom apartment and one bed-sitter. 7A series of modifications were approved by the council and one by this Court. See Hexiva Pty Limited v Sydney City Council [2004] NSWLEC 527. Those modifications, now to the amendment G plans have incrementally increased the overall bulk and scale of the building footprint, created additional bedrooms and trafficable roof decks and include an additional level, level 6. 8A separate consent (D/2008/1781) was granted by the council on 24 November 2008 for the creation of four roof top gardens on level 6, for the private use of residents of apartments on level 5, with stairs to be cut into the concrete slab. Conditions of consent required the pergolas of lightweight construction and planter boxes of a minimum width of 1500mm to be located around the perimeter of the slab to prevent overlooking. 9The S96 application before the Court was lodged with the council on 13 December 2012 and sought approval for the following: - (1)Deletion of Condition 12 which requires the developer/registered proprietor to advise any initial purchaser of a unit or tenant that it is not council's policy to issue resident parking permits to new residential flat developments; (2)Removal of planter boxes and reduction in height of balustrades to the balconies at the sixth floor level; (3)Addition of pergolas with tinted glazing at the sixth floor to the north and south elevations of the building; (4)Modification of a vent stack at roof level; (5)Glazing of the approved pergolas at level 5; (6)Reduction in length of western and eastern pergolas on level 6 by 1.1m and installation of tinted glass to protect doors from weather; (7)Amendments at the sixth floor including amended bathroom layout, increased threshold at stairs, reduced head height of balcony doors and windows, enlarged skylights and modified roof profile and fascia; (8)Amend plans to reflect correct heights in accordance with Australian Height Datum (AHD); (9)Amendments at ground floor including addition of privacy screens and relocation of driveway gate and bin collection area. 10The works detailed at 2, 6 and 7 have been carried out by the applicant and he is seeking retrospective consent for that work. 11That application was determined by the council and was partly approved on 11 January 2013. Those aspects of the application, which were not approved, are 1, 2, 3, 4, 5 and the glazing referred to in 6 above. The appeal is seeking further modification of the consent to allow those works. 12The council did not press matters 1 or 4 above and accordingly, the outcome of this appeal will be to allow those conditions to be modified. It is necessary for the Court to determine the merits of the remaining issues.

The planning controls 13The site is zoned R1 General Residential under Sydney Local Environmental Plan 2012 (LEP). The proposal is permissible with consent. The LEP permits a floor space ratio (FSR) of 2:1 and a height of 22 metres. The modification application resulted in a 5sqm increase to floor space so that the FSR is 3.22:1. The previously approved building did not comply with the control. The building height is 20.6AHD and is compliant with the building height limit.

The issues 14The remaining contentions in the case are contentions 1-4 as set out in the council's Statement of Facts and Contentions, Exhibit 1. They relate to the impacts of the removal of the planter boxes and reduction in height of the balustrades to balconies on the sixth floor, the need to ensure compliance with the Building Code of Australia (BCA), the impacts of the proposed glazing to approved pergolas and the impacts of the additional pergola structures proposed to the north and south elevations. 15Contentions 5 and 6 were not pressed and the council no longer objects to the deletion of condition 12 (resident parking scheme) and the suggestion that additional information is needed in relation to the vent stack, which it accepts, is appropriate.

The evidence 16The hearing commenced on site with evidence heard from a number of objectors to the proposal. The issues raised by those persons is summarised as being:

• Continued increase to the mass, bulk and scale of the building;
• Overlooking of neighbouring properties;
• Building is out of context with its neighbours;
• Planter boxes are considered essential to protect privacy and "green" the roof space;
• Glazing of pergolas will appear as a relatively solid element effectively increasing the roof area, impacting on sky views and daylight available to neighbouring properties;
• The canopies will appear much heavier than the approved development. 17Expert evidence was heard from Mr K Nash for the council. Mr Nash says that the planter boxes and balustrading are required to address overlooking of properties to the south, including No 4/11 Tusculum Street, a property owned by one of the objectors to the development as well as the rear of the terrace houses fronting Victoria Street, which are located to the west of the site. 18In regard to the additional pergolas proposed, Mr Nash says that the increase in the size of the built form on the roof level will contribute to the visual bulk of the building. He says the extent of additional glazed awnings proposed in the Amendment H plans is 170.88sqm which represents a five-fold increase in the area of roof structure over the 6th floor level; the proposal to provide such a substantial "hat" over the upper level of the building will substantially and detrimentally increase the visual bulk of the building when viewed from Tusculum Street and Lane and change the character and appearance of the structures on the roof from open pergolas to an enclosed structure with tinted glazing. He says that the glazing of the pergolas would substantially alter the likely use of the terrace areas for entertainment, as they would be protected from the elements, thereby leading to an increase in the potential aural and visual privacy impacts on neighbours through the increased activity and use of the terraces. 19In response to suggested amended balustrade treatments, involving the application of strips of transparent film to the lower sections of the glass balustrades and demonstrated by Mr Wechsler on site and detailed in Exhibit C, Mr Nash said that this option did not address his concerns in relation to privacy and overlooking of adjoining properties. He says that the purpose of the planter box is to force viewers away from the edge of the building with further screening provided by the low level planting the boxes contain. Mr Nash accepted that even when standing back 800mm from the edge of the balcony the windows of No 4/11 are still visible but says the installation of the planter boxes will improve the situation and address sitting views. He also accepted that the primary impact of the changes proposed by the application was to the south and west. 20Another suggestion made by the applicant was to change the glazing proposed from tinted glass to clear glass. Mr Nash said that this would result in a minor change to the impact of the works but would not change his view on the unacceptable bulk and scale of the structure. He did accept that the deletion of the four corner sections of the pergola, as detailed in a roof plan included in Exhibit C, would be advantageous but still not enough to address his concerns. 21Mr Nash, in his Expert Report, Exhibit 3 had suggested alternate treatment of the planter boxes and balustrading however, the applicant did not accept that option.

Conclusion and findings 22On the basis of the site view, consideration of the planning controls and the evidence before me, I accept the evidence of the residents and Mr Nash that the proposed works would be excessive in terms of bulk and scale and have detrimental impacts on the streetscape of the area. The building is already significantly larger and taller than its immediate surrounds and for that reason, any proposal that adds to its mass is not considered appropriate. The additions approved to date have been advantageous to the applicant whilst detrimental to the character of the area and for that reason, I do not consider that any further additions to the building should be approved. 23Whilst not the subject of the application, any proposal that would reduce the bulk of the pergolas through the reduction in the number of beams would be desirable. This could include the use of clear glazing for the first 600mm as suggested by Mr Nash to provide weather protection with the remainder of the space lightweight construction. The addition of any glazing without subsequent reduction in the roof elements would not be appropriate. 24The proposal to delete the planter boxes from the terrace areas would adversely impact on the amenity of adjoining properties, particularly those immediately adjoining the site but also those further away. It was apparent from the site view that the balconies provide direct views to the private open space areas of adjoining properties. The fact that the owners of all of those properties did not object to the application is irrelevant. 25The purpose of the council's planning controls is to protect that amenity. Whilst there was some dispute between the parties in relation to what is an appropriate separation distance, the evidence is that the impacts of the upper floor balcony without the planter boxes are greater than without them. The structures will assist in reducing overlooking of adjoining properties, particularly from a sitting position. 26I do not accept the submissions of Mr Wechsler that the consent provides approval of a concept only with the details to be resolved at construction certificate stage. His suggestion that with "imagination" you can determine what a proposal is going to look like is ill conceived. A consent must be certain to those who issue it, benefit from it and those who reside near the land to which it applies. Its effect is to provide that level of certainty, not to allow departure from the plans lodged, exhibited, considered and determined. 27The conditions imposed by the council are appropriate in the circumstances of the case. The application of the film as proposed by the applicant does not achieve the outcomes envisaged by the council in requiring the planter boxes. 28For the reasons outline above, no additional structures should be added to the roof area and accordingly the appeal should be dismissed. It is however appropriate to delete condition 12 from the consent, as the council did not press the contention, nor oppose its deletion. That is the only change that should be allowed and for that reason, the appeal is allowed in part, only to address that condition. None of the other works proposed by the applicant are allowed. 29The Orders of the Court are: (1)The appeal is upheld in part. (2)Development consent DU/1999/554/H is modified by the deletion of condition 12. (3)The exhibits, other than exhibits A, C and 1, can be returned.

Sue Morris 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: 05 July 2013