Wilk v Inner West Council

Background

1. The appeal before the Court concerns an application to modify development consent D/2018/636 (Development Consent) which was granted by Commissioner Horton in accordance with section 34(3) of the Land and Environment Court Act 1979 (Court Act) on 19 August 2020.
2. The Development Consent approved alterations and additions to the existing dwelling at 36 Moore Street, Rozelle (Site) including a rear extension in an angular arrangement (Second Living Room) which accommodated the retention of the existing Jacaranda tree, by stepping the rear extension away from the southern boundary.
3. The application before the Court as originally filed on 29 November 2021 is as described in paragraphs [1.4] to [1.6] of the Amended Statement of Facts and Contentions filed on 23 June 2022 and was amended on 7 June 2022, with the consent of the Respondent, in accordance with the plans and documents in Exhibit B.
4. An agreement under s 34 of the LEC Act in relation to the original DA was reached by the parties and the Court made orders in accordance with the s 34 agreement on 19 August 2020, upholding the appeal and granting consent to D2018/639.
5. An application to modify the Court granted consent (Wilk v Inner West Council [2020] NSWLEC 1377) pursuant to Section 4.55(8) of the EPA Act was filed on 26 November 2021.
6. The MA was notified to adjoining properties from 15 February 2022 to 1 March 2022. Submissions were received from the two adjoining properties at 38 and 34 Moore Street. The key issues raised in submissions included the bulk and scale of the modification, non-compliance with the council controls, overshadowing and privacy issues.
7. The amended plans were also notified to the two objectors from 17 June 2022.
8. The son of the owner of 34 Moore Street attended the hearing on 2 August 2022, and addressed the Court, on behalf of his mother, the owner of 34 Moore Street, raising concerns with the overshadowing impacts and the bulk and scale of the proposed development.

The Modification Application

1. The MA seeks approval for:

• Removal of a jacaranda tree, that is in natural decline, and an Illawarra flame tree from the rear of the site and their replacement with one new replacement tree.
• Reconfiguration of the single storey rear addition to the rear of the dwelling from the approved angular arrangement (originally designed to accommodate the above trees) with a more conventional rectangular form and footprint (rear addition) which:
• Extends a lowered southern wall to align with the existing southern wall of the dwelling, setback 140mm from the southern boundary; Reduces the depth of the living room of the rear addition by 520mm increasing the rear setback by the same measurement; Reduces the overall height of the southern side of the rear addition; Minor internal layout changes at ground and first floor levels; and Minor changes to windows and addition of a skylight to improve internal amenity.

Statutory Context

1. At the time of the appeal the Leichhardt Local Environmental Plan 2013 (LLEP) was the relevant environmental planning instrument for assessment of the MA. The Site was zoned R1 General Residential pursuant to the LLEP. The R1 zone permits dwelling houses with consent, provided they are consistent with the objectives of the zone, which are as follows:

• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents
• To improve opportunities to work from home
• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.
• To provide landscaped areas for the use and enjoyment of existing and future residents
• To ensure that subdivision creates lots of regular shapes that are complimentary to and compatible with the character, style, orientation and pattern of the surrounding area.
• To protect and enhance the amenity of existing and future residents and the neighbourhood.

1. The Inner West Local Environmental Plan 2022 (IWLEP 2022) was gazetted on 23 August 2022. Clause 1.8A of IWLEP 2022 contains a savings provision which states that if a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. In any case, the IWLEP 2022 maintains the current zoning of the property as R1 General Residential and makes no real changes relevant to the MA.
2. Under cl 4.3A(3) of the LLEP, development consent must not be granted to development to which this clause applies unless landscaped area equal to 15% of the area of the Site is provided and site coverage does not exceed 60% of the Site area. On the basis of the evidence, I am satisfied that the proposed MA complies with the requirements of cl 4.3A of the LLEP with respect to landscaped area. The MA results in a minor exceedance of the site cover control, with a site cover of 101.91m2, breaching the control by 3.33m² or 3.4%. A written request under cl 4.6 of LLEP is not required in relation to a proposed variation to the site coverage development standard where associated with a modification application.
3. As the site area is 164.9m², the requirements of cl 4.4 apply in respect to the allowable floor space ratio (FSR). The original application exceeded the permissible FSR of 0.8:1 and the applicant relied upon a request to vary the development standard in accordance with cl 4.6 of LLEP. The extent of the additional proposed gross floor area under the MA is 7.3m². A written request to vary the development standard pursuant to cl 4.6 of LLEP is not required in this instance as the variation is associated with a modification application (North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468; SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65).
4. The site is located within a Heritage Conservation Area - General according to the Heritage Map at cl 5.10 of LLEP and known as 'the Valley'. As such I must consider the effect of the proposed development on the heritage significance of the area. On review of the drawings and the agreement of the parties on the matter, I am satisfied that the effect on the heritage conservation area is acceptable in accordance with subcl 5.10(4) of the LLEP.
5. Clause 6.2 of the LLEP requires consideration of certain matters in respect of the earthworks proposed by the development. I consider the extent of earthworks required to be minor and so be acceptable in respect of those matters set out at cl 6.2(3).
6. Clause 6.3 of the LLEP requires that the consent authority, or the Court on appeal, to be satisfied in respect of flood planning provisions. On the basis of the elevated rear addition and conditions of consent relating to flood planning, I am satisfied as required by subcl 6.3(3) of the LLEP.
7. Clause 6.4 of the LLEP requires that the consent authority, or the Court on appeal, to be satisfied in respect of stormwater management. On the basis of conditions of consent relating to stormwater drainage system, I am satisfied as required by subcl 6.4(3) of the LLEP.
8. In respect of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) (now the State Environmental Planning Policy (Hazards and Resilience) 2021), I am satisfied that the subject land has been residential in nature and is, or will be, made to be suitable for the development.
9. Leichhardt Development Control Plan (LDCP) applies to the assessment of the MA. In particular Part C, Section 1 of the LDCP sets out General Provisions relating to Alterations and Additions, Heritage Conservation Areas, Landscaping and Tree Management. Part C, Section 2 provides urban character controls relating to Rozelle and the Valley 'Rozelle' Distinctive Neighbourhood. Part C, Section 3 sets out various controls for Residential Development relevant to the MA, including general residential provisions, site layout and building design, private open space, solar access, visual privacy and acoustic privacy.
10. A development control plan is not an environmental planning instrument and so must be approached having regard to its controls and objectives, but with a degree of flexibility (see s 4.15(3A) of the EPA Act and Zhang). The most relevant of the LDCP controls are discussed below.

The Issues

1. No issue was raised in the Amended SOFAC (Exhibit 1B) by the Respondent in relation to the removal of the jacaranda tree and the Illawarra tree from the rear yard, as this issue was resolved with a landscaping condition requiring the provision of a replacement tree.
2. The remaining issues in dispute relate to the modifications proposed to the living room (the rear addition) to regularise its shape and enclose the courtyard by extending the rear wall and southern angular wall out to 140mm from the southern boundary. This amendment results in an increase to the current approved area of the living room by 7.3m².
3. Mr J Pagan for the Applicant and Ms K Gordon for the Respondent gave planning evidence. The experts prepared a joint report (Exhibit 3) and gave evidence in Court.
4. The town planning experts agreed that the only disputed issues relate to the reconfiguration of the footprint and form of the rear addition to the dwelling (Exhibit 3). They also agreed that the MA complies with landscaped area and that the modified development results in a minor breach of the site coverage control of 3.33m² (3.4%), with a site cover of 101.91m².
5. The key issues identified in the Respondent's Amended Statement of Facts and Contentions (Exhibit 1A and 1B) can be categorised as follows: 1. Floor Space Ratio (FSR) 2. Site Coverage 3. Building location Zone and side setbacks 4. Visual Bulk 5. Overshadowing

Floor Space Ratio

1. The experts agree that when measured to the inside walls, the additional floor space proposed is approximately 7.3m². In oral evidence, the planners agreed there are no privacy issues arising from the proposal.
2. In regard to the FSR, the main points of difference between the planners are whether the breach of the FSR control is acceptable and whether the currently approved development represents the maximum extent to which the site should be developed.
3. Mr Pagan is of the view that the proposed FSR is acceptable as it is consistent with the objectives of the FSR development standard of cl 4.4(1) of LLEP. Compliance with the relevant bulk and scale controls of the LDCP is achieved and the impacts of the bulk and scale of the rear addition is minimised at the southern boundary. Mr Pagan opines that the MA provides a balance between landscaping and built form and through careful design solutions, including minimising ceiling heights, and providing a splayed roof form for the rear addition, minimises the bulk and scale of the proposal.
4. Mr Pagan acknowledges the non-compliance but opines the proposed addition is acceptable for the following reasons:

• The relatively small additional area of about 7.3m² is not significant;
• The extension will not be visible from the street and therefore will have no impact on the streetscape;
• The proposal will have minimal impact on solar access or views from adjoining properties;
• The proposal is compatible with the surrounding built form, is contextually similar, is consistent with the likely FSRs of the neighbouring buildings, and achieves the FSR objectives;
• The proposal complies with other controls including rear and side setbacks, overall height and wall height controls;
• The visual impact will be minor.

1. Ms Gordon's opinion is that the approved development is already at the maximum capacity and no further increase in FSR should be approved for the following reasons:

• The modified development no longer provides a living room with an angled shape designed around an existing jacaranda tree, which justified a breach of the FSR control as it was designed in this manner to retain the tree;
• The modified design results in the loss of the tree and increases the FSR breach by 7.3m², resulting in a total breach of 15.9m² or 12.1% which almost doubles the breach. The modified design no longer provides a living room with an angled shape that retains the existing jacaranda tree and no longer provides a setback to the southern boundary;
• The modified development increases the visual bulk and shadow impact of the proposal on 34 Moore Street. Both of these impacts are increased by the extension of a blade wall at the rear of the building to the southern boundary;
• The increased breach of the FSR control cannot be supported as it is inconsistent with the objective (1)(a)(iii) of cl 4.4 of LLEP as the design does not minimise the impact of the bulk and scale of buildings; and
• Notwithstanding a cl 4.6 variation is not required in relation to a modification application, where a control is varied the objectives of the control must still be met in order to support the variation.

1. I accept Mr Pagan's evidence that the 7.3 m2 additional gross floor area is not significant and will not result in any material impacts on neighbouring properties. In particular, the design of the single storey rear addition with a lowered and splayed roof adjacent to the southern boundary will minimise any visual or overshadowing impacts on 34 Moore Street. The deletion of the proposed blade wall in the south-western corner of the ground floor rear addition (which is noted as a design change in Condition 2 - Exhibit 2) will, in my view, further minimise any overshadowing impacts on 34 Moore Street.

Site coverage

1. The planning experts agreed that the MA complies with the landscaped area control under cl 4.3A(1)(a) of LLEP.
2. They also agree that the approved development complies with the site coverage control under cl 4.3A(1)(b) of LLEP, but that the MA results in a breach of the site coverage control of 3.33m² or 3.4%.
3. Ms Gordon is of the view that as the site coverage control is one of a suite of controls that are intended to control the density and bulk of a development, including the FSR control. The impact of the breaches of these controls, together with breaches of the Building Location Zone (BLZ) control is, in Ms Gordon's opinion, unacceptable in terms of visual bulk and shadow impact upon 34 Moore Street.
4. Mr Pagan provided evidence that the breach of the site coverage control does not, to a material degree, result in additional impacts of bulk and scale or shadow upon 34 Moore Street to the south. The reduced roof height over the southern portion of the living room has been designed so that the proposal will have no greater shading impact than an alternative scheme that is set back 1m and that complies with site cover.
5. I prefer and accept Mr Pagan's evidence regarding the issue of site cover. The 3.33m² increase in site coverage will, in my view, not have any significant visual bulk or shadow impact on 34 Moore Street and will not be visible from the street,

Building Location Zone (BLZ)

1. Controls C3 and C4 of Part C3.2 Site Layout and Building Design of LDCP require that development shall be located within the BLZ, which is determined by averaging the front and rear setbacks of adjoining buildings.
2. Ms Gordon contends that the proposed rear addition in the MA breaches the BLZ. Ms Gordon interprets the BLZ as the average rear setback of 34 and 38 Moore Street (refer Exhibit 7)
3. Mr Pagan, is of the view that as the adjoining pattern of development is uncharacteristic, the BLZ is taken to be that of wider properties in the vicinity of the Site, is further to the rear than the BLZ identified by Ms Gordon, and the controls are complied with (refer Exhibit 7).
4. Whilst I concur with Ms Gordon's assessment of the line of the BLZ and that the proposal does not comply, the LDCP allows for a consideration of a variation to the BLZ, as follows: "C3.2 Where an adjoining development has a front or rear setback that is clearly uncharacteristic of the general pattern of development within the street, consideration will be given to that general pattern in determining whether to permit a variation to the BLZ that would otherwise be determined based on the adjoining buildings alone."
5. In the event of any proposed variation to the BLZ, the onus is on the applicant to demonstrate that the proposed building is consistent with the pattern of development in the immediate locality (usually taken as the same street) and that: 1. amenity to adjacent properties (i.e. sunlight, privacy, views) is protected and compliance with the solar access controls of this Development Control Plan is achieved; 2. the proposed development will be compatible with the existing streetscape, desired future character and scale of surrounding development; 3. the proposal is compatible in terms of size, dimensions privacy and solar access of private open space, outdoor recreation and landscaping; 4. retention of existing significant vegetation and opportunities for new significant vegetation is maximised; and 5. the height of the development has been kept to a minimum to minimise visual bulk and scale, as viewed from adjoining properties, in particular when viewed from the private open space of adjoining properties.
6. Having considered the evidence of the two experts, I am of the view that the BLZ can be varied in this instance, and I am satisfied that the requirements of the LDCP, outlined in [50] are met as: 1. the approved development establishes a BLZ at the rear of the site and the proposed modification proposes a reduced building depth and increased the rear setback by approximately 520mm. 2. the neighbouring property to the south at 34 Moore Street is uncharacteristic of the general pattern of development in the street in terms of rear setbacks, as it is underdeveloped and has not been extended to the rear to the extent of other properties on the street (for example 30 and 32 Moore Street). 3. as outlined in paragraph [49] Control C3.2 of the DCP permits a variation to the BLZ and permits a wider analysis of the pattern of development where adjoining properties are uncharacteristic, as is the case in this instance. 4. the proposed rear addition in the MA is generally consistent with the rear alignments of the existing developments at 22- 28 Moore Street and 30-32 Moore Street and is consistent with the pattern of development in the immediate locality (the same street). 5. the amenity of adjacent properties is protected and compliance with the solar access provisions is achieved. 6. the proposed development will be compatible with the existing streetscape and the rear addition proposed under the MA is not visible from the street. 7. the proposal is compatible in terms of size, dimensions privacy and solar access of private open space, outdoor recreation and landscaping. 8. the provision of a replacement tree will offset the loss of the existing jacaranda tree which is in declining health. 9. the height of the development has been kept to a minimum, with the southern wall of the rear addition at a maximum of 2.5m in height with a splayed roof, to minimise visual bulk and scale, as viewed from adjoining properties.

Visual Bulk

1. Ms Gordon raised concern in the joint expert report (Exhibit 3) with the unacceptable visual bulk of the proposed rear addition, which in her view, is as a result of the non-compliances with FSR and site coverage.
2. Contrary to this, Mr Pagan's evidence is that the rear addition is a single storey and provides a southern wall height of 2.5m and a lowered section of roof over this part of the rear extension, which reduces its bulk adjacent to the southern boundary. Mr Pagan notes that the reduced wall height along the southern boundary will only be around 700mm above the existing boundary fence, which in his opinion will not have an unreasonable impact on 34 Moore Street in terms of bulk and scale.
3. The height of the proposed rear addition was pointed out to the Court during the site inspection. From my observations, and considering the evidence of the experts, I am satisfied that the proposed rear addition will not have an adverse visual impact on 34 Moore Street and I prefer and accept Mr Pagan's evidence in this regard.

Side setbacks

1. The Respondent contends that the rear addition does not comply with the side setback control of C3.2 (C7) of LDCP. However, no evidence was provided by Ms Gordon regarding this issue in the joint expert report (Exhibit 3).
2. Mr Pagan's evidence is that the side setback control of C3.2 (C7) permits nil side setbacks for wall heights of up to 2.8m, with setbacks at a 60-degree envelope required for higher structures. Mr Pagan points out that the southern wall of the rear addition is a maximum of 2.5m in height, with a splayed roof at 45 degrees and a setback from the southern boundary by 140mm to match the existing elevation of the dwelling.
3. I concur with Mr Pagan's evidence and am satisfied that the proposal complies with the setback controls in the LDCP.

Overshadowing

1. C3.9 (C18) of LDCP requires retention of 2.5 hours of solar access to 50% of the total area of private open space (POS) between 9.00am and 3.00pm (adjacent to living room) in mid-winter. This level of sunlight access is not achieved for the neighbouring property at 34 Moore St as it is affected by significant overshadowing cast from the boundary fence. It should also be noted that the POS of 34 Moore Street is not directly adjacent to its living room.
2. Ms Gordon is of the view that the additional shadow impact on the POS of 34 Moore Street cannot be justified as it would unreasonably reduce the amenity of the residents of 34 Moore Street.
3. Mr Pagan provided evidence that there are large areas of POS in the yard of 34 Moore Street which achieve solar access for three hours between 10.00am and 1.00pm and the shadow diagrams demonstrate that persons sitting and standing in this POS of 34 Moore Street will be able to enjoy solar access amenity.
4. Mr Pagan submits that the minor overshadowing impact on 34 Moore Street is reasonable and the design of the rear addition with its reduced wall height on the southern boundary and lowered roof adjacent to the southern boundary, minimises overshadowing impacts. Mr Pagan also points out that the east/west orientation of the Site, with 34 Moore Street to the immediate south, and the change in ground levels between the properties, means that strict compliance with the DCP control is difficult and that, nonetheless, the objectives of the solar access control C3.9 are met.
5. I am satisfied, following my observations of the Site and objector's property, and hearing the evidence of the two experts, that the proposed rear addition has been designed in a manner which minimises overshadowing impacts on 34 Moore Street. This is consistent with the Objective 01(f) in C3.9 - Solar Access of LDCP to minimise the degree of overshadowing to neighbouring properties.

Conditions of Consent

1. There are several disputed conditions of consent between the parties.
2. The Applicant accepts proposed Condition 2, which requires the deletion of the blade wall element in the south-western corner of the rear addition, as this has an unnecessary overshadowing impact on 34 Moore Street. As noted in paragraph [40] I concur with the deletion of the blade wall.
3. The Applicant does not accept conditions 6.1 - 6.10, as set out in the Respondent's Amended Statement of Facts and Contentions (filed 23 June 2022) at pages 17-21. These conditions relate to various Tree Protection measures. In the Applicant's view they do not reasonably relate to the Application and are unnecessarily onerous. I am of the view that the Respondent's suggested conditions are onerous and the conditions remaining on the consent relating to the planting of a replacement tree are acceptable and will ensure the replacement tree is maintained in a healthy and vigorous manner.
4. The Respondent proposes as Condition 25A, the addition of a condition for the demolition and replacement of the existing fence within No. 34 Moore Street. The Applicant notes that the objector at No. 34 Moore Street has not requested these works to be undertaken and they will require the Applicant to undertake works outside the Site and cannot, therefore, be accommodated. On that basis, this proposed condition should be deleted, as any building works outside the Site cannot be included in the consent.

Conclusion

1. Having regard to the evidence and my findings in regard to the non-compliance with the FSR development standard and site coverage, there are no reasons why consent should not be granted to the Modification Application.
2. I am satisfied, based on the evidence and my observations of the Site and surrounding properties, that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable, and that the site is suitable for the development as proposed.
3. In the context of the alterations and additions the subject of this consent, it is not contended by the Council that the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted. I am satisfied in accordance with Section 4.55(2) of the EPA Act that the MA is substantially the same development as that approved under development consent D/2018/639.
4. The MA was publicly notified by the Respondent in accordance with the Council's Community Engagement Framework Policy. Matters raised by persons who made submissions to the Council (and the Court) concerned non-compliance with Council controls, privacy, overshadowing, landscaping, and bulk and scale. It is apparent that the majority of these issues have been addressed. I have considered the issues raised by objectors and the advice of the experts, and, on the basis of that evidence and the conditions of consent, I am satisfied that the proposal is satisfactory and that the impacts can be appropriately managed.
5. For these reasons, I am satisfied that consent should be granted.

Orders

1. The Orders of the Court are: 1. The appeal is upheld 2. The application to modify Development Application D/2018/639 for ground and first floor alterations and additions to the existing dwelling on land identified as Lot 16 in Deposited Plan 769 and known as 36 Moore Street Rozelle is approved subject to the terms and conditions set out in Annexure A and B. 3. All Exhibits are returned except for Exhibit 2.

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Annexure A Annexure B 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: 29 December 2022