Land and Environment Court New South Wales Medium Neutral Citation: Clarke v Inner West Council (No 2) [2020] NSWLEC 1372 Hearing dates: 2 July 2020 Date of orders: 2 July 2020 Decision date: 02 July 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The Applicant is granted leave to rely on the amended shadow plans prepared by Innovate Architecture ('Shadow Calculations - Existing Hedge Along Boundary & 5.5m Wide Hedge At 4m High' Drawing no. 11/C dated April 2020) and amended clause 4.6 variation statement prepared by Planning Ingenuity dated 18 May 2020 for the purpose of the development application. (2) The clause 4.6 written request to vary the landscape development standard under cl 4.3A of the Leichhardt Local Environmental Plan 2013 is approved. (3) The appeal is upheld. (4) Development Application DA/2019/489 for alterations and additions to existing terrace including a new pergola and outdoor barbeque area is approved subject to the conditions contained in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – alterations and additions – Federation cottage – deficient landscaped area – artificial turf Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Cases Cited: Clarke v Inner West Council [2020] NSWLEC 1269 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94: [2016] NSWLEC 7 Category: Principal judgment Parties: Michael Clarke (Applicant) Inner West Council (Respondent) Representation: K Huxley (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: McCabe Curwood (Applicant) Inner West Council (Respondent) File Number(s): 2020/70575 Publication restriction: Nil EXTEMPORANEOUS Judgment 1. COMMISSIONER: This is a Class 1 appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the refusal of Development Application D/2019/489 ("DA"). The DA seeks consent for the alterations to an existing three-storey terrace at 83 Nelson Street, Annandale ("site"). 2. The development at issue is the proposed pergola and outdoor terrace located at the rear of the property. 3. The works are proposed proximate to the common boundary with 81 Nelson Street. Growing along this common boundary, on the applicant's land, is an existing hedge which the adjoining owner, Mr Bryan Cummins, maintains is unauthorised and casts unacceptable shadow onto his rear outdoor space. Mr Cummins believes the proposed development will exacerbate this overshadowing issue and, on that basis, objects to the DA ("the objector"). 4. These proceedings were first listed before me for a conciliation and hearing under s 34AA of the Land and Environment Court Act 1979 ("LEC Act") on 29 May 2020. They were conducted over the telephone in accordance with the Court's COVID-19 Policy. 5. At that time the Council indicated that it was supportive of the DA and prepared to enter into a s 34 agreement subject to me hearing from the objector who was represented by his solicitor, Mr Jonathan Bolton. 6. Mr Bolton addressed the conciliation part of the process at the outset via telephone. First, he explained that his client had been detained overseas due to COVID-19, and next asked that the matter be adjourned so that he could consider the accuracy of the applicant's shadow diagrams and the resulting impacts for his client's property. In the circumstances, I considered the adjournment appropriate and therefore terminated the conference and arranged for the matter to be listed for hearing under s 34C of the LEC Act. 7. Before the scheduled hearing, the objector on 9 June 2020 made an application by Notice of Motion to be joined as a party to the appeal. The Registrar refused this application; Clarke v Inner West Council [2020] NSWLEC 1269) and confirmed the hearing date of 2 July 2020 before me. 8. At the start of the hearing, this time by Microsoft Teams, the applicant was granted leave to rely on amended plans which included revised shadow diagrams prepared by Innovate Architecture ("Shadow Calculations – Existing Hedge Along Boundary & 5.5m Wide Hedge at 4m High" Drawing No. 11/C dated April 2020), and an amended cl 4.6 variation statement prepared by Planning Ingenuity dated 18 May 2020) seeking a variation to the landscape area development standard in cl 4.3A of the Leichhardt Local Environmental Plan 2013 ("LEP"). 9. These amended plans had earlier been provided to the objector, and Mr Bolton again appearing on the objector's behalf was given opportunity to address the Court about his clients' position. His opposition to the DA remained unchanged and his concerns about the existing hedge shadow and the proposed works were further agitated. 10. The Council, again, said that it supported a conditional approval of the DA and the relaxation of the landscape area control under cl 4.3A of the LEP for the reasons set out in the applicant's cl 4.6 written request. With respect to the objector's complaint about overshadowing, the Council said that the revised shadow diagrams put to bed any compliant that the proposed works would generate any unacceptable shadow to the rear of the objector's property. Decision 1. For the reasons that follow, I have decided to approve the development application subject to the Council's proposed conditions of consent. Consideration 1. The parties' planning experts, Mr Hugo on behalf of the Council, and Mr Mead on behalf of the applicant, have prepared a joint report dated 1 July 2020 which supports an approval of the DA. It addresses the contentions initially raised by the Council and explains how they are now resolved. The Council accepts the evidence of the planners and is supportive of the variation of the landscape control and an approval of the applicant's amended application subject to the agreed conditions. 2. In response to the objector's concern the planners have assessed two versions of the shadow diagrams: one that takes into account the existing hedge that extends along part of the southern boundary of the site, and models a hedge of 4m in height (and 5.5m width) as required to comply with conditions 3(j) and 68 of the earlier modified development consent (M/2017/162); and one that excludes this hedge and demonstrates that there is no unacceptable shadow impact generated by the proposal for the objectors' adjoining site. 3. Mr Hugo also agrees with the interpretation of the earlier conditions which Mr Bolton explained at length to the Court. That is, he accepts that the hedge required under that earlier conditions would appear to be perpendicular to the boundary rather than running along the boundary as it presently exists. However, as Mr Hugo made plain in his oral evidence, the compliance of the existing hedge with earlier conditions of consent under another approval is not relevant to the assessment process in this case. That is not to say, however that the impacts of the hedge are not relevant and have not been considered. Both planners told the Court that in their assessment of the impact of the development they had regard to the vegetation existing on the site, including the hedge, and the shadow impacts on the adjoining neighbour's property. Having carried out that assessment each planner formed the view that any impact was acceptable and the development should be approved subject to the agreed conditions in Exhibit A. 4. Mr Bolton suggested, in the event that the Court decided to approve the DA, that an additional condition could be imposed to limit the height of the applicant's hedge along the common boundary. However, as Mr Hugo pointed out, the hedge has no relationship to the development the subject of this DA and in that circumstance, there is no power to impose such a condition. I agree with Mr Hugo's interpretation of the EPA Act and reject the suggestion to control the height of the existing hedge by a condition in this appeal. 5. As there is no evidence that the proposed development will generate unacceptable shadow on the objector's land, his objection to the DA is no basis to withhold development consent. Clause 4.6 written request 1. Having dealt with the objector's concerns I now turn to the development's breach of the landscape area control in cl 4.3A of the LEP and a consideration of the applicant's amended cl 4.6 written request prepared by Planning Ingenuity dated 18 May 2020 (Exhibit C). 2. As the site area is 301.6sqm, the parties agree that the proposed landscaped area resulting from this development at 38.09m2 or 12.6% of the site area is non-compliant with the standard. 3. In this case the development standard in cl 4.3A of the LEP requires 20% of the site area be landscaped or an area of 60.32m2. The clause is set out below and provides: 4.3A Landscaped areas for residential accommodation in Zone R1 (1) The objectives of this clause are as follows— (a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents, (b) to maintain and encourage a landscaped corridor between adjoining properties, (c) to ensure that development promotes the desired future character of the neighbourhood, (d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water, (e) to control site density, (f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space. (2) This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential. (3) Development consent must not be granted to development to which this clause applies unless— (a) the development includes landscaped area that comprises at least— (i) where the lot size is equal to or less than 235 square metres— 15% of the site area, or (ii) where the lot size is greater than 235 square metres—20% of the site area, and (b) the site coverage does not exceed 60% of the site area. (4) For the purposes of subclause (3)— (a) the site area is to be calculated under clause 4.5 (3), and (b) any area that— (i) has a length or a width of less than 1 metre, or (ii) is greater than 500mm above ground level (existing), is not to be included in calculating the proportion of landscaped area, and (c) any deck or balcony or the like (whether enclosed or unenclosed) is not to be included in calculating the site coverage if— (i) it is 2.4 metres or more above ground level (existing), as measured from the underside of the structure and the area below the structure is able to be landscaped or used for recreational purposes, or (ii) the finished floor level is 500mm or less above ground level (existing). 1. The power to vary the development standard under cl 4.6 of the LEP is subject to the restrictions in subcll 4.6(3) and (4) namely: (3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. 1. The applicant's written request for variation of the development standard is advanced on the basis of excluding the artificial turf on the site which is in the order of 36% of the site. It seeks to justify the contravention of the standard pursuant to cl 4.6(3)(a) by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the development achieves the objectives of the clause irrespective of the numerical breach. The written request provides as follows: "In order to address the requirements of subclause 4.6(4)(a)(ii), the objectives of Clause 4.3A is addressed below. Objective (a) – The proposal will retain the existing landscape area and will not increase the existing site coverage. The treatment of the yard, which includes the provision of artificial turf, is consistent with this objective providing a site specific response to an area that does not achieve good levels of sunlight. The artificial turf provides a more useable area all year round with the appearance of natural turf for the enjoyment of the residents. Objective (b) – The proposal will not alter the landscaping to the southern boundary shared with No. 81 Nelson Street. Similarly to the north, the limited existing landscaped corridors between the adjoining dwellings will also be retained. It is noted that this space to the north is limited given the existing nil setbacks of the existing and neighbouring buildings. Objective (c) – The proposed structure will not change the dwelling's relationships with the Annandale Heritage Conservation Area. The proposal will not be visible from Nelson Street and will retain the existing façade. To the rear, the contemporary addition is compatible with the character of existing structures located along Susan Street. Accordingly, the non-compliance with the landscaping does not impact compatibility with the character of the area. Objective (d) – The proposed structure is located above an existing hardstand area and will not alter the retention and absorption of surface drainage water. The provision of artificial turf has not significant impact on runoff from the site, being a small area adjoining deep soil areas at the rear of the site. Objective (e) – The proposal does not increase the density on site as it is unenclosed and will not generate any additional gross floor area. The contemporary structure is setback from the rear boundary and is open in form which is compatible with the character of additions along Susan Street. Objective (f) – The building footprint of the dwelling is not modified by the proposed development. The proposed structure is located on the existing terrace above the media room and garage. The proposed works will improve the amenity of the private open space and will not alter the existing landscape area (including the existing artificial turf area) which ensures that the building footprint is minimised, and private open space will be retained. 1. The written request also seeks to justify the contravention of the standard under cl 4.6(3)(b) by demonstrating environmental planning grounds as justification for contravening the development standard. It states: "1. The existing landscaped area is non-compliant with the development standard required under Clause 4.3A of the LLEP 2013 (if the artificial turf area is excluded). The proposed works will provide an open structure above the existing terrace which will not result in any further loss of landscaped area. Rather, the proposed structure will provide an element which will enhance the private open space at the rear of the site. 2. The existing spa on the subject site was erected under the SEPP Exempt and Complying Development Codes 2008, Part 2 Exempt Development, Subdivision 30 Portable swimming pools and spas and child-resistant barriers. This is permitted given the site is not identified as a heritage or draft heritage item or is within a foreshore area. This has however reduced a portion of the landscaped area. Notwithstanding, this element is not visible from the public domain and will not impact the streetscape quality of the locality whilst providing an additional amenity benefit. 3. This application does not increase the site coverage or floor space ratio non-compliances and will retain the landscaped area as is existing, which includes the existing artificial turf area at the rear of the dwelling. The western side of Susan Street is characterised by two storey developments containing garages, dwellings and additional structures. There is no landscaped area situated on this rear boundary and the proposed development will retain the existing built form viewed from Susan Street. 4. The proposal will provide a structure which will significantly improve the amenity of the future occupants without impacting the character of the site viewed from Susan Street or the nature of the Annandale Heritage Conservation Area. The structure is an open form and will not contain any solid walls and will not create any unreasonable bulk or scale. The existing character of the dwelling viewed from Nelson Street will be unaffected in this proposal and the front setback landscaped area will be unchanged. 5. The existing building contains contemporary additions visible from Susan Street in the form of the garage and media room. The proposed open structure will complement this form and the character established along Susan Street, which is characterised by glazing, balustrades, garages and nil setbacks. The properties located opposite the site on Susan Street and the fabric of the Annandale Conservation Area will not be impacted by the proposal. 6. The proposed pergola is setback from the rear boundary and is designed as a contemporary addition. This element will not create any unreasonable visual impact to the area and is situated below the ridge height of the neighbouring gazebo. The structure is compatible with the existing elements located along Susan Street and will not detract from the heritage character of the area. As mentioned, the western side of Susan Street is characterised by two storey dwellings containing garages, glazing and additional structures. To the casual observer, this element will appear compatible within the locality. 7. The proposal will retain solar access to the neighbouring property (No. 81 Nelson Street), which will receive 3 hours of solar access to approximately 75% of the private open space from 12pm to 3pm. The development will also retain aural and visual privacy to the neighbouring properties as is existing. Additionally, no view loss is expected to occur from the proposed development. … As outlined above, it is in any case considered that the proposal will provide for a better planning outcome than the existing development due to the enhanced occupant amenity. At the very least, there are sufficient environmental planning grounds to justify contravening the development standard." 1. For the reasons outlined above taken from the written request, I am satisfied that it has adequately addressed the matters required to be demonstrated by subcl (3), and it is unreasonable and unnecessary to require strict numerical compliance with the standard in the circumstances because I accept that the development achieves the objectives of the standard. I also accept the environmental planning grounds referred to in the written request as justifying the breach of the standard in this case. 2. The evidence is that the proposed development will be in the public interest because it is consistent with the objectives of the standard, and I accept that it also is consistent with the objectives for development within the zone in which the development is proposed to be carried out particularly for the following reasons: "Clause 4.6(4)(a)(ii) also requires consideration of the relevant zone objectives. The objectives of the Zone R1 General Residential are as follow: • 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 complementary 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. The proposed development will not reduce the existing landscaped area and not impact the achievement of the zone objectives. The proposed development will continue to provide for the housing needs of the community and will improve the amenity for the residents of the site. The proposed development will not modify the character of the Annandale Heritage Conservation Area and will not be visible when viewed from Nelson Street. Additionally, the proposed open structure is contemporary in form and is compatible with the character of Susan Street. The proposal will not alter the existing site coverage or floor space ratio, and will maintain the bulk and scale of the existing building. The amenity of the neighbouring properties will be unaffected by this proposal as it will not generate any additional visual or aural privacy impacts given the development will retain the private open space use. With regards to the solar gain of the neighbouring properties, the proposal will not generate unacceptable overshadowing on 21 June, and will retain solar access are required under the DCP. The landscaped area variation does not contravene any objectives for the zone and for that reason the proposed variation is acceptable." 1. Clause 4.6(2) permits a consent authority to grant development consent for development even though the development would contravene the standard imposed by the LEP subject to prescribed preconditions. The preconditions under cl 4.6(4)(a)(i) and (ii) have been satisfied: Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94: [2016] NSWLEC 7 and Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [14], therefore I have decided to uphold the request to vary the standard in this case under cl 4.6(2) and grant conditional development consent to the amended application. 2. With respect to cl 4.6(4)(b) I note that that the development does not raise any matter of significance for State or regional environmental planning, and in the absence of the concurrence of the director I have power under the LEC Act to approve the development. Orders 1. The Court orders that: 1. The Applicant is granted leave to rely on the amended shadow plans prepared by Innovate Architecture ('Shadow Calculations - Existing Hedge Along Boundary & 5.5m Wide Hedge At 4m High' Drawing no. 11/C dated April 2020) and amended clause 4.6 variation statement prepared by Planning Ingenuity dated 18 May 2020 for the purpose of the development application. 2. The clause 4.6 written request to vary the landscape development standard under cl 4.3A of the Leichhardt Local Environmental Plan 2013 is approved. 3. The appeal is upheld. 4. Development Application DA/2019/489 for alterations and additions to existing terrace including a new pergola and outdoor barbeque area is approved subject to the conditions contained in Annexure 'A'. ………………………… S Dixon Senior Commissioner of the Court Annexure A (132313, pdf) ********** Amendments 18 August 2020 - Pursuant to UCPR r 36.17, amend the judgment of 2 July 2020 by: 1. removing the words "By consent of the Parties," from the introductory sentence of the final orders found on the "Decision" section of the cover sheet of the judgment and paragraph 27 of the judgment, so that it now reads "The Court orders that:". 18 August 2020 - Correction to catchwords. 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: 18 August 2020