Land and Environment Court of New South Wales CITATION : Hexiva Pty Ltd v Sydney City Council [2004] NSWLEC 527 APPLICANT Hexiva Pty Ltd PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10410 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Alterations and additions to a residential flat building LEGISLATION CITED: South Sydney Development Control Plan CASES CITED: DATES OF HEARING: 17/09/2004 EX TEMPORE 09/17/2004 JUDGMENT DATE : APPLICANT Mr R. Wechsler, director of Hexiva Pty Ltd RESPONDENT LEGAL REPRESENTATIVES: Mr A. Pickles, barrister instructed by Ms L. Finn, solicitor of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 17 September 2004 10410 of 2004 Hexiva Pty Ltd v Sydney City Council JUDGMENT 1 It seems to me that the council is really not opposing the glazing in the foyer area not opposing the realignment of the existing bedrooms as they are the way they are coming to the main wall which would provide you with no greater floor area than currently provided in the amended plan by that reconfiguration of that wall and the council is not objecting to the pergola that is already on the plan as such bearing in mind that the definition of the pergola is that it always remain open and with timber and not timber necessarily but it always remains open without being enclosed and that the two issues in contention as I understand is one with acceptable windows and that is the additional windows in that southern elevation and the bedroom areas which will allow for four two bedroom units as opposed to the current one bedroom unit. 2 This matter has come before the Court today as a s 96 application in respect of an approval granted by the South Sydney City Council in August 1999 for alterations and additions to a residential flat building at the property known as 5 Tasculum Street, Potts Point. 3 The s 96 application is for the enclosure of the foyer area and for the reconfiguration of the bedroom and balcony and the windows to the southern elevation for the additional bedroom that were approved under the 1999 application. The other issue is in respect of four additional bedrooms that would be added to the top level, level five of the building and they will be converted from one bedroom unit to a two bedroom unit both on top floor level 5 unit. 4 The application is one that was the subject of a deferred commencement and there were a number of matters that needs to be satisfied in that regard to the landscape plan and there are conditions of consent to the application of 1999. The s 96 provisions of the Act do allow for modifications and the Court must have regard to the merits of the situation. The South Sydney Development Control Plan allows for a floor space ratio of 1.5:1. The proposal are as currently approved 2.7:1 and with the additional floor space would bring the building to 2.86:1. (??) 5 The height of the building is from some 15.8 m and the height of the DCP Control provides for 12 m. In terms of the planning provisions the subject site is also within a conservation area of Potts Point and there are controls to that effect as well. As a s 96 application the specific controls are not necessarily ones that I need to focus on but I must look at the overall merits of the application, and I must do an assessment under s 79C of the Act and in that regard I must have consideration to the impacts of what the s 96 amendments would achieve. 6 It has been submitted to the Court that the amendments are minor, they may be minor when one looks at what was approved from 1999 that is not the test to the Court, the Court must look at the impacts of what the amendments proposed today are. The Court has had the benefit of the applicant's submissions and has also had the benefit of the original assessment report done by South Sydney Council and has seen the conditions and the plans that were approved. I am satisfied in terms of s 96 that the amendments as proposed are ones that can be considered in terms of a s 96 modification that is whether it is substantially the same development. 7 I now move to the merits assessment of the application. The council has agreed that it does not object to the glazing or enclosure of the foyer area and the minor movement of a wall that joins the bedroom and the balcony. The real issue is the one of the additional bulk that would be created by the additional floor space of the four bedrooms at the level 5 of the building and in my assessment having regard to the adjoining property and having regard to what impact of the additional bulk would be I am not satisfied that the s 96 warrants approval in respect of the additional bedroom. The building as it currently has been approved provides for a second unit at this point and in my consideration I am not satisfied that it would provide for an appropriate addition to the building and it would only increase its bulk in the building that is already well in excess of the current control. 8 With respect to the overshadowing the Court was minded to consider it further I would not allow for accurate shadow diagram and in my assessment the additional bedroom cannot be justified whilst the council's Development Control Plan provides for a mix in terms of accommodation and number of bedrooms in my assessment that was not outweigh the impact that the additional bedrooms would create in terms of the bulk of the building. The building adjoins to either side buildings which are much reduced in their scale and in the context of the area it is more appropriate for those additional bedrooms not being provided. With respect to the windows on the southern elevation it is noted that the windows on the northern elevation have already been approved. With respect to the windows on the southern elevation which come to within 1.35 m the common boundary. It has been generally agreed that the windows as proposed in the s 96 application would create privacy concerns for adjoining properties and in that regard it has been discussed as to what would be an appropriate alternative. The applicant seeks 1.5 m sill height. However, I am of the opinion that in order to ensure privacy to adjoining properties that 1.6 sill height is appropriate which would then allow for transparent glazing which would then provide for the amenity of that bedroom to be increased by having clear glazing and highlight window which can be a maximum of 2.7 m in length and sill height of 1.6 m with no restriction of the depth of that window. That particular bedroom also has the benefit of a westerly window or rather glazing to the terrace area. The Court will provide for formal order orders on the basis of a new set drawings to show or to reflect the Court's decision in this matter. It is imperative that a matter such as this there are often sometimes inconsistencies in plans, this may need to be rectified to s 96 application and it is important that a proper set of plans to accept the Court's decision be provided before the formal orders of the Court are issued. And on the receipt of those plans I will then issue orders which will have the effect of: 1. The s 96 application submitted to the Sydney City Council and as amended is upheld in part. 2. The amendments will be shown in an amended set of drawings which will be then be inserted into the formal order as to the approval. 3. Conditions 4 of council's development consent will be amended to reflect the new drawing. 4. The exhibits will be returned to the parties after I have received the amended drawings. _________________ J S Murrell Commissioner of the Court Rjs 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.