Land and Environment Court of New South Wales CITATION : Katz v Waverley Council [2006] NSWLEC 634 APPLICANT Neville Katz PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11471 of 2005 CORAM: Murrell C KEY ISSUES: Development Application :- Dwelling house, double garage, floor space ratio controls, streetscape, solar access, impact on adjoining property, privacy LEGISLATION CITED: Environmental Planning and Assessment Act Waverley Local Environmental Plan 1996 DATES OF HEARING: 05/09/2006 EX TEMPORE JUDGMENT DATE : 09/05/2006 APPLICANT Mr V Conomos, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, solicitor SOLICITORS Staunton & Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 5 September 2006 11471 of 2005 Neville Katz -v- Waverley Council JUDGMENT 1. This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Waverley Council's refusal of a development application for the property known as 11 Brown Street, Bronte. 2. The subject area can be described as containing relatively lower density in comparison to the Waverley local government area with detached dwelling houses predominating. 3. On the subject site currently there is a cottage similar to the adjoining cottages to the north. The area can be described as varying architectural styles, with many of the original houses in Brown Street and opposite the subject site there is a recent dual occupancy development of contemporary architecture. It is also noted that there are other dwelling houses of contemporary architecture and there have been recent approvals in particular at No. 7 Brown Street. 4. The Court met here on-site this morning and the Council advises that subject to the amendments proposed or the recommendations contained within Mr Newbold's report, the Court-appointed expert in these proceedings that it agrees to the proposed development. The Council however has not given delegated authority for the matter to be dealt with as consent orders. 5. The Court has had the benefit of a site inspection and a viewing of the streetscape and the Court has also had the benefit of visiting the adjoining premises at No. 9 Brown Street, Mrs Neilson's property and she made written objections to the development application. 6. I will say by way of background that the original development application submitted to the Council in 2002 was for a significantly larger development with a double garage at the front on the boundary. It was also one that was in excess of Council's FSR and other controls. Mrs Neilson submitted a letter in June 2002 against the original proposal. It is noted that a number of her concerns in her letter of objection have been taken into consideration in subsequent amended plans. She also objected to a later set of plans as of the 4th of May 2004 and her concerns in that letter related to bulk and privacy from the point of view of her dwelling house in particular she is concerned that the proposal provides for a kitchen on the southern side of the building opposite her bedroom and she also is concerned about windows on the southern side of the dwelling house and the visual and acoustic privacy that would be in her opinion unduly impacted by the proposed development in particular. At that time she also objected to the swimming pool and the fact that it was unnecessary. In conclusion she stated that the proposal will have undue impact on the amenity of her premises in regard to privacy, solar access and loss of value to her dwelling and the proposed design is not consistent with the dwellings in the area. 7. Also by way of background when this matter originally came to the Court, there was a Statement of Issues that the Council provided and included in the issues was one to do with heritage. The issue of heritage is not pressed today it was in terms of the character of the street. 8. Mr Newbold in his capacity as the Court Appointed Expert with expertise in urban design, architecture and planning provided advice to the parties and following his advice a number of amendments have been undertaken in the plans now before the Court and it is noted that his latest recommendations have also been incorporated in the plans. Mr Newbold was concerned about the contribution of the dwelling to the streetscape in particular, picking up on elements of architectural styles to ensure a 'fit' in the streetscape. 9. The Court has considered the streetscape while the dwelling now proposed will be of a contemporary design I am satisfied it is one that will sit comfortably in the streetscape and will not represent an overdevelopment. The Court has had the benefit of Mr Newbold's advice also on solar access and indeed the applicant provided additional solar access diagrams to assist in an assessment of the impacts on No. 9. 10. The issue in these proceedings relates to the reasonableness of the development and the reasonableness in terms of expectations of affected properties and the reasonableness of the development in terms of a development when assessed against Council's planning regime. 11. Council's planning regime includes the Waverley Local Environmental Plan 1996 and the site is zoned Residential 2A, the low density zone. The objectives of the zone are: - to allow for housing only in the form of dwelling houses and boarding houses; - to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses 12. The other clause is relevant is cl 10 that provides: "the Council shall not grant consent (in this case of the Court) to the carrying out of any development within a zone unless the Council is satisfied that the development meets one or more of the objectives of the zone". Therefore in the Court's assessment I must have regard to the proposal being consistent with one or more of the objectives. 13. The other relevant document for assessing the application is the Development Control Plan. It is noted that in terms of Council's recent or more current of 2005 there is a savings provision to the effect that the development application is to be considered as at the time of receipt of the application and in this regard the Council has provided the DCP effective at the time the development application was lodged. 14. The proposal generally complies with the DCP. 15. During the hearing today there has been discussion relating to the rear building line of any dwelling and the design criteria is that "dwelling houses maintain setbacks that ensure that they are visually harmonious with other buildings in the streetscape". The emphasis being on the streetscape and the design solutions include that the front building line is built to the predominant front building line of buildings in the vicinity. The proposed development is set back further than the dwellings on either side of the site that is No. 9 and No. 13. 16. For the rear building line of any dwelling the DCP states: "the rear building line of any dwelling house proposal shall be the same as the predominant rear building line of buildings in its vicinity and where no predominant building line can be identified the front building line shall achieve the objectives for setbacks outlined above". 17. The Court has the benefit of the Court Appointed Expert's opinion it also has the benefit of the on-site inspection this morning. It can be seen that the garage at the rear and on the southern boundary of the neighbouring property at No. 9 also has rooms contained within the out building and the issue of the rear building setback must be considered in the context of the rear out building in the backyard of No. 9 as well as the dwelling. I am satisfied in terms of the controls that the proposal is one that is not inconsistent with the design solutions or in terms of achieving the objectives for setbacks. 18. The issue of reasonableness is a balancing exercise and the Court must assess development applications as I said against the planning controls. Mr Betros, the Applicant's town planner has provided an assessment table in terms of the controls and it can be seen from that the proposed development is one that more than satisfies Council's controls. In particular the FSR is below the 0.63:1, slightly below. The height of the proposal is in excess of two and a half metres below Council's control that is in terms of the maximum overall building height of 9.5 m and the proposal also satisfies Council's controls in terms of setbacks. 19. It is noted that the setback to the southern boundary is a minimum of 900 mm and this includes the garage component of the proposal and the dwelling at No. 9 is also setback about 900 mm from the boundary. 20. It is understood that people certainly value their solar access and the role of the Court is to assess a development application in terms of maintaining reasonable amenity to the open space of adjoining properties and to the rooms, in particular solar access. Council's controls in terms of the DCP require two hours of solar access to a collector which is defined or includes windows of rooms. Mr Newbold has advised the Court that the main living area at No. 9 will receive with the proposed development approximately three hours of sunlight and the solar access to the main bedroom will be reduced to what it currently receives. The solar access to the rear sunroom, it is noted that Mr Newbold has indicated it will receive solar access for eight months of the year although it will not receive solar access at the mid winter point. 21. The Court must also have regard to the total dwelling house and its accommodation at No. 9 and it is noted that there are rear rooms attached to the freestanding garage at the rear and that northern solar access will be received to these rooms largely unaffected by the proposed development. It is understood that neighbours will not necessarily embrace new developments in particular where there is seen to be an impact on the property. The issue for the Court is not that there be no impact, the issue for the Court is the reasonableness of that impact and whether the Court considers appropriate amenity will be maintained to the adjoining property. 22. In terms of solar access, I am satisfied with the benefit of the shadow diagrams and those that show the solar access on the walls of the dwelling at No. 9 and the windows that there is reasonable solar access maintained by the proposed development. It has been stated by the Court previously when properties are built less than a metre from the northern boundary it is unreasonable to expect continuous solar access to be achieved through north facing windows as the subdivision pattern and orientation of properties east to west do not allow for continuous northern sun along side boundaries.. 23. The proposed development complies with the setback, that is the 900mm setback and it would unreasonable to expect a greater setback for the subject dwelling having regard to the Council's controls and having regard to other development in the area also that have similar side boundary setbacks. 24. It is noted that the owner of No. 9 is also concerned about the windows of the kitchen and laundry areas to her subject property. Most dwellings would take advantage of orienting their living areas for solar accessand the service areas would generally be on the southern side of the dwelling as indeed it is for No. 9 where the kitchen is also located on the southern side of the dwelling adjacent to the boundary. For the subject dwelling the setback requirement is maintained and the applicant has deleted the door to the kitchen area such that there is now only a window and it is also noted from the plan that the window will sit approximately no higher than the 1.8 m lapped and capped fence proposed between the properties. The window to the laundry and the bathroom on the southern boundary towards the street frontage will be obscure glazing, and clearly and reasonably they will be openable windows. Also the windows it is noted to the living area on the eastern end of the southern boundary are highlight windows and I am satisfied they would not represent a privacy concern to No. 9. 25. The issue for the Court is the reasonableness of windows and openings and in a residential situation it is not unreasonable to have windows opening to the side boundary. With respect to noise I am satisfied the proposed development is one that would not create unreasonable impacts in terms of noise from a residential property. 26. The Court, as I said, must look at the development application in the context of the controls and the reasonableness of the development and while people do not embrace change at the same time Council's controls contemplate the form of development that it considers to be reasonable in an area and in terms of Council's controls the proposed development is more than compliant and I am also satisfied in terms of the streetscape that the proposal will be compatible having regard to the detail of the materials and finishes and the detail of the design to contribute to the streetscape and not be inconsistent. 27. The issue of the swimming pool was raised however swimming pools are found in many residential backyards in Sydney and I am satisfied that the noise from the swimming pool in terms of the pump will be ameliorated by the location of the pool pump etc on the eastern boundary at the rear. 28. The owners have reasonable expectations for a dwelling house and ancillary facilities on the subject site and I am satisfied that the proposal will not create undue, unreasonable or adverse impacts in terms of the surrounding properties and also bearing in mind the consistency with the controls. I am also satisfied that the solar access maintained to the dwelling at No. 9 is reasonable and I have considered the orientation of the subdivision pattern of the area and I must also have regard to other rooms within No. 9 or other facilities in terms of the outbuilding for solar access. The Court concurs with the Court-appointed expert's recommendations in terms of the amendments that have come forward in the plan to the Court and also with the Council's assessment that it no longer opposes the development application. 29. The purpose of these proceedings has been to ensure that the objector's concerns are comprehensively addressed and considered in the determination of the appeal. 30. Accordingly based on my assessment with the assistance of the Court appointed-expert and the view today and having heard and understood the objections and having regard to reasonable expectations of development for the subject site, the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as 11 Brown Street, Bronte, is upheld 2. The development application submitted to Waverley Council, and as amended and shown in the plans of August 2006 Exhibit A is approved subject to the conditions contained in Annexure A. (Annexure A includes additional conditions recommended by Mr Newbold and shown in Exhibit G). 3. The exhibits except for 3, A, C and G are returned to the parties. ___________________ 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.