Land and Environment Court of New South Wales CITATION : Mark Gerstl & Associates Pty Ltd v Waverley Council [2004] NSWLEC 633 APPLICANT Mark Gerstl & Associates Pty Ltd PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10935 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and Additions - two storey dual occupancy - height and floorspace ratio - bulk & scale - street character - balconies. Waverley Local Environmental Plan 1996 LEGISLATION CITED: Development Control Plan No. 2 Dwelling House Development Development control Plan No. 20 - Dual Occupancy Provisions CASES CITED: DATES OF HEARING: 08/11/2004 EX TEMPORE 11/08/2004 JUDGMENT DATE : APPLICANT Mr S Kondilious, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr M A Staunton, solicitor SOLICITORS Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 8 November 2004 10935 of 2004 Mark Gerstl & Associates Pty Ltd v Waverley Council JUDGMENT 1. This judgement relates to an on-site hearing involving the council's refusal of a development application for the partial demolition of an existing dwelling house and alterations and additions to provide an attached two-storey, dual occupancy development at No. 4 St Thomas Street, Bronte. 2. The rectangular site comprises Lot 3 in DP 102958 and has an area of about 556 sq m. It has a fall of about 6 m towards its rear boundary. 3. The surrounding locality comprises residential development of mainly one and two-storey detached dwelling houses. 4. The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996 ("the LEP"). Also relevantly applicable are Development Control Plan No. 2 - Dwelling House Development and Development Control Plan No. 20 - Dual Occupancy Provisions ("the DCP's"). 5. The application was advertised and two submissions were received, one from the Bronte Beach Precinct Committee and the other from No. 2 St Thomas Street. The precinct committee was concerned that: the proposal does not comply with the requirements of the applicable DCP's; the proposed flat roof would be out of character with the street; and the building would be contrary to the Bronte character study. Ms V Milson the convenor of the committee elaborated on these concerns at the hearing. 6. The conditions of consent having been agreed between the parties the remaining two issues for determination by the Court involve firstly whether the proposal would, in terms of streetscape and character be satisfactory, particularly in the context of the provisions of the DCP's. Here, issues relating to floor space ratio, building height and setbacks are relevant. 7. The second issue relates to the proposed relatively large balconies at the ground floor level and whether those balconies would have any adverse amenity impacts. There was also some little concern that those balconies might contribute to the bulk and scale of the buildings. 8. Dealing firstly with the streetscape and character issue which attracts the matters of floor space ratio, building height and setbacks, I firstly note that the proposal has a floor space ratio of 0.605:1 by comparison with the requirement in DCP 20 that this be a maximum of 0.5:1. I also note here that council is in the process of preparing a draft development control plan that would lift the maximum floor space ratio for dual occupancy development to 0.55:1. 9. In relation to height the proposal comfortably meets the maximum overall height limit of 9.5 m in DCP 2. However, there are a number of non-compliances with the maximum 7.5 m wall height. On the south side of the building the wall has heights ranging between 8.25 m and 6.5 m with about 3.4 m out of a total length of 19.5 m of non-complying wall. On the north side the wall heights range between 8.4 m and 7.3 m with about 11 m of wall out of the total length of 19.5 m showing a non-compliance of up to 900 mm. 10. The issue of streetscape was considered by Mr L. Fletcher (the Court appointed town planner) at some length and he was of the view that in the context of existing surrounding development the proposal would be satisfactory. He had no concern that the proposal comprised a flat roof development unlike the majority of other built forms in the locality. I have considered this aspect whilst viewing the streetscape and have reached the same conclusion as Mr Fletcher. 11. Notwithstanding the non-compliances with the height and floor space requirements, the proposal will, in terms of bulk and scale, not be out of place in this street, there being a number of other buildings exhibiting a similar bulk and scale and apparently being in excess of the relevant standards in DCP 2. In this context I note the provisions of DCP 2 in s 6 under the heading Residential Character Study where matters of streetscape and architectural style are dealt with. 12. The performance criteria in s 6 deal with a number of matters. Firstly they seek to have a building satisfying the predominant facade orientation of the street and the proposal does this. It is also required that buildings should retain and reinforce the typical bulk and scale of those representing the established street character. 13. This building whilst being larger than some in the street will by no means have a bulk and scale in excess of a number of other larger buildings and on balance I agree with Mr Fletcher that it would meet this requirement. Similarly the criteria require that building bulk and envelope be consistent with the streets' established type and typology. The proposal does not comply with the DCP's side setback requirement of 900 mm. Otherwise it complies with the front setback or building line and I expect that this is principally what this criteria would require in terms of setback. 14. I have already dealt with the issue of building height and in terms of its presentation to the street, this proposal comfortably meets the overall height limit. Where it exceeds the height requirements of DCP 2, that is towards the rear of the site, this will not be apparent from the street. 15. As for building typology, Mr Fletcher said that this refers to architectural style. I agree with his explanation that whilst this building will have a more modern presentation by comparison with other buildings in the street, it will not be inconsistent overall. 16. As I have said on other occasions, being different does not mean unacceptable and bearing also in mind that this is not a conservation area, buildings with different architectural styles can occur and I accept that what is proposed will not be inappropriate. 17. The next performance criteria, which is relevant to this application is that the street's established scale is to be refined by the use of building modulation. Clearly this site is capable having a different design with a greater degree of building modulation; although I note the general absence of building modulation in the streetscape. This raises the issue that was of some concern that being the fact that this development comprises alterations and additions to an existing building. There is no doubt that the alterations will be extensive and the additions will also be extensive, comprising for the most part an additional floor to the building. 18. Had this been a vacant site a different design would have been possible and compliance with all of the standards would have been easier. A more modulated building might have resulted. However, it is appropriate for me to take into account that this is an application for alterations and additions and that there are a number of resulting constraints. But even leaving that aside I have not been persuaded, taking into account the character of development in the street including building heights, setbacks and architectural style that this proposal would be inappropriate. The fact that it is to have flat roof and will be different to many buildings in the street, for essentially the reasons I have already given, this is not a sufficient reason to reject the application. 19. Dealing more generally with the character issue, this raises the same issues as I have just dealt with in terms of streetscape, particularly principles involving typical bulk and scale, setbacks and height as well as typology and building modulation. I do recognise that the performance criteria already referred to principally deal with streetscape rather than character generally by reference to matters such as: orientation to the street; bulk and scale; the established street character; the street's established setbacks and scale indicated by building modulation. I accept that these principles can also be applied in dealing with character and that is something which I have carefully considered with the assistance of Mr Fletcher when we considered the site and the proposal from distant views. This inspection enabled me to understand and conclude that the proposal will acceptably fit into the existing townscape. 20. In this context there was nothing to indicate that the non-compliances with the DCP were of any great concern. It is clear that a number of existing buildings in the relevant townscape to suggest that a smaller building which might be the result of strict application of the floor space ratio requirement would be of any benefit to that setting. Conversely, one could argue that a smaller building would probably look out of place. Again the design of the building will appear to be somewhat different but despite this I again agree with Mr Fletcher that its visual presentation in its setting will be appropriate. 21. Clause 10 of the LEP requires that a development application cannot be granted consent unless the consent authority is satisfied that the proposed development meets one or more of the objectives of the zone. In the 2(a) Zone, the relevant objective is objective (b), which is "to maintain and improve the amenity and existing characteristics of the locality". For the reasons that I have given I am satisfied that this objective will be met and therefore the requirement of cl 10 of the LEP is also met. 22. In terms of the non-compliances with DCP No. 2, I accept that a different development could comply with these standards. However, I do not accept that, in this instance, this is a reason for requiring that there must be strict compliance with the provisions of the DCP's. 23. There is an accepted principle that development control plans should be complied with when they have, over time, been consistently applied by the consent authority. However, in the circumstances of a case such as this, taking into account the non-compliances in the context of the nature of existing (complying and approved by non-complying) development, where that development is unlikely to change in the short term, this provides an indication that strict compliance may not be necessary. That is what I have concluded to be the case here. 24. The remaining issue is that of the balconies adjacent to the main bedrooms. These balconies have areas of about 24 m sq by comparison with the maximum requirement in DCP 2 of 10 m sq. The council's concern here and the basis for this maximum is to protect neighbour amenity by limiting the number of people that might occupy such a balcony. However, the DCP makes no distinction between the relationship of the balconies to the associated floor space within the dwelling and in my view this needs to be taken into account. 25. These balconies, not being associated with living rooms but instead being positioned adjacent to the main bedroom can be treated differently. In this case the designs are such that access to these balconies for persons other than those using the bedrooms will be rather circuitous. The main living rooms, indeed all of the living rooms are on a different level. In the circumstances I expect that these balconies will have little use other than on an occasional basis by the occupants of the main bedroom. Even if the balconies were utilised for extensive, noisy recreational activities, this would I expect be a relatively remote occurrence. I thus agree with Mr Fletcher that any impacts associated with these balconies would not be such as to require that they be modified or omitted. 26. The balconies were also considered by me in terms of whether they might add to the bulk and scale of the building in an inappropriate manner and I have already taken this into account whilst considering the bulk and scale of the building generally. 27. I have therefore decided that the proposal warrants approval. 28. It is therefore the decision of the Court that: 1. The appeal is upheld. 2. Development application No. 886/2003 for the partial demolition of an existing dwelling house and alterations and additions to provide an attached, two-storey, dual occupancy development at No. 4 St Thomas Street, Bronte, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibits A, 1 and 4 are retained. ____________________ T A Bly Commissioner of the Court Rjs/ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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