Land and Environment Court of New South Wales CITATION : Qidwai v Waverley C [2005] NSWLEC 355 APPLICANT K A Qidwai PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10945 of 2003 and 10310 of 2004 CORAM: Murrell C Appeal :- Modification of a consent issued by the council for a residential flat building - streetscape - impact on adjoining properties. KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan DATES OF HEARING: 29/10/2004, 26/11/2004, 30/11/2004, 16/03/2005, 10/06/2005 EX TEMPORE JUDGMENT DATE : 06/10/2005 APPLICANT Mr I. Hemmings, barrister Instructed by Mr M. Mannone of Morgan Lewis LEGAL REPRESENTATIVES: RESPONDENT Mr G. Newport, barrister Instructed by Mr G. Hartley of Staunton Beattie Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 10 June 2005 10310 of 2004 K A Qidwai v Waverley Council JUDGMENT 1 This is an extempore judgment for an appeal under s 96 of the Environmental Planning and Assessment Act against Waverley City Council's refusal of an application to modify a development consent issued by the council for a residential flat building. 2 While it has not influenced my decision in terms of my merits assessment of the development of the s 96 application before me the following provided by way of background. Council originally granted consent to the three level residential flat building for the property known as No. 127 Hall Street, Bondi Beach, and it transpires that a 'construction certificate' was subsequently issued that was not in accordance with the development application as approved by the council in terms of the relative levels. That is, the slabs for the basement car parking are significantly higher than that approved, approximately 1.05 m higher, and then the ground floor for the unit was approximately 1.34 m above that approved by the council. 3 The application has gone through a number of changes in terms of the court process to address issues including: landscaping; privacy; streetscape presentation; greater setbacks of the upper levels; reduction of the wall height above the garage. The Court also had the benefit of a court appointed expert, Mr Stephen Layman, an architect/town planner, and also the benefit of expert evidence from Mr Betros of ABC Planning who the court allowed to provide evidence in support of the owner of No.125 Hall Street. 4 The process in the Court has resulted in a number of meetings. The court first met with the applicant and the council and the resident objectors on site on 29 October 2004, and at that time it was evident to the Court there was a need for additional information, in particular survey information, and sections and other details in order to understand the relationship of the existing built structures on the ground and the plans as proposed in the modification application. Through this process there has been a number of modifications to address privacy issues, in particular to the adjoining residential flat building at No. 125 but also in respect of Mr and Mrs Alexander is at property No.129 Hall Street. 5 The proposed development as shown in the current plans before the court, exhibit T, show the building slightly less than one metre higher than that originally approved. The process in the court has been to look at what would be the outcome in terms of a built form on the ground and the appropriateness of that built form in the streetscape. 6 The applicant is prepared to accept a number of conditions, which the council has now framed and there is no dispute about conditions. The judgment of the Chief Judge McClellan J in No. 1643 Pittwater Road provides clearly that the court can now impose conditions on s 96 applications. However, it is not so much the conditions which have assisted in the amelioration of the adverse impacts of the proposal, but the various sets of plans and modifications that have been undertaken during the course of the proceedings to address issues. 7 The court did express concerns about the form, the lack of accuracy, and the inconsistency between the plans and the applicant responded by a comprehensive set of new plans being provided to the court. I am satisfied now that these plans, exhibit T, represent a satisfactory modification application to allow a determination. 8 I have given very careful consideration to the impacts of the proposed development, not only the additional impacts. I have given consideration in terms of s 79C of the Act to the impacts of the now proposed development in exhibit T on the adjoining properties and on the streetscape. And I am satisfied now that there is no reason why the court should not grant approval to the modification application on a merits assessment. 9 At the end of the day, I must be satisfied that the proposed modifications will not create unreasonable impacts and from the examination by the court appointed expert, and Mr Betros, I am satisfied that the amended plans will not result in unreasonable amenity impacts on adjoining residences. Mr Betros proposed that there be an additional condition with respect to cutting back the roof/eave of the architectural element, which would not be seen from the street, and this would provide additional sunlight to the property at No. 125. In the circumstances of this case it seems appropriate that this be carried out. 10 It is understandable that people are concerned about developments that do not represent what is approved and it is a most unfortunate set of circumstances that a 'construction certificate' was issued that did not comply with the development application. But at the end of the day I must look at the merits of the application before me and I am satisfied that the new proposed development will sit appropriately in the streetscape. I accept that the streetscape is most eclectic being made up of dwelling houses, residential flat buildings, dual occupancies, with a vast range of architectural styles and from different periods. The proposed development reflects some of these elements, and it provides a transition in height between No. 129 and No. 125 Hall Street. Furthermore it will not be an aberration in terms of council's currently adopted plan for the area. It is noted that the zone has changed since the original approval but the development as proposed is appropriate in its context. 11 Mr Betros gave evidence as to the need for a dilapidation report. Council has provided a condition to this effect and the applicant does not object to a dilapidation report for properties No. 125 and No. 129 Hall Street. 12 The residents who gave evidence to the court on the first occasion on site were concerned about the impact of the podium level and the height of the garage to the streetscape. The plans have been significantly modified to ameliorate the impact the greater height of the garage compared to what was originally approved. And on its own merits I am satisfied that the height of the garage and the levels are appropriate as shown in the plans exhibit T the bulk or scale of the building is ameliorated by the modifications on the plan in exhibit T. In particular: the amended landscaping plan; a reduction in the bulkiness of the presentation to the street with the deletion of the planter above the garage and setback; and there are many architectural detailing features which will assist in making the building satisfactory in the streetscape also in terms of SEPP 65 the proposed development assessed against the ten principles is satisfactory. 13 The Court, as I stated did have regard to the concerns that were expressed on 29 October, and also in terms of the further submissions that were received by the council in respect of the amended plans. As I stated earlier I can understand people's concerns about giving retrospective approval to developments that have been built illegally. However, that is not the test for me. The test is whether the modification as shown in the plan is appropriate and satisfactory in terms of an assessment under s 96 and s 79C. I do believe that the applicant has agreed to and responded to the suggestions of the council and the Court in te The Court, as I stated did have regard to the concerns that were expressed on 29 October, and also in terms of the further submissions that were received by the council in respect of the amended plans. As I stated earlier I can understand people's concerns about giving retrospective approval to developments that have been built illegally. However, that is not the test for me. The test is whether the modification as shown in the plan is appropriate and satisfactory in terms of an assessment under s 96 and s 79C. I do believe that the applicant has agreed to and responded to the suggestions of the council and the Court in terms of further modifications to the development as shown in exhibit T. I am satisfied these plans on a merits assessment are worthy of approval and the development will sit comfortably in the streetscape and the impacts on adjoining properties are reasonable. 14 Therefore, on the basis of my assessment, the formal orders of the court are: 1. The appeal under s 96 of the Environmental Planning and Assessment Act in respect of the property known as No. 125 Hall Street, Bondi is upheld. 2. The modification application submitted to Waverley Council, and as amended and shown in exhibit T, is determined by the granting of consent subject to the conditions contained in Annexure A. (Annexure A being the conditions as generally agreed to between the parties.) 3. The exhibits may be returned with the exception of T, U, W and 13 and 14. 4. The applicant is to pay the council's costs to the amount of $1,850 as agreed. _______________________ J S Murrell Commissioner of the Court 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. 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.