Land and Environment Court of New South Wales CITATION : Morris v Leichhardt Council [2008] NSWLEC 1106 APPLICANT Mark Morris PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 11035 of 2007 CORAM: Tuor C KEY ISSUES: Section 96 Application :- delete condition that requires removal of swimming pool, whether substantially the same development, noise, excavation, damp and impact on tree. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 Vacik Pty Limited v Penrith City Council (unreported, NSW LEC, Stein J, 18 February 1992) CASES CITED: Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414 North Sydney Council v Michael Standley & Associates Pty Limited (1998) 97 LGERA 433 Motor Projects (No 2) Pty Limited v North Sydney Council, 1999 106 LGERA 298 DATES OF HEARING: 25/01/2008 EX TEMPORE JUDGMENT DATE : 25 January 2008 APPLICANT Mr D Baird, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 25 January 2008 11035 of 2007 Mark Morris v Leichhardt Council JUDGMENT 1 This is an appeal against the refusal by Leichhardt Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act to amend a development consent (D2006/219) for 68 Darling Street, Balmain (the site). 2 The description of the development in the Notice of Determination dated 12 December 2006 is: basement, ground and first floor alterations and additions to existing dwelling, and associated works, including new commercial and studio building and associated parking fronting Darling Street. 3 The development application included a lap pool. Condition 1(b) of the development consent stated: Development consent is not granted for the proposed swimming pool. Any swimming pool shall be subject to a separate Development Application should the applicant wish to pursue the construction of a swimming pool on the site. 4 The s 96 application seeks the deletion of condition 1(b) and thereby the approval of the lap pool. 5 The lap pool is proposed to be 25m long by 2.7m wide with a variable depth of 1.2m to 2m. It is set back 1m from the existing house and between 820mm to 1257mm from the boundary of 64A Darling Street to the exterior wall of the pool and between 220mm and 650mm from the edge of the pool coping to the common boundary. The applicant has agreed to remove the coping. 6 The adjoining house (64A Darling Street) is built to the common boundary for a length of approximately 4.5m and set back about 350mm from the boundary for a further length of about 4.5m. It has areas of open space that adjoin the north and south end of the proposed pool. A large Celtis tree is located on the boundary. The south-east corner of the pool is proposed to be approximately 3m from the trunk of this tree. 7 Further details of the site, its context and the history of the application are in the amended Statement of Facts and Contentions. Planning controls 8 The site is zoned part Business and part Residential under Leichhardt Local Environmental Plan 2000 (LEP 2000). The lap pool is within the residential zone and is permissible with consent as ancillary development to a dwelling house. 9 The site is a heritage item, is within the vicinity of heritage items and located within a conservation area under LEP 2000. 10 Leichhardt Development Control Plan 2000 (DCP 2000) applies to the site, however, it does not provide specific controls for swimming pools. The evidence and the issues 11 The court visited the site and heard evidence from Ms L Wasylenko, 64A Darling Street, Ms L Robertson, 70 Darling Street and Ms I Cassidy, 9B Johnson Street. The main concern of the residents was the noise likely to be generated and the impact of the use of the pool on their residential amenity. 12 Ms Wasylenko was also concerned about the proximity of the pool and the impact of excavation on her property. She also raised concerns that water splashing from the pool would increase dampness and that the pool would impact on the health and vigour of the Celtis tree, particularly as new construction was already within 6m of the tree. 13 Ms Wasylenko had no confidence in the works being carried out in accordance with the consent or its conditions, as she stated that the construction to date had not complied and that she had made numerous complaints to council. 14 The applicant and council confirmed that no action had been taken with regard to any alleged breached of the consent. 15 Ms Wasylenko stated that the proposal was not substantially the same development as that approved under the development consent and therefore it could not be dealt with as a s 96 application. She supported this contention with an opinion from Mr T Hale SC. 16 Council also raised the issue of whether the proposal is substantially the same development. The other issues in the appeal reflected the concerns of the residents in relation to amenity impacts. Substantially the same 17 The consent authority may modify a development consent under s 96(2)(a) if: (a) It is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all). 18 Ms Walsh, for the council, adopted Mr Hale's opinion that s 96(2)(a) requires a comparison between the development that has been approved and the development that is proposed and a finding of fact as to whether this is substantially the same development. 19 The key difference between the parties can be summarised, as Ms Walsh submits that the development as approved by Council does not include a swimming pool, where the development as modified does. Although the modification seeks only to delete a condition, the condition was one which altered the development in a significant manner. 20 The pool is a considerable structure of some 25 metres in length and requires a development consent in its own right. It is a new structure on the site and not a rearrangement of what has already been approved. It is therefore, in Ms Walsh's submission, not substantially the same as the development approved under the consent. 21 In Ms Walsh's submission the inclusion of the pool as part of the original development application is not relevant to the consideration of whether the s 96 application is substantially the same. 22 Mr Baird, for the applicant, submits that the pool is ancillary to the approved commercial/residential use of the property. It is still an outdoor recreation area and, in essence, is not materially different to what is approved and is therefore substantially the same. 23 In his advice, Mr Hale summarised the authorities that consider the meaning of 'substantially the same' as follows: (a) In Vacik Pty Limited v Penrith City Council (unreported, NSW LEC, Stein J, 18 February 1992) considered that the phrase meant "essentially or having the same essence". (b) The majority of the Court of Appeal in Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414, considered the word 'modify' meant to "alter without radical transformation": see 421. (c) In North Sydney Council v Michael Standley & Associates Pty Limited (1998) 97 LGERA 433, Mason P, at 439 adopted the meaning "to alter without radical transformation" although Stein JA adopted the meaning he had used in Vacik. (d) In Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 Bignold J analysed the authorities in relation to s 96(2)(a) and the meaning of 'substantially the same.' He said at p 309: "the requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is 'essentially or materially' the same as the approved development." He further explained that the comparative task required comparison both in qualitative as well as quantitative terms. 24 The pool, by virtue of condition 1(b), is clearly not part of the approved development. The key question is whether the pool would alter the application without radical transformation and maintain the essential character of the development. 25 In undertaking the comparison between the development as currently approved and as proposed to be modified, I accept Mr Baird's submission that quantitatively and qualitatively the proposed modification will be essentially or materially the same development. 26 The pool will add a new structure, which has impacts that are required to be assessed. However, it does not radically transform or change the essential character of what is approved. A swimming pool is an ancillary part of a residential use of a site for which approval has been granted. The pool does not change the use of the site. It maintains the area of the site used for active recreation, although it adds a structure to this area. The pool is consistent with the description of the development in the Notice of Determination for, inter alia, alterations and additions to existing dwelling and associated works. Noise impacts 27 Mr S Cooper, acoustic consultant for the applicant, assessed the application. He stated that neither the Environment Protection Authority (EPA) nor council have noise criteria for the use of a swimming pool. He considered the appropriate criteria to be background plus 5dB(A), which is the same criterion for equipment associated with pool use. 28 Mr Cooper noted that the use of an outdoor area of a residential property for active recreation, such as children playing, can generate similar noise levels to that of swimming pools. He stated that lap pools generate less noise than a swimming pool, as the nature of the pool is specifically orientated to swimming for exercise rather than recreation. 29 Mr Cooper recommended a 1.8 metre high lapped and capped timber fence to the eastern boundary of the subject site to ensure compliance with the criterion of background plus 5dB(A). 30 In response to residents' concerns, Mr Cooper recognised that the use of the pool at night by teenagers or large groups would not meet the criterion, but stated that the use of the area for parties or other outdoor uses would also not meet the criterion and that the purpose of the criterion was to control normal use of the pool, not uses such as parties. 31 Ms Wasylenko opposed any increase in the height of the fence, which is currently 1.5 metres, as she considered it would result in increased overshadowing of her property. The increase in 300mm would result in a marginal increase in overshadowing at 3pm in mid-winter. However, when balanced against the acoustic benefits, whether the area is used for a pool or as an active outdoor area, this concern is not justified. The increase in the fence height will also limit the overlooking that currently occurs between the two properties. 32 I accept the evidence of Mr Cooper that the proposal will not result in adverse noise impacts from its normal use as a lap pool. Excavation 33 Mr S Wiltshire, structural engineer for the council, examined whether the pool can be constructed in a way that will not damage 64A Darling Street and whether sufficient information has been provided. Mr Wiltshire's report summarised his opinion as: I consider the proposed works in general to be quite feasible with a reasonably minimal risk to 64A Darling Street. By "reasonably minimal risk" I do not mean that the building at 64A would suffer no noticeable impact from the works. It is almost impossible to carry out significant construction works in close proximity to other buildings without a degree of impact from noise, dust, vibration, traffic, inconvenience and, on occasion, minor cracking in finishes associated with the construction activities. Minimal risk in this context means maintenance of structural safety and stability and maintenance of amenity with damage limited to that which can be readily made good with minor works to finishes (eg render, plaster and paint). Such making good would usually be at the expense of those carrying out the works with the quantum and quality guided by the dilapidation report. I consider that the structural engineering drawings require further detailing and coordination with the geotechnical advice I have noted, however I consider these to be straightforward matters and leave it to Council regarding whether they wish to further be involved with reviewing such details. I recommend that council include the additional conditions of consent I have suggested in the approval. 34 Mr Wiltshire's recommended conditions have been incorporated in the draft conditions of approval agreed to by the applicant. The applicant has also agreed to amend the application to increase the setback of the pool structure to be a minimum of 875mm from the wall of 64A Darling Street where it is built along its boundary. 35 I accept the evidence of Mr Wiltshire that the proposal is unlikely to result in damage to 64A Darling Street. Damp 36 Ms Wasylenko was concerned about dampness to her walls from the swimming pool. The amended application deletes the coping which will prevent people walking or sitting on the side of the pool and moves the pool further from 64A Darling Street. An upturn is still proposed to limit water spill. The level of the ground adjoining the eastern edge of the pool and the boundary to 64A Darling Street is to be maintained at the levels shown in the survey plan and are below the height of the pool. I am satisfied that this will limit any damp impact on 64A Darling Street. Celtis tree 37 Ms Wasylenko was concerned about the impact of the proposal on the Celtis tree on her property. Council did not raise this as an issue and noted that the tree is not a species that is protected under its Tree Preservation Order. 38 Urban Tree Management undertook an Arboricultural Assessment as part of the original development application. The Celtis tree is identified as tree 5 in the report. The report states that: Trees, 1, 2, 4, 5, 6 and 7 are to be retained in situ and all incorporated into the constructions works on the site. The proposed design and its configuration will directly impact on tree 5 however this will be ameliorated by special protection measures. Closest corner of the swimming pool encroaches 2.8m from the centre of the trunk with a 1m deep excavation and a setback from the boundary of 1m. The required setback from Tree 5 is shown on Table 3.0 as 6m with an allowed reduction of one third on one side only but the minor encroachment of the corner of the pool likely to be between the expected radial growth of the structural roots and will have minimal impact. The end of the swimming pool closest to Tree 5 will be excavated by hand for the top 600mm and any structural roots (roots >20mm) growing into the pool area are to be severed cleanly to undamaged wood. 39 Ms Wasylenko was concerned that the recommendation of this report had not been implemented in the construction of the development and that further encroachment would impact on the health of the tree. 40 The draft conditions include the requirement that the swimming pool closest to the tree be excavated by hand for the top 600mm and that structural roots be severed clearly. I have also included a condition that an arborist supervises this work. 41 While I recognise Ms Wasylenko's concern regarding the tree as it makes a positive contribution to the area, the works are consistent with the recommendations of the arborist's report. Council has not raised issue with this report nor sought to tender the report of Ms Wasylenko's own arborist. 42 I am satisfied that the proposal is substantially the same development as approved and that the impacts of the proposal are reasonable. Orders 1. The appeal is upheld. 2. Consent is granted to the application under section 96 of the Environmental Planning & Assessment Act (M/2007/203) to modify the Development Consent (D/2006/219) issued on 12 December 2006 for basement, ground and first floor alterations and additions to existing dwelling, and associated works, including new commercial and studio building and associated parking fronting Darling Street at 68 Darling Street, Balmain East, as set out in Annexure "A". The consent as modified is set out in Annexure "B". 3. The exhibits, except Exhibit 5, may be returned. ___________________ Annelise Tuor 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.