Land and Environment Court of New South Wales CITATION : Guilfoyle Developments Pty Limited v Woollahra Municipal Council [2010] NSWLEC 1173 APPLICANT Guilfoyle Developments Pty Limited PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10050 of 2010 CORAM: Tuor C KEY ISSUES: CONSENT ORDERS :- s96 application for amended plans to change roof form of approved residential flat buildings to provide accommodation. Whether proposal achieves appropriate transition between commercial and residential zone. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 DATES OF HEARING: 23 April 2010 EX TEMPORE JUDGMENT DATE : 23 April 2010 APPLICANT Ms S Hill, solicitor of Susan Hill & Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor of Norton Rose Australia JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 23 April 2010 10050 of 2010 Guilfoyle Developments Pty Limited v Woollahra Municipal Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This is an appeal against the refusal by Woollahra Municipal Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (DA 324-2008) for a residential flat building at 4-12 Guilfoyle Avenue, Double Bay (the site). 2 The issues between the parties have been resolved through amended plans and they are seeking consent orders from the Court. 3 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions (exhibit 4) and the joint report of the planners; Mr S Taylor, for the council and Mr L Adey, for the applicant (exhibit 3). 4 The s 96 application seeks to modify the development consent by the addition of an attic level to the western and eastern buildings achieved by changing the roof pitch from 20 degrees to 27 degrees, construction of side gables, a roof terrace and a Dutch gable on the northern elevation. Other internal amendments are proposed but were not raised as being in contention by the council. 5 The Court visited the site on 16 April 2010 and heard evidence from two objectors who live at the rear of the development at 11 and 7 South Street. Their principle concern was the potential increase in overshadowing. Mr Adey and Mr Taylor explained the overshadowing drawings and surveyor's report (exhibit B), which indicated that there would be no increase in overshadowing resulting from the amendments to the proposal. 6 The key contention initially raised by council was the scale, bulk, height and lack of transition of the proposed amendments to the roof form to incorporate the attic level. Amended plans were submitted which addressed this contention in relation to the building on the western allotment. 7 Mr Taylor recommended that a similar approach be adopted for the building on the eastern allotment through the imposition of condition. The proposed condition would require that unit six on level four be setback 2.7 metres from the south-western side boundary and replaced with a roof consistent with the style and pitch of the roof on the north-western side of the eastern building. 8 The applicant agreed to the imposition of the condition, however, during the hearing it was agreed that the changes required by the condition should be incorporated into a final set of drawings and conditions. These amended drawings are now before the Court and I am satisfied that they incorporate the proposed changes. Findings 9 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995. Residential flat buildings are not permissible within the zone, however the site contains two existing residential flat buildings and the proposal therefore is permissible under existing use rights. 10 The site adjoins a Business 3(a) zone. The main concern of Mr Taylor was to ensure that the proposal provided an appropriate transition between the commercial building on the corner of Bay Street and Guilfoyle Avenue (Business 3(a)) and the residential development along Guilfoyle Street (Residential 2(a)). 11 Mr Taylor stated that the approved development achieved a suitable level of transition between the properties. He was concerned that the original proposed amendments would not maintain this transition. The further amended plans incorporate his suggested changes and address his concerns to achieve an appropriate transition. 12 I am therefore satisfied that the issues between the parties have been resolved and that the consent orders sought can be granted. Orders 13 The orders of the Court by consent are: 1. The appeal is upheld. 2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent 324/2008 for demolition of two existing buildings and construction of residential flat building at 4-10 and 12 Guilfoyle Avenue Double Bay is approved subject to the following amendments: Deletion of existing conditions A1, C6, H1 and 13 and replacement with the following: Condition No. A1 Approved Plans and Supporting Documents Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant and to which is affixed either the Council stamp "Approved DA Plans" or the Land and Environment seal, unless modified by any following condition. Where the plans relate to alterations or additions only those works shown in colour or highlighted are approved. Reference Description Author/Drawn Date(s) 15 Feb 2008 Acid Sulphate Soil Management Plan Environmental Investigation Services 15 Feb 2008 01J, 04H, 05G, 06G Architectural Plans Ercole Pallazetti Pty Ltd 21 April 2010 02F and 3D Architectural Plans Ercole Pallazetti Pty Ltd 25 March 2009 221504M-04 BASIX Certificate Department of Planning 22 March 2010 SK306/008-A Construction Management Plan Ercole Pallazetti Pty Ltd 10 Jun 2008 SK306/006 Driveway Profiles 3 Jun 2008 21894Srpt Geotechnical Report Jeffrey and Katauskas Pty Ltd 29 Feb 2008 2756.LP.01, 27561P.02 Landscape Plan Environmental Partnership (NSW) May 2008 Arborist Report Urban Forestry Australia Jul 2008 H-DA-01 Stormwater Management Plan itm Design Pty Ltd 3 Jun 2008 Note : Warning to Accredited Certifiers - You should always insist on sighting the original Council stamped or Court sealed approved plans. You should not rely solely upon the plan reference numbers in this condition. Should the applicant not be able to provide you with the original copy Council will provide you with access to its files so you may review our original copy of the approved plan. Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate.) Note: The Landscape Plan, Stormwater Management Plan and Construction Management Plan is to be amended to reflect the approved architectural plans. Condition No. C6 BASIX commitments The applicant must submit to the Certifying Authority BASIX Certificate No. 221504M04 with any application for a Construction Certificate. Note : Where there is any proposed change in the BASIX commitments the applicant must submit of a new BASIX Certificate to the Certifying Authority and Council. If any proposed change in the BASIX commitments are inconsistent with development-consent (See: Clauses 145 and 146 of the Regulation) the applicant will be required to submit an amended development application to Council pursuant to section 96 of the Act. All commitments in the BASIX Certificate must be shown on. the Construction Certificate plans and specifications prior to the issue of any Construction Certificate. Note : Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (al) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires," Standard Condition: C7 Condition No. H1 Fulfilment of BASIX commitments - Clause 154B of the Regulation All BASIX commitments must be effected in accordance with the BASIX Certificate No. 221504M_04. Note: Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a final occupation certificate for a BASIX affected building to which this clause applies unless It is satisfied that each of the commitments whose fulfilment it is required to monitor has been fulfilled." Standard Condition: H7 Condition No. I3 Maintenance of BASIX commitments All BASIX commitments must be maintained in accordance with the BASIX Certificate No. 221504M_04. Note: This condition affects successors in title with the intent that environmental sustainability measures must be maintained for the life of development under this consent. Standard Condition: 17 3. The exhibits may be returned other than exhibit 2, 4 and C. 4. The Court notes that each party is to pay their own costs ___________________ 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.