Land and Environment Court of New South Wales CITATION : Gann v Sutherland Shire Council [2008] NSWLEC 1228 Applicant: Peter James Gann and Tracy Dawn Keiser Gann PARTIES : Respondent: Sutherland Shire Council FILE NUMBER(S) : 10763 of 2007 CORAM: Roseth SC KEY ISSUES: Section 96 Application :- DATES OF HEARING: 3 June 2008 and 4 June 2008 DATE OF JUDGMENT: 20 June 2008 Applicant: LEGAL REPRESENTATIVES: Mr T Robertson QC with Mr J Lazarus, barrister instructed by Mr G White, solicitor of Whites Lawyers Respondent: Mr S Berveling, barrister instructed by Ms J Amy, solicitor with Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 20 June 2008 10763 of 2007 Peter James Gann & Tracy Dawn Keiser Gann v Sutherland Shire Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Sutherland Shire Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) to amend the consent issued by the council on 17 February 2005 for a dwelling on lot X DP 390110, known as 365 Woolooware Road, Burraneer. The amendments seek to legitimise unauthorised works. The site 2 The site is a waterfront battle-axe allotment with a 3.6m wide handle off the western side of Woolooware Road. The site's area is 1,354m2, of which the access handle constitutes 496m2. The site contains the partially built house, some of which is built differently from the approval. 3 The locality, like most waterfront areas, is characterised by large sites and large buildings. The history of the application 4 On 17 February 2005 the council granted consent to the demolition of an existing house and the construction of a new dwelling and associated facilities. On 22 July 2005 the council modified the consent in ways that are not relevant to this appeal. Both approvals were given under Local Environmental Plan 2000 (LEP 2000). On 29 November 2006 Local Environmental Plan 2006 (LEP 2006) came into effect. 5 The applicant lodged the s96 application, which is the subject of the current appeal, on 13 April 2007. On 19 July 2007 the council refused the application for nine reasons, which may be summarised as inconsistency with the objectives and development standards of LEP 2006. On 8 August 2007 the applicant filed the appeal. In October and November 2007 the applicant received leave to rely on revised drawings. The council notified the last set of plans and received four submissions. The proposed amendments 6 A list of proposed amendments, annotated by the council according to whether it agrees with or objects to it, was tendered as Exhibit 11 in the proceedings. 7 The following 13 items are amendments with which the council agrees: · Reduction in height of entry portico by 1.5m. · Removal of bay window element and roof form on first floor western façade. · Lower roof from and ridge heights in the order of 300mm. · Deletion of gable parapets on north, east and south elevations. · Deletion of part of northern footpath adhjacent to Kitchen/Breakfast Room for deep soil planting area. · Conversion of terrace areas on western part of site adjacent to Kitchen and Living Room to deep soil planting area. · Relocation of external stairs from northern boundaryu to centre of site adjacent to swimming pool. · Utilisation of subfloor area for 10,000l rainwater tank and air conditioning plant access by manhole in laundry. · Change in window shapes and sizes, all privacy impacts addressed by obscure glazing or screens. · Reinstatement of deep soil planting areas along northern boundary and west of ground floor dwelling. · Modification to retaining walls at upper level to increase width for planting and provide better transition in levels above the rock shelf and deletion of curved elements. · Demolition and minor variations to blade walls on northern boundary adjacent to boat shed and roof top garden. · Revised planting schedule. 8 The following four items are amendments to which the council raises objection: · Variation to western balcony at first floor level. · Internal courtyard at ground floor level converted to Guest Bedroom, consequential conversion of void to landscaped concrete slab at first floor level. · Increases in floor area of Living Room (southwest corner) and Kitchen/Breakfast Room (northwest corner) at ground floor level. · Relocation of steps along northern boundary by 500mm near the waterfront. Relevant planning controls and policies 9 LEP 2000 was in force in 2005 when the council granted consent to the original approved dwelling. LEP 2006 was in force when the s96 application was lodged. The new LEP amended several relevant development standards, such as Gross Floor Area (GFA) and landscaped area. Development Control Plan 2006 (DCP 2006) contains detailed planning controls. Its relevance in these proceedings is in relation to the requirement for articulated sidewalls. 10 State Environmental Planning Policy 71 – Coastal Protection applies to the site, which is in a sensitive coastal location. There was no suggestion that the proposed amendments would change the building's appearance from the water. Weight to be given to LEP 2006 11 Before the merit hearing, the council submitted the following question of law for determination: was there power to approve the s96 application despite the fact that it breaches several development standards in LEP 2006? In Gann v Sutherland Shire Council [2008] NSWLEC 157 Lloyd J answered the question in the affirmative. The judgment says that the development standards in LEP 2006 must be taken into consideration pursuant to ss 96(3) and 79C of the EPA Act "as part of the general considerations under s79C of the Act". 12 It is common ground that neither the approved nor the amended proposal complies with the GFA, landscaped area and height provisions of LEP 2006, though the landscaped area comes close to complying. The approved building complies with the GFA and height provisions of LEP 2000, but it falls short of the required landscaped area. 13 It seems to me that the only reasonable option for the Court is to accept the breaches of the development standards in LEP 2006 to the extent that they exist already in the approved development. The need to take into consideration the development standards of LEP 2006, referred to in the Lloyd judgment, suggests that, where possible, existing breaches should not be exacerbated further. I have adopted this principle in my judgment and allowed increases in GFA or reductions in landscaped area only where there are very strong reasons for them. Matters in contention 14 The council submitted its Further Amended Statement of Contentions, which may be summarised as follows: · The GFA of the proposal exceeds that permissible by LEP 2006. · The landscaped area is less than that required by LEP 2006. · The height exceeds the maximum of two storeys allowed by LEP 2006. · The proposal fails to satisfy the qualitative requirements of LEP 2006, such as impact on privacy and views, character and amenity of locality, and articulation. · Matters raised by objectors. · Inadequate plans and information. 15 A more useful way to describe the dispute is to focus on the four amendments in paragraph 8 above on which the parties were in disagreement. Amendments that are in dispute Variation to western balcony 16 The unauthorised works include a 10m2 section of the western balcony, at the northwest corner of the building, which is a void in the approved development. The council's planning expert, Ms Carolyn Howell, objects to the filling of the void on the grounds that it increases the potential for overlooking of Mr McCrohan's property. Mr Nash defends the extended balcony on the basis that people on the balcony would have to look backwards to see Mr McCrohan's dwelling. This begs the question of overlooking Mr McCrohan's waterfront garden. In my opinion, the extension to the balcony does increase the impact on Mr McCrohan. I agree with Ms Howell that it should be removed. Internal courtyard at ground level converted to Guest Bedroom, consequential conversion of void to landscaped concrete slab 17 The unauthorised works include the conversion of an area at ground floor level from landscaped courtyard to Guest Bedroom. The roof of the Guest Bedroom is to be landscaped. The arguments for and against this amendment are finely balanced. The argument for it is that the courtyard as approved would be an unpleasant space. The argument against it is that it increases the GFA and decreases the landscaped area, albeit to a minor extent. On balance I accept the amendment as shown on the drawings. This is one instance where there are strong reasons for accepting a minor increase in GFA. Increases in floor area of Living Room (southwest corner) and Kitchen/Breakfast Room (northwest corner) 18 The applicant proposes to move the western walls of the Living Room and the Kitchen/Breakfast Room towards the west. This proposed amendment has not yet been built. Ms Howell agrees that there are no impacts arising out of the amendments. Her concern is that it adds yet again to the GFA. 19 I do not think that there are good reasons in this case to allow an amendment that increases, albeit to a minor extent, the GFA. The proposed amendment is refused. Relocation of steps along northern boundary by 500mm 20 This amendment is not shown on the s96 application, ie not proposed by the applicant. However, Ms Howell suggests that the steps be moved to their approved location 500mm from the side boundary. The applicant has relocated the major section of the stairs in the waterfront section of the site to the centre of the site, while the approved plans show it near Mr McCrohan's property. The approved plans showed the lowest section of the steps 500mm from the northern boundary and they were built on the boundary. Ms Howell agreed that when all the changes in the stairs are taken into account, the impact on Mr McCrohan's property is reduced. In my opinion, the total impact must be taken into account. The relocation of the steps is not required. Gross floor area 21 Calculated according to the requirements of LEP 2000, the GFA of the approved development is 498m2, which includes 26m2 for the boatshed. The additional GFA contained in the s96 application is 40m2. According to LEP 2000 the maximum GFA for the site is 540m2. Therefore both the approved plans and the s96 application comply with the GFA requirements of LEP 2000. 22 According to LEP 2006 the GFA of the approved development is between 567m2 (as calculated by Ms Howell) and 473m2 (as calculated by Mr Nash). LEP 2006 permits only 343m2 of GFA for the site. The reason why the later LEP permits so much less floor area is that, unlike LEP 2000, it does not include the access handle in the site area. It can be seen, therefore, that the approved development is much larger than would be permitted by LEP 2000. The amendments proposed in the s96 application make the difference between the approved development and what is now permissible slightly larger. 23 Because this judgment allows the unauthorised Guest Room (but not the extensions to the Living room and the Kitchen/Breakfast Room) to remain, the increase in GFA resulting from the s96 application will be 30m2, in the order of 6% of the approved GFA. Landscaped area 24 LEP 2000 required 55% of site area as landscaped area. The approved development provided 434m2, which is only 41%. The council's file gives no indication why this shortfall was accepted. For whatever reason, the council approved the application with much less landscaped area than its planning control required at the time. LEP 2006 requires less landscaped area for this site than did LEP 2000 because the later LEP does not include the access handle in the site area. The LEP 2006 requirement is 420m2. The approved development thus complies with the landscaped area requirement of LEP 2006. The s96 application removes about 30m2 of landscaped area by turning the courtyard into a Guest Bedroom. This will reduce the landscaped area to just over 400m2, which is slightly under the requirement of LEP 2006. The small discrepancy is not a reason to refuse the application. 25 I am strengthened in the above conclusion by the fact that the applicant is providing a new landscape plan that is agreed by both parties to be superior to the earlier approved landscape plan. Height 26 The approved development exceeds the 7.2m ceiling control in LEP 2006. It also breaches the two-storey requirement in LEP 2006, not because it has more than two habitable floors but because the lower floor sits high above the natural ground level. The s96 application is for a building whose upper floor level is about 200mm above the approved level and whose roof is slightly lower than approved because of reduced pitch. 27 I note that Ms Howell did not object to the change of 200mm in the upper floor level, nor did she suggest any height-related changes to the plans. Privacy impact 28 Without the extension to the balcony to Bedroom 1 (which is refused) there is no new impact on privacy. Character and amenity of locality 29 I did not understand Ms Howell to be saying, in her oral evidence at least, that the character of the building in the s96 application is significantly different from the character of the approved development. I have therefore assumed that this is not a major contention for the council. 30 I note that the approved building is large, dominant and located forward of most other buildings. The s96 application does not introduce or change these characteristics. Impact on views 31 Ms Howell and Mr Nash agreed that the impact of the s96 amendments on views was minor. I agree with them. Articulation 32 Clause 3.6.2 of DCP 2006 requires that Where a development's wall adjacent to a side boundary exceeds the length of 10m, the wall must be articulated by introducing an increased setback (2x minimum setback) for a minimum length of 6m. 33 Ms Howell notes that the proposal to turn the approved courtyard into a Guest Bedroom results in the northern wall being unarticulated. Mr Nash points out that the s96 application provides for a variation in the treatment of the northern wall, that the dwelling at 363 obscures the lower section of the wall, and the upper section, where the void has been retained, is articulated. 34 I think this is a minor dispute in the case. The appearance of the northern wall has changed only in a minor way as a result of the s96 application and the change is at the lower level where the dwelling at No 363 obscures it. The objectors' concerns 35 During its visit to the site, the Court heard the evidence of three objectors. Mr Theo Koroneos, who lives at 367B Woolooware Road, said that the unauthorised building shows too much concrete, provides no visual relief, obscures views and is generally less pleasant to look at than the approved building. Mr Edward McCrohan, who lives at 363 Woolooware Road, immediately north of the site, complained that the unauthorised house has been "pushed up", obscures views and looks into his property. Mr Ross Ponder, who lives at 355 Woolooware Road, said that the unauthorised building is higher than two storeys and its terrace overlooks his waterfront area. The Court also read the written objections of Dr Michael Dineen of 369 Woolooware Road, Mr Glen Coleman of 373a Woolooware Road, and Mr J and Mrs L Bamford of 337 Woolooware Road. 36 It appears that the objectors' main concern is that the house has been built higher and bigger than authorised and it therefore impacts on the views and privacy of neighbouring properties more than the approved version. The concern about height, however, appears to arise from the mistaken belief that the approved house was much lower. In fact, the difference in the level of the living room floor between the approved and the built version is only 220mm, which is not of an order that would be readily perceived. I agree with the objectors that the building is too high in relation to natural ground level; however, the height is almost the same as that which was approved. 37 I am satisfied that none of the neighbours will be materially affected by the amendments that are permitted by this decision. Conclusions 38 Both planning experts, Ms Howell and Mr Nash, took a practical position and resolved most of the dispute without the Court's assistance. Out of 17 amendments they agreed on thirteen, leaving only four for the Court's decision. The appeal is upheld in part. Orders 1. The appeal is upheld in part. 2. Application under s96 of the Environmental Planning and Assessment Act 1979 to amend the deferred commencement consent issued by the council on 17 February 2005 for a two-storey dwelling on lot X DP 390110, known as 365 Woolooware Road, Burraneer is given consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 10, C and D. _____________________ Dr John Roseth Senior Commissioner 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.