Land and Environment Court of New South Wales CITATION : Grossman v Waverley Council [2008] NSWLEC 1429 APPLICANT Linda Ann Grossman PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11335 of 2007, 11336 of 2007, 10039 of 2008 and 10085 of 2008 CORAM: Hussey C KEY ISSUES: Development Application :- Attached dwelling - s 96 modifications, impact on neighbours, view, building elements Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 DATES OF HEARING: 22/10/2008 EX TEMPORE JUDGMENT DATE : 22 October 2008 APPLICANT Mr P. Grossman, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 22 October 2008 11335 of 2007, Linda Ann Grossman v Waverley Council 11336 of 2007, 10039 of 2008, 10085 of 2008 This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 These proceedings involve the following 4 appeals relative to a semi-detached dwelling located at 76 Nancy Street, North Bondi. The twin attached dwelling is No 78 Nancy Street. This site is within the area zoned 'Residential 2(a) – Low Density'. 2 In December 2006, consent was granted (DA 406/2006) for alterations and additions to No 76, including an additional storey and car space in the front of the dwelling. 3 On 1 February 2007, s96 modifications were approved (DA 406/2006A) to construct a cellar and install 2 external windows. Then on 27 February 2007 another s96 modification was approved (DA 406/2006B) for 2 external windows. 4 On 4 April 2007 consent was granted (DA 744/2006) for the construction of an in-ground pool in the rear yard and decking surrounds. 5 The appeals then comprise: .1 Appeal No 11336 of 2007 ; against councils deemed refusal of a s96 application to regulate works on the house involving: o Change the main roof material from terra cotta tile to Colourbond corrugated metal roof, o Extend roofed area over rear entry and deck to the full width of the rear of the dwelling, o Provide additional basement storage area under rear deck. .2 Appeal No 11335 of 2007 ; against councils deemed refusal of a s96 application to the pool consent to: o Modify the pool dimensions from 12.5m x 1.5m to 13.7m x 1.8m and raise the pool and decking a further 210mm above the approved level of RL 8.5, o Locate the pool pump equipment under the rear deck, o Replace a small section of turf area by the pool with a ceramic tile hardstand, measuring 3.5m x 1.5m. .3 Appeal No 10039 of 2008 ; against councils deemed refusal of a s96 modification to regulate works as follows: o Construct planter boxes with wall and gates to front yard of dwelling; o Relocate internal stairs and entry to basement; o Locate air conditioning equipment and stormwater storage tank in new basement area under rear deck; o Modify front porch roof to delete half hip form; o Extend the upper floor balcony across the whole width of the rear of the dwelling and provide privacy screens to either sides; o Provide metal security gate to front door and side passage of the dwelling; o Provide pool safety fencing and balustrade to deck and steps; o Provide solar panels to northern side of roof; and o Provide solid privacy screen to the lower deck on the northern side. .4 Appeal No 10085 of 2008 ; against a s 121B Order No 1 concerning occupation of the building prior to a final Occupation Certificate being received. 6 The parties agreed all the appeals be heard concurrently. 7 Consequently, I note that after considerable conferencing and conciliation, the parties agreed to a number of matters, including further modifications responsive to the issues raised. This resulted in Appeal No 10085 of 2008 being discontinued. Appeal No 11336 of 2007 was also discontinued. 8 The agreed modifications and conditions then has resulted in consent orders for the other appeals. Planning Controls 9 .1 Waverley Local Environmental Plan 1996 ; under which the proposals are permissible with consent in this zone. .2 Waverley Development Control Plan 2006 , wherein the following controls are relevant: * Part D1 – Dwelling House and Dual Occupancy Development. * Part I2 – Land Use and Transport. The evidence 10 The s 34 proceedings commenced on-site on 6 March 2008 and participants included the neighbouring property owner (No 78) Ms Wyer and her representative, who previously filed a notice of motion to be joined as a party, which was returnable on 14 March 2008. This notice was set aside but Ms Wyer allowed limited participation in the proceedings to present all her objections, following which both properties were inspected. 11 The initial list of objections was extensive and obviously included some complaints about procedural matters and alleged damage to No 78 due to the construction works at No 76. Some of these matters are outside the scope of the subject appeals. However, some of the other objections are valid in terms amenity impacts on No 78. They are summarised as follows: o Roof modifications are unsatisfactory in terms of the design profile, materials, colour and drainage of the valley along the common boundary. o The lower ground floor privacy screen is unsatisfactory in design and location causing loss of solar access to No 78. o The upper balcony design unreasonably impedes the outlook and view opportunities from No 78. o Unsatisfactory pool fencing. o The location of the pool filter and ancillary items under the extended rear deck is unsatisfactory. o Front fence encroaches and is not compatible with her property. 12 These objections were addressed in the conciliation process in the following manner. Roof elements 13 One of the roof modifications concerns the change from a tiled roof to steel Colourbond. This element was assessed by the council officer with reference to the controls in s 5.4.4 of the DCP dealing with semi-detached and attached dwellings. The stated strategy is for extensions and additions to be visually and stylistically integrated with the existing roof form so that characteristic features of the existing roof-form are incorporated, where possible. 14 That assessment supported the lighter weight Colourbond roof and took into account that the approved alterations for the subject dwelling allowed an obvious change to the architectural style of the attached dwelling in that: o Its external walls are to be rendered and painted unlike the face brick of No 78. o There is no particular matching in the architectural treatment of the front elevation in relation to windows and voids of the adjoining development. 15 From my observations at the site inspection, it is apparent that there is an eclectic mix of building styles in this neighbourhood and that includes noticeable variations in the roof materials of other semi's. Taking into account the contemporary architectural style of No 76, I am satisfied that the discretion allowed in the DCP to vary the roof material is reasonable. 16 The other roof modification concerns the eaves line and front elevation roof end treatment. Despite the approval requiring the continuation of the eaves line across both dwellings, the applicant proposes the eaves of No 76 be raised. I do not consider that this modification is acceptable because it does not visually integrate with the existing roof form. This requires alterations, including the colour of the front façade moulding to match the colour of the front existing gutter. Conditions can cover this, as agreed. 17 The issue concerning the front elevation is that this modified roof element is to terminate with a vertical end rather than a hipped end like that on No 78. Again taking into account the noticeably different style approved for No 76, I am satisfied the straight end is generally consistent with its architectural style and reasonably integrates into the streetscape. 18 The next roof element concerns its drainage. This is an important consideration because of the valley between the 2 separate roofs along the common boundary. The applicant proposed a common gutter to allow greater capacity and ease of maintenance. However, this was opposed by No 78 due to past drainage and maintenance problems. The further consideration of this matter has resulted in agreement to adjacent separate box gutters with a sealed joint and flashed. I accept the modifications required to achieve this agreement are reasonable in the circumstances. Upper balcony 19 The modification of this balcony is to maintain it at the width of the upper level bedroom and install end privacy screens. Objections were raised that the extension of the balcony would provide additional cover to the lower terrace, increasing its usage and resulting in unreasonable amenity impacts. It seems to me that the proposed balcony is of similar dimensions to other balconies and that with the proposed bi-fold doors, privacy impacts should be contained to a reasonable level. 20 Considering the relatively close proximity of this balcony, either modified or not, then the erection of louvred privacy screens significantly assists in maintaining reasonable utility and privacy. Notwithstanding this, I accept the neighbour's objection that the screens would restrict distant views from her property. However, I do not consider any loss of view in this oblique direction, over the balcony, takes out significant views, providing the screens are tapered down from the building. Conditions can cover this. 21 Insofar as objections were raised about the columns under the balcony, I am satisfied the clarification of their position in the modification plan is satisfactory and should not cause any adverse material impacts on No 78 and therefore satisfies the zone objectives. Lower floor deck 22 The main objection to this element concerns the northern-end treatment adjacent to No 78. Ms Wyer expressed concern that any full-length screen would prevent natural light entry to her kitchen/family area and terrace. Also, it would prevent access for maintenance. 23 Considering the adjoining proximity of these rear decks, it seems reasonable that an appropriate screen be allowed on No 76 so as to allow privacy for both properties. Following the various submissions, I am satisfied that an appropriate timber screen, with angled louvres and a maximum height of 1.8m and set within the subject property, represents a reasonable balance to the competing interests. Basement extension. 24 This modification is to extend the basement to accommodate the pool filter and ancillary pool equipment. The main objections concern possible damage to the foundations of No 78 from the excavations. However I understand from councils submissions that these works are generally acceptable providing they are undertaken with due care. I am satisfied appropriate conditions of consent can cover structural supervision and subsequent certification of structural adequacy of this part of the basement. Also, conditions can cover maximum noise generation from the pool filter. On this basis, I consider this modification satisfactory. Swimming pool 25 It seems that the modification to the pool dimensions is of a relatively minor nature and its approval should not result in any adverse impacts. I am also satisfied that the other detailing matters concerning the fencing and landscaping, as agreed by the parties are satisfactory. Other matters 26 A number of other relatively minor detailing matters were also addressed and agreed to by the parties. On this basis, there is no apparent evidence to upset the agreement and I therefore accept the conditions imposed to cover these matters. Conclusions 27 As I noted initially, these appeals mainly involved detailing modifications to the approved dwelling and pool. Considerable conferencing between the parties has been undertaken and that has lead to some other detailing changes, which the parties find acceptable, resulting in their agreement to consent orders. 28 In determining the outstanding appeals, I am satisfied that the modifications relate to the same development. Also, that they have been notified and the objectors concerns adequately addressed in the agreed conditions. In this regard the Court notes that the application to be joined by Ms Kerry Wyer owner of No 78 Nancy Street is withdrawn. 29 Then, in accordance with the aforementioned reasons, I am satisfied the modifications merit conditional consent as set out in the consent orders and that they demonstrate reasonable compliance with the relevant sections of the DCP, particularly the objectives for this zone. Court Orders 30 The following consent orders are made in respect of Appeal No 10039 of 2008. 1 The appeal as amended is upheld. 2 Consent is granted to section 96 application 406/2006D as amended for alterations and additions to the dwelling at 76 Nancy Street, North Bondi subject to the conditions in Attachment A. 3 The exhibits may be returned except for 1, 2, 3, 5, B,K and M. Notes: 1 The consolidated conditions of consent are in Attachment B, including conditions for all modifications to the date of this order and the approved plans referred to in condition 1 includes all the details from the two previous approved section 96 modifications DA 406/2066A dated 1 February 2007 and DA 406/2006B dated 27 February 2007. 2 The applicant is required to obtain a modified construction certificate prior to the carrying out of any works after the commencement of this order. 31 The following consent orders are made in respect of Appeal No 11335 of 2007. 1 The appeal is upheld. 2 Consent is granted to the section 96 application DA 744/2006A for modification to approved swimming pool and associated landscaping at 76 Nancy Street North Bondi subject to the conditions in Attachment A. Note: Attachment B is a consolidated consent including conditions for this consent. ___________________ R Hussey 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.