Land and Environment Court of New South Wales CITATION : X-Unit Developments Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1235 APPLICANT X-Unit Developments Pty Ltd PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 10460 of 2009 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- Section 96 Modification Application extension and introduction of balconies for units at rear of building. Impact on amenity and future redevelopment potential of adjoining land. Overlooking and privacy. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 65 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan - Urban Design Jonah Pty Ltd v Pittwater Council [2006] NSWLEC99 Meriton v Sydney City Council [2004] NSWLEC 313 TEXTS CITED: Galea v Marrickville Council [2005] NSWLEC 113 Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley [2004] NSWLEC 91 DATES OF HEARING: 10 & 11 May 2010 with additional material 10 June 2010 DATE OF JUDGMENT: 31 August 2010 APPLICANT Ms A Stenmark (Senior Counsel) Mr E N Gramelis (Junior Counsel) SOLICITOR Tsavdaridis Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton (Solicitor) SOLICITOR Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 31 August 2010 10460 of 2009 X-Unit Developments Pty Ltd v Council of the City of Sydney JUDGMENT 1 The applicant in these proceedings is seeking approval for a modification application to a consent granted by the City of Sydney Council, 12 October 2007. This original approval was for ten units and parking in a three-storey building at the premises known as No.'s 15-17 Marsden Street, Camperdown. 2 The site is located on the southern side of Marsden Street and is approximately 570 square metres, sloping gently from the east to the west. The site is adjoined to the immediate east, west and south by industrial buildings, built to the common side and rear boundaries. 3 The site is zoned mixed use 10, under the South Sydney Local Environmental Plan 1998 and development for the purposes of a residential flat building is permitted on the subject site and other sites in the vicinity that are similarly zoned. 4 Clause 10 of the South Sydney Local Environment Plan requires proposed developments to be consistent with the objectives of the zone within which the land is located. 5 The objectives of the zone No. 10 are contained in clause 21 and include: (a) To allow in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light industrial and industrial development. (d) To incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship, with the public domain. (g) To minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of Development Control Plans. 6 The development was assessed under the Urban Design Development Control Plan of 1998. This Development Control Plan adopts a performance-based system of control that focuses on 'performance criteria', to achieve 'desired outcomes'. "This approach allows flexibility and innovation by not restricting design solutions to a particular prescriptive standard." The emphasis of the Development Control Plan is on the assessment of applications on merit to achieve the best possible balance between the diverse, and sometimes conflicting, issues that affect development sites. At 2.4 of the Development Control Plan, visual and aural privacy is addressed. Here the objectives are: + To balance the need for more intensity, urban housing with the achievement of a reasonable level of visual and aural privacy. + To ensure all habitable rooms and private spaces in residential buildings achieve reasonable privacy. 7 The performance criteria include for direct overlooking to main habitable rooms of other dwellings is minimised by building layout and location, position of balconies, design of windows and screening devices and landscaping. 8 The controls include that the minimum separation between directly overlooking dwelling units excluding balconies, is 6 metres between non-habitable rooms, 9 metres between habitable and non-habitable rooms and 12 metres between habitable rooms. The controls also state, despite the above, direct views between living area windows of dwellings are to be screened, obscured or offset to ensure maximum privacy. Balconies in any wall plane are not permitted within 6 metres of any other directly facing wall plane that does not have windows or balconies, or within 12 metres of any other directly facing wall plane with windows or balconies. 9 State Environmental Planning Policy No. 65, Design Quality of Residential Flat Development, is a relevant instrument for the assessment of this modification application. This contains 10 good design principles that must be taken into consideration and include: context; scale; built form; density; and amenity. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy and efficient layout. For scale, good design in precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. Similarly for context, the desired future character in planning and design policies must also be considered. The Proposal 10 Figure 1 shows the proposed modification application for an additional 2.4 metre wide balconies across the rear southern elevation of the building, at first and second levels. This is in addition to the approved recessed balconies off the living areas and provides new balconies off the bedrooms of about 27 sq m for each of the units 3, 6, 7 and 10. The balconies on the two levels are separated by extensions of the common dividing wall. This has the effect of the edge of the proposed new balconies being 3.6 metres from the rear boundary, whereas in the original approval, a 6 metre setback to the boundary was shown. As shown in figure 2 the adjoining factory/warehouse wall is constructed on the boundary. 11 The council refused the modification application on 23 April 2009 on the grounds that: + The proposed balconies, by virtue of their inadequate setback from the boundary, do not comply with the Development Control Plan and State Environmental Planning Policy No. 65 and therefore will have an undue and detrimental impact on the amenity of the subject site and future amenity of the adjoining site. + The proposal is not in the public interest. The Council provided a Statement of Contentions as follows: 1. The Modification Application is unacceptable and should be refused insofar as it is inconsistent with Part F, Section 2.4.1 of the South Sydney Development Control Plan 1997. Particulars (a) Part F, Section 2.4.1 of the South Sydney Development Control Plan 1997 ("South Sydney DCP 1997") provides as follows: (i) "Objectives": "… to balance the need for more intensive urban housing with the achievement of a reasonable level of visual and aural privacy" (ii) "Performance Criteria": "… Direct overlooking of main habitable rooms of other dwellings is minimised by building layout and location, position of balconies, design of windows and screening devices …" (iii) "Controls": "… balconies in any wall plain are not permitted within 6.0 metres of any other directly facing wall plain that does not have windows or balconies, or within 12.0 metres of any other directly facing wall plain with windows or balconies". b) The approved development provides for a setback from the southern boundary of the site of 6 metres, which has the purpose of accommodating the minimum 12 metre separation required pursuant to Clause 2.4.1 between the subject building and any future residential building on the site to the south. (c) The balconies proposed pursuant to the Modification Application provide for a setback of 3.6 metres to the southern boundary which is inconsistent with Clause 2.4.1 in terms of any future residential development of the site to the south, and in that regard may have an adverse impact on the development potential of that site. 2. The Modification Application is unacceptable and should be refused insofar as the proposed balconies will have an adverse impact on the amenity of future occupants of the subject site and the adjoining site in terms of privacy and overlooking. Particulars (a) The proposed balconies will: (i) Result in increased overlooking potential to future dwellings on the adjoining site to the south. (ii) Have an adverse impact in terms of privacy (visual and oral) for future residents of the approved development and any future development of the site to the south. (b) Having regard to particular (a), approval of the Modification Application will result in a development that is inconsistent with: (i) Clasue 2.4.1 of the South Sydney Development Control Plan 1997. (ii) Principle 3: Built Form in Clause 11 of State Environmental Planning Policy No . 65 – Design Quality of Residential Flat Development. (iii) Principle 7: Amenity in Clause 15 of State Environmental Planning Policy No . 65 – Design Quality of Residential Flat Development. Evidence and Submissions 12 On behalf of the applicant, evidence was given to the Court by Mr Neil Kennan consultant town planner, Ms Erica Marshall-McClelland architect and Mr Lyle Marshall engineer. For the respondent council, evidence was given by Mr William Toose, a planner with the City of Sydney Council. 13 On the first morning of the proceedings the Court carried out a site inspection with the parties. The Court had the opportunity of observing the 2.4 m wide and 22.6 m long balconies at the rear as built. 14 It is not disputed between the parties that retrospective approval can be sought under section 96, having regard to the authority of Windy Dropdown Pty Ltd v Warringah Council (2000) 111LGERA 299. 15 In the approved plans the rear balconies are approximately 8 square metres and this would be increased to 27 square metres and together with the front balconies this provides for private open space on balconies of 54 square metres. The modification application also seeks approval for the sliding doors to access the new balconies from the bedrooms. The applicant's architect produced options to reduce the effective width of the balconies accessed from the bedrooms to 1.34 metres, to ensure that the area was not the primary open space for the unit. Ms Marshall-McClelland proposed this by utilizing louvres and planter boxes. In her opinion, the option to louvres and pebble planter boxes would break down the bland southern facade of the building into component parts with smaller elements to provide rhythm and interest rather than the flat concrete facade. 16 Mr Kennan also supports the above option 4 in Exhibit K and shown in figures 3 and 4 attached. He considers this to be the better design solution. 17 Option 4 shows the balcony at the rear off the living room to be reduced to a trafficable area of 2.6 metres, with 1.5 metres of a white pebble planter and a landscaped planter box of 750 metres in width. Both boxes would have a minimum depth of 600 millimetres. For the remainder of the balcony outside the bedrooms and bathroom, this is to be broken up with planters and screens running the length of the balcony as well as two planters to physically divide the space and with a maximum trafficable area in width of 1.34 metres. This is shown in figure 3 drawn by Ms Marshall-McClelland. 18 Mr Toose is of the opinion that "the 1.34 metre width would provide the potential to have dinner on the balcony", although he agreed that it minimised the impact, but in response to Mr Seton's question, it did not minimise the impact to the same extent as a setback of 6 metres. Mr Toose in response to Ms Stenmark's question concerning whether there would be undue and detrimental impact on amenity from the subject site to the adjoining site, Mr Toose responded, no. Mr Kennan and Mr Toose both agreed that there would be an improvement to the amenity for the units of the subject site. 19 In the Joint Report Mr Toose states that the balconies as constructed will have an undue and detrimental impact on the future development potential of the adjoining southern site. He further states that the development as approved provides a 6 m setback from the rear boundary, which has the purpose of accommodating the minimum 12 m separation required under the residential flat design code to State Environmental Planning Policy No. 65. He further considers that the modification detracts from the design quality and compromises the design intent of the development to which consent was originally granted. 20 Mr Kennan in the Joint Statement comments that the balconies as presently constructed are not satisfactory in that they will promote potential visual and aural privacy issues for the residents of the subject development and the residents of any development which might at some time in the future be developed on the adjoining land to the south. In his statement when he states that I am of the opinion from a planning perspective that the question that needs to be asked is, what are the options open to the Court to rectify the non-compliant 6 metre setback control. He further states that while the proposed remedial action would not result in a balcony form, which is compliant with the DCP he states that in the circumstances, I am of the opinion that the measures now proposed by the applicant would be such that a reasonable level of visual and aural privacy would be provided to both the occupants of the units and the residents of any future development to the south, and as such, the objectives of the DCP would be achieved. 21 On the contention that the modification was not accompanied by a design verification statement, prepared by a qualified designer, Mr Kennan and Mr Toose agreed that a design verification statement has now been submitted demonstrating that the residential flat development, as modified, achieves the design quality principles set out in State Environmental Planning Policy No.65. 22 Mr Lyle Marshall gave evidence that the dead load imposed by the stainless steel planter box, foam, pebbles, soil and plants and aluminium louvres as depicted on the drawing 583410 (B) sheet 13 B dated 10/5/2010 can be supported by the concrete slab as constructed. This is shown as figure 3. Figure 4 shows the elevation from the interior and the exterior to the southern elevation of the building. 23 The overshadowing diagrams provided to the Court in Exhibit O show that this modification with the 2.4 metre width of balcony in comparison with the development as approved in 2007. These shadow diagrams tended to compare with the original consent and the modification is satisfactory in this regard in my assessment and will not impact on the potential re-development of the adjoining site to the south. 24 Mr Seton referred me to the decision of Preston CJ in the matter of Jonah v Pittwater [2006] NSWLEC 99 at para 19 he states: The issue of relevance of past unlawful use to determining whether a consent should be granted or modified has been considered by Courts in the past. The Courts have consistently held that passed unlawful use is not a relevant factor. 25 In this above judgment his Honour referred to the judgment of Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321 at 323-3234 LGERA 17 …although an applicant for consent should derive no advantage, direct or indirect from the unlawful use, I do not think that it should be an impediment to the consideration of this application on its planning merits. If on the merits the planning consent should be given it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. …I think that the most expedient course ... is for ... the Court to deal with the planning application on its planning merits, ignoring any arguments based directly or indirectly upon unlawful use and leaving the punishment of the unlawful conduct to penal proceedings… 26 I accept Mr Seton's submission that Mr Kennan, approached his assessment on a false premise by assessing it as remedial action. I accept that I must assess the modification application on its merits and assume that the balconies are not there. I also accept Ms Stenmark's submission that these are not punitive proceedings. 27 Guidelines in DCP's must also be a focal point and fundamental element and proper and genuine consideration given to them. In circumstances where the numerical standards are to be varied a careful merits assessment must be carried have regard to a holistic consideration that includes whether the objectives are met. At the same time the judgment of Zhang v Canterbury City Council [2001] NSWCA 167 states that "a DCP is not an environmental planning instrument…nor can it contain 'non-discretionary development standard' which if complied with would take away a consent authority's discretion under s79C (2)". I also recognize this discretion is not unfettered. Similarly the Residential Flat Design Code under SEPP 65 is a rule of thumb document and is not mandatory. I have given central consideration to both these documents in my assessment of this modification application in my merits assessment. 28 In my assessment of this s96 modification application under s79C of the Act I am satisfied it is consistent with the objective of the South Sydney DCP "to balance the need for more intensive urban housing with the achievement of a reasonable level of visual and aural privacy". Furthermore in my assessment it satisfies the performance criteria of minimizing the direct overlooking of main habitable rooms by, design and screening devices. And, in particular I make this finding having regard to recognizing the need to ensure the potential future redevelopment of the adjoining site to the south is not unreasonably impacted. 29 With respect to contention 2 in my assessment I am satisfied that the balconies together with the screening devices, of planters and louvers, shown in Exhibits "M" and "N" will not have an adverse impact on the amenity of future occupants of the subject site and the adjoining site on re-developed, in terms of aural privacy and overlooking. The balconies are adjoin bedrooms with a trafficable width now proposed of 1.34m and where it increases the size of the living room rear balcony the amendment in exhibit M and N reduces the width by 2.3m back to 2.6m, the same width of trafficable area as in the approved plans. Furthermore, provision of a planter off the living room will in effect provide additional screening for the future occupants of the adjoining site to the south once redeveloped and the screen planting will also provide for increased amenity for the occupants of the subject development. 30 In my assessment I have formed the view that the modification is not inconsistent or antipathetic to the DCP provisions or the built form and amenity principles of SEPP No 65. I agree with the evidence of Ms Marshall McClelland that the architectural design of the elements shown in Exhibits "M" and "N" will have the effect of providing for a more detailing in the façade with smaller components/ elements to break up the bland southern elevation. In this regard I accept her evidence that the resolution of the design detail will provide for an interesting design that provides amenity for the occupants of the subject site and the adjoining site to the south. The detail design of the modification in my assessment is not only more attractive but it is functional in minimizing amenity impacts of overlooking and aural privacy for both the subject site and the site to the south. 31 The issue of whether the proposal is as good as the approved six metre set back is not the test and both planning experts agree that the amenity of the occupants of this development and future occupants of the adjoining site are minimized and is satisfactory. 32 In my assessment of the modification application, I am satisfied that the proposed modification as shown in Exhibits M and N should be approved and that the objectives of the Development Control Plan and principles of State Environmental Planning Policy No. 65 are satisfied. The modification in my assessment is also consistent with the LEP and zone objectives above. 33 The respondent is to forward a consolidated set of conditions, to reflect my findings above. That is, the original conditions as amended by this section 96 approval. The conditions are to also include the need for a section 88E instrument, to the effect that the purchasers of units 3, 6, 7 and 10 are aware that the trafficable area of the rear balcony area is to be limited as shown on the plan in Exhibit M, and that the planters and louvre screens are to be maintained for the life of the development. The reason for this condition is to ensure that the development potential of the adjoining site to the south is not unreasonably impacted. 34 Accordingly based on my merits assessment above, the formal Orders of the Court will be: 1. The appeal in respect of the modification application for the property known as 15 -17 Marsden Street, Camperdown is upheld. 2. The modification application submitted to the City of Sydney Council, as amended and shown in Exhibits M and N is granted consent subject to the conditions in Annexure "A" (consolidated set of conditions). 3 The exhibits are returned to the parties with the exception of Exhibits M, N and Exhibit 1. ___________________ J S Murrell Commissioner of the Court DJJ 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.