Land and Environment Court of New South Wales CITATION : Bensen & Partners Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1193 APPLICANT Bensen & Partners Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10324 of 2010 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Section 96 modification to courtyard wall feature. Categorisation as stairs to roof top terrace, acoustic and visual amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Woollahra Heritage Conservation Area Development Control Plan 2003 DATES OF HEARING: 16 July 2010 EX TEMPORE JUDGMENT DATE : 16 July 2010 APPLICANT Ms S Hill (solicitor) SOLICITOR Susan Hill & Associates Lawyers Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Ms M Hawley (solicitor) SOLICITOR Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey J 16 July 2010 10324 of 2010 Bensen & Partners Pty Ltd v Woollahra Municipal Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT Background. 1 This appeal is against council's refusal of a s96 application to modify a development consent for alterations to a 2 - storey dwelling house located at 92 Fletcher Street, Woollahra. The consent was granted for the alterations and included the construction of a new garage with access to the rear lane and associated landscaping. 2 The new garage is connected to the dwelling via an internal courtyard. As a consequence of the development, the internal northern wall of the garage has included a 'decorative feature' comprising a set of ledges, which are to allow selective placement of plants to achieve a 'Mexican theme setting'. The ledges are in the form of steps, which lead to an awning over the garage door where there is possible access to the garage roof. The roof area has been tiled and incorporates lighting. 3 The application is for the approval of the modification works incorporating the ledges, awning and landscaping. Consequently, the issues identified for the appeal are summarised as follows: * Acoustic and visual privacy; on the basis that the design enables access to the garage roof for possible use as a roof top terrace. * Safety; the structure presents unacceptable safety risks if the ledges are used a stairs because there is no BCA compliance. * Public interest matters. Planning controls 4 The following controls relevantly apply: * Woollahra LEP 1995; under which the site is within the Residential 2(b) zone and the proposal is permissible with consent. * Woollahra Heritage Conservation Area DCP 2003; under which the site is in the Fletcher Precinct. The subject property is identified as a Victorian Corner Shop. Insofar as this DCP contains various development controls that the proposal complies with, section 3.4.9 deals with parking and garages and section 3.4.12 contains controls for acoustic and visual privacy. The evidence 5 This application was subject to a joint planning assessment (Exhibit 2) by Mr A Rowan (Planner for council) and Mr T Moody (planner for applicant). Objections were lodged by the neighbouring property owner on the basis that the approval of the ledges and retention of the roof works would facilitate its use as a roof top terrace, which would adversely impact on their acoustic and privacy amenity. 6 Ms Armstrong, the property owner gave evidence that while a roof top terrace was initially sought, this component was deleted from the development application and there was no intention to use the garage roof as a terrace. Instead the intention was to create the Mexican theme courtyard with ledges for display of plants that also allowed for varying shadows on the wall. This component is integrated with the landscaping species. 7 Mr Rowan considers the proposal involving the retention of the ledges could most likely facilitate their use as stairs to the garage roof. Mr Moody considers that as there is a gap of approximately 900mm between the ground level and the first ledge, this would prevent any stair usage. Despite the different opinions of the planners, they agreed that the intent of -the artistic feature was acceptable subject to satisfactory measures to prevent the structure being used as stairs to a roof top terrace. 8 Consequently consideration was given to a number of options to allow retention of the intent of the feature without it enabling use that would create adverse amenity impacts on the neighbours. 9 A compromise option presented is to retain the form of the ledges by removing the solid ledges (except for a length of 150mm from the wall) and replacing them with a substantially hollow, light weight form that obviously would not support any stairway use. This could incorporate shelves for retention of the pot plants and enable the shadowing effect. Conclusions 10 Having considered the evidence, the submissions and undertaken a view, I am satisfied that a modified artistic feature would be acceptable in the subject context. In this regard, I note Ms Hawley's submissions that the proposal should be refused. 11 However it appears to me that the form of this feature, which I accept adds an attractive feature to the courtyard, does present as a set of stairs, which could be used to access the roof. This was not envisaged by the original consent. Notwithstanding this, an artistic feature form is permissible providing it does not result in unsatisfactory amenity impacts. It seems to me that if the function of the ledges is defined by the amended hollow, light weight ledges, which preclude any likelihood of usage as stairs to the rooftop, then the resultant amenity impacts should be acceptable. 12 The neighbours concerns were that the use of a stairway would allow partial overlooking from this area and potentially the roof top. This concern should be addressed with hollow ledges, as shown in the plan at Attachment A. I note that both the planners agreed that this restricted form would then reasonably achieve the function sort by the applicant and together with conditions of consent preventing the use of the roof as a terrace, then the visual and acoustic amenity for the neighbours would be satisfactory, in terms of the s 3. 4.12 controls in the DCP. 13 In summary then, I am satisfied that this modification relates to the same development, it has been notified and the neighbours notified and their concerns considered. On merit I am satisfied the amended wall feature, which prevents any usage as stairs or roof top terrace merits conditional consent. Court orders 14 The Court orders. 1 The appeal is upheld. 2 The section 96 modification for alterations concerning the courtyard wall artistic feature at 92 Fletcher Street, Woollahra is approved subject to the condition in Annexure A. 3 The exhibits be returned except for 1, 4, C and D. ___________________ R Hussey Commissioner of the Court ljr Annexure 'A' Conditions of Consent Bensen & Partners Pty Ltd v Woollahra Municipal Council The existing consent should be modified by: 1. Inserting the following conditions A.6 Approved Amended (s96) Plans and supporting documents Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the approved plans and supporting documents listed in the original consent, as amended by the amended approved plans and supporting documents as submitted by the Applicant and to which is affixed a Council stamp "Approved Section 96 Plans" listed below otherwise than modified by further condition(s). Where the plans relate to amendments, alterations or additions only those works shown in colour or highlighted are approved. Reference Description Author/Drawn Date(s) S96 02 Issue A Architectural Plans Benson Partners Architects December 2009 S96 03 Issue A Note: These plans and supporting documentation may be subject to conditions modifying the development imposed under section 80A( I )(g) of the Act (refer to conditions which must be satisfied prior to the issue of any Construction Certificate.) Standard Condition: A6 1.1 Use of the decorative wall feature and roof above garage The roof area above the garage is not to be utilized as a roof terrace 2. Deleting the existing condition C1 and inserting the following: C.1 Modification of details of the development (s80A(1)(g) of the Act) The approved plans must be amended and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail: a. The garage is to have a clear parking envelope of 5.4m wide and 5.4m length in accordance with AS 2890.1 b. There is to be only a single driveway crossover c. The centre column is to be deleted to allow access into the garage d. The street name inlay is to be retained and reused within any new vehicular crossing. e. The ledges on the northern wall of the garage are constructed of a non-structural material in accordance with Annexure A dated 16 July 2010. C1A The ledges constructed as at the date of this approval shall be cut back so as to protrude no more than 150mm from the northern face of the garage, within 2 months of the date of this approval. C1B The extension of the garage roof overhanging the garage door on the northern elevation of the garage is approved without modification. Note: The effect of this condition is that it requires design changes and/or further information to be provided with the Construction Certificate drawings and specifications to address specific issues identified during assessment under section 79C of the Act. Note: Clause 146 of the Regulation prohibits the issue of any Construction Certificate subject to this condition unless the Certifying Authority is satisfied that the condition has been complied with. Note: Clause 145 of the Regulation prohibits the issue of any Construction Certificate that is inconsistent with this consent. Standard Condition: C4 ______________________ R Hussey Commissioner of the Court Ljr/dj 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.