Land and Environment Court New South Wales Medium Neutral Citation: 31 Blenheim Street Pty Ltd v Waverley Council [2012] NSWLEC 1050 Hearing dates: 5 March 2012 Decision date: 06 March 2012 Jurisdiction: Class 1 Before: Morris C Decision: Applicant to file and serve amended plans to reflect the findings contained within this judgment Catchwords: Development application: existing use; streetscape; solar access; amenity; height; setbacks; deferred commencement provisions requiring amendment of plans Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Waverley Local Environmental Plan 1996 Texts Cited: Waverley Development Control Plan 2010 Category: Principal judgment Parties: 31 Blenheim Street Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Mr G Green Pikes Lawyers (Applicant) Mr C Morton Sparke Helmore Lawyers (Respondent) File Number(s): 11236 of 2011 Judgment 131 Blenheim Street Pty Ltd filed an appeal in December 2011 against the deemed refusal by Waverley Council of development application DA 40/2011 which proposed the construction of a new dwelling on land known as No 22 Isabella Street, Queens Park. Since that time, the Council has determined the application and issued a deferred commencement consent on 13 February 2012. It is the conditions, the subject of that deferred commencement consent, that now form the basis of the appeal. The majority of those conditions had been imposed to address the concerns of the owner of an adjoining property, No 24 Isabella Street and in particular concerns with regard to overshadowing and the bulk and scale of the proposed dwelling. 2As the Council's Statement of Facts and Contentions initially addressed the development application prior to its determination, a telephone mention was held on the 29 February to determine the extent of the applicant's case. The applicant was required to prepare a position paper by 4 pm 1 March 2012, and the planning experts, to prepare a joint report by 2 March 2012. The reports are now before the Court. 3The matter commenced on site as a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). No agreement was reached and the conference was terminated. The parties agreed that the Court dispose of the proceedings on the basis of what has occurred at the conciliation conference under s 34AA(2)(b)(ii) of that Act. Background and the proposal 4The Council has issued consent, on a deferred commencement basis, for the construction of a three-storey dwelling, including double garage and pool on the rear of a lot to be known as number 22 Isabella St, Queens Park. 5Whilst the consent makes reference to a pool, the Court notes that this structure was deleted from the proposal during the negotiations between the parties leading to the preparation of the Revision E plans that are now before the Court and the subject of the consent. 6Currently a smash repair business is constructed over the whole of the land known as No 31 Blenheim Street. That building would be demolished to allow the construction of the proposed dwelling, and another dwelling fronting the Blenheim Street. 7The plans considered by the council were for a three-storey dwelling house with a central courtyard adjacent to the southern boundary. The ground floor comprises an entry foyer, two-car garage, main bedroom with ensuite, storage room and laundry. On the first floor, a living/dining room, kitchen, second bedroom with ensuite and powder room is proposed in a u-shape around the courtyard with a balcony area provided off the bedroom and living area. The upper floor contains a further two bedrooms, each with ensuite and a media area. A 1.65 m balcony is proposed at the front elevation at this level. 8Floor to ceiling heights within the dwelling vary and are 2.485 mm at ground level, 2.7 m at first floor and 2.4 m at the second floor. 9The ground and first floors were originally proposed by the applicant to be erected to the front, side and rear boundaries with the exception of the courtyard space. The upper floor would be setback 1.65 m from Isabella Street, 3 m from the southern boundary, 1.565 m from the rear and adjacent to the northern boundary. 10The objects of the Council's deferred commencement provisions require a reduction in building height, an increase to the setback from the southern property boundary and the retention of part of the existing building facade and as well as setting back the building 1.64 m from Isabella Street. It was agreed during the conciliation conference that it would not be possible to retain any part of the facade and comply with condition 7 as the whole of the façade is erected to the front property boundary. Ms Morton, for the Council, advised that it was the Council's position that the building should be set back in preference to retaining any part the former smash repair structure. 11The deferred commencement provisions include seven conditions. Of those conditions, the parties agree that conditions A1 and A6 could be the subject of operational conditions providing the matters are addressed prior to the release of any construction certificate that would be issued for the dwelling. Those conditions require the acquisition and extinguishment of the drainage reserves and the archival recording of the building. The issues 12The conditions that remain in contention are conditions A2, A3, A4, A5 and A7 and also impact the operational condition B2(b). They read as follows: A2. The entire western parapet be lowered to align with the masonry boundary wall of the adjacent verandah of the property to the south (approximately RL 84.00) A3. The top floor (upper most level) be set back a further 0.9m from the property to the south to provide a total setback 3.9m A4. All roof tops to the second floor (first floor roof on the plans) to the non-trafficable. A5. To further improve the visual element to the front of the building, that some of the existing brick work is maintained and re-used in the design of the front and that there is a stepped parapet on the top of the front facade. A7. The facade be setback to be in alignment with the adjacent balcony of the property to the north, approximately 1.64 m. The site and its context 13The site is located on the eastern side of Isabella Street and has a frontage of 8.135m and a depth of 16 m extending to a council owned drainage reserve to the rear. That drainage reserve also runs along the northern boundary of the site. From the evidence provided it is apparent that the Council has agreed in principle for the applicant to acquire that drainage reserve, which has been deemed redundant. The total area of the site, including the drainage reserve is 143sqm. 14A single storey industrial building, currently operating as a vehicle smash repair workshop, is erected across the entire site and the land to the immediate east. That premises operates under existing use rights in accordance with the definition contained in s 106 of the Environmental Planning and Assessment Act 1979 (the EPA Act). Accordingly, the assessment of the application is to be undertaken in accordance with the provisions of that Act and the Environmental Planning and Assessment Regulation 2000 . The application includes demolition of the existing building. 15The site is located within the Blenheim Street Conservation Area and in the immediate visual context of several early Victorian stone cottages erected c1850. Listed heritage items are located at Nos 12 and 23-31 Isabella Street and the site is bound by three-storey, town house type development to the north and south. The locality is characterised a mix of early 20th century industrial building (many now converted or redeveloped as residential) and early 19th century single and two-storey dwelling houses erected on varying setbacks. The planning controls 16The site is zoned 2(a) Residential under Waverley Local Environmental Plan 1996 (the LEP). Waverley Development Control Plan 2010 also applies to the site and as stated above, it is within a heritage conservation area. The evidence 17The Court, in the company of the parties and their experts, conducted an inspection of the site and its vicinity. A view of the adjoining property to the south, No 24, was undertaken in the presence of the owner's legal representative and consultant. That inspection included the rear courtyard, first floor front balcony and the front room within the upper floor. An application to be granted leave to be joined as a party to the proceedings pursuant to s 39A of the LEC Act was made on behalf of the owner of that property. The issues raised by the Council reflected all of the concerns of that resident with the exception of a chimney flue that had not been the subject of the contentions. The main concern of the resident is in relation to the loss of sunlight currently enjoyed in the rear courtyard and front, first floor balcony area due to the height and siting of the proposed dwelling. Mr Green, for the applicant, advised that his client would be prepared to delete the proposed fireplace and accordingly, the issue of the flue was resolved. As all of the concerns of the owner were addressed and pressed by the Council, leave was not granted for the applicant to be joined as a party, however, opportunity was provided throughout the conciliation phase of the matter for his legal representative and consultant to provide input and comments in relation to options that may be appropriate in the circumstances of the case. In addition, the Court accepted solar diagrams and alternate plans that had been prepared on his behalf for consideration. 18Expert planning evidence was heard from Mr Nash for the applicant and Mr McDonald for the Council. In addition, submissions were made by Ms Hill and Mr Israel on the half of the owner of No 24. Condition A2 19Mr Nash had submitted on behalf of Blenheim that the height of the building could be reduced by 400 mm. Discussion was held during the conciliation conference as to how the height could be further reduced so as to ameliorate its impact on No 24. It was agreed that, by lowering the ground floor level, reducing the parapet height and depth of floor slabs, the building height could be reduced by 500 mm at the southern boundary without affecting the floor to ceiling height of the dwelling. The experts agreed that the reduction in height of the parapet to RL 84 as required by condition A2 is not warranted or necessary, and that the reduction to RL84.5 is acceptable. A reduction to RL84.4 in accordance with the proposal developed during the conference would, according to Mr Israel, have the benefit of a 10% improvement to solar access enjoyed by No 24. 20The Court notes that the change does not achieve the objective of the adjoining owner, who is seeking to have the parapet wall in line with an existing wall adjacent to the common boundary. That wall is at RL84. The reason given is the concern at the loss of sunlight to the front, upper level balcony in this location. If the wall height was limited to RL84 and the upper floor setback 3.9 m from the common boundary, Mr Israel says that no change to the solar access currently enjoyed by No 24 should occur. Condition A3 21The experts agree that the setback of the upper third level by a further 0.9 m over and above the 3 m proposed by the applicant in the Revision E plans is not warranted or necessary as that the proposed location of the upper level has little or no role to play in the issue of solar access to the first floor terrace, and that whatever role it has would be further reduced by the reduction in height of the upper level by 200 mm to RL87.1 arising from the concessions made by the applicant. The shadow diagrams submitted on behalf of the objector confirm this. Condition A4 22The council advises that the intent of this condition is to delete the upper floor balcony adjacent to bedroom 4. This requirement is also reflected in condition 2(b), which requires the amendment of the plans, by the deletion of the balcony and associated balustrading with the area provided as non-trafficable roof area and the door opening converted to windows. The experts agree that the provision of a balcony at the upper level is appropriate. However, they did not agree on the alignment that the balcony should be erected. Mr Nash says the alignment of the building as proposed is appropriate however Mr McDonald said that the whole of the building should be setback in accordance with the Council's condition as this is more appropriate in terms of streetscape. Condition A5 23The Council now submits that it is more important that the dwelling is setback from the front property boundary rather than any part of the existing facade is maintained. Condition A7 24Mr McDonald considers the 1.64 m setback of the building is appropriate and consistent with the majority of development in Isabella Street, that it is appropriate that the building reflect the predominant design approach taken in the street and not to take a design "cue" from the existing non-conforming use, and the building currently on the site or the building adjoining to the south, which, in his opinion, is a poor example of urban design. He says that there are approximately 12-15 two and two-three storey buildings with frontage to Isabella Street and that all of these buildings have the front façade setback from the street. 25Mr Nash disagrees and says that the setback required by Council will make it inconsistent with the nil front setback of 24-30 Isabella Street, and that the front setback of dwellings and garage in that street is characterised by their lack of consistency, varying from zero up to 6-8 m. 26During the site inspection the alignment of the multi-unit development to the north of the site was measured at it was agreed to be 1.35 m to its outer face. During the conciliation, the parties were in agreement that in fact, to comply with condition 7, the proposed building would be setback further than the buildings to the immediate north and south. Mr Nash was concerned that this would expose the walls of those developments and said that that is not a desirable outcome. Mr McDonald accepted that a reduced setback might be appropriate provided that there is a transition between the buildings. The Court again, notes the representatives of the adjoining property to the south are seeking maintenance of the conditions consent requiring a reduction in the footprint of the building so as to maintain solar access to the balcony area however also note that all of the modeling undertaken did not take into account the façade being moved off the front property boundary. Conclusion and findings 27The productive discussions held during the conciliation process have identified issues that are relevant to Blenheim and the neighbouring objector and different ways that the outcomes that both desire can be achieved. It is necessary to determine the reasonableness of all of the alternatives proffered but most importantly, ensure that the outcome is appropriate in terms of streetscape. 28Having regard to all of the evidence provided, taking into account that the proposal will result in the abandonment of the smash repair activity as an existing use and the desires of the applicant and objector to achieve optimum amenity, I consider that it is appropriate to require amendment of the plans so as to provide a setback to Isabella Street to transition between the buildings to the north and south of the site. That setback should be 1.35 m as I agree with Mr Nash that there would be no benefit in exposing the side walls of the adjoining developments. It is appropriate to lower the height of the building by 500mm at its southern boundary and I consider that this, together with the setback of the building from the front boundary will provide adequate solar access to the adjoining property. 29The evidence provided by both experts is that there is little or no benefit in increasing the setback of the upper level from the southern property boundary and, allowing for the increased setback of the building, a similar advantage in terms of solar access would be achieved. I agree with the experts that it is appropriate to retain a balcony at the upper floor level and, to ensure the benefits of the increased setback are maintained, the balustrading of that area should be lightweight, and transparent. Materials such as wire or glass would be appropriate however, I consider that a matter for the architect. I agree with the experts that a privacy screen would not be required due to the separation and angle of view. 30In view of the above, I find that the deferred commencement conditions as proposed by the council should be deleted and amended plans prepared that reflect the matters outlined above and in particular the following: * The maximum height of the building to be RL 87.1. * The height of the entire parapet adjacent to the southern property boundary to be a maximum of RL 84.4. * The building to be erected on a minimum alignment of 1.35m to Isabella Street maintaining the ground floor courtyard area as shown on the approved plans and reducing the length of the garage. * Provision of a balcony at least 1m wide to the upper level on the 1.35m alignment to Isabella Street with light-weight balustrading. * The upper floor to be setback a minimum of 3m from the southern boundary and 1.565m from the rear (eastern) boundary. 31I consider that the objector has been provided with ample opportunity to participate in the process and that this decision has regard to the submissions received by the council and the objectives it seeks to achieve through the deferred commencement conditions. I am satisfied, based on the evidence available, that the amendments will result in an acceptable level of solar access to No 24, particularly having regard to the design and construction of the balcony and roof above. 32These changes would remove the need for all of the deferred commencement provisions and therefore, the applicant is directed to prepare amended plans to reflect these changes and file and serve those by 4pm Thursday March 8, 2012. Conditions A1 and A6 would become conditions to be complied with prior to the release of any Construction Certificate. It is appropriate to ensure that the roof is non-trafficable however, this does not mean that a balcony cannot be provided to the upper floor off bedroom 4. It is agreed that condition A5 should be deleted and that condition B2 must be modified. 33The council shall provide amended conditions of consent, in Word RTF format, by 4pm Friday March 9, 2012 to reflect the amended plans and the matters outlined above. Final Orders will then be issued in Chambers. Sue Morris Commissioner of the Court 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. Decision last updated: 07 March 2012