Land and Environment Court New South Wales Medium Neutral Citation: McManus & Klinger v Waverley Council [2012] NSWLEC 1085 Hearing dates: 28 March 2012 Decision date: 10 April 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. 342/10 for alterations and additions to an existing flat building is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibits 2, 4 and A. Catchwords: DEVELOPMENT APPLICATION: Consent orders; alterations and additions to existing flat building; resident objectors. Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Cases Cited: Shields v Waverley Council [2011] NSWLEC 1115 Category: Principal judgment Parties: Amanda McManus & Steven Klinger (Applicant) Waverley Council (Respondent) Representation: Mr Klinger (Solicitor) (Applicant) Mr Patterson (Solicitor) (Respondent) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 11010 of 2011 Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No 342/2010 (the application) for alterations and additions to an existing flat building at 4 Glen Street, Bondi (the site). 2Waverley Council (the Council) refused development application D/2010/85 for a two-storey addition to the existing flat building on 23 November 2010. Amendments were then made to the proposal, including deleting one of the additional floors and the amended proposal was submitted to Council for a s 82A Environmental Planning and Assessment Act 1979 (EPA Act) review of council's determination. The appeal to the Court was filed prior to the determination of the s 82A review. 3The appeal was the subject of a s 34 of the Land and Environment Court Act 1979 (LEC Act) conciliation conference on 31 January 2012. The s 82A amended proposal (the proposal) was further modified during the s 34 conciliation conference. The conciliation conference was terminated pursuant to s 34(4)(a) on 14 March 2012. Following the termination of the s 34 conciliation conference, the parties agreed to enter into consent orders. The principle changes made to the proposal following the conciliation conference were: * The roof design was modified to reduce the overall height of the building by reducing the pitch of the skillion roofs; * Privacy screens were added to the southern end of the proposed balcony on the top floor at the rear of the block and a planter box was added along the length of the balcony; and * A fire egress was added and changes made to the basement car parking layout to allow for a direct path to the fire escape. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i)the content of the proposed orders (including the proposed conditions of consent); (ii)the date of the hearing by the Court to consider making the proposed consent orders; and (iii)the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In accordance with the Practice Note, three local residents provided evidence at the consent order hearing during the site inspection. The residents' concerns can be summarised as: Residents of 6 Glen Street, adjacent to the site on the southern side: * The breaches of the Waverley Development Control Plan 2007 controls result in additional amenity impacts on their property; * The proposal will overshadow their property, including their rear deck and yard; * The proposal will overlook their property, including their rear deck and rear yard; * The residents of 6 Glen Street engaged town planner Mr Tony Moody and architect Mr Stephen King, who both provided a written report detailing the impacts of the original development application proposal on 6 Glen Street (Exhibit 3). * The resident of 8 Glen Street, one block removed on the southern side: * The breaches of the Waverley Development Control Plan 2007 controls result in additional amenity impacts on their property; * The proposal will overshadow their property, including their rear deck and yard and the shadow diagram does not indicate the additional shadow on the raised rear deck; * The rear yard is already overshadowed by a tree listed on Council's significant tree register and the proposal will add to the existing overshadowing. * The residents of 9 Glen Street, opposite the site: * The proposal is bulky; * The proposal will overshadow their front bedroom window during the morning; and * The proposal will result in additional parking in Glen Street. Planning Framework 6The site is located within Zone No 2 (c1) Residential - Medium and High Density pursuant to Waverley Local Environmental Plan 1996 (LEP 2000) and the proposal is permissible with consent. 7The proposal is subject to the provisions of Waverley Development Control Plan 2010 (DCP 2010). Overshadowing 8The site is oriented east to west and is on the northern side of 6 and 8 Glen Street, both single storey dwellings. The existing 3 storey block has a long rectangular footprint that runs east to west, which significantly overshadows the single storey dwellings to the south. 9A consultant planner, Ms Kerry Gordon, gave expert evidence on behalf of the Council. 10According to Mr King's written report and Ms Gordon's expert evidence, the north facing windows of 6 Glen Street are completely shaded at the winter solstice by the existing flat building. Ms Gordon therefore focused her assessment on the number of hours of sunlight on the north facing windows in the living room of 6 Glen Street at the equinoxes. 11According to Ms Gordon's expert evidence, the s 82A proposal complied with DCP 2010 G2 Solar Access (Exhibit 1 Tab19) performance criteria. Ms Gordon imposed the additional threshold of assessing the solar access to the living room windows of 6 Glen Street at the equinoxes, due to the extent of overshadowing during winter of the existing building. She determined that the proposal would be acceptable if it retained a minimum of 4 hours sunlight at the equinoxes on the north facing living room windows at 6 Glen Street. 12Ms Gordon therefore requested the applicant lower the overall height of the proposal to ensure that the two living room windows of 6 Glen Street, located at the eastern end of the northern façade, retain a minimum of 4 hours sunlight at the equinoxes. Following the s 34 conciliation conference, the applicant amended the roof pitch to achieve an overall lowering of the height of the proposal which results in the living room windows of 6 Glen Street receiving 4 and 5 hours of sunlight respectively at the equinoxes. 13I am satisfied that the preservation of 4 and 5 hours of sunlight on the north facing living room windows of 6 Glen Street at the equinoxes, which is a higher threshold than the DCP 2010 G2 Solar Access performance criteria requires, is acceptable. 14The shadow diagrams (DA08 of Exhibit A) indicate that the existing flat building and 6 Glen Street overshadow the rear deck of 8 Glen Street during the morning of the winter solstice. The additional overshadowing by the proposal falls on a narrow strip adjacent to the southern boundary. 15I accept the evidence of the resident at 8 Glen Street that the additional overshadowing is indicated at ground level and as his deck is at a higher level, the additional overshadowing during the morning of the winter solstice is likely to fall across his rear deck. However, given that the properties are zoned for medium and high density development and they are oriented east to west, the solar access of the rear deck at 8 Glen Street is also vulnerable to development of the adjoining property at 6 Glen Street, including a second storey to the existing dwelling. I therefore find that the additional overshadowing of 8 Glen Street during the morning of the winter solstice is not determinative in this matter. Floor Space Ratio (FSR) 16The FSR control for the site is 0.9:1 (cl 3.4 Part D2 of DCP 2010) and the FSR of the proposal is 1.21:1. The FSR of the proposal has not changed in the amendments made following the s 34 conciliation conference. 17Mr Klinger, the applicant, submits that paragraph 30 of Commissioner Murrell's judgment in Shields v Waverley Council [2011] NSWLEC 1115, is relevant and it states: In my assessment, I must give central consideration and make the Development Control Plan provisions a fundamental element in my assessment of the modification application as required by the authority of Zhang v Canterbury City Council. This judgment of the Court of Appeal also states that a DCP in not an environmental planning instrument and cannot contain non-discretionary development standards. I have given the DCP central consideration and a holistic reading including the objectives of the provisions including the fsr. In this regard the floor space ratio requires consideration of the objectives contained in pt 5.2 relating to size and bulk. The objectives are also informed by the strategy that building bulk be compatible with surrounding built forms and minimize adverse effects on bulk to adjoining properties and the streetscape. 18I understand that the purpose of drawing my attention to the above judgment was to demonstrate that the non-compliance with the FSR control in this matter does not necessarily lead to a conclusion that the proposal is not compatible with surrounding built forms. I am not convinced that Commissioner Murrell's judgment is relevant to this matter. 19According to Ms Gordon's expert evidence, the objectives of the FSR control are to maintain bulk and scale of developments. Ms Gordon considers that the proposal is consistent, in terms of bulk and scale, with other flat buildings in the vicinity. 20While the bulk and scale issue is not without some doubt, given the variation of the FSR control, I accept Ms Gordon's evidence. Privacy 21Council's contention regarding privacy is addressed, according to Ms Gordon's evidence, by the Condition 2A Privacy Screen, which requires privacy screens at either end of the rear balcony, shown on the amended architectural plans. A planter box was added in the amended plans to the length of the rear balcony to restrict access to the balustrade in order to preserve the privacy of surrounding properties. 22The applicant was required by Council to provide a sectional sketch to demonstrate that the kitchen bench in Unit 7, under the window in the southern façade of the proposal will ensure the occupant of Unit 7 is not able to directly view the rear yard of 6 Glen Street. 23I accept Ms Gordon's evidence that the proposal maintains adequate privacy for the adjoining properties. Car Parking 24According to Ms Gordon's evidence, the amendments to the basement car park layout have addressed Council's contention regarding access to the stair door. 25I accept Ms Gordon's evidence that the amended car park layout has provided adequate access to the stair door. Conclusion 26It is more difficult to protect the amenity of single storey dwellings within an area of diverse development, zoned for medium and high density. 27Council's contentions are addressed, according to Ms Gordon's evidence, by the amended proposal, which has reduced the overall height of the building, reduced the pitch of the roofs and provided egress to the basement car park. 28The proposal will allow for the renovation and upgrading of the existing building. 29In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent. Orders 30By consent, the orders of the Court are: 1.The appeal is upheld. 2.Development Application No. DA-342/2010 for alterations and additions to an existing flat building at 4 Glen Street, Bondi, is approved, subject to the conditions at Annexure A. 3.The exhibits are returned, with the exception of exhibits 2, 4 and A. Susan O'Neill 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: 10 April 2012