Land and Environment Court New South Wales Medium Neutral Citation: Neerim Bowral Pty Ltd v North Sydney Council [2012] NSWLEC 1173 Hearing dates: 5 June 2012 Decision date: 05 June 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. Modification application No.482/10/2 for the modification of Development Consent No. 482/10 for the demolition of an existing building and the construction of a 3 storey duplex with basement car parking and landscaping at 9 Wonga Avenue, Cremorne is approved as set out in annexure "A" hereto. 3. The Court notes the agreement of the parties that each party is to pay their own costs. 4. The exhibits are returned with the exception of exhibits 2 and B. Catchwords: MODIFICATION BY CONSENT: approval for duplex - modification to street setback - inclusion of swimming pool - reduction in excavation - resident objection to loss of views, sunlight and amenity Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: Neerim Bowral Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Mr M Staunton, barrister (Applicant) Ms E Whitney, solicitor (Respondent) Solicitors HWL Ebsworth Lawyers (Respondent) File Number(s): 10286 of 2012 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the decision of North Sydney Council to refuse an application for the modification of development consent 482/10 granted on 18 July 2011 for a duplex at 9 Wonga Road Cremorne. 2The modification application proposes: Top level - reduction in the setback to the street frontage so that the midsection of the terrace adjacent to the living room is widened by 1.5 m and alterations to the rear and northern windows. Mid floor level - reduction of the setback to the street frontage by 1.5 m by enlargement of bedroom 2 of each of the duplex dwellings, and in the conversion of the non-trafficable roof setback area adjacent to two of the bedrooms to 1.5 m wide balconies with glass balustrades. Also, the addition of an en suite to bedroom 3 of dwelling 1 and changes to window design on the eastern elevation. Lower level - addition of a 3.1 m x 1.8 m by 800 mm deep swimming pool over the front entry porch and adjacent to the front terrace above. Changes to the extent of excavation and internal layout at rear of the building. Garage level - reduction in the extent of excavation and adjustment to water storage tank location. 3The appeal was subject to mandatory conciliation and arbitration on 5 June 2012 where the Council agreed that there were no issues that warranted the refusal of the application. While not proposing agreement under s 34(3) of the Land and Environment Court Act 1979, the Council proposed that the matter be dealt with by way of consent orders. In accordance with s 34AA(3), I am satisfied that the proceedings not be dealt with in accordance with s 34AA(2) and that the proceedings be dealt with in accordance with s 34C, as a court hearing. 4On this basis and in accordance with the Practice Note - Class One Development Appeals (the Practice Note) for consent orders, par 36 relevantly provides: Any application for consent final orders in development applications 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 object to the proposal. In this regard the practice note requires firstly that the statutory provisions have been complied with and any approval is lawful." 5In response to the Practice Note, I note firstly that the Council provided a bundle of documents that contained reports on the original approval and the modification approval. Additionally, a report by Ms Kerry Gordon, a consultant town planner on behalf of the applicant, was also tendered. Both the modification application and the report from Ms Gordon support the modification and raise no issues with the statutory provisions governing the proposed modification. I accept this part of the Practice Note is satisfactorily addressed. 6Secondly the Practice Note requires that any objection by any person has been properly taken into account. To address this, the adjoining property at 7 Wonga Road was inspected and the owners provided with the opportunity to advise the Court of their concerns. These related to the following main areas: 1.loss of views; 2.loss of sunlight and 3.loss of amenity. 7To allow consideration of these objections, poles were placed in the relevant parts of the proposed development that is currently under construction to help the Court understand the concerns raised by the adjoining owner. The impact on views is addressed in some detail in the council officers report on the modification application (pp 8 to 10) including reference to the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140. This report concluded that the additional view loss is not considered to be material or significant compared to the originally approved development. With the benefit of viewing the differences between the proposed modification and the approved duplex from different locations within 7 Wonga Road, I can comfortably conclude that any additional loss of view is minor, at best, and would not be a reason to refuse the modification application. 8On the issue of solar access and given the orientation of the building, I also accept that the council officer's assessment that the modification will increase shadows only on a small part of the deck and the north-west corner of the living area for up to 20 minutes. I do not accept that this additional shadowing warrants the refusal of the modification application. 9As I understand, the general concerns over amenity relate to some extent to the size and location of the proposed duplex per se, and as such are not relevant to the proposed modification application. 10While only 7 Wonga Road was inspected I note that potential overlooking concerns were expressed from properties to the rear in Tobruk Avenue, if and when the property at the rear is redeveloped. I accept that this issue is best addressed if and when if redevelopment takes place, although I note that there is a generous separation of 12 - 15 m at present. 11There being no reasons why consent should not be granted, the orders of the Court, by consent, are 1. The appeal is upheld. 2. Modification application No.482/10/2 for the modification of Development Consent No. 482/10 for the demolition of an existing building and the construction of a 3 storey duplex with basement car parking and landscaping at 9 Wonga Avenue, Cremorne is approved as set out in annexure "A" hereto. 3. The Court notes the agreement of the parties that each party is to pay their own costs. 4. The exhibits are returned with the exception of exhibits 2 and B. _______________ G T Brown Acting Senior Commissioner 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: 26 June 2012