O'Rourke v Waverley Council [2012] NSWLEC 1177

Land and Environment Court New South Wales

Medium Neutral Citation: O'Rourke v Waverley Council [2012] NSWLEC 1177 Hearing dates: 12 June 2012 Decision date: 28 June 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed Catchwords: Development application - Alterations to existing residential flat - Reconfiguration of living area - Impact on amenity - Noise Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 1996 Cases Cited: Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Aaron O'Rourke (Applicant) Waverley Council (Respondent) Representation: Solicitors Mr A O'Rourke (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10327 of 2012

Judgment 1This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the determination by the respondent Council of a review under s 82A of the Act of its refusal of a development application for internal alterations to Unit 7, 228 Campbell Parade Bondi Beach (the site). 2The site is located on the northern side of Campbell Parade between Wairoa Avenue and Ramsgate Avenue, Bondi Beach. The building comprises a three storey residential flat building contain 12 units, and parking in two single garages on the street. There are four units on each level of the building, and Unit 7 is located on the rear, northern, side of the building facing Ramsgate Avenue. 3The 12 units in the building originally adopted a similar configuration, being two bedrooms, with the larger bedroom and adjoining sunroom on the southern side of the building for those units facing Campbell Parade or the northern side of the building for those units facing Ramsgate Avenue, and the living area adjoining the kitchen which is at the entrance to each unit off the central stairwell. The layout of Unit 1 has been altered, pursuant to development consent granted in 2009, to relocate the living area to the southern side of the building fronting Campbell Parade, while retaining two bedrooms. 4In 2010 the applicant undertook works to Unit 7 to create a third bedroom and to relocate the living area to the northern side of the building. The effect of the reconfiguration of the apartment was that the living area and sunroom of Unit 7 now adjoins the bedroom of Unit 8 and is above the bedroom of Unit 3 and below the bedroom of Unit 11. The former living room area between the kitchen and the first bedroom was converted into two bedrooms, with access to the kitchen from a doorway constructed from the hallway. 5The Council issued a Notice of Intention to give an Order on 17 November 2010 for works unlawfully carried out, being the conversion of the unit from two to three bedrooms and alteration of the internal configuration of the unit without prior consent. The applicant lodged Development Application DA 23/11 on 21 January 2011, seeking consent for "Internal Alteration". In response to a request from the Council, the applicant provided a report from a structural engineer dated 29 April 2011 which states that the hallway/kitchen dividing wall is a non load bearing wall, and a copy of a lease of the premises for a six month period. 6The Council's Development Control Committee refused consent on 14 July 2011 on the basis that the works create a unit configuration and density that provides for unreasonable noise and density impacts on adjoining residents. The report from the Building Development Unit, which had recommended approval of the application, noted that the internal works had already been carried out and that retrospective approval could not be granted, however recommended that no further action be taken and a Building Certificate application should be lodged. 7The applicant sought a review under s 82A of the Act, on the basis of amended plans which indicated that acoustic insulation would be installed in the bathroom, carpet installed in the lounge room, and that a layer of gyprock would be installed within the lounge room on the common wall with Unit 8. The Council's Development Control Committee refused the review application on 31 January 2012, on the basis of adverse acoustic and density impacts, and poor amenity of the proposal. The report to the Development Control Committee noted that the majority of the internal works had already been carried out, with the exception of the acoustic treatment. That report also noted that the site is identified as an item of heritage significance and within the extension of the Bondi Beach Heritage Urban Conservation Area; while the proposal generally satisfied the provisions for being exempt development, the site was a heritage item and the proposal involves the reconfiguration of rooms. 8The Council's Statement of Facts and Contentions raised as a contention that retrospective approval could not be granted and that accordingly there was no power to consent to the development application. By the commencement of the hearing, the building works had been removed, and the Council did not press that contention. 9The issues in dispute relate to the impact of the re-configuration of the layout of the unit on the amenity for residents in the building, in particular in relation to acoustic privacy. The Council contended that if development consent is granted a condition should be imposed that the unit not be occupied by more than six people at any one time and not be let or sublet for a period of less than six months. 10The hearing commenced with a conciliation conference under s 34 of the Land and Environment Court Act 1979. The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented to Pearson C determining the matter.