Land and Environment Court New South Wales Medium Neutral Citation: Rubimint Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1265 Hearing dates: 14 September 2012 Decision date: 21 September 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeals are upheld. 2. Conditions 2A(a) and (f) of D/2010/1737C and D/2010/1738C are amended as follows: 2A(a) The porch at the ground floor level to Turtle Lane is to have a depth of 900 mm measured from the front façade; and 2A(f) The glass pane to the lower half of the dormer window shall be of fixed obscure glass to a height of 1635 mm above finished floor level and the outer face of the window to the dormer is to be setback from the front façade 2900 mm. 3. The exhibits, other than exhibit A, are returned. Catchwords: Modification consents: appeal against two conditions imposed on modification consents Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Category: Principal judgment Parties: Rubimint Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Mr Gary Green (Applicant) Ms Fenja Berglund (Respondent) Solicitors Pikes & Verekers Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10483 and 10484 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the imposition of two conditions of consent on Modification Applications D/2010/1738C (the 5-7 Turtle Lane application) and D/2010/1737C (the 9-13 Turtle Lane application), granted by the Council of the City of Sydney (the Council) for the properties at 5 -13 Turtle Lane, Erskineville (the sites). 2Because the terrace row of five dwellings is situated on two allotments, the applications were originally lodged as two development applications. As the appeals were lodged concurrently and the conditions, which are the subject of this appeal, are the same for both modification consents, the two appeals were heard concurrently. 3The applicant seeks the amendment of conditions 2A(a) and 2A(f) in both modification consents. The conditions state the following: (2A) Prior to the issue of a Construction Certificate, the drawings must be modified and be approved by the Director City Planning, Development and Transport as follows: (a) The porch at ground floor to Turtle Lane is to have a depth of 1380 mm measured from the street boundary. This requires the ground floor façade to be set in from the street boundary; (f) The proposed front dormer window to each terrace is not approved and is to be deleted from the plans and replaced with a skylight. 4Council contends that the purpose of imposing these two amendments to the development are as follows: * 2A(a) requiring a 1380 mm depth for the porch is to allow the three waste bins to be stored on the front porch. * 2A(f) requiring the deletion of the front dormer windows is imposed as the dormers will provide a significant increase in the visual bulk of the proposed terrace housing form and have the potential for overlooking of the rear private open space of dwellings fronting George Street, opposite the sites. The site, its context and background 5The terrace row is situated on the western side of Turtle Lane, at the northern end of the lane. The terrace row of five dwellings is currently under construction and the porch and front façade have been built, with a 900 mm distance from the outer face of the porch balustrade to the face of the external façade. 6The eastern side of Turtle Lane provides rear access to the dwellings fronting George Street. 7The consents include a condition (2)(a) for the terrace row to be setback 900 mm from the front boundary and a new footpath constructed between the face of the building, flush to the kerb line and for this area to be dedicated to Council prior to the issue of an Occupation Certificate. Planning Framework 8The sites are located within the 'Too Good and White's Estate Conservation Area' (CA48), pursuant to South Sydney Local Environment Plan 1998 (LEP 1998) Schedule 2A Heritage Conservation Areas. 9Section B of Council's Policy for Waste Minimisation in new developments (Waste Code for New Developments), 'Specific Provisions - Residential Developments' includes the following general requirements for waste and recycling services: B1 Council's standard waste and recycling service for single dwellings such as houses and terraces is: o Waste in 1 x 120 litre MGB collected once weekly o Recycling in 2 x 55L plastic crates - collected weekly B5 Waste and recycling bins must be placed kerbside for collection, and removed as soon as possible the same day as collection. 10Part F of South Sydney Development Control Plan 1997 (DCP 1997), 'Design criteria for specific types', includes, at clause 1.4.1 objectives, performance criteria and controls for attics. The controls include the following statement: Skylights are not installed in the front roof plane of dwellings in conservation areas. Public submissions 11The hearing commenced on-site. Five resident objectors provided evidence and their concerns can be summarised as: * The development will result in 15 additional bins in the laneway, as each dwelling has 3 bins. There should be sufficient room within the porch area for the bins and they should not be left in the street, other than for collection. * The proposed front dormers will compromise the visual privacy of the rear rooms and courtyards of the dwellings on the eastern side of Turtle Lane. Expert evidence 12Expert planning evidence was provided by Mr Stuart Harding on behalf of the applicant and Mr Kerry Nash on behalf of the Council. Front dormer window 13The planning experts agree that the Council's contention and the residents' concern regarding the privacy impact of the front dormer windows is addressed by increasing the setback of the proposed dormers from the front façade a further 1 m and by fixing and having obscure glass in the bottom sash of the window. Depth of the porch 14The planning experts agree that the design of the porch provides a screened area for the storage of waste bins and that their disagreement is confined to the convenience, or otherwise, of accessing the bins. 15According to Mr Nash and Ms Berglund's submission, Council's intends to phase out the crates and offer occupants three bins, either 80L or 120L for waste, recycling and garden organics waste. 16According to Mr Nash, the front porch should be 1380 mm deep, measured from the front facade, so that the three bins can be accommodated on the porch without the need to position one waste bin in front of the floor to ceiling dining room window. Mr Nash says that the occupant may also wish to store bicycles on the front porch. 17According to Mr Harding, the proposed depth of 900 mm for the front porch, measured from the front façade, will allow two bins to be accommodated side by side, adjacent to the floor to ceiling dining room window and the third bin or crate, for garden organics waste, can be stored in the rear courtyard. In Mr Harding's opinion, the garden organics waste will be collected from the rear courtyard and will have to be taken through the dwelling whether or not it is in the green waste bin/crate. Therefore the green waste bin/crate should be stored in the rear courtyard where the garden organics waste will be collected. 18Mr Nash disagrees and in his opinion, it is not practical to require the resident to take the green waste bin/crate through the dwelling for collection in the laneway and the three bins should be able to be accommodated on the front porch, without obscuring the dining room window. Submissions 19Ms Berglund submits that the reference to 'the street boundary' in condition 2A(a) is to the street boundary following the dedication of the 900 mm setback of the development from the existing street boundary. The condition should have stated 'depth of 1380 mm measured from the front façade' as the dedication of the setback has not yet occurred. Despite the ambiguity of the wording, the applicant agrees that they understood the intent of the condition is to make the porch 1380 mm deep, including the balustrade. 20Ms Berglund further submits that the issue of the depth of the porch must be assessed as if the work has not been carried out and that I am to have no regard to any inconvenience caused to the applicant in reconstructing the front façade (Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99). 21The parties agree that the Court may impose a condition requiring the bins to be removed as soon as possible the same day as collection, however Ms Berglund submits that such a condition is difficult for the Council to enforce. Findings Front dormer window 22I note that clause 1.4.1 of DCP 1997 includes a statement within the control that skylights are not to be inserted in the front roof plane of (both new and existing) dwellings located within a conservation area. 23I accept the evidence of the expert planners that the Council's contention and the residents' concern regarding the privacy impact of the front dormer windows is addressed by increasing the setback of the proposed dormers from the front façade a further 1 m and by fixing and having obscure glass in the bottom sash of the window. Depth of the porch 24Council's waste policy (quoted at paragraph 9) requires single dwellings to have one 120L bin and two 55L crates. In making my decision, I have given Council's current and stated policy greater weight than Ms Berglund's submission that Council plans, in the future, to phase out the crates and provide three bins. I agree with Mr Harding that one bin and two crates can be easily stored and manoeuvred within the 900 mm depth proposed for the porch. 25In making my decision, I have also given weight to the fact that the development has been required to be setback from the front boundary by 900 mm and that this area is to be dedicated to Council. 26The foyer/dining area is 3310 mm deep x 3810 mm wide and the living room at the rear of the ground floor is 3110 mm deep x 3810 mm wide with the kitchen and stair between these two rooms. Each dwelling is small and compact and the proposed dimensions of the porch are commensurate with the internal dimensions of the dwelling. The trade-off required to store three bins on the front porch and to be able to manoeuvre them around each other is to delete 480 mm in depth from the internal ground floor accommodation. Given the tight dimensions of each dwelling, the 480 mm x 3810 mm area is of significantly greater benefit to the occupant as internal floor area than used externally to re-arrange garbage bins. 27I agree with Mr Harding that the garden organics waste will be collected from the small garden in the rear courtyard and will have to be taken through the dwelling, either in the bin/crate or in another container. It is logical to assume that the occupant may decide to store their green waste bin/crate in the courtyard where the garden organics waste is generated. 28An alternative solution for storing three bins on the front porch would be to raise the sill height of the dining room window. If the dining room window has a sill height of 840 mm, it would allow an 80L wheelie bin to sit beneath the window and if it has a sill height of 930 mm, it would allow a 120L wheelie bin to sit beneath the window. While this would not address the manoeuvrability issue, it would provide the occupant the option of storing three bins on the front porch without having to place a bin in front of the proposed floor to ceiling dining room window. 29Under Council's Waste Code for New Developments, residents are required to store all bins within their property between collections and that waste and recycling bins are to be removed as soon as possible the same day as collection. As Council has mechanisms to enforce its policy, there is nothing gained by amending the consent to include an additional condition regarding removal of the bins and crates. Conclusion 30Having regard to the relevant planning controls and the evidence provided, I find that the front dormer window, with amendments as agreed by the expert planners, is acceptable and the 900 mm depth for the porch (measured from the front facade) is adequate for the storage of the required bin and two crates. Orders 31The orders of the Court are: 1. The appeals are upheld. 2. Conditions 2A(a) and (f) of D/2010/1737C and D/2010/1738C are amended as follows: 2A(a) The porch at the ground floor level to Turtle Lane is to have a depth of 900 mm measured from the front façade; and 2A(f) The glass pane to the lower half of the dormer window shall be of fixed obscure glass to a height of 1635 mm above finished floor level and the outer face of the window to the dormer is to be setback from the front façade 2900 mm. 3. The exhibits, other than exhibit A, are returned. ____________ Susan O'Neill Commissioner of the Court ********** Amendments 27 September 2012 - Typographical error Amended paragraphs: Para 7 & 15 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: 27 September 2012