Land and Environment Court New South Wales Medium Neutral Citation: Altex Constructions v Marrickville Council [2012] NSWLEC 1346 Hearing dates: 7 December 2012 Decision date: 07 December 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: CONSENT ORDERS - Development modification - Boarding house - Conversion of office to additional room - Window and privacy screen Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Altex Constructions (Applicant) Marrickville Council (Respondent) Representation: Ms A Pearman (Applicant) Ms J Blunden (Respondent) File Number(s): 11078 of 2012 EX TEMPORe Judgment 1This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) in relation to the respondent Council's determination of an application made under s 96(1A) of the Act for modification of development consent DA20090534 originally granted on 9 July 2010. The modification application relates to a number of modifications for a building presently used as a boarding house, at 153 Old Canterbury Road Dulwich Hill (the site). 2The modification application 200900534.03 was lodged with the Council on 5 June 2012, and sought approval for the conversion of a previously approved office into an additional boarding room to bring the number of rooms approved from nine to ten; to retain a window serving what is identified as Room 1 in its existing location; and to install privacy screens and louvres over that window. 3The original development consent granted by the Council on 9 July 2010 was subsequently modified in August 2010 in relation to a reduction in size of a rainwater tank, and further modified on 8 May 2012 when the Council approved a number of changes to the front façade and elevations, minor internal changes to the boarding rooms, and reconfiguration of the ground floor. That modification application No 20090534.02 had originally sought approval for the use of the office and approval to increase the number of persons permitted to occupy three of the rooms. Those latter proposed modifications were not approved. 4The application presently before the Court reflects work which has already been undertaken on the site and in effect is seeking retrospective approval to that work. 5The Council refused the modification application 200900534.03 on 15 August 2012, on the basis that retaining the window serving Room 1 would have an adverse impact on the acoustic privacy of the adjoining property at 151 Old Canterbury Road; secondly, that the communal open space proposed is of insufficient size to cater for the open space needs of ten occupants; and, thirdly, that given the matters raised by objectors, approval was not in the public interest. 6The applicant lodged the present appeal with the Court on 19 October 2012. The Council has now reached the position that it agrees that approval can be granted to the modification application with some amendments that have been made in the course of the present hearing, and the parties are seeking orders by consent from the Court. The task for the Court in this situation is to be satisfied that it is both lawful and appropriate to grant the approval, having regard to the whole of the relevant circumstances including the proposed conditions. 7The consent authority is required to demonstrate that it has given reasonable notice to all persons who objected to the proposal that it is proposing to enter into consent orders, and to inform those persons that they have an opportunity to be heard. The Council's bundle of documents (exhibit 1) includes (tabs 3 and 4) two letters of objection made in response to the notification of the s 96 modification application, those objections being from the occupants of the adjoining property at 151 Old Canterbury Road, and the occupants of 155 Old Canterbury Road. The Council's bundle includes letters dated 16 November 2012 in which it has informed both of those objectors of the proposal to enter consent orders, advised the date and place of the hearing, and advised that the objectors are entitled to address their concerns to the Court. I am informed by the Council's representative that she has had no contact from the objectors in response to that notification. 8Turning to the first of the issues that must be considered, whether it is lawful to grant the modifications sought. The evidence provided by the Council includes the assessment report provided by Mr James Groundwater, Development Assessment Officer, prepared by him for the meeting of the Council's Development Assessment Committee on 14 August 2012. That report addresses in detail the relevant requirements of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) and the applicable Marrickville Development Control Plan 2011. 9The report addresses the requirements of the SEPP in relation to parking and concludes that the proposed addition of a boarding room will not generate a requirement to provide a car parking space, and that the proposal complies with the parking provisions in the SEPP. The report also addresses the requirements of the SEPP relating to the accommodation size of the additional room, which complies; building height; landscaped area; solar access and private open space, which are unaltered; and the question of the area of the communal living room, which it is noted is not addressed in terms of minimum size in the SEPP. The report concludes that the communal living area now proposed is of an appropriate size given that there is no minimum room size and in the context where the boarding rooms are self-contained and the present use of the communal living room by lodgers is minimal. 10The significant issue raised by the adjoining neighbour at 151 Old Canterbury Road relates to the location of the window serving Room 1 of the site. The Council officer's report addresses the proposal which incorporates a requirement to install a privacy screen to the southern side of that window. In relation to the provisions of Pt 2.6 of the Marrickville Development Control Plan 2011 (the DCP), the DCP notes that complete protection of privacy in a densely built up environment such as Marrickville local government area is not always possible, and that standards of privacy need to be balanced against the need for urban consolidation and the need to maintain a reasonable level of privacy to adjoining premises. 11The objectives in Pt 2.6 of the DCP are to ensure that new development and alterations and additions to existing buildings provide adequate visual and acoustic privacy for the residents and users of surrounding buildings, and to design and orientate new residential development and alterations and additions to existing residential buildings in such a way to ensure adequate acoustic and visual privacy for occupants. The requirements of the DCP are addressed in the report, where the conclusion is reached that the provision of the privacy screen will achieve the intent of the condition of protecting visual amenity between the two properties. 12In addition to consideration of whether the applicable planning instruments have been taken into account, the issue of the window is relevant in considering whether it is appropriate to make the orders that are sought, in the context where that formed part of the original objection made to the application by the adjoining owner. 13I have heard further evidence this morning provided by Mr Groundwater, who was the Council officer who assessed the present s 96 modification application, and in the course of that assessment attended the site. Mr Groundwater's observations were based on his presence outside the building, on the adjoining boundary. He was able on that occasion to have access to the boarding house, in particular the new room proposed, but did not have access to Room 1. The evidence before the Court includes photographs taken on behalf of the applicant on 4 December 2012 from inside Room 1, which show quite clearly the relationship between that window and the window of the adjoining property. More significantly, the evidence before me now is that there has been a reduction in the size of that window in width from 1.4m to 1m. That reduction is evident in the plans that are now in evidence before the Court as exhibit A, and those plans show that the window is now 1m wide with a distance of some 950mm to the window of the adjoining property at number 151. 14Having had the benefit of that additional evidence, and noting the amendment to the plans for which approval is now being sought, the observations of Mr Groundwater in his report that the windows are offset, and that the provision of the proposed additional privacy screen would prevent any overlooking or views from one window into the other, are confirmed. The parties have now agreed that it would be appropriate to require that the lower pane of that window be permanently fixed to minimise acoustic impacts between the two windows. 15Having regard to the evidence in the assessing officer's report, and the additional evidence provided to the Court during the course of this hearing, I am satisfied that the relevant statutory provisions have been complied with and that the objections made by those notified by the Council have been taken into account. The objectors raised in their objections a number of other concerns which appear to relate to issues unrelated to the present modification application, in particular issues relating to compliance with other conditions of the original development consent. Those matters are not matters that are appropriately before the Court in the present s 96 modification application. 16Having regard to the evidence, I am satisfied that it is appropriate to approve the modifications sought subject to the conditions that are agreed between the parties. Those conditions reflect the amended accurate plans in exhibit A and incorporate an additional condition relating to the fixing of the lower pane of the window serving Room 1. 17In those circumstances I am satisfied that it is appropriate to make the orders sought by consent between the parties. I note that the parties agree that there is to be no order as to costs. Accordingly the orders of the Court are, by consent: 1. The appeal is upheld. 2. Approval is granted to s 96 modification application 200900534.03 lodged with the respondent on 5 June 2012 seeking to modify development consent 200900534, in accordance with the conditions of consent at annexure A. 3. The exhibits are returned except for exhibit A. Linda Pearson 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: 19 December 2012