Land and Environment Court New South Wales Medium Neutral Citation: Mike George Planning Pty Ltd v Woollahra Council [2012] NSWLEC 1357 Hearing dates: 10 December 2012 Decision date: 21 December 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 11/467 for a change of use of a studio over the garage to a dwelling is refused. 3. The exhibits, except for exhibit 3, are returned. Catchwords: DEVELOPMENT APPLICATION: change of use of an existing studio space over a communal garage to a dwelling; power of the Court to determine the appeal in the absence of owners' consent; amenity impacts on residential flat building; internal amenity of proposal. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mike George Pty Ltd (Applicant) Woollahra Council (Respondent) Representation: Mr M Sahade (Barrister) (Applicant) Mr P Rigg (Solicitor) (Respondent) Oliveri Lawyers (Applicant) Norton Rose (Respondent) File Number(s): 10960 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 11/467 (the proposal) by Woollahra Council (the Council) to change the use of an existing studio space over the communal garages to a dwelling for Lot 3, at 84-86 Wolseley Road, Point Piper (the site). Issues 2The Council's contentions in the matter can be summarised as: * The application, if approved, will require work to be carried out on common property and there is no owners' consent in respect of the work that is to be carried out on common property; * The proposal is an intensification of the existing residential apartment development, which is not supported in a 2(a) Residential Zone; * The existing 7 car garage on the level below the proposal will impact on the amenity of the guest apartment; * The proposal does not provide any off street parking and the proposed dwelling does not provide for any private open space. 3The applicant disputes three (without prejudice) conditions of consent proposed by the Council, as follows: A.1 Deferred Commencement Condition - (s80(3) of the Act, cl. 95 of the Regulation) Modification of consent - s80A(1)(b) and s80A(5) of the Act. Lodgement with Council of a Notice of modification of development consent of DA 28/1998 endorsed 12 May 1998, as modified by consent dated 28 July 1998, for the deletion of condition 33 in compliance with the requirements of clause 97 of the Environmental Planning and Assessment Regulation 2000 and, if repealed, in accordance with any savings or transitional provision. B.4 The subject premises shall not be used as a domicile other than by an immediate family member of the owner of Lot 3 or for temporary occupation by a guest of that family for a period of not more than two months in any 12 month period. The subject premises shall not be advertised for rent or for lease or any similar arrangement. G.1 Payment of Long Service Levy, Security, Contributions and Fees. Total security, contributions, levies and fees $962.22 plus any relevant indexed amounts and long service levy. 4In regard to condition A.1, the applicant contends that it is unnecessary to modify development consent DA 28/1998. It is the applicant's submission that the application is seeking the deletion of condition 33 of Development Consent DA28/1998, which states: The premises shall not be used for residential purposes at any time. 5It is the Council's contention that the applicant does not have legal entitlement to delete condition 33 of the original consent without owners' consent. 6In regard to condition B.4, the applicant contends that it is ambiguous, as the condition does not define an immediate family member and the maximum period of occupation of 2 months per annum has no basis and is therefore arbitrary. In regard to condition G.1, the applicant contends that the levy is unnecessary as a levy would be inconsistent with the proposed use as guest accommodation. The site and its context 784-86 Wolseley Road is a waterfront site, on the western side of Wolseley Road and the site falls from the street towards the harbour. The total site area is 1826 square metres. The original house, referred to as 84 Wolseley Road, is now a residential flat building divided into three apartments, Lots 1 and 2 and Lot 1 has a separate carer's accommodation. A contemporary house has been constructed below the original house and is identified as Lot 3 and is referred to as 86 Wolseley Road. 86 Wolseley Road (Lot 3) is accessed via paths and an inclinator positioned on a corridor along the northern boundary of the site. 8There is a separate garage building, accessed via a driveway from Wolseley Road, which houses two tandem garages for Lots 1 and 2 and a double and single garage for Lot 3. This building is cut into the fall of the site adjacent to the driveway, which wraps around the eastern and southern sides of the building, at the eastern end of the site. The first floor of the building, referred to as the studio, consists of a large living room with a kitchen, a bedroom and a bathroom. The majority of the studio's windows are in the western façade, above the garage doors, overlooking the vehicle manoeuvring area and the eastern façade of 84 Wolseley Road (Lots 1 and 2). The studio is part of 86 Wolseley Road (Lot 3) and has an area of 79 square metres. 9There are two storage rooms at the rear of the studio, accessed via the wet area of the studio, which do not form part of this application. The storage rooms are not shown on strata plans or the development application plans (Exhibit 7) and there is no evidence that any approval has been granted for these storage rooms. Background and the proposal 10Development consent DA28/1998 was approved 12 May 1998 for the driveway, garages and studio and associated landscaping. 11The proposal is to change the use of the existing studio for residential purposes. The applicant submits that the proposal will be occupied by the son or a guest of the owner of 86 Wolseley Road (Lot 3). Planning Framework 12Pursuant to the Environmental Planning and Assessment Act 1979 (EPA Act), clause 79C Evaluation, (1) Matters for Consideration - General, subclause (a)(iv), requires that the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) must be taken into consideration. 13The EPA Regulation includes, at clause 49(1), Persons who can make development applications that a development application may be made by the owner of the land to which the development application relates or with the consent in writing of the owner of that land. 14The EPA Regulation includes, at clause 93, Fire safety and other considerations, the following: (1) This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building. (2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building's proposed use. (3) Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building's proposed use. Note. The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent 15Clause 3 of EPA Regulation defines Category 1 fire safety provisions as follows: Category 1 fire safety provision means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One of that Code and P2.3.2 in Volume Two of that Code. 16Woollahra Local Environment Plan 1995 (LEP 1995) defines 'dwelling', at schedule 1, as: Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. Public submissions 17Two objectors provided evidence on site. Their objections can be summarised as: * The proposal will result in additional car/s parked in the driveway or on Wolseley Road; * The proposal will have impact on the amenity of Lots 1 and 2, immediately adjacent to the garage and not on Lot 3, which is further down the site; * The proposal will require the building to be upgraded to meet fire safety regulations and the objectors are concerned as to what impacts those changes will have on their amenity. Expert evidence 18Mr Simon Taylor provided expert planning evidence on behalf of the Council and Mr Mike George provided expert planning evidence on behalf of the applicant. Mr Peter Boyce provided expert building compliance evidence on behalf of the applicant. 19Neither planning expert knows the reason why condition 33 that precludes the residential use for the studio area was included in the original consent. Intensification of use 20The planning experts disagree as to whether the proposal results in an intensification of the use of the site. Mr George says that the proposal does not intensify the use, as the apartment would only be used by a family member or guest of 86 Wolseley Road (Lot 3). 21Mr Taylor says that the proposal introduces an additional apartment to the site, if it is independently leased and the additional apartment necessitates additional parking where none is provided. 22During cross-examination, Mr Taylor agreed with Mr Sahade's submission that if the proposal is occupied by the family or guest of 86 Wolseley Road (Lot 3) it does not constitute an intensification of the use of the site. Amenity impacts 23According to Mr Taylor, the proposal includes windows to the bathroom, bedroom and living room, which will face into the courtyard and the main residential flat building. The windows overlooking the vehicle manoeuvring area and will be within 8.8m of the front entrance to 84 Wolseley Road (Lots 1 and 2). Mr Taylor says that the separation is adequate, particularly because Lots 1 and 2 orientate towards the harbour to the west, rather than towards the proposal, to the east. Internal amenity of the proposal 24The planning experts disagree about the internal amenity of the proposal. Mr George says that as the proposal is to be used by a family member or guest of 86 Wolseley Road (Lot 3), the proposal involves making relatively inconsequential changes to the manner in which the studio is used. 25Mr Taylor says that the internal amenity of the proposal is poor, as it has no outdoor space and it is located above a communal garage for 7 vehicles and the occupant/s will be disturbed by the opening and closing of garage doors and vehicles manoeuvring in and out of the garages. Owners consent for work on common areas 26According to Mr George, the proposal does not seek or require consent for work on common property and according to Mr Taylor, the proposal will necessitate work on common property to comply with the Building Code of Australia (BCA) and owners' consent has not been granted. 27Messrs. Boyce George provided evidence on site that BCA compliance can be achieved in a number of ways, some of which would be required in combination, such as by raising the height of the existing masonry wall on the northern boundary adjacent to the garage building to the height of the existing two storey building; by inserting sprinklers over the windows located within 3 metres of the northern boundary; by constructing a horizontal projection on part of the western elevation at first floor level; by replacing windows with fire-rated windows or glass blocks and by inserting fire collars in the penetrations within the first floor slab. 28Mr Sahade submits that there is already a legal requirement for the garage and studio building to comply with the BCA and therefore the contention raised by Council regarding the lack of owners' consent for works to common areas is a red herring, as owners' consent is not required for BCA compliance associated with the 1998 development consent. He submits that the issue of fire safety is not raised by the application before the Court. Findings Merits of the proposal Intensification of use 29I disagree with the planners' evidence and Mr Sahade's submission that because the apartment is part of 86 Wolseley Road (Lot 3), the occupation of the apartment does not result in an intensification of use of the site. The proposed use of the apartment by the son of the applicant is irrelevant because if the proposal is approved, it will be available for occupation by any person/s associated with the occupants of 86 Wolseley Road (Lot 3). Consequently, I do not accept that the proposal is equivalent to the relocation of a bedroom within 86 Wolseley Road (Lot 3). 30The proposal provides an additional dwelling on the site and regardless of who is occupying the dwelling or whether the dwelling is identified as a part of 86 Wolseley Road (Lot 3) or not, the consequence of another dwelling is an intensification of the site, as it will be occupied as a separate domicile. 31Development for the purpose of a residential flat building is prohibited in the Residential 2(a) zone. The existing residential flat building development relies on existing use rights. It is inappropriate to increase the density of development in the Residential 2(a) zone, because the site is already intensively developed, with four apartments, associated parking and landscaped areas. 32Recent photographs of the vehicle manoeuvring area with up to four cars parked in front of the garages belonging to 86 Wolseley Road (Lot 3) was tendered (Exhibit 1). The photographs demonstrate that the on-site parking spaces provided to 86 Wolseley Road (Lot 3) are not always sufficient to cope with the demand and at those times, additional cars are parked in front of the Lot 3 garages in the vehicle manoeuvring area, which partially obstruct the manoeuvring area in front of the garages. In my opinion, the addition of a further dwelling on the site, without an associated car space or garage, may exacerbate the existing situation by potentially introducing another vehicle to the site. Amenity impacts on Lots 1 and 2 33The studio is located over the garage, at the Wolseley Road frontage of the site and is remote from the dwelling at 86 Wolseley Road (Lot 3), which is located at the waterfront, a distance of some 40 metres away. 86 Wolseley Road (Lot 3) is accessed via paths and an inclinator, which are located at the side of 84 Wolseley Road (Lots 1 and 2). 34In my opinion, there is the potential for unacceptable noise and privacy impacts, arising from the proposal, on the residential flat building at 84 Wolseley Road (Lots 1 and 2) because the proposal is positioned adjacent to the residential flat building at 84 Wolseley Road, separated only by the vehicle manoeuvring area and the only outlook from the proposal is to the west, towards 84 Wolseley Road. 35The applicant will not experience any impacts arising from the use of the studio as a dwelling, as the applicant's dwelling, 86 Wolseley Road (Lot 3), is shielded from the proposal by the intervening apartments at 84 Wolseley Road and the significant separation distance. Internal amenity of the proposal 36I accept Mr Taylor's evidence that the internal amenity of the proposal is poor, as it has no outdoor space and it is located above a communal garage for 7 vehicles and its only outlook is the vehicle manoeuvring area for all the vehicles on-site. 37In my opinion, the location of the proposal above the communal garage will result in significant noise disturbances from garage doors being opened and vehicles being driven on the driveway and in the manoeuvring area. Owners' consent for works to common areas 38The obligation to comply with the Category 1 fire safety provisions, due to the proposed change of use, (subclause 93(3) EPA Regulation) will require building work to be carried out to common areas, even though no building work is proposed by the application. The building work required is contemplated by condition G.2, as follows: Fire Safety Upgrade - Change of building use (cl. 93 of the Regulation) Council considers pursuant to clause 93 of the Regulation that it is appropriate to require the existing building to be upgraded to total or partial conformity with the BCA. The Construction Certificate plans and specification required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation must detail building upgrade works required by this condition. The Certifying Authority must be satisfied that such work, to be implemented as part of the development, will upgrade the building to bring it into compliance with the following provisions of the BCA in force at the date of issue of the Construction Certificate: a) That the car park shall be separated from the sole occupancy unit in accordance with the requirements of Clause C2.8 of the BCA; b) That smoke alarms shall be installed throughout the building in accordance with the requirements of Specification E2.2a Clause 3 of the BCA. 39With regard to the first sentence, I assume it should read, to be upgraded to total conformity with the BCA as it has to be either total or partial conformity and not both and it is unlikely to be partial conformity, as it is an ambiguous concept. 40There is no certainty in regard to what works are to be carried out to comply with condition G.2(a). Messrs. George and Boyce provided evidence on site that there were a number of options that could be carried out to achieve compliance with condition G.2, as outlined in paragraph 23 of this judgment. I am not satisfied that those works wont have an adverse impact on the amenity of the residential flat building at 84 Wolseley Road (Lots 1 and 2) and the northern neighbour, 88-90 Wolseley Road. 41I cannot be satisfied that Mr Sahade's submission is correct in regard to there being no additional requirements for BCA compliance related to the proposed change of use. The proposal, for a change of use from a studio or storage area to a dwelling, requires, according to Mr Wynn-Jones' report (Michael Wynn-Jones & Associates Report, Exhibit 2, Tab 9 at folio 2.4.2), more stringent fire resistance requirements commensurate with the increased risk as a result of the occupation of the dwelling, pursuant to section 93 of the EPA Regulation. 42In addition, the applicant has not disputed the inclusion of condition G.2. Therefore the work to the common property forms part of this application, albeit as a requirement to be detailed prior to the issue of a Construction Certificate. Pursuant to section 49 of the EPA Regulations, owners' consent is required to fulfil condition G.2. The application does not include the consent of the Owners' Corporation to which the development application relates and the Owners' Corporation does not intend to grant its consent (Exhibit 2, tab 10 at 2). I agree with Council's submission that I am unable to determine the appeal without owners' consent. Conclusion 43The Owners Corporation has not granted its consent to the making of the development application or work to common property and does not intend to do so on the evidence before me. Consequently, the Court has no power to determine the appeal in the absence of owners' consent. 44In the alternative, should I be wrong on this approach, my findings on the merits of the matter is that the proposal will have a detrimental impact on the amenity of the occupants of the residential flat building at 84 Wolseley Road (Lots 1 and 2) and the internal amenity of the proposed dwelling and that these impacts are of such consequence, that it would not be appropriate to grant consent, if there were power to do so. 45Furthermore, I am not satisfied that some of those options contemplated by Messrs. George and Boyce to comply with condition G.2 wont have an adverse impact on the amenity of Lots 1 and 2 and the northern neighbour, 88-90 Wolseley Road. 46Given the above findings, it is not necessary to deal with the disputed conditions of consent. Orders 47The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. 11/467 for a change of use of a studio over the garage to a dwelling is refused. 3.The exhibits, other than exhibit 3, are returned. ____________ 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: 21 December 2012