Land and Environment Court New South Wales Medium Neutral Citation: Ross v Lane Cove Council [2012] NSWLEC 1364 Hearing dates: 18 and 19 December 2012 Decision date: 19 December 2012 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraphs 21 & 22 Catchwords: Modification application:-retrospective approval of modification to a residential dwelling; amenity/privacy impacts, bulk and whether the development as modified is substantially the same Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Lane Cove Development Plan 2010 Lane Cove Local Environmental Plan 2009 Sydney Harbour Foreshore DCP Sydney Regional Environmental plan (Sydney Harbour Catchment) 2005 Category: Principal judgment Parties: Mr R Ross (Applicant) Lane Cove Council (Respondent) Representation: Mr R O'Gorman-Hughes Barrister (Applicant) Mr S Griffiths (Respondent) Solicitors Duncan Scott Solicitors (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 11079 of 2012 Ex tempore Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1The Council has issued development consent for the construction of a large dwelling house at 8 Bayview Street, Northwood (the site). The applicant has commenced development in accordance with the development consent - (DA325/07) dated 2 April 2008- but carried out unauthorised modifications to the approved design. He seeks approval of the modifications and has lodged a modification application under section 96 Environmental Planning and Assessment Act (the Act) to modify the consent retrospectively. 2The modification application was referred to the Council's Independent Hearing and Assessment Panel (IHAP) for determination. The application was refused on 2 October 2012. This is an appeal under s 96(2) of the Act against that decision. 3The background facts and relevant statutory controls are set out in the Council's Statement of Facts and Contentions (Exhibit 1). It describes the site as located on the eastern side of Bayview Street, which ends at the northern edge of the site. The allotment is irregular in shape and falls toward the street and rises very steeply toward the eastern boundary. 4The Lane Cove Local Environmental Plan 2009 (LEP) zones the site R2-Low Density Residential and the development is permissible with consent. The Lane Cove Development Plan 2010 (DCP) and Sydney Regional Environmental plan (Sydney Harbour Catchment) 2005 and Sydney Harbour Foreshore DCP also apply. Other relevant statutory controls are set out in Exhibit 1. 5Neighbouring the site to the south is a two-storey brick and tile dwelling house. Toward the north is a two-storey dwelling house separated by a vehicular driveway that leads to a dwelling house towards the north west. Both of the adjoining neighbours object to the application. 6The matter was heard pursuant to s 34AA of the Land and Environment Court Act 1979(the LEC Act). Therefore, the proceedings commenced onsite with a view before the parties entered into a Court facilitated conciliation. A number of local residents attended the view and addressed the Court about their objections to the development. Their written submissions, received by the Council during the exhibition period, are in evidence in the council's bundle of documents (Exhibit 2). 7Generally, the objectors gave evidence about the overwhelming appearance of the building from the street. They described it as having the appearance of a four-storey dwelling or an apartment block. They raised concern about the height of the development, the unapproved concrete awnings; the use of the northern area of the site leading to the recently excavated undercroft at the rear of the house, the introduction of a new floor over the excavated garage and the balcony within the front setback of the property. In particular, the northern neighbours expressed concern about the privacy/amenity impacts of the development to their home and outdoor entertaining area. They requested that the design be conditioned to require privacy screens along the northern elevation of the terrace and obscure glass in the windows on that elevation. The southern neighbours also expressed concern about their privacy and amenity. They requested the Court require the removal of the awning at the rear of the property, the enclosure of the undercroft on the southern boundary and a privacy screen on the southern side of the front balcony to preclude overlooking from that area into their son's bedroom and their sunroom. 8While the conciliation process did not resolve the proceedings the process did result in an amendment of the plans (Exhibit C) that addressed many of the concerns raised by the residents. Essentially, the amended plans took up the recommendations detailed in the joint town planning report prepared by the parties' experts. The amended plans remove the concrete awnings on all facades except for the rear elevation where it was cut back to a width of 300mm. They enclose the undercroft area on the southern boundary (as requested by the adjoining neighbours) leaving a small maintenance door for access. While the plans keep open the undercroft area at the rear (on the northern elevation) the applicant agrees to accept a condition that the area not be used as a habitable space. The amended plans introduce a planter box not a room on the main bedroom level to be landscaped and accessed via a small maintenance door. The constructed flat roof (changed from hip roof) does not according to the expert opinion of town planners, Mr Nash for the Council and, Mr Torrisi for the applicant change the development's presentation to the street because the hip roof originally approved was not visible from the street. It is considered acceptable by the objectors who addressed the Court. 9The only real design issue left in dispute following the amended plans is the removal of the balcony (over the now excavated garage) leading to the new 35m2 living room. The legal issue as to wether the development is substantially the same as that originally approved if the modifications in Exhibit C are approved remains the threshold jurisdictional issue and I will deal with that at the outset. Jurisdiction 10Section 96(2) permits the consent authority (the Court) to modify consent if it is satisfied that the development is substantially the same development as the development fro which consent was originally granted. 11The Council submits on the basis of Mr Nash's expert evidence that the introduction of the living area above the garage and protruding balcony, which encroaches into the 7.5 metre front setback, makes the development more imposing on the streetscape. His evidence is that the projection of that element reads as, "A bulky four-storey building with garage and this is unacceptable." And therefore, in Mr Nash's assessment it is "...not substantially the same development when compared to the original development as approved." 12Mr Nash calculated the increase in gross floor area to be 93m2 but in that figure he included the area of the garage. Based on Mr Torrisi's evidence the garage should not be included and the increase is only 35m2. Mr Torrisi is of the opinion that the floor space is compliant and that the living room in the area that was previously approved as a void is acceptable. He is of the opinion that the balcony at the front and protruding garage entry results in a development that is substantially the same. Is the development substantially the same? 13After a consideration of the authorities and the parties submissions and having regard to my inspection of the property and the local residents' concerns, I accept Mr Torrisi's evidence that the modified development (in Exhibit C and subject to this judgment) is substantially the same as that originally approved. I agree that when viewed from the front alignment, that is Bayview Street, the development will appear substantially the same as that originally proposed given the setback of the top area. Accordingly, I believe I have jurisdiction to approve this development if I find it acceptable on its merits. Merit assessment 14It is my opinion, based on the evidence of both experts that the removal of the awnings as proposed in the amended plans is necessary to ensure that the development is substantially the same as that originally approved. I do not grant consent in respect of that element as erected. 15In relation to the balcony, which adjoins the living room, the applicant's evidence through Mr Torrisi is that it is a discrete space that is usable and does not add any additional bulk to the property. Mr Nash, I am told, did not have any problem with this aspect of the development and the Council has, on the basis of the Council officer's report indicated that it would like it removed. Based on the evidence before me I am inclined to accept Mr Torrisi assessment and allow that element of that development to remain. That would mean that there is a balcony to the living area that would protrude over the garaged area. However, as I said this is dependent upon the awnings that add to the bulk of the development being deleted as anticipated in Exhibit C. 16I agree with the Council that the development consent must be subject to a condition requiring pedestrian access only along the northern boundary. To ensure that condition is given effect I agree with Mr Nash that a 1.5m gate needs to be erected along the frontage. This will address the privacy concern raised by the northern neighbour.. I also accept the evidence of Mr Nash in respect of privacy screens along the southern end of the balcony adjoining the living room and the bedroom. It was agreed that fixed louvres could achieve the appropriate outcome on that elevation to ensure that the development does not lead to an overlooking to the sunroom area of the adjoining property to the south. 17I do not see any utility, based on the evidence before me, in retaining the planter box as proposed on the upper level. I believe that element should be deleted however, a window may be inserted at that point to allow some external view/aspect from that level/ bedroom. The removal of the planter will address the concern raised by the adjoining owner about the maintenance of the garden box and overlooking. 18I agree with the Council that given the lack of detail in respect of the roof a plan of the roof needs to be provided. Then the Council will be able to assess that the flat roof does not cause any added bulk to the development. There also needs to be a survey indicating, as Mr Nash suggests, the location of the existing and proposed windows. A survey will also assist in an assessment of the structural integrity of the built wall along the northern facade. An engineering certification or geotech report in respect of the structural adequacy of the built form is also necessary; and this needs to be provided to the Council. 19All of the other matters in the joint report I understand are incorporated into the amended plans in Exhibit C. They reflect the agreed changes and recommendations of the experts. The applicant must also provide a comprehensive landscape plan including the landscaping of the northern boundary of the development and the top terrace. The privacy screen on the top terrace on the northern side was of particular concern to the northern neighbours; and, any landscape plans needs to include detail of that screening and planting. Owner's consent 20At the conclusion of the hearing it became apparent that the applicant is not the owner of the site. It was agreed that evidence of the registration of a transfer would crystallise his ownership. As far as I understand the evidence of Mr Ross, the applicant in this proceedings, in his affidavit sworn on 17 December 2012, he has a transfer of sale in his favour which has been stamped and he is in a position (subject to sorting out some other issues), to register that transfer within a period of six weeks. An adjournment for a period of 6 weeks would also allow the preparation of the drawings and the requisite certification and registration of the transfer. 21I propose to grant consent to the application subject to the matters raised in this judgment subject of course to the requisite owner's consent. 22If there is nothing else that you gentlemen believe I have missed, I will adjourn the proceedings to allow you to prepare the plans, the certification and obtain the owner's consent. I will bring the matter back to the Court for final orders in 6 weeks. Please find a common date between yourselves and approach the registry for the next date before me. Susan Dixon 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: 25 January 2013