Land and Environment Court New South Wales Medium Neutral Citation: Newman v Woollahra Council [2013] NSWLEC 1258 Hearing dates: 5 February 2013 Decision date: 06 February 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Consent Orders Legislation Cited: Woollahra Local Environmental Plan 1995; Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Woollahra Residential Development Control Plan 2003 Category: Principal judgment Parties: Georgina Newman (Applicant) Woollahra Council (Respondent) Representation: Ms S Hill Susan Hill & Associates Lawyers (Applicant) Mr P Rigg Norton Rose Australia (Respondent) File Number(s): 11113 of 2012 Judgment 1Ms Newman obtained development consent from Woollahra Council, under DA 446/2012/1, for alteration and additions to her dwelling at No. 81 Ocean Avenue, Double Bay. Subsequent to the grant of consent, Ms Newman sought to modify aspects of the approved development and the Council refused that application. Ms Newman is appealing that decision. 2As a result of joint conferencing by the planning experts, Ms Newman had amended plans prepared that addressed the contentions raised by the Council. The issues between the parties have now been resolved, and they are seeking consent orders from the Court. Background 3The approved development involves the following works: * Enclosure of an internal courtyard on the northern side of the ground floor. * Addition to the rear of the ground floor comprising an enlarged family room and a new deck. * Removal and relocation of three palm trees along the northern boundary of the rear yard facilitate the extension to the rear. * Addition to the rear of the first floor comprising a new bedroom, WIR and ensuite and rear balcony. 4The consent issued was subject to the following modifying condition: C.1 Modification of details of the development (s80A(1)(g) of the Act). The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments. a) the deck at the rear of the ground floor is to be limited to a depth of 2 m, as measured from the rear elevation. b) the rear setback (and roof) of the first floor is to be increased by 2.5 m. c) the privacy screening to the balcony at the rear of the first floor is limited to a maximum height of 1.8 m. d) the three Kentia palms in the rear yard to be transplanted elsewhere within the rear yard (referred to Condition E7) e) a minimum of 18 square metres of deep soil landscaping is to be provided within the site. This can be achieved by the provision of a semi porous area within the rear courtyard/car space although the Kentia palms are to be located within the deep soil landscaped area. 5Ms Newman sought the deletion of condition C.1 (b), and the application was refused by the Council on the grounds of excessive floor space and associated impact. 6The contentions in the case reflect the grounds of refusal and are: (1)The proposal will result in an unacceptable level of overshadowing to the two first floor, north facing bedroom windows (and the bedroom itself) at 79 Ocean Ave, which does not comply with clause C 5.2.14 of the council's development control plan (2)The scale of the two storey northern side boundary wall and its location, with a nil setback to the common boundary with 83 Ocean Ave, is contrary to one of the purposes of the side setback control, which is to avoid an unreasonable sense of enclosure. The site and its locality 7The site is generally rectangular in nature, with an irregular rear boundary influenced by Spring Street at the rear and resulting in the subject property extending further than the property to the north. It has a frontage to Ocean Avenue measuring 5.255m, a rear boundary to Spring Street measuring 12.36 m and side boundaries measuring between 31.17 m and 35.12 m. Located on the site is an existing two-storey terrace house and a detached garage at its rear. There are several mature trees in the rear yard. The dwelling forms one of a row of 3 terraces. 8The western side of Ocean Avenue is characterised by two-storey terrace houses (or terrace style development). Steyne Park is located opposite the subject site. Further west are several residential flat buildings of varying scale and age. The planning controls 9The site is zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (WLEP) and the development is permissible with consent. Clauses relevant to the contentions are 2 (Aims and Objectives) and 12 and 12AA (Height of Buildings). Other relevant clauses are 19, 24 and 25. 10Woollahra Residential Development Control Plan 2003 (DCP) applies and sections 4.1, 5.2 and 5.8 are particularly relevant. 11Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREPSHC) also applies to the site. However, no contentions in relation to this plan are raised. The amended plans 12Leave was granted to the applicant to rely on amended plans during the hearing. Those plans retain the original footprint that had been proposed by Ms Newton and do not reflect the amendments required by the Council in condition C.1. The changes made to the plans from those determined by the Council involve the reconfiguration of the roof of the additions so as to reduce the overshadowing impact to 79 Ocean Ave. The evidence 13The hearing commenced on site and evidence was heard from the owners of the two adjoining residences. That evidence was heard on site in order that an appreciation of their concerns could be obtained. The amendments were explained to both owners during the view. 14The owner of 83 Ocean Avenue says the amendments make no change to his concerns as he objects to the proximity and height of the proposed wall of the additions. He says this creates a sense of enclosure and will result in loss of airflow, particularly cooling southerly winds. He indicated, that in the event that consent was granted to the application that he required the common wall to be completed to match the existing wall, that is a painted and rendered finish. 15The owner of 79 says that the height of the wall will result in reduced light into the bedroom in the northern corner of the building (nominated as bedroom 3 for discussion purposes) and that she expected any extension of the adjoining property would have to provide a breezeway adjacent to the boundary in accordance with the requirements of the council when she had extended her dwelling. 16Expert evidence was heard from Mr S Taylor for the Council and Mr T Moody for the applicant. The experts considered the amended plans and associated shadow diagrams, and agree that the amendments resolve contention 1, which was in relation to the larger, western bedroom within No. 83. Independent verification of the shadow diagrams was provided to ensure accuracy and was tendered as Exhibit C. In relation to bedroom 3, the experts agree that, because the window is not north facing, the development will not cause any unreasonable impacts and the window will continue to receive western sun. Mr Taylor says that there is a slight improvement to the amenity of the adjoining balcony area as the result of the changes proposed. 17Mr Moody considers that the proposed development will not have an unreasonable " sense of enclosure" as it relates to 83, because that property contains a two storey dwelling which lies to the north of the site and consequently there would be no overshadowing impact arising. He says that No. 83 is a dwelling with its primary aspect/views to the east/north east over the park and partly towards the water and the primary views will be fully retained if the development was approved. In relation to the rear courtyard, its views/aspect to the north and west will be completely unaffected and, in acknowledging that the proposal will be clearly visible adjacent to the southern edge of the rear courtyard, he says, the wall is well below the Council's height control and the rear alignment will be consistent with the adjoining terraces at 79 Ocean Ave. 18Mr Moody concludes that because the site is part of a row of terraces, it would be unfair to apply the rear setback of No 83 to this proposal when 83 is not part of the row or terraces, and clearly has a substantially greater site area and greater width. The primary aspect and views enjoyed by 83 will be retained in their entirety with the proposed wall on the subject site performing only a very minor element of the aspect/views which will continue to be enjoyed by 83. For these reasons, he does not see that the proposed development creates unreasonable impact in terms of sense of enclosure. 19Mr Taylor conceded that the sense of enclosure was a secondary issue compared to overshadowing. He agrees that the scale of the northern wall to 83 Ocean Avenue does not warrant changes to or the refusal of the application. 20The parties have prepared agreed conditions that reflect the amended plans and a requirement to finish the common wall adjoining No 83 in accordance with the requests of the owner. Conclusions and findings 21I accept the evidence of the planners that the amendments made warrant approval of the application. I note that the development provides for a rear boundary setback of 9.5m, which is greater than the 8.5m required under the council's DCP control. The height of the common wall to the northern boundary, at 7.1m is also less than the 9.5m height limit, as is the building footprint of 63% whereas 68 % would be permitted. 22The floor space ratio (FSR) control contained in the DCP is exceeded with a proposed FSR of 1.11:1 and the control providing a maximum of 0.95:1. The evidence provided confirms that the FSR is in fact less than adjoining developments and I accept the evidence provided that variation to this control is justified as it is consistent with development in the locality. I also accept the submission of Ms Hill, for the applicant, that it is appropriate to vary the side setback controls because the development, being one of three terrace style dwellings on an allotment with a width of 5.225m, is consistent with the character of the area. 23I am satisfied that the proposal is lawful and complies with the relevant provisions of WLEP. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are (1)The appeal is upheld. (2)Development consent DA 446/2012/1, for alteration and additions to the existing dwelling at No. 81 Ocean Avenue, Double Bay, is modified by: (a)Adding at the end of the definition of Approved Plans in condition A.2 the following words: "and by any subsequent s96 modification approved by Council." (b)Amending the plan references in condition A.3 to read as follows: DA1, DA2 and DA3, Issue A and DA4, DA5 and DA6, Issue B. (c)Deleting condition C.1(b); (d)Adding a new condition C.1 (e) to read as follows: C.1(e) The north facing wall of the approved additions facing No 83 Ocean Avenue shall be rendered and painted consistent with the existing wall. (3)The exhibits, other than exhibits A, B, C, 1 and 4, can be returned. _______________________________ Sue Morris 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: 14 January 2014