Land and Environment Court New South Wales Medium Neutral Citation: Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121 Hearing dates: 21, 25 May 2013 and 17 June 2013 Decision date: 17 June 2013 Jurisdiction: Class 1 Before: Dixon C Decision: 1.The appeal is upheld. 2. Development consent is granted for the demolition of an existing residential flat building and the construction of a residential flat building containing 4 apartments with basement car parking and strata subdivision in accordance with DA 161/2011 as amended by exhibit D deferred commencement condition and plan dated 21 May 2013 job 4353; 3. The council is directed to file, within seven days, conditions of consent which reflect my reasons for judgment; 4. The exhibits are to be returned upon written publication of this judgment. Catchwords: APPEAL - development consent for the construction of a new residential flat building - impact on views - bulk and scale within the streetscape Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Development Control Plan 2010 Waverley Environmental Plan 1996 Category: Principal judgment Parties: Strata Plan 18915 (Applicant) Waverley Council (Respondent) Representation: Solicitors Mr G Green R Bennett, Pikes and Verekers Lawyers (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 11155 of 2012 Ex Tempore Judgment 1COMMISSIONER: This appeal, pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act), is against the refusal by Waverley Council of the applicants' development application (DA -161/2011). It concerns the development of a residential flat building at 5 Kenneth Street, Tamarama. 2The proposal is outlined in amended plans .The applicants maintain the amendments to the design address the contentions identified in the Council's statement of facts and contentions filed on 13 January 2013 (exhibit 3). 3Before I deal with the merits of the amended application it is necessary to set out the events concerning the evidence of Ms James, who is a joint owner of the adjoining unit at 3/7 Kenneth Street. Ms James 4Consistent with the requirements of the Waverley Development Control Plan 2010 Part C3- Advertised and Notified Development the Council sent Ms James a letter notifying her of the Council's receipt of the applicants' development application. The letter was sent to her nominated business address. Ms James maintains that she did not receive that notification letter. She told the Court that she first became aware of the development proposal after discussions with a neighbour, whereupon, she contacted the Council and arranged to inspect the development plans before lodging her written objection to the development on 12 May 2011 (exhibit 2 tab 2 p29). She also stated that at the time of lodgement of her objection she also filled out a change of address form and directed all future correspondence to be sent to her residential address. 5Despite that direction the Council inadvertently sent its next letter to Ms James' business address. That letter notified the receipt of amended plans and the Court's hearing date. Again Ms James did not receive the second letter from the Council. Consequently, she did not find out about the amended plans or the hearing date until the night before the event. Whilst she managed to attend the commencement of the onsite hearing she complained that she had little understanding about the amended proposal and was therefore not is a position at that time to give her evidence. Ms James left the hearing, to attend to other pre arranged commitments shortly after the applicant's planner, Ms McCabe, began to explain the amendments to the original design. 6After the completion of the hearing onsite the proceedings resumed in the Court building in Macquarie Street. At the conclusion of the day the parties requested a further adjournment for 4 days to accommodate Ms James' request for time to consider the amended plans and prepare her further evidence in the form of an affidavit, which she agreed to file and serve by Friday 25 May 2013. The Court adopted the agreed course and received Ms James' affidavit (exhibit 1) on 25 May 2013. After a consideration of the matters raised by Ms James I granted a further adjournment of the proceedings to accommodate Ms James' request to meet with the parties' planners at her unit to discuss the amended plans and the development's impact on her existing amenity. 7The meeting took place as arranged on 4 June 2013 between Mr Reid, the Council's manager of development assessment, and Ms McCabe, the applicant's planner and Ms James. After that meeting the planners produced a supplementary planning report. It deals with Ms James' concerns and the planners' assessment of those matters. 8The key concerns expressed by Ms James and documented in paragraph 17 of her affidavit relate to view loss, solar access, privacy and noise impacts. Her position is that the unacceptable impacts arise because of the development's noncompliance with "...any of the council's controls". She believes the impacts are therefore unreasonable and the development should be amended to ensure that her current level of sunlight, access and views are maintained. Before I deal further with the experts' assessment of Ms James issues I will explain the amended proposal and the context of the site. The amended proposal 9The proposal is to demolish the existing residential flat building and construct a part two/part four storey residential flat building comprising four dwellings, basement car parking for eight cars accessed via a lift. The application also incudes strata subdivision of the development. The design is detailed in the architectural plans prepared by SJ Architects dated 30 April 2013 subject to the amendments proposed in the Council's deferred commencement condition 1 (exhibit D) It states: Deferred commencement condition 1 1. (a) The rear alignment of apartment 4 must be reduced by 7 metres . The width of the apartment 4 at the new alignment shall be 7.5m. A balcony having a maximum depth of 3 metres shall be permitted forward of the alignment. (b) The treatment of the balcony shall reflect the treatment of the balconies on the remainder of the proposed development. (c) The roof area located south of the proposed balcony to apartment 4 and the roof over apartment 3 shall be non-trafficable. (d) Privacy screens shall be provided on the eastern edge of the balcony in the form of angled vertical louvers to a maximum height of 1.6m from finished floor level. The louvres shall be angled to maintain views from apartment 4. (e) An emended plan shall be submitted in generally accordance with sketch level 4,5 Kenneth street dated 21 May 2013 Job no 4353 demonstrating the above for councils approval. The emend plan may include a reconfiguration of room layouts from those originally proposed. Evolution of the current design 10The evolution of the current design has been a protracted process. According to the owners, they commenced discussions with the Council about a redevelopment of their property in about 2002. In December 2009 they had a pre DA meeting with the Council and their application was referred to the SEPP 65 Design Review Panel. It recommended some changes to the design but assessed that the proposal was of "...a good design on a narrow and difficult site....[with] the potential to fit into its context well". While the Panel acknowledged that the new building would exceed the relevant DCP controls in relation to width/side setbacks and height it considered the design to be compatible within the existing disparate scale of surrounding buildings on the eastern side of Kenneth Street which also exceed the setback, height and FSR controls in the Council's controls and policies. It concluded that because the current density controls in the DCP bear little relationship to the existing built form of the area there is justification for some departure from the DCP controls in this case. 11Thereafter the applicant lodged their development application with the Council on 7 April 2011. It was notified and referred to the Independent Hearing and Assessment P on 3 October 2012. After assessment the Panel recommended the granting of consent subject to a deferred commencement condition requiring the reduction of the bulk of the building at the rear of the site (facing the sea) including a rear alignment consistent with an average between the existing buildings on either side of the site to address overshadowing and view impacts. Despite this recommendation and the SEPP 65 Design Review Panel's assessment the Council refused its consent to the application on 23 October 2012. 12After that decision the applicants commenced this appeal. Importantly, however, on the morning of the hearing they amended their application to adopt the recommendations of the SEPP65 Panel and the Independent Hearing and Assessment Panel. 13This decision had the effect of overcoming the Council's main objections to the development. Planning evidence 14Mr Reid told the Court that the modification of the design to incorporate the changes in the deferred commencement condition satisfactorily addressed the Council and the residents' concerns in respect of bulk, scale, privacy, view loss and solar access. In particular, Mr Reid assessed that the revised design of dwelling 4 improved the view loss and solar access caused by the development to the bedrooms in the flat building at 3 Kenneth Street. While he conceded that the view loss caused to the bedroom in unit 4 in 3 Kenneth Street was only marginally improved by the amendments, he agreed with Ms McKay that the impact was acceptable. I 15With respect to Ms James' specific concerns the experts made the following comments in the supplementary report. Ms James' unit is located on the middle level of 7 Kenneth Street and extends from south the north. Windows are located in the northern, southern and western elevations of the unit. While there will be some additional overshadowing to the western elevation of unit 3/7 that impact is acceptable for the following reasons: (i) The sunroom to the street has a north facing window which is unobstructed by the proposed development; (ii) The alignment and scale of the building at the Kenneth Street frontage is within Council controls and is of a form and scale anticipated by the controls; (iii) The degree of overshadowing of windows on an elevation located within 1.4m of a side boundary in a densely settled environment is one that is reasonable in these circumstances; (iv)The reduction of Apartment 4 in depth will improve the degree of overshadowing at summer and equinox to the siting room and kitchen window. 16With respect to the view loss the experts note that Ms James enjoys extensive views from the windows in the southern elevation of her unit and these 180 degrees views will be maintained despite the development. Although the proposed built form will eliminate a view from the lounge room and the window in bedroom 2 (which can only be enjoyed from an angle close to the window) that view loss is considered to be acceptable because it could not reasonable be anticipated that those views would be maintained given the context of the site and surroundings. With respect to privacy issues arising from the proposed development the experts assessed that given the proximity of the built forms between numbers 5 and 7 Kenneth St and, the existing mutual overlooking, that the proposed 2.8m separation between the buildings will ensure that the privacy impacts to her unit are minimal and reasonable in the context. 17With respect to noise impacts to her amenity from the car lift the experts assess that there will be no unreasonable acoustic impact caused by the car lift which is to be located in the centre of the development provided it complies with the requisite Australian Standards, which is a condition of the approval. In conclusion the experts assess that notwithstanding the noncompliance with the numerical controls in the Council's DCP the view and amenity impacts to the adjoining units at 7 Kenneth Street generally and more specifically to Ms James' unit at 3/7 Kenneth Street are not unreasonable. 18The experts also agree that the siting of the building in respect of the front boundary, side boundaries and the rear boundaries as amended by the deferred commencement condition is an appropriate response to the site having regard to the alignments and setbacks of the other buildings along the southern side of Kenneth Street. Furthermore, the orientation of the balconies towards the view at the south and the location of the main useable space at the rear of the proposed building do not result in unreasonable visual or acoustic privacy impacts for the neighbouring buildings. 19The experts agreed that the unscreened terraces along the eastern and western elevations with a width of about 1m did not pose a privacy concern for the adjoining neighbours because the principal access to those balconies is from bedrooms and not a main living area. Having regard to that fact the experts agreed that the narrow terraces would not be a usable space for gatherings and unlikely to cause unreasonable visual or acoustic privacy impacts to the neighbouring properties. In other areas where screening was necessary to provide privacy the experts agreed it has been provided. For example along the eastern edge of dwelling 4 where louvres are to be installed. 20When viewed from the coastal walk in the context of the adjoining built form at 3 and 7 Kenneth Street, the planners' assessment is that the development fits within the location. In their assessment they do not believe that the building from that area will be visually bulky or intrusive. Findings This case is easily distinguished on its facts. The site is long and narrow and considered to be a difficult development site. It adjoins a part two-storey flat building containing 6 dwellings on its east and a part three/four storey flat building containing 7 dwellings on its western side. . At the southern boundary is the Pacific Ocean foreshore, Mackenzie Bay including the Bondi to Bronte coastal walk. Opposite the site to the north are a mix of development including dwelling houses, dual occupancies and flat buildings. It is located within the 2(b) zone under Waverley Environmental Plan 1996 and the Waverly Development Control Plan 2010 Part D2 and P Part 11 applies. Despite those controls the experts agree that the controls bare little relationship to the existing built form in Kenneth Street. Having regard to that fact I accept the views of both planners that strict compliance with the planning controls is not necessary in this case. I also accept their evidence that subject to the modifications outlined in the deferred commencement condition including the reduction in the length of dwelling 4 that the development is acceptable on its merits after an assessment under s79C of the Act. I also accept Mr Reid's assessment of the shadow diagrams provided by the applicant in annexure D demonstrates that there will be no significant additional shadow cast to windows at 3 or 7 Kenneth Street. While the new built form will cause impacts to some areas of the adjoining development and development opposite the site I am satisfied that the modified design is an acceptable compromised outcome. Therefore, for the reasons stated in the evidence and after a careful consideration of the objectors' submissions the Court makes the following orders: 1.The appeal is upheld. 2.Development consent is granted for the demolition of an existing residential flat building and the construction of a residential flat building containing 4 apartments with basement car parking and strata subdivision in accordance with DA 161/2011 as amended by exhibit D deferred commencement condition and plan dated 21 May 2013 job 4353; 3.The council is directed to file, within seven days, conditions of consent which reflect my reasons for judgment; 4.The exhibits are to be returned upon written publication of this judgment. 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: 10 July 2013