Del-Ben v Waverley Council [2013] NSWLEC 1245

Land and Environment Court New South Wales

Medium Neutral Citation: Del-Ben v Waverley Council [2013] NSWLEC 1245 Hearing dates: 19 December 2013 Decision date: 20 December 2013 Jurisdiction: Class 1 Before: Fakes C Decision: See [46] Catchwords: MODIFICATION: construction of a bedroom on a fourth level; impacts on privacy, views; height and FSR controls; amended plans Legislation Cited: Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Cases Cited: Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; 173 LGERA 280]. Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Makedonka Del-Ben (Applicant) Waverley Council (Respondent) Representation: Applicant: Mr G Green (Solicitor) Respondent: Mr S Nash (Barrister) Applicant: Pikes & Verekers Lawyers Respondent: Wiltshire Webb Staunton Beattie Lawyers File Number(s): 10816 of 2013

Judgment 1COMMISSIONER: This is appeal against Waverley Council's refusal of Modification Application No. DA-449/2005/D to modify an approved development at Lot E in DP 308352, also known as 413 Bronte Road, Bronte. 2The appeal is made under s 96(6) of the Environmental Planning & Assessment Act 1979 (the Act). 3The approved development is a three-storey dwelling comprising two levels above a garage. The dwelling is currently under construction. 4The site, its locality, the history of the proposal and the relevant planning controls are set out in the Statement of Facts and Contentions. It is sufficient to state that the site has been the subject of a number of s 96 modification applications to modify various aspects of DA-449/2005, which was originally approved in February 2007. 5The site is zoned R2- Low Density Residential under Waverley Local Environmental Plan 2012 (WLEP). The surrounding area is characterised by detached dwellings ranging from one to three storeys and a range of architectural styles from traditional to contemporary. The site and adjoining properties are on a steep slope. 6The proposed modifications refused by council include the construction of a fourth level to provide a roof terrace and an additional bedroom to be used as the main bedroom with ensuite, robe and access to the roof terrace. Other internal alterations are also proposed. 7The proposal was notified to nearby residents and seven submissions were received. Council's contentions reflect the reasons for refusal given by Waverley Development Assessment Panel and the issues raised by objectors. 8The Council raised no objections to the internal alterations and the contentions relate to the proposed fourth floor bedroom, roof terrace and associated structure. The contentions are: (1)Unacceptable bulk including an exceedence of the Floor Space Ratio (FSR) controls in WLEP with consequential adverse impacts on adjoining properties; (2)Incompatibility with the bulk, scale, streetscape and existing character of the locality; (3)Unacceptable view impacts on 409 Bronte Road; (4)Approval will establish an unsatisfactory precedent; and (5)Not in the public interest. 9The matter was listed as a mandatory conciliation and arbitration under s34AA of the Land and Environment Court Act 1979 (the Court Act). 10Prior to the conciliation, the parties' expert Town Planners, Ms Alison McCabe for the Applicant and Mr Greg Boston for council, prepared a joint report. The experts reviewed the relevant sections of WLEP and the Waverley Development Control Plan 2012 (WDCP). They inspected the site and viewed the development from 409 Bronte Road. 11Apart from considering the proposal and plans refused by council, the planners also reviewed two possible options put forward in order to reduce the extent and impact of the fourth floor - Options B and C. 12The planners agreed that the plans considered by council and ultimately refused, resulted in unacceptable impacts to adjoining properties, particularly on views from 409 Bronte Road. 13Given the agreed position that the proposal refused by council was unacceptable, the planners formally considered the amended plans shown in Annexure C of their report. These amended plans propose the following changes: * Deletion of roof terrace and rear courtyard; * A non-trafficable roof; * Reduction in size of the proposed bedroom to 7.6m x 4.25m with no external access onto the roof; * Include an internal access to ensure there is no structure forward of the rear eaves line of 411 Bronte Road; * Set a top RL of 48.42, an increase of 70mm; and * Set a floor level of RL45.87, an increase of 200mm. 14The applicant now relies on the amended plans. 15The matter commenced on site and a number of residents voiced their concerns about the development in general and about the proposal in particular. The properties of three of the objectors were visited. To assist in visualising the likely impacts of the proposed fourth floor bedroom, height poles and a cross bar were erected to show the proposed eastern façade. While the objectors agree that the amended plans are an improvement on the original proposed modification, they are still opposed to it. The main reasons are: * Non-compliance with council's controls and the undesirable precedent any approval would set; * Full compliance with the controls is essential in order to maintain the character and amenity of the area; * Lack of privacy to the rear garden of the adjoining property to the east as a consequence of the fully glazed eastern façade of the proposed fourth floor bedroom; * Whether proposed ceiling and roof heights would comply with the relevant building standards; * Impact on views, generally to the east, from the rear garden and bedrooms of 409 Bronte Road; and * Impact on views to the north of the upper portion of Bronte Park from the main bedroom and bathroom, as well as upper terrace, of 34B Gardyne Street (the adjoining property to the south); and the visual bulk and unappealing aspect of the proposed blank southern wall. 16As a consequence of the inspections of the site from the neighbouring properties, a number of minor changes addressing some of the concerns were discussed. 17Council's legal representatives were unable to obtain instructions to make an agreement under s 34(3) of the Court Act; therefore the conciliation was terminated in accordance with s 34(4). 18Given the council's contentions were satisfied by the amended proposal, a consent orders hearing may have been appropriate, however it was agreed by the parties and the Court that the requirements in paragraph 49 of the Court's Practice Note - Class 1 Residential Appeals could not be met in the circumstances and the matter proceeded to a hearing. 19While the parties agreed that there are no longer any contentions or issues that would warrant refusal of the proposed modification (as amended), in exercising the function of the Court, I must consider the relevant matters in s 79C of the Act. 20The applicant was formally granted leave to rely on the amended plans included as Annexure C in the joint planning report. It was agreed that an additional plan be prepared showing the eastern elevation of the proposed fourth floor bedroom. 21Both parties rely on the joint report of the town planners. The joint report comprehensively assesses the proposed amendments against the original proposal and against council's controls. Each contention is addressed in detail.