Land and Environment Court New South Wales Medium Neutral Citation: Alco Electrics Pty Ltd v Waverley Council [2014] NSWLEC 1223 Hearing dates: 23 September 2014 Decision date: 14 October 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld in part Catchwords: MODIFICATION: Condition of consent; Floor space ratio, rear setback Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Cases Cited: Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157 Category: Principal judgment Parties: Alco Electrics Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Applicant: Mr A Isaacs (Barrister) Respondent: Ms C Morton (Solicitor) Applicant: Boskovitz & Associates Respondent: Sparke Helmore File Number(s): 10523 of 2014 Judgment 1COMMISSIONER: The applicant appeals Waverley Council's deemed refusal of modification application DA-618/2011/B for an extension to the rear of the first floor dwelling of an approved dual occupancy at 86 Blair Street, North Bondi (the site). The purpose of the proposed extension is to create a third bedroom. 2The appeal, made under s 97AA of the Environmental Planning and Assessment Act 1979 (the EPA Act), commenced on site as a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the Court Act). 3At the commencement of the conciliation the parties and the Court heard from two nearby residents who had lodged written submissions opposing the proposal. Both objectors own properties to the rear of the site. One of the objectors made submissions on behalf of another neighbour who owns a property immediately adjoining the rear of the site. Their concerns are summarised as: * Loss of privacy/ overlooking of private open space and primary living areas * Visual impact - excessive bulk and scale * Overdevelopment of the site 4The site was viewed from the objectors' properties. The rear building alignment was noted on site. 5As there was no agreement between the parties, the conciliation was terminated and the matter proceeded to a hearing in accordance with s 34AA(2)(b)(i) of the Court Act. The site, locality and relevant background 6The site is located on the northern side of Blair Street. Adjoining the site to the west is a two-storey red brick residential flat building over ground level parking; to the east is a two storey dual occupancy of subdivided semi-detached dwellings with garages at the street frontage. Nearby development ranges in style and age and is typically two to three storeys in height. To the rear are two storey semi-detached dwellings located over parking. 7Relevant to some of the objectors' concerns, in 2011 the Land and Environment Court made orders in effect to restrain the unauthorised use of the premises as either 'backpackers' accommodation' or as a 'boarding house'. 8Construction work is currently underway for alterations and additions to an existing dual occupancy dwelling on the site. The works were approved under development consent DA-618/2011, as modified by DA-618/2011/A. 9Modification application DA-618/2011A was approved subject to (amended) condition 2(b) and (new) condition 2(k). Condition 2(k) is in the following terms: 2(k) The addition to the rear first floor bedroom 3 is not approved and is to be deleted from the plans. 10The appeal before the Court effectively seeks deletion of condition 2(k) and consent for an extension to the rear of the first floor unit to incorporate a third bedroom. 11The proposal seeks to extend the north-western portion of the upper unit by 1.94 m and construct a new internal wall across the proposed family room in order to create a third bedroom. The width of the family room would be reduced by approximately 1.6m to a width of 6m. The window on the northern façade is proposed to be changed to a highlight window. The pitched, tiled roof is proposed to be extended over this portion of the dwelling. The proposed extension will remove any setback of the first floor above the ground floor in that portion of the dwelling. The issues 12Council contends that the application should be refused on the following grounds: * Exacerbation of an existing exceedence of the Floor Space Ratio (FSR) controls and insufficient grounds to contravene the FSR development standard (the clause 4.6 variation request is not well-founded) * Inconsistency with rear setback provisions. Planning controls 13The site is zoned Zone R3, Medium Density Residential under Waverley Local Environmental Plan 2012 (WLEP). 14The relevant elements of cl. 4.4 Floor space ratio are: (1) The objectives of this clause are as follows: (b) to provide appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 15The maximum permitted FSR for the site is 0.67:1. The approved FSR is 0.90:1 or 98m2 or 38% above the allowance. The proposed FSR is noted on the plans as 0.92:1 or 107.92m2 or 42% over the allowance. 16Clause 4.6 WLEP considers Exceptions to Development Standards. The intent of this clause is to provide a degree of flexibility in the application of certain development standards. Before consent can be granted, the applicant must prepare a written request that justifies a contravention of a development standard by demonstrating that compliance is unreasonable or unnecessary in the circumstance and there are sufficient environmental planning grounds to justify the contravention. 17Part C1 Dwelling House and Dual Occupancy Development in Waverley Development Control Plan 2012 (WDCP) applies. The relevant objectives are: (a) To ensure that the scale of dwelling houses and dual occupancy development is appropriate for allotment sizes and other dwellings in the vicinity. (b) To ensure that development does not significantly detract from the amenity, privacy and views of other dwellings and public view corridors. (d) To ensure that new development and alterations and additions to existing dwellings and dual occupancies are sympathetic in bulk, scale and character with other dwellings in their vicinity. (e) To encourage dwelling houses and dual occupancy development to have high design standards. 18Clause 1.4 Setbacks WDCP, applies. The preamble states: Setbacks influence the size and shape of buildings and ensure that their bulk and appearance in the streetscape and relationship to adjoining properties is appropriate to the locality. Uniformity in setbacks provides rhythm and character to residential streets, retains views and glimpses of local and distant landmarks and provides access to the rear of properties. Setbacks also provide amenity to existing and proposed housing through the maintenance and provision of privacy, ventilation, solar access and views. Setbacks generally increase as the building height increases. 19Clause 1.4.1 provides the relevant controls for front and rear building lines. (b) The predominant rear building line is determined by the average setbacks of the existing main buildings on adjoining properties either side of the subject site (generally 3 to 4 dwellings) and is determined separately on the ground floor and first floor level. In most circumstances development at first floor level and above shall be setback from the rear building line of the ground floor level in order to minimise bulk and scale impacts and provide visual relief for the open space and living areas at adjacent properties (refer to Figure 6). (c) Where it is proposed to build beyond the predominant front and/or rear building line, then greater consideration must be given to the following [relevantly in this matter]; (i) Compliance with applicable development standards, including Floor Space Ratio and Building Height; (vi) Visual aspect of the bulk and scale as viewed from the private open space and living areas of adjoining properties; (vii) Acceptability of amenity impacts on adjacent properties with regard to solar access, and visual and acoustic privacy; 20The Dictionary in WLEP 2012 states - building line or setback means the horizontal distance between the property boundary or other stated boundary (measured at 90 degrees from the building) and: (a) a building wall, or (b) the outside face of any balcony, deck or the like, or (c) the supporting posts of a carport or verandah roof, whichever distance is the shortest. Planning evidence 21Mr G Karavanas for the Applicant and Ms K Gordon for the Respondent gave planning evidence. The experts prepared a joint report and gave evidence in Court. 22The experts agree that when measured to the inside walls, the additional floor space proposed is approximately 6.6m2. This is less than the 9.92m2 difference in gross floor area indicated on the plans. 23In oral evidence, the planners agreed there are no privacy issues arising from the proposal. 24In regards to FSR, the main points of difference between the planners are whether the breach of the FSR control is acceptable and whether the currently approved development represents the maximum extent to which the site should be developed. 25Mr Karavanas acknowledges the non-compliance but opines the proposed addition is acceptable for the following reasons: * The relatively small additional area of about 7m2 is not significant; * The extension will not be visible from the street and therefore will have no impact on the streetscape; * The proposal will have no impact on solar access to or views from adjoining properties; * The proposed highlight window will limit any privacy impacts; * The proposal is compatible with the surrounding built form, is contextually similar, is consistent with the likely FSRs of the neighbouring buildings, and achieves the FSR objectives; * The proposal complies with other controls including rear and side setbacks, overall height and wall height controls; * The visual impact will be minor; * The proposed family room is appropriately dimensioned and any significant incursion into it for the creation of another bedroom would compromise its functionality; * The clause 4.6 variation in the Statement of Environmental Effects is well founded. 26Ms Gordon's opinion is that the approved development is already at the maximum capacity and no further increase in FSR should be approved for the following reasons: * The site is smaller than the minimum lot size for an attached dual occupancy under WDCP; * The front setback does not comply with WDCP controls and therefore any further extension to the rear is unreasonable; * The approved development already breaches the FSR controls and results in a development that increases the bulk and scale of the building; * If the owner's claim [in the application] that prospective purchasers/ tenants consider a third bedroom essential is the reason for seeking the extension, this could be achieved by reconfiguring the internal layout of the upper floor unit and is not in itself a justification for increasing the exceedence of the FSR control. In her opinion this would result in rooms of similar dimensions to those of the ground floor unit. 27The planners disagree on whether the proposal breaches the rear building setback controls in WDCP. 28Mr Karavanas is of the opinion that using the predominant rear building lines of the three to four buildings either side of the site, as required by cl 1.4.1 WDCP, for both the ground and first floor levels, the proposal complies with the controls and is consistent with adjoining properties. He states that while the DCP states that in most circumstances development at the first floor level shall be setback from the rear building line of the ground floor level, the majority of the adjoining buildings have the upper levels on the same alignment as the ground floor. In his opinion the proposal is therefore contextually consistent. 29Mr Karavanas also considers the proposal is compliant with the rear setback control. In his opinion the proposal is consistent with the objectives for that control specifically: it allows adequate solar access and privacy for the neighbouring buildings, does not affect the amenity of rear yards, is consistent with surrounding buildings and does not affect views. He also considers the existing front setback of the building is not relevant to the current application. 30Ms Gordon presses the non-compliance with the front setback and the FSR controls as strong reasons for not permitting any further extension of the first floor rear setback. She is firmly of the opinion that there is no reason why the first floor cannot be setback and therefore conform to the control in WDCP 1.4.1(b). In her opinion, enabling a uniform rear setback would not minimise the visual bulk and scale of the building or provide visual relief from the open space and living areas of adjoining properties. Submissions 31Ms Morton for the council maintains that any additional increase in FSR, and therefore bulk and scale, is unacceptable. Council contends that nothing has been put forward to justify a deviation from the rear setback control in WDCP requiring an additional setback of the upper level. In council's view, 'most circumstances' includes this proposal. Ms Morton presses Ms Gordon's evidence, which strongly recommends refusal of the proposal. 32Mr Isaacs for the applicant challenged the council's contention in regards to the relevance of a cl. 4.6 variation request; in support he cites Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157. 33Mr Isaacs maintains that the impacts are minimal, and indeed, council has not raised any issue of privacy. He contends that the Court should accept Mr Karavanas' opinion that the proposed rear setback is entirely consistent with adjoining properties. Findings 34I agree with Mr Isaacs' submissions in regards to the application or relevance of a cl. 4.6 request for a variation to the FSR development standard in WLEP. Clause 4.6 refers to the granting (or not) of 'development consent'. This is an appeal under s 97AA EPA Act - Appeal by applicant - modifications - in regards to a modification application made under s 96 of the Act. In Gan Lloyd J at [9] notes s 96(4) of the EPA Act: (4) The modification of a development consent in accordance with this section is taken not to be granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. 35His Honour also notes that s 96(3) requires the consent authority, when determining an application for modification of a consent, to take into account the relevant matters in s 79C of the Act. 36I accept that the approved FSR is a significant departure from the FSR permitted under cl. 4.4(2). However, I consider the additional floor space of less than 7m2 is minor (and therefore any additional contravention of the FSR control is similarly minor) and in itself does not warrant refusal of the application. I find that the proposal generally satisfies the objectives of the FSR controls in cl. 4.4 WLEP. 37In regards to the rear setback controls in cl. 1.4 WDCP 2012, while I agree that the existing adjoining buildings do not have the first floor levels setback beyond the ground floor level, those developments pre-existed the current controls. I am not convinced of the applicant's reasons for requiring a full extension of the upper floor to create a new bedroom, however, nor am I convinced by Ms Gordon's suggestion that a third bedroom could be readily accommodated by reconfiguring the living area of the upper dwelling. 38I see no reason why a compromise can't be achieved by requiring a minimum one metre setback from the ground floor thus enabling an extension of about 900mm of the north-western portion of the first floor in order to accommodate a third bedroom. Clearly this would involve some reconfiguration of the living room. 39By permitting a more limited extension, the setback control in cl. 1.4.1(b) is achieved. I agree that some setback relieves the visual bulk of the dwelling when viewed from the dwellings to the rear. I also consider that allowing the space to be used as a bedroom, and ensuring the change in window to a smaller highlight window, addresses some of the residents' concerns in regards to overlooking. It may also afford better acoustic amenity. 40In regards to the front setback, I agree with Mr Karavanas that this is not a relevant consideration in this matter. The front setback was clearly established many years ago well before the current controls. 41Therefore, after considering the proposal, viewing the site, hearing from the experts and considering the matters for consideration in s 79C(1) of the EPA Act, I find that the appeal can be upheld in part by permitting a limited extension as described in [38] above. Condition 2(k) is to be deleted or modified. 42In order to provide certainty, the applicant is to prepare amended plans to show the setback of at least 1m from the ground floor level, the highlight window, and the dimensions of the third bedroom. If necessary an updated BASIX certificate is to be prepared. The council is to prepare consolidated conditions of consent. Conclusions and orders 43The parties have provided the requested material. The Orders of the Court are: (1)The appeal is upheld in part. (2)Modification application DA 618/2011/B to extend the rear of the first floor of the approved dual occupancy dwelling at 86 Blair Street North Bondi for the purpose of creating a third bedroom is approved subject to the amended plans and the conditions of consent in annexures A and B. (3)The exhibits except A and 2 are returned. _________________________ Judy Fakes 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: 31 October 2014