Yule v Woollahra Municipal Council [2014] NSWLEC 1270

Land and Environment Court New South Wales

Medium Neutral Citation: Yule v Woollahra Municipal Council [2014] NSWLEC 1270 Hearing dates: 6 August 2014 Decision date: 07 August 2014 Jurisdiction: Class 1 Before: Dixon C Decision: The appeal is upheld. Consent is granted to modify development consent number 211/2012 in accord with the plans in exhibit A, subject to the conditions of exhibit D. The exhibits will be returned upon written publication of the judgment apart from exhibits A, B and D. Catchwords: MODIFICATION - development consent – extension of balcony - owners' consent Legislation Cited: Environmental Planning Assessment Act 1979 Environmental Planning Assessment Regulation 2000 Woollahra Local Environmental Plan 1995 Woollahra Residential Development Control Plan 2003 Category: Principal judgment Parties: Helen June Yule (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Scott Nash (Applicant) Peter Rigg (Respondent)

Solicitors: Boskovitz & Associates (Applicant) Norton Rose Fulbright Australia (Respondent) File Number(s): 10246 of 2014

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

ex TEMPORE – Judgment 1. COMMISSIONER: The applicant, Helen Yule, has development consent from Woollahra Council to renovate the balcony of her unit at 6/14 Fairfax Road, Bellevue Hill (the site). 2. The consent (DA211 (2012/1) was issued by the Council on 3 December 2012 (the original consent). 3. On 3 October 2013 Ms Yule made application to the Council to modify the terms of the original consent (DA 211 [2012/2]). The application was accompanied by plans and a letter from the strata manager of the units, Alldis & Cox, dated 12 November 2013. The letter stated that the body corporate consented to the lodgement of the applicant's modification application. Relevantly, the letter was accepted by the Council as satisfying the requirements for owners' consent as prescribed by cl 115(1) (h) of the Environmental Planning Assessment Regulation 2000. 4. After the processing of the application had commenced the Council received a second letter from the strata manager on 20 December 2013. It stated that owners' consent "purportedly" given to the lodgement of the modification application had been revoked at the annual general meeting of the body corporate. 5. The Council (quite properly in my view) continued to process the modification application which it had received as validly lodged. It was notified, assessed and ultimately the application was recommended for approval. 6. Despite the staff's recommendation the Council resolved on 10 March 2014 to refuse its consent to the application. The applicant then lodged this appeal to the Court under ss 96(6) and 97A of the Environmental Planning and Assessment Act 1979 (the Act). The works 1. The modification application originally proposed an increase in the width of the north- eastern side of the balcony by 500mm, the erection of a glass balustrade around the perimeter of the balcony and, details of the support structures being; two hollow structural beams from the underside of the approved balcony to the wall of the units opposite the subject site. During the hearing the application was amended to address some of the objectors concerns. In particular, the replacement of glass balustrade with a black steel galvanised handrail as detailed in drawing Yule- DA 211/2012 prepared by South Coast Building Consultants and dated 18 June 2014 (exhibit 3), and the preparation of a dilapidation report and engineering certification in respect of the structural integrity of the balcony before the issue of a construction certificate. 2. The amendments to the application and the applicant's agreement to the imposition of the Council's draft conditions on any consent had the effect of resolving the Council's initial concerns with the works. So, the hearing focussed on the concerns raised by the local objectors. The hearing 1. The hearing of this matter commenced onsite with a view. At that time I inspected the site and the units said to be impacted by the proposed modifications. I also received oral evidence from the objectors to the application and the parties' experts. 2. Ms Laidlaw gave planning evidence for the Council and, Ms Drum, gave urban design and planning evidence for the applicant. Their joint report is exhibit C. It outlines the basis of the planners' support of the application. Objectors' concerns 1. The objectors are of the opinion that the originally approved balcony sits like a 'hood' over their common property courtyard and the lower units in the complex. They believe the approved balcony impedes their existing residential amenity because it reduces their solar access and sky view. For those reasons they are very concerned about any extension in the size of the approved balcony. They contend a larger balcony will further exacerbate their reduced amenity and sense of enclosure. 2. The objectors are also very concerned about the support beams proposed in the application in particular, their visual amenity and impact on the structural integrity of the apartment block generally. Consideration 1. I have considered the written objections received by the Council which were included in the Council's bundle of documents (exhibit 2) and the oral submissions made at the onsite hearing. Having inspected the site and the units proximate I believe that I understand those objections in respect of the impacts of the approved balcony and the concerns expressed in respect of this application. 2. Unfortunately, however there is nothing I can do about the approved balcony. As was made clear during the hearing I have no power to revoke the approval granted by the Council. My task in this appeal is to assess the impacts of the proposed modifications based on the evidence. As noted earlier, in that regard the Council does not raise any merit issue with the application essentially because there is not planning basis to refuse this modification application. The expert evidence of its consultant planner, Ms Laidlaw as set out in the joint report prepared with the applicant's planner Ms Drum is that the proposed extension of the balcony by 500 millimetres towards the north-east with a metal balustrade (without any curvature and coloured black) and subject to the council's Conditions is acceptable on its merits. The changes to the approved balcony proposed by this application do not cause unacceptable visual or amenity impacts. 3. According to Ms Laidlaw the existing 1960's Juliet balcony attached to unit 6 is an addition which adds no architectural value to the 1938 inter-wars period building. The Council has approved a new balcony and the modifications proposed in this application are minor and of themselves do not result in any unacceptable planning impacts. After a consideration of the relevant controls including the height control in cl 12 of the Woollahra Local Environmental Plan 1995 and the solar access controls in the Woollahra Residential Development Control Plan 2003 Ms Laidlaw told the Court that she cannot support the objectors' concerns because the extension of the balcony as proposed creates no additional adverse environmental or visual amenity impacts when assessed against the original approval. She agrees with the applicant's planner, Ms Drum that "…having regard to the number, size, position of the existing openings of the building and the extent of the privacy impact associated with same that the additional privacy impacts of the small extension to the approved balcony would not be material, nor warrant refusal of the application" (joint report at para 3 of Exhibit C). 4. I accept the planners agreed position and I find that the proposal is acceptable after a merit assessment under s79C of the Act. Owners' consent 1. While the Council did not raise any issue about owner's consent in these proceedings the subject was raised by some of the objectors and discussed in some of the correspondence tendered to the Court. Therefore, it is appropriate that I set out my view on that matter because without the requisite consent I do not have jurisdiction to determine this application. 2. The Owners' Corporation of the subject unit block appointed Alldis & Cox (Coogee) Pty Ltd on 6 December 2006 as its strata managing agent. A copy of the Minutes of the extraordinary general meeting reflecting that appointment is annexed to the applicant's affidavit (exhibit E annexure "B"). Relevantly, Alldis &Cox was also the strata managing agent when the applicant lodged its original development application on 12 May 2012 and when she lodged her modification application on 12 November 2013. 3. On each occasion the application was accompanied by a letter from Alldis & Cox authorising the lodgement of that documentation on behalf of the Owners Corporation. Relevantly, both applications were accepted by the Council as being validly lodged. 4. The objectors, however, do not believe that to be the case and have invited the Court to go behind the letters which on their face appeal regular. 5. The applicant rejects any irregularity with the owners' consents or any assertion other than that the applications were validity lodged. In support of its case the applicant has provided the Court with numerous background documents including the Strata Management Agreement (exhibit E annexure C) and other documentation said to support a finding that the strata manager, Brian Heatrick, had delegation at the relevant time from the Owners' Corporation to act on its behalf, subject to the terms of the strata agreement (exhibit E annexure B). . In particular the Court has also received a copy of a registered Special By-Law (2) authorising the lodgement of the applicant's development application for specific works to unit 6 which has been relied upon for the purposes of the modification application. Relevantly, 'the works' defined in cl 1(v) of the Special By-Law includes a reference to an illustration of the proposed balcony. Although, it is somewhat blurred, the drawing marked 'HY' has been tendered and is exhibit F. 6. Relevantly, the Special By‑Law 2 states in cl 6 that "The owners may not vary the works except in accordance with the written approval of the Owners' Corporation and the local Council". The applicant maintains the modification works are within the ambit of the works detail in the Special By Law. 7. The objectors dispute this and allege that the Owners Corporation have not approved the variation of the works the subject of this appeal. They contend that the letter accompanying the modification application dated 12 November 2013 written by the strata manager and affixed with the common seal is not written approval by the Owner's Corporation to the modifications sought by the applicant. 8. Despite these allegations, the Council (as indicated at the outset of the judgment) does not take issue with the letter and has elected not to pursue this issue in the appeal. It submits that the letter from the strata manager dated 12 November 2013 satisfies the requirements for owners consent as prescribed by the Regulations. The Council's advocate, Mr Rigg reiterated this position at the conclusion of the hearing and apart from an error in form (namely an incorrect reference in the letter to cl 3(ii) of the Special By-Law (2) rather than cl 6 which deals with variations) Mr Rigg said the Council raises no issue about this matter and submits that I have jurisdiction to deal with this application. Conclusion 1. Having regard to the Council's submissions and my understanding of the evidence I accept that the applicant's letter of 12 November 2013 on its face appears regular. I am told that the strata agreement delegates all functions to the strata manager for the purposes of this proceeding. In substance the letter is consent from the Owners' Corporation (signed under seal of the strata manager pursuant to the delegation) for the lodgement of this modification application (as amended). Therefore, I believe I have jurisdiction to deal with this application. It should be appreciated that this is not a Court to investigate the regularity of the strata manager's delegations. 2. For the reasons stated I find that there is no planning basis on which to refuse this application. 3. In my assessment the structural integrity of the building after construction of the balcony is satisfactorily dealt with by the agreed conditions of consent. In particular, condition D6 which addresses the impact of the works on existing structures including Units 1, 2, 3, 4, 5 and all internal and external common property at 143 Fairfax Road, Bellevue Hill. By its terms the condition requires (prior to the works) the preparation of a dilapidation report in respect of all buildings on land whose title abut the site and such further buildings located within the likely "zone of influence" of any excavation, dewatering and/or construction-induced vibration. 4. Condition D6 will ensure that the condition of the building(s) prior to the development being carried out is recorded, and that any damage is minimised and can be identified, quantified and rectified. 5. The applicant has also agreed to the imposition of conditions requiring BCA compliance, no glass balustrade and no extension of the balcony on the western elevation. She has agreed to upgrade the stormwater/drainage to improve the existing water run-off problem and to repair, replace or rebuild all road, pavement, kerb, gutter, and footway, footpaths adjoining the site or damaged as a result of the work under the consent to the Council's satisfaction. 6. Under the terms of the consent the applicant must satisfy all conditions prior to the issue of the construction certificate. 7. Accordingly, the Court orders: 1. The appeal is upheld. 2. Consent is granted to modify developer consent number 211/2012 in accord with the plans in exhibit A, subject to the conditions of exhibit D. 3. The exhibits will be returned upon written publication of the judgment apart from exhibits A, B and D. Susan Dixon Commissioner of the Court 10246 of 2014-Annexure (529 KB, pdf)