Land and Environment Court New South Wales Medium Neutral Citation: Screnci & Anor v Willoughby City Council [2015] NSWLEC 1543 Hearing dates: 9, 10 October, 20 November 2014; 11 February, 2, 12 March 2015; written submissions 18 December 2015 Date of orders: 23 December 2015 Decision date: 23 December 2015 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The Applicants' request made pursuant to clause 4.6 of Willoughby Local Environmental Plan 2012 in respect to clause 4.4 of Willoughby Local Environmental Plan 2012 is upheld. 2. The appeal is upheld. 3. Development Application No.20141324 lodged with the Respondent on 31 July 2014 for alterations of subfloor for provision of a pantry, home theatre, corridor and relocation of powder room at Lot 29 DP12633 known as 57 Minimbah Road, Northbridge is approved, subject to conditions set out in Annexure A. Catchwords: CONSENT ORDERS: Internal alterations of subfloor – Development application – Building certificate issued – Floor space ratio - Development standard Legislation Cited: Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 2012 Cases Cited: Screnci & Anor v Willoughby City Council [2015] NSWLEC 1256 Screnci & Anor v Willoughby City Council [2015] NSWLEC 1444 Category: Principal judgment Parties: Joseph Screnci (First Applicant) Paula Screnci (Second Applicant) Willoughby City Council (Respondent) Representation: Counsel: Mr P Larkin SC (Applicants) Mr J Johnson (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicants) King & Wood Mallesons (Respondent) File Number(s): 10802 of 2014 Judgment 1. This appeal is one of seven appeals in Class 1 of the Court's jurisdiction concerning a property at 57 Minimbah Road Northbridge, owned by Mr and Mrs Screnci. The appeals relate to works undertaken at the property, and are: 1. an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 (the Act) against an Order under s 121B of the Act issued in relation to alleged non-compliances with development consents granted in 2004 and 2005 and additional unauthorised works, requiring the applicants to undertake and complete specified works (10972 of 2013); 2. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, for landscaping and other works including stairs and retaining walls between the existing dwelling and the northern site boundary of the site at the foreshore of Sailors Bay (10579 of 2014, 10527 of 2014); 3. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, for alterations and additions to the dwelling for the purposes of a secondary dwelling and ancillary outdoor terraces with pergolas (10803 of 2014, 10804 of 2014); and 4. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, relating to internal alterations of the subfloor of the dwelling for a pantry, home theatre, corridor and relocation of a powder room (10802 of 2014, 10805 of 2014). 1. The seven appeals were heard together, and on 10 July 2015 judgment was delivered: Screnci & Anor v Willoughby Council [2015] NSWLEC 1256. In that judgment the background to the applications and the appeals is outlined, and reasons were given for a determination that development consent should not be granted to the development applications relating to the landscaping and other works between the dwelling and the foreshore (10579 of 2015) and the secondary dwelling (10803 of 2014). Those reasons should be read together with this judgment. 2. Since delivery of that judgment the parties have been discussing amendments to the landscaping and ancillary works in an effort to settle a form of a modified Order that could direct, and authorise, works to address the issues raised in the appeals 10972 of 2013, 10579 of 2014, 10527 of 2014, 10803 of 2014 and 10804 of 2014. Those matters have been adjourned to allow those discussions to continue. 3. In relation to the internal alterations to the subfloor area of the dwelling for a pantry, home theatre, corridor, and relocation of a powder room, during the course of the hearing documents providing specifications and details of engineering inspections and certifications of the those alterations were tendered (ex T). The parties reached agreement as to the further works and inspections and certifications required to satisfy the Council as to the structural adequacy of those alterations, and compliance with relevant standards including the Building Code of Australia (BCA). 4. In Screnci & Anor v Willoughby City Council [2015] NSWLEC 1444 I made orders, by consent, pursuant to s 149F(3) of the Environmental Planning and Assessment Act 1979 (the Act) directing the Council to issue a building certificate subject to the fulfilment of specified requirements relating to additional certification, and the carrying out of additional work so as to comply with the requirements of the BCA. The parties requested that the appeal against the refusal of the development application lodged in respect of those internal alterations be adjourned until the requirements were met and a building certificate is issued. 5. The parties have advised that the requirements specified in Annexure A to the orders made in proceedings 10805 of 2014 have been met, and the Council has issued a building certificate. The parties now request that orders be made, by consent, to grant development consent authorising the prospective use of the subfloor area of the dwelling. 6. In their written submissions the parties address the requirements of paragraphs 35 and 36 of the Practice Note Class 1 Development Appeals. 7. The applicants submit that the making of the orders is lawful and appropriate. The applicants submit that structural adequacy, and compliance with relevant Australian Standards and the BCA, have been addressed with the issue of the building certificate in proceedings 10805 of 2015, and the subject of this application is the prospective use of the subfloor area. The applicants have provided a written request to justify the contravention of the floor space ratio (FSR) development standard in cl 4.4 of the Willoughby Local Environmental Plan 2012 (the 2012 LEP), and the Court should be satisfied that the cl 4.6 request adequately addresses the matters required and that it can lawfully approve the development. In considering whether it is appropriate, the applicants submit that the alterations are wholly contained within the existing (and approved) building envelope and footprint, being development in void spaces, and will have no external impact on neighbouring properties; there are no privacy issues, and no change to the overall bulk and scale of the existing dwelling. The applicants rely on the expert evidence provided by Mr Dickson (ex 9) that the additional floor space is below ground, does not change the bulk of the building and does not change the external presentation of the building when viewed from the public domain. The applicants submit that the objections made by the adjoining owner to the three development applications, including the application the subject of this appeal, were directed to the landscaping and secondary dwelling applications, save that the applications collectively "represent overdevelopment" and that the adaptation of the subfloor areas "sets an undesirable precedent"; and submit that the objector's concerns have been addressed as a matter of merit. 8. The Council submits that following on the issue of the building certificate, a development consent will regularise the ongoing use of the altered part of the dwelling. The Council relies on the agreed expert evidence (ex 9, p 6) that the rooms do not contribute to the bulk of the building and have no identified impact on the public interest, and that the rooms are acceptable subject to the provision of suitable details of the mechanical system used to ventilate the below ground area and the detail of the subfloor drainage to the retaining walls adjacent to the home theatre and the powder room. The use of the subfloor area as a home theatre is an aspect of use as a residential dwelling; and while the development results in a minor increase in gross floor area (GFA) for the dwelling, it does not increase the building footprint, building envelope or built area. Consideration 1. The development application the subject of this appeal proposes the authorisation of the prospective use of the altered subfloor area which provides a home theatre, powder room, pantry and corridor. 2. In its Statement of Facts and Contentions (ex 6) the Council contended that the appeal should be dismissed on the following grounds: 1. there is insufficient evidence that the unauthorised construction works have been constructed in accordance with the BCA or with industry best practice; 2. the extent of unauthorised changes to approved development con consent 2004/715 required approval pursuant to the 2012 LEP and its predecessor Willoughby Local Environmental Plan 1995; 3. use of foundation subfloor space if proposed originally could have facilitated reduced height, mass and bulk of the dwelling and a form more consistent with the planning controls, the environmental capacity of the land and the desired future character of the locality; 4. the additional gross floor area of 38sqm as a result of the alterations causes an excessive increase in the maximum floor space ratio (FSR) permitted under cl 4.4 of the 2012 LEP, in addition to the additional 36.7sqm of floor space proposed in the secondary dwelling; and 5. although the originally approved floor space in consent 2004/715 exceeded the permissible FSR at the time and that currently permissible, the additional floor space is an excessive increase of 21% from that originally approved. 1. The issues raised in the first contention have been resolved in the determination of the appeal in proceedings 10805 of 2014 and the issue of a building certificate under Part 8 of the Act. The need for prior development consent is not a barrier to the granting of development consent to authorise the prospective use of the internal area. The central issue remaining relates to the increase in FSR. 2. The subfloor alterations create a net increase in area for the dwelling of 38sqm. The GFA of the existing dwelling is 370sqm on a site area of 734sqm, providing a FSR of 0.504:1. The subfloor alterations result in an FSR of 0.556:1. Clause 4.4 of the 2012 LEP provides for a maximum FSR for the site of 0.5:1. The effect of the subfloor alterations is to increase the cumulative exceedance of the FSR development standard to 5.6%. 3. The applicants have provided a written request for variation of the FSR development standard pursuant to cl 4.6 of the 2012 LEP (ex L, tab 5). The request addresses the objectives of the development standard, noting that the alterations are within the envelope of the existing building; do not impact on traffic generation; do not impact on neighbouring sites or the public domain in terms of views, privacy, overshadowing or visual intrusion; and the increase in floor space is minor and within the existing building envelope. The request addresses the objectives of development in the E4 zone under the 2012 LEP, stating that the subfloor conversion with within the existing building envelope and not visible from the public domain, neighbouring sites or the exterior of the site, and the increase in GFA has no environmental or amenity impact. The request states that the technical non-compliance with the FSR control arises from how GFA is calculated in the context of a sloping site, and that regardless of the technical issues arising from the 2012 LEP definition of GFA the subfloor conversion has no material effect, and that the Council consent to a particular building envelope has not been altered: and so compliance with the FSR standard is unnecessary in the circumstances. 4. The parties' experts, Mr Dickson for the applicants and Ms de Carvalho for the Council, considered the non-compliance in their first joint report (ex 9). They agreed (p 6) that the rooms do not contribute to the bulk of the building and have no identified impact on the public interest. Ms de Carvalho retained concerns (p 14) that the structure within which the space is located had not been approved and its suitability for habitation had not been adequately established. The latter concern has now been addressed. 5. Having regard to the cl 4.6 written request, and the agreed expert evidence, which is consistent with the view on the first day of hearing, I am satisfied that the matters required to be addressed and satisfied under cl 4.6(4)(a) of the LEP are met; concurrence can be assumed (cl 4.6(4)(b)); and that it is appropriate that the variation to the development standard in cl 4.4 of the LEP be upheld. The substance of the objections made by the adjoining neighbour who made submissions to the Council objecting to the various applications the subject of the seven appeals is noted at paragraph [8] above. Having regard to the agreed expert evidence, in particular the absence of any identified impact arising from the development the subject of this application on neighbouring sites or the public domain in terms of views, privacy, overshadowing or visual intrusion, I accept the agreed position of the parties that in the circumstances of the case, notification is not necessary. The proposed use is lawful, and while it results in a minor increase in GFA for the building, it does not increase the building footprint, building envelope or built area. I accept the agreed position of the parties that in the circumstances it is lawful and appropriate that consent be granted for the prospective use of the subfloor area. 6. By consent, the orders of the Court are: 1. The Applicants' request made pursuant to clause 4.6 of Willoughby Local Environmental Plan 2012 in respect to clause 4.4 of Willoughby Local Environmental Plan 2012 is upheld. 2. The appeal is upheld. 3. Development Application No.20141324 lodged with the Respondent on 31 July 2014 for alterations of subfloor for provision of a pantry, home theatre, corridor and relocation of powder room at Lot 29 DP12633 known as 57 Minimbah Road, Northbridge is approved, subject to conditions set out in Annexure A. Linda Pearson 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: 23 December 2015