Land and Environment Court New South Wales Medium Neutral Citation: Whitfield v Waverley Council [2015] NSWLEC 207 Hearing dates: 30 November and 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Class 1 Before: Moore AJ Decision: See [18] to [21] Catchwords: SUBDIVISION – creation of two units from one – the separation – acoustic impacts – separation of electricity supply Legislation Cited: Strata Schemes (Freehold Development) Act 1973 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Richard Whitfield (Applicant) Waverley Council (Respondent) Representation: Counsel: Mr M Seymour, barrister (Applicant) Mr A Hudson, solicitor (Respondent) Solicitors: Bannermans Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10627 of 2015 Publication restriction: No Judgment 1. HIS HONOUR: The present application is, in its original form, a proposal to subdivide Unit 5 in the premises at 17 Francis Street, Bondi Beach. Unit 5 is at the lowest level of the building and at its rear. The proposal is to divide it to create two separate dwellings, one of which will be, in its finally proposed configuration, a studio apartment toward the front of the building and the other to be a more conventional apartment at the rear with an enclosed sunroom overlooking the rear garden. 2. A number of matters have arisen concerning the merit of the proposal: some of which were raised by Waverley Council (the Council) in its original, and narrowed subsequently in its amended, Statement of Facts and Contentions; others raised by me arising out of matters pressed by the residents who are also owners of the other apartments in the building. 3. I should say, at the outset, that there are presently five apartments with the proposal creating a sixth. Of the six apartments that will result from the approval of this application, three of them are presently owned by the Applicant in the proceedings. One of the concerns expressed by the other residents was that the creation of the sixth apartment and, thus, the creation of a sixth unit within the strata scheme structure would invest Mr Whitfield with what amounted to a blocking vote in the Owners' Corporation. 4. I am satisfied, for reasons that have been discussed during the course of these proceedings, that that is not a matter for my consideration in these proceedings. However, it may well be a matter for consideration by the Council, pursuant to the requirements of s 37(3)(a) of the Strata Schemes (Freehold Development) Act 1973, if there were to be a representation concerning that matter raised by the building's current Owners' Corporation to the Council on the question of whether the Council should grant a certificate permitting the registration of the subdivision plan. 5. That is not a matter that arises for my consideration under the provisions of the Environmental Planning and Assessment Act 1979 (the Planning Act) and, even on the broadest interpretation of the public interest under s 79C of the Planning Act, that does not seem to arise. 6. The various amenity matters that were raised originally in the Council's contentions have been, by the time of this final determination, resolved between the parties. In part that has been by alterations to the proposed design to ensure that the studio unit is, in fact, a studio unit with a combined living/bedroom space rather than a one-bedroom unit for which different amenity criteria apply - amenity criteria that might not have been capable of satisfaction had the unit proposed to remain as a one-bedroom unit rather than as a studio. 7. The final and significant amenity and public interest issues that arise, and have only been resolved today as a result of discussions taking place during the course of the site inspection and subsequent investigations, relate to fire separation between the lower level and the unit immediately above, and for appropriate acoustic protection between them. 8. During the course of the site inspection on the first day of the hearing I had shown to me what appeared to be an opportunity to remove false ceilings and insulation above in the proposed studio apartment to increase the floor-to-ceiling height in the living/bedroom space and to do so in a fashion that satisfied the necessary amenity controls. 9. Subsequent investigation demonstrated that there was sufficient room for this to occur. 10. The application has been amended to accommodate that removal and the provision of the appropriate floor-to-ceiling height adjustment. However, doing that, in itself - like ripples along a caterpillar - created an additional issue of fire safety between the studio unit and the unit immediately above (the above unit being one that had a wooden floor) together with the necessity to ensure adequate acoustic separation between the two. 11. It had originally been proposed to rely on treatments to the floor and to the underside of the exposed ceiling in the unit below and reliance, in part, on Bylaw 14 of the strata plan, a bylaw which did not impose an obligation on the upper unit owner to provide the appropriate flooring protection if the room were to be used as a kitchen. After further investigation, the application has been further amended to enable a specification in mandating of an acoustic treatment to the floor in the unit above. 12. That has been achieved by a further amendment to the application with, it is accepted, no costs consequences pursuant to s 97B of the Planning Act to mandate the floor treatment in Unit 4 immediately above and to incorporate that as an ongoing condition of consent applying to that unit. That treatment and its mandating satisfy me that that is an appropriate resolution to the acoustic separation issue and, when coupled with the appropriate fire separation treatment, means that there is no merit issue of separation of those two units that stands as an impediment to the proposal. 13. The final matter that is of a nature warranting comment is the question of the fact that, at least at present, it is not proposed that there will be the incorporation of separate metering in the meter board of the strata plan (because it is in the common property area) to separate the electricity supply between the proposed subdivided units on the lowest level. 14. That was a matter of concern to me as to whether or not, in a proper understanding of what might be required by law for there to be separate domiciles created in each of those units, there was a necessity for such separate metering and as a matter of practicality, in a public interest sense, as to how there would be a sharing of the electricity supply between the two proposed units. 15. Mr Seymour has provided draft amended conditions of consent, adding some additional conditions to those original proposed by the Council, to deal with the question of mutual obligations between the owners of the subdivided units as to the cost of electricity supply. The Applicant has also agreed to a further condition that there be demonstrated, to the satisfaction of the Council and within six months of the date of consent being granted, that there has, in fact, been a separation of the electricity supply so that there become separate supplies to each of the proposed units. 16. I am satisfied that there are a number of ways in which that can be achieved - the tidiest, perhaps, being (in light of the granting of development consent for the subdivision) the Owners' Corporation agreeing to changes to the metering in light of the practical outcome of this application, but that remains a matter for the Owners' Corporation and for Mr Whitfield over the next period of time. 17. I am, however, satisfied that the addition of a condition that requires that such separation take place within six months of the date of the orders giving effect to the subdivision is the appropriate response to it. 18. I have been handed a set of draft orders in three parts, the effect of which is that leave be granted for strata subdivision subject to the additional plans relating to the separation between Unit 4 and the two units to be created below. Having granted that leave, as I did earlier, then the result will be the upholding of the appeal and the granting of development consent to the proposed division, subject to conditions of consent to which it will be necessary to add the appropriate order for the returning of exhibits. I propose to make orders of the nature sought because I am satisfied that, after all of the matters have been worked through in these proceedings, there is no valid impediment to the granting of the application as proposed. 19. There will be a necessity for the proposed orders to be revised to reflect numbering changes and the like and the proposed conditions of consent to be amended to reflect the matters that have been discussed with the parties. 20. The consequence of that is that I direct that, by the close of business on Tuesday 15 December, revised proposed orders and revised proposed conditions of consent to be settled between the parties be provided as Word documents by e-mail to my Associate and I will then make orders in chambers to give effect to this decision. 21. In order to ensure that that occurs, I propose to stand the matter over for mention before me at 9.00 am on Thursday 17 December but, in the event that the electronic documents are provided to my Associate as I have directed, I will make orders in chambers and vacate the mention. ********** 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: 28 January 2016