Land and Environment Court New South Wales Medium Neutral Citation: Boon v Waverley Council [2016] NSWLEC 1190 Hearing dates: 18 April 2016 Date of orders: 25 May 2016 Decision date: 25 May 2016 Jurisdiction: Class 1 Before: Smithson AC Decision: 1. By consent, the appeal is upheld. 2. Leave is granted to the Applicant to rely on the following plans prepared by MHN Design Union Pty Ltd and dated 9 March 2016: (a) Site Plan numbered DA-01(B) (b) First Floor Plan & Attic Plan numbered DA-03(B) (c) East & Southern Elevation numbered DA-04(B) (d) North & West Elevation numbered DA-05(B) (e) Section A-A numbered DA-06(B). 3. Pursuant to s96(2) of the Environmental Planning and Assessment Act, 1979, consent is granted to Modification Application No. 856/2004/A to modify Development Consent No. DA-856/2004 for the demolition of the existing dwelling and the erection of a new two storey dwelling and garage at 1 Harlowe Place, Bronte in accordance with Annexure A. 4. As a consequence of Order 3, DA856/2004 is now subject to the consolidated modified conditions of development consent set out in Annexure B. 5. The exhibits, other than exhibits 2, 4, 7 and A, are returned. Catchwords: MODIFICATION APPLICATION: consent orders; third storey bedroom addition; height breach; resident objections, precedent Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Jason Woodford Boon (Applicant) Waverley Council (Respondent) Representation: Mr Gary Green Solicitor (Applicant) Mr Chris McKeown Barrister (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 11233 of 2015 - 2016/00158762 (Justicelink Reference Number) ​ Judgment 1. ACTING COMMISSIONER: This appeal, pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979, comes before the Court for consent orders in relation to Modification Application 854/2004/A to modify Development Consent DA856/2004 for the erection of a dwelling at 1 Harlowe Place, Bronte (the site). 2. The modification seeks the addition of a partial third storey element to the approved dwelling comprising a master bedroom and ensuite totalling 47.5 square metres in area. 3. The appeal was subject to mandatory conciliation on 17 March, 2016, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference phase, the conciliation conference was terminated pursuant to s34(4) of the LEC Act. The proposal was amended following the conciliation conference and leave was granted by the Court for the applicant to rely on amended plans (Exhibit A). 4. Prior to the hearing, the parties agreed to enter into consent orders, based on the amendments made to the proposal. The changes made to the proposal can be summarised as: · The proposed third storey addition having a reduced setback of 600mm to the northern boundary to increase the setbacks from the south eastern and southern boundaries (ie Harlowe Place) by 800mm. This will result in: * the addition being more centrally located within the roof form of the existing dwelling * the addition being situated largely behind the parapet thus retaining a two storey appearance of the dwelling when viewed from Harlowe Place * a reduction in the bulk of the third floor addition when viewed from the rear yard of No. 2 Harlowe Place with the addition now being setback some 2.3m from this property * reduced shadow impacts upon the rear yard of No. 2 Harlowe Place * Increased separation of the addition from the balcony of No. 8 Andrew Street. · The parapet being extended 2 metres along the eastern elevation and being of a height largely consistent with the 7m external wall height control found in the Development Control Plan. · Setback of windows in the northern façade of the addition in excess of 12m from windows in dwellings at the rear of the site which front Thompson Street. This is to provide sufficient separation for privacy to be maintained to the windows of these properties. · Fixed horizontal privacy screens to the northern windows of the addition to ensure occupants of the dwelling can not look into the rear yard of dwellings in Thompson Street. 1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraph 36) provides relevantly: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: 1. the content of the proposed orders (including the proposed conditions of consent); 2. he date of the hearing by the Court to consider making the proposed consent orders; and 3. the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. The Council furnished the Court with documentation confirming that the objectors had received notification of the proposed consent orders and were provided the opportunity to be heard at the hearing as required by the Practice Note. 2. The consent orders hearing commenced on 18 April, 2016. As the conciliation conference was undertaken under s34AA it was agreed at the conciliation conference that, should the matter proceed to a hearing, the issues that objectors raised at the conciliation conference would be considered by the Court at any subsequent hearing. 3. 8 At the conciliation conference, the Court heard from 4 objectors and viewed the property from the residences of two of the objectors. In summary the following issues were raised: (a) concern with visual overlooking and loss of privacy (b) precedent of allowing 3 storey development in Harlowe Place (c) non-compliance with height controls (d) streetscape impacts (e) bulk and height, and (f) view loss. 1. At the hearing, one resident, Mrs Nash, provided additional evidence. She re-iterated the concerns of her neighbours and advised that the amended plans did not remove these concerns. She raised the following specific concerns: * The proposal breaches the LEP height control by 1.1 m and the change in the location of the addition doesn't change the height breach * The addition will be clearly visible from surrounding properties * Approval to the modification would set a precedent for 3 storey development in the street which would alter the streetscape and the amenity of Harlow Place * The proposal will result in a loss of privacy. 1. In summary, the neighbours were all concerned that the 3 storey proposal was not in keeping with the character of the locality and would set an undesirable precedent for other 3 storey dwellings in Harlowe Place, which is a small cul-de-sac where the maximum height of existing dwellings was argued to be 2 storeys. Planning framework and context 1. The DA for a new dwelling on the property was approved by the Council in 2005 but required the deletion of an upper floor (third storey) bedroom. The approved dwelling without a third storey has since been constructed. 2. The site is relatively flat having largely been levelled and partially excavated with the construction of the new dwelling. 3. A section 96 modification application was lodged in 2015 to provide a third floor addition in a different form to the original proposal. The Council accepted that, for the purposes of s96 of the Act, the development was substantially the same as the approved development on the site. 4. As the application was a modification application, a clause 4.6 written request to vary the height control was not required. 5. The site is adjoined and surrounded by predominantly 1-2 storey dwellings although site visits indicated a number of dwellings in the vicinity also had 3 storey elements. The parties agreed that predominantly, if not solely, dwellings in Harlowe Place were a maximum of 2 storeys. 6. Planning controls of relevance to the appeal are as follows: 1. Under clause 4.3 of the Waverley Local Environmental Plan (the LEP), the maximum permissible height is 8.5m. The maximum height of the proposal is 9.605m. 2. Under the Waverley Development Control Plan (the DCP) at clause 1.1.2 of Part C1, the maximum permitted external wall height above existing natural ground level is 7m. The maximum external wall height proposed is up to 7.2m. 3. Streetscape objectives in terms of height and character are set out in clauses 1.1 and 1.5 of Part C1 of the DCP respectively. 4. Overshadowing considerations are found at clauses 1.1 (Height) and 1.8 (Solar Access) in Part C1 of the DCP. The experts agreed that the modification complied with the requirements of DCP clauses 1.1 and 1.8. 5. Objectives for protecting the privacy of adjoining residents are set out in clause 1.7 of the DCP. 6. The maximum FSR permissible on the site under the LEP is 0.68:1. The modification complies with this control having an FSR of 0.64:1. Expert evidence 1. In relation to planning, the Council relied on the expert evidence of Ms Kerry Gordon and the applicant relied on the expert evidence of Mr Phillip Bull. The Court also heard from Mr Meyerson, the architect for the applicant. 2. The experts agreed that the modification as amended met the objectives if not all of the provisions of the Council's LEP and DCP. Specifically, the design changes which increased the setback by 800mm of the proposed third storey addition from Harlowe Place and extended the parapet, would result in: 1. the addition being largely hidden behind the parapet thus retaining a two storey appearance when viewed from Harlowe Place; 2. a reduction in the bulk of the third floor when viewed from No. 2 Harlowe Place; and 3. reduced shadow impacts upon the yard of No. 2 Harlowe Place. 1. Furthermore, the experts argued that: 1. the parapet extension along the eastern elevation would make the development largely consistent with the 7m external wall height control in the DCP with the parapet at the second storey consequently being the dominant visual element from the street, rather than the addition. 2. The relocation of the addition to be more central within the roof form resulted in a built form of acceptable impact and not dissimilar in bulk and scale to a pitched roof form which was permissible under the DCP. 3. The minimum 12 metre setback of the addition from dwellings at the rear of the site which front Thompson Street and provision of fixed louvres to proposed windows in the northern façade would provide improved privacy and reduce the potential for overlooking from the proposed bedroom and ensuite windows to the windows and rear yards of Thompson Street properties. 1. Accordingly, the Council now considered the amenity impacts of the proposal, as amended, to be acceptable. Responding to Resident Concerns Height 1. Mr Meyerson, architect for the applicant, advised the Court that the height breach was at least in part a result of excavation of the site. He also indicated that the addition would be concealed behind the parapet, that the original height control for the area was 9.5m, and that the current 8.5m control contemplated third storey attics which the proposal was not dissimilar to in terms of built form outcome. 2. Mr Meyerson also noted that, in total the height breach was now only for an area of approximately 3 square metres out of a total addition of 47.5 square metres with the area of the breach having dimensions of 2m x 1.5m. 3. During the site view, Mr Meyerson and the applicant took the Court to a number of dwellings in the vicinity of the site which were effectively 3 storeys or had third storey elements. 4. Ms Gordon noted that the original proposal appeared as a 3 storey dwelling from Harlowe Place but the revised proposal did not. In her view, the further stepping back of the addition and the parapet return extending 2m along the eastern elevation would screen the addition. 5. Ms Gordon agreed with Mr Meyerson that, whilst the controls did not talk about this style of attic development, it was essentially the same built form outcome as an attic above 2 storeys (as is contemplated by the controls). She also agreed with Mr Meyerson that the site had effectively been 'penalised' in terms of its height limits by previous excavation and that if the height was taken from the original natural ground level, as distinct from the current modified ground level, it would likely comply. Furthermore it would have a similar built form outcome as a 2 storey dwelling with a steeper pitched roof. Precedent 1. Ms Gordon did not believe the proposal would create an undesirable precedent as the circumstances were different to other sites in the area in particular the excavated nature of the site. In her view, the variations to control having regard to the excavation were warranted. She also noted that variations to, in terms of exceedence of, the height control were not uncommon in the area and that the total area of the breach was small. Impacts 1. In the opinion of both planning experts, and the applicant's architect, the proposed screening of the northern windows and the separation from Thompson Street properties would address privacy concerns. Even having regard to the objections, the experts' opinion remained that the proposal was acceptable as it would not have an adverse impact on the streetscape or neighbours. 2. The applicant argued that, even though there was precedent in the area to allow their original 3 storey proposal, modifications had been done to the plans to try and address resident concerns. Specifically, the addition had been further setback and relocated and the parapet extended to screen the addition from the streetscape and the amount of floorspace proposed was less than the permissible FSR. 3. In particular, Mr Ball noted that, by providing the floorspace in the third level as was proposed it allowed greater setbacks at the lower levels thus reducing impacts on neighbours. He also noted that there were no amenity issues raised by the Council. He considered the addition to be a good design outcome with minimal impact and a smaller building envelope than the controls permitted. 4. None of the experts raised any concerns with loss of views for neighbours given the location and nature of the addition as modified. Findings 1. From the site view and the expert evidence, I do not consider the proposed modification to the approved development will have an adverse impact on neighbours or the streetscape. 2. The majority of the addition complies with the height control other than a small pyramid shaped area at the ridge top. This leads to a breach for only 3 square metres of the proposed addition. In part, the breach results from the excavation of the site for the construction of the existing residence and the experts advised that a similar height breach would occur without the addition if the existing dwelling had a steeper pitched roof as the DCP controls allow. 3. Extension of the parapet to the street frontage will result in an effective external wall height of 7.2m which is generally consistent with the 7m wall height control contained in the DCP. 4. I note the development has less FSR than is permitted on the site and accept the applicant's rationale for the location chosen for this floorspace rather than at lower levels on reduced setbacks. 5. I agree with the experts' assessment that the visual impact is that the dwelling will retain a 2 storey appearance when viewed from Harlowe Place with the addition hidden from streetscape view by the parapet. The location of the addition in the centre of the dwelling further reduces its visual impact although I do accept it will still be partially visible from dwellings to the rear given their proximity. 6. There are a number of third storey elements evident in dwellings surrounding the site. Whilst the experts didn't agree on whether or not dwellings at the entrance to Harlowe Place did in fact have a third storey element, I can see no reason why dwellings in Harlowe Place should be precluded from having third storey additions relative to other streets in the vicinity or in the same zone. The planning controls do not require it and whilst the topography may require careful design to ensure no amenity impacts arise from third storey elements, I do not accept that such elements would, of themselves, necessarily lead to adverse streetscape impacts in Harlowe Place. 7. Irrespective, the applicant has modified the design to respond to the key concerns of neighbours in terms of visual impact and to remove a third storey appearance to Harlowe Place. 8. Therefore, rather than creating a precedent for third storey additions, the modified design retains a 2 storey appearance to Harlowe Place. In any event, it is arguable that such a precedent already exists in the area if not in the street itself. 9. I accept the expert advice that no amenity issues arise from the modification. The overshadowing will be compliant with the provisions of the DCP and the location of the addition as now proposed in conjunction with the proposal to fix horizontal privacy screens to the northern windows of the addition ensures privacy issues are addressed in that the occupants of the dwelling cannot look down into the rear yards or into windows of dwellings in Thompson Street. 10. From a view of the site from neighbouring properties, and having regard to the minimal extent and central location of the addition, I do not consider that any significant view loss issues arise. Conclusion 1. In my view, the objections raised by the residents regarding the proposal have been considered by the parties and are appropriately addressed by the amendments made to the proposal. 2. I also consider that the amendments to the proposal have addressed Council's original contentions of concern in relation to the proposal and I am satisfied that the proposal is consistent with the objectives of the LEP. 3. In considering the amended plans and documents and agreed conditions of consent, and taking into consideration the issues raised by the objectors, I am satisfied that it is lawful and appropriate to grant consent to the proposal, having regard to the whole of the circumstances. Orders 1. Noting that the parties have consented to each pay their own costs associated with the appeal, the orders of the Court are: 1. By consent, the appeal is upheld. 2. Leave is granted to the Applicant to rely on the following plans prepared by MHN Design Union Pty Ltd and dated 9 March 2016: 1. Site Plan numbered DA-01(B) 2. First Floor Plan & Attic Plan numbered DA-03(B) 3. East & Southern Elevation numbered DA-04(B) 4. North & West Elevation numbered DA-05(B) 5. Section A-A numbered DA-06(B). 1. Pursuant to s96(2) of the Environmental Planning and Assessment Act, 1979, consent is granted to Modification Application No. 856/2004/A to modify Development Consent No. DA-856/2004 for the demolition of the existing dwelling and the erection of a new two storey dwelling and garage at 1 Harlowe Place, Bronte in accordance with Annexure A. 2. As a consequence of Order 3, DA856/2004 is now subject to the consolidated modified conditions of development consent set out in Annexure B. 3. The exhibits, other than exhibits 2, 4, 7 and A, are returned. ________________ Jenny Smithson Acting Commissioner 158762.16 Smithson (C) - Annexure A (62.2 KB, pdf) 158762.16 Smithson (C) - Annexure B - 21 June 2016 (179 KB, pdf) Amendments 21 June 2016 - Correction made to the numbering in (C) - Annexure B 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: 21 June 2016