James Evans v Inner West Council [2018] NSWLEC 1043

Land and Environment Court New South Wales

Medium Neutral Citation: James Evans v Inner West Council [2018] NSWLEC 1043 Hearing dates: 11 January 2018 Date of orders: 09 March 2018 Decision date: 09 February 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: The orders of the Court are: (1) The appeal is upheld; (2) Development application DAREV/2017/23 for alterations and additions to a property at 168 Johnston St, Annandale is determined by the grant of consent, subject to the conditions of consent provided at Annexure 'A'; (3) The exhibits are returned with the exception of Exhibits A and B. Catchwords: DEVELOPMENT APPLICATION: appeal against conditions following a s82A review of refusal; rear garage/studio; overland flow path; stormwater flows; solar access to neighbour's private open space. Legislation Cited: Leichhardt Local Environment Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: James Evans (Applicant) Inner West Council (Respondent) Representation: D. Briggs (Applicant) M. Bonanno (Respondent)

Solicitors:

DG Briggs and Associates Inner West Council File Number(s): 2017/294634 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: James Evans (the Applicant) has appealed the determination of Inner West Council (the Respondent) to grant development consent, subject to conditions, for alterations and additions to a property at 168 Johnston St, Annandale (the Subject Site), and following the lodgement of request for a review Council's initial refusal of development application DA2016-665, pursuant to section 82A of the Environmental Planning and Assessment Act 1979 (EP&A Act). 2. Following its review (referenced as DAREV/2017/23) Council granted consent to an amended scheme, supported by hydraulic engineering and geotechnical engineering reports, that had been submitted by the Applicant. 3. The amended scheme was substantially the same as that proposed by the Applicant in his original development application, and was for a three (3) storey addition to the existing dwelling, together with construction of a new garage with a studio above which would be accessed via Piper Lane, at the rear of the Subject Site. 4. Amendments made to the original proposed development included the deletion of a rooftop deck, a reduction in the height of the rear addition to the dwelling, the relocation of the proposed swimming pool, a change in form of the garage/studio to incorporate a parapet and reduce its overall height, and changes to some materials and finishes. 5. The Applicant seeks the deletion of eight discrete conditions of consent imposed by the Respondent following its review and determination of original development application. These concern the following conditions of consent: 1. Condition 4(a), which concerns the management of stormwater flows along the side of the Subject Site, and which requires that: The kitchen and family room at lower ground floor level must be set back a minimum 500mm from the northern boundary for the full height of the lower ground floor to provide an overland flowpath between Johnston Street and the rear of the property. The existing surface levels must be maintained for the length of the dwelling such that a retaining wall is not required along the boundary. 1. Condition 4(b), which concerns the management of stormwater flows at the rear of the property along Piper Lane and which requires that: The finished floor level of the garage must be raised to RL21.65m AHD. 1. Condition 4(c), which concerns the design of the proposed garage/ studio and which requires the: Garage/studio to be reduced in size to have a maximum external length of 7.83m on the northern and southern elevations. 1. Condition 4(d) which concerns the design of the proposed garage/ studio and which requires that: The floor to ceiling height of the garage is to be 2.2m with the roller shutter housing contained in a recess within the first floor 1. Condition 4(e), which concerns the design of the proposed garage/ studio and which requires that: The finished floor level of the first floor studio level is to be RL24.15m AHD. 1. Condition 4(f), which concerns the design of the proposed garage/ studio and which requires that: The clerestory roof shall be reduced in height to have a maximum RL of 28.085m AHD with the roof pitching from the southern wall at a maximum pitch of 20 degrees. The exterior southern wall of the studio shall have a topmost point of RL26.52m AHD. The topmost point of the northern elevation exterior wall shall be RL 27.02m AHD with the adjacent lower portion of the roof lowered accordingly. The internal ceiling levels are to be lowered as required by the lower roof heights. 1. Condition 4(g), which concerns the design of the proposed garage/ studio and which requires that: The clerestory window roof is to be reduced in extent so that it is setback a minimum of 1.45m from the new eastern external wall of the garage/studio building as required by (c) above with the remaining section of roof to the eastern external wall being a skillion roof sloping in the same direction as the clerestory window roof with a pitch of 2 degrees. 1. Condition 4(i), which concerns the design of the proposed garage/ studio and which requires that the: First floor window to the Piper Lane façade is to be 1 or 2 no. window/s of half width to that shown on the approved plans, double hung painted timber frame, colour to be white/off-white or a stone/beige colour. 1. The appeal comes to the Court pursuant to s97(2) of the EPA Act and was subject to mandatory conciliation under s34AA of the Land and Environment Court Act 1979 (LEC Act). 2. As part of the conciliation conference, an inspection of the Subject Site was undertaken, during which a submission was received from Mr Dougal Biggart, the owner of the adjoining property at 166 Johnston St. 3. Mr Biggart's submission principally concerned two points. These were: 1. A preference for retention of the current 2.1m high fence between the properties in order to maintain visual privacy. Mr Biggart said that he accepted that retention of a fence that was higher than a standard 1.8m high fence may have some minor overshadowing implications for his property. Nevertheless, he stated that these impacts were secondary to his preference for retention of the higher fence to secure his privacy. 2. Mr Biggart indicated an intention, consistent with other recent developments within the area, and with the proposed development in this appeal, to seek consent for construction of a rear garage with first floor studio at the back of his property. 1. The conciliation conference did not result in all matters in contention being resolved. Consequently, as required under s34AA of the LEC Act, the conciliation was terminated and a hearing held forthwith to address the contentions between the Parties. 2. The Parties confirmed the plans that were the subject of the section 82A review were the same as those that formed the basis for this appeal.