ABC v Woollahra Municipal Council

[2018] NSWLEC 1314

Land and Environment Court

New South Wales

Medium Neutral Citation:

ABC v Woollahra Municipal Council [2018] NSWLEC 1314

Hearing dates:

30 & 31 May 2018

Date of orders:

03 August 2018

Decision date:

03 August 2018

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

 

(1) The Applicant is granted leave to rely on an amended landscape plan;

 

(2) The appeal is upheld;

 

(3) Development application DA4564/2017 for alterations and additions to a dwelling house located at Lot B in DP 439823 in Vaucluse is approved, subject to the modified conditions of consent provided at Annexure ‘A’.

 (4) The exhibits are returned with the exception of Exhibits A and 2.

Catchwords:

Development Application: Appeal against conditions of development consent; compliance with landscaping controls; privacy screen.

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Development Control Plan 2015

Texts Cited:

Woollahra Local Environment Plan 2014

Category:

Principal judgment

Parties:

ABC (Applicant)
Woollahra Council (Respondent)

Representation:

Counsel:
Applicant in Person
P Rigg (Respondent)

  Solicitors:
Makinson d’Apice Lawyers (Applicant)
Peter R Rigg (Respondent)

File Number(s):

2018/98976

Publication restriction:

Yes: Applicant name suppressed and replaced with a pseudonym in accordance with s7 of the Court Suppression and Non-Publication Orders Act 2010.

Judgment

Background

1. COMMISSIONER: The Applicant, referred to in this judgment as ABC (see below at [5] for reasons), has appealed to the Court to modify certain of the conditions of development consent issued by Woollahra Municipal Council (the Respondent) as part of its grant of development consent to development application DA4564/2017 for alterations and additions to a dwelling house located at Lot B in DP 439823 in Vaucluse (the Subject Site).

2. The appeal is made pursuant to section 8.7(1) (formerly s97(1)) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. Under the appeal, the Applicant seeks modifications to the conditions of development consent issued by the Respondent as follows:

1. Delete condition C.1(a), which condition requires that the Applicant setback the front building line of the proposed development from the front, western, boundary of the Subject Site to provide a 4.9m setback;

2. Delete condition C.1(b), which condition requires that the design of the Applicant’s proposed car parking structure (hereafter referred to as the garage) shall be of a maximum width of 6m, and that the Applicant extend the small garden area adjoining this structure to a point at which the parking structure meets the proposed master bedroom;

3. Modify condition C.1(d), which condition requires that the Applicant redesign a window in the proposed development, designated as W15, such that that window includes a translucent glaze to a height of 1.5m above floor level and that it be fitted with a winder mechanism to control the maximum angle of the opening to limit views to a property adjoining the Subject Site. The Applicant seeks that the number ‘1.5’ in that condition be replaced with the number ‘1.14’.

4. Delete condition C.1(e), which condition requires that a 1.5m high privacy screen, to a minimum width of 1.4m, be installed along the northern elevation of the proposed first floor balcony facing the street;

5. Modify condition H2, which condition concerns landscaping and which requires that a works-as-executed landscape plan, certified by a qualified landscape architect/designer, horticulturist, and/or arborist as applicable, must be provided to the Principal Certifying Authority (PCA) for the proposed development, to confirm that works as completed comply with the consent. The Applicant seeks deletion of the words ‘from a qualified landscape architect/designer, horticulturist, and/or arborist, as applicable’.

4. The appeal was heard under s34AA of the Land and Environment Court Act 1979 (the LEC Act) on 30 and 31 May 2018.

5. At the hearing, the Applicant applied by Notice of Motion for an order under s7 of the Court Suppression and Non-Publication Orders Act 2010 (the CS&NPO Act) that an acronym be used in place of the full name of the Applicant in any published judgment or order in the proceedings. The grounds on which the Applicant sought for the anonymisation of the Applicant’s name was that the order is necessary to protect the safety of the Applicant and the Applicant’s family (see s8(1)(c) of the CS&NPO Act).

6. Following a hearing of the application, I determined to make an order, pursuant to s7 of the CS&NPO Act, to suppress the name of the Applicant and to substitute the acronym ABC for the Applicant’s name.

7. The matters in contention between the Parties were initially the subject of a conciliation conference held on-site, and during which an inspection of the Subject Site was undertaken.

8. During the site inspection, submissions in relation to this appeal were received from the following interested local residents:

1. Ms A Galgut, on behalf of a local community project entity, who said that she supported the deletion of condition C.1(b) as sought by the Applicant, as the introduction of the area garden required by this condition could introduce weeds that would compromise landscaping works undertaken by her entity.

2. Mr M Galgut, who endorsed the submission of Ms Galgut in relation to condition C.1(b), and also supported the Applicant’s proposed deletion of condition C.1(e) requiring the introduction of a privacy screen on the first floor balcony.

9. As a consequence of discussions at the conciliation conference, the Parties confirmed that three of the five contentions between them, relating to three of the conditions of consent issued by Council, had been resolved as follows:

1. The Respondent agreed that condition C.1(a) should be deleted, as sought by the Applicant;

2. The Applicant agreed that condition C.1(d) should not be modified, and should be retained in the form issued by Council;

3. The Respondent agreed that condition H2 should be modified as sought by the Applicant.

10. The Parties did not resolve the issues relating to the remaining two conditions of development consent in contention, and, as a consequence, the conciliation process was terminated, and the matter proceeded to hearing to dispose of the remaining contentions.

11. The Applicant was granted leave to rely upon an amended landscape plan that was tendered as evidence in the hearing.

Statutory context

Environmental Planning and Assessment Act 1979

12. The EP&A Act provides, under section 8.13 (formerly s 83 of the EP&A Act), the effect of an appeal on the operation of a consent, as follows:

(1) If the granting of a development consent for development (other than State significant development) is the subject of an appeal made under this Division, the development consent ceases to have effect.

(2) If an appeal under this Division is discontinued, the consent is revived on the discontinuation of the appeal.

(3) A development consent that is granted as a result of a decision on an appeal under this Division is taken to be a development consent duly granted under Part 4. Any such development consent takes effect, subject to any order of the Court, on and from the date the decision is registered on the NSW planning portal.

(4) If the effect of a decision on appeal is that development consent is refused, any development consent granted ceases to have effect.

(5) Despite anything to the contrary in this section, a development consent is taken to have effect on and from the date fixed by:

(a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the development consent, or

(b) the Land and Environment Court, if the validity of a development consent granted by that Court is confirmed by, or the development consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date.

13. Section 8.14 of the EP&A Act provides, inter alia, the powers of the Court on appeal, as follows:

(1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

14. Section 4.15(1) (formerly section 79C(1)) of the EP&A Act requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest”.

15. Section 4.15(3A) (formerly s79C(3A) Development Control Plans of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

16. Development on the Subject Site is subject to the Woollahra Local Environment Plan 2014 (WLEP).

17. Under WLEP the Subject Site is zoned R2, and Applicant’s proposed development is permissible in this zone, with consent.

18. Development on the Subject Site is also subject to the provisions of Woollahra Development Control Plan (2015) (WDCP). The following sections of WDCP are of particular relevance in this appeal:

1. Chapter 3 of WDCP provides General Development Controls to guide the scale and bulk of development so that is compatible with site conditions and the desired future character of the location where the development is proposed. More specifically, within that chapter:

1. section 3.5.4 ‘Acoustic and visual privacy’, provides objectives and controls for residential development in relation to maintenance of privacy within residential areas. The following objective and control are of particular relevance in this appeal

Objective

O3 To minimise the impacts of private open space.

Control

C7 Private open spaces and the trafficable area of roof terraces (at or below the second storey) (refer to Figure 19) are to be suitably located and screened to prevent direct views to neighbouring:

a) habitable rooms (including bedrooms) within 9m; and

b) private open space within 9m.

Note: Private open space includes an area external to a building including land, terrace, balcony or deck.

2. section 3.7.1 ‘Landscaped area and private open space’ provides landscaping objectives and controls for residential development. The following objectives and controls are of particular relevance in this appeal:

Objectives

O1 To ensure that the areas outside the floorplate contribute to the desired future character of the location.

O2 To provide sufficient deep soil landscaped area to support substantial vegetation.

O3 To provide for on-site stormwater absorption.

Controls

C2 At least 40% of the front setback comprises deep soil landscaped area,…

C5 The deep soil landscaped area is free of garaging, paving, outbuildings, tennis courts, swimming pools, above ground and below ground structures including stormwater works.

Contentions

19. As discussed above at [10], the two remaining contentions addressed during the hearing were as follows:

1. Should Condition C.1(b) be deleted?

1. This concerned the Applicant’s appeal to delete condition C.1(b), which condition requires that the Applicant’s proposed car parking structure shall be of a maximum width of 6m, and that the Applicant extend the small garden area adjoining this structure to a point at which the parking structure meets the master bedroom; and

2. Should Condition C.1(e) be deleted?

1. This concerned the Applicant’s appeal to delete condition C.1(e), which condition requires that a 1.5m high privacy screen, to a minimum width of 1.4m, be installed along the northern elevation of the proposed first floor balcony facing Derby Street.

20. These contentions were the subject of testimony during the hearing from the following expert witnesses:

1. Ms T Ward for the Respondent, who confirmed that she is a qualified planner;

2. Mr J Ukalovic for the Applicant, who confirmed that he is a qualified architectural draftsman.

21. Ms Ward and Mr Ukalovic had prepared a joint report in relation to the contentions in this appeal. That report was tendered as evidence during the hearing.

Should condition C.1(b) be deleted?

22. The Respondent submitted during the hearing that the Applicant’s development application did not meet the numerical standard (see [18(1)(b)]) established under control C2 of WDCP section 3.7.1 (hereafter referred to as simply as C2), which requires that at least 40% of the front setback should comprise deep soil landscaped area.

23. The Respondent also noted that control C5 of the same section of WDCP (hereafter referred to simply as C5) required that the deep soil landscaped areas are to be free of garaging, paving, outbuildings, tennis courts, swimming pools, above ground and below ground structures including stormwater works.

24. Notwithstanding the requirements of controls C2 and C5, the Respondent acknowledged during the hearing that it was reasonable for the Applicant under the development application to seek approval for parking for two vehicles. The Respondent also said that the garage proposed by the Applicant, and as approved by Council, subject to the conditions of development consent, was compliant with the Australian standard for the provision of parking for two vehicles on the Subject Site.

25. The Applicant’s appeal that condition C.1(b) should be deleted was the subject of testimony from Ms Ward and Mr Ukalovic, both through the evidence within their joint report, and at the hearing.

26. Ms Ward and Mr Ukalovic agreed that, were the Applicant to comply with control C2 as part of the proposed development, it would provide an area of 19.04 m² of deep soil landscaping within the front setback of the proposed development. The experts also confirmed in their report, and at the hearing, that:

1. without the imposition of condition C.1(b), the proposed development would provide 5.92m² of deep soil landscaping within the front setback, which equated to 12.44% of the front setback area.

2. with the imposition of condition C.1(b), the proposed development would provide an area of 7.56 m² of deep soil landscaping within the front setback, which equated to 15.88% of the front setback area.

3. the imposition of condition C.1(b) would, therefore, provide an additional 1.64 m² deep soil landscaping within the front setback of the proposed development;

4. with the implementation of the Applicant’s amended landscape plan, for which leave had been granted at the commencement of the hearing, the area of deep soil landscaping provided by the proposed development would be 9.33 m², representing 19.52% of the front setback area.

27. The testimony of the expert witnesses differed in relation to whether condition C.1(b) should be deleted.

28. Within the joint report, Mr Ukalovic had said that with the imposition of condition C.1(b) the garage would be unnecessarily narrow, and the condition would require the creation of a garden area that would lack accessibility for the purposes of maintenance.

29. At the hearing Mr Ukalovic confirmed this opinion, and also said that any vegetation planted in compliance with condition C.1(b):

1. would have minimal impact on the perceived bulk and scale of the garage within the streetscape; and

2. could not be maintained adequately to ensure the long term success of plantings.

30. In response to a question from the Respondent, Mr Ukalovic said that the introduction of one or more additional egress doors at the side of the garage for the purposes of maintaining the plantings required by condition C.1(b) would introduce sources of cold air that would reduce the functionality of the laundry component of the garage area during parts of the year.

31. Mr Ukalovic also said that, in his opinion, the planter boxes that the Applicant proposed to be installed on the roof of the garage would provide vegetation that, in time, would grow down and over side wall of the garage. He said that this vegetation would mitigate the perception of the proposed garage’s bulk and scale from the street more effectively than any vegetation that would be introduced under condition C.1(b).

32. Mr Ukalovic added that the additional garage width that would result from the deletion of condition C.1(b) would assist in making the garage more functional by providing additional internal width that would facilitate the opening of car doors within the garage. He said that, in his opinion, this benefit outweighed any benefit that might be derived from the extension of a garden area at the side of the garage, as well as any potential mitigation that such vegetation may provide to the perceived bulk and scale of the garage from the street.

33. Ms Ward had said in the joint report that, in her opinion, adequate space had been provided within the garage to accommodate two parked vehicles, and that the space then available for the opening of car doors was consistent with the requirements of the relevant Australian standard.

34. Ms Ward had also commented in the joint report that the proposed development was non-compliant with the deep soil landscaped control in C2. She had said that, as a consequence, the development should be modified (as required under condition C.1(b)) to create a more compliant design to mitigate both:

1. the perceived bulk and scale of the garage from the street; and

2. the non-compliance of C2 in relation to the deep soil landscaped area provided by the proposed development within its front setback.

35. During the hearing Ms Ward said that, in her opinion, the deletion of condition C.1(b), as proposed by the Applicant, would result in a solid wall of the garage being presented towards the street and that this would impact negatively on the streetscape in the vicinity of the Subject Site.

35. Having given consideration to the submissions of the Parties and the evidence of Ms Ward and Mr Ukalovic, I favour the position of Mr Ukalovic in relation to the Applicant’s appeal to delete condition C.1(b). In particular, I accept his evidence that:

1. the area of deep soil landscaping that would be provided under condition C.1(b) is small and would make only a marginal contribution to the proposed development achieving compliance with control C2;

2. the deep soil landscaping that would be provided under condition C.1(b) would have only a marginal impact on mitigating the perceived bulk and scale of the proposed garage;

3. the deep soil landscaping that would be provided under condition C.1(b) would be an area that would be difficult to maintain, reducing the likelihood that the plantings would succeed;

4. the proposed vegetation that would grow from the proposed planter box above the garage and on its northern edge is more likely to provide effective mitigation of the perceived bulk and scale of the garage than the vegetation that would be planted as a consequence of condition C.1(b).

5. the deletion of condition C.1(b) would provide a useful addition to the functionality of the proposed garage.

37. I note that Council had previously assessed, and provided a consent to, the proposed development, albeit with conditions, and in doing so had accepted that the proposed development would not achieve full compliance with C2. I conclude from this that Council had decided that the Applicant’s non-compliance with C2 did have merit in the circumstances of the proposed development, and I agree with this conclusion.

38. I do not accept that the additional area of deep soil landscaping that would be achieved through implementation of condition C.1(b) would materially assist the proposed development to comply with C2.

39. I have also concluded that the deletion of condition C.1(b) would not materially reduce the achievement of the objectives for C2 by proposed development because the area of vegetation that would result from the implementation of condition C.1(b) would be very small, and would only make a marginal contribution to any greater achievement of the control’s objectives than would be the case without imposition of the condition.

40. Based on the above, I have concluded that condition C.1(b) should be deleted, and that the Applicant’s appeal in relation to this contention should be upheld.

Should condition C.1(e) be deleted?

41. The Applicant’s appeal that condition C.1(e) be deleted was the subject of further expert testimony from Ms Ward and Mr Ukalovic. This contention had also been the subject of evidence provided within the joint report prepared by Ms Ward and Mr Ukalovic.

42. In the joint report, the expert witnesses had agreed that:

1. the privacy screen required under condition C.1(e) did ensure visual privacy for occupants of the Subject Site and their neighbours;

2. while the privacy screen may obscure oblique views to the south of the neighbouring dwelling, it would not give rise to any significant adverse amenity impacts on the occupants of the Subject Site nor on neighbours in the adjoining property; and

3. the privacy screen would result in an improved privacy outcome for the occupants of the Subject Site and neighbours in the adjoining property;

43. The joint report of the experts had included a photograph that the experts said demonstrated that the 1.5 m high privacy screen required under condition C.1(e) is unlikely to result in any adverse view loss impact, and is therefore acceptable.

44. The experts had concluded in their joint report that the contention had been resolved between them.

45. In response to questions during the hearing, Ms Ward and Mr Ukalovic confirmed the conclusions of their joint report, and further confirmed that, in their view, the privacy screen required under condition C.1(e) would have no significant amenity impact on either the neighbour or on the occupants of the Subject Site following construction of the proposed development.

46. Having considered the evidence of the witnesses, and having viewed the proposed position and dimensions of the proposed privacy screen on the Subject Site, I accept the conclusions of Ms Ward and Mr Ukalovic in the joint report that the privacy screen would have no significant impact on the views enjoyed by the neighbours from the balcony of the adjoining property, or by the Applicant from either the proposed balcony, or from inside, of the proposed development.

47. I have concluded that the Applicant’s appeal to delete condition C.1(e) should be dismissed.

Conclusion

48. Based on the above, I have concluded that the Applicant’s appeal to modify the conditions of development consent issued by the Respondent in relation to DA4564/2017, should be upheld as follows:

1. the conditions of development consent are modified to require that the Applicant implement the amended landscape plan for which leave was granted in this appeal;

2. condition C.1(a), requiring the Applicant to setback the front building line of the proposed development from the front, western, boundary of the Subject Site to provide a 4.9m setback, is deleted;

3. condition C.1(b), requiring that the design of the Applicant’s proposed garage shall be of a maximum width of 6m, and requiring the extension of the small garden area adjoining this structure to a point at which the parking structure meets the proposed master bedroom, is deleted;

4. condition H2, requiring that a works-as-executed landscape plan, certified by a qualified landscape architect/designer, horticulturist, and/or arborist as applicable, must be provided to the Principal Certifying Authority (PCA), is modified through deletion of the words ‘from a qualified landscape architect/designer, horticulturist, and/or arborist, as applicable’

49. I also conclude that the Applicant’s appeal to delete the following conditions should be dismissed:

1. condition C.1(d), requiring that the Applicant redesign a window in the proposed development, designated as W15, such that that window includes a translucent glaze to a height of 1.5m above floor level and that it be fitted with a winder mechanism to control the maximum angle of the opening to limit views to a property adjoining the Subject Site. The Applicant seeks that the number ‘1.5’ in that condition be replaced with the number ‘1.14’.

2. condition C.1(e), requiring that a 1.5m high privacy screen, to a minimum width of 1.4m, be installed along the northern elevation of the proposed first floor balcony facing the street.

Directions

50. The Court directs that:

1. The Respondent is to file, by 4pm on Friday 6 July 2018, modified, conditions of development consent, agreed with the Applicant, for DA4564/2017 and reflecting the findings in this judgment at [48] and [49];

2. The matter is listed for mention at Court at 4:15pm on Friday 6 July 2018;

3. If direction (1) above is complied with, final orders will be made in chambers and the mention on 6 July 2018 will be vacated;

4. Liberty to restore on 2 days’ notice.

Addendum made on 9 May 2017

51. I had previously directed that the Parties prepare, and file with the Court, final conditions of consent based on conclusions of the judgment at [48] and [49].

52. Those final conditions of consent having been filed with the Court as directed, and I now make the following orders.

Orders

53. The orders of the Court are:

1. The Applicant is granted leave to rely on an amended landscape plan;

2. The appeal is upheld;

3. Development application DA4564/2017 for alterations and additions to a dwelling house located at Lot B in DP 439823 in Vaucluse is approved, subject to the modified conditions of consent provided at Annexure ‘A’.

4. The exhibits are returned with the exception of Exhibits A and 2.

………………………….

Michael Chilcott, Commissioner

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Decision last updated: 10 August 2018