Alecris Pty Limited v Sutherland Shire Council
[2004] NSWLEC 27
•01/13/2004
Land and Environment Court
of New South Wales
CITATION: Alecris Pty Limited v Sutherland Shire Council [2004] NSWLEC 27 PARTIES: APPLICATION
RESPONDENT
Alecris Pty Limited
Sutherland Shire CouncilFILE NUMBER(S): 11134 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- s.96 Application to amend an existing consent for a multi level house
LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 (SSLEP 2000),
Bundeena-Mainanbar Development Control Plan (the DCP)CASES CITED: DATES OF HEARING: 12 and 13 January 2004 EX TEMPORE
JUDGMENT DATE :01/13/2004 LEGAL REPRESENTATIVES:
APPLICANT
Ms M-L Taylor
of Taylor KelsoRESPONDENT
Mr R Wilcher
of Baker & McKenzie
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11134 of 2003
Hoffman C
13 January 2004
Alecris Pty Ltd
Applicant
v
Sutherland Shire Council
Respondent
Judgment
1. This was a class 1 appeal No. 11134 of 2003 between Alecris Pty Ltd and Sutherland Shire Council in regard to the refusal of a s.96 application to amend an existing consent for a multi level house at No. 19 The Lambeth Walk, Bundeena.
2. The consent was approved by council on 21 December 1999. The approved plans were before the Court in Exhibit D. There were several s.96 amendments to those plans since that time. Of some relevance is a s.96 amendment approved by council on 15 January 2003. The plans for it were in exhibit E.
3. The site was 382.9 m2 in area with 15.2 m frontage to the street. It ran downhill from there to absolute water frontage on Wongah Bay. There was a cliff part way down.
4. The house had commenced construction by earth works and 3 walls. The original house had a 2 storey section above the cliff containing garage/entry/bedrooms and family room with a terrace at the cliff edge and an enclosed set of stairs descending to another split level section stepping down the slope. On the upper level of the split was the kitchen/dining and a bedroom. On the lower level of the split was the living room a cantilevered balcony and another bedroom.
5. There was a large roof top deck on top of the living room. The deck was a half level up from the kitchen/dining level.
6. The 2003 s.96 amendment did not change the building envelope, but made a few internal changes. The most noticeable change was that the kitchen and dining was relocated to the lower split level to be with the living room and the upper split level became only bedrooms and bathrooms and the access to the roof deck. The planter box on the deck was reduced in size giving more room on the deck.
7. This work on the site commenced and a large floater rock was discovered under this split level section. Engineers recommended the rock be excavated to provide safe foundation. This was done. Instead of backfilling the hole, the applicant got the idea for the current s.96 application. That was to use the hole to build a larger living/dining/kitchen and balcony area below the bedrooms, and, because the living area could be lowered into the excavation, it would not result in raising the height of the bedrooms on the upper level. And, it had the benefit of lowering the roof deck down to the same level as the bedrooms.
8. The applicant also extended a flight of external steps from the terrace above the cliff down into the excavation to provide a path along the west side of the living room to a new flight of steps down to an existing path on the site that led down to the water.
9. Work on the building ceased while this application went to council. Neighbours became concerned about the hole and it’s possible collapse affecting their houses. The council approved an interim retaining wall to shore up the sides of the hole. This was built at the same time of the hearing and the applicant wanted to incorporate it into the subject s.96 application even through it did not exactly fit the subject plans. This was allowed without objection from the respondent and revised plans were substituted in exhibit C.
10. The Court enquired about objectors to the proposal and a single letter of objection from the neighbours on the west side was tendered. They were a Mr & Mrs Tagg. Mrs Tagg attended the hearing on the 1st day and Mr Tagg on the 2nd day. The Court heard the respondent evidence from:
- Mr Tagg of No. 21 Lambeth Walk.
- Mr G. Hand - town planner.
11. The applicant’s evidence was heard for Mr N. Ingham - consultant town planner.
12. The issues were:
2. Whether the development proposal, as proposed to be modified, complies with the building design and floor space ratio requirements of Sutherland Shire Local Environmental Plan 2000 (SSLEP 2000), Draft Sutherland Shire Local Environmental Plan 2004 (Draft SSLEP 2004) and the Bundeena-Mainanbar Development Control Plan (the DCP). In this regard the Respondent relies upon:1. Whether the development to which the consent, as proposed to be modified, is substantially the same development as the development for which the consent was originally granted.
(a) SSLEP 2000
3. Whether the development proposal, as proposed to be modified, complies with the landscaped area requirements of SSLEP 2000, and the DCP. In regard the Respondent relies upon:(b) Draft SSLEP 2004
(i) Clause 2(e) and (i);
(ii) Clause 35(1)(a)-(b);
(iii) Clause 35(2);(c) The DCP
(i) Clause 8.1.2(e)
(ii) Clause 8.5(3);
(iii) Clause 26.1 objectives (a), (b) and (c);
(iv) Clause clause 2.a.1 objectives;
(v) Clause (a), (c), (e) and (f);
(vi) Clause clause 2.a.2 controls (1), (2) and (3);
(vii) Clause 2.a.3.
(i) Section 10-05 (Building Form);
(i) Clause 33 - objectives for 2(e2) zone;
(ii) Clause 36(1) and (2);
4. Whether the development proposal, as proposed to be modified, complies with the requirements of clause 20 of SSLEP 2000 and clause 10.2 of Draft SSLEP 2004 with respect to the Forshore Building Line.
13. Issue 5 in respect of acid sulphate soils was not pressed.
14. In regard to Issue 1 Mr Hand had listed a number of detailed changes to the plans which he said made it substantially not the same development.
15. The respondent said the task of the Court under the statutes was to compare the proposal with the original consent, not the 2003 s.96 amendment.
16. The evidence on that could be summarised as: The external envelope of the building did not change substantially. The two changes were the lowering of the roof deck that reduced visual bulk, and the excavation and extension of the living/dining/kitchen area into the hole. The cantilevered balcony of the original proposal was to be supported by a single corner post on the north west corner of the building extended down to ground level, and the dining room on the north east corner of the building was to be supported on foundation walls instead of cantilevered.
17. Internally the section of the house below the cliff changed from the original split level design to be 2 storey and 1 storey and the room layout changed as previously described.
18. From the street the house would appear the same as the original. From the water, it would look almost the same, and it would take a person conversant wit the change in plans to tell the difference.
19. Mr Tagg’s main objection was that the house exceeded the Floor Space Ratio (FSR) that he thought was 0:4:1. The statute set 0:45:1 and the proposal was 0.516:1 according to Mr Ingham. The Court accepts his calculation based on his interpretation of the ground floor area definition in the Sutherland Shire LEP 2000. The void area above the entry lobby was not floor space, and the stair flight to the upper floor should only be counted as floor area once, not twice as Mr Hand had done.
20. Mr Tagg though the building was just too big and that it would effect his views, create shadows on his property and would effect his privacy. These impact’s appeared to be related to the original consent by council as he agreed that the extension of the external steps from the terrace down into the execration on the western side would take people down out of his line of sight, and the extension of the house into execration would not effect him. Also the lowering of the roof deck would reduce visual bulk and any obstruction of views and overshadowing to less than the original consent by council even if only to a minor extent.
21. Mr Ingham had proposed a SEPP No. 1 objection to the FSR and both he and Mr Hand agreed the objective of the FSR was to control bulk. The effective bulk of the proposal was to be reduced in this application even if only marginally.
22. The Court supports the SEPP 1 objection in the circumstances of this case. And the Court concludes given that consideration and the other changes to the plans, that the proposal is substantially the same as the original house approved by council.
23. A further consideration was the statutory landscaped area which, is the zone 2(e2) at Bundeena in the Foreshore Scenic Protection Area (FSPA) required 60% of the site area. The Court was reminded that the original consent being 1999 was prior to the current standard adopted in LEP 2000. Also the council had approved the original plans and implicitly the landscaped area provided by them.
24. The landscaped area whatever it was in the original consent was said by the respondent to be reduced by the area of the access pathway now proposed down the west side of the house, and the now suspended stair at the north western corner of the building down to the path to the water, and for that matter by rain water tanks to be erected in the side setbacks.
25. During the hearing the new stair at the north western corner was amended without objection by the respondent to be open riser lightweight stair construction instead of concrete, and to be suspended. It would be above ground between the top of the small drop below the living room balcony and the path to the water. Mr Hand agreed it was an acceptable structure though it was partly in the FSPA, but it would enable vegetation to grow below it.
26. The rain water tanks were exempt development in the Sutherland Shire and could be erected at any time without consent in the interests of conservation of water resources. That left the path on the north side of the living room as the only reduction of landscaped area.
27. It was 1 m wide in the 1.5 m side setback that would leave 0.5 m adjoining Mr Taggs boundary in which vegetation could grow. A screen hedge of appropriate species could be placed in that location to soften and hide the excavation area of the house from Mr Taggs, and the public view from the water. It would also further benefit Mr Taggs privacy. He agreed it would be improved by the side path being down in the excavation rather than at natural ground level.
28. The applicant pointed out that in the original consent steps were shown going down from the terrace into the side setback although no path was shown, but it would have been an obvious presumption to anyone assessing the plans, and had not been raised in either the original plans report in exhibit K or the 2003 s.96 officer report in exhibit L. Both had approved the plans.
29. Overall the Court has concluded there was nothing sufficient for refusal and that the appeal should be upheld.
30. The Orders of the Court are:
1. The appeal is upheld.
2. The s.96 application to amend development consent No.IDA 000826 issued on 21 December 1999 and as modified by council on 24 February 2000 in application No. MA02/0218 is further modified in regard to the conditions of consent and approved plans for a house at No. 19 Lambeth Walk, Bundeena.
3. Condition 2 be amended by the deletion of the words "Sheets 1-4 dated 1 October 2002" and the insertion in lieu of the following: "Sheets 1 to 5 dated 23 June 2003 with annotations as noted in Exhibit C of the modification approval dated 13 January 2004, inter alia, to delete the BBQ to the roof deck terrace above the living room, and the new suspended stair at the north-west corner of the building to be light weight open riser construction, and sheets 4 and 5 as updated to 12 January 2003". Condition 35 is modified by the insertion, between the words “areas” and “shall” of the following: "and the area between the boundary with No. 21 Lambeth Walk and the retaining wall to the side path adjacent the living room".
4. The exhibits are returned to the parties except Exhibits 1, 2 and C.
_____________________
K G Hoffman
Commissioner of the Court
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