Bernstein v Waverley Council

[2011] NSWLEC 1316

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bernstein v Waverley Council [2011] NSWLEC 1316

Hearing dates:

13 September 2011

Decision date:

13 September 2011

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

CONSENT ORDERS

(1)The appeal is upheld.

(2)The modification application DA/305/2010-A is approved for an increase to the basement footprint to provide for storage areas, laundry and rainwater tank or storage room. And the construction of an additional bedroom in the void areas on the first floor area of each of the four occupancies on the side at 7- 9 Hunter Street, Dover Heights, subject to the conditions of consent within annexure A hereto.

(3)Each party to pay its own costs of the proceedings.

(4)The exhibits may be returned except 3, A, C and E.

Catchwords:

Development modification; Dual occupancy development, FSR, compatible with character of area, public interest.

Legislation Cited:

Waverley Development Control Plan 2010
Waverley Local Environmental Plan 1996

Cases Cited:

Edgar Allan Planning Pty Ltd v Woollahra NSWLEC 758
Goldin & Anor v Minister for Transport NSWLEC 75
Shulkin v Waverley Council [2009] NSWLEC 1290

Category:

Principal judgment

Parties:

Rosemary Bernstein (Applicant)

Waverley Council (Respondent)

Representation:

Ms S Hill (Applicant)

Ms C Morton (Respondent)
Susan Hill and Associates (Applicant)

Sparke Helmore (Respondent)

File Number(s):

10647 of 2011

Judgment

1. This appeal was lodged against council's refusal of a s 96 application to modify a development consent granted for the construction of four dual occupancy dwellings of 7-9 Hunter Street, Dover Heights.

1. The conditions of consent required the proposal to be amended by way of, firstly, a reduction of 20 % of the floor space in each house to the satisfaction of the Director of Planning & Environmental Services. Secondly, the deletion of a masonry column on the north-west corner of the entry landing and steps, with such works to be submitted and incorporated with the construction certificate.

1. But there was no specification as to where the 20 % reduction was to be obtained. Consequently the applicant proposed that the new fourth bedroom in each unit become a void space, but still contained within the approved external building envelope. This was apparently considered acceptable.

1. Having reviewed the proposal the applicant then sought to further amend or modify the application by:

• increasing the basement footprint to provide for storage areas, laundry, rainwater tanks/storage room. This would result in an increase of the basement area of about 33.8 sq m. The alignment of this modification is to follow the external area of the first floor and results in the additional basement area being completely underground.
• infilling the void area to create an additional bedroom. Again, within the approved building envelope.

1. In initially refusing the modification application council identified the following contentions:

• the approval would be contrary to the DCP provisions at 5.2 which provides for a maximum FSR of .5:1.
• the proposal is contrary to the provisions of 5.1.1 of the DCP, which requires dwelling houses to be compatible with the character of the location and includes compliance with excavation guidelines and setbacks.
• public interest considerations.

1. However, after further review of the s 96 application the parties now agree to consent orders. The relevant controls in this case involve Waverley Local Environmental Plan 1996 under which the proposal is permissible with consent. And secondly the Waverley Development Control Plan 2010 particularly pt D1; Dwelling House & Dual Occupancies.

The Evidence

1. In considering this modification application I note initially that I am satisfied it relates to substantially the same development. Secondly, the application was notified to objectors, who have had their opportunity of expressing their objections to the proposal to the Court. Thirdly, the merits of the application have been assessed by council planning officers resulting initially in the IHAP recommendation for approval. Then the DCP report of 15 June 2011 also recommended approval, but it was subsequently refused by council.

1. The applicant's town planner, Mr Warren Long, also assessed the modification application resulting in his support for it. According to Mr Long the amended application wouldresult in each of the proposed new dwellings having an increased FSR of 0.81:1 as compared to the approved FSR of 0.64:2 relative to the DCP 2010 control and the maximum FSR of 0.5:1." But he says that:

The additional floor area includes approximately 35 square metres in the basement at the back of the garage is under the ground floor for the laundry storage, plant room for each dwelling and an additional 15 square metres to the first floor each of the dwellings which is proposed for the infill of the void.

1. By reference then to the following controls in s 5.2, dealing with size and bulk the objectives are:

(a)   ensure buildings and alterations and additions to existing dwellings are acceptable size and bulk in relation to the size and shape of the allotment.

(b)   ensure there's no overdevelopment of sites and any negative impacts on residents living in buildings on adjoining nearby allotments are minimised and wherever possible eliminated; and

(c)   ensure that the development adds to and does not detract from the existing streetscape and character of the area; and

(d)   ensure that the bulk of the dwellings is in character with surrounding development."

1. Mr Long considers that:

The modified proposal will be consistent with the above objectives. The houses will be a similar height and size to the dwelling house in the locality. Bearing in mind the potential of the two adjoining houses to add another level, a first floor, they will have a similar front, rear and side setbacks to the prevailing setback in the street and will be consistent with the front and rear setbacks of the house on either side.

There will be no adverse impacts arising from the modified proposal because the additional gross floor area will not alter the height or overall shape or visible size and bulk of the approved houses because of a substantial portion of the additional floor area is located behind the garages in a basement level under the building. Their appearance in the streetscape will also not change.

1. Furthermore he says that:

The modified proposal and additional floor area would not involve any physical impacts on the amenity of the adjoining and adjacent properties or the locality. The modified proposal will maintain privacy, satellite access and views of the adjoining properties.

1. With regard to the additional excavation reference is made to the provisions of cl 5.1.1 of the DCP that provides for excavation not to exceed 3m in depth and 50 % of the building footprint, including a garage and also that the excavation should not occur within a 1m setback from side boundaries.

1. In this regard I understand there is a minor non-compliance with the side setback because of the current consent for the side setback allows for a 950 mm setback. However, it appears that the underlining objectives of the excavation control of the DCP are to encourage; good quality internal amenity to minimise the impact on the amenity of the adjoining properties as well as to minimise alterations to the existing and natural topography of a site.

1. According to Mr Long, the depth of excavation varies from 1m to approximately 3m at the back of the equipment/storage rooms and therefore complies with the maximum depth control of the DCP. The excavation for the garages and laundry and storage room will be 950mm from the side boundary and whilst this is less than 1m it is the same as the approved 950mm wall setback, which is greater than the minimum 900mm said setback control for two-storey developments.

1. He says that in any case the approved first storey section would require some excavation for footings along the side boundary alignment as approved. Consequently, he tabulated the building footprints for each dwelling with the basement of percentage of the building footprint finding that it varies from 54.9 % to 56.7 %. He concludes that:

The proposed excavation will be consistent with the underlining objectives of the excavation control in the DCP, because it will achieve adequate amenity to the rooms considering their function use.

It will not impact upon the amenity of the adjoining properties and will not involve any visual change to the topography of the site.

The Objections

1. There were a number of detailed objections against the application which can be summarised as; excessive FSR, it is not in character with the street, it will lead to increase population density, it will cause adverse amenity for traffic and parking, and valuation impacts, which I consider were speculative because there was no evidence in that regard.

Conclusions

1. My conclusion is that having considered the evidence and the objections, the submissions and having taken a view it is apparent to me there is no substantive evidence which could result in the overturning of the consent orders. Whilst the objectors do not like this form of dual occupancy development nevertheless it is a permitted form of development in this area. Accordingly, such development should demonstrate reasonable compliance with the relevant controls, including those in the DCP.

1. Insofar as there is a significant increase in the FSR; I think it is important in the circumstances of this case that all the additional space now sought is within the approved building footprint. The bulk of which is the basement and below ground.

1. In this regard the Court was referred to other cases where similar variations have occurred, namely, Edgar Allan Planning Pty Ltd v Woollahra NSWLEC 758 where Commissioner Watts dealt with an exceedence in the FSR of around 80 square metres at para 30 to 34 and wherein he concluded in para 34 that:

Having considered all the evidence contained in the specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and the need for dilapidation reports, I would not decline to grant consent to the present application despite the breach of the FSR control under the RDCP. Those areas of the proposal in breach of the FSR do not add to the visible bulk.

1. I accept that a similar situation exists in the current matter before this Court. Reference was also made to the matter of Shulkin v Waverley Council [2009] NSWLEC 1290 where Commissioner Dixon dealt with variations to FSR. And at para 35 she said that:

While the proposed modifications will increase the numerical non compliance with the FSR control in the DCP Mr Moody submitted the increase was numerical only and did not adversely impact on the size scale or bulk of the development as the increased area is below ground level. The landscape area is not interfered with and Mr Moody is of the opinion that the development is significantly below the council height control and therefore not perceived as an overdevelopment of the site.

1. That finding was consistent with the decision of Edgar Allan v Woollahra. At cl 42 Commissioner Dixon said:

I appreciate that there will be a greater departure from the DCP controls particularly with respect to FSR but in the particular circumstances of this application do not think it is unreasonable to approve the application which is supported by both the council and the resident objectors whose properties adjoin the site.

1. Insofar as there is again similarity to the subject application I note that the neighbours object to the modification application. However, the neighbours were particularly asked to identify any adverse impacts arising from the approved development. They identified possible overlooking and privacy loss, but this was assessed on the site and in particular by Mr Long who did not consider such impacts of significance to warrant refusal. I agree with that assessment.

1. There were no adverse impacts identified arising as a result of the increase excavation from the basement. Consequently I consider that whilst the infill additional bedrooms will potentially increase the density of the area, there was no compelling evidence from the residents to demonstrate that the occupancy of four additional bedrooms would be detrimental to the area.

1. Likewise concerns were expressed regarding additional traffic generation and a possible safety impacts in the street. But the DCP only requires two off-street parking spaces for each three bedroom plus dwelling and the proposal complies with this. That is extra off-street parking is not required in respect of the additional bedrooms. When questioned on the road capacity and possible impacts for parking and convenience and safety Mr Long said that the amendment would not result in any reduction in the environmental amenity/capacity of Hunter Street. I rely on his opinion and traffic/parking was not identified as an issue by council.

1. In terms of the concerns about precedence; there is a line of authority in Goldin & Anor v Minister for Transport NSWLEC 75 where Justice Lloyd referred to a number of other cases, which in summary, concerned precedence whereby if there is a line of other similar applications waiting for this particular decision then more weight could be given to precedence. However, that is not the case in the subject matter because there are no other similar applications relying on this one for precedence, so I give that little weight.

1. In the ultimate; I am satisfied that the s 96 modification merits conditional consent. It has been subject to the detailed planning assessment, as contained in the various reports in exhibit 1, resulting in support initially from the IHAP, then the Building & Development Unit in June 2011 who supported the application and made the comment in terms of FSR at folio 80 that:

Whilst the proposal will result in a numerical non-compliance with the maximum FSR the additional floor space is contained below ground in the basement garage and within the approved void area at upper floor area and will not result in an adverse impact upon the height, bulk or scale of the building.

1. I particularly note that they did not consider the proposal will adversely impact upon the amenity of the neighbouring properties.

1. Finally, Mr Long has reviewed the merits of the proposal and the objections resulting in his opinion that the approval should be granted. I am satisfied to rely on this evidence that the incremental change arising from this s 96 modification is acceptable for approval. Therefore, the consent orders are granted.

Court orders

1. The Court orders by consent:

(1)   The appeal is upheld.

(2)   The modification application DA/305/2010-A is approved for an increase to the basement footprint to provide for storage areas, laundry and rainwater tank or storage room. And the construction of an additional bedroom in the void areas on the first floor area of each of the four occupancies on the side at 7-9 Hunter Street, Dover Heights, subject to the conditions of consent within annexure A hereto.

(3)   Each party to pay its own costs of the proceedings.

(4)   The exhibits may be returned except 3, A, C and E.

R Hussey

Commissioner of the Court

Decision last updated: 04 November 2011