Bilotta v Inner West Council

[2022] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bilotta v Inner West Council [2022] NSWLEC 1058

Hearing dates:

14-15 December 2021

Date of orders:

9 February 2022

Decision date:

09 February 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

In the 2021/156562 appeal:

The orders of the Court are:

(1) The appeal is dismissed.
(2) Modification Application No. MOD/2020/0231 to raise the height of the lift shaft, at 93 Louisa Road, Birchgrove, is refused.

In the 2021/276619 appeal:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Modification Application No. MOD/2021/0320 for internal and external changes to the approved development, at 93 Louisa Road, Birchgrove, is refused.
(3) The exhibits, other than Exhibits 1, 2, 20, 21, 25, A, B and E, are returned.

Catchwords:

MODIFICATION APPLICATIONS – approved new dwelling under construction – raise the height of the lift shaft, reduce the eastern side setback of the dwelling and other internal and external changes – building height, bulk and scale – impact on the heritage significance of heritage conservation area – whether the Court can exercise the alternative power under s 4.55(2) of the EPA Act for an application made under s 4.55(1A) where there is more than minimal environmental impact

Legislation Cited:

Environmental Planning and Assessment Act 1979
ss 4.55, 8.9, 109F

Environmental Planning and Assessment Regulation 2000

Environmental Planning and Assessment (Savings, transitional and Other Provisions) Regulation 2017
cl 18A

Land and Environment Court Act 1979 s 34AA

Leichhardt Local Environmental Plan 2013 cll 2.3, 5.10

Cases Cited:

Bilotta v Inner West Council [2021] NSWLEC 129

Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38

Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204

Texts Cited:

Leichhardt Development Control Plan 2013

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

Category:

Principal judgment

Parties:

Frank Bilotta (Applicant)
Inner West Council (First Respondent)
Dr Joseph Macri (Second Respondent)
Dr Henry Cheung (Third Respondent)

Representation:

Counsel:
L. Nurpuri (Applicant)
J Fan (Solicitor) (First Respondent)
A Gadiel (Solicitor) (Second and Third Respondents)

Solicitors:
McKees Legal Solutions (Applicant)
Lindsay Taylor Lawyers (First Respondent)
Mills Oakley (Second and Third Respondents)

File Number(s):

2021/156562
2021/276619

Publication restriction:

No

Judgment

1. COMMISSIONER: The Inner West Planning Panel granted deferred commencement development consent (D/2018/25) on 12 June 2018 for the demolition of an existing timber cottage and construction of a new five storey dwelling house including a roof terrace and a car lift, at 93 Louisa Road, Birchgrove (the site). The development consent became operational on 4 December 2018. The development consent was modified by the Inner West Planning Panel on 8 October 2019 (the approved development). The new dwelling is nearing completion.

2. These are two appeals pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of two modification applications; the refusal of Modification Application No. MOD/2020/0231 to increase the height of the lift shaft, which has been constructed at the increased height (lift overrun appeal), and the deemed refusal of Modification Application No. MOD/2021/0320 for a number of internal and external works to alter the approved dwelling, some of which have been constructed (general modification appeal), at the site, by Inner West Council (the Council). The two appeals were heard together.

3. On 16 November 2021, two objectors were joined to the proceedings (Bilotta v Inner West Council [2021] NSWLEC 129). Each intervenor owns and occupies a property adjoining the site.

4. On the 26 November 2021, the Court granted the applicant leave to amend the application the subject of the general modification appeal to change the provision under which the application is made, from ss 4.55(1A) of the EPA Act to s 4.55(2) of the EPA Act. The other application, the subject of the lift overrun appeal, is made pursuant to s 4.55(1A) of the EPA Act.

5. The appeals were subject to conciliation on 14 December 2021 pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation, the conciliation conference was terminated on 14 December 2021 and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

Issues

6. The Council’s contentions in the lift overrun appeal can be summarised as:

• The proposal would have unacceptable height, bulk and scale in the context of the locality.

• The proposal would have an unacceptable impact on the heritage values of the heritage conservation area.

• The proposal would have an unacceptable streetscape character and inconsistency with desired future character.

7. The Council’s contentions in the general modification appeal can be summarised:

• The proposal does not ensure that the visual privacy between the development and the adjoining dwelling/s is maintained.

• The proposal would have an unacceptable impact on the heritage values of the heritage conservation area.

8. The Council submitted that the general modification appeal was capable of approval, subject to conditions of consent.

9. The intervenors’ contentions in the lift overrun appeal can be summarised as:

• The proposal is not of minimal environmental impact as required by s 4.55(1A) of the EPA Act under which the application is made.

• The proposal is not substantially the same as the development for which the consent was originally granted as required by s 4.55(1A) of the EPA Act.

• The significant contravention of the floor space ratio (FSR) development standard was only permitted for the development for which the consent was originally granted because the development was not considered to result in any significant adverse amenity impacts to the surrounding properties. The proposal no longer minimises the impact of the bulk and scale of the building and this would result in amenity impacts on adjoining development and a development that is no longer compatible with the desired future character of the area in relation to building bulk, scale and form.

• The application must be refused as the proposal seeks to authorise development that has already been carried out and a development consent can never retrospectively approve the carrying out of the development.

• The proposal seeks to authorise work that has already been carried out and a construction certificate cannot be issued for such work under
  s 109F(1A) of the EPA Act as continued by cl 18A of the Environmental Planning and Assessment (Savings, transitional and Other Provisions) Regulation 2017.

10. The intervenors’ contentions in the general modification appeal can be summarised as:

• The proposal is not substantially the same as the development for which the consent was originally granted.

• The significant contravention of the FSR development standard was only permitted for the development for which the consent was originally granted because the development was not considered to result in any significant adverse amenity impacts to the surrounding properties. The proposal no longer minimises the impact of the bulk and scale of the building and this would result in amenity impacts on adjoining development, and a development that is no longer compatible with the desired future character of the area in relation to building bulk, scale and form.

• The application must be refused as the proposal seeks to authorise development that has already been carried out and a development consent can never retrospectively approve the carrying out of the development.

• The proposal seeks to authorise work that has already been carried out and a construction certificate cannot be issued for such work under
  s 109F(1A) of the EPA Act as continued by cl 18A of the Environmental Planning and Assessment (Savings, transitional and Other Provisions) Regulation 2017.

• The proposal does not adequately manage the visual privacy impacts between the site and 95 Louisa Road, Birchgrove and this issue is not capable of being resolved by a condition.

• The proposed setback to 95 Louisa Road, Birchgrove is reduced and that reduction creates an unreasonable sense of enclosure and does not facilitate an appropriate separation between the buildings.

• The existing built form of the dwelling does not align with the built form that is proposed to be approved and no proposal for demolition and remediation has been made.

• The proposed dwarf wall with glass balustrade on the roof terrace would have an unacceptable impact on the harbour views from the roof terrace of 91 Louisa Road, Birchgrove.

• The large wood pizza oven on the basement level has been constructed without approval and its retention would have unacceptable impacts in terms of built form mass, smoke, fire safety and intensity of use.

The site and its context

11. The site is on the southern side of Louisa Road, with a 12.195m frontage to Louisa Road and a 12.17m frontage to Snails Bay. The site has an area of 417.2m². The approved dwelling is two storeys when viewed from Louisa Road and is five storeys when viewed from Snails Bay.

12. 91 Louisa Road is to the west of the site. The dwelling at 91 Louisa Road is two storeys when viewed from Louisa Road.

13. 95 Louisa Road is to the east of the site and shares the northern half of the site’s eastern boundary. The dwelling at 95 Louisa Road is two storeys when viewed from Louisa Road.

14. The site can be viewed from Birchgrove Oval, to the south-west and from Snails Bay.

The proposal

15. The lift overrun appeal proposal is to increase the height of the lift overrun above the roof ridge. The reduced level (RL) of the top of the lift overrun was not denoted on the stamped plans that form part of the development consent, however, the lift overrun was drawn, in the southern elevation (but not shown on the eastern elevation), as being below the roof ridge which is at RL 18.82 (Ex 24, tab 3). As the lift overrun was below the roof ridge of the gable, only a portion of the top of the lift overrun projected beyond the western side of the gable, the rest of the overrun was concealed within the volume of the roof. The lift overrun has been constructed to a height of RL 19.29 and because the lift overrun projects above the roof ridge, the whole of the lift overrun penetrates the gabled roof.

16. The general modification appeal proposal is for the following works (Ex E):

• Extend the basement and ground level carparks which are curved in the north-eastern corner to the boundaries of the site;

• Replace two windows in the basement bathroom within the western façade with a single window;

• Delete the fireplace in the basement rumpus room, insert a lift service box and sauna in the rumpus room;

• Enclose the basement level terrace with a 1000mm high wall on the western side, and a privacy wall on the eastern side;

• Add a glazed corner window in the south-eastern corner of the lounge room identified as W06 on the upper ground floor, and delete two windows in the eastern elevation of the lounge room;

• Delete two windows in the western elevation of the kitchen on the upper ground floor and widen the door opening to the terrace, and enlarge the external columns on the terrace;

• Move the eastern wall of Bedroom 1 on the first floor closer to the eastern boundary;

• Extend the slab in the south-eastern corner outside Bedroom 1;

• Change the doors from Bedroom 1 to the terrace in the southern elevation to sliding glass doors;

• Change doors from a bathroom in the southern elevation of the first floor to a window;

• Internal walls reconfigured on the first floor;

• Move the eastern wall of the roof terrace (over Bedroom 1) closer to the eastern boundary;

• Introduce rendered and painted walls 540mm high (unspecified as to whether the height of the walls is measured from the Finished Floor Level (FFL) of the roof terrace) on the eastern and western side of the roof terrace;

• Internal walls reconfigured on the roof terrace level;

• Hipped roof changed to a gabled roof and metal deck flat roof changed to a glass roof.

17. A site view was held on 14 December 2021 in the company of the parties and the experts.

Planning framework

18. The site is zoned R1 General Residential under the Leichhardt Local Environmental Plan 2013 (LEP 2013) and dwelling houses are a nominate use in the zone. Regard must be had to the objectives of the zone, at cl 2.3(2) of LEP 2013. The relevant objective of the zone is:

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

19. The consent authority is to consider the effect of the proposal on the heritage significance of the area, at cl 5.10(4) of LEP 2013, because the site is located within the Birchgrove and Ballast Point Road Heritage Conservation Area (Birchgrove HCA) (Pt 2, Sch 5 to LEP 2013).

20. The Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (DCP 2005) applies to the proposal at 1.1 because the site is identified on the Foreshores and Waterways Area map. Built form, at 5.4 of DCP 2005, includes the following:

“Buildings and other structures should generally be of a sympathetic design to their surroundings; well designed contrasts will be considered where they enhance the scene. Many councils have development controls governing built form and the heights of buildings. The following guidelines are designed to reinforce the local requirements:

…

• while no shapes are intrinsically unacceptable, rectangular boxy shapes with flat or skillion roofs usually do not harmonise with their surroundings. It is preferable to break up facades and roof lines into smaller elements and to use pitched roofs;”

21. The Leichhardt Development Control Plan 2013 (DCP 2013) applies to the site at Part A, Section A1.3. Part C – Place, Section 1, C1.0 General Provisions, includes the following relevant objective at O6:

“Compatible: places and spaces contain or respond to the essential elements that make up the character of the surrounding area and the desired future character. Building heights, setbacks, landscaping and architectural style respond to the desired future character. Development within Heritage Conservation Areas or to Heritage Items must be responsive to the heritage significance of the item and locality.

Character: the underlying natural landform, distinctive landscape elements, date and style of buildings, scale and form of buildings, street and subdivision patterns, setbacks, materials, building techniques and details, views, vistas and skylines, the solid to void relationships and orientation.

Scale: the size of a building in relation to surrounding buildings or landscape. Building design should recognise the predominant scale (height, bulk, density, grain) of the setting and then respond sympathetically. The impact of an inappropriately scaled building cannot be compensated for through landscaping, building form, design or detailing.

Form: the overall shape, volume and arrangement of its parts. Building design should be compatible with the predominant form of its neighbours. Roofline will play an important part in determining neighbourhood character. Buildings should respond to, or reinforce existing ridge or parapet lines, roof slopes and other features such as party walls and chimneys. The treatment of the building in terms of proportion, materials and number of openings need not copy that of the neighbours but should relate to it positively. Contemporary design will be considered for new development where compatible with other provisions of this part, particularly but not exclusively, the protection of heritage character throughout the municipality.”

22. Part C, Section C1.4 of the DCP 2013 Heritage Conservation Areas and Heritage Items, includes the following relevant objectives and controls:

“d. is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter (Refer to: maintains the visual unity of groups of buildings, in particular semi-detached and attached terraces;

…

i. new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter.

…

Roof forms and materials

C5 Consideration of roofing materials for additions should have regard for compatibility with the original roof, as well as for the context of the setting (such as if a dwelling is part of a group of similar dwellings).

C6 Within Heritage Conservation Areas, whole roof forms should be retained where possible and roofs of additions should be subservient to the main roof (in scale, form, location and materials). Changes to the form of the existing roof or extension of the ridge cannot be supported.

…

New Buildings

C8 New development need not seek to replicate period details of original buildings in proximity to the site, but rather, demonstrate respect for the form, scale and sitting of the immediate area.”

23. Part C, Section 2 of DCP 2013 includes suburb profiles, and Section C2.1.2 is the suburb profile for Balmain/Balmain East and Birchgrove. The suburb profile states, “…this eroded and uplifted sandstone peninsula affords views over the harbour with the dramatic backdrop of the City to the east, in addition to views of Parramatta River and surrounding suburbs. The entire area of Balmain, Balmain East and Birchgrove is a Heritage Conservation Area.”

24. The desired future character for the Birchgrove distinctive neighbourhood, at Section C2.2.2.6 of the DCP 2013, has as its objective to facilitate development that is consistent with the controls. The controls relevantly include the following:

“C1 Development should follow the topography of the area and maintain the single storey scale on the mid slopes and mixed one and two storey scales at the top and bottom of the slopes.

C2 Conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi-detached houses with a prevalence of hipped, pitched and gable roof forms. Preserve the established setbacks for each street.

…

C5 Conserve the single and double storey, freestanding form, style and materials characteristic to each street.

C6 Where a consistent pattern of architectural style and form exists, preserve this consistency on each street.

…

C8 Maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials.

…

C18 New development shall maintain the use of hipped, pitched or gabled roof forms and designs shall be complementary to the existing unadorned built form. Flat roofs may be appropriate where the style of architecture is contemporary and view lines may be affected.

…

C21 Development visible from the water is to be designed to preserve the conservation values of the area. When viewed from the water a balance between built form and landscape is to be achieved/maintained through side setbacks and landscaping. Additionally, the rear elevation must be designed so it does not detract from the form, character and scale of the conservation area. The amount of glazing to solid ratio on the rear elevation must be sympathetic to the immediately surrounding development.”

25. Part C, Section 3.2 Site Layout and Building Design of DCP 2013 includes the following relevant objectives and control:

“O2 To ensure the character of the existing dwelling and/or desired future character and established pattern of development is maintained.

…

O4 To ensure that development:

…

c. complements the siting, scale and form of adjoining development;

…

Controls

Site Compacity

C1 The site shall have sufficient capacity to accommodate development, including buildings and structures, setbacks and separation distances, access, manoeuvring and parking (where required by this Development Control Plan) and landscaped open space, having regard to site characteristics such as:

a. existing extent of development;

b. desired future character;

c. site area, road frontage, width and depth;

d. heritage streetscape;

e. significant natural landscape features including vegetation;

f. slope; and

g. flooding and drainage

Side Boundary Setbacks

…

C8 Council may allow walls higher than that required by the side boundary setback controls above, to be constructed to side boundaries where:

…

d. the potential impacts on amenity of adjoining properties, in terms of sunlight and privacy and bulk and scale, are minimised;

…

Building Height and the Building Envelope

C11 The building envelope of a building is determined by the wall height, width, depth and roof form and pitch of a building. Importantly, wall height is the key control over the building envelope, and roof form is one of the most important features that determine the overall appearance of residential buildings.”

26. Part C, Section C3.10 Views of DCP 2013 includes the following controls:

“C1 New development should be designed to promote view sharing (i.e. minimise view loss to adjoining and adjacent properties and/or the public domain while still providing opportunities for views from the development itself).

C2 Design solutions must respond graphically to the site analysis outcomes through the use of plans, elevations, photographs and photomontages to demonstrate how view sharing is to be achieved and illustrate the effect of development on views. In some cases, reasonable development may result in the loss of views, but new development must not significantly obstruct views.

C3 Development shall be designed to promote view sharing via:

a. appropriately addressing building height, bulk and massing;

b. including building setbacks and gaps between buildings;

c. minimise lengthy solid forms;

d. minimise floor to ceiling heights and use raked ceilings in hipped / gabled roof forms where appropriate, especially in upper floors;

e. splay corners; and

f. use open materials for balustrades, balconies, desks, fences, car ports and the like.”

Public submissions

27. The intervenors both gave evidence onsite. Their concerns can be summarised as:

• They want the dwelling to be constructed in accordance with the consent granted.

• The lift overrun results in visual bulk and can be seen from the roof terrace of 91 Louisa Road.

• The dwarf wall built on the roof terrace interrupts the harbour views from the roof terrace of 91 Louisa Road and there should be a glass balustrade around the roof terrace.

• A pizza oven has been constructed on the basement level and it is close to the shared boundary of 91 and 93 Louisa Road. It is of a commercial size and the intervenor is concerned about flue management and fire safety.

• Corner windows are inconsistent with the architecture of the area and privacy screens are used to maintain privacy between dwellings.

• The corner window in Bedroom 1 (W6) will impact on the privacy of 95 Louisa Road.

• The eastern façade of Bedroom 1 of the development has been built 250mm closer to the boundary than what was approved.

Expert evidence

28. The applicant relied on the expert evidence of David Furlong (planning) and Paul Rappoport (heritage).

29. The Council relied on the expert evidence of Alison Davidson (planning) and Sinclair Croft (heritage).

30. The intervenors relied on the expert planning evidence of Giovanni Cirillo.

31. The heritage experts prepared a joint report (Ex 6). The planning experts prepared a joint report for the lift overrun appeal (Ex 8) and the general modification appeal (Ex 7). Mr Cirillo prepared a report for the lift overrun appeal (Ex 22) and the general modification appeal (Ex 23). The planning experts gave oral evidence.

The existing pizza oven is not included in the application

32. The applicant submitted that approval is not sought for the large pizza oven which has been constructed on the western side of the basement rear terrace.

Consideration

Whether the Court can exercise power under s 4.55(2) of the EPA Act for an application made under s 4.55(1A) where there is more than minimal environmental impact

33. The intervenors submitted that the Court cannot exercise the alternative power under s 4.55(2) of the EPA Act for an application made under s 4.55(1A) of the EPA Act where there is more than minimal environmental impact, summarised as follows:

• Section 4.55 of the EPA Act allows for an application to be made under either sub-cll (1), (1A), or (2). The statutory scheme does not allow the same application to be made under more than one head of power.

• The Environmental Planning and Assessment Regulation 2000 (EPA Reg) provides for different public notification and consultation requirements for each of the application types.

• If a consent authority were permitted to treat an application that had been made under s 4.55(1A) of the EPA Act as if it were an application under s 4.55(2), it would render the statutory distinction between the two application types meaningless. The statutory scheme clearly intends that there be two distinct and separate paths for these two different application types.

• In Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204 at [34]-[35], the Commissioner held that the Court can exercise the power under s 4.55(2) of the EPA Act for an application made under s 4.55(1A) if on the merits it is appropriate to do so, however, the alternate source of power is only available if any pre-conditions to the exercise of that alternate source of power have been fulfilled. The Respondent in that matter did not provide any legal argument as to why this could not be done, and accordingly the decision need not be followed in circumstances where there is a not a contradictor giving the Court the benefit of argument.

• The Court has no power to agree to amend the application under cl 121B of the EPA Reg where a decision of the consent authority has been made (as it has been in the lift overrun appeal because the application was refused by the consent authority) and at the time that decision was made the power under cl 121B was not available to the consent authority.

34. The Registrar’s decision on 26 November 2021 to grant leave to the applicant to amend the general modification appeal to change the provision under which the application is made, from s 4.55(1A) of the EPA Act to s 4.55(2) of the EPA Act, was an interlocutory order in the proceedings. The intervenors have not appealed the Court’s decision on a question of law.

35. The applicant did not seek the Court’s leave to change the provision under which the application in the lift overrun appeal is made. Nor were submissions made or evidence adduced by the applicant as to whether the pre-conditions to the exercise of the alternate source of power under s 4.55(2) have been fulfilled. According to the Statement of Facts and Contentions (Ex 1), the application was notified by a letter sent to adjoining properties on 23 July 2020 (par 5.7). It is not clear from the evidence whether or not the notification of the application met the requirements for the notification of applications made under s 4.55(2). As a consequence, the issue raised by the intervenors regarding the Court’s power to change the provision under which an application is made does not arise in determining these appeals.

The lift overrun appeal

36. The lift overrun application was made under s 4.55(1A) of the EPA Act, which is in the following terms:

(1A) Modifications involving minimal environmental impact

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the proposed modification is of minimal environmental impact…

37. The application cannot be approved unless the Court is satisfied that the proposed raising of the height of the lift overrun is of minimal environmental impact.

38. The intervenors submitted that the minimal environmental impact test is a threshold legal test that must met before the application can be dealt with on its merits. The test as to whether the proposed modification is of minimal environmental impact requires a comparative assessment of the environmental impacts of the development as approved by the development consent, and the development as proposed to be modified.

39. “The comparative assessment required by s 4.55(1A)(a) is not to be done in a “sterile vacuum” by comparing the bare terms of the consent as originally granted and the consent as modified, but rather is to involve an appreciation, qualitative as well as quantitative, of the developments and the environmental impacts of those developments” (Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 at [57]).

40. There was no change made to the form or location of the lift overrun as approved by the original development consent in the modification of the development consent granted on 8 October 2019 (Ex 24, tab 3).

41. The planning experts agreed that the increase in the height of the lift overrun between the consent as originally granted and the proposal is greater than 470mm, because the approved lift overrun was positioned below the ridge of the roof and the increase in the height of the lift overrun is 470mm above the ridge of the roof.

42. Ms Davidson and Mr Cirillo for the Respondents agreed that the increase in the height of the lift overrun substantially increases the volume of the lift overrun visible above the roof plane and above the ridge. In their opinions, the visual impact of the approved lift overrun was mitigated because it sat below the roof ridge and had a relatively small volume projecting beyond the raked roof plane on the eastern side of the roof, whereas the proposal is clearly visible from Louisa Road over the development at 95-99 Louisa Road, and it dominates the host dwelling and negatively impacts upon the well-considered “silhouette of rooftops” along Louisa Road. They share the view that the bulk of the lift overrun is greatly increased, and the silhouette of the roof is substantially altered in a manner inconsistent with surrounding development affecting views from Louisa Road, Birchgrove Oval and the harbour.

43. I accept and prefer the agreed evidence of Ms Davidson and Mr Cirillo that the proposal results in a dominant, intrusive structure that overwhelms the pitched roof form of the dwelling, in contrast to the approved lift overrun which was subservient to the pitched roof form of the dwelling as it was positioned below the ridge of the roof and substantially concealed within the roof space.

44. The environmental impact of the proposal is not minimal when comparing the qualitative and quantitative aspects of the approved development and the proposal and the environmental impacts of both. I am not satisfied that the proposed raising of the height of the lift overrun is of “minimal environmental impact” within the meaning of s 4.55(1A)(a) of the EPA Act. As a consequence, the application must be refused.

The general modification appeal

45. The experts agreed that the eastern side setback of the first floor in the approved development is 1.51m. The eastern side setback on the first floor is shown on the approved plans as 1.51m (Ex 24, tab 3, Dwg No. 1705DA05B). The eastern façade wall on the first floor forms extends upward as a parapet to a height of RL15.6 (Ex 24, tab 3, Dwg No. 1705DA09B), the floor level of the roof terrace, and the approved development includes a frameless glass balustrade to the roof terrace perimeter (shown located on the inside of the parapet, Ex 24, tab 3, Dwg No. 1705DA06B).

46. The proposal plans (Ex E) show the eastern façade of the first floor setback 1.315m from the façade of the level below, and the façade of the level below setback from the eastern side boundary by 410mm. The proposed plans (Ex E) show the parapet on the roof terrace as setback 1.29m from the eastern boundary.

47. The experts agreed that the eastern side setback of the first floor, as built, is 1.26m, as confirmed by the uncontested documentary evidence of an email sent by a surveyor (Ex 25).

48. The side setback of the eastern façade on the first floor has been constructed 250mm closer to the eastern boundary, which is the shared boundary with 95 Louisa Road, when compared to the approved development. The eastern façade is also higher than the approved development, because the parapet wall on the roof terrace is shown in the approved development at a height of RL15.6 (the FFL of the internal area of the roof terrace), whereas the proposal is to raise the parapet to a height specified in Ex E (DA06D) as “new 540mm high rendered & painted dwarf wall with frameless glass balustrade above…” where the FFL of the external roof terrace is shown as RL 15.45. There is no certainty as to the proposed height of the “dwarf wall” (the eastern parapet), because the architectural plans (Ex E) do not include elevations or sections; the RL of the top of the parapet wall is not specified; and it is not specified where the “540mm” is to be measured from. Assuming the parapet is to be raised 540mm above the FFL of the roof terrace, it would be at a height of RL 15.99, which is a proposed increase in the height of the wall of 390mm. If the glass balustrade is then proposed to be placed “above” the dwarf wall, as noted on the plan (Ex E), the overall height of the parapet could be another 1m, RL 16.99.

49. According to Mr Cirillo (Ex 7, par 6.3):

“…the envelope of the building was carefully considered by the consent authority including its side setbacks. The consent authority considered the impacts upon neighbouring properties and in particular those properties sharing side boundaries. The proponent should be granted no special lenience or advantage simply because the works have been constructed unlawfully. The building as constructed increases privacy impacts and the sense of enclosure upon 95 Louisa Road, by virtue of its reduced setbacks and lack of adequate privacy protection applies to the unauthorised windows in this elevation. The proposed setback to 95 Louisa Road, Birchgrove should not be reduced (as revealed by retrospective survey diagrams) to ensure an appropriate and reasonable separation between residential buildings.”

50. I accept and prefer Mr Cirillo’s evidence that the reduction of the eastern side setback on the first floor is unacceptable, because there is no compelling reason to increase the size of Bedroom 1 as its dimensions and proportions are already very generous; and the reduction of the eastern side setback, and the increase in the height of the eastern façade to form the eastern parapet of the roof terrace, with a glass balustrade over, would unreasonably impact on the amenity of the occupants of 95 Louisa Road, by creating an increased sense of enclosure and impinging on their outlook from the living area and terrace towards Birchgrove Oval.

51. I am satisfied that the intervenors’ contention, that the proposed reduction in the eastern side setback on the façade on the first floor creates an unreasonable sense of enclosure and does not facilitate an appropriate separation between the buildings, is made out by the evidence before me and that the unreasonable amenity impact of the proposal is determinative.

52. The proposed reduction of the eastern side setback and the increase in the height of the eastern façade to form a parapet to the roof terrace is contrary to the objective O6 of Part C – Place, Section 1 General Provisions of DCP 2013, because the proposal further increases the bulk and scale of the development to an extent that it is not compatible with, and does not respond sympathetically to the predominant form and scale of its neighbours. The proposal does not compliment the siting, scale and form of adjoining development.

Conclusion

53. The planning experts agreed that there are “anomalies across plans” as a result of “inaccurate plan drafting and unauthorised works” (Ex 7, pars 4.5.1 and 6.1). The architectural plans (Ex E) do not comply with the Court’s requirements for plans per Appendix A of the Practice Note, Class 1 Residential Development Appeals. The architectural plans are unacceptable because they are inaccurate and uncertain.

54. The lift overrun appeal must be refused because the environmental impact of the proposal is not minimal within the meaning of s 4.55(1A)(a) of the EPA Act when comparing the qualitative and quantitative aspects of the approved development and the proposal and the environmental impacts of both.

55. The general modification appeal is refused because the proposed relocation of the eastern façade on the first floor to reduce the eastern side setback and the increase in height of the eastern parapet of the roof terrace unreasonably impacts on the amenity of the adjoining residents of 95 Louisa Road, Birchgrove.

56. Given my determinative findings regarding both appeals, it is not necessary to make findings on the remaining contentions raised by the Respondents.

Orders

In the 2021/156562 appeal:

57. The orders of the Court are:

1. The appeal is dismissed.

2. Modification Application No. MOD/2020/0231 to raise the height of the lift shaft, at 93 Louisa Road, Birchgrove, is refused.

In the 2021/276619 appeal:

58. The orders of the Court are:

1. The appeal is dismissed.

2. Modification Application No. MOD/2021/0320 for internal and external changes to the approved development, at 93 Louisa Road, Birchgrove, is refused.

3. The exhibits, other than Exhibits 1, 2, 20, 21, 25, A, B and E, are returned.

Susan O’Neill

Commissioner of the Court

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Decision last updated: 09 February 2022