Boukatos v Woollahra Council

[2004] NSWLEC 8

Land and Environment Court

of New South Wales

CITATION:	Boukatos v Woollahra Council [2004] NSWLEC 8
PARTIES:	George Boukatos Applicant Woollahra Council Respondent
FILE NUMBER(S):	11098 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Standards :- s96 application substantially same divelopment
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	15/01/2004
DATE OF JUDGMENT:	01/20/2004
LEGAL REPRESENTATIVES:	Mr G Green, solicitor Pike Pike & Fenwick Ms J Hewitt, solicitor Michell Sillar

JUDGMENT:

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IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11098 of 2003

Roseth SC

20 January 2004

George Boukatos

Applicant
v

Woollahra Council

Respondent

Judgment

Introduction

1 This is an appeal against the refusal of an application under s96 of the Environmental Planning and Assessment Act 1979 to amend development consent No 12164/2001 granted by Woollahra Council (the council) on 8 October 2002. That development application gave consent to a new two-storey house to be built on existing stone foundations.

2 The changes from the approved application are as follows:

· Extending the double garage to a quadruple garage;

· Creating an underground corridor linking the quadruple garage with the pool/entry level above;

· Providing a lift serving four levels;

· Converting the sub-floor areas at pool/entry level to habitable rooms, a laundry and a bathroom;

· Internal modifications to the main living and bedroom levels;

· Fenestration changes to all elevations;

· Modifying the central roof monitor to a clerestory to the internal central stair and introducing a lift overrun;

· Modifying planters adjacent to the eastern boundary; and

· Modifying two columns supporting the northeast main living level balcony from slim (presumably metal) columns to wide masonry columns.

3 The major issue in the case was whether the amended proposal was substantially the same development as the approved proposal. The second issue was whether the extent to which the proposal exceeded the permissible Floor Space Ratio (FSR) was justified. The third issue was whether the extension of the excavation for an enlarged garage at the common boundary with the adjoining property was acceptable. The third issue was resolved between the experts, though it remained a concern of the objectors (see below).

4 Two objectors, one on each side of the property, raised their own issues. They were Mr D Constantine, who lives at 56 Kings Road and is concerned about the extension to the excavated garage along the common boundary, the wider columns supporting the balcony, changes to the landscaping and an additional window (in obscure glass) looking towards him. The other objector was Mrs B Baron, who lives at Princes Avenue and whose views were put to the Court by her legal representative. Her main concern was that former Bedroom 4, which faces her property, is changed to a Lounge.

5 The planning experts were Mr H Sanders for the council and Mr A Darroch for the applicant. It was common ground between them that the Residential Development Control Plan (the DCP) established the maximum permissible FSR for the site at 0.55:1. They also agreed that the FSR of the proposal was 1.075:1. They disagreed on the FSR of the approved plans. Mr Darroch said that the FSR was 0.89:1. Mr Sanders said that it was 0.73:1. When the applicant lodged the application, it stated that the FSR was 0.73:1. The council planner assessing the application stated in his report that the FSR was 0.69:1.

6 Mr Sanders considered that the amended proposal was quite different from the approved one. He based his opinion on the numerous changes listed above, in particular on the increase of FSR by about 50%, the extension of the excavated area and on the additional habitable level. Mr Darroch considered the changes insubstantial on the basis that they did not increase the bulk and scale or the impact of the proposal.

7 Following the same line of logic, the experts disagreed on the acceptability of the additional floor space. Mr Sanders pointed out that the proposed FSR was about twice as much as was permissible. Mr Darroch emphasised that the additional floor space was underground and did not add to the building’s bulk.

8 The first issue I have to determine is whether the s96 application is substantially the same development as the approved proposal. The applicant’s advocate, Mr G Green, submitted that the questions I have to ask myself are:

Is the character of the amended proposal the same as that approved?
Is the essence of the amended proposal the same as that approved?

9 The answer to both these questions is negative. The amended proposal is substantially (and in essence) different from the approved development, even though its bulk and scale are similar. The amended proposal has added another 50% of floor space, it has changed a two-storey building to a three-storey building, it has vastly increased the amount and depth of excavation, it has doubled the capacity of the garage and it has changed the fenestration on every elevation of the building. The proposal is not amendment; it is a new proposal.

10 I have given consideration to the applicant’s argument that it already had an approval for a building of similar bulk to the one proposed in the s96 application. I do not think this is relevant. Section 96 requires me to decide whether the amended proposal is substantially the same as the approved one, not whether it has substantially the same bulk. Bulk may be an important attribute of a building, but it is not the only attribute.

11 Given the above finding, it is not necessary for me to determine the merits of the application. However, since the evidence dealt with the merits, I shall also deal with them briefly. The main issue was the FSR of the new proposal, which is almost twice as much as the FSR permitted by the DCP. The applicant argued that the change from the development approved by the council did not increase the building’s bulk. I do not think that this argument justifies the variation of a standard, which, in comparison to other detached housing areas in Sydney, is extremely liberal. There is nothing unusual or exceptional about this site that would justify permitting twice as much development on it as the DCP permits.

12 For the above reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. The application under s96 of the Environmental Planning and Assessment Act 1979 to amend development consent No 12164/2001 granted by Woollahra Council on 8 October 2002 is determined by refusal.

3. The exhibits are returned.

_________________

Dr John Roseth
Senior Commissioner

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