Brenchley Architects Pty Limited v Waverley Council

[2009] NSWLEC 1434

Land and Environment Court

of New South Wales

CITATION:

Brenchley Architects Pty Limited v Waverley Council [2009] NSWLEC 1434

PARTIES:

APPLICANT
Brenchley Architects Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

10585 of 2009

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT MODIFICATION :- Amenity of attic rooms in Residential Flat Building, Unit mix.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

CASES CITED:

Stockland Development v Manly Council [2004] NSWLEC 472

DATES OF HEARING:

7 December 2009

 
DATE OF JUDGMENT: 

24 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan (barrister)
SOLICITOR
Conomos Legal

RESPONDENT
Mr S Kondilios (solicitor)
SOLICITOR
Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 December 2009

10585 of 2009 Brenchley Architects Pty Limited v Waverley Council.

JUDGMENT

Background.

1 This appeal is against council’s refusal of a s 96 modification application for an existing residential flat building containing 4 units located at 15 Francis Street Bondi. Development consent was originally granted for alterations, which allowed the creation of a new lower ground floor unit, together with alterations to the roof to permit rooms within the attic area, so as to create a total of 5 units.

2 This attic area was to be divided along a common wall, allowing 2 bedrooms and bathrooms each side, which were to be connected internally to the general living rooms on the first floor, to create Units 1 and 2. This proposal included 3.5m x 3m balconies off each of the north facing attic level, bedrooms. Access to these balconies was proposed via an external set of stairs from the first floor balcony.

3 That proposal (as amended) involved a number of non-compliances with the existing controls and the conditions of consent required:

3. GENERAL MODIFICATIONS
The proposal shall be amended as follows:
(a) The stairs at the rear should not extend to the uppermost floor, as this allows for the entertaining deck on the lower level to ‘spill over’ onto the deck above. The stairs are to terminate at the ground floor units (lower floor to units 3 and 4).

4 The current modification is to create an additional unit by the conversion of the attic level into a self-contained unit (Unit 6) containing 2 bedrooms + study with a single 4m x3m north facing balcony. It is proposed to erect 1.5m high side screens on this balcony to protect privacy and amenity of the neighbouring property occupants. Access to this unit is via an extension of the existing internal stairs and the applicant agreed to the deletion of the rear, external stairs to the attic level.

5 Consequently, the 2 remaining units on the 1^st floor are smaller 2 bedroom units. Also, the 2 x 2 bedroom units are to be retained on the ground level, as well as the lower ground floor 1 bedroom unit. The resultant apartment mix would be:

1 bedroom; 1 unit (17%),
2 bedroom; 5 units (83%).

6 The contentions identified by council for the appeal are summarised as

The application for an independent unit in the attic is contrary to the DCP provisions and breaches the unit mix provisions.
Public interest matters, including the objections submitted regarding overdevelopment, loss of privacy, extension of stairs and failure to meet parking standards.

The site

7 The site is located on the northern side of Francis Street near the intersection with Campbell Parade. It has a 12.19m frontage to Francis Street and a total area of 554.3 sq m and falls from the front to the rear approximately 8m.

8 The surrounding development comprises mainly 2 and 3 storey residential flat buildings on the northern side of the street, whilst there are higher buildings on the southern side.

Planning controls

9 The following controls are relevant:

Waverley LEP 1996 ; under which the site is zoned Residential 2(c1) – Medium and High Density and the proposal is permissible with consent.
Waverley DCP (Amendment No 4) Part D2: Multi – Unit Housing (WDCP). The controls of particular relevance are:
4.4.3(d) Attics must not contain independent dwellings and spaces must be connected to a unit on the level below.
5.2.3(d) Attic spaces must not contain living and dining rooms, and must be attached to a unit on the floor below.

10 Because this application is to effectively create an additional unit, another relevant development control is contained in section 5.8.3 of the DCP as follows:

Development with six or more apartments must provide the following mix of apartment sizes;

(a) Studio/1 bedroom 35%,
(b) 2 bedroom 50%,
(c ) 3 bedroom 15%.

The evidence

11 Detailed evidence in this matter was presented by:

Mr N Kennan; council’s consulting planner.
Mr A Betros; applicant’s consulting planner.

12 The planners agreed that the proposed independent unit in the attic is contrary to cl 4.4.3(d) and 5.2.3(d) of the WDCP. However, they also acknowledge that the controls allow some flexibility where the applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case. The planners have also agreed that they are unaware of any examples of variations to these DCP provisions, which allow an independent unit within the attic.

13 Mr Betros considers the independent attic unit is acceptable because it provides an additional unit in the desirable Bondi Beach location and it does not cause any adverse amenity impacts to neighbouring units. He acknowledges that some variations to the development controls were allowed for the current consent and therefore this further variation to allow the separate attic unit would be consistent with the previous approach.

14 Against this, Mr Kennan says that this modification is basically the same as the original application, which included the attic unit that was not approved by council. Instead, the council was prepared to allow some variations to the building envelope on the basis that the less intensive use rooms in the attic were maintained as bedrooms.

15 According to Mr Kennan, the approved variations are consistent with the general height controls depicted in Figure 14 of the DCP and also section 4.4 Roof Design and Attic levels. Furthermore, the approval allowed a larger non-complying FSR of 1:1 over the standard of 0.9:1, because the attic space was considered to enhance the amenity of the existing upper floor units on the site. But Mr Kennan now says that the modification with the additional, separate unit offers no amenity advantage to the other upper units. On the contrary, he considers that they will have diminished amenity.

16 In opposing the modification, Mr Kennan also refers to section 5.1.3 of Part D2 of the DCP, which states that the floor to ceiling height of residential floors must be a minimum of 2.7m. If an attic room is proposed, it should have a minimum floor to ceiling height of 2.4m for at least 2/3 of the floor area. This is to be considered in conjunction with the other controls that do not allow living and dining rooms in such attic. Accordingly, Mr Kennan says that as the proposal does not comply with these controls, it will not provide an adequate level of amenity for a separate tenancy.

Conclusions

17 Having considered the evidence, the submissions and undertaken a view, I do not consider this modification application merits consent.

18 Insofar as the modifications are permitted with consent under the LEP, the relevant development controls are contained in the DCP. It appears to me that there are a number of complimentary controls that directly apply to attic development and usage. Whilst these controls permit the creation of rooms in attics, it is on a restricted basis that precludes the more intensive use involving living and dining rooms.

19 Whilst I accept Mr Betros’ opinion that the LEP aims include the provision of a range of housing types, this is in conjunction with the aims that such housing should improve the amenity of residential areas. It seems to me that the range of housing types sought is the unit mix detailed in s 5.8.3 of the DCP, where the number of units is 6 or more. As this the case and the proposal results in 5 x 2 bedroom units, i.e. 83%, I accept Mr Kennan’s opinion that this does not reasonably satisfy this control. In the absence of any compelling reasons, I do not consider it reasonable to set aside this control.

20 With regard to the amenity impacts, I understand that the variations to the height and FSR controls were initially allowed to enable an increased and acceptable level of internal amenity for the upper units. This amenity was facilitated by the internal connection of the attic bedrooms to the lower level living rooms, as stipulated in the DCP.

21 As stated by Mr Kennan, it now appears to me that the overall amenity of the development would be reduced because:

The internal height of the attic rooms does not comply with the standard 2.7m (minimum) height for living rooms.
There is increased potential for adverse noise transfer from the attic unit to the smaller, lower units, which would not arise in the existing approval.
The larger attic level balcony is the only outdoor entertaining area and considering its attractive northerly aspect, is likely to attract considerably more use than the approved, smaller balconies off the bedrooms. In this regard, I note that original conditions of consent required the removal of the proposed external stairs to this balcony area, presumably in part, to reduce its usage consistent with that off a bedroom and not a general entertaining area, which has a greater potential to adversely impacts on the neighbours.
The first floor units are reduced in size and loose their proposed study rooms. I agree with Mr Kennan that this reduces the amenity of these units and is therefore an undesirable aspect of the modification.

22 Reference was made to the authority in Stockland Development v ManlyCouncil [2004] NSWLEC 472 , McClellan CJ said:

87 Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are:
A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.
A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.
A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

23 In the absence of any substantive evidence of council’s departure from its policy of not approving separate units in the attic, I am satisfied to rely on Mr Kennan’s evidence that this policy has been consistently applied. Therefore following Stockland, I do not consider the policy should be varied in the circumstances of this matter.

24 Apart from this, I am also satisfied that the proposal would result in the overdevelopment of the site, likely causing adverse impacts on the neighbours, which is inconsistent with the LEP aims, thereby resulting in the failure of this application. In reaching this conclusion I have considered and addressed the neighbour’s objections, which mainly concerned adverse impacts on their amenity.

25 The Court orders:

1 The appeal is dismissed.
2 The s 96 modification application for DA No 621/2007 to convert the attic to a separate unit, together with ancillary works at 15 Francis Street, Bondi Beach is refused.


3 The exhibits may be returned except 5.

_______________________
R Hussey
Commissioner of the Court
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