Cohen v Waverley Council

[2006] NSWLEC 144

Land and Environment Court

of New South Wales

CITATION:

Cohen v Waverley Council [2006] NSWLEC 144

PARTIES:

APPLICANT
Julian Cohen

RESPONDENT
Waverley Council

FILE NUMBER(S):

11401 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Demolish an existing dwelling, construct dual occupancy with basement car parking, bulk and scale and privacy impacts, solar access, setbacks.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Development Control Plan No. 20 - Dual Occupancy Provisions
Development Control Plan No. 2 - Dwelling House Development
Development Control Plan No. 13 - Energy Efficiency

DATES OF HEARING:

28/03/2006

EX TEMPORE JUDGMENT DATE:

03/28/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr Henningham, agent

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

28 March 2006

11401 of 2005 Cohen v Waverley Council

JUDGMENT

1 COMMISSIONER: On 3 August 2005, Waverly Municipal Council (the council) approved, as a deferred commencement consent, a development application (DA 725/2004) to demolish an existing dwelling and erect a new two-storey dual occupancy with basement car parking at 9 Rodney Street, Dover Heights (the site).

2 This is an appeal against two deferred commencement conditions imposed on the consent. The deferred commencement conditions required:

1. The proposed balconies and concrete roof above attached to the front elevation at ground and first-floor levels to be set back in line with the front curved external walls of the existing house

3. The rear first-floor balcony to be reduced to be no more than 1.5 m deep

3 The appeal was originally set down for a Court hearing, however, the parties agreed to amend the application to an On-site hearing. The judgment reflects the finding given on-site on 28 March 2006.

4 The site, its context and the history of the application are set out in the Statement of Basic Facts.

5 The site is zoned 2(a) Residential – Low Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible within the zone.

6 Development Control Plan No 20 – Dual occupancy Provisions (DCP 20), Development Control Plan No 2 – Dwelling House Development (DCP 2) and Development Control Plan No 13 – Energy Efficiency (DCP 13) are also relevant.

7 The Court heard evidence from residents, Mr B Newbold, the Court Appointed Town Planner and Mr Henningham, the architect for the proposal. The main concern of the residents was the setback of the development from the street and the impact on the north facing window of the adjoining property at 11 Rodney Street. The purpose of the deferred commencement conditions is to reduce the scale and bulk of the front balcony and the privacy impacts from the rear balcony.

8 In Mr Newbold’s opinion these objectives could be achieved by means other than reducing the size of the balconies. Mr Newbold also considered that the impact on solar access to 11 Rodney Street to be unacceptable. Amended plans were prepared to address these issues.

9 In relation to the rear balcony the parties agreed that the privacy screens and the planter box in the amended plans satisfied the concerns.

10 In relation the front balcony, the parties agreed that the increased setback of the canopy roof and the reduction in the height of the columns reduced the bulk impact of the balcony. A residual dispute remained as to whether the canopy should be cantilevered concrete or a light weight pergola. This was resolved on site with the imposition of conditions specifying a maximum depth of the canopy and that it be a contrasting colour. A further condition was agreed which provided for two small canopy trees in the front setback to soften the bulk of the proposal.

11 With these changes I accept that the proposal achieves bulk, scale and privacy impacts consistent with those anticipated by the controls.

12 In relation to solar access to 11 Rodney Street. The north facing widow is to a living area which currently receives full sun from about 10am. The room also has glass doors, which receive western sun in the afternoon. Mr Newbold agreed that the window would retain sunlight to 34% of its surface at noon, 50% from about 1.09pm, 88% at 2pm and be in full sun by 3pm. This generally complies with the numerical requirements of DCP 13 for two hours sunlight at midwinter. However, Mr Newbold notes that objective 1(b) of the 2(a) zone states:

To maintain and improve the amenity and existing characteristics of localities that are predominantly characterised by dwelling houses.

13 To achieve this objective Mr Newbold states that it was appropriate to consider the amount of sun to be lost as well as that to be retained and that a greater amount of sunlight could be retained if the proposal were setback 4.5 m from the boundary.

14 The adjoining owner, Mr Kofsky, supported a further setback of the development to improve solar access to the window.

15 I agree that it is appropriate to consider the amount of sunlight to be lost and whether this can be reduced by design changes, however this also needs to be balanced against the reasonable expectations for development on the site given the planning controls. DCP 2 provides for a maximum height of 9.5 m and a wall height of 7.5 m with a minimum setback of 900 mm. The proposal has wall height and maximum height at the south west corner between 6.8 m and 7.4 m. The ground floor is setback 1.95 m and the first floor setback has been increased to 3.77 m. The setback of the first floor was increased to reduce the impact on solar access to the window.

16 Mr Newbold and Mr Henningham estimated that a further setback of 600mm would increase solar access to the window from about 34% to 68%. This would necessitate internal redesign and reduction in width of the walk in wardrobe and the removal of a window at ground level resulting in the southern wall on the first floor being in a different location to the ground floor.

17 Mr Henningham considered these changes to be unreasonable given the changes that had already been made and the planning controls. However, he stated that, if required, a reduction in overshadowing could be achieved by cutting back the cantilevered roof over the rear balcony.

18 The window faces a boundary and while the adjoining development on 9 Rodney Street is currently single storey the controls permit two storey development to occur. The proposal is below both the wall height and maximum height control and is setback considerably more than required. It is an unreasonable expectation that a side window can maintain or improve the degree of solar access that it currently enjoys when two storey development is permissible on adjoining sites.

19 Given the location of the window, the additional glass doors to the west, the amount of sunlight to be lost and the amount to retained and the planning controls I find that it is unreasonable to require further setback of the proposal to reduce its impact on solar access to the window. However, the cutting back of the balcony roof will marginally reduce the overshadowing impact and is a change that is not an unreasonable impost on the development. I have therefore imposed this as a condition of approval (condition 1B).

Orders

20 For the above reasons the Orders of the Court are:

1. The appeal is upheld.
2. The development application (DA 725/2004) to demolish an existing dwelling and erect a new two-storey dual occupancy with basement car parking at 9 Rodney Street, Dover Heights, is approved subject to the conditions at Annexure “A”.
3. The exhibits, except exhibits A and B, may be returned.

__________________
Annelise Tuor
Commissioner of the Court