CSA Architects Pty Ltd v Woollahra Municipal Council

[2008] NSWLEC 1111

Land and Environment Court

of New South Wales

CITATION:

CSA Architects Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 1111

PARTIES:

APPLICANT
CSA Architects Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11154 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Consent - Section 96 Application :- Residential flat building, modify consent for works constructed without approval.
Issues resolved between the parties except the visual impact of the deletion of the garage highlight windows.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

06/02/2008 and 05/03/2008

EX TEMPORE JUDGMENT DATE:

5 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Hill, solicitor
of Susan Hill & Associates Lawyers Pty Ltd

RESPONDENT
Mr S. Simington, solicitor
of Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

5 March 2008

11154 of 2007 CSA Architects Pty Ltd v Woollahra Municipal Council

JUDGMENT

1 This is an appeal against the refusal by Woollahra Municipal Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (651/2004) for a residential flat building at 159 Victoria Road, Bellevue Hill. The application was approved by the Court on 2 March 2005 (Appeal No. 11421 of 2004).

2 The s 96 application seeks approval for works constructed without consent. The description of these works, the site and its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.

3 The appeal was conducted as a s 34 conference which commenced on site on 6 February 2008. The Court heard evidence on site from residents who were concerned about the impact of the proposed changes, particularly the landscaping, increased height of the garage and amendments to the exterior appearance, including deletion of the split rock finish, highlight windows and paling fence.

4 The s 34 conference was adjourned for the applicant to prepare amended plans, including an amended landscape plan and report. The conference resumed on 5 March 2008. The parties reached agreement on all but one issue and agreed to the proceedings being disposed of in accordance with s 34(4)(b)(ii).

5 The only issue which remained in dispute between the parties related to the highlight windows in the garage. The difference of opinion of the planning experts; Mr A Betros, for the applicant and Mr D Booth for the council, is contained in their joint statement as follows:

Issue 4 The deletion of the row of highlight windows from the rear elevation to Level 6 has had a significant adverse visual impact upon Units 8, 12 & 17/157 Victoria Road.
AB says The plans have been amended to incorporate a row of highlight windows along the rear elevation of the garage. the external nature of the windows to the external fabric of the garage is considered indiscernible, particularly that the garaging is only viewed from an oblique angle and will be screened by vegetation, as shown on the updated plans. Recessing of the glazing would involve rebuilding of the walls and disturbance to services which are internally connected to the walls. Such disturbance is not considered to be warranted, given the indiscernible visual outcome.
DB says The proposed row of (assumed to be protruding) highlight glazing attached to the rear elevation of the garage would have the same unsatisfactory appearance as that relating to the northern elevation and would have significant adverse visual impacts upon living areas within units 8 and 17/157 Victoria Road. the proposed landscaping, even if satisfactory achieved (refer to Issue 1 above), would not screen the highlight glazing from the affected adjoining properties. It is considered that it should be recessed as is the row of highlight glazing to the southern side elevation of the garage. In the absence of any justifiable reason why this cannot be achieved, this issue remains unresolved.
Issue 5. The substitution of the recessed (by 150 mm) row of highlight windows from the northern and front elevations at Level 6 with rows of highlight translucent glazing protruding approximately 150 mm beyond the alignment of the masonry walls does not form part of the subject s 96 application has had a significant adverse visual impact upon Units 8, 12 & 17/157 Victoria Road, the entrance bridge of 157 Victoria Road and the streetscape.
AB says: It is sought to obtain approval for the highlight glazing attached to the external fabric of the garage. It is considered that the difference is indiscernible and is also screened by landscaping along the frontage. the south-facing glazing has its orientation to the driveway and is substantially separated from any private residence.
DB says: Whilst the proposed Lilly Pillys adjacent to the eastern section of the northern side elevation of the garage may partially screen the protruding row of mock highlight glazing, the landscape elevation indicates that the western (front) section of the highlight glazing to the northern side elevation is visible from the street and together with the protruding highlight glazing to the front elevation of the garage presents an unsatisfactory visual appearance to the street relative to the recessed highlight glazing to the southern elevation of the garage.
Further, due to the partial screening of the highlight glazing to the northern side elevation of the garage, the adverse visual impact upon the adjoining property 17/157 Victoria Road and the entrance bridge of 157 Victoria Road remains a concern. In the absence of any justifiable reason why this cannot be achieved, this issue remains unresolved.

6 Mr Smith, the architect provide evidence on the structural and construction issues involved in recessing the window and the likely noise and acoustic impacts.

Findings

7 The approved recessed highlight windows are a better solution than that which is proposed. However, I do not consider that the proposal to project the highlight windows is of such significance as to warrant refusal of this part of the application.

8 The projected windows, being a different material to the masonry walls will assist in breaking up the bulk of the garage, although not to the same extent as if recessed. The windows will be partially obscured by landscaping and those to the rear will be viewed only obliquely. Although I do not agree that the change will be indiscernible I do not consider it will result in an unacceptable visual impact and I accept the evidence of Mr Betros.

1. The appeal is upheld.
2. The application under s 96 of the E nvironmental Planning and Assessment Act 1979 to modify a development consent (651/2004) for a residential flat building at 159 Victoria Road, Bellevue Hill is approved. The consent is modified as set out in Annexure A.
3. The exhibits, except Exhibits A and B, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
ljr