Del-Ben v Waverley Council

[2013] NSWLEC 1245

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Del-Ben v Waverley Council [2013] NSWLEC 1245
Hearing dates:	19 December 2013
Decision date:	20 December 2013
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See [46]
Catchwords:	MODIFICATION: construction of a bedroom on a fourth level; impacts on privacy, views; height and FSR controls; amended plans
Legislation Cited:	Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; 173 LGERA 280]. Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Makedonka Del-Ben (Applicant) Waverley Council (Respondent)
Representation:	Applicant: Mr G Green (Solicitor) Respondent: Mr S Nash (Barrister) Applicant: Pikes & Verekers Lawyers Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	10816 of 2013

Judgment

1. COMMISSIONER: This is appeal against Waverley Council's refusal of Modification Application No. DA-449/2005/D to modify an approved development at Lot E in DP 308352, also known as 413 Bronte Road, Bronte.

1. The appeal is made under s 96(6) of the Environmental Planning & Assessment Act 1979 (the Act).

1. The approved development is a three-storey dwelling comprising two levels above a garage. The dwelling is currently under construction.

1. The site, its locality, the history of the proposal and the relevant planning controls are set out in the Statement of Facts and Contentions. It is sufficient to state that the site has been the subject of a number of s 96 modification applications to modify various aspects of DA-449/2005, which was originally approved in February 2007.

1. The site is zoned R2- Low Density Residential under Waverley Local Environmental Plan 2012 (WLEP). The surrounding area is characterised by detached dwellings ranging from one to three storeys and a range of architectural styles from traditional to contemporary. The site and adjoining properties are on a steep slope.

1. The proposed modifications refused by council include the construction of a fourth level to provide a roof terrace and an additional bedroom to be used as the main bedroom with ensuite, robe and access to the roof terrace. Other internal alterations are also proposed.

1. The proposal was notified to nearby residents and seven submissions were received. Council's contentions reflect the reasons for refusal given by Waverley Development Assessment Panel and the issues raised by objectors.

1. The Council raised no objections to the internal alterations and the contentions relate to the proposed fourth floor bedroom, roof terrace and associated structure. The contentions are:

(1)   Unacceptable bulk including an exceedence of the Floor Space Ratio (FSR) controls in WLEP with consequential adverse impacts on adjoining properties;

(2)   Incompatibility with the bulk, scale, streetscape and existing character of the locality;

(3)   Unacceptable view impacts on 409 Bronte Road;

(4)   Approval will establish an unsatisfactory precedent; and

(5)   Not in the public interest.

1. The matter was listed as a mandatory conciliation and arbitration under s34AA of the Land and Environment Court Act 1979 (the Court Act).

1. Prior to the conciliation, the parties' expert Town Planners, Ms Alison McCabe for the Applicant and Mr Greg Boston for council, prepared a joint report. The experts reviewed the relevant sections of WLEP and the Waverley Development Control Plan 2012 (WDCP). They inspected the site and viewed the development from 409 Bronte Road.

1. Apart from considering the proposal and plans refused by council, the planners also reviewed two possible options put forward in order to reduce the extent and impact of the fourth floor - Options B and C.

1. The planners agreed that the plans considered by council and ultimately refused, resulted in unacceptable impacts to adjoining properties, particularly on views from 409 Bronte Road.

1. Given the agreed position that the proposal refused by council was unacceptable, the planners formally considered the amended plans shown in Annexure C of their report. These amended plans propose the following changes:

• Deletion of roof terrace and rear courtyard;
• A non-trafficable roof;
• Reduction in size of the proposed bedroom to 7.6m x 4.25m with no external access onto the roof;
• Include an internal access to ensure there is no structure forward of the rear eaves line of 411 Bronte Road;
• Set a top RL of 48.42, an increase of 70mm; and
• Set a floor level of RL45.87, an increase of 200mm.

1. The applicant now relies on the amended plans.

1. The matter commenced on site and a number of residents voiced their concerns about the development in general and about the proposal in particular. The properties of three of the objectors were visited. To assist in visualising the likely impacts of the proposed fourth floor bedroom, height poles and a cross bar were erected to show the proposed eastern façade. While the objectors agree that the amended plans are an improvement on the original proposed modification, they are still opposed to it. The main reasons are:

• Non-compliance with council's controls and the undesirable precedent any approval would set;
• Full compliance with the controls is essential in order to maintain the character and amenity of the area;
• Lack of privacy to the rear garden of the adjoining property to the east as a consequence of the fully glazed eastern façade of the proposed fourth floor bedroom;
• Whether proposed ceiling and roof heights would comply with the relevant building standards;
• Impact on views, generally to the east, from the rear garden and bedrooms of 409 Bronte Road; and
• Impact on views to the north of the upper portion of Bronte Park from the main bedroom and bathroom, as well as upper terrace, of 34B Gardyne Street (the adjoining property to the south); and the visual bulk and unappealing aspect of the proposed blank southern wall.

1. As a consequence of the inspections of the site from the neighbouring properties, a number of minor changes addressing some of the concerns were discussed.

1. Council's legal representatives were unable to obtain instructions to make an agreement under s 34(3) of the Court Act; therefore the conciliation was terminated in accordance with s 34(4).

1. Given the council's contentions were satisfied by the amended proposal, a consent orders hearing may have been appropriate, however it was agreed by the parties and the Court that the requirements in paragraph 49 of the Court's Practice Note - Class 1 Residential Appeals could not be met in the circumstances and the matter proceeded to a hearing.

1. While the parties agreed that there are no longer any contentions or issues that would warrant refusal of the proposed modification (as amended), in exercising the function of the Court, I must consider the relevant matters in s 79C of the Act.

1. The applicant was formally granted leave to rely on the amended plans included as Annexure C in the joint planning report. It was agreed that an additional plan be prepared showing the eastern elevation of the proposed fourth floor bedroom.

1. Both parties rely on the joint report of the town planners. The joint report comprehensively assesses the proposed amendments against the original proposal and against council's controls. Each contention is addressed in detail.

Contention 1 - Bulk

1. Pursuant to cl 4.4(2) and cl 4.4A(b) of WLEP, the maximum FSR for the site is 0.65:1. While the original proposal had an FSR of 0.74:1, the amended plan results in an FSR of 0.657:1. The planners agree that while the FSR is marginally non-compliant with the development standard it does not result in unreasonable impacts on adjoining properties and that it meets the objectives for FRS in cl 4.4(1) of WLEP.

1. The planners agree that the amended plans show an exceedence of the current height controls but when considered against the ground level at the time of granting the original consent, the exceedence is minor. In regards to the objectives for height of buildings in cl 4.3(1) WLEP, the planners agree that the amended plans achieve these objectives.

1. The owner of 34B Gardyne Street objected to the visual bulk of the proposed blank southern façade when viewed from the main bedroom. In order to soften the outlook it was proposed that a planter box be erected on top of an approved concrete pergola and planted with appropriate species up to 3m tall. It was agreed that a condition of consent be drafted.

1. With the benefit of the inspection, and on the basis of the detailed analysis provided by the planners, I find the amended proposal does not result in unacceptable bulk and does not create any unreasonable bulk-related impacts on the adjoining properties and the appeal should not be refused on this basis. I agree with the planners that the amended proposal meets the relevant objectives in WLEP and WDCP.

1. The additional landscaping proposed on top of the pergola will soften the appearance of the bedroom. Limiting the height of plants to 3m, as requested by the owner of 34B Gardyne Street, should not further obscure any views from that property. Setting a minimum height will ensure a reasonable screen is achieved.

Contention 2 - Streetscape

1. The council's contention concerned the impact of the height and bulk of the original proposal on the streetscape. The contention considered the impact to be contrary to the objectives of the FSR controls in WLEP and the relevant objectives in WDCP.

1. The amended proposal places the fourth floor element towards the rear of the site. As a result, the planners agree that the amended proposal will read as a predominately 3 level building from the street and will only be seen as 4 levels from one narrow gap between 415 and 419 Bronte Road.

1. Again with the benefit of the view and the height poles, I am satisfied that in itself, the addition of the fourth floor bedroom does not result in an unacceptable impact on the streetscape and it should not be refused on this basis.

Contention 3 - view loss

1. The planners agree that the originally proposed structure and the extent of roof structures resulted in unreasonable impacts on the views from the bedroom level of 409 Bronte Road. This dwelling is to the west and upslope of the site.

1. According to their report and the amended plans, the fourth floor bedroom is now located behind the eaves of 411 Bronte Road, the property between the site and 409 Bronte Road. The new position places the bedroom more to the south of the line of sight and retains views of the ocean.

1. My assessment of the likely view loss, as seen during the inspection, concurs with that of the planners. In considering the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140: the impact on the views is negligible, the part of the view obscured is mainly of residential dwellings and vegetation - not the more valuable water views; the views are across a side boundary from bedrooms not living areas; and the amended design has minimised the impact. While there is some non-compliance with the height controls, the impact is not unreasonable (see [29]).

1. The owners of 409 Bronte Road raised concerns about people on the roof terrace looking back towards their bedrooms. The roof terrace is non-trafficable and will be conditioned as such. However, it is not unreasonable to expect occasional access for routine maintenance.

1. The owner of 34B Gardyne Street raised an objection to the obstruction of her view to the north of a portion of Bronte Park. In applying Tenacity: although this is a view from the rear of the dwelling it is a 'district' view rather than a view of water, the principal views from the whole of the dwelling and associated terraces are of the ocean; the obscured view is from a bedroom/bathroom; and the impact is minor.

1. Therefore, I find that the appeal should not be dismissed on the basis of view loss.

Contention 4 - precedent

1. The council did not press this contention, however, as it was an area of concern raised by a number of objectors I will address it.

1. In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, at [5]-[36] Lloyd J comprehensively considers the issue of 'precedent' and the relevant caselaw. At [10] His Honour cites Stein J in Maxwell James Maxwell Pty Ltd & Anor v North Sydney Municipal Council (NSWLEC, 13 December 1991) who said:

The precedent argument may properly be seen as an argument of last resort. Assuming precedent to be good or bad, there is no justification for blindly following a bad one. It is the merits of any particular development which are important.

1. In Goldin at [28] Lloyd J considered in part that:

...if the Court is entertained with an application for a proposed development which is both objectionable in itself and there is sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.

1. That is, the Court may take precedent into consideration. However, it does not diminish the requirement for each development, or modification of a development, to be considered on its merits. This requires the proposal to be tested against the controls and objectives of the relevant environmental planning instruments, in this case WLEP, and any development Control Plans.

1. There is a degree of flexibility included in WLEP and WDCP. Clause 4.6 considers 'exceptions to development standards' which provides a degree of flexibility in applying certain development standards. In Zhang v Canterbury City Council [2001] NSWCA 167, Spigelman CJ at [75] considered that the consent authority [in this case the Court] has a wide ranging discretion but the discretion "is not at large and is not unfettered'. His Honour found that while a DCP had to be considered as a "fundamental element" or "focal point" of the decision making process, and any provision in a DCP directly pertinent to an application is entitled to significant weight, it is not in itself determinative.

1. The planners state that while development standards must be considered, they agree that cl 4.6 variations are not required for variations to development standards in s 96 modification applications. However, notwithstanding this, as discussed earlier in this judgment, the experts agree that strict compliance with the building height and FSR development standards is unreasonable and unnecessary in the circumstances of the proposal because the relevant objectives are satisfied and the impact on adjoining properties and the street is minor.

1. While the objectors clearly find the proposal "objectionable" I agree with the planners and find that the modification application, as amended, should not be refused on the basis that it will establish an unsatisfactory precedent for future development in Bronte Road.

Contention 5 - public interest.

1. Given the findings thus far, and the extent to which the public interest may be represented by the zone objectives in WLEP, I find that the proposal does not offend any of the objectives and should not be refused on the basis of the public interest. [A very detailed consideration of public interest litigation is given by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; 173 LGERA 280].

Other issues/ conditions

1. Following the onsite inspection and the privacy issues raised by the owner of the adjoining property to the east, the planners and the parties agreed that the height of the windows on the eastern façade is to be reduced and a light weight horizontal screen be installed below the window in order to limit the potential for overlooking into the rear yard of 415-417 Bronte Road.

Conclusions and orders

1. Having regard to the uncontested and agreed planning evidence and relevant matters under s 79C of the Act, I am satisfied that the modification as amended, and incorporating the additional agreed conditions, is acceptable and should be approved.

1. On receiving the final agreed conditions of consent and the filing and serving of the amended plans I will make Final Orders in chambers upholding the appeal and granting consent to Modification Application No. DA-449/2005/D at Lot E in DP 308352, also known as 413 Bronte Road, Bronte in accordance with the amended plans and subject to the agreed conditions. The exhibits will be returned.

Directions

(1)   The parties are to file and serve a copy of the amended plans and a copy of the agreed conditions at the earliest opportunity.

(2)   An electronic version of the agreed conditions, in Word 97 format, is to be forwarded to the Court and marked to my attention for inclusion in the Final Orders.

______________________

Judy Fakes

Commissioner of the Court

Amendments

14 January 2014 - Typographical error

Amended paragraphs: Catchwords

Decision last updated: 14 January 2014