Erik Karlsson v Randwick City Council

[2017] NSWLEC 1714

Land and Environment Court

New South Wales

Medium Neutral Citation:

Erik Karlsson v Randwick City Council [2017] NSWLEC 1714

Hearing dates:

9 October 2017

Date of orders:

14 December 2017

Decision date:

14 December 2017

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

 (1) The appeal is upheld.
(2) Consent is granted to modify Development Application DA/88/2014, as subsequently modified on 27 October 2015 (DA/88/2014/A) and 18 December 2015 (DA/88/2014/B), subject to the conditions of consent attached as Annexure ‘A’, and in accordance with the amended plans attached as Annexure ‘B’.
(3) The exhibits are returned, with the exception of Exhibit 2.

Catchwords:

Application for modify Court consent: residential flat building; introduction of balconies, privacy and noise impacts.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Randwick Local Environment Plan 2012

Cases Cited:

Ideal Coogee Pty Limited v Randwick City Council [2015] NSWLEC 1142

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Erik Karlsson (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:

 

M Staunton (Applicant)
A Seton (Respondent)

 

Solicitors:

  Pikes and Verekeres Lawyers
Marsdens Law group

File Number(s):

2017/149523

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Erik Karlsson (‘the Applicant’) has appealed a decision by Randwick City Council (‘the Respondent’) to refuse his application for modification of a development consent granted by the Court on 13 May 2015, in relation proposed changes the configuration of one apartment (unit 8) within a residential flat building.

2. Consent for the development was granted by Morris C in Ideal Coogee Pty Limited v Randwick City Council [2015] NSWLEC 1142.

3. The appeal is made pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’).

4. The proposed modifications relate to a building under construction located at 137 Carrington Rd, Coogee (‘the Subject Site’), and are for:

1. the addition of some floor area to one unit (unit 8) within the building,

2. the addition of a new balcony along the southern side of the unit, and

3. an extension to the unit’s rear balcony on the east and south of the building.

5. An inspection of the site was undertaken prior to the hearing, during which submissions were received from the following four objectors:

1. Ms Lisa Evans;

2. Mr Simon Hobbs;

3. Ms Anita Commander (supported by Mr Anthony Bosksivitz); and

4. Mr Christopher and Ms Joanne Millet.

6. The concerns expressed by the objectors related to the potential of the proposed modifications to give rise to privacy and noise impacts.

Statutory considerations

Environmental Planning and Assessment Act 1979

7. This appeal was lodged under s 96AA of the EP&A Act which provides:

“1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, and

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(1B) (Repealed)

(1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

(2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification.

(3) The regulations may make provision for or with respect to the following:

(a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,

(b) the effect of any such deemed determination on the power of a consent authority to determine any such application,

(c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.

(4) (Repealed)”

8. As noted in s 96AA, in determining an application for modification of a consent under s 96AA, the consent authority must take into consideration such of the matters referred to in s 79C(1) as are of relevance to the development the subject of the application.

9. Section 79C(1) of the EP&A Act states:

“79C Evaluation

(1) Matters for consideration--general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.”

10. Development on the Subject Site is subject to the Randwick Local Environment Plan 2012 (‘RLEP 2012’), under the provisions of which the Subject Site is zoned R3 Medium Density Residential.

11. The development is also subject to the provisions of Randwick Development Control Plan 2013 (‘RDCP 2013’).

Does the proposed modification meet the requirements for consideration under s 96AA of the EP&A Act?

12. Section 96AA of the EP&A Act requires that before considering the merits of the application to modify a consent issued by the Court, the consent authority, or the Court on appeal, must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified.

13. Additionally, the application to modify the consent must also have been notified in accordance with the provisions of RDCP 2013, and it must have been notified to persons who made a submission in respect of the relevant development application of the proposed modification.

14. Finally, the consent authority must consider any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

15. These matters are pre-conditions in relation to which the Court must be satisfied before proceeding to a merits assessment of the application.

Is the development substantially the same?

16. The proposed modifications are for an increase to the internal size of one unit (unit 8) within the consented development, along with alterations to the number and configuration of balconies associated with that unit.

17. The proposed increase in floor space is 13.45m2, which equates to 1.6% of the development’s gross floor area.

18. The Applicant has said that, should the proposed modifications receive consent, the development for which the consent was originally granted would not include any additional units, and its bulk and sale would remain largely unchanged, save for the proposed modification to balconies, and the area of one unit.

19. It is my conclusion that these changes do not alter the nature of the development nor its fundamental characteristics.

20. Consequently, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified.

Has the development been notified as required under RDCP 2013?

21. Randwick Council’s DCP 2013 includes under Section 3.5.2 (Applications to modify an existing consent under Section 96 of the Act) provides in relation to applications made under s 96AA that:

Council will notify or make reasonable attempts to notify each person who made a submission in respect of the relevant DA of the proposed modification by sending written notice to the last address known to the consent authority of

the submitter. See note 1.

If the proposed modification may result in impacts that, in the opinion of Council, are not minimal, Council will also advertise and/or notify in accordance with this DCP.

22. The Respondent confirmed that the application to modify the consent grated for DA/88/2014 had been notified in accordance with RDCP 2013 on 1 February 2017, and evidence in support of this was tendered by the Respondent at the hearing.

23. Consequently, I am satisfied that the application to modify the consent granted by the Court has been properly notified to the relevant parties as required under s 96AA of the EP&A Act.

Have the submissions of objectors been considered?

24. As noted above at [5] and [6], the submissions of four objectors were received during site inspection prior to the hearing. The concerns expressed by those objectors related to the potential for privacy and noise impacts to arise as a result of the proposed modification. These submissions are considered below.

25. Based on the above, I conclude that the pre-conditions set out in s 96AA of the EP&A Act for modification of a consent by the Court have been met, and a merits assessment of the application can be undertaken.

Contentions

26. At the commencement of the hearing the Parties advised that the matters in contention between them had been the subject of discussion between their respective planning experts, Mr Geoff Mead for the Applicant and Mr Anthony Betros for the Respondent.

27. A joint report of the planning experts was tendered as evidence during the hearing. The experts noted that, as provided in their report, they had agreed that all contentions between the parties, other than potential privacy and noise impacts, had been resolved prior to the hearing.

28. The Respondent noted that breaches by the consented development of height and floor space ratio controls for the Subject Site under RLEP 2012 had been addressed when the development had received consent from the Court in Ideal Coogee Pty Limited v Randwick City Council [2015] NSWLEC 1142.

29. The Respondent said, and the Applicant concurred, that the proposed modifications did not materially change the development in relation to either of these matters, and, as a consequence, were not pressed in the hearing.

30. The parties noted that certain changes had been identified through the discussions of the planning experts which, if made, would resolve the remaining contentions between the Parties.

31. These proposed changes were that:

1. the depth of the proposed eastern balcony for unit 8 would be reduced by 500mm;

2. the proposed balcony to the south of bedrooms 2 and 3 within unit 8, would be limited to servicing only bedroom 2; and

3. a privacy screen would be added to the proposed southern balcony of bedroom 2, which would include a 1m return and screen louvres to protect the privacy of adjoining neighbours.

32. The Respondent said that, if the above changes were reflected in amended plans, and if a condition of consent were included to require the inclusion of the proposed privacy screens, it would not oppose the granting of consent to the proposed modifications.

33. Notwithstanding this, under s 96AA of the EP&A Act, a consent authority, or the Court on Appeal, must consider any submissions made concerning the proposed modification before consent could be granted.

34. As noted at [6], submissions made during the hearing identified objector concerns that the proposed modifications had the potential to give rise to privacy and noise impacts. These matters were addressed by expert testimony during the hearing.

Have the submissions of the objectors in relation to potential privacy and noise impacts been considered?

35. Testimony was provided by the planning experts during the hearing in relation to the objectors’ submissions concerning potential privacy and noise impacts of the proposed modifications.

36. Mr Mead said that he had reviewed the potential for the proposed 500mm reduction in the depth of the eastern balcony to mitigate these impacts. He confirmed that the proposed amendments would protect the view lines from this balcony to the Millet residence in Raleigh St. He said that this would resolve the privacy concerns raised the owners of that property.

37. Mr Mead said that the concerns of the objectors in relation to the proposed southern balcony related to potential privacy and noise impacts from that structure to the roof terrace of the adjoining property.

38. Mr Mead said that these concerns arose though a difference in height between the existing terrace and proposed balcony, and that had been addressed through the proposed amendments to the proposal.

39. In relation to potential privacy impacts of the proposed southern balcony, Mr Mead said that the cutting back of the length of the balcony to the eastern edge of bedroom 2, and the addition of a screen with horizontal louvres around the eastern corner of the structure to a height of 1.5m, would limit views from the balcony and so maintain the privacy of resicents in the adjoining building.

40. In relation to acoustics, Mr Mead said that:

1. the changes proposed in relation to the eastern balcony would not give rise to any discernible change to the acoustic impact on the residents of Raleigh and St and Pauling Ave compared with the current consented development; and

2. The dimensions of the southern balcony, particularly its 800mm width, would not facilitate the placement of furniture on that area. He added that the balcony was located off a bedroom, would not be the subject of intensive use, and so would not give rise to any acoustic impacts to residents of the adjoin building.

41. The Respondent’s planning expert, Mr Betros, said that, based on the proposed amendments to the plans for the development, including the adjustment to balcony size and introduction of the privacy treatments, he concurred with the assessment of Mr Mead that the privacy and acoustic impact concerns of the objectors would be satisfactorily addressed.

Conclusion

42. Based on the above considerations, I am satisfied that:

1. the proposed development is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified;

2. the proposed modifications have been notified as required under RLEP 2013 and RDCP 2013.

3. the submissions of objectors have been considered, and have been addressed;

4. the potential privacy and noise impacts of the proposed modifications have been resolved through proposed amendments to the plans;

5. all other requirements of s 79C(1) of the EP&A Act have been fulfilled, and the proposed modification is in the public interest.

43. I conclude that consent should be granted to the application to modify the consent granted by the Court for DA/88/2014, as subsequently modified by Randwick City Council, subject to the provision of amended plans by the Applicant and the provision of agreed conditions of consent by the parties.

44. At the conclusion of the hearing the parties were directed to prepare and file with the Court:

1. amended plans to reflect the recommendations of the planning experts and the other matters identified in this judgment; and

2. agreed conditions of consent reflecting the amended plans and other agreements between the Parties confirmed during the hearing.

45. Those plans and agreed conditions of consent were filed by the parties following the conclusion of the hearing.

Orders

46. As a consequence of the above, the Court orders that:

1. The appeal is upheld.

2. Development consent is granted to modify Development Application DA/88/2014, as subsequently modified on 27 October 2015 (DA/88/2014/A) and 18 December 2015 (DA/88/2014/B), subject to the conditions of consent attached hereto as Annexure ‘A’, and in accordance with the amended plans attached hereto as Annexure ‘B’.

3. The exhibits are returned with the exception of Exhibit 2.

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (C) (940 KB, pdf)

Annexure B (Plans) (4.83 MB, pdf)

**********

Decision last updated: 14 December 2017