Hexiva Pty Ltd v Sydney City Council

[2005] NSWLEC 133

Land and Environment Court

of New South Wales

CITATION:

Hexiva Pty Ltd v Sydney City Council [2005] NSWLEC 133

PARTIES:

APPLICANT
Hexiva Pty Ltd

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10410 of 2004

CORAM:

Murrell C

KEY ISSUES:

Designated Development :- Section 96 application for alterations and additions to a residential flat building - amended plans

LEGISLATION CITED:

South Sydney Development Control Plan
South Sydney Local Environmental Plan

DATES OF HEARING:

17/09/2004 and 25/02/2005 - Order 10 May 2005

EX TEMPORE JUDGMENT DATE:

02/25/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Wechsler, director of Hexiva Pty Ltd

RESPONDENT
Ms L Finn, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

25 February 2005

10410 of 2004 Hexiva Pty Ltd v Sydney City Council

JUDGMENT

1 This matter has come to me this morning as a mention. It is in respect of an on-site hearing I held on 17 September 2004 for a s 96 application to modify the 1999 consent for alterations and additions to a residential flat building at the property known as 5 Tusculum Street, Potts Point. At the on-site hearing the Court made a number of directions, one was that there be amended plans submitted to reflect the Court’s decision and that they be submitted to the Court within one month.

2 The applicant had difficulty in complying with such a time table and the plans were finally submitted on 8 December 2004 to the Court and the Court noticed that there were changes that were not part of the Court’s decision and I therefore listed this matter in for mention this morning.

3 The Court gave a recorded judgment at the on-site hearing on 17 September 2004 and the transcription is as follows:

4 “It seems to me that the council is not opposing the glazing in of the foyer area, nor opposing the realignment of the existing bedrooms with the balcony. (That is providing no greater floor area than currently provided in the plans, but a reconfiguration of the wall).

5 The council also is not objecting to the pergola that is already on the plan. It must be noted by the applicant that the definition of the pergola is that it always remain open and with timber or some other light weight material without being enclosed. The two issues in contention, as I understand it, are the additional windows in the southern elevation and the bedroom areas which will allow for four two bedroom units as opposed to the current bedroom units, that is, additional bedrooms to the upper level”.

6 This matter has come before the Court today (17 September 2004) as a s 96 application in respect of an approval granted by the then South Sydney City Council in August 1999 for alterations and additions to a residential flat building of the property known as 5 Tusculum Street, Potts Point.

7 The current s 96 application is for the enclosure of the foyer area and for the reconfiguration of the bedroom and balcony and the windows to the southern elevation for the additional bedroom that were approved under the 1999 consent.

8 The other issue is in respect of the four additional bedrooms that would be added to the top level, level five of the building.

9 The original application is one that was the subject of a deferred commencement and there were a number of matters that needed to be satisfied.

10 The s 96 provisions of the Act do allow for modifications and the Court must have regard to the merits of the situation. The South Sydney Development Control Plan allows for a floor space ratio of 1.5:1. The proposal as currently approved is 2.7:1 and with the additional floor area that would bring it to something in the order of 2.86:1.

11 The height of the building is some 15.8 m and the height in the DCP controls provide for 12 m. In terms of the planning provisions, the subject site is also within the conservation area of Potts Point. As a s 96 application the specific controls are not necessarily ones that I need to focus on, but I must look at the overall merits of the application and I must do an assessment under s 79C of the Act and in that regard I must have consideration to the impacts of the s 96 application.

12 It has been submitted to the Court that the amendments are minor, they may be minor when one looks at what was approved in 1999 but that is not the test for the Court. The Court must look at the impacts of what the amendments proposed today are. The Court has had the benefit of the applicant’s submissions and has also had the benefit of the original assessment report prepared by South Sydney Council and has seen the conditions and the plans that were approved.

13 I am satisfied in terms of s 96 that the amendments as proposed are ones that can be considered and that is it is substantially the same development but the amendments are not minor.

14 I now move to the merits of the assessments of the application. The council has agreed that it does not object to the glazing or enclosure of the foyer area and the minor movement of a wall between the bedroom and the balcony, that is described as the dog leg.

15 The real issue is the one of the additional bulk that would be created by the additional floor space of the four bedrooms at level five of the building and in my assessment, having regard to the adjoining property and having regard to the impact of the additional bulk, I am not satisfied that the s 96 warrants approval in respect of the additional bedrooms.

16 The building as currently approved provides for a second bedroom at this point and in my consideration I am not satisfied that another additional bedroom would be an appropriate addition to the building as it would only lead to increased bulk that is already in excess of the current controls.

17 With respect to the overshadowing if the Court was minded to consider it further I would allow for accurate shadow diagrams to be prepared but in my assessment the additional rooms and floor space are not justified.

18 The Development Control Plan provides for a mix in terms of accommodation and number of bedrooms. In my assessment this would not outweigh the impact that the additional bedrooms would create in terms of the bulk of the building. The adjoining buildings on both sides are much reduced in their scale. In the context of the area and the fit of the building it is more appropriate for the additional bedrooms not to be provided.

19 With respect to the windows on the southern elevation (it is noted that the windows on the northern elevation have already been approved) these come to within 1.35 m of the boundary. It has been generally agreed that the windows as proposed in the s 96 application would create privacy concerns for adjoining properties and in that regard it has been discussed as to what would be an appropriate alternative.

20 The applicant seeks 1.5 m sill height, however I am of the opinion that in order to ensure privacy to adjoining properties that a 1.6 m sill height is appropriate which would then allow for transparent glazing which would then provide for the amenity of that bedroom to be increased by having clear glazing and highlight windows which can be a maximum of 2.7 m in length with a sill height of 1.6 m. These also have the benefit of a westerly window or rather glazing to the terrace area.

21 The Court will provide for formal orders of consent on the basis of a new set of drawings to show or to reflect the Court’s findings above in this matter. It is important that a proper set of plans be submitted to reflect the Court’s decision and that these be provided before the formal orders of the Court are issued. On receipt of those plans I will then issue formal orders of the Court. The effect of my decision today is:

1. The s 96 application submitted to Council, and as amended, will be upheld in part.
2. The approved amendments are to be shown in an amended set of drawings that will be referred to in the formal Orders to be issued by the Court.
3. Condition 4 of council’s development consent will be amended to reflect the new drawings on receipt.”

22 From today’s proceedings the applicant will have the opportunity again to submit a set of plans within ten days of today’s date that reflect only those changes that the Court approved in September 2004. A set is to be also provided to the council for it to confirm that it reflects the Court’s decision. On the receipt of the amended plans I will issue the final orders in Chambers.

____________________
J S Murrell
Commissioner of the Court
rjs

In the Land and
Environment Court
of New South Wales

No. 10410 of 2004

Hexiva Pty Ltd

Applicant

Sydney City Council

Respondent

Order

The Court orders that:

1. The appeal under section 96(6) of the Environmental Planning and Assessment Act for the property known as 5 Tusculum Street, Potts Point, is upheld in part.

2. The s 96 application dated 25 July 2003 to modify the consent, determined by the then South Sydney City Council on 23 May 1999, is approved in part as shown on the amended plans prepared by Environmental Architecture Pty Ltd drawing Nos. 2/14/E and 3/14/E. The conditions of the consent of 1999 continue to take effect except as modified by the plans above. A copy of the consolidated conditions is attached at Annexure A.

3. The exhibits are returned except the above amended plans and the conditions.

Ordered: 10 May 2005

By the Court

Susan Dixon
Registrar
rjs