McGargill v The Council of the City of Sydney

[2020] NSWLEC 1396

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

McGargill v The Council of the City of Sydney [2020] NSWLEC 1396

Hearing dates:

14 July 2020

Date of orders:

10 September 2020

Decision date:

28 August 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Proceedings 2020/21734

The Court orders that:

(1)   The appeal is dismissed.

(2)   The exhibits are returned, except for Exhibits A and B.

Proceedings 2020/55187

The Court orders:

(1) That the development control order dated 30 January 2020, file reference HBC/2019/221, is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 to the form of modified development control order annexed to these orders and marked “A”.

Catchwords:

APPEAL – modification application – modification granted by the Council with a condition imposed – condition required upper floor rear addition to be reduced to what was originally approved – application of the relevant development control plan – control requires that additions respect the predominant rear building line - whether flexibility should be exercised

APPEAL – development control order – demolish works order – order remains appropriate – extended to provide additional time for compliance

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Sydney Local Environmental Plan 2012

Cases Cited:

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Sean McGargill (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2020/21734; 2020/55187

Publication restriction:

No

Judgment

1. COMMISSIONER: A two-storey terrace at 219 Belmont Street, Alexandria, has been the subject of some building works that have gone beyond the scope of the development consent allowing alterations and additions to the terrace (D/2018/987) (“the consent”). The building works include the construction of a first floor addition beyond the alignment approved by the consent. The owner of the site, Mr Sean McGargill, applied to modify the consent to incorporate the building works, including the first floor addition. On 4 October 2019, the Council of the City of Sydney (“the Council”) approved the modification application but imposed a condition numbered (1A), which required the first floor rear building line to remain as originally approved. In proceedings number 2020/21734, Mr McGargill appeals to the Court against that determination (“the planning appeal”). On 30 January 2020, the Council issued a development control order requiring the demolition of that part of the first floor addition that is beyond the approved alignment (“the order”). In proceedings 2020/55187, Mr McGargill appeals against the order (“the order appeal”). Both the planning appeal and the order appeal are before the Court.

Background to the appeals

2. The consent that is sought to be modified was granted on 7 January 2019 and permitted alterations and additions to the existing dwelling, including a rear extension of the first floor (second storey). Prior to the grant of the consent, and in response to a request by officers of the Council, Mr McGargill made changes to the design of the first floor addition by reducing its length so that the rear building line of the first floor addition matched the rear building line of 217 Belmont Street (“approved building line”).

3. Building works were then carried out on site in a manner contrary to the consent, including that the first floor addition was built beyond the approved building line, extending further to the rear of the site.

4. The modification application the subject of this appeal was lodged on 3 September 2019. The application sought changes to the consent by lengthening the first floor addition beyond the approved building line, reflecting works already undertaken. The modification application also included internal reconfigurations, the expansion of the ground floor addition to include a bathroom, and the deletion of a louvred pergola at the rear. On 4 October 2019, the Council approved some of the modifications sought. It imposed a condition (condition 1A) that required the first floor building line to remain as approved in the consent. The condition is as follows:

“(1A) DESIGN MODIFICATIONS

(a) No changes to the external dimensions of the first-floor addition are approved under D/2018/987/A.

(b) Prior to constructing any element modified in D/2018/987/A, amended drawings must be submitted to and approved by Council’s Area Planning Manager / Area Planning Coordinator, restoring the first-floor addition to the dimensions approved under D/2018/987.”

5. Mr McGargill is dissatisfied with the determination of the Council to grant the modification subject to this condition, and appeals to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”). As there is no right to appeal against the imposition of a condition on the determination of a modification application, the planning appeal concerns the whole of the decision made by the Council. In considering the planning appeal, the Court has the power to re-exercise the functions of the Council in determining the modification application (s 39 of the Land and Environment Court Act 1979 (“the LEC Act”)).

6. The order was issued pursuant to s 9.34 of the EPA Act, which allows a development control order to be given as a general order in accordance with the table to Part 1 of Sch 5. Item 3 of Part 1 of Sch 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval” or “is erected in contravention of [the EPA Act]”. It is not disputed that the construction of the first floor addition beyond the approved building line meets this description.

A summary of the parties’ positions and the outcome of the appeal

7. The Council opposes the removal of condition 1A on the grant of the modification application. Its position is that the first floor addition beyond the approved building line (“the longer first floor addition”) is not sympathetic to the predominant rear building line, and will not be compatible with the urban pattern of the contributory buildings in the heritage conservation area in which the site is located. The Council argues that the setback control, which requires the predominant rear building line to be respected in new development, serves to ensure that the amenity of the neighbours is retained and that the significance of the heritage conservation area is not eroded.

8. Mr McGargill instead argues that the longer first floor addition does not have any amenity impacts or impacts on the heritage conservation area. Mr McGargill’s position is that the addition results in a better outcome for the development, which is appropriate in circumstances where the modified development will remain compliant with the key development standards and where there has been a departure from the setback control on other properties on Belmont Street.

9. It is self-evident that the appropriate outcome in the order appeal depends upon the outcome of the planning appeal. That is, if the planning appeal is allowed and the modification to the consent is granted without condition 1A, then the parties agree that the order should be modified so as to require works to be carried out for the building to achieve the required Fire Resistance Level as required by the National Construction Code (2019) (“NCC”). Alternatively, if condition 1A remains, then the order can be modified to extend the time for the demolition of that part of the first floor addition that is beyond the approved building line.

10. For the reasons that are set out below, I have determined that the relevant control should be given significant weight and that the longer first floor addition causes amenity impacts. I below consider, therefore, that the first floor addition should be constrained to the approved building line, and that condition 1A should remain in place and the building works beyond the approved building line ought to be demolished in accordance with the order.

The site and the locality

11. A site view was undertaken at the commencement of the hearing, with the legal representatives for the parties. The site is legally described as Lot 1 DP 549093 and is also known as 219 Belmont Street, Alexandria NSW. It is rectangular in shape, and has an area of 138.1m². It has a primary frontage to Belmont Street and a secondary frontage to Belmont Lane.

12. A two-storey terrace house occupies the site, and the longer first floor addition is currently under construction at the rear. It extends beyond the alignment of both adjacent properties, and is the subject of the appeal.

13. The site is not a heritage item, but is a contributory building located within the Cooper Estate Heritage Conservation Area.

14. The surrounding area is predominately residential. The site forms part of a row of six terrace houses at 213-221 Belmont Street. Three of those terraces immediately to the north of the site form a group with uniform architectural style. The site is not part of that group, and is similarly not part of a group with the terrace to the south. This can be seen in the photo of the streetscape, shown at Figure 1.

15. The remainder of the block (between Harley and Maddox Streets) generally contains a mix of dwelling houses and semi-detached dwellings.

The longer first floor addition

16. The first floor addition that was approved by the consent contained an additional bedroom, bedroom 3. A floor plan is shown at Figure 2.

17. The modification application now seeks the longer first floor addition, which contains both bedroom 3 and a study. The floor plan that is sought is shown at Figure 3. The additional room added by the longer first floor addition is the study, and the additional length of the longer first floor addition is 2.843m.

18. A significant portion of the first floor addition has been constructed, and the incomplete addition extends to the rear of the site in the same depth and width as that which is sought in the modification application. Photographs of the longer first floor addition is shown at Figure 4.

Relevant planning considerations

19. As outlined above, in considering the appeal, the Court re-exercises the functions of the consent authority, the Council, in determining the modification application pursuant to s 4.55(2) of the EPA Act.

20. The exercise of the power in subs 4.55(2) requires the consent authority, in this case the Court, to be first 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”. There was no issue raised by the Council with respect to this being satisfied, and I accept that what is sought in the modification application results in a development that is substantially the same as that which was the subject of the development consent.

21. Subsection (3) of s 4.55 then provides:

(3) 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 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

22. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

23. The site is zoned R1 – General Residential pursuant to the Sydney Local Environmental Plan 2012 (“SLEP 2012”), and the applicable height development standard is 9m and the applicable floor space ratio (“FSR”) development standard is 1.25:1. The proposed modified development does not cause a breach of either the height or FSR development standard.

24. The aims of the SLEP 2012 include the following:

…

(h) to enhance the amenity and quality of life of local communities,

(i) to provide for a range of existing and future mixed-use centres and to promote the economic strength of those centres,

(j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities,

(k) to conserve the environmental heritage of the City of Sydney,

…

25. The SLEP 2012 includes a design excellence clause, which provides:

6.21 Design excellence

(1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design.

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

(3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters—

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c) whether the proposed development detrimentally impacts on view corridors,

(d) how the proposed development addresses the following matters—

(i) the suitability of the land for development,

(ii) the existing and proposed uses and use mix,

(iii) any heritage issues and streetscape constraints,

(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) the bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

(xii) achieving appropriate interfaces at ground level between the building and the public domain,

(xiii) excellence and integration of landscape design.

26. Section 4.15(1)(a)(iii) of the EPA Act requires that I take into consideration the provisions of the development control plan, which is the Sydney Development Control Plan 2012 (“SDCP 2012”).

27. The site is located in the Belmont Street (Coopers Estate) locality, which is bounded by Mitchell Road, Huntley, Fountain Streets and Lawrence Street/Euston Lane. The principles for development in the locality are as follows (from Section 2, 2.7.9 of the SDCP 2012):

“(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

(c) Retain the visual prominence of landmark buildings, particularly former corner stores, warehouses, hotels/pubs along Mitchell Road.

(d) Retain the fine grained residential subdivision pattern, the predominant low scale of built form and the consistency of building types in the area.

(e) Protect the visual appreciation of heritage and contributory items by designing infill to respond to height, massing, and predominant horizontal and vertical proportions of existing buildings as well as design elements of adjacent buildings.

(f) Protect the significance of subdivision by retaining the traditional small lot grid subdivision pattern by not permitting further amalgamation of sites in the Cooper Estate conservation area.

(g) Limit vehicle access to lots from rear lanes.

(h) Respond to the scale of terraces/cottages by retaining the traditional narrow lot, small footprint fine grain character of terraces.

(i) Enable higher built form along Lawrence Street (eastern edge) and Mitchell Road but constrain the street wall height to maintain a pedestrian scale and existing character.

(j) Design apartment buildings to align to and address the street at ground level.

(k) Encourage adaptive re-use of commercial and industrial buildings along Mitchell Road, Fountain and Lawrence Streets for the purpose of mixed-use residential and commercial premises.

(l) Encourage the retention and adaptive re-use of Federation and Interwar factories and warehouses buildings, where possible.”

28. Section 4 of the SDCP 2012 sets out the controls for certain types of developments, including dwellings. Part 4.1.2 concerns setbacks, and has the following objectives:

“Objectives

(a) Ensure that new development relates to the existing setback patterns.

(b) Maintain the setting of heritage items and of buildings within a Heritage Conservation Area.”

29. Two of the controls are relevant to the rear setbacks, at (2) and (4):

“(2) Within heritage conservation areas, new development is to relate to the established development pattern including the subdivision pattern, front, side and rear setbacks.”

“(4) New development and alterations and additions must respect and be sympathetic to the predominant rear building line.”

30. Section 3 of the SDCP 2012 contains general provisions, and Part 3.9.6 concerns heritage conservation areas:

“Buildings and sites within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area.

The contribution of these buildings is based on studies carried out by heritage consultants for the City.

New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings.

(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to:

(a) topography and landscape;

(b) views to and from the site;

(c) significant subdivision patterns and layout, and front and side setbacks;

(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(e) the interface between the public domain and building alignments and property boundaries; and

(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.”

31. The Council also relies on Section 1, Part 1.1, which concerns circumstances in which an applicant might say that it is not relevant to comply with the controls:

“If there are circumstances when it is not relevant to comply with the controls in this DCP, applicants must provide a written submission clearly demonstrating compliance with the objectives of this DCP, and detailing the reasons the control/s should be varied. The proposed variation must result in a better outcome and meet all objectives of this DCP, and demonstrate that it will result in better outcomes. The submission must also clearly demonstrate the variation sought will not adversely impact on the local amenity.”

32. Section 4.15(3A) applies to development that is the subject of a development application, and requires at s 4.15(3A)(b) that, if a development does not comply with applicable standards in the development control plan, the consent authority is “to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards”. However, this does not explicitly apply to modification applications, and is not caught by s 4.55(3). Nevertheless, in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167, prior to the enactment of s 4.15(3A), the Court of Appeal considered that a relevant provision in a development control plan was “entitled to significant weight in the decision making process but was not, of course, determinative” (at [75]). In Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472, McClellan CJ considered the approach to be adopted to a development control plan as outlined in various decisions of the Court of Appeal, and summarised them in [87] as follows:

“· A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.

· A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

· A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.

· A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.

· Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.”

33. As such, whilst s 4.15(3A) does not strictly apply to a modification application, some flexibility should be afforded in the application of the controls in the SDCP 2012 to what is sought in the modification application.

The objector evidence

34. The modification application was notified by the Council, and two submissions from resident objectors were received. In addition, observations of the longer rear addition were made from the rear private open space of one objector, at 221 Belmont Street, who also provided a further written submission supplemented by brief oral comments. The issues raised by those submissions can be summarised as follows:

• The extent of the first floor addition is excessive and has adverse impacts on the character of the area and the amenity of neighbouring properties,

• The wall of the constructed addition does not appear to comply with the Building Code of Australia, and

• Access to the adjoining property for works to be carried out should be obtained lawfully.

The expert evidence

35. With respect to the compliance of the first floor addition with the NCC, expert evidence was given in a joint report by Mr Mark Bachir, a building consultant engaged by Mr McGargill, and Mr Mick Sachmacinski, a building surveyor employed by the Council. They agree that the building does not comply with Part 3.7.2.2 of the NCC, which requires the external wall to have a Fire Resistance Level of 60/60/60, but that compliance can be achieved with additional work.

36. Five experts participated in a joint conference on the extension of the first floor addition beyond the rear building line and its impacts, and prepared a joint report. Their areas of expertise extended to town planning, heritage and urban design. They are as follows:

• Mr Lyle Tamlyn, a town planner employed by the Council.

• Ms Priyanka Misra, a heritage specialist employed by the Council.

• Ms Allison Cronin, a registered architect and urban designer employed by the Council.

• Mr Scott Lockrey, a town planner engaged by Mr McGargill.

• Mr James Phillips, a heritage consultant engaged by Mr McGargill.

37. They agree that the longer first floor addition will result in a development that complies with the height and FSR development standards under the SLEP 2012.

38. They also agree that Section 4.1.2 of the SDCP 2012 requires new development to relate to the established pattern of rear setbacks, and that the longer first floor addition exceeds the first floor rear building line of other developments between 209 and 241 Belmont Street, with the exception of 225 Belmont Street, which is a rear building line that was not assessed against the SDCP 2012.

39. Further, they agree that the subject block bound by Harley Street, Belmont Street, Maddox Street and Belmont Lane consists of 40 dwellings, of which three first floor rear additions go beyond the predominant rear building line. Two of those were built prior to the current controls.

40. With respect to the rear lane streetscape at the street level, they agree that it presents as fences and rear lane garage doors on frames of various types. The high level views have some substantial trees, the first floor level rear building lines and the rear roofscapes along both Belmont Street and Mitchell Road. They agree that the first floors of the rear wings of the terraces at 209 to 217 Belmont Street have a consistent rear building alignment that is partially visible from the rear lane.

41. They also agree that the longer first floor addition will not result in any significant visual privacy, acoustic privacy or shadow impacts to neighbouring properties. Further, it will not affect sunlight to living room windows of adjoining development. They agree that there will remain more than 8m² of sunlight to neighbouring open space for two consecutive hours, which is compliant with the requirements of the SDCP 2012.

42. However, the experts remain in disagreement with respect to the amenity impacts of the longer first floor addition and its impacts on the heritage conservation area. Their evidence is considered further below.

The parties’ submissions on the rear building line

The applicant’s submissions

43. Mr McGargill submits that whilst the relevant provisions of the SDCP 2012 are a mandatory consideration under s 4.15(1)(a)(ii) of the EPA Act, flexibility is appropriate and ought to be exercised in the present circumstances. This submission is made on a number of grounds.

44. Firstly, Mr McGargill says that there has not been a strict application of the rear setback control in Belmont Lane, noting that an exception to the control was granted at 275 Belmont Street under the current controls in SDCP 2012. This means that the setback control should not be given significant weight, consistent with the principle in Stockland Development Pty Ltd v Manly Council that a development control plan “which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied” (at [87]).

45. Secondly, Mr McGargill submits that maintaining the first-floor rear setback at 11.6m prevents development on the site from reaching the development potential it could achieve by applying the height and FSR development standards in the SLEP 2012. Mr McGargill relies on the evidence of Mr Lockrey, who opines that an applicant “should have a realistic expectation of being able to undertake redevelopment works in the knowledge of the maximum built form standards”. In circumstances where the FSR standard is 1.25:1 and the height development standard is 9m, Mr McGargill submits that the proposal is reasonable as it results in a FSR of 0.93:1 and a height of 6.3m, well below the development potential for the site.

46. Thirdly, Mr McGargill submits that the objectives of the control are met, as there are no adverse impacts caused by the extension of the first floor addition beyond the approved building line. Mr McGargill relies on the evidence of Mr Lockrey that there are no amenity impacts or streetscape impacts, and that the proposal is not antipathetic to the heritage conservation area. Mr McGargill says that any such impact is limited to the breezeway of the adjoining neighbour. In particular, Mr Lockrey’s evidence is that the departure from the SDCP 2012 rear setback control is appropriate in light of the following factors:

“a. the dwelling’s rear setback does not diminish the streetscape character of the locality. The locality’s primary significance is the front boundary / elevation to Belmont Street with a varied streetscape to Belmont Lane a traditional service lane;

b. the bulk and scale (building envelope) of the dwelling is generally consistent with other dwellings in the surrounding locality;

c. although the built form is visible from the laneway when directly in front of the site, when moving in a northerly or southerly direction away from the site, the visual impact of the first floor level is reduced by other built form in between (both at the laneway level and above) and established mature vegetation within numerous nearby properties which provides an effective screening of built form at the first floor level;

d. a low density single residential dwelling house is maintained which is consistent with the locality’s low density residential character;

e. curtilage to the neighbouring properties has generally been maintained;

f. the rear setback does not have an identifiable impact on the use and amenity of the private open spaces or primary living rooms of the neighbouring properties;

g. the rear setback at the first floor level does not preclude the provision of appropriate, useable and complying private open space on the site;

h. side elevation openings for the proposed bedroom within the contended setback zone are not proposed. The 430mm deep Juliet balcony at the rear of the bedroom is provided with privacy screens to each side. This balcony has not been designed to be a particularly useable area of private open space, rather a zone that enables indoor/outdoor conditions within this room. There is no visual or aural privacy impact;

i. the rear setback does not result in unacceptable overshadowing impacts to ground level private open space or openings to rooms at both levels (see later) which has been retained in an equitable manner. Small areas of land are impacted and their relative dual useability is not compromised. Limited overshadowing is expected given the closeness of built form, including shared masonry wall boundary fencing and other structures;

j. the rear setback allows does not preclude the maintenance of the neighbouring dwellings at the ground floor including their breezeways and at the first floor level;

k. clear sightlines, including limited outlook (as expected given lot size and type of built form) are maintained. Views and vistas from ground floor level rooms and / or breezeways are typically not provided. Natural daylight, ventilation and access within these areas will remain. Direct solar access to this area is an unrealistic expectation given traditional adjacent zero building alignment;

l. the dwelling remains appropriately oriented in a front to back (east to west) direction. This is the prevailing characteristic of all dwellings;

m. the rear setback does not in any way preclude the appropriate redevelopment of any neighbouring or nearby property;

n. the location of the rear built form appropriately responds to:

- solar access (see later) and impacts to neighbours;

- internal and external amenity for the future occupants;

- the site’s constraints (i.e. location of adjacent built form, lot size, boundary fencing and heritage conservation area location); and

- the design and character of adjacent development”

47. Mr McGargill also relies on the evidence of Mr Phillips, who opines that the principal contribution to the heritage conservation area by the subject and adjacent properties is their presentation to Belmont Street, and the urban pattern of garages and fences on the rear lane “obscures all but the closest views of the rear of the Belmont Street Terraces”. As such, Mr Phillips considers that the longer first floor addition will have no impact on “the consistency of terrace rows, their scale and proportion or roof design”.

48. In light of this evidence, Mr Eastman, counsel for Mr McGargill, submits that a better outcome is achieved through the provision of additional accommodation that meets the needs of the applicant whilst also achieving compliance with the key development standards and avoiding any adverse amenity impacts. In such circumstances, Mr McGargill submits that the Court ought to exercise flexibility in the application of the rear setback control and allow the rear extension of the first floor beyond the approved building line.

The Council’s submissions

49. The Council instead submits that the rear extension beyond the approved building line does have impacts, and also has an impact on the significance of the heritage conservation area. Further, the Council submits that Mr McGargill has not addressed how the objectives of the rear setback control are achieved notwithstanding the non-compliance of the longer first floor addition with that control.

50. The first impact identified by the Council is the impact on the amenity of 221 Belmont Street. The Council relies on the evidence of Mr Tamlyn and Ms Cronin. Mr Tamlyn’s evidence is that the longer first floor addition will significantly diminish the amenity of 221 Belmont Street with a greater portion of the breezeway directly fronted by a two-storey wall, which results in overbearing impacts that affect the amenity of the open space. Mr Tamlyn considers that this is contrary to the design excellence provisions in cl 6.21 of the SLEP 2012, which discourage bulk that does not adequately consider surrounding development. Similarly, Ms Cronin opines that the longer first floor addition creates unacceptable bulk impacts, with an excessively long two-storey wall along the open space of 221 Belmont Street, which reduces the amenity of the private open space, creating overbearing impacts, and dominating the sense of space by creating a negative sense of enclosure.

51. In determining whether that impact is acceptable or not, Ms Cronin’s evidence is that the impacts of a two-storey wall on a shared side boundary, where the wall adjoins private open space, are acceptable “when they occur in a repeated fashion along adjoining sites”. She opines that they are acceptable when they are anticipated, and that in such circumstances the overbearing nature of a two-storey wall can be “traded off” against an acceptance that it occurs in a repeated fashion to a certain depth and there will not be a similar impact further to the rear. Ms Cronin opines that the longer first floor addition rejects that framework, seeking to increase floor space at the expense of the amenity of the neighbouring site.

52. The second impact identified by the Council is the future impact of similar rear extensions. As Section 4.1.2 of the SDCP 2012 relies on surrounding development to regulate rear setbacks, the evidence of Mr Tamlyn is that endorsing a longer addition on the subject site may result in future structures causing similar impacts.

53. The third impact identified by the Council is that the longer first floor addition is not in harmony with the established and predominant character of Belmont Street. The evidence of Ms Cronin is that the character is established by the consistency of form, including the established upper level rear building line, which is sought to be maintained by the controls in Section 4.1.2 of the SDCP 2012. Ms Cronin opines that the longer first floor addition does not respect the predominant upper rear building line and is therefore not consistent with the established character.

54. The Council also contends that the longer first floor addition adversely affects the heritage conservation area by not responding sympathetically to the bulk and siting of other contributory buildings in the row. Ms Misra’s evidence is that the consistent rear setbacks at 209-221 Belmont Street contributes to the consistency of the row of terraces, and the reduced setback that will result from the longer first floor addition disrupts that consistency. She opines that this is contrary to principle (c) in Section 3.9.6, which requires that the development respond sympathetically to views to and from the site. The Council submits that this can be perceived by high views from the lane to the rear of the terraces. Ms Misra’s evidence is that, above the row of garages and fences, the first floor addition can be clearly seen in the immediate context of the other first floor rear wings, and that it is apparent that it projects closer to the rear boundary than the others. As such, Ms Misra opines that the proposed longer first floor addition breaks the continuity of the consistent rear wings at 209-217 and 221 Belmont Street. Ms Misra therefore opines that the longer first floor addition is not consistent with principles (b), (d), and (e) of Section 3.9.6, which are recited above at [30] and require the development to be sympathetic to the siting and scale of adjoining or nearby contributory buildings, and to the interface between the public domain and building alignments and property boundaries.

55. With respect to the three dwellings within the block that have rear building lines that depart from their adjoining neighbours, the Council points out that two of them were approved prior to the current controls. With respect to the third, at 275 Belmont Street, the Council relies on the assessment report, and submits that in the circumstances of that development the immediate vicinity did not have a consistent building line. The Council submits that this is in contrast to the present development, where it is agreed that there is a consistent rear building line from which the longer first floor addition departs.

56. The Council submits that the development standards in the SLEP 2012 with respect to the FSR and the height cannot be applied as a benchmark for foreseeable bulk when other factors such as SDCP 2012 setback, heritage and design excellence provisions apply to the site.

57. Further, the Council submits that the matters set out by Mr McGargill are insufficient to satisfy the Court that a departure from the rear building line setback control in cl 4.1.2 is acceptable, consistent with s 4.15(3A) of the EPA Act. Additionally, the Council submits that the absence of a submission pursuant to cl 1.1 of the SDCP 2012 does not allow the Council, and the Court exercising the function of the consent authority, to properly determine whether the departure from the SDCP 2012 will create a better outcome and meet the objectives of the control.

58. The Council submits that in the absence of any basis on which to allow a departure from the rear setback control, and without there being any justification for the additional floor space beyond the approved building line, it can only be concluded that a departure from the control will be contrary to the objectives of the standard. Those objectives seek to ensure that new development relates to the existing setback patterns and maintains the setting of buildings within the heritage conservation area.

The rear building line should be retained as originally approved

59. The experts and the parties agree that the longer first floor addition (beyond the approved building line) exceeds the first floor rear building line of other developments between 209 and 241 Belmont Street, with the exception of 225 Belmont Street. Further, there is nothing in its design that reduces its scale to respect the first floor rear building line of the neighbouring dwellings. As such, it is clear that the longer first floor addition does not comply with SDCP 2012, which requires that the addition be sympathetic to the predominant rear building line.

60. Whilst the controls in the SDCP 2012 are not determinative, they remain a focal point in the decision-making process on the modification application, consistent with the principles in Zhang v Canterbury City Council and Stockland Development Pty Ltd v Manly Council. In the present circumstances, I am satisfied that the rear setback control should be applied to constrain the first floor addition to the approved building line, and that it would not be appropriate to allow a departure from the control or to exercise flexibility in its application to the extent sought by Mr McGargill. I reach this conclusion for the following reasons.

61. Firstly, significant weight should be given to the controls in Section 4.1.2 of the SDCP 2012. I consider that, consistent with the evidence of Ms Cronin and Mr Tamlyn, the controls achieve an appropriate planning outcome by maintaining the character of the area through a consistency in built form, and by establishing a pattern of development that provides equitable amenity across neighbouring sites. The requirement of the controls, for alterations and additions to respect and be sympathetic to the predominant rear building line, achieve this outcome, which is consistent with the objective of the standard that “new development relates to the existing setback patterns”. Although this constrains the development that can occur on the site, this is an appropriate constraint given the Council’s objective to maintain the consistency in the row of terraces, and is consistent with the principle in Stockland Development Pty Ltd v Manly Council that “a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan” (at [87]). Contrary to the submission made on behalf of Mr McGargill, I accept that this control has been applied consistently in the block bound by Harley Street, Belmont Street, Maddox Street and Belmont Lane, with one departure only by an approval for a first floor rear extension at 275 Belmont Street in circumstances where there was some inconsistency in the rear building line with the dwellings adjacent.

62. Secondly, I accept the evidence of Ms Cronin that there are amenity impacts on the private open space of the adjoining neighbour at 221 Belmont Street. Whilst the length of the longer first floor addition does not extend beyond the breezeway at 221 Belmont Street, I accept her evidence that its extent beyond the upper level building line of 221 Belmont Street, its location along a shared boundary, and its height at two storeys, dominates the sense of space in the rear private open space and creates a negative sense of enclosure. This is consistent with what was perceived at the site view, is supported by the evidence of Mr Tamlyn, and is not satisfactorily contradicted by Mr Lockrey’s evidence.

63. Thirdly, I accept Mr Tamlyn’s evidence that, as Section 4.1.2 of the SDCP 2012 relies on surrounding development to regulate rear setbacks, endorsing a longer addition on the subject site may result in future structures causing similar amenity impacts. In my view, the longer addition on the subject site and the potential for future structures would also erode the existing character and consistency of the rear built form in the six terraces, which I consider is perceptible from the high views from Belmont Lane. This is consistent with the evidence of Ms Cronin and Ms Misra, and would be in direct contradiction to the objective of the control, which is to maintain the setting of buildings within a heritage conservation area.

64. Fourthly, the basis upon which a departure from the standard is sought to be justified is the additional accommodation to meet the needs of the residents. The “additional accommodation” is, in fact, a study room. I do not accept that the private interests of the owner or occupant are sufficient to warrant a departure from a control which I have considered should be given significant weight, and where I have considered that the departure will have amenity impacts on the private open space of the neighbouring property.

65. For these reasons, I do not consider it appropriate to exercise flexibility in the application of the rear setback control to allow the longer first floor addition as sought by Mr McGargill. Consistent with the control, the first floor addition ought to respect and be sympathetic to the prevailing first floor rear setback, and there are no circumstances present or alternate solution offered that would warrant a departure from that control or achieve its objectives.

Outcome of the planning appeal

66. As a consequence of my findings above, condition 1A should remain. There being no other issue in dispute between the parties, the Council’s decision on the modification application should remain undisturbed. Having so determined, the question arises as to the form of orders appropriate in the planning appeal.

67. The Council’s determination of the application to modify the development consent on 4 October 2019 took immediate effect in modifying the consent. In contrast to an appeal against the grant of development consent, where s 8.13(1) of the EPA Act operates such that “the development consent ceases to have effect” on the lodging of the appeal, there is no equivalent provision in a modification appeal that suspends the modified development consent or the determination of the modification application.

68. Accordingly, the appropriate order is to dismiss the planning appeal, leaving the Council’s determination of 4 October 2019 and the consequent modified consent undisturbed.

69. In proceedings 2020/21734, the Court orders that:

1. The appeal is dismissed.

2. The exhibits are returned, except for Exhibits A and B.

Outcome of the order appeal

70. In circumstances where condition 1A will remain and the longer first floor addition is therefore erected contrary to the relevant planning approval, the order to demolish that part of the first floor extension that is beyond the approved building line should also remain in place.

71. Consistent with the Court’s power to modify an order on the appeal (pursuant to s 8.18(4)(b) of the EPA Act), I am satisfied that the time for compliance should be extended. Mr McGargill requests a period of 6 months, and notes that the objector at 221 Belmont Street wants formal legal arrangements in place to allow access. Although the Council considers that 8 weeks is adequate, there is no evidence against the longer period and I am satisfied that a time period of 6 months is acceptable.

72. The current terms of the order require the demolition of “a building (First floor extension being bedroom 3 located at 219 Belmont Street…”. The area to be demolished is then shown on the second page of the order. However, compliance with this order would require demolition of a greater part of the building than the longer first floor addition. The alignment for the inner wall of bedroom 3 as constructed (with the study adjoining) is further from the rear boundary than the outer wall of the bedroom 3 as approved (without the study). This can be seen in the extract from the plans in [16]. The consequence is that the demolition of bedroom 3 as constructed results in a smaller first floor addition (of around 3.130m length) than what was approved in the consent (4.950m length). It seems to me that Mr McGargill is entitled to construct the first floor addition in accordance with the development consent, and that this aspect of the order should be rectified so that the terms of the order require demolition only of that part of the first floor addition that extends beyond what was approved in the consent. However, this issue was not raised by the parties, and has come to my attention only after reserving my decision on the appeals. As such, the parties should be given an opportunity to respond to this issue in the form of agreed court orders in the order appeal. It is also appropriate for me to grant liberty to restore the matter, which will allow the parties to raise any issues that arise with respect to this observation, and to address the Court in the event there is no agreement on the final orders.

73. In proceedings 2020/55187, the Court directs that:

1. The parties are to provide agreed court orders in the appeal, within 7 days, to reflect the finding in [71] and the observation in [72] of the judgment.

2. Liberty to restore is granted on 2 days’ notice.

Addendum made on 10 September 2020

74. Subsequent to my findings and in accordance with the terms of directions in [73] of my judgment of 28 August 2020, the parties provided me with consent orders and an agreed modified order for the order appeal. I am satisfied that the modified order accords with my findings.

75. In proceedings 2020/55187, the Court orders:

1. That the development control order dated 30 January 2020, file reference HBC/2019/221, is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 to the form of modified development control order annexed to these orders and marked “A”.

……………………

J Gray

Commissioner of the Court

Proceedings 2020/55187:

Annexure A (580824, pdf)

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Amendments

10 September 2020 - See addendum for final orders in proceedings 2020/55187 at [75].

Decision last updated: 10 September 2020