Meck v Waverley Council (2)
[2005] NSWLEC 363
•07/06/2005
Land and Environment Court
of New South Wales
CITATION: Meck v Waverley Council (2) [2005] NSWLEC 363
PARTIES: APPLICANT
Boris and Philip MeckRESPONDENT
Waverley CouncilFILE NUMBER(S): 11507 of 2004
CORAM: Tuor C.
KEY ISSUES: Development Consent :- s96 application
whether the proposal is substantially the same development
Whether the proposed basement level results in excessive floor space and bulk that would have unacceptable visual and energy efficiency impacts
Whether the proposal will set an undesirable precedent.LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996 (LEP 1996)CASES CITED: Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240 ;
Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [1999] NSWLEC 251 ;
Moto Projects No. 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298;
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75DATES OF HEARING: 29/04/2005
DATE OF JUDGMENT:
07/06/2005LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr I Hemmings, Barrister
SOLICITORS
John Lloyd & Co
Mr A Hudson, Solicitor
SOLICITORS
Wiltshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
6 July 2005
11507 of 2004 Meck v Waverley Council (2)
JUDGMENT
1 COMMISSIONER: This is an appeal against the refusal by Waverley Municipal Council (the council) of an application under s96 of the Environmental Planning and Assessment Act (EPA Act) to modify development consent DA562/2002 at 12 St Thomas Street, Bronte (the site).
2 Council approved the development application on 12 August 2003 to demolish the existing building and construct a part 2 and 3 storey attached dual occupancy development with garage parking and strata subdivision.
3 The s96 application seeks to amend condition 1 of the consent to incorporate amended drawings. The main change, and the one in dispute between the parties, is the proposed subfloor level and its use as a rumpus room.
4 Substantial parts of the works proposed in the s96 application have been constructed, including the subfloor level. In accordance with the decision of Talbot J in Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240 a s96 application which relates to development that has been already carried out can be considered on its merits.
5 For the reasons set out in this judgment, I have concluded that the proposed development is substantially the same as that approved by council and that the proposed modifications do not create an adverse impact that would warrant the refusal of the application.
The site and its context
6 The site is to located on the eastern side of St Thomas Street, between Gardyne and Macpherson Streets. The general area slopes towards Bronte Beach and is highly visible from a number of locations. The site is rectangular into shape with an area of 557.4sqm, a depth of 36.57m, a frontage to St Thomas Street and a rear eastern boundary of 15.24m. The site has a steep slope from the street to the rear. The dual occupancy development is currently under construction and the landform has been significantly altered.
7 Surrounding development includes dwellings ranging between two and three storeys. Immediately to the north of the site is a single storey dwelling at 10 St Thomas Street. Immediately to the east are dwelling houses fronting Gardyne Street, to the south is a part 2 and 3 storey residential flat building at 14 St Thomas Street. To the west, on the opposite side of St Thomas Street, are 2 storey houses located above street level.
Planning Framework
8 The site is zoned 2(a) Residential – Low Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible within the zone.
9 Development Control Plan No 20 – Dual occupancy Provisions (DCP 20) permits a maximum floor space ratio (FSR) of 0.5:1. The development has an approved FSR of 0.84:1 and the s96 application would increase the FSR to 1.31:1 by increasing the area of the lower ground floor level and enabling the subfloor level to be usable space. These areas are below ground level but are included in the FSR calculation.
10 The council planning assessment for DA562/2002 states that the “building envelope is generally consistent with other dwellings and flat buildings within the street, however, the floor space that would otherwise contribute to the bulk and scale is located at the rear of the building and within the lower level.” These areas are partly below ground level and the planning report considers they do not add to the bulk but “contribute to a technical non compliance with the floor space ratio.”
11 The permissible height under DCP 20 for a dual occupancy development is the same as the requirements for dwelling houses. Development Control Plan No 2 – Dwelling House Development (DCP 2) permits a maximum building height of 9.5m and a wall height of 7.5m. Building height is defined under DCP 2 as:
The greatest distance measured vertically from any point on the building (not being a vent or a chimney) to the natural ground level immediately below that point.
12 The council planning assessment for DA562/2002 states that the proposal has an overall roof height towards the rear of the building between 11.23m to northern elevation and 11.21m to the southern elevation. This was considered reasonable “due to the slope of the land and when compared with the adjoining flat building and the approved new dwelling to the north at No 10”.
The history of the proposal
13 A detailed history of the application is contained in the Statement of Basic Facts prepared by Mr P. Bull, the council Planning Manager, and in the Statement of Evidence prepared by Mr R Player, the Court Appointed Town Planner. In summary, the facts of relevance to the application are:
· DA562/2002 was lodged on 26 July 2002 for a part 3 and 4 storey attached dual occupancy development. The application was amended a number of times to delete the basement level and reduce the height and number of storeys.
· The application was approved subject to conditions on 12 August 2003. The approval included the architectural drawings (1-6/2002-5E dated April 2003 prepared by Studio Darwon, Exhibit B) and a landscape plan (drawing no. 9/2002-50A dated 26/7/2001 prepared by Studio Darwon, Exhibit 6). The rear terrace and planting concept are different between the architectural plans and the landscape plans. The landscape plan does not provide any levels and minimal levels are provided on the architectural plans. For this reason it is difficult to understand the interrelationship between the built form and its external areas from the approved drawings. The conditions included requirements for amendments to the approved landscape plan (Conditions 6, 7, 39 and 40), structural details of footings, retaining walls, slabs and beams (Condition 17) and requirements for excavation (Condition 19). The wording of the conditions is:
6. The rear eastern boundary is to be deep planted with appropriate species and be approved by Council. A detailed landscape plan is to [be] submitted for assessment and will include the said rear boundary and the subject site.
7. Proposed terraces to each occupancy at the lower, ground and first floor levels along the eastern elevation are to have a 900mm wide planter box with appropriate planting. Details of species are to be included in the submitted landscape plan.
17. Structural details prepared and certified by practising Structural Engineer being furnished to Council or Accredited Certifier in connection with footings, retaining walls, slabs and structural beams prior to the issue of a Construction Certificate.
19. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must:
a) preserve and protect the building from damage;
b) if necessary, must underpin and support the building in approved manner, and
c) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnished particulars of the excavation to the owner of the building being erected or demolished.
39. The Landscape Plan submitted to Council dated 26/7/2001 and received by Council 26 July 2002 is to be implanted [sic] as per the plan, except were amended by condition No 34.
40. The rear boundary of the subject site (east) is to landscaped with appropriate tree species, which will afford some privacy to adjoining properties to Gardyne Street. The applicant is to consult with Council’s Tree Management Officer prior to the issue of the Construction Certificate and amend the landscape plan accordingly.[Note: The reference to Condition No 34 is not correct]
· The landscaping conditions were satisfied by the approval of the amended landscape plan on 23 November 2003 (drawing nos. L01&L05 dated November 2003 and L02-L04&L06/23-030 dated October 2003 prepared by City Plan Landscapes, Exhibit 5). The approval by council’s Tree Management Officer only refers to condition 40, however, the submitted plans were for the whole development and addressed the requirements of the other landscape conditions, including the planting to the terraces on other levels required by condition 7. Although unclear, I accept that the plans satisfied the other landscape conditions. This plan shows levels and a planting concept for the rear terrace that are different to those in the architectural drawings but similar to the landscape plan approved with the development application. The rear terrace level, where it adjoins the building, is shown at RL47.85m, which appears lower than that shown on the architectural plans and consequently increased the height of the “podium” or base of the building. Conditions 17 and 19 were satisfied by the Geotechnical Report prepared by Jeffery and Katauskas and the structural engineering drawings prepared by Paul Bekker Engineering Design Pty Ltd (dated December 2003) for the Construction Certificate (CC03/083). Essentially the structural solution was a raft slab, the underside of which was at RL 47.05m. The location of the slab at this level resulted in the space that is now proposed to be used as the basement level and the rear terrace levels.
· On 22 December 2003 the Principal Certifying Authority (PCA) issued the Construction Certificate (CC03/083). This certificate described the development as a four storey attached dual occupancy.
· A development application (DA 844/2003) for landscaping works and two swimming pools was approved by council on 20 May 2004. The terrace levels and landscaping were similar to those approved under the development consent conditions. Further extensive excavation was also approved for the pool and its plant.
· Construction Certificate (CC04/041) for the pools was issued on 9 September 2004 by the PCA.
· The s96 application was lodged on 24 September 2004 and was notified to adjoining and nearby residents. Council received two objections to the proposal. These raised concerns about the increase in floor space resulting from the basement and concern about retrospective approval of a basement that had been excluded from the original approval but had subsequently been constructed supposedly because of excavation and structural requirements. Council refused the s96 application on 22 February 2005 for the reasons that became the Statement of Issues in this appeal.
The Proposal
14 The proposed modification is described on the application form as being a “redesign of structural footings and rearrangement of internal areas”. The Statement of Environmental Effects (SEE) which accompanied the application summarises the changes as:
· Redesign of the structural footings in response to structural engineering advice;
· the use of sub-floor area created by the modified footing design as a rumpus, plant and home automation equipment room in each dwelling;
· provision of stair access between the lower ground floor level and the sub-floor areas;
· enlargement of laundry of lower ground floor level within the existing excavation area;
· relocation of the ground floor water closet to the lower ground floor level laundry;
· minor internal reconfiguration of the ground floor level kitchen area.
15 The SEE states that:
In accordance with this condition [Condition 17], the structural engineers for the project, Paul Bekker Engineering Design Pty Ltd, advised that the design for the footings of the building required modification in order to address issues raised in a Geotechnical Report prepared by Jeffrey and Katauskas for the site.
“... due to the close proximity of the neighbouring structures and to overcome the variability in the supporting soil strata it was necessary for us to introduce a stiffened raft foundation slab, firstly to bridge the various soft soil and then for the raft slab to bear horizontally across the site in order that it did not add extra sliding loads to the already fully loaded adjoining retaining walls.” .In particular, advice prepared by Paul Bekker Engineering Design Pty Ltd comments:
16 These recommendations resulted in the subfloor area for which the PCA issued a Construction Certificate.
17 The SEE states that as the works were below ground the owner assumed development consent was not required for the changes. Council subsequently requested a s96 application to formalise these works, which is the current application before the Court.
18 The proposed modifications are described in more detail in the Statement of Basic Facts and Mr Player’s Statement of Evidence. The key difference is that the subfloor area is described as an additional level and the following changes to the elevations are included:
Additional side door and window to south and north elevations.
Additional verandah doors to subfloor rumpus room in the rear (east) elevation.
The issues
19 The Statement of Issues before the Court contained three issues which can be summarised as follows:
i) Whether the proposal is substantially the same development,
ii) Whether the proposed basement level results in excessive floor space and bulk that would have unacceptable visual and energy efficiency impacts, and
iii) Whether the proposal will set an undesirable precedent.
The Evidence
20 Mr Player, the court appointed town planning expert, provided a Statement of Evidence and oral evidence. I granted limited leave for Mr Bull to provide oral evidence in response to Mr Player’s evidence. This was done as concurrent evidence. Mr P Pether, the owner of 59 Gardyne Street, Bronte, provided evidence on site. His main concern was that retrospective approval of the proposal was inappropriate and “rewards” the applicant for work undertaken without consent. He disputed that the design of footings should result in the space for a basement and was concerned about the noise impacts and increase in activity that would result from its use and the outdoor area. In his opinion the increase in floor space resulted in a building of unacceptable bulk and removed the natural landform of the site. He considered the development to be uncharacteristic of the area that comprised cottages in garden settings.
Substantially the same development
21 Section 96(2)(a) of the EPA Act states:
(a) it is satisfied that the development which the consent as modified relates is substantially the same development….
A consent authority may, on application being made by the applicant or any other person entitled to act on the consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
22 In Issue 1 of the Statement of Issues, council contends that the development as proposed to be modified is not substantially the same as that for which consent was granted, in that:
The development as modified will be a 4-storey building instead of the 3-storey building
Exclusion of the basement level from the original assessment was a critical element and circumstance of the development consent; and
23 Pearlman J in Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [1999] NSWLEC 251 states the appropriate test to determine this issue as being:
90.The question then is whether, on the facts, the changes made in the issue B and issue C plans so substantially or significantly changed the development that it can be said that in effect a new development application has been made. In my opinion, the appropriate test for determining that issue is to be found in Vacik Pty Ltd v Penrith City Council (Stein J, 24 February 1992, unreported) which dealt with s 102(a) of the unamended EP&A Act. That section permits modification of a development consent if “… the development to which the consent as modified relates is substantially the same development”. Stein J at p 3 stated the test in the following terms:
… ‘substantially’ when used in the section means essentially or materially or having the same essence”.
91. That formulation of the test was expressly approved by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at 440.
93. Despite Mr Daubney’s opinion (which was not shared by Mr Sanders, Mr Giles or Ms Chapman) that the amendments were significant either in their own right or considered in totality as part of the whole of the proposed development, I have concluded that they are not so substantial or significant as to constitute in effect a new development application. In my opinion, the essential nature of the proposed development remained the same before the amendments as after them. It was a development comprising a discount department store, a supermarket, specialty shops, a community centre, car parking and landscaping, and it remained of that essential or material nature after the amendments had been made. The amendments are, in my opinion, matters of design, configuration and appearance. Whilst some of them may be significant, they do not change the essence of the development as initially proposed.……..
24 To determine whether the development is “essentially or materially or having the same essence” Bignold J in Moto Projects No. 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298, states:
54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.
56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially”” the same as the (currently) approved development.
25 Mr Player undertook a qualitative and quantitative assessment of the proposal. He examined in detail the approved development application and its conditions. He stated that on a quantitative assessment “the addition of the sub-floor level is, in my opinion, a design element which is ‘significantly different to the approved plans” but concluded that to determine whether the proposal is substantially the same as the approved development a qualitative assessment also needed to be undertaken. In undertaking this assessment, Mr Player, examined the history of the application, its conditions, subsequent approvals of the Construction Certificates and the swimming pool application. He stated that
Most importantly, the visual presentation of the attached dual occupancy building as a 4 storey building instead of a 3 storey building as originally approved by Council has arisen as a consequence of geotechnical and structural engineering requirements to satisfy Conditions 17 and 19 of Development Consent DA 562/2002, noting that Condition 1 of the development consent enables the amendment of the Council approved plans for the proposed dual occupancy building in order to satisfy other conditions of the consent.
26 Mr Player concluded that in considering the totality of the approval the proposal was substantially the same development as originally approved. He held this opinion even if the Construction Certificates and Development Application for the swimming pool were not considered. In his opinion, the changes to the approved development under the conditions of approval relating to landscaping and structural design resulted in a building of the same height, bulk and external appearance as that proposed in the s96 application.
27 Mr Bull held a different opinion in relation to the extent that the structural conditions could permit changes to the approved development. He considered that the changes to the approval as a result of the raft slab would have required a s96 application prior to the issue of the Construction Certificate. He stated that there would have been other options than the raft slab, which would not have resulted in a space that could be converted to a basement, especially when this area had been expressly excluded from the original application. He conceded that the approved landscape plan had changed the landform and increased the height of the podium, however he said that the appearance of the building was different if the lower level was opened up to accommodate floor space. This would appear as an extra floor rather than as a podium to the building, which are common in the Waverley area due to the steeply sloping landform. He considered that the amendment changed the building from a 3 storey to a 4 storey building that was visible from a number of public and private viewing positions. In his opinion the proposal was not substantially the same development.
28 I accept Mr Bull’s opinion that a three storey building over a podium or base has a different appearance to a four storey building even if it has the same overall height and bulk. If my assessment of the proposal were limited to a comparison of the approved architectural drawings and the current drawings I would conclude that the amendment is not substantially the same development. The approved plans show a 3 storey building set above an approximately 2m high solid base with the landform terraced to reflect the original slope of the land and extensively landscaped on its side boundaries and its rear eastern terraces. While I would have concerns about the bulk of this development, it would appear as a building that is stepped down the site with its overall bulk mitigated by its response to the slope of the land and landscaping.
29 The landscape plan, which formed part of the approval does not show the same relationship of building to the land. While deficient in detail and levels, it shows a flat rear terrace with perimeter planting and less planting along the side boundaries. The landscape plan that was approved under the conditions of consent reflects this landscape plan rather than the architectural plan and allows a rear terrace at a significantly lower level than the architectural plans and increases the height of the eastern wall of the podium to about 3m. It also permits stairs and terracing along the sides of the building where it was shown in the architectural plans as landscaping. The approval of these landscaped plans changed the appearance of the building from that of a 3 storey building over a podium base to a 4 storey building, with a blank wall at the subfloor level.
30 I do not accept Mr Hudson’s submission, for the council, that the approval of the landscape plan required by the conditions related only to the planting and not to the terraces or the levels. If this were the case the terraces and stairs should have been explicitly deleted from the approval. Practically, the treatment of the side boundaries, the relationship of the landscaped planter boxes to the terrace level and the terraces to the building would be inconsistent and undefined. To approve landscaping without understanding its relationship to the surrounding ground levels and building would not make sense.
31 I find that the council, through its approval of the architectural plans and landscape plans has approved the height, external bulk of the building and its relationship to the ground. Externally the appearance of the building as approved by Council is the same as that sought under the s96 application, with the exception of doors to subfloor eastern façade instead of the approved masonry wall and a window and door on the north and south elevation. These external changes do not significantly alter the external appearance of the building and I find that it is substantially the same development.
32 In reaching this conclusion, I note that the onus should be on the Applicant to submit architectural and landscape plans that are consistent and provide sufficient detail. It is open to a council to require further detail to ensure that the interrelationship of the built form and its landscaped setting can be understood. This is particularly important on sloping sites where there is extensive excavation and change to the natural landform, which can effect the appearance of the building. In this case this was not done. The Applicant’s submission of inconsistent plans and their subsequent approval by council has resulted in a development not anticipated by the planning controls.
33 Internally, the subfloor/basement space is a result of the information required to satisfy the structural condition. Whether this required a s96 application or not prior to the issue of the Construction Certificate, is not a question before this Court. While the basement is constructed and has been approved under the Construction Certificate it is part of the s96 application for which approval is sought and its merits and impacts must therefore be considered.
34 As I understand the evidence, the basement space results from the geotechnical conditions on the site and the structural design requiring a raft slab. While there may be other designs to meet these constraints these were not presented to the Court. In the absence of other expert evidence, I accept that the raft slab is required which consequently results in the basement space that is substantially below ground level on its north, south and west elevations. The increase in the area of the lower ground floor level is below ground level. The question then becomes one of whether the creation of these spaces is substantially the same development as approved. As the spaces are underground the external appearance of the building does not change to such an extent that it is not substantially the same development. If the basement space remains unused then the development would be clearly the same. But if used, it changes from three habitable floors to four.
35 As stated above, from the east the building as approved appears as four storeys. The question before the Court is therefore whether the use of the basement level is “essentially or materially or having the same essence” as the approved development. The approved development is for a dual occupancy. Each dwelling is a single occupancy. The use of the basement will provide extra space that can be used by the occupants but will not change the essence of the use or add additional uses beyond those reasonably expected from the residential use of a building. I therefore find that the use of the basement is substantially the same development.
Basement floor space and amenity
36 The issue of whether the basement would result in excessive bulk has been addressed above. The bulk of the development has been approved. The change of the eastern façade of the basement from masonry to glass doors will not change the appearance of the building when viewed from its wider catchment area. The eastern facade is set back below a balcony and from a distance the appearance of glass doors or masonry would be indistinguishable. The planting approved in the landscape plan and the existing vegetation on adjoining sites will screen the basement level from view and consequently the bulk and appearance of the building would be the same whether the s96 application is approved or not.
37 Mr Player has recommended conditions that have been agreed to by the Applicant to increase the landscape screening and require recessive colours and materials to mitigate the impact of the building when viewed from its wider catchment. These will assist to improve the appearance of the building from that approved but it will still appear as a bulky development that is not in character with the surrounding area.
38 The increase in area of the lower ground floor level and the basement space and their consequent inclusion in floor space calculations represents a considerable increase in the FSR permissible and approved for the site. DCP 20 does not include objectives for the FSR control. Mr Player stated that:
The underlying intent of a floor space ratio control for residential development is typically to limit the scale and bulk of a building or buildings to be constructed on a development site in order to be consistent with the existing and desired character of the residential streetscape of the locality, as well as to minimise potential adverse residential amenity impacts on adjoining residential properties such as loss of sunlight, privacy impacts, disruption to views and the like.
39 Mr Player considered that the additional floor space would not add any additional visual bulk to the appearance of the development as it is located in the rear western section of the proposed building, excavated into the site well below street level. As stated above, I agree that the appearance of the building will not change with the increase in area to the lower ground floor level and the use of the basement.
40 Impacts on residential amenity from the scale and bulk of the building already exist. The question is whether any unreasonable amenity impacts will arise from the use of the space and an increase in the intensity of use of the building. The extra floor space will not of itself result in a greater intensity of use. It is not a situation where the floor space will increase the number of dwelling on the site and therefore the occupancy levels. As stated above each dwelling will remain as a single occupancy dwelling. The increase in floor space will provide greater area that can be used but will not result in increased activity beyond that which can reasonably be expected of a residential development. The approval of the ground floor as habitable space will enable it to be used and provide a direct relationship to the terrace and swimming pool. The greater accessibility of these spaces may result in greater usage but that is not unreasonable. The experts agreed that the noise, privacy and amenity impacts from the use of the basement level are not beyond those expected of a residential development.
41 Mr Bull was concerned that the basement space had poor energy efficiency as its only source of light and ventilation were the doors at the eastern elevation.
42 Clause 3.4 of DCP 20 provides that:
- All dwellings must achieve a minimum of a 3.5 star rating under the National Accredited Housing Energy Rating Scheme (NatHERS).
43 The NatHERS Assessor Certificate indicates that the modified proposal would meet this control.
44 The basement rumpus room has a depth of about 12m which relies on the doors as its source of light and ventilation. The small “Foxtel and home automation room” has no direct light. The amenity of the rumpus room near the doors will be acceptable but those areas that are essentially underground spaces will have poor amenity. However, overall the dwelling complies with the DCP requirements and when considering the limited use of the spaces it is not sufficient grounds to warrant refusal of the application.
Precedent
45 Mr Bull was of the opinion that the number of storeys and the FSR of the modified proposal would be used as a precedent for other future developments in the area. He stated that the area is one that is undergoing change and that, although under construction, the development is already being cited as a precedent for other development applications.
46 In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, Lloyd J held that if the Court was considering an application for development which was both objectionable in itself and where there was sufficient probability that there would be further applications of a like kind, the fact that consent would operate as a precedent might be taken into consideration.
47 I accept the proposition that this development may operate as a precedent, however, as stated above the overall bulk and scale of the building is already approved and is therefore already a precedent. The basement space, the potential four habitable floors and the exceedence in the FSR control result from the previous approvals and conditions. The alternative to approving the s96 application would be that the space is not permitted to be used. This would not change the appearance or impact of the building. As discussed above there are no amenity impacts from the use of the space on adjoining residents or the future occupants of the building that would warrant its refusal.
48 I acknowledge that it may be used as a precedent, however, in my opinion the approved bulk and scale of the development is clearly out of character with the area and is a precedent of what not to approve rather than what to approve. I agree with Mr Player’s conclusion that had this been the original development application he would have been inclined to recommend refusal but given the circumstances of the case including the various approvals that have been granted and the limited scope of the s96 application it does not warrant refusal. Mr Player’s recommended conditions relating to landscaping and colours and materials will slightly reduce the impact of the proposed development but it will remain a bulky development that is highly visible.
49 I have amended the wording of Mr Player’s proposed condition requiring an amended landscape plan to refer to the approved landscaped plans in both this development consent DA562/2002 and the development consent DA844/2003 for the swimming pool. Both these approvals relate to the eastern rear terrace area and therefore need to be consistent. To achieve consistency I have also included an order that the landscape plan approved under development consent DA844/2003 be amended in line with the amended landscape plan required as a condition of this approval.
Orders
50 For the above reasons the Orders of the Court are:
1. The appeal is upheld.
2. The s96 application to modify the Development Consent DA562/2002 to construct a dual occupancy development at 12 St Thomas Street, Bronte, is approved and the consent is amended in accordance with Schedule A.
3. Within a time period agreed between the parties, the Applicant is to submit a landscape plan for the approval of Council’s Landscape Architect to amend the landscape plan approved under condition 18 of Development Consent DA844/2003. The amended plan shall address the requirements of new condition 42 in Schedule A to ensure consistency between DA562/2002 and DA844/2003.
4. The exhibits, except exhibit A, may be returned.
5. No order as to costs.
6. Liberty to restore.
__________________
Annelise Tuor
Commissioner of the Court
Schedule A
Delete condition 1 and insert new condition 1 as follows:
Add the following new conditions:1 Compliance in all respects with Amended Plan Nos 1-6/2002-5E dated April 2003, received by Council on 13 May 2003, tables and documentation prepared by Studio Darwon as amended by Drawing Nos ST05 001 Revision B, 002 Revision B, 003 Revision B, 004 Revision B, 005 Revision C, 006 Revision C, 007 Revision C, 008 Revisions C, 009 Revision A, dated 28 January 2005, prepared by Space Control Design, except where amended by the following conditions of consent. It should be noted that the maximum building height of the proposal will not exceed RL61.54 and a RL61.123.
- 41 That the proposed detached dual occupancy building shall have a maximum total floor space of 733sqm and a maximum floor space ratio of 1.31:1 in accordance with the definitions set out in Development Control Plan No - 20 Dual Occupancy Development.
42 An amended landscape plan is to be submitted for the approval of Council’s Landscape Architect which amends the Landscape Plan drawing no. 9/2002-50A dated 26/7/2001 prepared by Studio Darwon and approved by Council on 12 August 2003 (refer condition 39) and amended by drawing nos. L01&L05 dated November 2003 and L02-L04&L06/23-030 dated October 2003 prepared by City Plan Landscapes approved by Council on 20 November 2003 (approved under conditions 6, 7 and 40) to include the following:
a) deep planting with appropriate advanced tree plant species within the planter box areas along the rear eastern and side boundaries of the site as shown in L01/23-030 dated June 2004 (Condition 18 of Development Consent DA 844/2003).
b) the advanced tree plant species are to have a minimum height at maturity of 4.5 metres above the finished ground level of the planter boxes, so as to screen the subfloor level of the proposed dual occupancy building.
c) the pool, paving and lawn areas approved under condition 18 of Development Consent DA 844/2003.
d) the RLs of the planter boxes, terraces and lawn areas.
- 44 The applicant is to provide details of external finishes and colours for the proposed dual occupancy building to the satisfaction of Council which are to include non reflective glazing to windows and sliding doors along the rear eastern elevation and with all walls having an external finish of low tones and recessive colours (rather than bright colours) so that the proposed building, particularly the subfloor level will visually blend into the existing landscape and residential built environment.
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