Misho and Associates Pty Ltd v Waverley Council

[2005] NSWLEC 93

Land and Environment Court

of New South Wales

CITATION:

Misho & Associates Pty Ltd v Waverley Council [2005] NSWLEC 93

PARTIES:

APPLICANT
Misho & Associates Pty Ltd

RESPONDENT
Waverley Council

FILE NUMBER(S):

11511 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Section 96 modification - proposed basement - laundry - increased FSR - impact on views

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Development Control Plan No. 21 - Dwelling House
Development

CASES CITED:

Tenacity Consulting v Warringah Council [2004] NSWLEC 140;
PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 14

DATES OF HEARING:

03 & 04/03/2005

EX TEMPORE JUDGMENT DATE:

03/04/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Whealy, solicitor
SOLICITOR
Pricewaterhousecoopers Legal

RESPONDENT
Mr S Brockwell, barrister
SOLICITORS
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

4 March 2005


11511 of 2004 Misho & Associates Pty Ltd v Waverley Council

JUDGMENT

1 This appeal is against the council’s refusal of s 96 modification application for a residence at 502 Bronte Road, Bronte. The residence is under construction and the modifications include a number of minor detailing items together with the following more substantive ones:

i) The creation of a basement laundry, with drying/storage area. This opportunity has arisen due to the finalisation of the foundation detailing required for structural support for the dwelling on this site. It adds approximately 30 sq m of floor space to the development.

ii) Increasing the size of bedroom 3, toilet en-suite by extending the southern alignment of the bedroom level closer to Bronte Road. This results in a reduced setback of approximately 900 mm and encroaches into an open undercroft area, which is currently approved.

This modification is also a consequence of the structural engineering details which require additional shoring to support the retaining wall along Bronte Road alignment.
The modification adds a further 14 sq m of floor space to the development.


iii) The extension of the privacy wall around the upper level terrace off the living room.

iv) Reconfigure stairway to upper level and add store room and toilet.

v) Reposition beach access gate, and

vi) Deletion of external stairs off TV room to be replaced with landscaped area.

2 As a result of these modifications the floor area increases by some 44 sq m, giving an FSR of 1.24:1, which is above the approved FSR of 0.97:1. However, the DCP controls allows a maximum FSR of 0.98:1 for this lot. Consequently the issues nominated concern:

(1) Whether or not the proposal is “substantially the same”, as required by s 96 of the Environmental Planning and Assessment Act, 1979 .

(2) Whether or not the proposed increase in floor area impacts upon the amenity of adjoining residents and is acceptable in respect to the provisions of Development Control Plan No. 2 – Dwelling House Development .

(3) Whether or not the reconfigured upper level results in any view loss from neighbouring properties and from the public domain.

(4) Whether or not the proposed changes are in the public interest having regard to the number of objections received.

3 For the resolution of the appeal, the parties agreed to Mr A Smith being appointed the Court Expert for planning and he has presented a detailed assessment of the issues.

4 The appeal was conducted by way of an on-site hearing so that the impacts of the changes could be assessed, considering the substantial completion of the dwelling at this stage. This also provided the opportunity for the objectors to present their concerns and this included evidence from:

• Mr & Mrs Truscott, neighbours from 2/2-14 Pacific Street, Bronte;
• Mr L Doyle, town planner who presented a detailed report on behalf of Mr & Mrs Truscott;
• Mr Brown, an interested neighbour.

5 Evidence on behalf of the applicant was also presented by Mr M Vasiljevich, project architect.

6 In dealing with the first issue, a number of submissions have been made regarding the most appropriate way of resolving this. Mr Brockwell submits that the resultant building will present as a 3/4 storey building, with a significant increase in FSR to 1.24:1, when compared to the approval of the 2/3 level building with a complying FSR of .97:1. Consequently it creates further disamenity and is not substantially the same development.

7 Against this Mr Whealy submits that the modifications are contained within the approved building envelope, i.e. the height, building footprint remain the same and consequently there are only minimal impacts.

8 In his analysis of this issue, Mr Smith says that notwithstanding the marginal increase in floor area, which is substantially at basement level , the development is still characterised as “a single detached dwelling house, and despite the increase in the floor area, remains a 3 bedroom domicile. Also, he says there is no change to the arrangement of the garaging on -site.

9 Mr Smith states:

In terms of height, while there is a change in description from part 2/3 levels to part 3/4 levels, there is no perceived increase in the footprint, height, bulk or scale of the proposal. In other words, the externalities arising from the proposal as modified are the same or similar to those evident in the Development Consent.

10 Accordingly, he concludes that the proposal is substantially the same. I then note that this conclusion is consistent with that expressed by the council’s assessing officer in his report.

11 In my opinion then, when reasonable consideration is given to the qualitative aspects of this modification application, I consider that Mr Smith’s assessment is appropriate and I accept his reasons for concluding that this is substantially the same development, particularly that it remains a 3 bedroom dwelling that is contained within the approved building envelope.

12 The next concern relates to the merits of the changes in terms of impacts on amenity of the neighbours, based on the DCP No. 2 provisions. Mr Smith has comprehensively dealt with the relevant provisions of the DCP and this has not been challenged. He says that, cl 30 of LEP 1996 requires a consideration of the “Aesthetic appearance of development”, and as noted above there is minimal change to the footprint, height, bulk or scale of the approval, and other than the potential loss of soft landscaping to the cutting, the modification satisfies this requirement of the LEP. He also notes there are numerical standards prescribed in LEP 1996, which are satisfied.

13 With respect then to Development Control Plan No. 2 – Dwelling House Development – he says that the s 96 proposal maintains the same degree of compliance/non-compliance with the provisions of DCP No. 2, except with respect to the FSR. In his more detailed assessment, that the non-compliance is 41.2 sq m he confirms that the entirety of the additional floor space is located below ground level and within the approved building footprint at “Living Level”.

14 He then refers to the following objectives for the control of the size and bulk of dwelling houses that are prescribed in cl 4:

i) To ensure that new dwelling houses and alterations and additions dwelling houses are of an acceptable size and bulk in relation to the shape of the allotment;

ii) To ensure there is no overdevelopment of dwelling house sites;

iii) To ensure that any negative impacts on adjoining or nearby residential, buildings on adjoining or nearby allotments are minimized and if possible, eliminated;

iv) To ensure that dwelling house development adds to and does detract from the existing streetscape and character of the area."

15 Mr Smith says that the development proposal, as modified, results in an acceptable size and bulk in terms of this area as the envelope is essentially unchanged as seen from the existing boundaries. There is no change in the intensity of the use of the envelope, which remains as a 3 bedroom house. Any negative impacts have been minimized to the extent that there is no additional overlooking or overshadowing, and the change to the regime of views enjoyed by nearby properties is minimal. There is no impact evident in respect to streetscape impact or change in the character of Bronte Beach except in respect of the landscaped setting to the cutting, which could be enhanced with some minor modification to the plans. On this aspect he concludes that the modification application satisfies the objectives In respect of the floor space ratio, notwithstanding the non-compliance of 41.2 sq m subject to the consideration of some additional landscaping.

16 In my assessment then, I am satisfied that the additional floor area, which is substantially concealed in basement areas does not alter the approved building envelope or its aesthetic impact and it also reasonably satisfies the objectives of the FSR control in the DCP, so as to warrant approval.

17 The next issue concerns view loss from neighbouring properties and this was carefully observed on the view, considering that the subject terrace and enclosure has been constructed to achieve better privacy. However, this does result in some reduction in ocean views from the neighbouring properties.

18 But in response to this, the applicant has clarified the specification for the enclosure that this includes horizontal wire strands to support vegetation. This then to some degree softens the building impact and allows some filtered water views. Considering that the width of this subject terrace wall, as it presents to the view corridor the neighbouring property is relevantly small and that the additional height over the approved screen is approximately 500 mm, I am satisfied that this modification does not materially adversely affect the overall panoramic ocean, beach and shoreline views which are maintained for the neighbouring properties. This is in the context of the existing approved building envelope which does allow some restriction on the views.

19 Mr Smith agrees that the degree of view impact of this terrace enclosure is minimal. He says that the issue of view loss has been considered and having regard to the 4 step process set out in the Tenacity Consulting v Warringah Council [2004] NSWLEC 140, the views affected and the extent of the impact, and the reasonableness of the proposal in the circumstances in this case, result in his conclusion that the loss of views from the increase in the height of the kitchen terrace wall is acceptable. Therefore in my assessment of the evidence on the revised additional screened enclosure, it does not impose such adverse view impacts on the existing view corridors to warrant rejection.

20 Finally the objections have been carefully considered in this matter and mainly deal with exceedance of the FSR control, impact on view losses and amenity impact. I also note that I inspected the property 501/501A and the objection from that property, together with other objections in the council’s bundle were considered.

21 In the ultimate then, I am satisfied that the merits of the proposed modifications are satisfactory in this case, in terms of meeting current controls to a reasonable degree, so as to warrant approval.

22 At the completion of this hearing, the applicant applied for costs.

23 Having considered the respective submissions made concerning the Costs Application, I consider the following matters are appropriate in this case:

1. Insofar as the initial council responses to the appeal appear minimal, nevertheless four (4) specific issues were nominated which provided the applicant with details of the areas of council concern.

2. From this the parties agreed that the Court Appointed Expert Mr Smith undertake an independent planning assessment covering these issues.

3. Whist his conclusion is consistent with the council’s assessing officers for approval, nevertheless final discretion rests with the council.

4. Obviously from this case considerable concern has been expressed by the objectors about public interest considerations in closely adhering to the development controls, namely the prescribed FSR in DCP No. 2. There is also disagreement about the degree of intrusion on view impacts, which in the ultimate relies on a subjective judgment. In this regard I accept that council can come to a different subjective decision to its staff and the Court Appointed Expert, based on all the contributing factors it is required to consider.

5. Despite the staff recommendation and Court Appointed Expert conclusions, I do not consider that council was compelled to accept these and enter consent orders.

6. Just the same as the Court is not compelled to accept the Court Appointed Expert’s opinion on detailed matters, likewise the council is not. In this regard I refer to the principle that was dealt with by His Honour Talbot J in PDP (Darlinghurst Apartments) Pty Ltd. v City of Sydney Council [2005] NSWLEC 14 at par 31. His Honour considered changes to the proposed design suggested by the Court Appointed Expert witness. He said:
The Court has no way of knowing whether the criticism of the treatment of the façade would be a widely accepted professional view. Furthermore, the language and context of the DCP does not in my opinion mandate a design code which can be regarded as expressing a subjective specific detailed preference for the manner of presentation of development in the locality. Accordingly, unless the Court is convinced the changes proposed by the Court Appointed Expert are critical, as a matter of principle is not obliged to accept them entirely.

Adopting and applying that principle to the present case, I do not think applying that principle in the present case, I think the council can reasonably expect to pursue the appeal to the ultimate, considering the substantive challenge to its FSR control and is not obliged to accept its planner’s interpretation, or the Court Appointed Expert’s opinion and agree to consent orders.


7. It is apparent the substantive issue of whether the development is substantially the same is arguable, particularly when different weights may be given to either the quantitative or the qualitative aspects, depending on circumstances of the case. Therefore I accept that council may have considered this should be tested.

8. Likewise I accept that the exceedance of the FSR in this case represents significant change to the prescribed FSR allowed in the DCP and I accept that council would prefer the greater adherence to its controls exercised and would not have exercised the wider discretion that the applicant proposed.

9. Under these circumstances I accept that these issues can finally be resolved by the Court and do not consider it incumbent on the council to automatically accept its staff recommendation or the Court Appointed Expert’s opinion.

10. Furthermore, I note that even if consent orders were entered, nevertheless the relative merits of the case would still have to be considered by the Court, on an open basis considering the objections lodged, with the prospect that the consent orders may not be granted. It needs to be understood that the Court does not rubber stamp consent orders.

11. Under these circumstances then, I think that s 96 modification appeal has generally followed the normal procedure to allow the Court to finally resolve the matter, without council having compromised its position by way of consent orders.

12. There I do not consider it reasonable to award costs against council for following this approach and the cost application is dismissed.

13. The parties should note paragraph 10 of the Consolidated Practice Direction concerning the timing and manner of making submissions to the Chief Judge on proposed cost orders.

14. The parties should also note that the Chief Judge’s discretion is confined to whether or not he should concur in the proposed costs orders.

24 The Court orders then are:

1. The appeal is upheld.

2. The s 96 modification to Development Consent No. 891/2002 is allowed in accordance with the details shown on drawings A00 to A02 Issue B, A03 Issue C, A04 to A05 Issue B, A06 Issue C, A07 Issue C, A08 Issue C and A09 to A13 Issue B.

3. The exhibits may return except Exhibits 1 and A.

4. The application for costs is dismissed.

____________________
R Hussey
Commissioner of the Court
Rjs/ljr