Molnar v Waverley Council
[2005] NSWLEC 75
•02/17/2005
Land and Environment Court
of New South Wales
CITATION: Molnar v Waverley Council [2005] NSWLEC 75
PARTIES: APPLICANT
Robert Balazs MolnarRESPONDENT
Waverley CouncilFILE NUMBER(S): 11481 of 2004
CORAM: Murrell C
KEY ISSUES: Development Application :- Alterations and extensions to dwelling - over-shadowing - bulk - costs
LEGISLATION CITED: Waverley Local Environmental Plan 1996
Development Control Plan No. 2DATES OF HEARING: 17/02/2005 EX TEMPORE JUDGMENT DATE: 02/17/2005
LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr Molnar, self represented litigant
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMurrell C
17 February 2005
11481 of 2004 Robert Balazs Molnar v Waverley Council
JUDGMENT
1. This is an appeal against the refusal of Waverley Council’s development application for the property known as 45 Kenilworth Street, Bondi Junction. The proposal incorporates: an upper floor extension, enlargement of the dwelling to provide for 3 bedrooms; and a courtyard within the buildings.
2. Currently on the site there is a recently constructed garage with a studio above and this has been incorporated in the calculation of the floor space ratio.
3. The council originally refused the development application on the basis that it considered it represented an overdevelopment of the site and it was not in keeping with the heritage conservation area as provided for in its local environmental plan and development control plan.
4. At this on-site hearing this morning the Court has heard evidence from the Court appointed expert, Mr Michael Neustein and the Court has the benefit of a report or Statement of Evidence that he prepared and the applicant has also had the opportunity to respond to his suggested amendments and he is prepared to amend the final plan.
5. The proposal must be assessed in terms of the impacts on the adjoining properties, the Court had the benefit of hearing from and inspecting the properties of the adjoining owners and in particular the properties at Nos. 45 and 47 Kenilworth Street. The issue of overshadowing and the imposition of additional bulk by the two storey portion of the building at the rear was considered. During discussion this morning and with the benefit of Mr Neustein’s expertise and the fact that the applicant has not objected to the rear pavilion part of the dwelling having a skillion roof of a low pitch with appropriate materials, such as corrugated roof.
6. The Court has also had the benefit of understanding a reduction of the rear upper level from 2 m to the north as to what this would achieve in terms of perception of less bulk and a decrease in the solar impact, that is the overshadowing for the adjoining property at No. 43. The Court also attended the property at No. 41, and its rear yard, and also had the opportunity of viewing the subject site from the bedroom. I have had consideration to the fact that there will be a change in the skyline from both 43 and 45 from the bedrooms and other rooms that face east and in my assessment the impacts are not unreasonable in my assessment.
7. The issue of overshadowing has been further assessed by Mr Neustein here today and he has indicated that there will be some increased overshadowing in comparison with the existing building in particular around the 9 0’clock winter solstice 21 June, that is the worst case scenario.
8. I understand that solar access is valued by people greatly. I have also had regard to the fact that the dwellings face north and enjoy solar access to a north facing outside front area, which also benefit from a high fence to Kenilworth Street. While this may not be approximate to living areas,
nonetheless, it still has the advantage of solar access to that portion of the open space area of the dwellings.
9. In assessing this development application as Mr Neustein has done it is a matter of balancing what the needs of the applicant is in terms of additional space and to ensure that the impacts are not unreasonable. In this regard the issue of privacy and overlooking for the owners of No. 43 was assessed. The applicant proposes a Juliet style balcony from the upper bedroom at the rear of the property and the owners of No. 43 had concerns about the privacy overlooking.
10. In my assessment today it is agreed with Mr Neustein that reducing this balcony to 800 mm and allowing for a timber railing would obscure direct vision from inside the room to the courtyard next door. Furthermore, I have had regard to the fact that this is a secondary use room and not one that is proximate to the living area and secondary use rooms are considered to fall into a different category and do not impose the same overlooking concerns.
11. The fact that the upstairs bedroom section has been pushed forward to the north by some 2 m has been considered in terms of the impact of the rear balcony as well and I am satisfied that the rear balcony will not represent unreasonable overlooking for the adjoining property. The movement 2 m also assists in mitigating overlooking.
12. The development application must also be assessed in terms of council’s controls. That is, Development Control Plan No. 2 for Dwelling House Development including provisions with respect to floor space ratio. The floor space ratio for the subject site is a proportional one in terms of the size of the site and it is calculated to be .835:1.
13. The amendments as proposed by Mr Neustein still result in an exceedance. (The movement 2 m forward for the rear portion and reconfiguration of the internal courtyard.) The maximum floor space ratio of 0.865 is considered appropriate in the circumstances of this case in terms of the fact that the bulk has been reduced to the rear and the overall envelope, therefore, is reduced .
14. There are no specific controls for solar access in the DCP, although it does suggest that a two hour minimum for solar collectors, but nonetheless the proposal will not have unreasonable impacts in terms of overshadowing and the design changes have assisted in this regard.
15. With respect to the Local Environmental Plan the LEP, the Waverley Local Environmental Plan 1996 the relevant objectives for the zone are: to allow housing in the form of dwelling houses and boarding houses; to maintain and improve the amenity and existing characteristics of the locality, predominately characterised by dwelling houses. I must also have regard to cl 9, the objectives of the LEP and I am satisfied that the proposed development is consistent with the zone objectives.
16. The other relevant controls in the LEP relate to the heritage of the area. Clause 45, in particular subcl (3), “when determining whether a development application is required, the council must take into consideration the extent for carrying out that development and the effect on the heritage significance of the conservation area”.
17. I am satisfied that the proposed amendments and the further amendments as discussed on the site with the Court appointed expert today will not significantly impact on the heritage conservation area, in particular the Kenilworth streetscape elevation is important. The street is somewhat eclectic but most pleasant and attractive. The dwellings to the west of the subject site including the subject site have high front fences, the bulk of the addition is setback from the front alignment of the existing dwelling and in my assessment this is an appropriate design solution, especially having regard to the adjoining property at No. 47 which is a single storey dwelling. The proposal will sit comfortably in the streetscape and respects the integrity and significance of No 47 in the streetscape and heritage conservation area.
18. The Court sees no reason why the proposal to incorporate the changes referred to above, and to be shown in an amended plan, should not be agreed to as consented to by the parties. The council this morning was satisfied that the amendments suggested by the Court appointed expert would overcome many of their concerns. However, the Court has considered the application in terms of the neighbours’ concerns and I am satisfied that the further resolution of issues today will result in a development that warrants approval.
19. The final orders of the Court will be issued in Chambers and they will be subject to the receipt of an amended plan within 14 days to reflect the changes identified in Mr Neustein’s report, in particular moving the rear upstairs area some 2.04 m to the north, together with the consequential changes in terms of the ground floor wall and the courtyard, and redesign of the rear pavilion over the master bedroom such that it is a skillion style roof of a low pitch.
20. On the basis of the evidence today and my assessment the orders of the Court are:
- 1. The appeal in respect of the property known as 45 Kenilworth Street, Bondi Junction, is upheld.
2. The development application submitted to Waverley Council, and as amended, as shown in the amended plans at Exhibit C, is approved subject to the conditions of consent contained in Annexure ‘A’.
3. The exhibits with the exception of ‘A’, “C” and ‘3’ are returned.
4. Costs are reserved.
_______________
J S Murrell,
Commissioner of the Court
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
17 February 2005
JUDGMENT ON COSTS11481 of 2004 Robert Balazs Molnar v Waverley Council
1. After I delivered my extempore judgment on site on the merits of the development application the applicant raised the issue of costs. Mr Molnar is seeking costs from the council for his share of the Court-appointed expert, Mr Michael Neustein.
2. Mr Molnar submitted that the Council consistently advised him from the time the appeal was lodged that Council would not have an expert present at the OSH and that Council would rely on its officers' assessment report and that it would be a matter for the Commissioner to determine. Mr Molnar was subsequently contacted on behalf of the respondent just prior to the date when the on-site hearing was set down and advised that Council now considered a joint expert should be appointed to prepare a report to the Court. Mr Molnar felt he had no option and that he was obliged to agree to such an appointment.
3. In the circumstances it seems fair and reasonable that the Council pay more than half the costs of the CAE, however, given that the suggestions of the CAE have been adopted it is reasonable for the applicant to pay a portion. The Court noted that formal procedures for CAE have recently been implemented and it is unlikely the above situation would occur again. However, on balance I considered that in the absence of the now established procedures for CAE Mr Molnar should not be prejudiced.
4. In the circumstances I consider it fair and reasonable that the Council should pay two-thirds the cost of the CAE and I will seek the Chief Judge's concurrence to the making of such an Order. The parties have 14 days to make a submission on costs to the Chief Judge.
___________________
- JS Murrell
Commissioner
For concurrance judgment see Molnar v Waverley Council [2005] NSWLEC 308
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