Neville Joel Katz v Waverley Council

[2017] NSWLEC 1266

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Neville Joel Katz v Waverley Council [2017] NSWLEC 1266
Hearing dates:	30 January 2017
Date of orders:	31 January 2017
Decision date:	31 January 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1. The appeal is dismissed. 2. The exhibits are returned.
Catchwords:	MODIFICATION : - Development consent to extend the depth of a first floor balcony – variation of the established rear building line – undesirable precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2012 Waverley Development Control Plan 2012 (Amendment No. 3)
Cases Cited:	Goldin and Another v Minister for Transport [2002] NSWLEC 75
Category:	Principal judgment
Parties:	Neville Joel Katz (Applicant) Waverley Council (Respondent)
Representation:	N Katz, self-represented litigant (Applicant) S Patterson , solicitor (Respondent) Solicitors: S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/309380
Publication restriction:	No

EX TEMPORE JUDGMENT

1. COMMISSIONER: Mr Katz is the owner of one of a pair of semi-detached dwellings located at 19 Kenneth Street, Tamarama (the Site). The adjoining semi to the east is 17 Kenneth Street. On 24 September 2014, Waverley Council granted Mr Katz a development consent (DA 253/2014) for alterations and additions to his property including; internal reconfiguration of the spaces within the semi, a first floor addition and new decks /balconies to the rear at each level with a storeroom at the ground level.

2. The approved development was subject to condition 2 (b) which reduced the depth of the lower ground floor balcony to 1.8 metre. The condition provides as follows:

2. General modifications …

…(b) The existing rear building line of the lower ground floor and ground floor levels shall be retained as existing resulting in the deletion of the existing home office /study (i.e. retain the balcony ) . In this regard, the balcony on the lower ground floor shall remain as existing.

3. On 29 April 2015 the Mr Katz sought approval from the Council to modify the approved development, including the layout and the roof alterations. That modification application was approved on 3 August 2015.

4. On 23 October 2015 a further application pursuant to section 96(2) of the Environmental Planning & Assessment Act 1979 (EP& A Act) was lodged with the Council. It sought the amendment of condition 2(b) to enable the depth of the ground floor balcony to be extended from 1.8m to 3m (an extension of 1.2m).

5. Following assessment, the Council determined to refuse consent to the modification for the following reasons:

1. Pursuant to Section 79(c)(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development is not considered to satisfy clauses 5.5 (1) (b)(ix) and (2) (b)(iii) of the WLEP 2012 as the proposed development is not considered to be appropriate for the surrounding area due to the size and bulk of the proposal.

2. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development is not considered to satisfy the Council's Waverley Development Control Plan 2012 in respect to the following provisions of the DCP as follows:

3. The control concerning Part C1 1.4.1 front and rear building lines (a) and (b) as the proposal seeks to vary the established rear building line to the ground floor.

4. The control concerning Part C1 1.7 Visual and Acoustic Privacy (c) as the proposed balcony extension exceeds the controls for the maximum size of a balcony or deck.

5. The proposed development is considered to result in detrimental impacts on the desired future character of the area and the built environment of the locality, having regard to section 79C (1) (b) of the Environmental Planning and Assessment Act 1979.

6. The proposal is not in the public interest.

6. Mr Katz has appealed against the Council’s decision under s 97AA of the EP&A Act. This judgment concerns this appeal and explains why I have decided to refuse consent to his application to modify condition 2(b) and dismiss this appeal.

FACTS/ EVIDENCE

7. The background facts, statutory controls and the contentions between the parties are set out in the Council's Statement of Facts and Contentions dated 14 December 2016 (Exhibit 2). I do not need to repeat that detail save to note the following matters.

8. Mr Katz’s property (and the adjoining semi) present to Kenneth Street as a single level double garage at the front boundary. Due to the topography of the Site the dwelling presents to the rear as a three storey scale and is in unison with the rear setback of the adjoining semi. The Site is rectangular with a northern front boundary and southern rear boundary of 6.2 m respectively, and a depth of approximately 46m. The Site has an area of 282.2m2 and has a steep decline from Kenneth Street to the rear, with a difference of approximately 10m between the front and rear boundary. The properties on this southern side of Kenneth Street typically have their primary living and orientation to the rear which has views to Mackenzie Bay and Tamarama and Bronte Beaches. The rear southern boundary adjoins a landscape conservation area and the Bondi to Coogee coastal walk. It is proximate to a number of public recreation areas in all directions.

9. The land is zoned R3 Medium Density Residential under the Waverley Local Environmental Plan 2012 (WLEP) and is not listed as a heritage item or within a conservation area. The locality contains a variety of residential development including semi-detached dwellings, detached dwellings and residential flat buildings with varying rear setbacks, approved at different times under the Council’s controls.

10. Despite the eclectic nature of the development in the vicinity of the Site, the parties’ planning experts, Lindsay Fletcher and the Council's Senior Development Assessment Officer, Beth Matlawski, agreed (for the purposes of the Council’s Waverley Development Control Plan 2012 (Amendment No 3) (WDCP)) that the visual catchment of the Site includes the properties at no’s 13, 15, 17, 19, 21 and 23 on the southern side of Kenneth Street. And, while Mr Fletcher thought that no’s 11 and 25 were also relevant properties the focus of the evidence was the residential flat building described as (bookends) and the development in-between.

11. The extent of the visual catchment of the Site is relevant because the rear building line setback development control in cl 1.4 of the WDCP invites an assessment of the predominant rear-building line of the existing main buildings on adjoining properties either side of the subject site (generally three or four dwellings) in order to determine the appropriate ground floor and first floor building line rear setback. While, Mr Fletcher initially took issue with the requirement to comply with the rear setback controls in the Amendment No 3 version of the WDCP (because it is not the current version which has slightly different wording) he ultimately accepted that the DA had been lodged during the currency of the earlier WDCP and was thereby caught by the savings provision within the Policy. That said, the wording of the setback development control in Part C cl 1.4 is open to various interpretations. After some discussion Ms Matlawski and Mr Fletcher agreed that a mathematical averaging of the existing setbacks in the visual catchment was not the best way to determine the "predominant rear building line". Instead, the experts agreed that an inspection of all of the properties within the visual catchment from the rear was the best method to assess the predominate rear building line at ground level and first floor level. It was also accepted after a consideration of the dictionary definitions that the word “predominate” could be read to mean “prevailing”.

The predominate rear setback

12. Despite agreeing how to identify the predominate rear building line for this development after such assessment the experts reached different conclusions. Their competing opinions are outlined in the joint report (Exhibit 4) and were explained to me during the Court’s view of the Site from the coastal walkway and later at the hearing in the Courthouse.

13. Mr Fletcher is of the opinion that there is no “prevailing” or predominate rear building line in the relevant visual catchment. That said, he identifies the residential flat buildings as being the strongest and most noticeable buildings and concludes that these buildings mark the extent of the rear building line. In that circumstance he believes that the Applicant’s modest 1.2m balcony extension easily sits within the predominate existing building line and thereby complies with the setback control in the relevant WDCP. Mr Fletcher also endorses the Applicant’s evidence given onsite about the usability of the exiting balcony. He agrees that the existing balcony adjoining the modified living area is too small for use as an entertaining area. He believes that condition 2(b) needs to be modified so that the balcony can be extended to provide appropriate amenity.

14. The Council, through its planner Ms Matlawski maintains that there is a predominate rear building line setback in the vicinity of the Site, at the relevant level, which is demonstrated by the alignment of the immediately adjoining properties at 21, 17 and 15 Kenneth Street. Having regard to the Council‘s determination of the predominate building line in the vicinity of the Site it contends that the proposed extension of the balcony will breach the control in the WDCP. According to the Council the developments at nos 11, 15, 23 and 25 Kenneth Street and the residential flat buildings can be distinguished as they sit within existing building footprints which were approved under different controls. On that basis the building lines of these developments cannot be described as an emerging new building alignment, which might otherwise be a relevant consideration under the setback development control in cl1.4.1 (iv) of the WDCP.

15. The importance of maintaining the consistency of the predominate rear building line in this street is to preserve the outlook and significant views to Mackenzie Bay, and the amenity of the iconic coastal walk. This is achieved, the Council says; generally, by restricting building bulk so that it does not unacceptably creep forward toward the southern rear boundary and thereby interfere /block views from adjoining properties and/or encroach upon the amenity of the coastal walkway (Folio 52 Council Bundle Report to the Waverley Development Assessment Panel report). Whilst the proposed balcony extension is, on one view, minor, the Council maintains that the increase in depth has wider implications for further development on adjoining properties. If approved, the Council contends that it resets the rear building alignment at that level, and provides a justification for other properties to extend further, facilitating the creep of the built form towards the rear southern boundary and the public coastal walkway and reserve. The fact that the adjoining semi at 17 Kenneth Street has made application to the Council to carry out a similar extension of its balcony is said to support the Council’s concern about setting an undesirable precedent and the undermining of its WDCP controls which it maintains have been applied consistently in recent times.

Finding

16. After a careful consideration of all of the evidence I accept Ms Matlawski’s expert assessment that a resetting of the rear building alignment as proposed would allow for the adjoining properties at 21, 17 and 15 to expect to extend further when they are ultimately redeveloped. Such an expectation is inconsistent with the objective (d) of the setback development control in cl 1.4 of the WDCP, which seeks to ensure that the siting of buildings is consistent with the surrounding built form and rear building line.

17. The objectives of the WDCP do not encourage a creeping of built form closer to the coastal walk beyond the predominate building line. Based on my observations and a consideration of the evidence (including the adjoining neighbours’ submissions) I am satisfied that an approval of this application would have that outcome. If approved, the extended balcony would protrude beyond no17 and 21 and the predominate rear building alignment for this Site toward the south. I accept Ms Matlawski’s assessment that this creep of built form would adversely impact on the public’s enjoyment of the coastal walk and reserve and the adjoining neighbour’s enjoyment of their existing balconies.

18. I accept that the Council has consistently upheld the rear building line setback control in the WDCP in the vicinity of the Site for new development. Putting aside the redevelopment within existing, non-complying building footprints, the Council has, by refusing consent for the originally proposed extension of the balcony at nos 21 and 17 Kenneth Street, sought to maintain the setback controls to this part of Kenneth Street to align with the predominant rear building line in accordance with the WDCP. The Applicant has argued the existing balcony at the rear of the property is modest in size compared to other balconies on surrounding properties. That is correct. However, according to the evidence of the Council the larger balconies on the sites referred to by the Applicant have been required to be set back within their existing built form, such as number 21. They are also located on wider blocks of land, which by reason of that fact facilitate a wider balcony.

19. This Site is a relatively small block of land, with a total area of 282.2 m2. The existing semi has been redesigned to introduce two balconies facing the rear boundary, and a rear ground floor terrace and lawn. As the Council submits the dwelling has adequate private open space, and the fact that the existing balcony at 1.8 metres is larger than the control would normally allow, at 1.5 metres, supports the submission that there is no acceptable basis to justify the broader planning implications in terms of precedent which approval of this DA would encourage.

20. Mr Fletcher said that if this modification was approved, he would assume that the application for such an extension at 17 Kenneth may be re-agitated with a reasonable prospect of it being approved. I accept his assessment and consider that the precedent effect of an approval in this case, on the evidence before me, is very real. While each case must be assessed on its own facts I agree with Mr Fletcher that it is not unreasonable to assume that an approval of this application may well put the Council in a difficult position in refusing any further application by the owners of the adjourning semi at no 17.

21. The evidence supports a finding that an approval of this application will redefine the prevailing or predominate building line in the vicinity of the Site closer to the coastal walk and contrary to the applicable WDCP controls. In this case the question of precedent and consistency of administrative decision making weighs in favour of the refusal of this application: Goldin and Another v Minister for Transport [2002] NSWLEC 75 at [28]. Accordingly, after a consideration of all relevant matters under s 79C the Court orders :

1. The appeal is dismissed.

2. The exhibits are returned.

........................

Susan Dixon

Commissioner of the Court

Amendments

02 June 2017 - Amended 2 June 2017

Decision last updated: 02 June 2017