Omers v Strathfield Municipal Council

[2006] NSWLEC 238

Land and Environment Court

of New South Wales

CITATION:	Omers v Strathfield Municipal Council [2006] NSWLEC 238
PARTIES:	APPLICANTS Frank and Vera Omers RESPONDENT Strathfield Municipal Council
FILE NUMBER(S):	11317 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :-
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	2 March, 10 April and 3 May 2006
EX TEMPORE JUDGMENT DATE:	05/03/2006
LEGAL REPRESENTATIVES:	APPLICANTS Mr C Gough, solicitor Storey & Gough RESPONDENT Mr T O'Connor, solicitor Houston Dearns & O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

3 May 2006

11317 of 2005 Frank and Vera Omers v
Strathfield Municipal Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 Commissioner: I indicated, on the last occasion when this appeal was before me, that, following the changes which arose during the course of the discussions which took place at the time of the inspection of the site, the various privacy issues had been resolved by a combination of reorientation of the type of construction of windows and the incorporation of a number of obscure glazing features and the incorporation, in one instance, of a glass block feature rather than a window.

2 The revised plans were before the Court on the last occasion and at that time the sole remaining issue was the impact on the Rodriguez property immediately to the south at 91 Chalmers Road, Strathfield.

3 I asked Mr O’Connor, solicitor for Strathfield Council (the council), on that occasion (as Mr Rodriguez had not been provided with the opportunity to express any further reservations or objections that he had) that Mr Rodriguez be contacted and asked if he wished to do so. Today’s hearing is the result of that.

4 Although Mr Rodriguez has not given oral evidence today, he has lodged a submission which I have read which concerns the impact on the solar access of the proposed development on his living, dining and family room areas.

5 There are two matters which arise from the amended plans in that regard and my consideration of the shadow diagrams which have been provided based on those amended plans.

6 I am satisfied with respect to the rear elements of the Rodriguez property on the ground floor that they will commence to receive significant solar access to their windows (commencing with the western windows) from about a little after 10am at the winter solstice. By 11am, virtually the entirety of those substantial windows will be in sunlight.

7 The principal area which is of concern to Mr Rodriguez, is that containing the windows on the north side of his property to the eastern end.

8 There are two matters that arise out of the council’s controls that govern the question of the appropriateness of the design of the present dwelling. The first is whether or not the proposal complies with the building envelope requirements of the Development Control Plan (the DCP). The second is whether it complies with the setback requirements of the DCP (and, in a more general sense, whether it is consistent with the present and future likely streetscape of the area).

9 I am required, as a consequence of the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, to use the provisions of the DCP as the focal and starting point for my consideration but if a proposal is not compliant with the DCP, the Court of Appeal made it clear that, after a proper consideration of other matters that arise pursuant to s 79C of the Environmental Planning and Assessing Act 1979, a consent can be given whether or not a proposal is strictly compliant with the relevant development control plan.

10 As I had Mr O’Connor convey to Mr Rodriguez and as I have indicated to Mr Rodriguez this afternoon, the standard that I am obliged to apply is acceptability rather than total desirability of the proposed design.

11 However, if a proposal is not strictly compliant, it is appropriate to suggest amendments in order to improve its desirability and acceptability and the applicant has in this case undertaken a number of amendments that assist in this regard.

12 I am satisfied, although I have considered Mr Rodriguez’s further submission, that the prima facie position that I had had Mr O’Connor convey to him – that is that the design of the proposal was acceptable and warranted consent – remains.

13 I have reached that conclusion for the following reasons.

14 With respect to the building envelope, although Mr Gough, solicitor for the applicants, puts the proposition that consideration of Sheet 8 of 11 in the revised plans discloses that the non-compliance is only of the eaves and that that does not offend the DCP, the line of the building envelope shown on the plans is in very thick ink and I am not satisfied that it is limited to a non-compliance merely of the eaves.

15 However, if it is a non-compliance that goes beyond the eaves, it does so to a de minimus extent and not to any extent that would require me to ask for modification or further amendment and certainly would not warrant refusal.

16 Indeed, it is obvious to me (and is also the position accepted by the council) that, even if I were to require the eaves at that point to be withdrawn to strict compliance with the lines of the building envelope, it would provide no practical ameliorative benefit at all to the solar access to the front windows of the Rodriguez property. Therefore, that non-compliance provides no basis to require further modification.

17 I am satisfied with respect to the setback and the streetscape issues that firstly, the setbacks are compliant with the version of the DCP that applied at the time of lodgement of the application. If non-compliant with the present provisions of the DCP, I am satisfied that the degree of articulation and modulation that has now been incorporated in the plans is appropriate and acceptable.

18 I had tendered during the course of the proceedings a hand modified sketch of the elevations which would demonstrate (at its most extreme, I accept), the degree of amendment that would be required to provide compliant solar access at all relevant hours to the Rodriguez property.

19 More importantly, in this regard, is the fact that, on the shadow diagrams available to me, solar access to any of the windows at the front of the Rodriguez dwelling commences in a very minor fashion from 12 noon on the winter solstice and improves thereafter with significant solar access being available to one window from 1pm to two windows from 2pm and remaining effectively to the equivalent of two windows at 3 pm.

20 I am satisfied in that regard that to require modification of the present proposal to require any greater solar access would require such great modification to the proposal as to be unreasonable in all the circumstances.

21 I have also considered the question of compliance with streetscape consistency and I am satisfied that, given the nature of both the Rodriguez dwelling to the south and the dwelling immediately to the north of the proposal, what is presently proposed will be entirely consistent with the present streetscape in the immediate vicinity and undoubtedly what is likely to be the future streetscape spreading throughout the area.

22 As a consequence, I am satisfied that I should approve the application on the modified plans and the orders of the Court therefore will be that:

1. the appeal will be upheld; and
2. the development application will be approved on the basis of the substituted, amended plans that are exhibit A in the proceedings and that that will be subject to conditions of consent which remain to be filed electronically so that they conform with the Court’s requirements relating to the removal of requirements for tree preservation and landscaping bonds.

23 I therefore give the following directions:

1. The respondent is to file and serve revised conditions by the close of business on Friday, 5 May;
2. The respondent is to do such lodgement electronically by e-Court;
3. The respondent is to make a separate e-court notification of the lodgement;
4. The matter is set down for callover before the Registrar on the 16th on the basis that, if directions (1), (2) and (2) are complied with, I will make orders in chambers and vacate the callover; and
5. Liberty to relist on two days notice.

Tim Moore
Commissioner of the Court