Raymond v Waverley Council

[2009] NSWLEC 1128

Land and Environment Court

of New South Wales

CITATION:

Raymond v Waverley Council [2009] NSWLEC 1128

PARTIES:

APPLICANT
Raymond, Benny

RESPONDENT
Waverley Council

FILE NUMBER(S):

11197 of 2008

CORAM:

Murrell C

KEY ISSUES:

SECTION 96 MODIFICATION :-

LEGISLATION CITED:

Waverley Local Environmental Plan 1996

DATES OF HEARING:

6 February 2009

EX TEMPORE JUDGMENT DATE:

6 February 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr Benny Raymond, Litigant in Person

RESPONDENT
Mr Stephen Patterson, Solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MURRELL C

6 February 2009

11197 OF 2008 Raymond, Benny -v- Waverley Council

JUDGMENT

1 This appeal is for a Section 96 modification application that was refused by Waverley Council for the property known as No’s 314 - 316 Bronte Road Waverley. The subject site is within the conservation area of the Charing Cross Precinct.

2 On the subject site there is a recently constructed three storey mixed use building containing retail space on the ground floor and 11 residential apartments above with basement parking. The Court originally granted consent for the development 31 March 2003.

3 The Section 96 application currently before the Court seeks to formalise the relocation of two ground floor glass block windows along the northern boundary. That is retrospective approval is sough for the repositioning of these windows as originally approved. The 96 modification also is for the reconfiguration of the floor plan for the apartment formerly known as No 2 such that the study adjoining the wall on the boundary where one of the glass block windows is now located.

4 The Court met on site and heard from a number of resident objectors including Ms Margaret Hope of the Charing Cross Precinct Committee expressed concern about the amenity of the neighbours that would be impacted by the Section 96 modifications. She also expressed concern about the DA process and the need for certainty in the planning process. Mrs Mary Corcoran of the apartment building was in support of Mrs Hislop’s concern that the relocation of the windows cause light spillage to her property at night. Mrs Hislop considers the proposed Section 96 to be unreasonable in particular the light that she receives through the glass blocks into her main bedroom. She stated that the glass blocks had originally been offset from her bedroom windows and this would minimise the impact of light glare to her property.

5 The site is zoned Business Neighbourhood 3(c) under the Waverley Local Environmental Plan 1996 and the site is also located within the Charing Cross Heritage Conservation Area characterised by Victorian-Italianate Federation, Freestyle and Art-deco style buildings fronting Bronte Road with ground level retail uses and residential above.

6 Adjoining the subject site to the north is a mixed use building containing 19 residential apartments and 4 retail shops of recent construction. A southern side setback of approximately 4.3 m is provided and this represents the building separation distance between this building and the subject site that is built to the boundary. This 4.3 m setback contains the private courtyard at ground level for the apartments within 306 - 312.

7 By way of background, this Court granted consent for the demolition and erection of a three storey mixed use building and there have been two 96 applications approved subsequent to the original approval. The current consents for the site provides for glass blocks along the northern boundary to each of the three levels in a symmetrical manner.

8 In March 2008 the Council, after giving notice, issued an order to the effect that the building as constructed did not comply with the consent and that it has a detrimental effect on the amenity of the neighbouring property. The Section 96 modification applicant currently before the Court is in response to one of the matters referred to in the Order, that is the location of the glass brick blocks and also the floor plan reconfiguration to relocate the study to the wall on the common boundary adjoining Unit 7 of 306 - 312 Bronte Road.

9 The Council refused the modification application for the following reasons.


a. The location of the windows causes light spill into the next door neighbours bedrooms.

b. The proposal adversely effects the privacy and the amenity of the neighbour .

10 During the course of the proceedings discussions took place to as how the matter could be resolved with a practical outcome.

11 The Respondent provided a statement of contentions as follows:

1. The proposed development does not satisfy the following Specific Aims (cl 3) of Waverley Local Environment Plan 1996, specifically subclause 7(d) & (f) in relation to housing, in that the new development is not compatible with surrounding development and does not improve the amenity of the area.

2. The proposal should not be approved as it will rely on ‘borrowed’ light for the sole benefit of the building’s occupants. to the detriment of neighbouring property’s amenity.

3. The proposal should not be approved as it will create an unacceptable privacy impact and result in unreasonable light spillage upon the neighbouring property to the north.

4. The proposal should not be approved as it is not is the public interest, having regard to the matters raised in submissions received by Council.


12 In my assessment of all the facts and circumstances of the case the most appropriate course of action is that a 1.8 m lapped and capped fence be erected along the boundary. This will provide for the maintenance of amenity to the adjoining unit No 7 owner Mrs Hislop and will not require the relocation of the glass block window wall. There will be reduced light penetration to the subject property but light will still be available albeit to a limited extent without the need and cost to relocate the glass block walls as shown on the original plan. It is understood that the light from the glass blocks is to a certain extent borrowed amenity given the fact that the subject wall is on the boundary and if there was redevelopment on the adjoining land to the boundary at anytime then the light currently enjoyed would be obscured.

13 On the question of the reconfiguration of the floor layout for the subject unit approval should be granted for the reconfiguration on the basis that is understood that there would be a requirement for a condition such that the study is not to be used as a bedroom.

14 The requirement for a covenant to be placed over the subject units now completed and occupied is not considered appropriate in the circumstances of this site. This is a matter that could have been addressed in the original approval and is not considered appropriate to impose as a Section 96 Modification as there are no changed circumstances and there is no nexus to impose such a restriction.

15 Similarly with respect to the condition proposed by the Council that lighting should be designed so as not to cause nuisance to other residences or nearby roads is not appropriate to impose on this Section 96 application.

16 On the basis of the discussions held between the parties today and my assessment the modification application is generally upheld subject to a condition requiring a lapped and capped fence along the boundary to a height of 1.8 m between the unit No. 7 of 306 - 312 Bronte Road and the subject unit at 314 - 316 Bronte Road. The cost of the fencing is to be shared between the owners of these two units and the normal procedures of independent quotes is to be obtained. Agreement on a quote is in the manner of common practice, this includes, if one party prefers a particular contractor then they may pay the additional amount over and above an average of the lower of the quotes.

17 Accordingly the formal Orders of the Court are

1. The S96(6) appeal in respect of the property known as 314 - 316 Bronte Road is upheld.

2. The S96 modification application submitted to Waverley Council, and as amended, is determined by the granting of consent subject to the conditions in Annexure ‘A’..

3. The exhibits are returned to the parties.

___________________
J Murrell
Commissioner of the Court
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Conditions of Consent for s96 modification

Raymond vs. Waverley Council

Property: 314-316 Bronte Road Waverley


A. Amended Conditions

1. The development must be in accordance with Architectural Plan Nos A1001G, A2001G, A2002F, A2003G, GA3001H and A3002F prepared by ‘Fortey and Grant Architecture’ dated 28 September 2007 and received by Council on 23 October 2007, unless otherwise modified by Amended Plan Nos A3002 and A2002, Amendment H, of Job No. 0730, prepared by ‘Fortey + Grant Architecture’, dated 28/09/08, and received by Council on date 18 August 2008, except where amended by the following conditions of consent;

B. New Conditions

1D. The study within apartment No. 6 shall not be used as a separate habitable room or as a bedroom.

1E. Compliance with all previous conditions relating to Development Consent L 599/2001 issued on 31 March 2003 by the Land and Environment Court and all subsequent Section 96 modifications as approved.

1F A lapped and capped fence to a height of 1800mm shall be erected along the common boundary of Unit No.7, 306-3112 Bronte Road and Unit No.6, 314-316 Bronte Road. The fencing shall match as close as possible the existing timber fencing. The cost of the fencing shall be shared between the owners of the above units. Independent quotes are to be obtained and the fence is to be constructed within 30 days of the date of the agreed quote. If one party prefers a particular contractor then that party is to pay the additional cost over the average of the lowest two quotes.

_________________________
J S Murrell
Commissioner of the Court
ljr/ajl