Shahidi v Woollahra Municipal Council

[2016] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shahidi v Woollahra Municipal Council [2016] NSWLEC 1491
Hearing dates:	8 September 2016
Date of orders:	08 September 2016
Decision date:	08 September 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	(1) The appeal is upheld (2) Development Application DA599/2015 for alterations and additions to the existing dwelling to facilitate a change of use to health services facility at 1 Magney Street, Woollahra, New South Wales is approved subject to the conditions set out in annexure A. (3) The exhibits are returned with the exception of exhibits 2, 4 and A The Court also notes the agreement between the parties that the applicant will pay to the council s 97(b) costs to the sum of $1000 within two weeks of the date of these Orders.
Catchwords:	DEVELOPMENT APPLICATION; consent orders; alterations and additions to the existing dwelling to facilitate a change of use to health services facility; matters raised by local residents being permissibility, impact on the heritage character of the area, the rear setback to Harkness Lane, deficiency in car parking and lack of landscaping.
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy Infrastructure (2007) Woollahra Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Shahram Shahidi (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: Mr A. Boskovitz, Boskovitz & Associates Solicitors (Applicant) Mr S. Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/00157960
Publication restriction:	No

This determination was given extemporaneously and has been edited prior to publication.

JUDGMENT

1. COMMISSIONER: This is an appeal against the refusal of Development Application Number DA 599/2015 for alternations and additions to the existing dwelling at 1 Magney Street, Woollahra to facilitate a change of use to a health care facility (the site).

2. The site is described as Lot 7 in DP3459 and is rectangular in shape with a total site area of 362.5 sq m. The northern and southern side boundaries measures 24.385 m and eastern and western boundaries measure 14.495 and 15.24 m respectively. The site slopes consistently from Edgecliff Road in the south to north across the site by about 2 m.

3. The site is occupied by a single storey free standing federation dwelling. Internally, the building retains its original layout and features include fireplaces. Located at the rear as a rendered brick addition, open timber deck and single garage with crossover to Harkness Lane at the rear.

4. The site is zoned R3 Medium Density Residential under Woollahra Local Environmental Plan 2014 (LEP 2014). The proposed development is not permissible under LEP 2014, but gains the opportunity for permissibility through State Environmental Planning Policy Infrastructure (2007).

5. Woollahra Development Control Plan 2014 (DCP 2014) also applies to the site.

6. The council filed a statement of facts and contentions that identified the following areas of dispute,

1. unsatisfactory impacts on the street and heritage qualities of the area,

2. additional openings in the original fabric of the existing building, and

3. inadequate parking.

7. Prior to the matter being finalised, the parties held further discussions and further plans and information were provided to the council. The main changes to the proposal include,

1. reduction in the size of the rear additions, including establishment of a single storey only, altered roof form and a reduction in total floor area,

2. rearrangement and reallocation of parting, including modified access to Harkness Lane,

3. deletion of windows within the castellated wall to Edgecliff Road,

4. an addendum to the tree report, and

5. an amended flood report.

8. The further plans and information address those matters previously identified as being in dispute by the council.

9. The council now seeks to enter into consent orders with the applicant based on the amended plans. In this regard, the Court's Practice Note Class 1 Development Appeals relevantly provides at par 36 the following:

36. Any application for consent final orders in development appeals will be listed before the court for determination. The parties will be required to present such evidence as is necessary to allow the court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions.

The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all person who object to the proposal of the following:

(i) the content of the proposed orders, including the proposed conditions of consent,

(ii) the date of the hearing by the court to consider making the proposed orders, and

(iii) the opportunity for any such person to be heard, or that in the circumstances of the case, notification is not necessary.

10. In summary, the Practice Note requires,

1. evidence to show that approval is lawful and appropriate, including whether any statutory provisions have been complied with,

2. whether any objection has properly been taken into account, and

3. whether reasonable notices has been given to all persons to object to the proposal, the date of the hearing and the opportunity to be heard.

11. In response to the Practice Note, a joint planning report was provided to the Court by Mr James Lovell for the applicant and Mr David Waghorn for the council. In response to the requirement "that any objection by any person has been properly taken into account", six individual residents provided evidence to the Court. The concerns raised by the residents can be summarised as,

1. permissibility,

2. impact on the heritage character of the area,

3. the rear setback to Harkness Lane,

4. deficiency in car parking, and

5. lack of landscaping.

12. In response to these concerns the joint report provides the following comments.

13. Permissibility: no issue was raised by the council to the question of permissibility. While prohibited by LEP 2014, is permissible through the provisions of State Environmental Planning Policy Infrastructure (2007). Based on this document there is no issue of permissibility that can be raised.

14. Heritage impact: The joint report identifies that "the two new openings in the southern elevation of the castellated boundary wall have been deleted, and the scale of the rear addition reduced" and, consequently, the amended proposal is satisfactory. With an understanding of the amended plans, I agree with this conclusion and find that there is no meaningful impact on the significance of the Woollahra Heritage Conservation Area pursuant to cl 510 of LEP 2014.

15. Rear setback to Harkness Lane: this matter was addressed in the joint report where it states that the addition would be considered acceptable for a residential development when considered in the context of the existing rear addition and the pattern of development on adjourning properties.

16. I concur with this conclusion.

17. Off street parking: this matter was raised by the residents on the basis that eight car parking spaces are required, however, only four spaces are provided on the site. The matter was considered in‑house by the Council Traffic Engineering Section where the following comments were made and also relied upon in the consideration of the amended proposal and the joint report:

"It is noted that the site is located immediately northwest to the area where parking variations are allowed for health professional uses. It is considered reasonable that less car trips would be generated from the proposed development as the site is within a walkable distance to public transport services. The site is also in close proximity of several car parks which could accommodate any potential overspill of parking demand associated with the proposed development. The potential overspill of parking associated with the proposed development will unlikely affect the surrounding residential streets as the on street parking in the surround streets regularly reaches saturation. Overall, the reduced off street car parking provision is considered reasonable."

18. While I understand that there is some concern over the reduction in off street parking by the residents, I however accept that the reasons for the variation are valid and this would not be a reason to refuse the application.

19. Landscaping: the joint report identifies that the council has no objection to the removal of two existing trees, but subject to their replacement with appropriate species. DCP 2014 requires that 20% of the site area be "deep soil landscape area." The amended proposal provides for 18.5%, which was considered acceptable by the council. I agree with this conclusion given that the difference is only some 4.5 sq m. Consequently, the variation is not a sufficient reason to refuse the application.

20. There was some discussion between parties on the specific wording of condition I6 where the condition sought to limit the types of medical procedures that can be conducted on the site. I am satisfied that the intent of the condition can be clarified by inserting words to the effect of, "No procedures that require a specialist anaesthetist are to be carried out on the premises". I am content for the parties to reword the condition in the terms that I have suggested.

21. There being no reason to refuse the consent orders, I make the following orders:

1. The appeal is upheld.

2. Development Application DA‑599/2015 for alterations and additions to the existing dwelling to facilitate a change of use to health services facility at 1 Magney Street, Woollahra, New South Wales is approved subject to the conditions set out in Annexure A.

3. The exhibits are returned with the exception of exhibits 2, 4 and A.

The Court also notes the agreement between the parties that the applicant will pay to the council s 97(b) costs to the sum of $1000 within two weeks of the date of these Orders.

……………..

G T Brown

Commissioner

157960.16 (C) gtb (647 KB, pdf)

Decision last updated: 26 October 2016