Sheller S v Woollarha Municpal Council

[2004] NSWLEC 128

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Sheller S v Woollarha Municpal Council [2004]  NSWLEC 128

PARTIES:
APPLICANT
Susan B Sheller

RESPONDENT
Woollarha Municpal Council

CASE NUMBER:      10070 of       2004

CATCH WORDS:     Development Consent

LEGISLATION CITED:

CORAM:        Hussey C

DATES OF HEARING:        25/03/2004

EX TEMPORE DATE:          25/03/2004

LEGAL REPRESENTATIVES

APPLICANT
Mr J A Strati, solicitor
SOLICITORS
Avendra Singh Strati & Kam

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10070 of 2004

Hussey C

25 March 2004

Susan B Sheller
Applicant

v

Woollahra Municipal Council
Respondent

Judgment

1. This appeal is against conditions of consent that were imposed by council on a
   s 96 modification for alterations and additions to a dwelling house at 6 Magney Street, Woollahra.  Those conditions are 2, 4 and 3. 

   Condition 3 being the deletion of the dormer window, which is not pursued.
   Condition 2 requires reduction in the family room height.
   Condition 4 requires reduction in the first floor bedroom setback of 1m.

2. Within the planning framework, the site is in a conservation area and the proposal is permissible with consent.  The main detailed controls are contained in the Residential DCP.  Firstly, the Court’s attention has been directed to a non-compliance in the FSR of the proposal, which exceeds that allowed in the DCP by some 6 m2. . That could satisfactorily be remedied by the compliance with condition 4.

1. However, the main concern is for the non-compliance both in height and setback because:

   for adverse impacts on the outlook adjoining properties,
    the loss of views, and
   consistency of rear extensions due to the preferred skillion type roofs. 

2. These concerns were clearly expressed by the neighbours and the opportunity to assess the impacts on their properties was undertaken on the view this morning.  With respect to the first floor extension, I am satisfied that the required reduction in the rear of the bedroom wall by about 1 m and consequential reduction floor space has minimal impact and does not effect on any primary harbour views or foreground views.  The incremental change in view and outlook is relatively minor, which the planners seem to agree with. Certainly Mr Sanders says that degree of impact on view outlook is minimal and I accept this, therefore I consider it is reasonable that this condition be deleted. 

1. With regard to the other issue of the family room height, I note that the applicant this morning has offered to further modify it by lowering it a further 200 mm.  From my assessment of the view impacts, the most affected property is No. 4. But for this property the primary view corridor towards the harbour has been maintained in the original design by the flat roof section over the corridor.

1. With the revised roof height and the slate skirt, there is a further reduction in distant views of about 0.35 m depth over a 6 m length in the vaulted ceiling section, which has been calculated to be a total view loss of about 2 m2 .  But this view corridor from No. 4 and the other properties is not in primary view corridor.  Therefore I do not think that the loss of an area of about 2 m2 from those properties is of such magnitude to warrant rejection of this proposal.

1. When Mr Staas’s evidence is taken into account, and he is an experienced heritage architect, I accept his opinion that the sloping slate skirt will result in an improved outlook for the neighbours, rather than looking on the flat metal skillion roof and that that this proposal now is consistent, in his opinion with the DCP objectives.  Furthermore, I note his submission that these objectives are primarily focussed on streetscape impacts, which this proposal has no effect because it is not visible from the public domain.

2. Insofar as a reference was made to the preference for consistency with rear skillion roofs, it seems reasonable to take into account the surrounding irregular lot shapes. On this basis, the outlook one can see is not just skillion roofs. There are various pitched roofs in the immediate visual outlook and I consider that taking into account the context of this development, that non-compliance with guidelines for skillion roofs is of relatively less significance in this matter, which would not warrant rejection of the application. Accordingly, I accept Mr Stass’ evidence that the proposal is reasonable in this respect.

1. For these reasons then, the orders of the Court are:

1. The appeal is upheld.

2. The s 96 modification for alteration to a dwelling at 6 Magney Street, Woollahra, is allowed in accordance with the modified conditions in Annexure ‘A’.

__________________
R Hussey
Commissioner of the Court
Nm/rjs

Appeal No  10070  of 2004

Annexure A

Susan B Sheller ..v..Woollahra Municipal Council

SECTION 96 MODIFICATION

6 Magney Street, Woollahra

The conditions of the consent are as follows:

1. Approved Plans

This consent relates to the work, shown in colour, on plans numbered DA1 and DA2, dated 01/03, drawn by John Watkins B. Architect Pty Ltd, including Landscape Plan dated October 2002, drawn by Ann Scott Wilkes, as amended by plans numbered DA1A, DA2A dated 08/03 drawn by John Watkins Architect, except where amended by the following conditions.

1. Roof Modification

The roof over the family room is to be redesigned so that it does not exceed RL 53.70.  Amended details are to be submitted with the Construction Certificate Application.

This condition is imposed to reduce the visual bulk of the proposed addition and to provide a view corridor for properties to the south.

1. Deleted.

1. Deleted.

__________________
R Hussey
Senior Commissioner

rjs