Shields v Waverley Council

[2011] NSWLEC 1115

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shields v Waverley Council [2011] NSWLEC 1115

Hearing dates:

28 April 2011

Decision date:

28 April 2011

Jurisdiction:

Class 1

Before:

Murrell C

Decision:

1.Appeal in respect of No 82 Queens Park Road Queens Park is upheld.

2.The s 96 modification application to enlarge the basement area is determined by the granting of consent subject to the consolidated conditions in Annexure A.

3.The exhibits are returned with the exception of the amended plans and conditions.

Catchwords:

APPEAL: s 96 modification application to increase basement storage area by additional excavation and other minor matters. Impact on adjoining properties by excavation and removal of material; increase in FSR leading to overdevelopment; necessity and reasonableness of large storage area and potential for use as habitable area.

Legislation Cited:

Land and Environment Court Act 1979

Cases Cited:

Super Studio v Waverley Council [2004] NSWLEC 91
Zhang v Canterbury City Council [2001] NSWCA 167

Category:

Principal judgment

Parties:

Ms Andrea Shields (Applicant)
Waverley Council (Respondent)

Representation:

Mr V Conomos
Conomos Legal (Applicant)

Mr S Patterson
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10126 of 2011

Judgment

1. These proceedings today have been conducted as an onsite hearing. The matter was originally incorrectly set down for a s 34AA conciliation conference pursuant to the Land and Environment Court Act 1979 and the following the Registrar contacting the parties they agreed for the matter to proceed by way of an on-site hearing under s34B of the Act.

1. The Court met on-site with the parties and heard from the adjoining property owners who object to the s 96 modification application. Following the view, the Court resumed to the council chambers and I heard evidence from the parties experts in this matter, as well as having the benefit of the joint experts report.

1. Prior to giving judgment in this matter at the council chambers, I raised with those present if they objected to me giving an extempore judgment that would be recorded later, due to the fact that unfortunately I did not have a dictaphone with me. I gave those present the opportunity to object to this course of action and that the alternative would be for me to hand down judgment the next morning in Court. No objection was raised to giving my determination at that time with judgment subsequently to be published.

1. The applicant is seeking consent to a modification application to an approval granted by the Court for alterations and additions to an existing dwelling at the property known as 84 Queens Park Road, Queens Park. The modification seeks to amend the consent as follows:

(a)   increase the floor area of the basement level by undertaking additional excavation, including the installation of a narrow highlight window to the western elevation and skylights around the swimming pool;

(b)   reduction in the size of the swimming pool and setback the swimming pool from the eastern boundary;

(c)   reconfiguration of the double garage, pedestrian entry and bin storage area and;

(d)   modification to the rear garden levels and stair layout.

1. In summary the council does not raise any issues with (b), (c) and (d), however the council contends that the increased basement level and the additional excavation will represent an over development of the site and an exceedence of the floor space ratio control.

1. The contentions as identified in the Statement of Facts and Contentions tendered by the respondent council, are as follows:

Excavation

1. The proposed alterations and additions should not be approved due to excessive excavation contrary to the requirements of Part 5.1.1(a) of Part D1 - Dwelling House and Dual Occupancy Development of Waverley Development Control Plan 2010.

Particulars

(a)   The proposed development does not comply with the maximum depth, building footprint, side setback controls and habitable room controls.

(b)   The proposed increase in excavation will result in the order of an additional 180 cubic metres of rock and soil being removed from the site, which will have the potential to general approximately 360 additional heavy vehicle movements with a corresponding impact on the local street system during construction.

Floor Space Ratio

2. The proposed development should not be approved as it will result in an excessive floor space ratio contrary to the objectives set out in cl 5.2 of Part D1 of WDCP.

Particulars

(a)   The floor space ratio required by WDCP is 0.5:1

(b)   The Court approved floor space ratio is 0.59:1

(c)   The proposed floor space ratio is 0.72:1

(d)   The increase in the basement area and the changes to the garage/storage area result in an over development of the site with the potential to have adverse impacts on neighbours given the proximity of the excavation to the side boundaries contrary to objectives (a), (b) and (c) of clause 5.2 of Part D1 of WDCP

Precedent

3. The proposed enlargement of the basement is excessive and will result in an undesirable precedent in Queens Park Road.

Public Interest

4. The proposed development should be refused having regard to the matters raised in submissions received by the Respondent including the following:

• Excessive FSR
• Inadequate setbacks
• Excessive excavation and impacts on property
• Geotechnical concerns
• Compliance with DCP controls

Contentions that may be resolved by conditions of consent

5. The proposed highlight window shown on DA 3000/04 and the skylight windows shown on DA 2000/05 and DA 2001/03 should be deleted to avoid the use of the enlarged basement for habitable purposes.

Contentions that there is insufficient information to assess the application.

6. The proposed development should not be approved in the absence of a geotechnical report prepared by a suitably qualified engineer detailing potential excavation impacts on neighbouring properties and recommended methods for controlling such impacts.

1. As is the case in many cases that come before this Court, during the proceedings today, the issues have been narrowed, with some of the matters capable of being further conditioned, such that the council does not raise these as reasons to warrant refusal of the modification application.

1. By way of background, the subject site is on the high side of the Queens Park Road, opposite Queens Park and has an area of some 669 sq m. The site also has the benefit of a rear street that provides vehicle access to the properties in this portion of Queens Park Road. This split rear street is known as Arnold Street. The existing dwelling on the subject property is a single-storey late federation bungalow. This is not listed as an item of heritage significance, however the site is located within a draft heritage conservation area and it is noted that the dwellings on either side at numbers 82 and 86, contain dwellings of some 100 years in age.

1. The Court granted consent to alterations and additions for a second storey and double garage with a swimming pool at the rear on 18 July 2010 and the current modification application seeks to amend this consent.

1. In the council's bundle of documents at exhibit 1, this contains submissions received from and on behalf of adjoining property owners at numbers 82 and 86. In addition the Court heard from the adjoining neighbours and further written submissions were also tendered.

1. The owners of number 86 are concerned about the excavation undermining the stability of their house, in particular, because of the sandstone foundations and brick peers and the vibration from the increased excavation. They also express concern with the number of truck movements that would hamper traffic in Arnold Street that is their main access to their dwelling, with only pedestrian access with stairs from Queens Park Road that is at a much lower elevation.

They are also of the opinion the construction period of the excavation and the noise and dust that would be generated would also adversely impact on their property. In their opinion, this is a huge increase in the basement and FSR and it would be an over development of the site, making the proposal noncompliant with council's guidelines. They also expressed concern about the boundary wall, between the two properties.

1. The owners of number 82 expressed concern about the extent of excavation close to their boundary and the impact that this would have on their dwelling house. In their opinion there should be a setback of 5 m from the boundary for the excavation. They also expressed concern about the retention of the existing fence between the properties.

1. On behalf of the respondent council Mr Kerry Nash, consultant town planner provided evidence and for the applicant Ms Jennie Askin consultant town planner, gave evidence to the Court.

1. The conditions require a geotechnical report to be submitted to the principal certifying authority, the council and the owners of 82 and 86. The applicant tendered a letter from Jeffery and Katauskas Pty Ltd, in response to conditions proposed by the council concerning the geotechnical and excavation issue. In summary, this states:

Based on my geotechnical knowledge and experience my recommended edits to the draft conditions are attached.

There is no geotechnical reason why the basement cannot be constructed to the extent shown on the s 96 architectural drawings.

It is not the responsibility of the geotechnical engineer to provide specification, only recommendations on how the work is to be carried out. An 'Excavation and Retention Methodology' and an 'Inspection and Test Plan are the appropriate documents for the work proposed and these can be prepared by the contractor, the structural engineer or the geotechnical engineer, but must be approved by the geotechnical engineer.

1. Turning to the contentions outlined by the council, contention 1 is that the excavation is excessive and contrary to the requirements of council's Waverly Development Control Plan 2010 for dwelling house and dual occupancy development. In particular, part 5.1.1(a), the objective is "ensure the height and scale of development relates to the topography with minimal cut and fill".

1. For single dwellings, part 5.1.1 has a strategy that "dwelling houses are not to be excessive in height and scale and should be compatible with the existing character of the location". The controls in this section relate to the external wall height of 7 m and an overall maximum height of 8.5m and in particular, the council raises the controls that:

• Excavation does not exceed 3 m in depth and 50% of the building footprint including a garage
• Where excavation is proposed for development at or near cliff faces or on sloping sites that have a slope of 25% or more a geotechnical report which address the stability of the site and surrounding properties must be submitted. The geotechnical report must confirm that the site is suitable for the proposed and list relevant conditions.
• Excavation should only occur within the footprint of the building except where access to a basement car park is required. Excavation should not occur within 1 m setback from side boundaries
• Excavation is to be limited to encourage good quality internal environment to areas used for habitable and special use purposes; to minimize impact on amenity of adjoining premises; and to minimize alterations to development and list relevant conditions
• Excavation should generally the existing or natural topography of the site and immediate area.

1. The particular provided in council's contention is that the proposal does not comply with the maximum depth building footprint site setback controls and habitable room controls. In this regard, the applicant has accepted a condition to limit the maximum depth of excavation to 3 m (as opposed to 3.1 m proposed) and also that the excavation be a minimum distance of 1 m from both side boundaries. Mr Nash is of the opinion that deletion of the highlight windows and skylights would render the area nonhabitable space and deletion of the windows, removes the necessity for excavation within 1 m of the western boundary, as the windows are proposed below existing ground level, up to 1.4 m and, and then the extent of excavation would need to be to the common boundary. Given this, the applicant has agreed to delete the highlight windows.

1. The council still contends the proposal is an overdevelopment and the storage area is unnecessary, representing some 30% of the floor area of the dwelling and there is a potential to use the storage area for habitable purposes, with the skylight windows proposed.

1. Ms Askin considers that the proposed level of excavation can comply with the DCP numerical controls for excavation. That is 3 metre depth, the 50% footprint and 1 metre setback. In addition to numerical compliance, Ms Askin is of the opinion the proposal will comply with the objectives of the excavation controls, as the approved height of the dwelling house is not proposed to be altered.

1. Mr Nash was asked about the side boundary setback and he considered 2 metres would provide a better outcome and reduce the area of storage which in his opinion, is not warranted for the dwelling.

A setback of 2 m would provide a storage area of 73 sq m, as opposed to the proposed 90 sq m in the modification application. The approved storage area in the consent is 36 sq m and the proposal provides for an additional 54 sq m. Mr Nash is concerned that this large area would be capable of being used for habitable purposes, however he also accepts that there could be a condition of consent that it only be used for storage purposes. Ms Askin is of the opinion that the basement area would not comply with the BCA requirements for habitable area and a condition to this effect could be imposed. In her opinion, the large storage area is not unreasonable or unnecessary and will not intensify the use of the single dwelling on the site.

1. Mr Nash calculated the additional truck movements for the extra 200 tonnes to be excavated, however he conceded the additional number of truck movements would not be grounds to refuse the modification, subject to the geotechnical report and construction management plan for excavation being provided prior to the construction certificate being issued.

1. The second contention raised by the council is that the development is excessive in that the floor space ratio provisions of the DCP in part 5.2 are exceeded. This provides that for sites in excess of 550 sq m and the subject site is 669 sq m, that the floor space ratio is 0.50:1. This requirement falls under that part of the DCP relating to size and bulk and the objectives include:

(a)   To ensure new dwellings and alterations and additions to existing dwellings are of an acceptable size and bulk in relation to the size and shape of the allotment;

(b)   Ensure there is no over development of sites and any negative impacts on residents living in buildings on adjoining or nearby allotments are minimized and wherever possible eliminated;

(c)   Ensure the development adds to and does not detract from the existing streetscape and character of the area;

(d)   Ensure the bulk of dwellings is in character with surrounding development.

1. The reference to part 5.1.3(a) is that building bulk should be compatible with surrounding built forms and must minimize adverse affects on bulk on adjoining properties and streetscape. The fsr control provided in the table is 0.5:1 for the subject site. The Court consent approved the development at 0.59:1 and the proposed floor space ratio with the additional basement area is 0.71:1. The council contends that the increase in the basement area is an over development.

1. Ms Askin considers that the proposed floor space complies with the objective of the controls as the basement level will not add bulk to the building and is not visible above the ground, or from the streetscape. Mr Nash on the other hand, considers that the additional floor space in the basement storage area, adds to the bulk by highlight windows increasing the perceived height and bulk of the building. However, he agrees that the deletion of these windows will allow for the proposal to comply with the floor space ratio control objectives, through the maintenance of the existing ground level between the proposed dwelling and the western boundary. As such, the experts agree that the proposed FSR will not result in any additional amenity impacts on its neighbours, as the building will retain the height and setbacks as agreed in the original proceedings and as approved.

1. The issue raised by the council that the development is excessive and would be an undesirable precedent in the Queens Park Road, the experts both agreed that each development application should be assessed on its merits.

1. The fourth issue raised by the council is public interest referring to the submissions received. The experts agreed that the matters raised in submissions are addressed in the other contentions.

1. Contention 5 raised by the council is that the highlight window and skylight window should be deleted, to avoid the use of the enlarged basement for habitable purposes. As discussed above Mr Nash has demonstrated that the highlight windows would in fact require further excavation and the applicant has agreed to their deletion. With respect to the skylight window, this is non-openable and located on the southern side some 4 m from the common boundary. It was submitted on behalf of the applicant that this highlight window does not satisfy the BCA as a habitable area and only provides limited natural light to the basement.

1. The contention requiring a geotechnical report, the council no longer presses as a requirement before the determination of the modification application and the applicant has agreed to a condition for a geotechnical report prior to the issuing of the construction certificate. The applicant also agrees to both a pre construction and a post construction dilapidation reports for the adjoining premises, on both the western and southern boundaries at numbers 82 and 86.

1. A number of additional conditions have been agreed between the parties that resolve certain of the contentions raised by council, and the concerns about common fences raised by objectors. Nonetheless the council still opposes the modification application on the basis that it is an over development in terms of the FSR and questions the reasonableness and necessity for the 90 sq m storage basement area and refers to the case of Super Studio v Waverley Council [2004] NSWLEC 91 . It was submitted for the applicant that the proposal is not unreasonable and it is not contrary to the objectives of the fsr as the bulk is not perceived and it also does not give rise to an intensity of use for habitable purposes, and the applicant would be prepared to accept a condition to this effect.

1. In my assessment, I must give central consideration and make the Development Control Plan provisions a fundamental element in my assessment of the modification application as required by the authority of Zhang v Canterbury City Council. This judgment of the Court of Appeal also states that a DCP in not an environmental planning instrument and cannot contain non-discretionary development standards. I have given the DCP central consideration and a holistic reading including the objectives of the provisions including the fsr. In this regard the floor space ratio requires consideration of the objectives contained in pt 5.2 relating to size and bulk. The objectives are also informed by the strategy that building bulk be compatible with surrounding built forms and minimize adverse effects on bulk to adjoining properties and the streetscape.

1. In my assessment a holistic reading of the DCP includes the character statement in the DCP for the Queens Park residential area. The existing character elements include "a collection of predominately 19 th century and early 20 th century architectural styles" and the physical setting includes "at the eastern end there is a distinctive natural sandstone outcrops that appear in a split level platform of Arnold Street. For landscaping, the character statement refers to "vegetation being an element of paramount importance and the Queens Park Study Area is one of the oldest precincts in the municipality, containing many manmade and natural heritage items and development must be sensitive to these items". There are a number of desired future character objectives and for the streetscape, this is "to reinforce and encourage dwelling styles that integrate with the established front, rear and side streetscapes and maintain streetscape character, through consistent building setback". The proposal in my assessment is consistent with the character statement in the DCP and will not detract from the special qualities of the area.

1. In my merits assessment of the modification application under s79c of the Environmental Planning and Assessment Act I agree with the experts that the exceedence in the floor space ratio in the circumstances of this case does not contribute to the size and bulk of the proposal and the development will be compatible with the surrounding area. I am also satisfied with the conditions agreed to between the parties for pre and post construction dilapidation reports for the adjoining premises and the requirement for a construction management plan for the excavation phase, together with a geotechnical report and methodology for excavation that the impacts will be minimized. The Court recognizes that from time to time during the construction phase inconvenience may be created for neighbours, and this should be well managed, however, this would not warrant refusal of the modification application. In this regard, I also accept the evidence of the experts and Mr Nash's response that the additional truck movements would not warrant refusal of the application.

1. On the question of the provisions of the DCP the maximum height of excavation is to be limited to 3 m and a minimum distance of 1 m from the boundary and 50% of the footprint of the dwelling above. There is no issue that the proposal can comply with these requirements of the Development Control Plan. While Mr Nash considered that a 2 m setback from the side boundaries would be a better outcome, at the same time the DCP has a requirement for a 1 m setback and a variation from the DCP requirement is not warranted.

1. With respect to the basement being used for habitable purposes, the requirements of the BCA could not be satisfied by the increase in the basement. The highlight windows are to be deleted and this ensures the 1 m minimum setback to the boundary for excavation is achieved and with respect to the skylights that are non-openable this would not render the basement compliant for habitable purposes. While the respondent pressed a condition that it be used for storage only, I am persuaded by the applicant that this is overly restrictive, as non-habitable uses include for example, laundry area or wine cellar. I am also satisfied that while the modification represents a large basement area from 36 sq m to 90 sq m it is not unreasonable in the circumstances where the objectives and strategies of the DCP are satisfied. Furthermore there are no impacts that would warrant refusal of the modification application.

1. In my overall assessment, I have had regard to the council's planning regime, that includes to maintain and improve the amenity and existing characteristics of localities predominately characterized by dwelling houses in the 2A low density zone and cl 10 sub (2) requires consent not to be granted unless the development meets one or more of the objectives of the zone. The other objective of relevance is to allow for housing only in the form of dwelling houses and boarding houses. I am satisfied the proposed modification is in accordance with cl 10 (2).

1. On the question of precedent, the modification application in my assessment satisfies the objectives of the controls identified by the council, including those of the floor space ratio and I am satisfied that the proposed development does not represent an over development and it will not have adverse impacts on adjoining properties, or be an undesirable precedent as the bulk of the building, in terms of the objective of the floor space ratio, is not affected by the modification application.

1. Accordingly based on my assessment above, the formal orders of the Court on the receipt of the conditions are:

(1)   The appeal in respect of No 84 Queens Park Road, Queens Park is upheld.

(2)   The s 96 modification application to enlarge the basement area is approved subject to the consolidated conditions in Annexure 'A'.

(3)   The exhibits are returned to the parties with the exception of the amended plans and conditions.

J S Murrell

Commissioner of the Court

Annexure 'A'

Decision last updated: 01 June 2011