Simeonov v Willoughby City Council [2013] NSWLEC 1246

Land and Environment Court New South Wales

Medium Neutral Citation: Simeonov v Willoughby City Council [2013] NSWLEC 1246 Hearing dates: 3 December 2013 Decision date: 18 December 2013 Jurisdiction: Class 1 Before: Fakes C Decision: See paragraph [96] Catchwords: DEVELOPMENT APPLICATION: construction of detached dual occupancy; height, bulk and scale; solar access; view loss; privacy; carparking Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Willoughby Local Environmental Plan 2012 Cases Cited: Zhang v Canterbury Council [2001] NSWCA 167 Category: Principal judgment Parties: Elena Simeonov (Applicant) Willoughby City Council (Respondent) Representation: Applicant: Mr M Staunton (Barrister) Respondent: Mr N Eastman (Barrister) Applicant: HWL Ebsworth Lawyers Respondent: King & Wood Mallesons File Number(s): 10667 of 2013

Judgment 1COMMISSIONER: The applicant in these proceedings appeals Willoughby City Council's refusal of development application DA/2013/229 for the demolition of an existing dwelling and the construction of a detached dual occupancy and associated structures on Lot 45 DP8226E otherwise known as 78 Baroona Road, Northbridge. 2The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act). 3When the Class 1 application was filed with the Court in August 2013, the DA was a deemed refusal. Following the submitting of further amended plans and subsequent assessment by council, the proposal was recommended for refusal on 11 November 2013.

The site and its locality 4The site is zoned R2 Low Density Residential under Willoughby Local Environmental Plan 2012 (WLEP). 5The site is approximately 15m wide and almost 64m deep and falls approximately 6.5m from north to south. 6The existing dwelling is located on the southern or lower side of Baroona Road in Northbridge, between Baroona Road and Ulric Lane to the south. The dwelling presents as single storey from Baroona Road and as two storeys from Ulric Lane. The site is accessed via a driveway along the eastern side of the block. There is no garage or carport. A large Sydney Blue Gum (Eucalyptus saligna) is located in the front garden. 7The rear of the property is undeveloped lawn with rock outcrops and several mature trees. 8The adjoining property to the east comprises a dual occupancy. The property facing Baroona Road (no. 80) is a two-storey dwelling with a hardstand parking platform on the north-eastern corner. The property at the rear (no. 80A) is a single storey dwelling facing Ulric Lane. This property includes a double garage accessed from Ulric Lane. 9The adjoining property to the west is a single storey dwelling with a pool at its southern end. 10Baroona Road contains a mixture of single and two-storey dwellings of a range of architectural styles, however, the majority of dwellings have pitched roof forms. The northern side of the relevant portion of Baroona Road is more elevated. A number of nearby properties have garages at street level either incorporated into the slope or free standing. However, the range of parking locations and types is diverse. 11Ulric Lane skirts the edge of a cliff. The Lane is partly sealed and partly unformed. The relevant portion of Ulric Lane is the sealed section at the rear of 74-80A Baroona Road, however while unsealed, the lane continues to Namoi Road to the east and then further east to Woonona Road and another sealed section. 12The majority of the properties between Baroona Road and Namoi Road, which back onto the lane have vegetated, undeveloped rear gardens although several have pools.

The proposal and relevant background 13The Amended Statement of Facts and Contentions records the history of the development. A previous Development Application DA 2012/440 for a similar proposal was refused in May 2013. The current DA was lodged with council in June 2013. The plans were subsequently amended on two occasions. All plans were appropriately notified. 14The applicant proposes to demolish the existing dwelling and ancillary structures. The proposed new development consists of two two-storey detached dwellings. One dwelling is to be accessed from Baroona Road and the other from Ulric Lane. 15The Baroona Road dwelling includes a carport and double hardstand forward of the building line and a pool in the rear yard. The Ulric Lane dwelling is to include a double garage under the dwelling.

The issues 16The council raises the following contentions: * Excessive height, bulk and scale: the Ulric dwelling does not comply with the height and distribution of GFA controls in WLEP; a slight exceedence of FSR and building envelope controls for both dwellings; excess and redundant space in both dwellings; unacceptable visual impact of Ulric dwelling; and consequential adverse amenity impacts. * Loss of views from 80 Baroona Road due to the Ulric dwelling; * Overshadowing by Ulric dwelling of 80A Baroona Road; * Loss of privacy to properties adjoining the Ulric dwelling; * Encroachment into the tree protection zone - Sydney Blue Gum; and * Unacceptable visual impact of car parking structures - Baroona dwelling.

The assessment framework 17Section 79C of the Environmental Planning and Assessment Act 1979 applies. 18The relevant zone objectives - Zone R2 Low Density Residential in WLEP are: * To provide for the housing needs of the community within a low density residential environment. * To accommodate development that is compatible with the scale and character of the surrounding residential development. * To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality. 19Clause 4.3 - Height of buildings in WLEP applies. The objectives are given in cl 4.3(1). The Height of Buildings Map shows the site as having a maximum building height of 8.5m. Clause 4.3A provides the exceptions to height of buildings. Relevantly, cl 4.3A(5) and (6) state that the height of a dual occupancy (detached) or a secondary dwelling must not exceed 5.7m. The relevant objectives in cl 4.3(1) are: (a)to ensure that new development is in harmony with the bulk and scale of surrounding buildings and streetscapes. (b)to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (c)to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development. (d)to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping, (e)to use maximum height limits to assist in responding to the current and desired future character of the locality, 20Clause 4.6 considers exceptions to development standards. 21Willoughby Development Control Plan (WDCP) came into force in August 2006. Part C covers General Development Guidelines. 22Clause C.3.2.1 D - overshadowing and solar design principles requires that the degree of overshadowing of adjacent buildings or open space be to be minimised. 23Clause C.4.6 - concerns additional controls for single dwellings, semi detached dwellings, boarding houses and dual occupancy development in regards to the location, visual impact and siting of car parking spaces. Of relevance are the following performance criteria: Location of car parking structures 1. Garages and carports will not visually dominate or conceal a large proportion of the street façade. The structures should be designed to blend into the streetscape and should integrate with the overall design of the dwelling in terms of height, form, materials, detailing and colour. The accompanying diagram on page C4-18 illustrates the possible locations for car parking - rear of the site; garage located within the design of the dwelling; carport/garage located behind building alignment; or for carparking within the setback area - paved standing area or open carport should be used. Visual impact 1. The visual dominance of driveways and car parking structures will be minimised by: i) use of irregular driveway alignment; ii) minimising driveway width; iii) selection of paving materials for driveways and open care parking areas; braking up the appearance of driveways with landscaping or central grass strips; iv) use of landscaping or screen planting; and v) using stacked parking or single garage arrangements. Structures in the front setback 1. Car parking may be permitted in front of the building line where the preferred approach is open carports, pergola style structures or hard stand spaces. Such circumstances include: i) sites which drop or rise steeply from the front boundary; ii) where the surrounding streetscape has a prevalence of car parking structures within the setback area; v) where the only other practical alternative is at the rear of the dwelling taking up private open space. 24The associated controls are: Location and design solutions 1. Applicants should demonstrate the most suitable location and design solution for an individual site having regard to the intent of this Control and the relevant Desired Future Character Statements in Part D.1.2. 2. The car parking requirements may be satisfied either as an open car parking space, a carport or a garage. Siting of car parking spaces 1. Car parking spaces should be located: i) as an integrated part of a new dwelling where site conditions permit on or behind the building line; iv) in front of the building line as a single hardstand/ single open sided carports; with a minimum 1m setback from the front boundary for landscaping; and to improve sightlines for pedestrians and exiting vehicles. (Where an additional setback is possible provision should be made to allow a vehicle standing area in front of the carport.) 25WDCP Part D1 - Dwelling Houses, Dual Occupancies and Secondary Dwellings applies. The site is within the Northbridge residential locality area. D.1.2.3 describes, amongst other things, the existing character and streetscapes of the area as well as the desired future character. 26As the site is more 'inland' rather than 'peninsular', the relevant desired future character attributes are: 1. Maintaining a consistent front building alignment of moderately deep setbacks with informally front landscaped gardens to the street; 2. Maintaining a streetscape of low masonry or timber palisade fencing up to 1.2m in height to the street; 3. Ensuring new building forms are compatible with the scale, building siting, massing and use of external materials of the existing streetscape comprising predominantly single to two storied darker tone face brick or rendered and painted dwellings with terracotta coloured roofs of consistently gabled or pitched roof forms and asymmetrical street facades, 27Clause D.1.4 lists the objectives, performance criteria and controls for Character, Design, Streetscape and View Sharing; Clause D.1.6 concerns Height; Clause D.1.7 - Building Envelopes and Setbacks; D.1.11 - Privacy and D.1.12 - Solar Access. Relevantly, cl D.1.12.3 - controls for solar access includes a Note what states that in certain circumstances, there may be locations where existing solar access on neighbouring properties will not be able to be retained. The specific controls will be addressed in the relevant sections of this judgment.

The hearing 28The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. During the conciliation process a number of matters were resolved however as complete agreement was not reached the conciliation was terminated under s 34AA(2)(b) and the matter progressed to a hearing. 29As is usual in these procedures, a number of nearby residents voiced their objections to the proposal and the three adjoining properties were visited. The oral submissions are in addition to the residents written submissions included in the council's bundle of evidence. The matters raised by the residents form the basis of a number of the council's contentions. 30In summary, the issues raised were: * Loss of views of the northern pylon of the Northbridge bridge from the living room of 80 Baroona Road as a consequence of the height of the Ulric dwelling; * Loss of solar access and privacy to the rear private open space of 80A Baroona Road due to the size, bulk and location of the Ulric dwelling; * Loss of privacy to the pool and rear deck of 76 Baroona Road due to the proximity and configuration of the Ulric dwelling; and * An objection to the visual impact of the proposed car port and hardstand in the front setback of the Baroona dwelling in that the form is out of character with the streetscape (raised by the owner of 77 Baroona Road - opposite the site). 31Each party engaged an arborist and a planner to provide expert evidence. For the applicant, Mr Brown gave planning evidence and Mr Paroissien provided arboricultural evidence. Mr Sanders gave planning evidence for the respondent and Mr Castor arboricultural evidence.

Arboricultural issues 32The only tree-related contention concerns the large Sydney Blue Gum in the front of the property. In their joint report, the arborists consider a range of conditions that could be imposed in order to minimise any impacts of development on the tree. Despite this very helpful and co-operative approach to solving the potential problems, an inspection of the tree on the hearing day revealed recent and extensive borer damage that was not apparent when the arborists previously assessed the tree. Given the virtual ringbarking of the tree, the arborists agreed that the tree should be removed and replaced by a suitable canopy tree. Therefore this contention is not longer relevant. 33The arborists agree that a Phoenix canariensis (Canary Island Date Palm) growing on the southeastern corner of the site be removed and replaced with a locally native canopy tree. 34The arborists also agree that in order to limit any damage to its roots, a storm water pipe should be installed at grade between the fence and Tree 2, a Corymbia citriodora (Lemon-scented Gum). 35It was generally agreed that all arboricultural issues are resolved and that appropriate conditions of consent be drafted.

Views 36The owners of no. 80 are concerned that the Ulric dwelling will obscure their views of the northern pylon of the sandstone bridge at Northbridge to the southwest. 37To facilitate a better understanding of the likely impact, a number of height poles were set up at surveyed points locating the relevant positions and heights of the proposed roof.

Findings 38The view was observed from the elevated back deck and living room, from sitting and standing positions. The current view to the southwest is an unobstructed view across the rear of the site down to the vegetated gully of Tunks Park and the bridge. The full extent of the northern pylon is visible as is the carriageway on the deck. 39The height poles indicated that there will be some moderate disruption of the view to the southwest of the bridge from the living room and associated deck at the rear of no. 80 however part of the pylon remains visible even from a seated position. There is likely to be little, if any, disruption of the view from the upper level of no. 80. 40The relevant objectives cl 4.3(1)(b) and (d) in WLEP require new developments to minimise disruption to views from adjoining properties. Objective 3 Part D cl D.1.4.1 in WDCP is 'to encourage the sharing of views, while not restricting the reasonable development potential of the site'. 41The obstruction occurs as a consequence of a compliant portion of the proposed dwelling. The site has significant development potential and dual occupancies are permitted with consent. 42On balance, I find that the obstruction of part of the view from no. 80 Baroona Road does not warrant the refusal of the appeal.

Height, bulk and scale - privacy and overshadowing

Baroona dwelling 43The main issue arising from the dimensions of the proposed Baroona Road dwelling is a minor exceedence of the Building Envelope controls in cl D.1.7.3 WDCP and shown on Drawing Number DA 205 Revision A. 44While the non-compliance is not disputed, no specific impacts on the amenity of neighbouring properties have been identified. As a consequence of the most recently amended plans, the proposed dwelling complies with the maximum floor space ratio, it has a pitched roof form at its street frontage well below the maximum height limit, and is otherwise compatible with the surrounding developments. 45While there was some discussion about the internal configuration, in particular the void on the upper level of the eastern elevation, and the size of the 'wet bar' on the ground floor, the building is compliant with the FSR controls and no particular issues were raised apart from an assertion that it contributes to the overall bulk of the dwelling. 46The void appears to replace stairs proposed in previous plans. The submissions by objectors indicate some concern over a potential use of the dwelling as an attached dual occupancy. However, the proposal before the Court is for two detached dual occupancies and must be assessed on the relevant plans. In the future, should the applicant wish to modify any consent, including a change in use, that is a matter for them and any modification will be subject to the relevant sections of the Act and the WLEP.

Findings - height, bulk scale - Baroona dwelling 47While the WDCP should be the focal point of my consideration, I am not required to adopt it uncritically (Zhang v Canterbury Council [2001] NSWCA 167). I am not satisfied that any impacts on the amenity of the neighbouring properties or on the streetscape arise from this non-compliance with the building envelope controls and therefore consider that refusal is not warranted on these grounds.

Ulric dwelling 48The majority of the council's contentions relate to the proposed Ulric dwelling. Mr Sanders and Mr Brown disagree as to the extent of the impacts arising from its height and bulk. 49While Mr Brown considers that the 5.7m height limit may not apply, this was not pressed by Mr Staunton, counsel for the applicant. It is agreed that if the 5.7m height limit applies, the south-western corner is not compliant by 500mm. The building envelope control is also exceeded in this portion of the proposed dwelling. The proposal does not meet the requirement for the upper floor to be restricted to 60% of the floor area of the ground floor. 50In regards to whether the proposed Ulric dwelling is in harmony with the with the bulk and scale of surrounding buildings and streetscapes, Mr Sanders considers that a two storey dwelling in that part of Ulric Lane is out of character with nearby development and it will be visually intrusive from the Lane, used by pedestrians travelling to Tunks Park. In his view the character is determined by the adjoining single storey dwelling with pitched roof at 80A Baroona Road. He considers that from the Lane, the dwelling will present as three storeys. In his opinion, the non-compliance with the distribution of floor space adds to the bulk of the building. 51Mr Sanders maintains that the height and proximity of the eastern wall to the adjoining boundary will reduce the already limited solar access to the rear deck of 80A and will be visually overbearing. 52Mr Brown opines it is unreasonable to assume that the character of a streetscape is determined by the form of only one other nearby development. In his view, the immediate Ulric Lane streetscape is characterised by undeveloped/ vacant rear gardens, but further to the east, the Lane is characterised by two-storey dwellings. He considers the proposal is commensurate with what could be expected from the current controls, including the fact there is no control on the number of storeys. 53Mr Brown considers that the non-compliance with the 60% distribution of floor space should be given little weight as the principal determinant of bulk and scale, being FSR, is compliant. 54With respect to the reduction in solar access to 80A, Mr Brown states that the rear deck/private open space of that dwelling faces south and therefore potential solar access is limited. In his view any reasonable development of the site would make it extremely difficult to maintain solar access. In supporting this opinion Mr Brown refers to the Note in cl D.1.12.3 in WDCP which states, "There may be locations where existing solar access on neighbouring properties will not be able to be retained..." and includes circumstances of the orientation of existing lots. 55In regards to privacy and visual amenity from the rear of 80A, Mr Brown notes the compliant wall height, consistent building alignment, and greater than required setbacks to justify his opinion that the visual impact is not unreasonable. He considers that the main field of view from the rear private open space of 80A is across the valley to the south and not towards the north. 56Mr Eastman and Mr Staunton made submissions on the Ulric dwelling and discussed measures that might resolve the areas of non-compliance. 57Mr Eastman stated that council's position is that the balcony to the south and west of the of the office, as well as the void and access corridor on the western side of the first floor level of the Ulric dwelling should be deleted and replaced with an extension of the roof of the ground floor level below. 58In addition, the council considers that changes be made to the location of walls, size of bathrooms, under roof space and balconies on the southern and eastern section of the first floor of the Ulric dwelling. 59These changes are proposed in order to reduce the overall bulk and scale of the dwelling, deal with the non-compliances with the controls, and minimise the potential for overlooking. 60Mr Staunton contends that Mr Brown's opinion should be preferred over Mr Sanders' view. It would be unreasonable for the character of Ulric Lane to be set by one dwelling approved under previous planning controls which limited development to a single storey when the current controls permit at least a two-storey development. 61Mr Staunton agrees the void on the south western side of the first floor can be deleted but considers it is unnecessary to delete any portion of the balcony on that side given that the potential for overlooking from an office is likely to be inconsequential. More importantly, he submits that the removal of the void and the resulting setting back of the wall will render the dwelling compliant with the height and building height plane controls. However, he maintains that if the Court were minded to delete any portion of the balcony on the southwestern side, then he proposes alternative conditions including the erection of privacy screens. 62Similarly, the applicant opposes any changes to the southeastern portion of the first floor of the dwelling as the impact on 80A is minor and strict compliance with the 60% distribution is unnecessary in the circumstances. 63The parties agreed that in order to reduce the visual impact from Ulric Lane, any proposed balustrading located to the southern side of the raised garden area to the south of the living room be setback one metre from the lane frontage and the area between the balustrading and boundary to be landscaped. A condition to that effect was drafted and agreed.

Findings - height, bulk, and scale - Ulric dwelling 64I agree with the applicant's position that the character of Ulric Lane cannot be determined by development approved under previous and more restrictive controls. WLEP 2012 enables dual occupancy, two-storey development on the site, in an area currently undergoing transition. 65I agree with the council's position in regards to the southwestern portion of the upper storey of the Ulric dwelling. Removal of the void, corridor and the south-western portion of the balcony will reduce the visual bulk of the building, provide more articulation of that side, reduce the potential privacy impacts to 76, and go some small way to reducing the non-compliance with the distribution of internal floor area. It will necessitate some configuration of the bathroom, a new doorway into the bathroom, and the installation of a fixed privacy screen at the western end of the balcony. The privacy screen should obstruct the view of a person of average height. The current bathroom doorway may be replaced with translucent glass or a highlight window. The external wall on the western side will need to be reconfigured as will the roof above. The first floor slab extending beyond the new external wall must be marked non-trafficable. 66Although, in my reading of the plans, the non-compliances with building envelope and height remain at the western corner of the proposed study, the non-compliance is minor and will not result in any adverse impact on the streetscape or the adjoining property to the west. I am satisfied in the circumstances that the objectives in cl 4.3(1) WLEP are substantially met and a variation in the height development standard is reasonable. 67I am not satisfied that the council's proposed changes to the south-eastern portion of the first floor are warranted as any minor changes to that elevation would seem to provide little material benefit to the adjoining dwelling on 80A, in particular to overshadowing, and the height and setbacks in that portion are otherwise compliant. 68In regards to the overshadowing of 80A, the winter solstice shadow diagrams indicate that the rear open space of 80A receives little direct sunlight in any event as a consequence of its south-facing aspect. I agree with Mr Brown that any development at the rear of the site would most likely increase shading to the rear of 80A. This is an example of where the note in cl D.1.12.3 in WDCP is applicable. I consider the amount of overshadowing is not unreasonable in the circumstances. I also note Mr Staunton's submission that 80A contains another courtyard/ area of private open space on its eastern side that will be unaffected by the proposed development. 69While any development at the rear of the site will have an impact on the amenity of 80A, I do not consider it is of such magnitude or unreasonableness as to warrant refusal of the appeal.

Car parking - Baroona dwelling 70In regards to the proposed carport and hardstand in the front setback of the Baroona dwelling, Mr Sanders considers that this is out of keeping with the character of the existing residential development in the street and it therefore adversely impacts on the public domain. 71In Mr Sanders' opinion, a better design would have incorporated the parking into the building. While it could be retrofitted into the existing proposal, particularly given the available internal space described as 'void' and 'wet bar', a more skilful design in the first instance would have been preferable. 72In his view, council's controls generally require parking to be at the side or rear of dwellings and that parking in the front setback is only permitted in exceptional circumstances. He considers that the circumstances are not exceptional. He also opines that the proposed parking arrangements are contrary to the desired future character statement for the locality. 73Mr Brown considers that parking forward of the building line is not out of character with the streetscape as there are a number of nearby examples of carports, garages and hardstands in the front setback. In his view, the area is limited to about 30% of the width of the site and the proposed carport is a lightweight structure that will have little visual impact in the streetscape. 74Mr Brown considers that WDCP anticipates parking forward of the building line as well as lightweight structures for carports. He considers the steep drop from the street to the dwelling is consistent with the exceptional circumstances given in WDCP cl C.4.6.

Findings 75While the WDCP considers a preference for new dwellings to incorporate car parking into the dwelling or to provide single spaces forward of the building lines, on balance I find that the proposed tandem hardstand in the front setback of the Baroona dwelling is acceptable in the circumstances. 76I agree with Mr Staunton that retrofitting a garage into the proposed dwelling would impact on both the ground and first floor levels and would also necessitate a reasonably long driveway. To this end, I do not accept council's draft condition requiring the relocation of the car space into the dwelling. 77The front of the site slopes quite steeply to the rear and I agree with Mr Brown that this is a circumstance that permits parking in the front setback. 78In regards to the streetscape, there are a range of parking arrangements in the street including a wider than single width hardstand at the front of no.80 and a freestanding garage at street level directly opposite the site. Therefore, I do not find the proposed parking arrangements to be so incompatible with the character of the surrounding residential character to warrant refusal. 79However, in order to limit the visual impact of the car space, the proposed carport is to be deleted and a condition will be imposed requiring fencing and gates in accordance with the controls in WDCP. The proposed landscaping along the northeastern boundary will also assist.

Contested conditions 80Schedule 1 of council's draft without prejudice conditions (filed 3 December 2013) includes a number of deferred commencement conditions that are opposed by the applicant. 81I have considered the conditions and I agree with the applicant that none of them should be imposed as deferred commencement conditions but rather some as conditions to be complied with prior to the issue of a construction certificate. I make findings on each of council's draft deferred commencement conditions.

Internal pedestrian access 82Deferred commencement condition 1(a) requires provision of pedestrian access from the Ulric dwelling through the Baroona site to Baroona Road for the purpose of servicing garbage collection and mail delivery. This would require suitable privacy treatments to the Baroona dwelling and its private open space. Mr Eastman stated that the primary reason for this is the fact that garbage trucks cannot access Ulric Lane. Mr Eastman referred to the pathway connecting 80A to Baroona Road. 83Mr Staunton stated that a previous DA for the site (DA 2012/440) included pedestrian access from the proposed dwelling on Ulric Lane, along the western boundary fence, through to Baroona Road. The assessing officer noted in their report to council that a right of access from Baroona Road to the rear dwelling was not required as the rear dwelling can be accessed from Ulric Lane. Therefore, Mr Staunton submits that given this previous assessment, no access was proposed and nor is it required as the residents of the Ulric dwelling could take their garbage to Baroona Road via the Lane. 84During the site inspection it was noted that the retention of Tree 2, a large Lemon-scented Gum growing on the western boundary would require modifications to the storm water system in order to avoid or minimise any damage to its structural root system. Likewise, any pedestrian access along that boundary would have to be constructed in a tree-sensitive manner. The diameter of the tree would necessitate a significant deviation around the tree and into the private open space of the Baroona dwelling. 85It is not unrealistic to expect that the residents of the Ulric dwelling should be able to move their bins to the street frontage outside 78 Baroona Road and collect their mail from a letterbox at the Baroona Road frontage. 86Draft deferred commencement condition 1(a) is to be deleted and if necessary replaced with a condition requiring the occupants of the Ulric dwelling to place their garbage bins on the street outside 78 Baroona Road and for letterboxes for both dwellings to be located at the Baroona Road frontage. If any condition is required it could be included as requirement prior to occupation of the development or as an "Additional Condition" 'Garbage and mail collection'.

Landscape plans 87Given the lack of detail in the submitted landscape plans and the discussions on site in regards to the front setback of both the Ulric lane dwelling and the Baroona Road dwelling, including the wall/ fence treatments and the need to replace the Date Palm and the Sydney Blue Gum, it is not unreasonable to require a detailed landscape plan prior to the issue of a construction certificate but not as a deferred commencement condition. The wording in 1(b) is acceptable to both parties. The landscape plans are to be consistent with the architectural plans.

Changes to plans 88The carport is to be deleted from the plans and the hardstand is to remain in its proposed location. Therefore council's draft condition 1(c) requiring relocation of the carport/garage is deleted. 89The wording of proposed deferred commencement conditions 1(d) concerning fencing and gates to the Baroona Road frontage and 1(h) - balustrading Ulric dwelling, are acceptable to both parties but are to be required prior to issue of a construction certificate. 90In accordance with [65] draft deferred commencement conditions 1(e) and 1(f) are to be reworded and replaced with a single condition. For example, "The void, access corridor between the office and the bathroom, and western portion of the office balcony on the first floor level of the southern (Ulric) dwelling are to be deleted and replaced with an extension of the roof of the ground floor level below. The western wall and roof are to be reconfigured accordingly. The bathroom is to be modified to include a new doorway from the study. The current bathroom doorway may be replaced with translucent glass or a highlight window. The western end of the office balcony is to have a fixed privacy screen at least 1.6m high. The first floor slab extending beyond the new external wall must be marked non-trafficable." 91Plans, including elevations and cross sections detailing these amendments are required to be submitted to and approved by council prior to the issue of a construction certificate. 92Draft deferred commencement condition 1(g) is deleted. 93In regards to draft deferred commencement conditions 2 and 3 relating to a revised survey and site plan, I note that the arborists picked up a discrepancy with the levels in the vicinity of the Sydney Blue Gum. My recollection is that the discrepancy may have required some additional excavation that was critical in terms of tree retention. However, a minor lowering of the Baroona dwelling would not create any additional impacts on adjoining properties. Council raised no objections in regards to the additional survey material in exhibit D. Therefore I agree with the applicant that these conditions are not required.

Agreed conditions 94The parties agree on the wording of a condition requiring the provision of additional plans and documentation regarding stormwater prior to the issue of a construction certificate. I also note the agreement of the parties to additional requirements for tree protection and tree planting.

Conclusions and directions 95Overall, I find that the proposal meets the zone objectives. While there is some minor non-compliance with the height standard and the building envelope controls, those non-compliant parts of the dwellings do not create any unreasonable impact on the amenity of adjoining properties or on the public domain. 96After considering the necessary matters for consideration under s 79C of the Act, I find that the appeal should be upheld and the development approved subject to the agreed conditions of consent and in accordance with the adjudicated conditions discussed in this judgment.

Directions (1)The parties are to file and serve agreed consolidated conditions of consent by 23 December 2013 - both in hard copy and electronically in Word 97 format and marked to my attention. (2)Final Orders will be issued in Chambers. ______________________ Judy Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2014