Impacts of Delegating DA Approval

Author: Nick Fox of www.foxcad.com.au

This is a true story about the impact developments are having within the heritage conservation area of Belmont and Lawrence Streets, Alexandria. As part of the 2011 Draft Local Environment Plan, Council has determined that residents only have a right to receive two hours of direct sunlight into their properties, with anything outside that being a bonus. This can and is having a dramatic impact on residents as the plan does not cover existing sunlight conditions, which is a factor leading to some very bad decisions as it essentially allows development up to the boundaries of ones property; essentially, council is encouraging the filling in of light wells/passages that have for generations allowed sunlight to penetrate otherwise dimly lit dwellings. One such approved development is happening at 268 & 270 Belmont Street and the impacts on the owners of number 272 have been severe and are detailed below.


Background Information

 Mr. & Mrs. Carroll are long term residents of Belmont Street, Alexandria. Mrs. Carroll has lived in the area for over sixty years and her husband for almost forty. They purchased their house, a single storey terrace, in Belmont Street thirty five years ago and were attracted to the property because of its sunny aspect as well as its cost and proximity to the city. Mr. Carroll served a period of time as a alderman/councillor on South Sydney Council, but is now retired and is the president of the local bowling club. They have seen many changes in the street over the past four decades, particularly a rise in property values and an increase in the size of alterations and additions that have been approved. Under the old local environment plan (LEP) for South Sydney, the size of alterations and additions was governed by a fairly uniform floor space ratio (FSR) policy. This policy determined the scope and nature of permissible developments and has now been largely ignored for many parts of the Alexandria where FSR have been increased from ratios that fell between of 0.8:1 to 1:1, meaning you could extend your building to give you the same floor space as the site area, to 1.25:1. This essentially means you or a developer can increase the floor space by up to 45%. This means that a terrace house with 80 square metres of floor space (FSR 0.8:1) could extend their property to yield a total floor area of 125 Square metres giving an FSR of 1.25:1. On the very small sites within Alexandria, it is generally impossible to reach the 1.25:1 FSR without seriously impacting your neighbours, which is precisely the case for Mr. & Mrs. Carrol, where the adjoining development has taken away almost 100% of their direct sunlight. This fell on four windows at the rear of their property for most of the day during winter. These windows are now in total shade resulting in a complete loss of passive solar heat. The question is, how did the increased FSR come into play and what are its possible implications and impacts for other city residents?


2011 Draft LEP

 Sydney City Council engaged the consultanting company HBO+EMTB to undertake a study of the city and prepare a report with recommendations that would form part of the 2011 Draft LEP that is now before them. This study made recommendations that were to govern the FSR that would be in place for the coming years. In the case of Belmont and Lawrence Streets, the recommendation, following public input, was to maintain existing ridge heights and limit FSR to 0.8:1 to 1:1 though in some cases 1.25:1 would be permissible on larger sites. All of the buildings in Belmont and Lawrence Streets were identified using colour coding and on the whole there was a fair mix of old buildings and newer ones. Council decided, however, that what these two streets needed, and would get, was a uniform FSR of 1.25:1, which, if nothing else, would make the job of approving development applications 'simple' as approval could be left to the discretion of planners under 'delegated authority.' This means that councillors may never see DA drawings and an objector cannot have their say at a council meeting; the word of the planner is akin to the word of God and there are no rights of appeal unless one can prove that the approval process was flawed and you have the funds to take the matter to the Land and Environment Court. If you want councillors to look at a development that is being considered for approval under delegated authority, then is vital that you bring the matter to the attention of one of more of your councillors as this seems to be the only way of stopping the approving officer from making decisions that are detrimental to your best interests. Under delegated authority, DA's no longer go before full council and councillors, the exception being if they are over 3 storeys high and valued at $50 million dollars and above, which pretty much excludes all houses and building alterations in the state.


The DA Drawings & Shadow Diagrams

 In the case of the Carrols, there is a potential fault in the process and it concerns the prepared and approved shadow diagrams. The DA drawings I have seen for the development at 268 & 270 Belmont Streets can at best be described as totally inadequate. The extent and degree of overshadowing is not shown and is only hinted at by the drawing of a few indicatory lines. The shadow diagrams purport to show an accurate representation of the shadowing effect of the building on June 22nd for 9am, noon and 3pm and the approving officer has accepted these as being sufficient. They are not. Having been approved under delegated authority, the Carrolls were later  informed that they could not speak before council to oppose the development as this no longer happened. Essentially they now have to live with the decision of one person and they were never informed on how the approval process worked, or their rights to take the matter to committee before approval was granted.


Having been an architect for almost forty years, I can't recall ever seeing a set of shadow diagrams of such a low quality (on the drawings I have) and although they show shadow lines, they do not contain the detail necessary, or show the shadows extent, sufficient to grant DA approval. Council checked the drawings for me as they are no longer on public display and I have been informed that there were no amended or supplementary shadow diagrams. Under normal circumstances, such poor documentation would be rejected, or the applicant informed that they were not up to standard. In order to set the records straight, I have prepared, at my own expense, four animations showing accurately how the developments shadow falls on the adjoining property and for the Carrolls, it is not good news. These shadow diagram animations are linked from the Friends of Erskinville site. Although the Carrols are 'entitled' to two hours of uninterrupted sunlight, they are, or will, be overshadowed more or less for the entire days of winter, particularly in June that is the coldest month.



Where Did it all go Wrong and What Can You Do When Speaking Against a DA?


The problems council has created essentially fall into a number of discrete areas:


1. Sunlight and the 2011 Draft LEP
The 2011 Draft LEP fails to consider how increased FSRs and resulting increased building bulk, impact on adjoining properties when owners are allowed to enclose light wells and build on the boundary line. Clearly there is a need to maintain existing sunlight conditions, particularly where this gives a degree of passive solar heating during winter and is a primary source of light during the day. The Carrols are now faced with increased power bills for lighting and heating over winter.


2. Ignoring Consultants Recommendations
Ignoring consultants recommendations by increasing the FSR for very small sites. Council paid consultants tens of thousands of dollars for an in depth study of the city and their recommendations for Alexandria are quite specific. Council is choosing to largely ignore their recommendations that were initially to have FSR of 1.25:1, but later modified following public input that council chose to totally ignore.


3. Delegated Authority - A Flawed Process
 Passing off developments to council staff for approval under delegated authority is a flawed process that needs to be addressed. Once a decision is made under delegated authority, its set in concrete and there is no avenue of appeal unless you can prove that the process was somehow flawed. This was confirmed by a council planner on the 5th of April.


4. Poor DA Documentation and a Lack of Standards.
There is a complete lack of standards when drawings are submitted to council for approval; they can be anything from a thumbnail dipped in tar sketch, to a full blown set of architects drawings. The very lack of any standards for documentation is corrupting the approval process and resulting in the bad decisions as council officers  have to interpret what the intentions of a design are. A set of standards would aid council in this process and clearly if a set of drawings does not come up to standard, they should be rejected.


5. Separation of Councillors from the Approval Process

The distancing of councillors from the approval process is a major flaw, but if you want to have a say and get a DA looked at, contact your local councillors and express your concerns to them, otherwise the process will roll right over you and, like the Carolls, you'll be left without any sunlight and wonder where you went wrong and how the system let you down.