Boston Blythe Fleming Pty Ltd v Woollahra Municipal Council

Planning framework 6The site is zoned Residential 2(a) under Woollahra Local Environment Plan 1995 (LEP 1995). The proposal is permissible with consent. 7The objectives of the Residential 2(a) zone include, at cl 3(a): To maintain the amenity and existing characteristics of areas predominately characterised by dwelling-houses. 8LEP 1995 height map specifies a maximum height of 9.5 m for the site. The parties disagree on whether the proposal complies with the height control, and if so whether the SEPP 1 objection is well founded, which is discussed further in this judgment. 9Draft Woollahra Local Environment Plan 2013 (Draft LEP) is relevant but the parties did not raise any matters in relation to the Draft LEP. 10Woollahra Residential Development Control Plan 2003 (DCP 2003) includes provisions that apply to the application, in particular, Section 5.8 - Acoustic and Visual Privacy includes the following objective at O 5.8.2: To ensure adequate visual privacy for occupants and neighbours while balancing the need to provide for reasonable levels of environmental amenity, including access to sunlight and ventilation, and good architectural outcomes. 11Section 5.8 includes the following controls, at C 5.8.6 and C 5.8.9: Balconies, terraces, decks, roof terraces and other like areas within a development are suitably located and screened to prevent direct views into habitable rooms (including bedrooms) or private open space of the adjoining and adjacent dwelling (see Figure 5.8.4). The trafficable area of the roof terraces must be set back so that there is no direct line of sight to neighbouring open space or to the windows of the habitable rooms of adjoining dwellings within a distance of 12 m as measured form the external face of the building with the roof terrace to the external face of the adjoining building (see Figure 5.8.5).

Evidence 12The Court visited the site and objectors' properties at 10 and 12 Ginahgulla Road. The key concern of the objectors was that the use of the roof terrace would adversely impact on their amenity, particularly from noise and visual intrusion generated by people using the terrace. They considered that people on the deck would be visible even with the proposed landscape screen and that there is no certainty that the landscaping would be maintained or would grow to the height required to maintain acceptable privacy. Furthermore, the landscaping would add to the bulk of the building and impact on their outlook, views and solar access. The roof of 8A Ginahgulla is trafficable and the occupants will not be confined to the proposed timber deck area, but will be able to move around the roof and overlook their properties, including the pool and outdoor areas. The proposed deck was uncharacteristic of the area, which contains a number of heritage items and is unnecessary given the extensive views that are already available from other areas of the house and its terraces. 13The Court heard planning evidence from Mr N Kennan, for the council and Mr G Boston, for the applicant. Is the SEPP 1 objection well founded? 14The experts agree that the proposal would exceed the maximum height of 9.5m in cl 12 of LEP 1995 as follows:

• access stairs and deck (240mm);
• planter box (940mm); and
• glass balustrades (1.1m) 15Under the definitions in LEP 1995, "height" is measured from "existing ground level", which is the existing excavated ground level of the basement on the site. The experts agree that approximately 2.7m of the building height is located below adjacent ground level and does not contribute in any discernable way to the perceived height and bulk of the building. 16Mr Boston prepared an objection under SEPP 1 to cl 12 of LEP 1995 which concluded that strict compliance was unreasonable and unnecessary in the circumstances of the case having regard to the objectives of the height standard. Mr Kennan agreed that the SEPP 1 objection was well founded, subject to the landscape screen being maintained to protect visual privacy. He acknowledged that the impacts of the proposal would be no different to those of a development which complied with the height control. Submissions 17Despite the agreement of the experts that the objectives are met, Ms Reid, for the council, submits that the use of the deck is not compatible with the adjoining residential neighbourhood and is reliant on landscaping to achieve acceptable visual privacy and therefore does not meet Objectives (b) and (c) of cl 12AA. 18Ms Reid referred to the planning principles in Super Studio v Waverley [2004] NSWLEC 91 where (at [5] and [6]) Roseth SC states: Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible. The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens. 19Ms Reid submits that the impacts are unacceptable as of the proposed roof deck is unreasonable given that the house has a number of decks and areas which obtain extensive views to the harbour. Ms Reid also referred to the planning principles in Davies v Penrith City Council [2013] NSWLEC 1144 to support this submission. 20In Ms Reid's submission, the proposed landscaping is the primary means by which acceptable privacy can be achieved. However, there is no certainty that the landscaping will be maintained or will achieve the required height. 21Mr Staunton, for the applicant, submits that council's contentions in relation to Objective (b) of the height standard refer to the compatibility of "built form" which the experts have agreed is acceptable. "Use", is not a relevant consideration in assessing compatibility of height and even if it were, DCP 2003 envisages roof decks in residential areas, there are other examples in the locality and the experts have not raised any in principle objection to the use of the roof deck. 22In Mr Staunton's submission, reasonable visual privacy is achieved by the separation distances between the properties which substantially exceed the requirements in DCP 2003. The proposed landscaping is a secondary measure which will achieve "absolute" privacy. There is no evidence that the landscaping will fail, not be maintained or not achieve the required height. Furthermore, the applicant accepts a condition that would prevent use of the deck unless or until the landscaping achieves the required height of 2.4m. The experts agree, that with the landscaping acceptable visual privacy is achieved and the proposal meets objective (c) of the height standard. 23Furthermore, Mr Staunton submits that the principles in Superstudio and Davies are met. The proposed deck will provide views to the city and Centrepoint, which are not available from other parts of the house which have extensive but different views. The experts have agreed that there is minimal impact from the proposal, which when weighed against the reasonableness of the proposal is acceptable. 24Mr Staunton also made a submission that the proposal complied with the 9.5m height limit. Given that, for the reasons outlined below, I have found that the SEPP 1 objection is well founded, it is therefore not necessary for me to address this submission. Findings 25Preston CJ in Wehbe comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states (at [39] to [40]) that the Court must be satisfied of the following three matters: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: "(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and coordination of the orderly and economic use and development of land." 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 26His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states (at [42] to [43]): 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard... 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 27Clause 12AA of LEP 1995 identifies the following objectives of the maximum building height standard in cl 12: (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings, (d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing, (e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes. 28The experts agree that the proposal meets the above objectives. Even if "use " is relevant to determining compatibility in Objective (b), the experts accept that in principle, the use of part of the roof for a deck is "compatible" and is anticipated by DCP 2003. The proposal safeguards visual privacy primarily through the separation distances. The proposed landscaping to a height of 2.4m will prevent any overlooking to or from adjoining properties. The landscaping will also screen and soften the appearance of the deck and will not unreasonably add to the bulk of the existing building or result in impacts such as view loss or overshadowing. 29The proposed species (RaphiolepsisIndica - Indian Hawthorn) will achieve the height agreed to by the experts (2.4m) necessary to achieve "absolute privacy". The species requires little maintenance and a condition is included which requires a drip irrigation system. There is no evidence that the landscaping is likely to fail and the proposed condition restricting use of the deck provides sufficient certainty that acceptable visual privacy can be achieved. 30I accept Mr Staunton's submission that the use of landscaping as an additional measure to achieve visual privacy meets the objective (c) of the height control and does not offend the principles in Superstudio. 31The roof terrace provides different views to those available from the other terraces in the house. The experts have agreed that there are no material impacts from the proposed deck or impacts that would not result from a complying proposal, I therefore accept Mr Staunton's submission that considering the impacts and reasonableness of the proposal as outlined in Superstudio and Davies, would not be a reason to conclude that the development does not meet the objectives of the height control. Clearly a proposal which resulted in adverse impacts would not be justified given the extensive decks and views that are already available from the dwelling. 32For the reasons outlined by Mr Boston in the SEPP 1 objection and supported by Mr Kennan, I find that compliance with cl 12 of LEP 1995 is unnecessary and unreasonable in the circumstances of the case and that the SEPP 1 objection is well founded and consistent with the aims of the policy. Merit issues 33The key issues raised by council were the visual privacy and bulk and scale of the proposal. As discussed above the experts have agreed that these contentions have been satisfactorily addressed through the size and location of the deck which minimises potential impacts on adjoining properties. The roof terrace, balustrade and planter boxes are below the height of the previously approved clerestory window and (except for the glass balustrade) below the height of the existing parapet of the building and will not add to the bulk of the building or be unreasonable in the context of other development. The landscaping will soften and screen the existing concrete roof as well as the deck and will also not add to the bulk of the building. The separation distances and landscaping will achieve acceptable privacy to 10 and 12 Ginahgulla Road.

Orders The orders of the Court are:

1. The objection under SEPP No. 1 to cl 12 of Woollahra Local Environmental Plan is allowed.
2. The appeal is upheld.
3. Development Application No. 346/2013 for alterations and additions including a roof terrace, access stairs, balustrade and skylight on land at 8A Ginahgulla Road, Bellevue Hill, is approved, subject to the conditions in Annexure A
4. The exhibits, except Exhibit A may be returned. Annelise Tuor 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: 26 March 2014