Brenchley Architects Pty Ltd v Waverley Council

CASES CITED: Segal & Anor v Waverley Council [2005] NSWCA 310 Super Studio v Waverley [2004] NSWLEC 91

APPLICANT Ms M-L Taylor (solicitor) SOLICITOR Gadens Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr Whealey (solicitor) SOLICITOR Bartier Perry Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10316 of 2009 Brenchley Architects Pty Ltd v Waverley Council

JUDGMENT 1 COMMISSIONER: The applicant seeks approval of a roof top terrace and the construction of a pergola with landscaping on an existing three storey residential flat building at 10 Sandridge Street, Bondi.

2 The appeal commenced as an onsite section 34 conciliation conference but with the consent of the parties proceeded to an arbitration hearing in Court. During the onsite hearing I heard evidence from several residents and the town planning experts before viewing the adjoining and surrounding development.

3 The key issues raised by the council in the appeal are: the impact of the development on visual privacy, acoustic privacy, and streetscape /bulk and scale and landscaping. The application 4 The plans before the Court are not the plans for which approval is sought.

5 The applicant proposes to make a number of amendments including: deletion of the solar panels, reduction of the size of the pergola and trafficable areas, landscaping around the perimeter of the trafficable areas limited to ground cover, no trafficable area west of the storeroom, a 1.2m high obscure glass privacy screen setback 1.3m from the trafficable area of the deck….to prevent overlooking to the windows of 8 Sandridge St, such screen to adjoin the storeroom building at the perimeter of the building on the northern side and shall extend in an easterly direction along the building edge for a distance of no less than 2.5m….. 6 The amendments are comprehensive and the applicant submits can be accommodated by way of a deferred commencement condition pursuant to section 80 (3) of the Environmental Planning and Assessment Act 1979 requiring the lodging of amended plans to the satisfaction of Council before operation of any consent.

7 To understand the application a copy of the applicant's draft deferred commencement condition which sets out the proposed amendments is annexed to this judgment. The site 8 The site is located on the eastern side of Sandridge Street near the intersection of Wilga Street. It is of irregular shape with a frontage of approximately 8.78m and a rear boundary of 8.6m and side boundaries of 25 m and 27m respectively. A right of way for access exists with the adjoining residential flat building to the north 8 Sandridge Street.

9 The site is occupied by a three storey residential flat building comprising a two bedroom unit with garage at the lower ground floor level and at the ground and first floor levels a two bedroom unit with balcony.

10 A roof storage structure is located on the western end of the rooftop area. It is not a habitable space. Previous applications 11 The council tendered a chronology of applications and orders in respect of the site including a refusal by the council and the court of roof terrace access. The applicant raises objection to any consideration of these previous applications on the basis of relevance. There is little gained from a review of the chronology tendered.

12 While I accept that consistency may be an important element of administrative decision-making and may result in a good planning outcome I appreciate that I am required to deal with this application on its merits having regard to the facts and evidence today. Segal & Anor V Waverley Council [2005] NSWCA 310. Planning controls 13 An assessment of this development under section 79C of the Environmental Planning and Assessment Act 1979 requires that I have regard to the following planning controls: o Waverley Local Environmental Plan 1996, (LEP96 o Waverley Development Control Plan 2006 (DCP) o Waverley Development Control Plan 29-Advertising and Notification of Development Applications 14 The site is zoned residential 2(b) under the LEP and is not listed as a heritage item or located within a conservation area.

15 The applicant lodged its development application no1/2009 with Waverley Council on 2 January 2009 and amended plans were lodged with the council on 11 March 2009.The application was notified and 5 submissions were received raising objection to the application.

16 Council's development and building unit on 30 April 2009 recommended refusal of the application on the basis that: "…the roof terrace will [have] an unacceptable impact on the adjoining properties in relation to visual and acoustic privacy. The size of the roof terrace is also contrary to Council's policy …" 17 The applicant lodged this appeal on 19 May 2009 against a deemed refusal of the application. Evidence 18 Mr. Nash a consultant town planner gave evidence on behalf of the council and the applicant relied on the evidence of its town planning consultant Mr. Betros.

19 The town planners prepared a joint report dated 27 June 2009 which was admitted into evidence. The experts gave evidence onsite and concurrently in Court.

20 In addressing the issues raised by the council specifically contentions1, 2 and 3 relating to the LEP the experts accepted that the general and specific aims of the LEP and zone objectives relate to the issue of maintaining and improving the amenity of residents in the locality.

21 Both experts agreed that persons on the rooftop terrace would overlook the dwellings on the opposite side of Sandridge Street to the west; however, the physical separation in excess of 20 meters would ameliorate any amenity impact.

22 Furthermore, they concluded that the impacts on the single storey semi detached dwelling to the south (12-14 Sandridge Street) will not be significant given the differential in the respective levels of the building. In any event the occupant of that semi attended the hearing and gave evidence that subject to an amendment to the design setting back the trafficable area to avoid overlooking into his property he had no issue with the application.

23 The experts had opposing opinions about the other contentions raised by the council.

24 Mr. Nash's evidence is that the roof terrace will be a source of noise disturbance and privacy impacts on adjoining dwellings and the residential flat buildings to the north, east and west.

25 The proposal to provide a covered pergola he says will increase the likely use of the terrace for entertaining in all weather conditions and will exacerbate the likelihood for disturbance of the residents late at night and early in the morning by noise generated by persons using the root top terrace. A reduction of the trafficable area and the size of the pergola did not in his view overcome this issue.

26 Mr. Nash was of the opinion that the use of the roof top terrace during the day and the night would provide opportunity to directly overlook windows and balconies of immediately adjoining dwelling units on the upper level of 8 Sandridge Street (unit 5) and 12A-14 Wilga street, Bondi. He did not accept that the proposed amendments would sufficiently reduce these impacts.

27 The evidence of residents from (unit 5) 8 Sandridge Street and 12A-14 Wilga St supported Mr. Nash's assessment of the impact of the development on their amenity. The evidence of the residents from 12A-14 Wilga Street is that the design of their building amplifies noise from adjoining development. There evidence is that any use of the roof and people standing on the terrace would exacerbate the acoustic problems they currently suffer. They also object to people standing on the roof terrace directly looking into their balcony and the entry to their units some 20 meters from the roof terrace.

28 The view of the site confirmed the close proximity of the buildings in this precinct. The experts agreed that the living room windows in unit 5 in the residential flat building to the north is 5 meters in distance to the rooftop and the nearest windows in the residential flat building at 12A-14 Wilga is some 10 meters.

29 Given the proximity of the windows to the living room on the upper level of 8 Sandridge Street (unit 5) to the proposed roof terrace Mr. Nash was of the opinion that there will be a significant potential for a major loss of aural and visual privacy for the occupants of that dwelling unit from persons using the rooftop terrace.

30 Mr. Nash was of the opinion that the impact on unit 5 is contrary to the objectives, strategies and controls under D2.5.5-Visual Privacy and D2.5.6-Acoustic privacy under the DCP 2006 (Amendment 4)

31 This was certainly the concern of the resident from unit 5 who gave evidence at the hearing. His evidence is that he already has a problem with noise given the proximity of the buildings. He informed the court that he hears conversations clearly from the roof and on occasion yells from his residence to quieten the speaker standing on the roof. He gave evidence that his living room windows currently look out to sky and he was concerned that if the development was approved he would lose that sky and horizon view to the south and instead look at an obscure glass balustrade and lose privacy from overlooking. Even with the proposed amendments to the location and height and length of the balustrade Mr. Nash's evidence is that the unacceptable impact of the development will not be overcome. 32 The council's evidence is that the proposed roof top terrace will have an adverse amenity impact on its neighbours to the east and the north and would therefore be contrary to the objectives and aims of the LEP and the 2(b) zone.

33 Mr. Nash invited the court to apply the planning principle in Super Studio V Waverley [2004] NSWLEC 91 and assess the proposal with heightened sensitivity as in his view the roof top terrace is a new element and would only be acceptable if its impact is minor or negligible.

34 Mr. Betros on behalf of the applicant was of the opinion that the proposed amendments reflected in the drawing dated 10 July 2009 achieved satisfaction of the general housing and zone objectives of the LEP. In his expert opinion the development improves the amenity of the existing 2-bedroom unit by providing a secondary private open space area, which captures coastal view including iconic views of bondi beach without unreasonably affecting the amenity of surrounding properties in terms of visual and or acoustic privacy.

35 The applicant's evidence acknowledges that there is a degree of existing mutual visual and acoustic privacy impacts in the immediate vicinity given the numerous windows and balconies associated with the subject and adjoining properties. Mr. Betros opinion is that the roof terrace provides greater visual and acoustic privacy than the existing balcony at the level below because of its greater distance of separation to surrounding properties, setback from the perimeter, screening devices and typically limited usage of such terraces.

36 Mr. Betros's evidence is that the roof top terrace is not a new element as it is consistent with the characteristics of the locality. He asked the court to observe the roof terrace on the adjoining residential flat building at 12A- 14 to the east and other terrace and balcony development observed on the view.

37 The applicant's evidence is that the roof terrace is consistent with both the objectives relating to visual privacy under clause 5.5: o To provide reasonable levels of privacy externally and internally, during the day and night; o To maximize outlook and view from principal rooms and private open space without compromising visual privacy. 38 Both experts also addressed the bulk and scale of the development and they agreed that the proposed covered pergola structure on the rooftop exceeded the maximum building height control of 9.5.m under D2.3.3.3of the DCP2006 by 1200mm for a length of 11.5m. However, Mr. Betros noted that the amended plans would reduce the extent of the pergola and the non-compliance to 3oomm.

39 Mr. Betros's evidence is that the proposed amendment to the trafficable area forward of the existing building roof structure would address the DCP zone objectives because only a glass balustrade would be visible from the street below when viewed from the west. In his opinion the light weight structure of the pergola setback from the western front perimeter of the building will not be perceived as additional height and will not add unreasonably to the bulk of the building.

40 Mr. Nash considered that the covered pergola on the rooftop will increase the perceived visual bulk of the building when viewed from Sandridge Street, Wilga Street, near the intersection of Sandridge and from the upper levels of the windows on the southern façade of the residential flat building at 8 Sandridge Street.

41 The parties appeared to agree that the landscape issue is resolved by the submission of a landscape plan with ground cover planting.

42 The submissions received by the council at the time of notification of the application were tendered into evidence and considered by me in my decision.

43 I also had the benefit of submissions from the legal representatives of the parties. Findings 44 In my consideration of the evidence and the submissions I have taken into account the matters required by section 79C of the Environmental Planning and Assessment Act 1979 including the public interest and have decided that the application should be refused for the following reasons.

45 The evidence supports a finding that the proposed development would be a source of unacceptable noise and privacy impacts on the adjoining residential flat buildings to the north and east.

46 The proposed development does not meet the zone objectives of the residential 2(b) zone as it does not maintain and improve the amenity and the existing characteristics of the locality.

47 While I accept the applicant's submission that the general aim of the LEP is to "provide a framework for more flexible planning controls"(clause 2(b) regard must be had to the impact of the proposal on the existing development and amenity of the residents. I agree that it is a question of balancing competing interests but reject the submission that this development is designed thoughtfully and reasonably in the circumstances.

48 The evidence is that persons using the roof top terrace during the day and the night will have the ability to directly overlook windows and balconies at the adjoining dwelling units on the upper level of 8 Sandridge Street (unit 5) and 12A-14 Wilga street, Bondi.

49 I appreciate that if the development was approved the subject site will capture what the applicant modestly submits are "reasonable ocean views ' and access to sunlight and open space. However, the subject site has an existing balcony and access to open space and sunlight. The views from the roof are superior views offering iconic views of Bondi Beach which are not available from the existing balcony but that of its self does not warrant approval of a development, which has an unreasonable impact on the amenity of the adjoining residents.

50 The site inspection provided me with the opportunity to better appreciate the proposed development in its existing built context and to hear directly from the residents most impacted by an approval of the application. Mr. Betros accurately states in his evidence that"… there is a degree of existing mutual visual and acoustic privacy impacts in the immediate vicinity given the close proximity of numerous windows and balconies associated with the subject and adjoining properties."

51 While it is difficult to fully appreciate the amended application without the amended plan before the Court I am not satisfied on the evidence that the proposed changes detailed in the applicant' s draft deferred commencement condition and discussed during the hearing will address the unacceptable visual and acoustic impacts resulting from the development of a rooftop terrace and pergola on the subject site. I accept Mr Nash's assessment that the amendments will not address the unreasonable impact of the development to the occupants of unit 5 whose living room window would be some 9 meters from the proposed glass balustrade of the terrace. Furthermore, I accept the occupant's objection to development because he would look out his living room window and see an obscure glass balustrade rather than the sky view and beyond he currently enjoy.

52 The parties have different views about the application of the planning principle in Super Studio in this appeal, if at all. I accept that planning principles are not binding principles but tools to assist with consistency of decision-making. I do not need to comment on Mr. Nash's interpretation of the principle, as I have not relied on that interpretation in coming to my decision.

53 During the view I was asked to note the adjoining rooftop structure and terrace to the east and other balconies and terraces in the surrounding locality. However, I was not shown any rooftop terraces with pergolas . The evidence supports a conclusion that this is a new element in this locality, which will have an unacceptable impact on the privacy both visual and aural and the amenity of adjoining residents.

54 The evidence supports a finding that the application does not balance competing interests but rather is designed to offer the applicant increased amenity at the expense of the already compromised amenity of other residents within the locality. The development does not agree maintain and improve the amenity of residents in the locality which the planners agree are the general and specific aims of the LEP.

55 The possibility that an approval of this application may constitute a precedent has not been a factor in my refusal of this application. Each application must be determined upon its facts and circumstances. A rooftop terrace with a pergola in Bondi may be an appropriate planning decision however, not this application.

56 Accordingly, I make the following orders: 1. The appeal in matter 10316 of 2009 is dismissed. 2. The exhibits are returned accept for the plans and the draft conditions.

      Susan Dixon
      Commissioner of the Court
      ljr

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