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[2010] NSWLEC 1037
Land and Environment Court (NSW)
2010-02-24
Original judgment source is linked above.
CITATION : Burrows & Faulkner v Lane Cove Council [2010] NSWLEC 1037
APPLICANTS Paul Burrows PARTIES : Judy Faulkner
RESPONDENT Lane Cove Council
KEY ISSUES: DEVELOPMENT MODIFICATION :- Deck Privacy
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987
Meriton v Sydney City Council [2004] NSWLEC 313 CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Super Studio v Waverley Council [2004] NSWLEC 91
APPLICANTS Mr M Staunton, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor Marsdens Law Group
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
10855 of 2009 Burrows and Faulkner v Lane Cove Council This determination was given extemporaneously and has been edited prior to publication
JUDGMENT 1 This is an appeal against the refusal by the Lane Cove Council (the Council) of an application pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent No D32/09 granted by the Council on 27 February 2009 for the demolition of three existing timber decks and the construction of three new decks at the rear of a dwelling at 22 Gore Street Greenwich, Lot 2, DP230777. 2 The dimensions of the new decks for which consent was sought in the development application were respectively ground level (being street level): 4m wide by 11m; lower level 1: 1.8m wide by 6.5m; and lower level 2: varying between 2.2 to 4m wide by 10.8m. The development consent was granted subject to condition 3: 3. The width of the proposed balconies at ground floor level and lower level 2 not exceeding 3m at any point to comply with the 3m maximum width specified in the Code for Dwellings as privacy is considered to be an issue. PLANS BEING ALTERED TO COMPLY PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. 3 The consent was also subject to condition 2: 2. The provision of a 1.8m high solid privacy screen along the north western side of the proposed three balconies. PLANS BEING ALTERED TO COMPLY PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE. 4 On 2 July 2009 the applicants applied for modification of the consent by deletion of condition 3. The Council notified both the original application and the modification application, and in relation to the latter received one submission from the two occupants of 24 Gore Street Greenwich. The Council refused the application on 6 October 2009. 5 The issues between the parties relate to the application of part 3.6 of the Lane Cove Code for Dwelling Houses August 2002, which limits elevated decks to a width of 3m of useable area where privacy is an issue, and also whether the proposed modification would result in adverse impacts on the amenity of the adjoining residents in terms of privacy and is unnecessary, having regard to the size of the approved balconies and conditions of the subject site. The site and its locality 6 The site is irregular in shape. It has an access strip which forms part of a shared right of way from the western end of Gore Street. The land falls steeply to the rear with bushland as part of the Gore Creek reserve on the Lane Cove River. The subject site has a three storey brick and weatherboard dwelling house with a pitched tile roof and an attached carport. The existing balconies at the rear of the property are 1.8m wide. 7 The neighbouring dwelling house to the north at 24 Gore Street is single storey and has a detached outbuilding on the southern side, variously referred to as a playroom and a studio. Planning controls 8 The applicable planning controls are contained in the Lane Cove Local Environmental Plan 1987 (the LEP), under which the subject site is zoned Residential 2(a1). At the hearing I was informed that there was a new local environmental plan recently gazetted which does not apply to this application. 9 The Lane Cove Code for Dwelling Houses August 2002 (the Code) applies. Part 3.6 of the Code is headed Privacy and Overlooking. The objective of this part of the Code is stated to be: Buildings are to be designed and constructed so as the use will not significantly affect the privacy of the occupant of any adjoining site. 10 There are three standards included in part 3.6. The standard relevant to this application is as follows: 3. Elevated decks, terraces or balconies greater than 1 metre above natural ground level are not to exceed a width of 3 metres of useable area. This clause does not apply where privacy is not an issue.
Evidence 11 The hearing was conducted as an onsite hearing. Evidence was given by the occupant of the adjoining property, 24 Gore Street, and the Court was able to view the subject site in company with the parties and their representatives from that property including a view from the main bedroom, an outdoor area, and from a point a few steps below. The existing decks at No. 22 were visible, and ropes had been placed in the position of the approved 3m distance, and at 4m. 12 The occupants of 24 Gore Street had made written submissions in response to the original development application and the modification application. Their concerns related to noise and visual impact on a studio located on the southern side of their property, visual impact on the main bedroom which is located on the southern side of the house, impacts on the outdoor entertaining area, and negative impacts on bushland and water views. The oral evidence was that the extra metre width was contrary to the Council's code and would impinge on vistas and views; that privacy screens 2 to 3m wide would be acceptable, but 4m was too big; and that the area is very quiet at night and the deck would mean that there could be a lot of people there. 13 Expert planning evidence was given on behalf of the applicants by Mr Eugene Sarich and on behalf of the Council by Mr Bruce Threlfo. Council's submissions 14 The Council contends that the modification application should be refused as it is inconsistent with the standards and objectives of the Code, which applies to limit elevated decks to 3m where privacy is an issue. The Council accepts that the Code is not a development control plan and submits that it is to be given weight under s 79C of the Act as part of the public interest. The council relies on the factors identified in the decision of McClellan J in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472 at [92] relevant to determining the weight to be given to the policy, in particular the length of time that the Code has been in force, the absence of evidence that there has been any departure from the Code, and the compatibility of the code with the provisions of the LEP in particular the aims and objectives. The Council submits there has been no adequate or proper justification provided in these proceedings for departing from the Code. 15 The Council contends that the application should be refused as approval would result in adverse impacts on the amenity of the adjoining residents in terms of privacy, and is unnecessary having regard to size of the approved balconies and the conditions of the subject site. The Council submits that in a low density residential area, there is an expectation that the private open space used by a dwelling house on an adjoining property will remain private, relying in particular on the planning principle in Meriton v Sydney City Council [2004] NSWLEC 313. 16 The Council submits that the applicants have not established that the proposed 4m width is necessary. The evidence is that the greater area would be more comfortable, however, in the context of a significantly elevated deck, which if it is comfortable is likely to be used more often, there needs to be cogent reason to depart from the Council's policy. Applicants' submissions 17 The applicants submit that when regard is had to the objective of part 3.6 of the Code, there needs to be evidence of an impact on the privacy of an adjoining site which is not acceptable. Considering this proposal by reference to relevant standards, separation distances, design and factors relevant to the site, and the likely way in which the deck is to be used, the applicants submit that the privacy impacts are acceptable and the objective is satisfied so that the limitation in point three of part 3.6 does not apply. 18 The applicants submit that on a merits assessment, privacy is not an issue when factors such as design including the privacy screens required by condition 2, separation distances, and screening vegetation are taken into consideration. Consideration 19 Having had the benefit of a view from 24 Gore Street, I agree with the evidence of Mr Sarich and Mr Threlfo that the extension of the decks on the two lower levels does not impact on the privacy of the occupants of No. 24. The issue is whether the extension of the deck on the ground (or street level) to 4m rather than the approved 3m, would. 20 Condition 2 of the development consent requires the erection of a solid privacy screen 1.8m high on the western edge of the decks. The evidence before me is that these screens will be constructed of a material other than timber, and should be painted in a recessive colour. Mr Threlfo agreed that this would minimise the visual impact of the screens. 21 The experts agreed that the barbecue area of No. 24 is visible from the deck on the ground level, and that this area is heavily obscured by vegetation. 22 In considering whether the extended screen on the ground level would enable a person on the deck to overlook the bedroom window at No. 24, I note the applicants' agreement that the screen could be constructed with the return of up to 1m with horizontal slats that would prevent a person deliberately leaning over the balustrade to obtain that view. Mr Threlfo agreed that this would be effective. 23 Having had the benefit of a site view, I agree with the experts that the primary focus of the view from the balcony at No.22 is towards the reserve and the river; and that while No. 24 is visible, the orientation of the view is away from No. 24. 24 Both experts were in agreement that there would not be a great deal of difference in terms of functionality between a deck of 3m and one of 4m. Mr Sarich was of the opinion that it would enhance amenity to have the greater space as there is otherwise a lack of outdoor space at No. 22 because of the steep site. 25 There was agreement that the deck is some 9m away from the studio at No. 24 and some 15m away from the main bedroom. 26 The proposed ground level deck provides open space for the residents of No. 22 off the main living and dining area. Given the constraints of the site, I am satisfied it is likely to be used as the primary private open space area. There was general agreement between the experts that a deck of 4m would not encourage activities that would not otherwise occur if the deck were to be 3m, and that this is likely to be a use generally associated with a residential dwelling house and family. 27 The screen required by condition 2, modified as accepted by the applicants, would prevent both casual and deliberate overlooking of No. 24, in particular of the main bedroom. I am satisfied that this is consistent with the objective behind part 3.6 of the Code, namely that buildings are to be designed and constructed so that the use will not significantly affect the privacy of occupants of the adjoining site. 28 The standard at point three in part 3.6 applies only where privacy is an issue. I agree with the applicants that when considered against the objective of part 3.6, this requires an assessment of actual privacy impacts. In determining whether the use of the balcony will significantly affect the privacy of the occupants of No. 24, I have taken into consideration the planning principles expressed in Meriton, Super Studio v Waverley Council [2004] NSWLEC 91, and Pafburn v North Sydney Council[2005] NSWLEC 444. In particular, the planning principle in Meriton requires consideration of density, separation, use and design when assessing visual privacy impacts. The discussion in Super Studio and Pafburn includes consideration of the necessity or reasonableness of the proposal causing an impact. 29 Having regard to the likely use of the ground level deck, its importance to the amenity of the occupants of No. 22 in the context of the site configuration, the separation distances between the deck and the relevant areas of No. 24, and the existing screening vegetation, I am satisfied that the use of the proposed balcony will not significantly affect the privacy of the residents of No. 24. To that extent it is not inconsistent with the provisions of the Code. 30 I am satisfied that the requirements of s 96(1A) of the Act are met, and that the application to delete condition 3 can be approved, subject to the addition of an appropriately worded condition to amend the design of the screen on the ground floor to provide for a return of 1m with horizontal louvres. 31 The respondent is to provide agreed terms of orders including a condition relating to the amendment of the privacy screen to provide the return by 28 February 2010. On receipt orders will be made in chambers.
Linda Pearson
Commissioner of the Court
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Burrows & Faulkner
Lane Cove Council