Gray Property Investment Pty Ltd v Randwick City Council

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444

APPLICANT Mr A Whealy, solicitor SOLICITORS Gadens LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10446 of 2009 Gray Property Investment Pty Ltd v Randwick City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against conditions imposed by Randwick City Council (the council) for the modification of Development Consent No DA/1052/2007 that provided approval for alterations and modifications to any existing two-storey residential flat building at 78 Dudley Street, Coogee (the site).

2 The alterations and modifications provide for the construction of two steel framed balconies at the street frontage elevation and the replacement of four existing windows, over the two levels. Bi-fold doors to provide access to the new upper level balconies and an existing terrace above an existing garage at the lower level. The eastern upper level balcony is 2.0 m deep x 3.655 m long and the western upper level balcony is 1.5 m deep x 2.5 m long.

3 The principle issue over the conditions relates to potential visual and aural privacy impacts from the two upper level balconies to the open space area of the adjoining property at 76 Dudley Street. This property has an open space area including a table and chairs and bar-b-que located on a deck above the existing garage and in the setback area between the street frontage and the dwelling.

4 The upstairs unit at 78 Dudley Street was inspected on the site view, as was the open space area of the adjoining property at 76 Dudley Street and the existing dwellings in and around Dudley Street. The parties agreed to conduct the hearing on site.

5 The conditions in Development Consent No DA/1052/2007 in dispute are: 3. The proposed first floor balcony on the western side of the subject building, adjacent to No 76 Dudley Street is to have a maximum depth of 450 mm and be provided with obscure glazed balustrades to maintain the privacy and amenity of the adjoining dwelling. Details of compliance to be shown on Construction Certificate Plans.

4. The proposed first floor balcony on the eastern side of the subject building is to be provided with obscure glazed balustrades to maintain the privacy and amenity of the adjoining properties. Details of compliance to be shown on Construction Certificate Plans. 6 The applicant proposed the following alternate condition 3: 3. A louvered privacy screen to a height of 1.8 m is to be provided to the western end of the proposed first floor balcony (located on the western side of the subject building). The louvers are to be fixed at an angle to prevent overlooking to the western side of the subject site (no 76 Dudley St); this is to maintain the privacy and amenity of the adjoining property. Details of compliance are to be shown on the Construction Certificate Plans. 7 The applicant provided the following optional condition: 3A. The louvered privacy screen as detailed in Condition 3 is to return along the northern end of the proposed first floor balcony (located on the western side of the subject building) 0.6 m towards the east. The louvers are to be fixed at an angle to prevent overlooking to the western side of the subject site (no 76 Dudley St); this is to maintain the privacy and amenity of the adjoining property. Details of compliance are to be shown on the Construction Certificate Plans. 8 The applicant proposes that condition 4 be deleted however the following condition could replace condition 4, if not deleted: 4. A louvered privacy screen to a height of 1.8 m is to be provided to the western end of the proposed first floor balcony (located on the eastern side of the subject building). The louvers are to be fixed at an angle to prevent overlooking to the western side of the subject site (no 76 Dudley St); this is to maintain the privacy and amenity of the adjoining property. Details of compliance are to be shown on the Construction Certificate Plans. The planning framework 9 The site is zoned Residential 2C under Randwick Local Environmental Plan 1998 (LEP 1998) and the proposed activity is permissible with council consent. Clause 9 provides that consent may be granted only after consideration has been given to the extent to which the proposed development is consistent with the general aims of LEP 1998 and the specific objectives of the zone.

10 The relevant zone objective is: ( c) to enable residential development in a variety of medium density housing forms where such development does not compromise the amenity of surrounding residential areas, and 11 Randwick Development Control Plan -Multi-unit housing (the DCP) applies. Clause 3.3 provides requirements for building setbacks, cl 4.1 .4 provides requirements for private open space, cl 4.2 provides requirements for aural and visual privacy. The evidence 12 Mr Gerard Turrisi provided town planning evidence for the council and Ms Kristy Lee provided town planning evidence for the applicant. Mr Anthony Betros, a town planner provided evidence for the owners of the adjoining property at 76 Dudley Street.

13 Mr Turrisi and Ms Lee generally agree on the eastern balcony, in terms of privacy impacts. Both agree there is no purpose in opaque glazing suggested in council's condition 3. The proposal by Mr Turrisi, notwithstanding the non-compliance with the setback requirements in the DCP, that the western side of the balcony be treated with opaque glazing and with a timber or similar screening above, to prevent overlooking to 76 Dudley Street, is acceptable to Ms Lee.

14 Mr Turrisi and Ms Lee agree on the need for a privacy screen on the western end of the western balcony, however disagree on the reduced size of the balcony. Mr Turrisi states that because 76 Dudley Street has its primary private open space to the front of the property, it will be overlooked from the western balcony. This overlooking impact will be exacerbated by the elevated position of the balcony. Mr Turrisi supports the 450 mm depth of the balcony as it appropriately diminishes the usability of this area and does not allow for the positioning of a table and chairs. Further, Mr Turrisi states that the provision of the western balcony of the size proposed, is not necessary with the approval of the larger eastern balcony.

15 Mr Turrisi relies on the zone objective (c) and the non-compliance with the minimum 3.5 m side setback and average 5 m side setback in the DCP to support his position. Mr Betros supports the conclusions of Mr Turrisi, on behalf of the owners of the adjoining property.

16 Ms Lee, on the other hand, supports the size of the western balcony. She states that there is no balcony off the existing living area of the unit and the proposed balconies are the only available outdoor space for this unit. The western balcony is located off a bedroom and is not a principal living space and as such will provide only a passive recreational space. The size as proposed, will allow only a small table and two chairs and could not accommodate high levels of usage. The limitations imposed by the size of the balcony and the conequent number of people likely to use this area, also suggests that any acoustic impacts likely to be limited.

Findings 17 Mr Turrisi and Ms Lee addressed the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444, that deals with the assessment of impacts on neighbouring properties. The planning principle asks the following questions: · How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? How necessary and/or reasonable is the proposal causing the impact? How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? 18 With the benefit of the site view, an understanding of the relationship between between the upper western balcony and the private open space area of 76 Dudley Street and considering the questions asked in Pafburn, I am satisfied that it is reasonable for the western balcony to be retained although I have formed the view that the appropriate width falls between that suggested by Mr Turrisi (450 mm) and Ms Lee (1.5 m).

19 I agree with Ms Lee that the potential overlooking from this balcony is limited because of its location off a bedroom, its size and the availability of the larger eastern balcony. Adopting the agreed position of Mr Turrisi and Ms Lee that a screen should be located on the western end of this balcony, I see no reason why the occupants should not have the opportunity to enjoy the balcony area with the use of a table and chairs. In my view, this can be adequately achieved through a width of 1 m.

20 In coming to this conclusion, I have given consideration to the requirements in cl 4.2 of the DCP. This clause does not suggest that total privacy should be provided to the occupants of the adjoining property and given the relatively dense form of development in the area, it is unlikely and unreasonable. Clause 4.2 .4 (P 1) advocates the use of screens and other devices to prevent overlooking and improved privacy. In my view, the proposed screening and size of the balcony prevent overlooking and provide privacy to an acceptable level.

21 The strict compliance with the side setback requirements in cl 3.3 of the DCP, is also unreasonable in my view, given the size and treatment of the western balcony and the fact that the existing building has a side setback off less than 1 m to 76 Dudley St and the property has an overall width of only around 10 m.

22 Having considered the questions raised in Pafburn, the relevant zone objective and the relevant parts of the DCP, I agree with Mr Turrisi and Ms Lee on the need for a privacy screen on the western end of the eastern balcony. The screen should be a maximum height of 1.6 m and constructed of louvres to restrict viewing into the adjoining property. A height of 1.6 m is appropriate given the relative levels between the balcony and the adjoining property. I also agree that there is no benefit in having a balustrade of opaque material.

23 For the western balcony, the maximum width should be 1 m and a privacy screen constructed on the western end of the balcony to a maximum height of 1.6 m and of similar construction to the screen on the eastern balcony. The return of the privacy screen along the front part of the balcony to length of 0.6 m is not appropriate in my view, given the minimal benefit in overlooking compared to the significant disbenefit on the streetscape. Orders 24 The Orders of the Court are: 1. The appeal is upheld, in part. 2. Development Consent No DA/1052/2007 for alterations and modifications to any existing two-storey residential flat building at 78 Dudley Street, Coogee is modified in the following manner: Condition 3 is deleted and replaced with the following condition: 3. The proposed first floor balcony on the western side of the subject building, adjacent to No 76 Dudley St is to have a maximum depth of 1.0 m and be provided with a louvered privacy screen to a height of 1.6 m to the western end of the proposed first floor balcony (located on the western side of the subject building). The louvers are to be fixed at an angle to prevent overlooking to the western side of the subject site (No 76 Dudley St); this is to maintain the privacy and amenity of the adjoining property. Details of compliance to be shown on the Construction Certificate Plans.

Condition 4 is deleted and replaced with the following condition: 4. The proposed first floor balcony on the eastern side of the subject building is to have a louvered privacy screen to a height of 1.6 the to the western end of the proposed first floor balcony (located on the eastern side of the subject building). The louvers are to be fixed at an angle to prevent overlooking to the western side of the subject site (No 76 Dudley St); this is to maintain the privacy and amenity of the adjoining property. Details of compliance to be shown on the Construction Certificate Plans. 3. The exhibits are returned.

      G T Brown
      Commissioner of the Court

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