Jafari v Waverley Council

Grdinic v Council of the City of Sydney [2006] NSWLEC 512 CASES CITED: Meriton v Sydney City Council [2004] NSWLEC 313 Super Studio v Waverley [2004] NSWLEC 91

APPLICANT Mr A. Jafari, litigant in person

LEGAL REPRESENTATIVES: RESPONDENT Ms C. Morton, solicitor of Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is an appeal against a refusal of an application to modify a development application (DA91/07/A) under s 96 of the Environmental and Planning Assessment Act, 1979. The application was to regularise the placing of pot plants upon a colourbond roof that is located over the ground floor. The location of the subject dwelling is at 6 Gowrie Avenue, Bondi Junction. The parties had agreed in advance to me making a binding decision under s 34 (4) (b) of the Land and Environment Court Act, 1979. The site and proposal 2 I had the benefit of viewing the subject site and the surrounds at the on site hearing on 30th April 2009. The subject house is a double storey semi-detached dwelling of inter-war age. Single storey detached dwellings from a similar period dominate the streetscape, although some of the dwellings have been modified to provide a second storey and balcony structure.

3 The site is located on the northern side of Gowrie Avenue with the Applicant's balcony and colourbond roof having a northerly aspect. The property is bounded at its rear on all three sides by other properties. The private open space at properties number 4 and 8 Gowrie Avenue are not overlooked from the Applicant's balcony, while the property to the rear, 35 Waverley Crescent, experiences some minor visual intrusion from the rear of 6 Gowrie Avenue.

4 The essence of the proposal was for planter boxes to be placed at the edge of colourbond roof (approximately 3 metres above ground level) so as to provide the Applicant with additional privacy when using his balcony, which adjoins the living room of his property. The proposal also included a watering system and wooden platforms upon which the planter boxes were to be placed and gate in the balcony's existing barrier to provide access to the roof and planter boxes.

5 The Applicant had not supplied the Council with a detailed plan of the proposal with his s 96 application. There was plan on the Court file showing the intended layout of the planter boxes. Importantly, the plan did not include details of how the boxes were to be secured, the types of plants to planted or how the use of the roof was to be made safe as per the requirements of the BCA, which would require a rail at the edge of the roof.

6 I was able to view 6 Gowrie Avenue from a range of vantage points including the homes of the adjoining resident objectors to ascertain the impact of the proposal. My understanding of the proposal was benefited by the fact that some of the planter boxes and associated structures requested in the development application were already in place at the subject site. Statutory Controls 7 The relevant controls for the proposal include the Waverley Local Environmental Plan 1996 (LEP); the Waverley Development Control Plan (DCP) (part D1, Dwelling House and Dual Occupancy Development) and the Building Code of Australia (BCA), section 3.9.2.2 (balustrades and why these are required).

8 The Council noted that while the pot plants themselves do not contravene any controls on the DCP or LEP they posed a safety hazard and the use of the balcony for accessing the planter boxes was also a hazard because it did not have rails. To regularise the use of the roof would require the provision of rails around its edge (BCA section 3.9.2.2), but in doing so it would generate a balcony of a size and design that is contrary to objective 5.6.2 of the DCP, which states that external decks should be generally less than 10 m2 with a depth not greater than 1.5 m.

9 The DCP states that roof top terraces are generally not permitted across the Waverley and those that are permitted are less than 15 m2 and only in areas where the predominant character includes such roof top terraces. The roof area of the proposal is ~25 m2. In addition and of further relevance in this matter is that the objective 5.6.2 of the DCP states that the construction of a roof top terrace will not result in unreasonable amenity impacts.

10 Other relevant controls in the DCP include the objectives stated under 5.4 - Streetscape and Visual Impact: (a) To encourage dwelling-house and dual occupancy development of a high-standard, incorporating good building design and detail; and (b) To encourage dwelling-house and dual occupancy development; (c) To be visually sympathetic to other buildings in its vicinity and to the streetscape it belongs to. Evidence of Resident Objectors 11 The residents of the neighbouring properties gave oral evidence at the on site view in addition to written submissions. The owners of 8 Gowrie Avenue were concerned that the planter boxes would create a loss of privacy, during the periods when the plants were being tended. These owners also objected to water spray and dust from the boxes blowing onto their own private open space and into their home via open windows.

12 The owner of 4 Gowrie Avenue objected on three points: the pots do not assist in providing additional privacy to or from her property; the placement of pots on the roof sets an undesirable precedent and the pots are out of character with the area (see DCP, section 5.4).

13 The owner of 25 Waverley Crescent, the property directly to the rear of the subject site, was concerned that planter boxes would mean that his privacy would be affected when the plants were being maintained (including weeding, planting and the like). The private open space at the rear of this property would be overlooked directly during periods when the proposed roof top plants at the most northerly edge were being tended. Overlooking of the private open space during maintenance of the proposed roof top plant pots would also affect 4 and 8 Gowrie Avenue, to which the residents objected during the on site hearing.

14 Other objections from the owner of 25 Waverley Crescent included that the s 96 application was inconsistent with the original development application (DA91/07/A) and that no safety rails were provided on the roof to prevent those tending the plants from falling off. He was also concerned that the colourbond roof would be used for informal dining, further adding to intrusions of his privacy in his back garden. The resident objectors also expressed concerns regarding the safe securing of the plant pots to the roof, particularly during high wind events. Findings and proposed consent orders 15 After listening to the evidence of the residents and to Mr Jafari's reasons for the wanting the planter boxes, it became evident between the parties that a compromise solution could be reached. The current application lacked sufficient information and detail for the Council to understand what was intended precisely and if it would address issues of safety, privacy and compliance. However, in acknowledging the Applicant's desire for privacy and some greenness (vegetation) on his balcony the Council devised a compromise solution to which the Applicant agreed to at the on site hearing.

16 Consequently, at the close of the on site hearing the parties sought consent orders from the court.

17 At the on site hearing, Mr Jafari agreed to remove the planter boxes and associated structures within 90 days of any consent orders being made. In their place it was agreed that the Applicant could have a single planter box structure including the supporting joist, 460 mm in height and 570 mm in width. The box would be constructed so as to start and stop at the inside edges of the walls of the upstairs balcony. It was agreed that the planter box would be constructed so that it matched the exterior wall of the upstairs outdoors walls in terms of colour and texture. This outcome would have provided symmetry and uniformity with the current building as per the strategy of the DCP at 5.4.1a, which states: Alterations and additions are sympathetic to the architectural style and character of existing dwellings in the vicinity 18 On reviewing this proposal and considering the concerns of the neighbours, I am of the opinion that the proposed structure agreed as part of the consent orders would have afforded appropriate privacy and greenness for Mr Jafari while also protecting the privacy interests of the neighbours. The proposed design and positioning of the new planter box will also provide improved aesthetics for the roof top compared to the existing and proposed structures. It will also reduce dust and water problems as identified by the neighbour at 8 Gowrie Avenue.

19 The Applicant also agreed to remove the gate structure that provided access to the colourbond roof and replace the latch with a bracket so that the gate will no longer be functional. The effect of this would be to reduce the opportunity, temptation and ease of access to use the colour bond roof as an additional seating area. It would also alleviate the concerns of the resident objectors who did not want the Applicant to have access to the roof regularised because of the potential impacts on their private open space. The resident objectors were also concerned that the roof would be used for informal dining, which would exacerbate privacy issues above and beyond those created when access was required for maintenance of the proposed pot plants.

20 The applicant also agreed as part of the conditions of consent to repair the paintwork to the side of his building that had become stained from water draining from the planter boxes that were already placed on the colourbond roof.

21 The resident objectors listened to the amended proposal and agreed that it would ameliorate their concerns, while maintaining privacy for both themselves and Mr Jafari.

22 I note that Mr Jafari at the on site hearing agreed to pay the Council's costs as per the s 97B rule of the Environmental Planning and Assessment Act, 1979, given that the Applicant had leave to file an amended development application.

23 I also note that the Council's s 121B order to remove the pots was proposed to be withdrawn on the basis that the agreed consent orders were implemented.

24 On completion of the on site hearing, directions were issued to the parties on 30th April 2009. These reflected the nature of the consent orders, a timetable for filing and serving amended plans, conditions of consent and signed consent orders. On May 1st 2009, the Court heard from Mr Jafari via a telephone mention that he no longer wished to accept the conditions of consent to which he had agreed previously. Mr Jafari contended that the dimensions of the planter box were insufficient for his purposes and could not be constructed as the per the directions. He requested that the planter box height be altered to 600 mm. Miss Morton for the Council did not agree to these changes.

25 The outcome of the telephone mention was that Mr Jafari was provided with the direction to consider and inform the court by Monday 4th May 2009 whether or not he wished to pursue consent orders as agreed at the hearing and provided in the directions of 30th April 2009.

26 On 4th May 2009 the court received a faxed letter and some further, indicative diagrams of another amendment to the previously agreed consent orders. In particular, this included two planter boxes at either ends of the balcony with heights of 710 mm.

27 In a further telephone mention with the parties on 5th May 2009, the Council objected to this submission, which amounted to further changes, given that the matter had completed on site and consent orders had been agreed at the time. I also note that at the on site hearing the Council had rejected the Applicant's request to the use of these two large planter boxes that were already on the roof top. Following the Council's objection, the Applicant agreed to not include these structures as part of the consent orders. I agree with and accept the Council's objections to these and any further proposed amendments.

28 Given that the Applicant has subsequently revoked the agreed consent orders I am obliged to provide further reasons for the decision that follows.

29 As noted above, the Applicant in his s 96 modification application did not provide the Council nor the court with sufficient detail as to the final design of the planter boxes. This included how the boxes were to be secured to the roof, how the watering system was to operated so as to make it less visible and how dust and water spray was to be stopped from landing on neighbouring properties. Further, there were no details regarding the safe use of the rooftop nor what plants were proposed to be grown in the pots. 30 During the on site inspection I was able to view the aesthetics of the proposal from various vantage points, including the properties of the resident objectors. The collection of pot plants and the current unkempt state of extant plants detracted from the aesthetics of 6 Gowrie Avenue as viewed from the adjoining properties. In addition, the plastic piping of the water system was not affixed in any systematic way, which exacerbated the untidy appearance of the structures. It is worth noting at this juncture that the subject site is within the urban conservation area known as "Woodstock" although the site is not listed as a heritage item under the Waverley LEP. Nevertheless, the proposed terrace garden would have been a unique structure in the immediate locality, which is not in sympathy with the area and architectural design of dwellings as per the strategy 5.4.1a of DCP controls.

31 The decision of Moore C in Grdinic v Council of the City of Sydney [2006] NSWLEC 512 provides a suitable reference for considering inappropriate designs and their impact on the street scape. Moore C describes the effect that a proposed roller shutter door would have on visual amenity at para [20]: Put simply, the roller shutter, when observed in the street scape, is bog ugly. It detracts. It is not merely neutral in my view, in the streetscape, it detracts from it. 32 I am of the view that the proposed s 96 modification application for the planter boxes would have a similar detracting effect on the views of the neighbouring residents. The rejected consent orders would not have had such an impact.

33 In regards to the Applicant's contention that he needed maximum or near 100 % privacy from his upstairs balcony, I brought to his attention in the telephone mention on 3rd May 2009 the following aspects of Roseth SC's decision and planning principles in Meriton v Sydney City Council [2004] NSWLEC 313. In this decision, the then Senior Commissioner made the following salient remarks at para [46]: Generalised numerical guidelines such as above, need to be applied with a great deal of judgment, taking into consideration density, separation, use and design. The following principles may assist: * The ease with which privacy can be protected is inversely proportional to the density of development. At low-densities there is a reasonable expectation that a dwelling and some of its private open space will remain private. At high-densities it is more difficult to protect privacy. * Privacy can be achieved by separation. The required distance depends upon density and whether windows are at the same level and directly facing each other. Privacy is hardest to achieve in developments that face each other at the same level. Even in high-density development it is unacceptable to have windows at the same level close to each other. Conversely, in a low-density area, the objective should be to achieve separation between windows that exceed the numerical standards above. (Objectives are, of curse, not always achievable.) * The use of a space determines the importance of its privacy. Within a dwelling, the privacy of living areas, including kitchens, is more important than that of bedrooms. Conversely, overlooking from a living area is more objectionable than overlooking from a bedroom where people tend to spend less waking time. * Overlooking of neighbours that arises out of poor design is not acceptable. A poor design is demonstrated where an alternative design, that provides the same amenity to the applicant at no additional cost, has a reduced impact on privacy. * Where the whole or most of a private open space cannot be protected from overlooking, the part adjoining the living area of a dwelling should be given the highest level of protection. * Apart from adequate separation, the most effective way to protect privacy is by the skewed arrangement of windows and the use of devices such as fixed louvres, high and/or deep sills and planter boxes. The use of obscure glass and privacy screens, while sometimes being the only solution, is less desirable. * Landscaping should not be relied on as the sole protection against overlooking. While existing dense vegetation within a development is valuable, planting proposed in a landscaping plan should be given little weight. * In areas undergoing change, the impact on what is likely to be built on adjoining sites, as well as the existing development, should be considered. 34 In addition, the Council also relied on the planning principle for using landscaping for the protection of privacy in as set out by Roseth SC in Super Studio v Waverley [2004] NSWLEC 91. The then Senior Commissioner said at para [6]: 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. 35 It is clear from these decisions and also from the submissions of the Council at the on-site hearing that privacy in a built up area is more difficult to achieve and consequently expectations need to be lowered in this regard - i.e. the provision and protection of privacy is inversely proportional to the density of development. The subject site is in a highly developed area with properties in close proximity in all directions.

36 It was also clear from the on site inspection that intrusions of privacy from the upstairs balcony for both Mr Jafari and the neighbours would be largely 'in-passing' or fleeting. There were no passive areas of primary private open space at neighbouring properties that resulted in constant or direct overlooking of either Mr Jafari's balcony or vice versa. However, this would not be the case if the use of the balcony for pot plants as requested in the s 96 modification application was regulated and access to the roof was regularised.

Conclusion 37 Consequently, on the basis of the proposal before the Court, I find that there is insufficient information and plans with which to consent to its approval. There is insufficient information regarding how often the roof will be accessed, how it will be made safe as per BCA guidelines (item 3.9.2.2), how the boxes will be secured to prevent them from being blown off in high winds or how the movement of dust and water onto and into neighbouring properties will be mitigated. Further, even if there was sufficient information regarding the aforementioned items, I am of the mind that the planter boxes are unnecessary to achieve the objectives of Mr Jafari for privacy and greenness. They would result in a poor aesthetic outcome and would not only detract from the neighbours views of the property, they would appear unattractive from Mr Jafari's residence. I am of the opinion that Mr Jafari's desire for privacy and greenness could have been achieved more than adequately via the originally agreed consent orders. It is also clear that the proposal, if consented to, would be in conflict with several objectives and strategies with the DCP. Consequently, the application for the s 96 modification application is refused.

Orders 38 Therefore, the orders of the Court will be: 1. The appeal 10141 of 2009 in respect 6 Gowrie Avenue is refused. 2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to amend development consent DA91/07A to permit the placement of a planter boxes and pot plants on the upstairs private rear balcony at 6 Gowrie Avenue, Bondi Junction, is determined by refusal. 3. The exhibits are to be returned.

      Dr Mark Patrick Taylor
      Commissioner of the Court

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