Marika King v Woollahra Council

APPLICANT: Mr M E McMahon, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Mr M E McMahon & Associates RESPONDENT: Mr P R Rigg, solicitor SOLICITORS :Deacons

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Woollahra Council (the council) to refuse a development application to enclose a balcony at Lot 14 in SP 52896, 'The Mariner', being Lot No 14 at Nos 809 - 823 New South Head Road, Rose Bay. 2 An on-site hearing was held on 12 October 2006 and I inspected the balcony that is to be enclosed in company with the parties. 3 I am satisfied that acoustic attenuation might be achieved by double or secondary glazing of the windows facing onto the balcony rather than enclosing the balcony. I am satisfied that the public interest is best served by maintaining the architectural integrity of the building and the streetscape by leaving the balcony unenclosed. 'The Mariner' 4 'The Mariner' is a four-storey mixed-use development with retail on the ground floor and residential units above situated on the corner of Dover and New South Head Roads in the commercial area of Rose Bay. There is already one enclosed balcony at Unit No 7, that was approved by the Court and the applicant seeks to enclose another, at Unit 14. 5 'The Mariner' is within the 'Core Area' of the Rose Bay Commercial Centre that is characterised by a mix of residential, commercial and retail buildings of varying height and design. Relevant planning controls Woollahra Local Environmental Plan 1995, (WLEP) 6 Under the provisions of the WLEP the land is zoned General Business 3(a) and the proposal is permissible with consent. 7 Clauses of the WLEP of relevance include cll 2(2)(k)(i-iii) - urban design; 11 - floor space ratio; 19 - Harbour Foreshore Scenic Protection Area; and 27 - Development in the vicinity of heritage items. State Environmental Planning Policy No 65 - Design of Residential Flat Buildings, (SEPP65) 8 Under SEPP65 a 'residential flat building' is defined as being a building: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and (b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops), but does not include a Class 1a building or a Class 1b building under the Building Code of Australia. 9 The existing building is a residential flat building under SEPP65, however, SEPP65 states under Reg 4: Application of Policy (1) This Policy applies to development being: (a) the erection of a new residential flat building, and (b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building, and (c) the conversion of an existing building to a residential flat building. 10 As the proposed development is for other than the substantial redevelopment or the substantial refurbishment of an existing apartment building, or residential flat building as defined under SEPP65, this instrument does not apply and there is no need for a separate assessment. The works could only be considered minor in nature. 11 However, I consider that the architectural integrity of the design of 'The Mariner' is a matter for consideration under SEPP65. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSH) 12 This instrument is not directly relevant to a consideration of the enclosure of the balcony to Unit 14. Rose Bay Centre Development Control Plan, (RBCDCP) 13 Under the provisions of the RBCDCP Part 3.2.1(ii) seeks to promote coherency of building scale and Part 6.3.3 seeks to promote building articulation. Other parts of the RBCDCP of relevance are Part 6.3.5 dealing with architectural resolution, Part 6.4.2 above ground open space; Part 6.5.2 natural ventilation; and Part 6.5.3 glazing. The proposal and its history 14 Development application No 595/2005/1 was lodged with the respondent council on 27 September 2005 to enclose the balcony to Unit 14 in 'The Mariner'. Gleco Enterprises Pty Limited, which is a company that specialises in glazing structures, would construct the enclosure. 15 The enclosure would comprise a lower fixed glass section, with upper section of four glass panels, (two fixed and two sliding), [Note: Exhibit 1, Fol 19 Gleco drawings] . Powder-coated aluminium framed clear laminated glazing would be used. The owners' corporation had been ordered to grant consent to the applicant's proposal to enclose her balcony by Mr J Farey, Strata Scheme Adjudicator, Consumer Trader and Tenancy Tribunal 25 May 2005, [Note: Exhibit 1 Fol 28]. The applicant had originally proposed frameless glazing and at the hearing the application was amended to include powder coated framed glazing as outlined in the application to the tribunal, [Note: Exhibit 1 Fol 32]. Notification 16 The application was notified as 'local development' to nearby owners and occupants between 5 and 20 October 2005 and the council received four submissions from residents within 'The Mariner' and a petition of six signatories. 17 The objections raised: · inappropriate change to the building façade; · against the wishes of the owners of other units; · would open the way for others to change the façade of the building; · decrease the value of the property through inappropriate changes to the façade; · detriment to the streetscape; · would not comply with the requirements for open space; and · possibly unsafe structure due to climatic conditions, impacting on insurance premiums.

18 The council's team leader for urban design commented on 4 October 2005, [Note: Exhibit 7, p 2] The existing building at Nos 809-823 New South Head Road complies with the controls in Rose Bay Centre DCP. It has a well-articulated façade, which can largely be attributed to the interplay of the recessed balconies with the habitable floorspace built to the street alignment. The proposed enclosure of the balcony at Unit 14 would make the building appear more solid and would increase the bulk and scale of the building. Furthermore, piecemeal development such as the proposed enclosure would erode the design integrity of the building and destroy its current cohesive, well-resolved street presentation. The proposed installation of the glass balcony enclosure is not supported. The council's decision 19 By notice dated around 25 October 2005 the council under delegated authority refused the application for the following reason, [Note: Exhibit 1, Fol 95]: The proposal will result in unacceptable change to the street façade of the existing building, inappropriate alteration to the articulation and coherence of the building, render the appearance of the building to be more solid in form to the street alignment and erode the integrity of the building's design and street presentation. Further, the proposal is inconsistent with the design objectives stipulated in the Rose Bay Centre Development Control Plan. Re-notification 20 The development application was renotified between 10 and 24 May 2006 as local development for reconsideration under s 82A of the Environmental Planning and Assessment Act 1979. Two submissions were received in support of the proposal from both owners within 'The Mariner'. Five submissions were received by the council objecting to the proposal from and on behalf of the owners of units within The Mariner and from the Rose Bay Residents Association. 21 The supporters considered that the quality of life would be improved by the erection of the enclosure and those who made submissions against the application stated the proposal would be: · inconsistent with and have an adverse appearance in the streetscape; and · noise would likely be generated by the sliding doors. Section 82A Review 22 The Section 82A review resulted in the council considering the proposal would cause an: · unacceptable change to the street façade of the existing building; · render the appearance of the building to be more solid in form to the street alignment; · erode the integrity of the building design and street presentation; and · inconsistent with the design objectives stipulated in the Rose Bay Centre DCP. The hearing 23 The appeal was filed in an amended form on 26 July 2006. 24 At the hearing the court heard evidence on behalf of the respondent council from: · Mrs I A Stogdale owner/occupier of Unit 20, SP 52896, 'The Mariner', and Secretary of Owners Corporation; · Ms M Lee, Registered proprietor for 10 years of Unit 19, SP 52896; · Ms E M Hanlon, owner/occupier since 1997 of Unit 7, SP 52896; and · Ms M Clark, Vice President Rose Bay Residents Association. 25 Mrs M King owner of No 14, SP 52896 and applicant gave evidence. 26 Mr M McCubbery, Assessment Officer of Woollahra Council, and Mr A Betros, town planner for the applicant had conferred and had prepared the joint town planning statement in Exhibit 4. These witnesses on essential matters for determination by the Court had reached no agreement. 27 Mr M McCubbery, prepared the statement of basic facts dated 30 August 2006. The issues 28 On 1 September 2006 the council filed a statement of issues:

1. The proposed development is contrary to the objectives of urban design as identified in Woollahra Local Environmental Plan 1995 clause 2(2)(k)(i), (ii) and (iii).
2. The proposed development will erode the integrity of the existing building design contrary to the objectives of the Rose Bay Centre Development Control Plan ("Rose Bay Centre DCP") objectives Part 3.2.1(iii).
3. The proposed development will have a detrimental effect in terms of providing building articulation and private open space elements as required by Part 6.3.3 of the Rose Bay Centre DCP.
4. The proposed development will not achieve compliance with Part 6.5.3 of the Rose Bay Centre DCP in terms of glazing and the need to avoid the negative impacts of reflectivity on adjoining public and private properties and the need to avoid the use of unprotected glazing.
5. The proposed development will not comply with Part 6.4.2 of the Rose Bay Centre DCP in relation to the provision of open space for the dwelling.
6. The proposed development will have a negative impact in terms of an inappropriate appearance to the streetscape.
7. Matters raised in letters of objection received by Council in response to the application.

29 The following emerged as the salient issues: · urban design; · integrity of the existing building design; · building articulation and private open space; and · negative streetscape impact. The evidence and findings Noise attenuation and pollution reduction 30 Mrs King stated that her aim in enclosing the balcony of Unit No 7 was to: · control the noise internally so that one can sleep; · make better use of the balcony and the apartment; and · reduce dust and pollution. 31 She explained that most of the units within 'The Mariner' do not face New South Head Road so that other occupants of the building do not suffer from traffic noise as she does. She said that she had moved from the bedroom that faces directly onto New South Head Road to an internal bedroom within her unit. She explained that this bedroom despite facing onto the balcony was slightly further removed from the source of the noise in the street and had 8mm thick glass in contrast to the 6mm thick glass for the windows of the other two rooms that face onto the balcony of her unit. She said that the glass and tiles lining the balcony walls and floor cause the traffic noise to ricochet and to be amplified. 32 She explained that she had provided a secondary level of glazing to the windows of the living room and main bedroom facing New South Head Road. The building is air-conditioned and so none of the windows facing onto the road or onto the balcony is relied upon for ventilation. 33 She explained that she had not provided secondary glazing for the rooms facing onto the balcony, as that would require her to open two doors in order to access the balcony. 34 Mrs King suggested that the majority of unit owners are not that concerned about her proposal to enclose the balcony and only five out of 33 have raised objection. She said that "I have a right to live here and not that is not possible unless the balcony is enclosed". She said that she was not so concerned about the aesthetics of the proposal as it is 'residential' first and foremost and cannot be compared with the aesthetics of the Rose Bay Hotel that has no open balconies facing onto New South Head Road. 35 Mr Rigg, for the respondent, submitted that by providing double or secondary glazing to the windows and doors that face onto the balcony the traffic noise experienced by Mrs King could be attenuated and there is no need to enclose the balcony to achieve that end. He submitted that sound absorbing surface treatment of the ceiling and floor of the balcony would assist in reducing noise received inside the unit. 36 Mr McMahon for the applicant, submitted that 'glazed balcony enclosures' are permissible, for building articulation, within the area, [Note: Exhibit 3, p 51 RBCDCP]. 37 Despite the submission of Mr McMahon there are other parts of the same instrument that discourage use of 'unprotected glazing' [Note: Exhibit 3, p 72 RBCDCP]. 38 I accept the submissions of Mr Rigg in regard to the attenuation of noise to the rooms facing onto the balcony. In order to maintain the present form of 'The Mariner' and the inset balconies on the New South Head Road façade, other means of achieving that end should be explored. The fact that the building is air-conditioned permits the openings to be acoustically treated either by double-glazing or secondary glazing. Urban design 39 The council maintained that the proposed development would be contrary to the urban design objectives under the WLEP and in particular cl 2(2)(k)(i), (ii) and (iii). 40 These objectives of the WLEP seek to promote the creation and upkeep of an attractive and comfortable public environment; retain and enhance the existing elements of the physical environment of the area that in the opinion of the council contribute to an attractive public environment; require that design and siting of new development enhance the attributes of the site and improve the quality of the public environment; and ensure that consideration is given to providing adequate levels of useability and enjoyment of public facilities. 41 These objectives of the WLEP are to maintain an attractive public environment and I am satisfied that this end would not be achieved if the balcony to Unit 14 were enclosed in the manner proposed with framed powder coated aluminium glazing or other glazed enclosure. Thus I would refuse the application for this reason. Integrity of the existing building design 42 I accept the council's case that the proposed development would erode the integrity of the existing building design, contrary to the objectives of the RBCDCP objectives Part 3.2.1(iii). The balcony openings in the façade are an important aspect of the design of the building as a whole. The enclosure of the balcony to Unit 14 would erode this effect. Building articulation and private open space 43 The council stressed that the proposal would have a detrimental effect on the articulation of the New South Head Road façade of 'The Mariner' and would remove the only private open space for Unit No 14 in that building. In this regard the council referred the Court to Part 6.3.3 of the RBCDCP. 44 The council also maintained that the proposed development would not comply with Part 6.4.2 of the RBCDCP in that the private open space for Unit 14 would be removed. 45 I accept the evidence of Mr M McCubbery, Assessment Officer of Woollahra Council, who contrary to Mr A Betros, town planner for the applicant, objected to the proposal on both the ground of the detrimental effect on the articulation of the New South Head Road façade of 'The Mariner' and removal the only private open space for Unit No 14 in that building. I would refuse the application for these reasons. 46 The council was also of the opinion that the proposal would not comply with Part 6.5.3 of the RBCDCP that seeks to limit the negative reflection of the glazing on adjoining public and private properties. To this end it seeks to avoid the use of glazing unprotected from direct sunlight. Mr Betros, for the applicant, pointed out that the proposed glazing would be setback around 300mm from the front façade of the building and thus when the sun was falling on that enclosure a shadow line would be provided on the glass enclosure. 47 I am not persuaded that such a shadow line would be sufficient to maintain the appearance of the existing balconies on the façade. As well the balcony opening of Unit 14 would be spilt into four [or three depending on the design] by the proposed mullions. This is not a good design solution in my opinion. Negative streetscape impact 48 I accept the council's case that the proposed development would have an inappropriate negative impact on the streetscape. Other matters 49 I distinguish the present application from that application considered by Hoffman C in Edwina Mary Hanlon v Woollahra Municipal Council, Appeal No 10529 of 2000, 20 November 2000. That appeal related to the enclosure of the balcony to Unit 7 within the same building. That balcony was about 2m above the footpath level on the first floor, one floor down and removed from the present application and in the northeastern corner of 'The Mariner'. As was submitted by Mr Rigg, the relationship of that balcony to the footpath gave rise to security concerns that made that application unique. At para 14 of his judgment the Commissioner stated: · the balcony being so close to the footpath level had given rise to vandalism in the form of persons sitting in the recess for the car park ventilation grille immediately below the balcony and consuming food and drink, particularly at night. And, after having done so, throwing the leftovers up onto the balcony of the applicant's apartment; · in addition the applicant had experienced a person attempting to climb up over the balcony at night and this gave rise to some concerns over security. 50 Concerns for security did not arise in the present case and thus I consider the present application is distinguished from that earlier application that was granted consent by the Commissioner. 51 Also, in that previous application the glazing was frameless whereas in this application the glazing would be framed in powder coated aluminium. This gives rise to different aesthetic considerations. 52 Mr McMahon, did not seek to raise the issue of precedent or rely on this Court-granted consent in the present appeal. He was satisfied that there would be only one other balcony on the New South Head façade, being the balcony to Unit 20 directly above the balcony to Unit 14, had bedrooms similarly exposed to traffic noise. 53 The submissions of local residents raised in letters of objection received by the council in response to the application have been taken into account in this decision. 54 As the floor space ratio, (FSR) of the approved development was less than the allowable FSR, the increase in the floor space ratio of the complex as a result of infilling the balcony would not cause the allowable floor space ratio to be exceeded. At Fol 138 of Exhibit 1 the approximate FSR is stated as 1.958:1 with a gross floor area of some 4,808m2 and as proposed the FSR would be 1.961:1 and less than the allowable FSR of 2:1 or some 4908m2. 55 Personal hardship of the applicant in this case has not weighed heavily in the Court's determination of this matter. 56 For the above reasons, the appeal is dismissed. Orders 57 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 595/2005/1 lodged with the respondent council on 27 September 2005 to enclose the balcony to Unit 14 at Lot 14 in SP 52896, 'The Mariner' being Lot No 14 at Nos 809 - 823 New South Head Road, Rose Bay, is refused consent.

3. The exhibits except for Exhibits A, 5, 6 and 7 are returned.

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