O'Rourke v Waverley Council

Planning controls 11The site is zoned 2(c1) Residential - Medium and High Density under the Waverley Local Environmental Plan 1996 (the LEP) and the proposed development is permissible with consent. The objectives of the 2(c1) zone include (b) to maintain and improve the amenity of the locality. 12The Waverley Development Control Plan 2010 (the DCP) applies. Part D2 Multi-Unit Housing includes building design controls at Part 5. Part 5.6 provides: 5.6 Acoustic Privacy 5.6.1 Objective (a) Ensure a high level of amenity for residents, by protecting the acoustic privacy of apartments and their private open spaces. 5.6.2 Strategies (a) Plan the site to maximise the potential for acoustic privacy by providing adequate building separation within the development and between neighbouring buildings. (b) Arrange apartments within a development to minimise noise transmission between apartments. (c) Design the internal apartment layout to separate noisy spaces from quiet spaces within apartments. 5.6.3 Controls (a) To reduce the transmission of noise internally, sound insulation requirements between separating floors, ceilings and walls of adjoining dwellings should exceed the minimum standards set out in the Building Code of Australia. (b) Minimise noise transmission between apartments by:

• locating noisy and quieter areas next to other noisy or quiet areas, eg, Living rooms adjacent to living rooms, and bedrooms adjacent to bedrooms.
• using storage or circulation zones within an apartment to buffer noise from adjacent apartments, mechanical services or corridors and lobby areas and minimising the amount of party (shared) walls with other apartments. (c) Minimise noise transmission within apartments by grouping like uses together, e.g., bedrooms with bedrooms, services areas such as kitchen, bathroom and laundry together.

Evidence 13The evidence included a site view. Evidence was heard on site from the occupants of Units 8, 5, 4, 12, and 2. Unit 8 adjoins Unit 7 on the rear, northern side of the building. Unit 5 is on the same level as Unit 7, on the Campbell Parade side of the building. Unit 4 is on the level below Unit 7, underneath Unit 8. Unit 12 is on the level above Unit 7, above Unit 8. 14The evidence of the neighbouring residents related to concerns about the impacts of the reconfiguration of Unit 7 over the past 18 months. Those impacts related to rubbish, parking, disturbance by occupants of Unit 7 buzzing to be let in to the building, change in character of the building with large numbers of short term tenants, and noise. The noise impacts included the noise of people walking on the timber floor in the hallway, noise of furniture being moved, and noise of people using the sunroom off the living area with windows open, with loud voices, music, and smoking late at night until 2am. 15The documentary evidence included copies of written submissions made to the Council in the course of its assessment of the original development application and the s82A review. Those written submissions (exhibit 1, tabs 10 and 16) included a submission from the owner, and the tenant, of Unit 3, which is below Unit 7. The Council tendered a copy of a registered Change of By-Law (exhibit 3), which records that pursuant to a resolution passed on 1 September 2011, seven special by-laws were added. By-law 3(e) provides that the owner of a Lot in Strata Plan 1456 must ensure that no more than four persons occupy the Lot at any one time. 16The applicant relied on an acoustic report provided by Mr Thomas Taylor dated 9 June 2012 (exhibit B), and oral evidence provided by Mr Taylor. Mr Taylor had inspected Unit 7 after the works had been undertaken. Mr Taylor noted that the floor consists of timber floor boards on concrete slab which is approximately 200mm thick. There are no ceilings other than in the bathroom. The hydraulic pipework is generally reticulated externally, except for the bathroom shower and sink waste which penetrate the slab into the bathroom ceiling of Unit 3 below. Mr Taylor stated with respect to airborne noise provided the floor slab is constructed of concrete between 150-200mm thick the requirements of the Building Code of Australia (BCA) would be achieved provided there is no defect. He had observed that at a services riser in the hallway of Unit 7 that a penetration in the slab for services to go from one apartment to another, gaps between the services and slab had not been sealed. Although the slab is capable of meeting the BCA required airborne noise rating, it may not as a result of the penetration. With respect to impact noise, Mr Taylor was doubtful that the floor as presently constructed would achieve the BCA required acoustic rating, and in his opinion the floor would never have achieved that rating. Mr Taylor concluded that the proposed change in layout and the additional bedroom had not changed the BCA required wall/floor/services acoustic rating; and that the works had not impacted the party wall, the existing floor finish or the existing hydraulic services. Mr Taylor noted that the acoustic requirements of the BCA are not dependant on the numbers of people occupying an apartment. 17Mr Taylor was of the opinion that by relocating a bedroom in Unit 7 over the living area of Unit 3 the acoustic impact of Unit 7 was reduced because a less intensive noise source was now located over a less sensitive space. Installing carpet in the living area of Unit 7 would dramatically improve acoustic performance and an acoustic rating better than the BCA was likely to be achieved. Provided any unsealed penetrations in the existing slab are acoustically sealed the BCA required level of airborne acoustic performance for floor to floor separation will be achieved. Mr Taylor considered the impact on Unit 8, and noted that the existing wall construction, being double brick, was likely to already meet the BCA required rating. The acoustic performance of the wall could be upgraded by installation of a stud wall on the Unit 7 side starting from the western façade and extending to the hallway/living room doorway. The acoustic impact of footfall transmitted laterally to Unit 8 was not likely to be significantly different to previously and if the hallway is carpeted any impact would be reduced. Mr Taylor considered transmission of footfall noise across to Unit 5 through open entry doors, and noted that this is not governed by any acoustic control, and if Unit 7 hallway is carpeted this noise will be eliminated. In oral evidence Mr Taylor clarified that his recommendation was to carpet the sunroom as well as the living area, and to upgrade the wall adjoining Unit 8 from the western façade to the living room/hallway junction, with the maximum possible spacing of gyprock from the existing brick wall. Mr Taylor acknowledged that his proposals would not address diagonal transfer of noise. 18Expert planning evidence was provided by Mr Anthony Betros on behalf of the applicant and Mr Kerry Nash on behalf of the Council. Mr Nash and Mr Betros addressed the amenity impacts of the proposed development, in particular the contention that the change of layout placing the living room adjoining, under and over the bedrooms of Units 8, 11 and 3 will result in an unreasonable disturbance and nuisance to the occupants of those units. Mr Nash and Mr Betros also addressed the contentions relating to the use of the premises for short term accommodation with loss of amenity for other residents. 19Mr Nash accepted that the acoustic treatment of the wall between Unit 7 and Unit 8, together with carpet, would ameliorate impact noise arising from the use of the living room and sunroom. However, in his opinion Mr Taylor has not addressed whether any steps can be taken in relation to airborne noise, in particular the concerns raised in relation to Unit 3 and Unit 4, relating to the carrying of noise from the sunroom windows. The change of configuration and relocation of the living area is not consistent with the controls in the DCP or the guidelines in the Residential Flat Design Code relating to apartment layout and acoustic privacy. The underlying purpose of the DCP controls is to separate uses, to avoid transmission of noise and nuisance between apartments. The sunroom gets morning sun from about 10 am to 3 pm; the living room in its original location gets direct sun and has a good outlook to the northwest. 20Mr Betros' evidence was that the internal amenity of Unit 7 is improved with the reconfiguration as the outlook is better and it is good design practice to have the living area at the perimeter of the building. In its original location the living area does not get cross flow ventilation and the outlook is to a brick wall of the adjoining building, whereas the proposed location the living area has excellent cross flow and up to five hours sunlight in mid winter. In terms of external amenity, the concerns of the neighbours are related to the tenants and the nature of the existing building. The Residential 2(C1) zone is the most dense of the zonings under the LEP and it is to be expected that there would be degrees of impact. With the acoustic treatment proposed Unit 7 outperforms the other units. What is relevant is the day to day operation of a typical dwelling, and not the past history; behaviour of tenants is a matter for the by-laws. In Mr Betros' opinion greater weight should be given to the concerns expressed by the occupants of the units directly above and below rather than those diagonally opposite. It would be preferable to have the dining area near the kitchen but that would not be determinative.

Consideration 21The proposed development comprises internal works to Unit 7, including the construction of a doorway into the kitchen from the hallway, the erection of walls to create two bedrooms in the area originally used as the living area, and reconfiguration of the layout of the unit by location of the living area in what was originally the main bedroom. It was common ground that the structural works do not impact on load bearing walls. The proposed development also includes the works to ameliorate acoustic impacts, including carpeting the living room and sunroom, and the construction of an upgrade to the common wall with Unit 8 to the hallway/living room junction consisting of 51 mm stud with 16mm plasterboard sheeting and 75 mm thick insulation to the stud cavity. Based on the evidence in the Council's assessment report for the s 82A review the site is a heritage item, and accordingly the proposed development is not exempt development and requires development consent. 22The evidence of the neighbouring residents was based on their experience in the 18 months since the applicant undertook the work for which he now seeks development consent. In Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 Preston CJ held that while past unlawful use is not relevant of itself, it may be relevant in evaluating likely impacts and their acceptability and any mitigatory measures: 38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 23The evidence given on site by neighbouring residents concerning adverse impacts was consistent with the written submissions made in response to the original development application and the s 82A review (exhibit 1, tabs 10 and 16). Those impacts arise in part from the pattern of occupation of Unit 7, with up to 7 to 8 people living in the unit, large numbers of people gathering late at night in the living room playing music and smoking, moving furniture around, accumulation of rubbish, people buzzing for access to the building late at night, and security issues. The impacts also arise from the reconfiguration of Unit 7, including noise of people walking along the hallway between the kitchen and the sunroom used as a dining area, and use of the living area adjacent to and above and below the main bedroom of adjoining units including noise transmission from the windows. 24Based on the evidence of Mr Taylor, the age of the building and its construction mean that it does not meet BCA requirements in some respects. In particular, the timber flooring enables transmission of impact noise to the unit below and the unit next door. The evidence of neighbouring residents was that they are aware of this issue and take steps, such as removing shoes when they enter their units, to minimise noise transmission. The planning experts accepted the conclusions of the acoustic assessment undertaken by Mr Taylor, and based on that evidence, I am satisfied that the carpeting proposed will significantly reduce transmission of impact noise, and meet the BCA acoustic requirements. While Mr Taylor was of the opinion that the existing wall construction already meets BCA requirements, I accept his evidence that the installation of plasterboard with a gap and insulation together with the carpeting will ameliorate noise impacts to the adjoining Unit 8. 25The evidence of Mr Taylor was that the proposed ameliorative works will address impacts of noise transmission to Units 3 and 8 through the floor and common wall. While it may be accepted that the other noise impacts reported by the occupants of other units in the building are not matters addressed in the BCA acoustic controls, I accept the evidence of the neighbouring residents and find that during the period when Unit 7 had three bedrooms and the living area on the northern side of the building, there were significant impacts on amenity. Based on the evidence of the objectors, those impacts arose as a consequence both of the relocation of the living area, and as a consequence of the number of people occupying Unit 7. 26The acoustic evidence is that the proposed development can achieve compliance with the BCA controls in relation to transmission of noise. However, that is only one aspect of the DCP controls. The DCP addresses acoustic privacy (in 5.6.3) by controls both (a) to reduce transmission of noise internally, through compliance with the minimum standards of the BCA, and (b) to minimise noise transmission between apartments, by locating like uses together. The design of the building, before the alterations to Unit 1, complied with 5.6.3(b). While the reconfiguration of Unit 1 has relocated the living area of that unit to the southern side of the building, I accept that as a ground floor unit with no unit below it, and with views to the beach from the approved living area, the context is different to that in the case of Unit 7. The alterations to Unit 1 did not include addition of a third bedroom. The proposed development involves the reconfiguration of the living area to provide two bedrooms, with no dining area other than the relocated living area and sunroom at the other end of the apartment from the kitchen. While I agree with Mr Betros that the internal amenity of Unit 7 would be improved by having the living area at the northern side of the building with good cross ventilation, I also accept the evidence of Mr Nash that in its original location the living area gets direct sun and has a good outlook to the northwest. 27While not determinative, the DCP must be considered as a fundamental element and a focal point of the decision making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. I am satisfied that the location of the primary living and dining area of Unit 7 above, below, and adjoining a bedroom of three units, with the consequent transmission of noise from the living area through the windows, does not comply with the DCP controls in 5.6.3, or meet the objective in 5.6.1. Further, based on the evidence of the objectors as to past acoustic privacy impacts, it would adversely affect the amenity of other residents of the building, which is not consistent with the zone objective (b). On that basis, consent should be refused. The addition of a third bedroom, and a consequent increase in the number of occupants, would, based on the evidence of the objectors, exacerbate these acoustic privacy impacts. 28The Council submitted that if consent is granted a condition should be imposed limiting the number of occupants to no more than six. Such a condition would be contrary to the special by-law limiting the number of occupants to four, added by resolution in September 2011 (exhibit 3). During his closing submissions the applicant raised the possibility of a challenge to the validity of this by-law. In written submissions after the hearing the parties agreed that, in the absence of a provision under s 28 of the Act in the LEP, both a development consent and the by-laws could operate with respect to the premises and the occupier of the premises would need to comply with both. My conclusion that the development application should be refused means that it is not necessary for me to determine whether a condition inconsistent with a by-law which, on its face, applies to the premises could, or should, be imposed.

Conclusion 29The orders of the Court are:

1. The appeal is dismissed.
2. Development Application DA 23/11 for alterations to Unit 7, 228 Campbell Parade Bondi is refused.
3. The exhibits are returned. Linda Pearson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2012