It is this determination that is the subject of the appeal.
8 The modification sought is to allow the use of the rooftop as a terrace area from which a view of Clovelly Bay is available. The area of the terrace is approximately 21sqm and it is at a level of RL42.40. The level of the existing yard area is RL41.15 so the terrace would be 1.25m above finished ground level.
9 The plans include the provision of steps from the yard to the terrace, a 440mm high opaque glass screen on top of the existing masonry dividing fence between the site and No. 6 Northumberland Street. That panel would run for a distance of 4.2m along the boundary. The addition of a 300mm high similar screen on top of an existing 1.5m high timber privacy screen erected above the garage is also proposed along with a further 1.8m high screen to match it. That additional screen would be setback 1.4m from the rear boundary and run from the terrace to the southern side boundary fence. The terrace would necessitate the erection of further pool fencing and that fencing would comprise 1.2m high glass panels along the southern face of the terrace and proposed stairway.
The planning controls
10 The site is zoned Residential 2A under Randwick Local Environmental Plan 1998(Consolidation) (the LEP) and is within the Foreshore Scenic Protection area.
11 Clause 9 of the LEP requires consideration of the extent to which the proposed development is consistent with the general aims of the LEP and the specific objectives of the zone within which the development is proposed.
12 The relevant objectives of the Residential A zone are:
(b) to maintain the desirable attributes of established residential areas, and
(c) to protect the amenity of existing residents, and
(f) to allow people to carry out a range of activities from their homes, where such activities are not likely to adversely affect the environment of the locality.
13 Clause 29 of the LEP applies to the Foreshore Scenic Protection Area and requires a consent authority to consider the probable aesthetic appearance of the proposed building in relation to the foreshore.
14 The council's Dwelling Houses and Attached Dual Occupancies Development Control Plan (the DCP) applies to the application.
15 The DCP provides controls for the construction of dwelling houses, including alterations and additions to existing dwellings, garages, carports and ancillary structures to dwellings. The DCP operates on a hierarchy of controls using a "performance" approach to design guidance and development control. To gain approval, developments must fulfil the relevant objectives for each control. The performance criteria provide the means by which a development will achieve the objectives. Preferred solutions are offered and illustrate how the performance requirements may be achieved in the design of developments but are not compulsory, rather, they are a guide of what would deemed to be compliant.
16 Part 4.5 of the DCP is relevant to the application and clause 4.5.1 provides the objectives of that part which are:
To ensure that new buildings and additions meet occupants' and neighbours' requirements for visual and acoustic privacy.
There are no specific provisions in the DCP that relate to roof terraces and therefore the objective must be satisfied.
The contentions
17 The matters in contention are:
1. The proposal will have an unacceptable impact upon adjoining residential properties in terms of loss of visual and aural privacy and is contrary to Part 4.5 of the DCP, the objective of which is to ensure that new buildings and additions meet occupants' and neighbours' requirements for visual and acoustic privacy.
2. The proposal is inconsistent with objectives (b), (c) and (f) of Zone No 2A in clause 10 of the LEP.
3. The proposal is contrary to Part 2 of the DCP which seeks to ensure proposed development sensitively responds to the surrounding character.
4. The proposal is contrary to the objectives of Part 4.9 of the Dwelling Houses DCP for development within the Foreshore Scenic Protection Area. This contention was not pressed during the hearing.
5. The proposed roof terrace is unnecessary and unreasonable having regard to the various other opportunities for private open space at the subject site.
The site view
18 An inspection of the site and its locality was undertaken in the company of the parties and their experts and the extent of works proposed was viewed. Evidence was heard from a number of neighbours who had lodged objections with the council. The main issues of concern in relation to the proposal were:
Loss of privacy;
Scale and bulk of the development;
Incompatible built form that would adversely impact on the character of the area;
Unacceptable noise from use of the terrace;
Precedent that would arise if approval to the terrace were granted;
Non-compliance with the council's planning controls.
19 Inspection of the adjoining property to the south of the site, No. 6 Northumberland Street, was made in the company of the owner of that property. His concerns related to the existing impact of the boundary fence that had been erected as part of the works authorised by the consent and how that impact would be increased by the erection of the proposed 440mm high opaque glass screen along part of that fence particularly in relation to solar access, bulk, and appearance. He was also concerned that the screen proposed would not ensure that his privacy was maintained and that the enjoyment of the current use of his rear verandah, yard and rooms within his dwelling would be compromised.
20 The rear yard and upper floor deck of No. 7A Campbell Street was also inspected and the owner of that property expressed her concerns regarding the impact of the deck on her privacy, the view into her living areas and the noise associated with its use.
21 The final property viewed was the rear yard of No. 3 Campbell Street in order that the height and scale of the proposed privacy screens could be determined.
The evidence
22 Expert planning evidence was heard from Mr Harding for the council and Ms Nolan for the applicant.
23 Ms Nolan considers that the existing and proposed screening will ensure a reasonable amount of privacy is maintained to adjoining properties. She says the screening proposed along the top of the existing boundary fence will direct views from people utilising the proposed deck over the adjoining property No. 6 Northumberland Street towards the foreshore and Clovelly Bay. Mr Harding considers the impact of the proposed deck to be unacceptable, particularly in relation to the two adjoining properties, Nos. 2 and 6 Northumberland Street and that screening proposed is insufficient ot protect the privacy of adjacent residents. Ms Nolan advises that the owner of No. 2 does not object to the proposal and a letter to that effect was tendered as Exhibit C. Her opinion is that the users of the terrace will not look back into that property, as they will be attracted towards the view to the south.
24 Ms Nolan does not consider that the terrace will provide a view into the living areas of No. 6 but did accept that there will be some view of the grassed yard area however, maintains that the predominant view was over the buildings to the bay and not the immediate view into yards. Whilst she maintained that the proposed privacy screens were sufficient to mitigate the impact of the terrace, Ms Nolan agreed that further privacy screens would assist in further reducing that impact. Ms Nolan is of the opinion that development in the vicinity of the site adopts the principle of view-sharing due to the slope of the land and that this will remain if the deck is allowed. Mr Harding disagrees and states that there are no other similar structures to that proposed and the approval of a roof terrace would introduce a foreign element which would be out of character with the locality.
25 Ms Nolan considers that the proposed terrace will not result in any additional noise from that currently experienced at the site. Her evidence is that the deck is well separated from habitable rooms including sleeping areas and as such will not result in a loss of acoustic privacy. Mr Harding disagrees stating that the elevated nature of the terrace will exacerbate acoustic issues and impacts to neighbours.
26 Ms Nolan's view is that the proposed terrace was consistent with the character of the area as there are many other dwellings that include upper floor decks to the rear and those decks were higher than that proposed. Mr Harding disagreed and stated that these decks were not comparable as they were attached to the rear of the dwellings, were not erected to the rear boundary with the lane, there was a greater separation between the deck and the yards of dwellings on the opposite side of the lane and those decks do not allow views back into houses. He considers there to be a modicum of privacy from the existing decks through the privacy screens that have been installed at their ends. He considers that most living areas (which he takes to include outdoor entertaining areas) have a high level of privacy and that privacy would be lost if the terrace is approved.
27 The experts agree that the laneway at present has few intrusions above the single storey garages other than a large single garage on the north-eastern corner of the lane and the site itself, which incorporates the upper level privacy screen on the boundary above the garage and adjacent to the proposed terrace. Ms Nolan considers that the existing screen, its proposed glass extension and the additional screen, which is to be setback 1.4m from the laneway, does not have an unreasonable impact on the character of the laneway, nor would it be prominent in this streetscape. Mr Harding considers that the existing screening and the proposed screening result in an element that is not characteristic of the lane and other lanes in proximity to the site. He does not consider the existing screen to be an element that is a desirable attribute of the laneway and therefore maintains that it should not be replicated. He says that the absence of structures of two storey height allows views and vistas of the Clovelly foreshore area which is part of the visual qualities of the foreshore recognised in Part 4.9 of the DCP and that erecting screening to allow roof top terraces that protect privacy will dramatically change this situation.
28 Mr Harding considers that the resultant height of the boundary fence and additional screen between the site and No. 6 is excessive and results in further adverse impacts to that property. Ms Nolan considers that the glazed panel would not result in any unreasonable bulk and scale when viewed from No. 6. Both experts agreed that the finished height of the wall would be approximately 3m from the existing ground level at No. 6.
29 The Court was referred to the plans approved under the consent that included the erection of a masonry wall along this boundary to a height of 1.8m above the finished ground level of the site's rear terrace area and 1.65m above a timber pool deck adjacent to the southern boundary. It was noted that the existing fence has not been erected to this height and Ms Nolan stated that the height of the fence with the addition of the glass screen would be consistent with the approved fence height for that length where the screen is proposed and the fence would remain at the current height for the remainder of its length. Mr Harding considered the impact of the existing fence was already "a lot to look at" and its extension would not be appropriate.
30 Ms Nolan estimated that the existing area of private open space (POS) available on the site was approximately 40sqm and that the terrace would increase this by 21sqm so that there is at least 61sqm POS provided. She agreed that the DCP requires a minimum of 25sqm however considered the exceedance to be consistent with the locality, which, she says, also provides POS in excess of that required by the DCP.
31 Ms Nolan advised that the intent of the terrace was to allow the owners of the site to enjoy a wider view of the vista to Clovelly Bay. Currently, that view is available from the rear yard from a standing position only and the terrace would facilitate enjoyment of the view from a seated position. The current elevated deck to the dwelling is small and attached to the front of the house and she does not consider this area is usable POS. Mr Harding considers that the site already enjoys views towards Clovelly Bay and whilst these are from a standing position only, he considers that it would be unreasonable to create a viewing terrace at the expense of the privacy of adjoining properties and change the character of the area to the extent proposed.