Purchas A & Noble C v Waverley Council

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr D McGregor, solicitor SOLICITORS Minter Ellison LEGAL REPRESENTATIVES:

RESPONDENT Mr M Staunton, solicitor SOLICITORS Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10687 of 2006 Andrew Purchas and Clayton Noble v Waverley Council

JUDGMENT This determination was given extemporaneously and it has been edited prior to publication

1 This is an extempore judgment for an on-site hearing by way of an appeal under s 97 of Environmental Planning and Assessment Act (the Act) against Waverley Council's refusal of a development application for the property known as 167 Hastings Parade, North Bondi.

2 The proposal is for alterations and additions to an existing Spanish Mission style building of two storeys with a unit on each floor. The proposal is to provide a rear balcony facing west on the second level with a width of 2.5 m and the major addition is to provide a partial third level in the building with a deck (however, it could not be described as an attic). I am satisfied that the additional floor space in this level is appropriate in the circumstances of the case having regard to the streetscape. I am also satisfied that the integrity of the Spanish Mission residential flat building will not be comprised by the addition and the proposal also allows for restoration works.

3 The council has raised issues concerning precedence of allowing a rooftop deck/terrace and has also raised issues about the fact that the proposed development with the additional third level is an over-development of the site in that it exceeds the floor space ratio (FSR) provided for in the 2(b) Zone.

4 The council also contends that the controls provide for a 7.5 m wall height which is exceeded in the current building and an overall maximum height of 9.5 m. The overall maximum roof height is marginally exceeded by the addition of the third level which contains a bedroom and bathroom and a terrace.

5 The issue of visibility of the third level in the streetscape was also raised by the council, I am satisfied that the proposed development and the architectural detailing will provide for an appropriate extension that will sit comfortably in the streetscape. The Court-appointed expert, Mr Brett Newbold comments that it will be visible but it is a modest extension in the overall streetscape.

6 The council also raised the issue of height however, this is conceded as marginal and in itself would not be fatal to the application. In my assessment the additional height is barely visible. The council also as I stated raised issues about an unacceptable precedence of an alteration and addition. It is noted that the area is one that has a mixture of residential flat buildings, large dwelling houses and new development as well as older style buildings. The proposal will retain the envelope apart from the roof and the extension of the balcony at the rear. The building is be refurbished in terms of the front façade contributing to the streetscape.

7 The Court-appointed expert Mr Brett Newbold provides comments on the proposal and the Court has had regard to his opinion. The Court accepts his view in terms of the more significant part of the proposal which is the third level to provide for the additional bedroom en-suite accommodation.

8 However, for the issue of roof terrace, the Court is of the opinion that it would be an inappropriate precedence in terms of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 to provide for a roof terrace in the circumstances of this case. The issue of the roof terrace is also looked at in the context of the acceptability, the reasonableness and the necessity for the roof terrace. It is maintained by the applicant the terrace would provide for increased amenity for the bedroom and it would have little use because of its relationship with the bedroom. On the other hand one must also have regard to the fact that the magnificent views obtained from the roof deck could encourage the congregation of a large number of people and if this is repeated and property owners in the vicinity may also seek to invoke the provision of terraces on their properties and cumulatively this would be an undesirable situation and as such the proposal for the upper roof deck shown on the plan with an area of 3.4 m x 3.6 m is considered to be unacceptable. The Court, however, is satisfied that a maximum depth of 1.5 m for the use of the bedroom to improve the amenity for that room would be appropriate in the circumstances of this case and would also allow for then landscaping of the area in front of or forward of the 1.5 m line to provide for a resolution of the roof and the terrace area.

9 The Court is also concerned that if roof terraces require screening to ensure privacy of other properties are protected then this is not appropriate. First the question needs to be posed is the deck necessary or reasonable. I conclude a roof terrace of the size proposed in the plan is unacceptable, unnecessary and unreasonable. The Court considers that a reduced depth to 1.5 m will achieve the objective of providing additional amenity to the bedroom without creating privacy concerns overlooking or a precedential affect in terms of the overall assessment of the application.

10 The Court was taken to the relevant provisions, the objectives of the zone and in the LEP as I stated the site is zoned 2(b) and council must have regard to the objectives of the zone of assessing the development application. The specific objectives in the plan in relation to housing are contained in cl 7 and in particular: "to provide a range of residential densities; to encourage a range of housing types; to encourage development; to encourage new housing compatible with the surrounding development; and to improve the amenity of residential areas. The council highlighted to the Court to improve the amenity of residential areas. The objectives of the 2(b) Zone are: to allow for a variety of housing forms to maintain and improve the amenity and existing characteristics of the locality and the proposal in my assessment is consistent with the objectives or aims of the plan as well as the zone objectives. It is noted that the plan requires that only one of the objectives be maintained, however, I am satisfied that all the objectives outlined in the LEP are satisfied. In terms of the appearance from the Bondi Beach area cl 30, I am also satisfied that the proposal will not have any adverse impact.

11 In terms of building heights, as I stated there is a 9.5 maximum building height and an external wall height of 7.5. I am satisfied given the alterations and additions and the resolution of the roof that is demonstrated in the plan this would not be a reason to refuse the application. The council also has a development control plan for dual occupancy development and the controls include visual and acoustic privacy and the proposal where practical should ensure that neighbouring properties have appropriate site planning location design of windows and balconies and use of screen devices and landscaping and ensuring acceptable noise levels.

12 Council it is also noted has a development control plan which came into effect but this has a savings provision such that development applications lodged to its adoption are not caught.

13 In terms of the FSR, the FSR is approximately 0.77:1, the control provides for 0.5:1. It is noted in the plans that the laundry facilities in the lower level are to be deleted to provide for parking for the two dwellings and that area although reconfigurated in format is now provided on the third level. The FSR in the circumstances having regard to the overall bulk of the building and its fit with the streetscape would not warrant refusal of the application. The major issue in these proceedings has been the roof terrace and in terms of planning principles I am satisfied that with the reduced roof deck, the circumstances of this case would allow for the reduced roof terrace without adverse impacts on adjoining properties and without an undesirable precedential affect.

14 It is of concern to the Court in terms of whether it be obscure glazing or privacy screens because privacy screens also add bulk to buildings and can be taken down as well. The first question is to have regard to the necessity for such provisions. In an area of relatively high density there is a degree of mutual overlooking and this must be accepted the objective is to ensure that that degree of overlooking is not unreasonable and I am satisfied the proposed development without the obscure glazing will provide for a reasonable relationship with the adjoining property obscure glazing in particular to living areas, significantly reduced internal amenity and this must also be considered.

15 The conditions provided by the council with the deletion of the need to provide for obscure glazing in the living room, the only obscure glazing required is for one window in the existing stairwell.

16 On the basis of the Court's assessment, the application to be shown in amended plans will be approved. The amended plans are to show the 1.5 m roof terrace and the landscaping and the resolution with the roof as such.

17 I am satisfied the plans forwarded to the Court 24 November 2006 are in accordance with the Court's decision.

18 Therefore the formal orders of the Court are as follows: 1. The appeal in respect of the property known as 167 Hastings Parade, North Bondi, is upheld.

2. The development application submitted to Waverley Council, and as amended, and shown in LEC 502: 54A and 55A is approved subject to the conditions contained in Annexure "A".

3. The exhibits are returned with the exception of 5 and A and the amended plans.

              J S Murrell
              Commissioner of the Court
              Rjs/ljr

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