Raymond v Woollahra Municipal Council

Land and Environment Court (NSW)|2007-02-22

CITATION : Raymond v Woollahra Municipal Council [2007] NSWLEC 116

APPLICANT Ben Raymond PARTIES : RESPONDENT Woollahra Municipal Council

Development Consent :- KEY ISSUES: Modification application Works constructed contrary to Court decision .

APPLICANT Applicant in person LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor Home Wilkinson & Lowry

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11118 of 2006 Ben Raymond v Woollahra Municipal Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Woollahra COuncil (the Council) of a modification application seeking approval for a number of changes to the design of a building that was approved to be erected at 42 Bundarra Road, Bellevue Hill (the site).

2 The site has been the subject of a number of proceedings in the Court including that which granted its original consent. The first, the original approval, was dealt with by Tuor C in Raymond and Kennedy v Woollahra Municipal Council (2004) NSWLEC 286. A subsequent modification application pursuant to s 96 of the Act was dealt with by Tuor C in Kennedy and Ors v Woollahra Municipal Council (2005) NSWLEC 124. 3 The present proceedings are a further modification application pursuant to s 96 of the Act to seek to regularise a number of matters which have been constructed but which are not in accordance with the plans as approved by the Court or subsequently modified pursuant to s 96 of the Act.

4 A number of the matters which have been listed by the parties as being modified but not approved are, in fact, not in contention, and one matter which was in contention concerning the ground floor rear courtyard landscaping provisions and drainage associated therewith was resolved during the course of discussions during the onsite view and subsequently between the parties. 5 There then remained a total of six matters of any substance requiring determination and a number of more minor matters (such as the two doors to the access-way balcony area at the first level above the entrance level being permitted or not) as to whether these should be permitted. 6 I propose to explain why each of the major contested variations sought by the applicant should be rejected. 7 The applicant appeared in person and, as a consequence of the obligations of the Court under those circumstances to self represented litigants, a deal of indulgence, in a procedural sense, has been granted to Mr Raymond during the course of these proceedings.

8 One of those indulgences included my admitting, over objection from Mr Connell, solicitor for the Council, of an unsigned letter from Mr Rob Wallman of Wallman Partners Pty Limited, landscape architects, dealing with the viability and appropriateness of a number of the landscaping elements which are in contention in these proceedings. Mr Wallman's letter is unsigned and does not comply with the Expert Witness Practice Direction.

9 Nonetheless I considered that, in the interests of procedural fairness, I should permit its tender over Mr Connell's objection and I have read and considered the matters contained in it.

10 Given the conclusions which I have reached concerning the planter box along one of the levels which would otherwise not have appropriate safety mechanisms for those accessing it for maintenance purposes, I have been considerably assisted by this evidence from Mr Wallman as to the necessity of appropriate safety balustrading being required along that portion of the planter box and I propose to impose a condition requiring such balustrading. I will return to that topic later. 11 The first matter that is in contention between the parties concerns changes to the foyer roof at the entry to the building.

12 The approved plans show a glass roof (although it is not clear whether that glass roof is to be translucent or clear). What has been constructed is, in fact, a concrete slab with two square slightly domed translucent skylights set into it in the rearward part of that area above the entrance foyer.

13 The forward part that section of the entrance foyer roof (being some 1.5 to 1.8 metres in width) is a tiled concrete slab. It has no planting or privacy provision along its side where it looks into the front balcony entertaining space of the residence immediately to the south-east, that of Dr and Mrs Streimer, who reside at 40 Bundarra Road, Bellevue Hill.

14 Access to that area is restricted by a small translucent glass panel that is less than knee height - being some 450 - 500 mm high. It is a derisory barrier to permitting persons to use that as an extension of the front private open space at that level. 15 The reasons that were advanced for non-compliance with the plans in that regard were that the concrete slab would eliminate noise in the foyer, that having been a matter of some concern before Tuor C, that it would not impact on anybody and that the skylights would add light to the foyer area. 16 I am satisfied that the potential privacy impacts on the residence at 40 Bundarra Road are sufficiently great as not to warrant permitting the changes (that have been constructed) to be approved.

17 If there be an issue of noise, that is capable of being addressed, on my understanding of it, by the design of the glass roof or the design of the paving and walling of the area. It is not necessary to do so by the insertion of a concrete slab which, despite Mr Raymond's protestations to the contrary, provides a significant potential additional trafficable area to the front balcony. 18 The next area that is of contest between the parties concerns a drying yard extension on the same level as that to which I have referred.

19 There is a modest extension to the drying area from the laundry door toward the front of the building that I am satisfied ought be permitted to remain if, and only if, the proper construction of the front foyer area roof proceeds so that the barrier which has presently been erected, in translucent glass, between that drying area and the front of the property, will remain and act as a barrier to access what should become a non-trafficable glass roof in accordance with the original plans.

20 It is also only acceptable in the context of the requirement that the landscaped planter box, which is intended to wrap around the corner of that corner of the building, be constructed in accordance with the plans as originally approved and that the area currently constructed as a walkway be removed and reverted into planter box as originally proposed. 21 In Super Studio and Waverley (2004) NSWLEC 91, Roseth SC said, at para 6, with respect to the reliance on landscaping for the protection of privacy the following: "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". 22 That corner of that level of the property, if able to be accessed, provides a direct overlooking of the rear private open space of the Streimer's house.

23 The landscaping in the planter box is of minor width and does not constitute any significant barrier to direct overlooking of that private open space. Consistent with the principle enunciated by the Senior Commissioner in Super Studio, I reject the appropriateness of landscaping in this minor planter box for privacy protection.

24 I am of the view that, consistent with the use of the width of planter boxes to prevent overlooking, the width of the planter box is necessary, at that point, for the purposes of ensuring that there will not be overlooking of the Streimer's private open space, either from the drying area which is to be permitted adjacent to the laundry or from the small service area adjacent to bedrooms 1 and 2 of that dwelling. 25 A similar position and identical reasons apply to the removal of the planter box on the northern corner of that level. It is required to be constructed as proposed in the original plans for the same reasons but applicable to the neighbouring property on that side.

26 Having reached those conclusions, and the fact that the service area, at the rear of the building adjacent to bedrooms 1 and 2, is now to be confined and not able to be accessed to a sufficient degree capable of permitting overlooking of the private open space of the adjacent properties, it is appropriate to permit the doors which have been substituted for windows at those locations to remain. 27 At that level, there are two other matters requiring consideration. The first is the fact that, along the north-western side at that level, the original plans as approved required a planter box commencing at the wall of the dwelling and extending to the outer edge of the planter box. It is shown in the elevations of the plans as approved as having a full width of planting. As it has been constructed, there is a planter box which, notwithstanding any concerns that I might have or which were raised by the local Residents Action Group as to non-compliance with the Building Code of Australia and subsequent safety issues arising therefrom, does not satisfy the approved width provisions and creates a corridor along that side of the dwelling.

28 The trafficable area that has been created is described by Mr Raymond, the applicant in these proceedings, as being solely for the purposes of maintaining the plants and is not intended to be a trafficable area.

29 It is also separated by a similarly derisory glass barrier from the front terrace area at that level. 30 Mr Wallman, in the statement of evidence that I have admitted, expresses concern that there will not be an appropriately safe way to maintain the planting if the planter boxes required to be constructed as originally approved. I can see no reason why maintenance at that level, which is a matter traversed by Mr Wallman, cannot be dealt with in one or other of the ways that Mr Wallman deals with in his evidence. 31 Firstly, I am satisfied that the unapproved width of the hard surface area now existing is capable of being used if some future residents were to remove the glass barrier at the front terrace (and, indeed, even if it were not). Had I not required the reinstatement of the planter box at the rear, it would also have been capable of being used as an access way along the whole of that side of the dwelling to the rear.

32 I am also not satisfied, given the expansive views that are available from it, that, despite its width, it would not be used as a spillover entertainment area. This use would have quite unacceptable privacy impacts on the neighbouring dwelling. 33 I am satisfied that the questions of safety for those maintaining that planter box can be addressed by using one or other of the methods proposed by Mr Wallman. As a consequence, consistent with the decision of McClellan CJ in 1643 Pittwater Road Pty Limited v Pittwater Council (2004) NSWLEC 685, not only do I reject that which is constructed and consider that it is necessary for the protection of the privacy of the residence at 44 Bundarra Road to require that that be a full length planter box as per the approved plans, but I require a new condition to be inserted that will oblige the applicant to erect a stainless steel balustrade, compliant with the Building Code of Australia, commencing in line with the vertical front wall of the building line at that level of the dwelling, for the full length toward the rear of the dwelling, along that planter box on its outer wall and that this take place prior to the issuing of an Occupation Certificate. 34 I turn now to the question of the width of the planter boxes on the front terrace.

35 The conditions that were dealt with in the proceedings before Tuor C with respect to the first floor apartment planter boxes were dealt with in terms where Tuor C upheld a requirement that those elements of the planter box have a soil width of 700 mm.

36 They have been, in fact, constructed to a significantly lesser width of approximately 300 mm of soil. Mr Raymond, in that regard, has said that he has not done so for reasons of saving money on plants, bricks, soil and the like and I accept his evidence, given informally from the bar table, in that regard.

37 He said he considered that it was appropriate to have a straight line continuation of the planter box that he has otherwise constructed along that side of the building.

38 I agree with him that a straight line construction is thoroughly desirable in aesthetic terms. Given the conclusion that I have reached with respect to the planter box along that side of the building, I am satisfied that a straight line continuation for this planter box element (which is what was required by the conditions imposed by Tuor C) is also appropriate. 39 However, even if I were not satisfied that such was a good design outcome, as I indicated to Mr Raymond during the course of his submissions, planter boxes provide two privacy characteristics. The first is to provide a degree of vertical barrier by virtue of that which is planted in them. The second is to provide a degree of horizontal setback to interrupt and lift the line of sight of a casual observer. I am satisfied that the soil width that was imposed in the original proposal of a minimum width of 700 millimetres is appropriate under the circumstances to achieve the second of those objectives for users of this terrace and provide necessary privacy protection for neighbours on both sides. 40 Although the matter of consistency with the decision of Tuor C was pressed on me as a significant matter, consistent with the decision of the Court of Appeal in Segal v Waverley Council (2005) 64 NSWLR 177 and the remarks by Tobias JA at paras 96 and following, I do not need to deal with the question of comity in decision making between the views expressed by Tuor C and the matters dealt with by me in these proceedings as I have concluded, on the basis of the merits of the matter as inspected and available from the plans, that the proposed changes should be rejected.

41 The same position with respect to the width of planter boxes at the uppermost level applies as applies to the front balcony for the lower floor level of the upper of the two residences. 42 It remains for me to make two other observations in these proceedings.

43 The first is that one of the matters that was agreed by the parties as being appropriate for granting in the modification proceedings relates to the significant differences in design of the front landscaped area compared to the conclusions that were reached by Tuor C.

44 Tuor C determined, in her 2004 decision at para 18, that a particular treatment to the front setback should be retained, it then being proposed to be different. That front setback treatment has not been retained and has been constructed contrary to the provisions of condition 4 of the consent. That change is not opposed by the Council in these proceedings and I see no reason, in the face of that agreement, to make any contrary determination. 45 However, Mr and Mrs Streimer have raised the question of a retaining wall arising from the landscaping in the front setback on their side of the property.

46 It appears to me from the approved landscaping plans that it is intended that there be a retaining wall constructed in that area and it is specifically noted in the architectural plans that there will be a contiguous piering and retaining wall along the side boundary to the structural engineer's specifications. That wall appears, from the architectural plans, to commence at the front boundary and extend at least to the rear building line of the structure on 42 Bundarra. At the present time there is a significantly dilapidated boundary fence part of which is being, on the evidence of Mrs Streimer (and not contradicted by what I observed), impacted by the activities being undertaken on the site. 47 It would seem to me appropriate, under all the circumstances, that there be a specific condition requiring that retaining wall to be built for the full length shown on the architectural plans if that is what is desired by Mr and Mrs Streimer and that, as that was approved to be entirely within the boundaries of the subject property, it should be built at the applicant's expense. If there is any necessity for access issues arising out of that, that is a matter to be dealt with in another place. This retaining wall is to be constructed prior to the issuing of an Occupation Certificate 48 As a consequence of all of that, I am going to require that revised plans reflecting the terms of this decision and that which has actually been constructed or as otherwise agreed during the course of these proceedings be produced by the applicant prior to the granting of any order upholding the appeal and granting the modification application in the limited terms that I have determined.

49 I therefore give the following directions: 1. The applicant is to file and serve plans to reflect the terms of this decision by the close of business on 17 March; 2. The respondent is to file and serve revised consolidated conditions to reflect the terms of this decision by 24 March. The conditions are to be provided electronically in accordance with Practice Direction 2 of 2005. A separate court e-mail is to be forwarded to the court advising of the filing of them; 3. The matter is set down for callover before the Registrar on 29 March; 4. If directions 1 and 2 are satisfied I will make orders in chambers and vacate the callover; and 5. Liberty to re-list the matter before me on 48 hours notice if there are any matters arising out of directions 1 and 2 that require clarification.

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.

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

Parties

Cases Cited (1)

Cited By (1)