Conclusion
25Having considered the evidence, the submissions and undertaken a view, I am satisfied that the modifications agreed to the various building elements by the parties are reasonable and can be covered by modified conditions.
26With regard to the contentious terrace, I note that the modified conditions require the complete removal of the kitchen from the family room adjacent to this proposed terrace. Accordingly, I have considered the amenity impacts of this terrace on the basis that controls provided in SSLEP 2006 wherein cl 49(b) requires that the consent authority must not consent to development of residential buildings unless it has considered "the extent to which any adverse impacts of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised."
27Furthermore, cl 3.13 of chapter 3 of the DCP relates to privacy and contains objectives and controls as outlined in the council's particulars for contention 1 to provide a high level of amenity by protecting the acoustic and visual privacy of occupants within all built development and in private open spaces. It contains controls requiring the use of building design elements including balcony screens and planter boxes in walls or balustrades to minimise privacy impacts.
28The DCP contains additional controls for decks, verandahs and balconies requiring them to be designed to prevent overlooking of more than a reasonable area of the private open space of adjoining dwellings. It encourages a variety of balcony types and sizes and states that privacy screens and planter boxes may be required to be constructed at the edge of a deck, verandah or balcony to ensure privacy. The DCP incorporates the Court's planning principle that where landscaping is the main safeguard against overlooking it will be given minor weight.
29It is then apparent to me that the proposed terrace is relatively large, with an effective paved area of approximately 47 sqm, in the context of other east facing terraces or balconies at adjoining and nearby residences. As such it will permit a considerable number of people to use it so as to experience the attractive district and water views, as stated by Mr Winnacott.
30Considering the significant attraction/benefits of these views, I am unable to accept Mr Winnacott's opinion that the use of the terrace and associated impacts will be minimal. Instead I consider Ms pinfold's assessment is a more likely outcome. This would result in material adverse amenity impacts on the neighbouring property owners and I do not consider it would be consistent with the minimisation provisions of cl 49(b) of the LEP.
31I have also considered the submissions made regarding the planning principle in Super Studio wherein Senior Commissioner Roseth said:
5 Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible.
6 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.
32Applying the first principle, the Court was informed that the main circumstance for requiring the large terrace was to take advantage of the attractive district and water views. But it is apparent to me that the dwelling does have other access to these views, particularly from the large balcony at the elevated ground level.
33Furthermore it is also apparent that as the kitchen facility is not allowed on the first floor level, this upper level terrace would be of a secondary outdoor area and should therefore be smaller, if allowed at all.
34For my overall assessment of the merits of the proposed terrace, a reasonable balance is required between the private benefits to the subject property owner and the public interest considerations expressed in the relevant planning controls of minimising impacts on neighbouring properties. In the circumstances I consider the proposed terrace is of excessive size in the context of the relatively large dwelling with other available balconies and its likely usage will cause adverse visual and privacy amenity impacts on the residents of No 34 Sylvania Road. Therefore I do not consider the necessity for such balcony has been reasonably established.
35Submissions were also made regarding the authority in Progress and Securities Pty Limited v North Sydney Municipal Council [1988] NSWLEC 55 where Bignold J said:
In the present case it is neither necessary nor proper to hold, nor do I hold, that the power conferred by s 102(1) is limited to situations involving changed circumstances from those existing at the time that development consent was granted. What however, I do hold, is that the absence of any changed circumstances or the absence of any new or additional material relevant to the respondent's determination granting the relevant development consent (but overlooked by the respondent) is a relevant consideration in the exercise of the statutory discretion.
36In this regard, I note from the lengthy history of this application that the original consent allowed for a smaller, somewhat recessed roof top terrace with an area of approximately 28 sq m. The consent then restricted the open slab area to be a non-trafficable roof. But subsequent applications modified this to permit its enclosure, thereby removing such open terrace, which indicates to me that any need for the terrace was secondary.
37The subsequent modification to now re-install a considerably larger, more exposed open terrace in closer proximity to the neighbouring properties' main family/dining room window, would in my assessment likely cause adverse amenity and result in a significant incremental enhancement and benefit for the use for the subject application, whilst exacerbating adverse amenity impacts, rather than minimising them, to the detriment of the neighbours.
38In summary then, I rely on Ms Pinfold's opinion that the proposed terrace is of excessive size and unacceptable and I am satisfied the proposed terrace would result in an unacceptable balance of amenity for the neighbouring properties as indicated by the relevant controls.
39However, I accept that the controls permit a suitable roof top terrace. In the circumstances, I consider that a smaller terrace area, which is consistent with the secondary location of the terrace (i.e. it is not adjacent to the main kitchen/dining room) could be acceptable. Such smaller terrace would still enable the views to be experienced in conjunction with the family room usage, on the basis that the extent of the usage should be restricted to a similar level of the neighbouring properties.
40The maximum size of such terrace would be an effective paved area with a width of the glass area of 6 m and with a depth of 2.5 m and include adjacent perimeter planter boxes with appropriate screening plants and watering system. A nontrafficable metal roof - to council's specification, should cover the remainder of the slab area. Modified conditions can cover this.