Verduci v City of Canada Bay Council

Texts Cited: City of Canada Bay Development Control Plan 2017

Category: Principal judgment

Parties: Connie Macolata Verduci (Applicant)
City of Canada Bay Council (Respondent)

Representation: Counsel:
V Conomos (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Conomos legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2024/202341

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the City of Canada Bay Council of development application DA2023/0189 (the DA). The DA sought consent for the erection of an above ground swimming pool and alterations to the existing garage to create a trafficable roof as well as alterations to the rear fence on land legally described as Lot 29 DP 10862 at 9 Seabrook Avenue, Russell Lea (the site).

2. The proposed alterations and additions to the existing development on the site as lodged in the DA include:

3. A swimming pool of dimensions 2600mm x 5000mm with a total volume of 16,250L, set 2.99m above the existing ground level;

4. The garage roof changed from a non-trafficable roof to a trafficable roof top terrace with lawn;

5. Removal of the existing rear fence. The south-western side of the fence is to be replaced with a gate and 2.5m wall, the planting behind the gate is replaced with a path and entry steps; and

6. The fence on the north-eastern side replaced with a 2.6m concrete wall, with a plant room, fill, and pool behind.

7. The DA was lodged with Council on 12 September 2023 and placed on public exhibition from 18 September 2023 until 9 October 2023. Two submissions were received objecting to the proposal.

S 34AA Conciliation Conference

4. The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (‘LEC Act’) on 4 November 2024 which commenced with an onsite view under s 34 (1) of the LEC Act between the parties, and at which I presided.

5. Three submitters attended the on-site view and made submissions to the Court. In addition, I made inspections of the view of the site from various submitters’ properties.

6. As the parties failed to reach agreement on the issues in contention at the conciliation conference, I terminated the conciliation conference pursuant to s 34(4) of the LEC Act and proceeded forthwith to hearing.

The Amended Plans

7. At the hearing, the Applicant provided an amended scheme as a result of a without prejudice meeting and joint conferencing between the experts as well as additional Acoustic Consultant advice However, there is disagreement that these amended plans address and satisfy the contentions before the court, or that with additional adjustments the contentions can be satisfied. A copy of these amended plans and Acoustic Consultant advice are appended to the joint planning report and were tabled by the Applicant as Exhibit A.

8. The amendments referred to above were provided to the experts in the form of architectural drawings and information, and an Acoustic Consultant letter of advice. A broad summary of the cumulative changes between the plans currently before the Court and those relied upon for the purposes of this Joint Report (see Appendix A) is described as follows:

9. Planter-box of 500mm width proposed along the south-western and south-eastern edge of the garage roof lawn, to be provided with a landscaped hedge to a height of 1.2m. Previously not proposed;

10. The initial architectural plans provided for a setback of 650mm for the swimming pool coping. The amended plans now proposed a minimum setback of 1000mm from the property boundary;

11. A glass balustrade on top of the internal planter-box wall (as described above), to a height of 1.2m. Previously not proposed, rather being a balustrade at the edge of the garage roof trafficable area;

12. An obscure glass privacy screen along the length of south-eastern coping of the swimming pool, to a height of 1.65m. Previously proposed as a 1.2m high glass pool fence;

13. Swimming pool sub-floor void for storage of swimming pool chemicals and maintenance of pool pump and filter. Previously proposed as fill; and

14. The Acoustic Consultant letter of advice provided with the amended plans by the Applicant which indicates minimal to no additional unreasonable acoustic privacy impact on adjoining land as a result of the use of the proposed development.

15. The Applicant tendered amended plans Revision F to the Court (Exhibit A).

16. At the request of the Applicant, and the agreement of the Respondent, I granted leave for the DA to be amended to rely upon the final drawings Revision F prepared by Algorry Zappia & Associates dated May 2022 and tendered as Exhibit A.

The site and its context

Site Description

11. The site is located at 9 Seabrook Avenue, Russell Lea and is legally described as Lot 29 DP 10862.

12. The site has an area of 442.6m2 and is rectangular in shape. The site falls approximately 3.5m from the northern boundary down to the southern corner.

13. The site has a dual frontage with the primary frontage to Seabrook Avenue and secondary frontage to Alison Street. On the Seabrook Avenue frontage there is landscaping which fronts a two storey dwelling with a modern façade. The rear of the dwelling is three storeys with an attached 4 car garage that extends to the rear boundary and a 2.5m high masonry fence.

14. What is noteworthy about the site and the neighbouring sites in Seabrook Avenue is the potential for elevated views to be achieved from the rear of these dwellings towards Iron Cove. The subject dwelling and its neighbours have generally been designed with the main living spaces located to the rear of the dwellings to capture this view. The downside is that they also capture a clear view of their neighbours’ rear yards and private open space areas.

Surrounding Locality

15. The existing development is located at the rear of the site adjoining Alison Street which is characterised as a rear lane for properties fronting Seabrook Avenue and Henley Marine Drive. The lane contains garages and high rear fences and walls.

16. There are four pools on properties on the southern side of Seabrook Avenue (numbers 1, 5, 7 and 13). All of those pools are inground and are not elevated.

17. On the northern (Seabrook) side of Alison Street there are four garages on the boundary, and none have a trafficable roof. There is one garage with a trafficable roof at 19 Seabrook Avenue, but it is setback from the rear boundary and serves as an elevated deck. On the southern (Henley Marine Drive) side of Alison Street there are numerous garages on the boundary, none of which have trafficable roofs.

18. The Applicant’s outline of submissions at paragraph 5(iv)-(v) describes the particular characteristics of the site and its locality as follows:

19. “Alison Street has no streetscape presence, by that it is meant that it is dominated by brick and masonry garages, with no setbacks to the lane and no defined pedestrian footpath; and

20. “As is characteristic of numerous properties in Russell Lea, the land is on a steeply sloping site, with the land falling toward the direction of Henley Marine Drive and the bay. The extent of slope is clearly evidenced by the fact that one enters the land at Seabrook Avenue (being the primary frontage and street address) and enter the house at its ground level, yet it is the lower ground level of the house which is at grade with Alison Street, representing a fall from Seabrook Avenue to Alison Street of at least one storey.”

Statutory Controls

Canada Bay Local Environmental Plan 2013

19. The Canada Bay Local Environmental Plan 2013 (the LEP) is the principal environmental planning instrument applying to the site.

20. The site is located within Zone R2 Low Density Residential pursuant to cl 2.2 of the LEP.

21. The proposed development is relating to works ancillary to a dwelling house and is permissible with consent pursuant to cl 2.3 of the LEP.

22. Other relevant clauses of the LEP include:

23. Clause 1.2 outlines the aims of the LEP;

24. Clause 2.7 states that the demolition of a building or work may be carried out only with development consent;

25. Clause 4.3 - Height of Buildings (HoB), cl 4.4 - Floor Space Ratio (FSR) and cl 6.2 - Earthworks apply to the proposed development.

26. Pursuant to cl 4.3 of the LEP the height limit for the site is 8.5m. The Applicant advises that the maximum height of the proposal is approximately 4.2 metres for the proposed new swimming pool and its pool fencing and is consequently fully compliant with the height of buildings development standard.

27. Pursuant to cl 4.4 the maximum FSR currently applying to the site is 0.5:1. (The Respondent advised that the existing dwelling on the site was approved with an FSR of 0.55:1, which was compliant at the time). There was an issue raised by the Respondent that the proposed development may not comply with the FSR provisions of the LEP. This matter was addressed by the town planning experts in their Joint Expert Report and is discussed further under paras [45-49] below.

City of Canada Bay Development Control Plan 2017

25. The relevant controls in the City of Canada Bay Development Control Plan (the DCP) to be applied to the proposed development as stated by the Respondent are:

26. Part B – General Controls; and

27. Part E – Single Dwellings, Semi-Detached Dwellings, Dual Occupancies and Secondary Dwellings, in particular as identified by the Respondent of being of key importance:

“Control E3.8 Visual and acoustic privacy - C11 (use of rooftops of building and garages) which states “No trafficable outdoor spaces are permitted on the uppermost rooftop of a building or on garage roofs, such as roof decks, patios, gardens and the like, however; Outdoor roof space may be considered for buildings on steeply sloping sites where this is the dominant characteristic in the immediate vicinity as demonstrated by the Streetscape Character Analysis and there are no noise, privacy or amenity issues.”

26. The view put forward in the Respondent’s submission (at para 15) is that the exemption on DCP control E3.8C11 has three elements to be assessed in any proposed development:

27. A steeply sloping site;

28. Which is the dominant characteristic in the immediate vicinity as demonstrated by a Streetscape Character Analysis; and

29. No noise, privacy or amenity issues.

30. The application of this exemption in DCP control E3.8C11 to the proposed development is discussed in para [32] below.

31. The Respondent also referred to DCP control E5.2C18 which permits pools to be located 500mm above existing ground level and pointed out that the proposed pool would be “excessively elevated” 2.99m above the existing ground level of the site.

Expert Evidence

29. The Court was assisted by expert evidence in the following discipline:

30. Planning:

(a) Mr Ivan Kokotovic for the Applicant; and (b) Mr Anselm McManus for the Respondent.

30. The Joint Report of the planning experts (the Joint Expert report) examined the amended set of plans (Revision F), which now form the plans for which the Applicant is seeking approval.

31. The town planning experts attended the hearing and were cross-examined on their evidence. The Joint Expert Report dated 8 October 2024 (Exhibit 2 filed 4 November 2024, as tendered by the Respondent) highlighted the differing views of the town planning experts relating to the contentions discussed below.

32. The Applicant included in this Joint Expert Report a letter dated 8 October 2024 from Renzo Tonin & Associates (Acoustics expert) providing an acoustic opinion regarding placement of the proposed pool at the rear of the existing dwelling, along with extension of the existing terrace. The Respondent had not engaged an acoustic expert to respond to this evidence, stating in the Joint Expert Report that Council had received the Applicant’s acoustic report on the last day before the submission of the Joint Expert Report to the Court (8 October 2024).

33. The Respondent objected to the acoustic evidence provided by Renzo Tonin & Associates being included in the Joint Expert Report. However, the Respondent also noted that the Mr McManus does address acoustic impacts throughout the Joint Expert Report.

34. On the key contentions identified by the parties and listed below, there were significant points of disagreement between the planning experts. These points of difference are discussed in paras [35] – [55] below.

Contentions relating to the Proposed Development

Visual and acoustic privacy

35. The Respondent referred to the exemption that could be invoked through DCP control E3.8C11 and submitted that:

36. The site is not steeply sloping as stated by Mr Kokotovic. It has a fall from front to rear of about 3.4m over a length of 36.575m3 which gives an average slope of 9%. That could be described as a sloping or moderately sloping site, but not a steeply sloping site. The DCP differentiates between the two;

37. The Applicant has not provided a Streetscape Character Analysis but if one had been prepared it would have shown how the site and other sites along the northwestern side of Alison Street have a moderate slope from front to rear which is not the dominant characteristic in the vicinity. The slope of those sites is generally camouflaged by existing development and landscaping; and

38. The elevated pool and its coping will provide an opportunity for “looking back” to adjacent dwellings from an elevated position which does not currently exist on the site or in the locality. The amended plans, by the introduction of a large privacy screen along the south western side of the garage roof terrace and the preservation of existing vegetative screening along the north eastern boundary (which was previously proposed for removal), are an acknowledgement of those privacy impacts.

39. In response to matters related to visual and acoustic privacy, the Applicant submitted that the site should be considered as steeply sloping and given that there is a level difference between the levels from Seabrook Avenue to Alison Street. The Applicant stated that the “DCP itself does not define what is said to be steeply sloping, but an extent of slope that results in occupants entering their property from ground floor level, at their primary frontage, then only having private open space contiguous to that ground floor living area at the rear, coinciding appropriately with the RL of top of roof of the garage is compelling in itself that the DCP was not seeking to exclude private open space as proposed by this application, given its particular circumstances and extent of slope”.

40. Further, the Applicant submitted that “any visual or acoustic privacy impact can be reasonably mitigated through standard measures as can be anticipated in residential zones, and as can be contextualised in the surrounding locality, as has been demonstrated by [the] amending plans”; and that “conventional mitigation measures have appropriately addressed both visual and privacy impacts”.

41. In the introduction to the Joint Expert Report, in it is stated that “The Acoustic Consultant letter of advice indicates minimal to no additional unreasonable acoustic privacy impact on adjoining land as a result of the use of the proposed development”. There was no expert evidence provided by the Respondent on the acoustic impacts of the proposed development. However, I considered that the following conclusions by Renzo Tonin & Associates provide a clear indication of the extent of any potential acoustic impacts of the proposal:

“(1) In terms of maintaining existing acoustic amenity, there would not be a significant difference in the noise emitted to neighbours from the private open space being used on grade at the rear of the property, or at the proposed level (i.e. sitting/standing on the roof of the garage);

(2) Acoustically, there would be no noticeable difference between noise emissions from use of private open space (including pool) at the natural ground level versus the proposed level;

(3) From an acoustic perspective, there is no significant difference between noise emissions from the use of a terrace on the roof of a garage versus a similarly placed terrace at natural ground level. This is particularly so when the noise receivers are in an elevated location, which is the case at this site; and

(4) In respect of acoustic privacy, given the number of overlooking receivers at different heights, angles and offsets, the rear yards of the site and neighbouring receivers are not particularly private now. No significant degradation of acoustic privacy is anticipated by the proposal;

(5) There are multiple unscreened noise paths between the existing dwellings and private open spaces, including ones with swimming pools. There is no DCP or LEP control requiring acoustic screening between adjacent private open spaces, nor are there numerical limits for the use of same; and

(6) There is no significant loss of amenity from having a pool located in an elevated position. The proposed 1.2m high glazed screen gives 8dB more barrier affect than a 1.8m boundary fence would for adjacent pools on grade or within 500mm.”

Bulk and Scale

39. The Contention relating to bulk and scale is that the proposed development has an excessive bulk and scale, and in particular the Respondent contends that:

40. The proposal is contrary to DCP Control E4.5 C2 which requires development to have an acceptable bulk and relative mass; and

41. The bulk and relative mass is excessive having regard to the proposed side setbacks. The proposal requires excessive fill which creates an unacceptable massing to the rear boundary. The relative height of the proposal will result in overlooking and reduced aural and visual privacy from the new terrace and the pool coping to adjoining properties.

42. The Respondent stated that the proposed development would be the tallest structure on the northwestern side of Alison Street and would extend for almost the entire width of the lot, and “would stand out in stark contrast the rest of the streetscape of Alison Street as a bulky and incongruous element, not in keeping with the existing or desired future streetscape as reflected in the DCP control”.

43. In the Joint Expert Report, Mr Kokotovic stated that “t**he height of the proposed swimming pool coping and garage rooftop terrace/garden, are at relative levels from which a raised rear patio exists on-site and affords unscreened views into adjoining land private open space.”

44. The Applicant stated that “in general terms the existing bulk and scale of structure evident from adjoining land is proposed to be retained. The applicant’s expert [Mr Koktovic] identifies that there is some lightweight screening but also the introduction of additional areas of landscaping, some of which will be visible from adjoining properties and Alison Street. There will also be some additional wall structure proposed along the rear boundary, which will be consistent with the height of the existing garage structure. The applicant’s expert [Mr Koktovic] identifies that the proposed setbacks are reasonable and compliant with the councils’ controls, indeed being more generous than the council controls, with the pool being a minimum of 1 metre from any adjoining property and with the existing garage structure maintaining its setback”.

45. The town planning experts disagreed about importance of Alison Street. Mr Koktovic was of the view that Alison Street has no streetscape presence, being effectively a service road with no defined footpath. Mr McManus (for the Respondent) submitted that “every street has a streetscape irrespective of its nature” and identified the structures abutting Alison Street as being generally single storey garages without any structure, landscaping or use above them, and fences of a height to the garages. Mr McManus concluded that “the proposal would stand out in stark contrast the rest of the streetscape of Alison Street as a bulky and incongruous element, not in keeping with the existing or desired future streetscape as reflected in the DCP controls”.

46. In this instance, I agree with Mr Koktovic’s assessment. Alison Street does primarily function as a service road to the properties on Seabrook Avenue (to the north-west) and Henley Marine Drive (to the south-east), with a streetscape presence to match this function. Some additional greening of the street is occurring with newer redevelopment, which is primarily decorative. No substantial landscaping or tree planting can be accommodated in Alison street, which will continue to function primarily as an access to garages of properties in Seabrook Avenue and Henley Marine Drive (refer to Figure 1 below).

Figure 1: “Rear Boundaries along Alison Street service road” from Joint Report of Planning Experts

Landscape Area

45. The Respondent in its submission stated that the proposed development would reduce the landscape area to 18.8% of the site contrary to the DCP control E4.6C4 which requires single dwellings to have 35% of the site area as landscape area. The area to the southwest of the garage is currently a landscaped area with plantings which are able to be viewed from Alison Street. It was submitted that the proposed development would remove the sole area of the deep soil landscaping which remains at the rear of the site following the carrying out of unauthorised works (such works subsequently being allowed to remain following the issuing of a building information certificate in 2017).

46. Mr Koktovic submitted in the Joint Expert Report that the proposed development would result in 18.8% of the site being landscaped; and that there is no deep-soil area in the rear yard existing on-site, whereas the proposed development will add 5.27sqm of deep soil area, as well as 36.61sqm of landscaping on top of the garage roof. This landscaping is disputed by the Respondent as not being landscaping because it is located on the roof of the garage.

47. I consider that the proposed development will provide for an improvement in the landscaping on the site, noting that the purpose of this landscaping is to provide screening and green space rather than attempting to achieve more deep soil areas in the rear open space area of the site. I note that significant plantings in the rear open space areas of the site (and on adjoining properties) would be unlikely to be achieved given the views currently enjoyed to the bay across these areas.

Swimming pool

48. The Respondent contended that the pool would be excessively elevated 2.99m above existing ground level contrary to Control E5.2C18 of the DCP. The DCP permits pools to be located up to 500mm above existing ground level. In the original proposal, the swimming pool coping was setback 760mm from the property boundary, contrary to DCP E5.2 Control C17 which requires the pool coping to be a minimum of 800mm from the property boundary

49. The Applicant advised that at the time that the Respondent’s contentions were drafted, the architectural plans provided for a setback of 650mm for the swimming pool coping. The amended plans now proposed a minimum setback of 1000mm from the property boundary.

50. The additional swimming pool coping setback achieves a separation of the pool from the adjoining property boundary which satisfies the DCP requirement.

Topography

51. The Respondent submitted that the amended proposal would remove the fill which was originally proposed beneath the pool (which was the basis of the topography contention). The removal of the fill, however, creates a void in that area.

52. The Respondent’s view is:

53. The parts of the void which have a height of 1.4m above the floor (which is shown as “existing concrete slab to remain”) is calculable as gross floor area as they do not fall within any of the exceptions in the definition of “gross floor area” in the dictionary to the LEP; and

54. The existing dwelling was approved with a FSR of 0.55:1 which was compliant at the time. No calculations of gross floor area or FSR have been provided for the amended plans. Any increase in the gross floor area will cause a breach of the FSR control of 0.5:1 in cl 4.4 of the LEP. No cl 4.6 request to vary that control has been lodged. The development application may not be approved in the absence of a satisfactory cl 4.6 request.

55. Mr Koktovic states in the Joint Expert Report that the amended plans for the proposed development now include a void which is indicated on the amended plans for pool pump and filter location and maintenance. As such, Mr Koktovic submits that it does not contribute any gross floor area on the site, as per definition as a plant room exclusively for mechanical services.

56. The Dictionary in the LEP excludes from the calculation of gross floor area “plant rooms … and other areas used exclusively for mechanical services or ducting” on each floor of a building measured at a height of 1.4m above the floor.

57. Based on this definition, I do not agree with the Respondent that the FSR in the excavated void area should be counted as floor space. It is stated by the Applicant to be used for pool pump and filter location and maintenance. Such a notation should be added to the amended plans to make it clear that this is the purpose of the excavated void area, and I have included this requirement in the conditions of consent.

Jurisdictional Requirements

56. The proposal complies with all numerical controls in the LEP and is consistent with the aims of the LEP set out at cl 1.2, and the R2 Low Density Residential zone objectives, and complies with cll 4.3 (Height of Buildings), 4.4 (Floor Space Ratio) and 6.2 (Earthworks).

57. I consider there to be sufficient grounds for me to apply the provisions of the DCP in a flexible manner as permitted by s 4.15(3A) of the EPA Act and to grant consent.

58. The site is within the Sydney Harbour Catchment Area pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, requiring the proposed development to have a neutral or beneficial effect on water quality. Condition 5 of the conditions of consent requires Erosion and Sedimentation controls to be provided and an approved Soil and Water Management Plan.

59. State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 applies to the site. The site is already fully developed and has been used historically for residential purposes. No additional areas of the site are to be excavated to accommodate the proposed development.

Conditions of Consent

60. The Respondent provided draft Conditions of Consent at the conclusion of the hearing. The Applicant subsequently provided written comments on the draft, suggesting some changes to Condition 2(a) and 2(b), and deletion of Condition 2(c) and Condition 21. These changes and deletions relate to privacy or landscaping conditions.

61. I am of the view that the conditions should be retained as drafted by the Respondent, primarily in order to ensure that existing and proposed landscaping is protected and maintained.

62. I have also inserted additional wording in Condition 2(d) to ensure that the void area under the swimming pool is identified for pool maintenance activities and storage.

Conclusion

63. The Respondent has submitted that the mitigations proposed by the Applicant in the amended plans do not sufficiently reduce impacts to acceptable levels. However, I consider that the mitigation measures proposed by the Applicant in the amended plans do make the proposed development acceptable in this location.

64. The trade-off for taking advantage of the extensive and elevated bay views available from the living areas and open space areas at the rear of the properties in Seabrook Avenue is a choice to not screen out the private open space areas of adjoining and nearby neighbours (from both views in and out). I consider that it is unreasonable to restrict the proposed enhancements of the highly constrained private open space area at the rear of the subject property, with the mitigations to the proposed development to be put in place to minimise the impacts on adjoining and nearby properties.

65. Having considered the submissions of the parties and the material presented in the most recent Joint Expert Report, the town planning experts’ evidence to the Court, and in the final submissions made by both parties, I have reached the conclusion that the DA as amended (with the mitigating features proposed by the Applicant and outlined at para [7] above) should be granted.

66. For the above reasons the appeal is upheld.

Orders

67. The Court orders:

68. The Applicant is granted leave to amend the development application to rely upon the final drawings (Revision F) prepared by Algorry Zappia & Associates and tendered as Exhibit A.

69. The appeal is upheld.

70. Development application DA2023/0189 as amended for the erection of an above ground swimming pool and alterations to the existing garage to create a trafficable roof as well as alterations to the rear fence on land legally described as Lot 29 DP 10862 at 9 Seabrook Avenue, Russell Lea is determined by the grant of consent, subject to conditions of consent at Annexure A.

71. All Exhibits are returned, except for Exhibits 2, A, and B.

G Kullen

Acting Commissioner of the Court

Annexure A (267452, pdf)

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