Vlahos & Anor v Willoughby City Council

Land and Environment Court (NSW)|2013-04-18|Before: Mr J

Ms K Arthur King & Wood Mallesons (Respondent) File Number(s): 10073 of 2013

Judgment 1Mr and Mrs Vlahous have consent for the construction of a two storey dwelling house and swimming pool at No. 13 Weetawaa Road, Northbridge. The dwelling house has been completed however, does not accord to the plans and consent conditions imposed by Willoughby Council under Development Consent DA-2010/245. Vlahous sought modification of the consent to reflect the dwelling as built and to delete consent conditions that required the retention of a tree within the rear yard of the property. The council modified the consent to reflect the changes made to the building however imposed conditions that require replacement tree planting and the construction of a privacy screen to the upper floor bedroom balcony. 2Vlahos are appealing the conditions imposed by the council in relation to trees and the screen. 3The appeal commenced under the provisions of s34AA of the Land and Environment Court Act 1979 (LECAct) and, despite agreement between the arborists on tree type, the parties did not resolve all of the contentions and the conference was terminated. The parties agreed that the matters discussed during the conciliation conference and the evidence provided during the site view could be used as evidence in the hearing that was held in accordance with the provisions of s34AA(2)(b)(i) of the LECAct.

Background 4Willoughby Council granted development consent 2010/245 on 9 August 2010 for demolition and construction of a new two storey dwelling and swimming pool at 13 Weetawaa Road, Northbridge (site). The consent issued required, amongst others, the development to be constructed in accordance with the approved plans and that a large Allocasuarina cunninghamiana (casuarina) tree adjacent to the rear boundary be retained and protected. The applicant had proposed removal of the tree and specific conditions, condition 4(a) and 23, were imposed by the council requiring its retention. 5Despite these two conditions, the tree has been removed. The council has taken separate action in this Court in relation to that event. 6The dwelling house currently erected on the site does not accord with the plans approved under the consent. In the assessment report prepared in response to the modification application lodged by Vlahos seeking modification of the consent to reflect the as-built work and to reflect the removal of the tree, at least 29 variations were identified as having been made to the building. 7The council has determined the modification application and approved the changes sought to the plans for the dwelling house subject to the imposition of additional conditions that require replacement tree planting and the provision of translucent glass privacy panels/balustrades to the rear first floor bedroom balcony. In addition, resolutions were passed to address the issues of non-compliance with consent conditions, private certification of works and tree removal. The latter resolutions are not the subject of these proceedings. 8The conditions in dispute are conditions 3 and 4 as set out in the Schedule to the council's Notice of Determination to Modify a Consent dated 8 January 2013. These read as follows: 3. That translucent glass privacy panels/balustrades are required to be installed along the rear first floor bedroom/balcony level to a height of 1.74m above the level of the balcony and of a design acceptable to Council prior to the release of any Occupation Certificate. Details to be submitted to Council and approved prior to work taking place (Reason: Preserve Amenity). 4. The owner or applicant is required to plant two semi-mature evergreen trees having minimum pot sizes of not less than 1000 litres within the rear yard of the subject site. The trees are required to grow to mature height of 16m and together are to have a canopy spread of not less than 16m. The two trees are to be planted to comply with the performance requirement they are to be positioned 3m from the rear (Eastern) boundary, 3m from the Southern and 9m from the Northern boundary and at approximately 6m apart. Performance Requirement: The replacement trees are required to afford the same amenity for the neighbouring properties as was afforded by the mature Casuarina tree in full foliage and are to be maintained and protected during their life cycle. Details of the trees are to be submitted and approved by Council prior to planting. The replacement trees are to be planted on site PRIOR TO THE ISSUE OF ANY OCCUPATION CERTIFICATE. A notation will also be included on any future Section 149(5) Certificate to the effect: "Attention is drawn to Condition 4 of Devlopment Consent No. 2010/245/A in respect to the maintenance and protection of trees." (Reason: Visual Amenity). 9The council refused consent to the deletion of conditions 4(a) and 23.Those are the conditions that require the retention and protection of the casuarina tree.

The issues 10The issues in the case are whether the privacy screen and replacement tree planting is required. The applicant has conceded that one tree should be planted and had offered to treat the existing 1m high balcony balustrade with translucent glass. The issues that remain in dispute in relation to the replacement planting are whether one or two trees should be planted, the location of any replacement planting and the size of the trees when planted. The council has also sought to impose additional conditions that require continued maintenance of the trees and the registration of a Positive Covenant on the title of the land in relation to the retention and maintenance of the trees. 11The conditions sought to be imposed by the council now vary from those imposed when the modification was determined and read as follows: 44B. Privacy Screen Prior to the issue of the Occupation Certificate a translucent glass privacy screen is to be erected along the eastern edge of the rear upper level balcony to a height of 1.6 metres above the first floor finished floor level. (Reason: Privacy) 44C. Replacement Planting Prior to the issue of the Occupation Certificate, two (2) super-advanced specimens of Waterhousea floribunda (Weeping Lilly Pilly) are to be planted in the rear garden of 13 Weetawaa Road Northbridge at the following locations: 2 metres from the eastern boundary and 3 metres from the southern boundary; and 2 metres from the eastern boundary and 9 metres from the northern boundary. The two (2) Weeping Lilly Pilly are to be 400 litre container stock grown in accordance with Nat Spec guidelines and are to comply with the following requirements: Trees to be supplied are to have foliage size, texture and colour at time of delivery consistent with the foliage size, texture and colour shown in a healthy specimen of Waterhousea floribunda (Weeping Lilly Pilly). Extension growth of supplied trees is to be consistent with that exhibited in vigorous specimens of the Weeping Lilly Pilly. Supplied trees are to exhibit foliage free of attack by pests of diseases. For native species with a known history of attack by pests the evidence of past attack is to be less than 15% of foliage of any individual tree. Trees are to be supplied free of injury. Trees are to be self-supporting at time of delivery. Tree calliper at any given point on the stem is to be greater than any higher point on the stem. All pruning wounds to be clean cut and to the branch collar. All pruning cuts to be less than 50% of the calliper immediately above the pruning point. Trees supplied are to have a balanced crown symmetry (less than 20% difference in canopy balance). Branch diameter - branch diameter is to be ≤ one half of the calliper immediately above the branch junction. Supply trees that are free of included bark junctions between stems and branches and between codominant stems. Trees supplied are located in the centre of the rootball with less than 10% variation of distance from stem to edge of rootball. Trees supplied are to be 400lt stock with a size index of 330 to 427. (Reason: Protection of Privacy and Amenity) 44D. Positive Covenant Prior to the issue of the Occupation Certificate, the registered proprietor shall at their own cost and expense cause a Positive Covenant (under the provisions of Section 88E of the Conveyancing Act 1919) to be registered over all of Lot 12 in DP 10318 burdening the property title to ensure the on-going maintenance and protection of the two Weeping Lilly Pilly for the 20 year period specified in Condition 57. The Positive Covenant is also to include provision for the replacement of the two Weeping Lilly Pilly in the event of either tree dying during the 20 year period specified in Condition 57.Willoughby City Council is to be nominated in the instrument as the only party authorised to release, vary or modify the instrument. All costs associated with the Positive Covenant, including any legal costs payable by Willoughby City Council, are to be paid by the registered proprietor. (Reason: Ensure compliance, protection of privacy and amenity) 57. Maintenance and protection of replacement trees The two (2) Weeping Lilly Pilly required by Condition 44C are to be maintained in good health and vigour for a period of not less than 20 years. Any pests or diseases which affect the trees during this time are to be treated in accordance with prevailing arboricultural standards. In the event of either tree (or replacement specimen) dying during the above mentioned 20 years the tree that has died is to be replaced with a specimen of Weeping Lilly Pilly that meets the requirements specified in condition 44B. Following the expiration of the 20 year period the trees may only be pruned or removed in accordance with any prevailing consent requirements at that time (e.g. the provisions of a 'tree preservation order' or similar control) (Reason: Ensure compliance, protection of privacy and amenity) 12The changes made involve a reduction in height and location of the privacy screen to the rear, upper floor bedroom balcony so that the screen is reduced in height to 1.6m and is only placed on the eastern side of the balcony. That side faces the rear property boundary. Proposed condition 44C provides specific tree species, condition, size and location and 44D requires registration of a positive covenant on the title of the land to ensure trees are maintained for a 20 year period. 13The applicant agrees, following the joint conference between the expert arborists and the conciliation conference, that an appropriate species would be Waterhousea floribunda however says only one tree should be planted and that it should be 300 litre container stock. It maintains its position that a privacy screen is not required.

The site and its context 14The site is located within a low density residential area that is undergoing transition with older, single storey houses being replaced by larger two storey contemporary dwellings. Vegetation in the form of large, well established trees within the street and on private land is an obvious feature of the locality and contributes to its character.

The planning controls 15At the time consent was granted, the site was zoned Residential 2(a) under Willoughby Local Environmental Plan 1995. Willoughby Local Environmental Plan 2012 (LEP) was made on 21 December 2012 and the site is now zoned R2 Low Density Residential under that plan. 16Willoughby Development Control Plan (DCP) applies to the site and, for the issues in contention, Part D1 - Dwelling houses, Dual Occupancies and Secondary Dwellings, is relevant. Privacy provisions are contained in section D.1.11 and has one objective that is to: To protect the visual and acoustic privacy of residents and residents of adjoining properties in relation to the use of private open space areas. 17Performance criteria are provided as follows: 1. The privacy needs of both residents and neighbours should be considered in the siting of dwellings and the location of windows and private open spaces. 2. Council acknowledges that complete protection of privacy between properties may not always be possible. Developers will be required to provide a reasonable level of privacy to the residents of existing dwellings. It may be necessary for supplementary privacy protection to be undertaken by existing residents to secure their own required level of privacy. 3. A greater emphasis will be placed on maintaining visual privacy to living areas and private open spaces than for non living rooms including bedrooms, stairways and bathrooms. Impact on privacy by overlooking from bedroom windows is not as significant a concern, as is overlooking from living areas or other intensely used areas. 4 Effective siting, layout and location of windows and balconies to avoid direct overlooking are preferred over the use of screening devices, high windowsills or translucent glazing. Where these are used they should be integrated into the building design and have minimal negative effect on the amenity of residents or neighbours. The privacy needs of both residents and neighbours can be achieved by: i) ensuring that windows and balconies, in particular to living areas, do not face directly onto windows and balconies to living areas or private open space of adjacent dwellings; ii) splaying location of windows to minimise direct views; iii) locating windows so as to not be directly opposite one another; iv) using level changes to minimise direct views; v) use of increased windowsill heights or translucent glazing; vi) avoiding use of elevated terraces or decks that overlook adjoining property; vii) use of light weight privacy screening or dense landscaping; viii) increasing building setbacks from the boundary; ix) use of planter boxes on elevated terraces. 5. Dwellings close to high noise sources such as busy roads, railway lines and industry should be designed to locate noise sensitive rooms and secluded private open spaces away from noise sources and be protected by appropriate noise shielding techniques.

The evidence 18The hearing commenced on site and a view of the site, the views obtained from the balcony and, with the permission of the owner of a property to the south-east of the site (No. 14 Weetabilah Road), observation of the balcony from within the rear yard of that property. The owner of that property provided evidence by way of a telephone conference and provided further written submissions in addition to those that had been lodged with the council. 19The concerns raised by the objector related to the works being completed contrary to the original development consent, loss of the tree and associated amenity it had provided, bulk and scale of the building now the tree has been removed, overlooking of living areas and private open space including pool area from the upper floor, main bedroom window and adjoining balcony. 20Expert town planning evidence was heard from Mr B Daintry for the applicant and Ms K Drinan for the council. Mr P Castor (applicant) and Mr G Paroissien (respondent) provided arboricultural evidence. 21The planners agree that the acoustic privacy issues arising from the design of the balcony are reasonable in the context. There is no dispute that the balcony is approximately 13m from the rear (eastern) boundary and a further 11m separation from that boundary to the primary objector's house at No 14 Weetabilah Road (No 14). The usable width of the balcony was measured during the site view and was 970mm and its length is approximately 4m. 22Mr Daintry says that the 24m separation between the balcony and the living areas at No 14, a balcony of small proportions and off a bedroom, with windows that are likely to be screened by window furnishings to protect the privacy of the occupants of the bedroom, complies with the LEP and DCP objectives. He cites the privacy provisions within AMCORD and the Rules of Thumb contained within the Residential Flat Design Code (RFDC) and says that the setbacks provided far exceed the guidelines provided in those and also the 6m rear setback under the DCP and 8m minimum rear setback provided for in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPPECDC) however acknowledges these are not adopted in the DCP but says they provide guidance on how separation should be assessed to address privacy impacts. 23Mr Daintry also cites the planning principles contained in Meriton v Sydney City Council [2004] NSWLEC 313 and Super Studio v Waverley [2004] NSWLEC 91 as supporting his evidence that separation rather than landscaping is the main safeguard in protection of privacy. He says the requirement for a translucent, 1.6m or 1.75m privacy screen is undesirable and unnecessary and the perceived benefits do not justify the unacceptable internal amenity impacts upon the subject master bedroom. He describes the impacts as "benign". 24Ms Drinan says that the casuarina tree, now removed, mitigated privacy impacts to No 14 and that now there is no such protection in place, the location and design of the upper level balcony and fenestration of Bedroom 1 at the site allows direct and unreasonable overlooking into the rear yard and primary living areas of No 14, and the design of the balcony makes it the dominant feature of the rear elevation and has an overbearing appearance when viewed from within No 14. The erection of a 1m high translucent balustrade would not suitably address the privacy lost as a result of the removal of the tree and will enable views to the rear yard of No 14 and into their primary living areas from within Bedroom 1 and from a sitting and standing position on the balcony and that a 1.6m high privacy screen should be erected along the eastern edge of the upper level balcony to achieve the required privacy. 25Ms Drinan says the planning principles in Meriton and Super Studio do not support Mr Daintry's evidence because of the low density residential environment within which the site is located has a reasonable expectation that a dwelling and some of its open space area will remain private, that landscaping should not be relied on to protect against overlooking and therefore the privacy screen would be required. She advocates the replacement planting to reach the same mature height and provide the same level of screening as the removed casuarina to restore the outlook previously enjoyed by adjoining neighbours, in particular No 14, to reduce the visual impact of the development as viewed from No 14 and mitigate the overlooking impact. 26The arboricultural experts agree that a planting located 3m from the southern and 2m from the eastern boundaries of the site would be a good location to assist in providing landscape canopy between the first floor balcony and No 14, that the planting carried out within the site along its eastern boundary has the capacity of growth to 304m within 3-5 years and the existing boundary plantings within No 14 have similar growth capacity, with one species of tree within that property with the capacity to screen to 6-8m in 5-7 years. They also agree that replanting requirements should not rely on vegetation on adjoining properties, that the casuarina tree that has been removed was of considerable dimensions (around 14-16m in height with a canopy spread of 16-18m), that planting is required to replace the canopy that was lost when the tree was removed due to the moderate to high landscape significance and considerable landscape and amenity values to the site and adjoining properties that it provided. 27Mr Castor is of the view that one replacement planting, in a 200 litre container will be sufficient to provide for the loss of canopy when the tree was removed however Mr Paroissien believes 2 should be required and they should be 300 to 400 litre container size. They both agree that the planting of a Waterhouses floribundais (Weeping Lilly Pilly) is an appropriate evergreen species for the site and that it is capable of mature growth to 16m in height and spread, similar to the canopy of the tree that previously existed on the site. 28Mr Paroissien says that a 300-400 litre tree would be around 4-4.5m in height but would have a limited canopy spread and would be even smaller in a 200 litre container. For that reason he says planting 2 replacements will assist in replacing the canopy in a significantly faster timeframe, they should be 400 litre stock and that adequate access is available with the removal of gate furniture, to install such material. 29Mr Castor says the northern most planting required under proposed condition 44C will provide no screening of No 14 when viewed from the balcony, will impact on the potential use of the lawn space as the tree matures, that a 200 litre container can be easily installed and would be approximately 3.5m tall at planting and being smaller, is likely to establish quicker and can very often outgrow the larger container plantings in 1-2 growing seasons. 30The experts agree that the planting of two trees with the spacing specified in condition 44C would not allow for the trees to develop to their ultimate natural spread. Mr Castor said during their initial growth the impact would be minimal however as they grow the branches would merge and not intermingle. Similarly, an existing Brachychiton species in the property to the immediate east of the site will also impact on the ultimate canopy shape. For that reason, he says that having one tree would achieve a better natural form in the long term. Both experts agree that the life span of planting one or two trees would not alter as a result of the spacings specified. 31At the conclusion of the hearing, the council suggested that the privacy screen was only required until such time as the trees achieved particular performance criteria. They also conceded, that because the tree no longer exists, there is no reason that conditions 4(a) and 23 should not be deleted.

Conclusion and findings 32Having regard to the evidence and particularly the site view, I agree that the loss of the casuarina tree has resulted in adverse amenity impacts to all of the adjoining neighbouring properties and that there is a need to replace that loss as quickly as possible. Accordingly, I accept the evidence of Mr Paroissien that two trees, 400 litres and at least 3.8m in height should be planted in the locations recommended. 33The issue of the legality of the tree removal is not relevant to these proceedings. My decision must focus on the modification application as lodged. 34It is clear that the Environmental Planning and Assessment Act 1979 (the Act) contemplates the determination of a development application involving works that have been carried out in breach of that Act. Section 124 provides for that to occur. This is made clear by Jago J in Sahade v The Owners - Strata plan No. 62022 & Ors [2006] NSWLEC 770 where her Honour states: 10 In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined. 35The path described in Sahade is similar to the path the applicant has taken in these proceedings, however has lodged an application to modify the consent rather than a fresh development application. I do not consider that this distinguishes the decision of Her Honour. I also have regard to the fact that the council has also commenced proceedings under Class 5 of the LECAct. In this case, it is important to consider the merits of the application and not consider the legal implications of that work having been undertaken. That is a matter for another day and is made clear by Bignold J in Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276 where his Honour at [115 to 117] states: 115. The contrasting decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, (decided 20 years later) was next noted, with citation of an extended passage from the judgment of King CJ at 323-324. I do not here repeat that passage, it perhaps being sufficient to extract from it the following three brief sentences (which encapsulate the relevant line of reasoning): Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions. 116. In Ireland I noted (at par 87) that the approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing (i) planning appeals, (ii) building appeals, (iii) demolition order appeals and (iv) building certificate appeals (being a comprehensive jurisdiction that was never vested in the former Land and Valuation Court, and its absence may go far in explaining the decision in Ellmoos). 117. I adhere to the views expressed in Ireland, noting that I did not understand the Council in the present proceedings to question those views. 36I am not satisfied, from the available evidence that the casuarina tree would have provided the level of privacy protection to No 14 said to be provided by the proposed privacy screen. It is apparent that any protection would be filtered views at best. The same effect can be obtained through replacement planting. The council approved the upper floor balcony in the approximate location that it now exists. No privacy screens were considered necessary to protect the overlooking from that balcony to the two private open space areas of the immediately adjoining properties on either side of the site at the time the application was determined. Those areas are in much closer proximity than the open space areas within No 14. Ms Drinan says that the privacy concerns are primarily in relation to the views into No 14 as those views are direct views whereas the views to the adjoining properties are oblique views and are not available from within the bedroom. I do not agree, the site view confirms that both yards can be observed from the balcony. 37Similarly, the council did not require any privacy screen to be installed on the upper floor balcony to the rear of the property adjoining the site to its north. That balcony would also overlook premises to the rear and would have similar views into the yards of adjoining properties as that available from the subject balcony including the subject site. I am satisfied that the 24m separation distance, when considered with the fact that the view is obtained from a small balcony off a bedroom, is adequate provision in relation to privacy and satisfies the objectives and performance criteria contained within the LEP and DCP and reflects similar decisions made by the council for similar developments adjacent to the site. A separation distance of 24m far exceeds accepted good planning practice for development within low density residential areas. 38For that reason, I do not consider that the provision of a privacy screen in these circumstances is necessary, acknowledging that there will be some overlooking to adjoining properties including No 14 however those impacts are from a balcony that complies with the council's planning controls, that balcony is narrow and off a bedroom as acknowledged in the DCP as being not as significant a concern. The planting required as detailed in [32] will mitigate those impacts and is an important element of my findings, particularly in terms of amenity that was available within the locality. 39Mr Johnson, for the council, submits that it is necessary to impose a restriction to user on the title to ensure the trees are protected and maintained during the life of the development. That is because the trees could be removed under the provisions of SEPPECDC in the event that a complying development application for a shed or similar outbuilding including tree removal was proposed within the area in which the trees are required. He makes reference to the need for the applicant to prepare other similar restriction-to-user provisions on title in relation to the rainwater re-use system (condition 30) so says the matter can be dealt with at the same time and therefore not result in any additional imposition or costs. 40Mr Johnson acknowledges that in the ordinary course of imposing planning controls, a positive covenant would not be necessary to protect a tree from removal however, what is proposed here is a positive covenant to maintain the trees and replace them if they die, which requires positive action from the owner from time to time. This does not duplicate the restrictions on removal of a tree which are commonly known and understood by the public. It is an obligation not often imposed on a single domestic dwelling and requires positive steps of dealing with pests for example. 41Dr Berverling, for the applicant, says the restriction is unnecessary and contrary to the practice of the Court in a number of cases cited including MacDonald v Mosman Municipal Council [1999] NSWLEC 215. He submits the consent conditions are sufficient to ensure the retention of the tree, particularly if condition 44C was amended to require the maintenance and retention of the tree for the life of the development. 42I distinguish this case from the guidance of Lloyd C in MacDonald and agree, that under other environmental planning instruments, there is a real possibility that the trees required could be removed without the need for development consent from the council. Accordingly, the condition for the restriction to user should be imposed to ensure the development satisfies the objectives of the zone, in particular to maintain and enhance residential amenity, including.....landscape quality. 43The Orders of the Court are: (1)The appeal is upheld in part. (2)Development Consent DA-2010/245 is modified by amending the conditions in accordance with Annexure A. (3)The exhibits, other than Exhibits A, B, C and 2, can be returned. Sue Morris Commissioner of the Court ANNEXURE A 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. Decision last updated: 22 April 2013

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