Whitfield & McLenaghan v Northern Beaches Council

(4) Amend the Condition of Consent relating to stormwater. Condition 11

1. The issue raised by the Applicants in relation to condition 11 - On-site Stormwater Detention Details was resolved at the on-site hearing with Council agreeing to a slightly different form of words which the Applicant accepted after some discussion. The amended Condition 11 will be incorporated into the final conditions of consent.
2. The remaining issues in the Appeal largely come down to Council's privacy concerns with respect to neighbouring properties at 77 Riverview Rd to the south and 81 Riverview Rd to the north, in relation to the approved proposed rear new decks and extensions on the ground floor and first floor of the existing dwelling house on the Site. The landscaping condition, No 10 dot point 5, that the Applicants seek to delete is also largely concerned with privacy screening for the residential property to the south at 77 Riverview Rd, Avalon Beach. Council contends that compliance with the Pittwater 21 Development Control Plan (Pittwater 21 DCP), C1.5 - Visual Privacy - is required. The Proceedings:
3. The Appeal was allocated to a s 34AA conference held on site and back at Court the same day. I presided over the conciliation conference. Discussions ensued, the amendment to condition 11 was agreed, but a s 34 agreement was not reached. The Applicants were granted a one week adjournment of the s34AA conciliation conference to consider if they wanted to amend their application to meet the Council's concerns about cl C1.5 of the Pittwater 21 DCP. However after the one week adjournment at the resumed s 34AA conference, the Applicants had not amended their application, and a s 34 agreement was not reached. The conciliation conference was terminated and the Court proceeded to a hearing. The parties were given leave to file submissions which were duly provided to the Court on 21 august 2023. The Applicants did not formally file their folder of submissions as they did not appear to understand that as the s 34AA had been terminated the Appeal was then in hearing mode and the 'without prejudice' veil was lifted. However the Applicants had included with their submissions some amended plans. At my request the Court arranged the Appeal to be listed for further mention on 14 November to deal with the amended plans in open Court.
4. The Amended Plans cut back the approved extension of the new first floor rear deck on the north side by 2.5m and on the south side by a distance of 600mm. The amended plans prepared by JJ Drafting Australia P/L are described as follows (Amended Plans):

• Site Analysis Plan drawing, DA.01, Rev: F - Revise Drawings Boundary Control
• Proposed West Elevation Sheet 1, DA.11, Rev: F - Revise Drawings Boundary Control

1.  At the resumed hearing on 14 November the Applicants when questioned stated they did not want to file the Amended Plans at this stage but wanted the plans treated as a 'fall back' position. I understood this to mean as an alternative to installing privacy screens should the Court be minded to find the requirement for privacy screens as per the approved condition 10 remain. I proceeded to determine the matter on this basis as will be apparent. Given the Applicants did not seek to formally 'file' the plans the Council could not really object to them being before the Court which in my opinion was the appropriate position to take. If Council had objected to a grant of leave to rely on the Amended Plans I would have ruled against it for reasons that will become apparent.
   

The Development Consent & Condition 10:

1. On 22 March 2022 the Council granted consent to DA 2022/0409 for alterations and additions to an existing dwelling house and construction of a single carport on the Site. The proposed development includes new decks at the ground and first floor levels. Objections from 77 and 81 Riverview Road raised concern about the decks resulting in unreasonable privacy impacts. The consent was subsequently issued subject to condition 10 which states as follows:

"10. Amendments to the approved Plans The following amendments are to be made to the approved plans:

• No approval is granted for side boundary fencing under this consent, as this is a matter for the relevant property owners under the Dividing Fences Act. The architectural plans are to be amended to remove reference to the proposed boundary fencing, including the along the southern boundary.
• The 1.65m high privacy screen on the northern elevation of the proposed ground floor is to be extended for the full width of the northern elevation of this deck.
• The 1.65m high privacy screen on the northern elevation of the proposed first floor plan is to be extended to a distance of 2.45m from the dining room. This will result in no screening for a length of 1.0m at the western end of the deck.
• A 1.65m high privacy screen is to be erected on the southern elevation of the proposed first floor plan off the master bedroom for a distance of 1.795m.
• A Landscape Plan shall include the following to provide supplementary privacy: 1. along the southern boundary for 5 metres, starting from the existing timber deck and to continue downslope in a westerly direction parallel to the boundary, 2. screen planting shall be installed at least 1 metre offset from the boundary and at 1 plant per lineal metre (with a total of 5 plants), 3. species shall be Waterhousea floribunda and be a suitable pot size so that plant height is at least 1.5 metres at installation. The selected planting is to be maintained at no less than 5 metres in height. Plants are to be installed in a garden bed prepared with suitable free draining soil mix and minimum 50mm depth of mulch. The privacy screens shall be of fixed panels or louver style construction (with a maximum spacing of 100mm and angled away from the adjoining premises), in materials that complement the design of the approved development. Details demonstrating compliance are to be submitted to the Certifier prior to the issue of the Construction Certificate. Reason: To ensure consistency with the relevant legislation under the Dividing Fences Act 1991 and to ensure development minimises unreasonable impacts upon surrounding land.": The Site & Locality:

1. The Site is zoned C4 - Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP). The Site is on the western side of Riverview Road and has a total approximate area of 1311m2.
2. The Site presently accommodates a two storey split level weatherboard dwelling. The natural slope falls across the Site at an average angle of 21 degrees. The Site has existing natural vegetation and introduced species of trees and shrubs surrounds it with lawn areas located to the front, rear and side of the dwelling.
3. The Site is mapped within the coastal environment area and the coastal use area under State Environmental Planning Policy (Resilience and Hazards) 2021 as seen in Figure 4 below.
4. Adjoining sites to the north, south, west and east are zoned C4 Environmental Living under the PLEP. The surrounding C4 properties consist of detached dwelling houses, typically 1-2 storeys in height.
5. The site is located within the Avalon Beach Locality as identified by the Pittwater 21 Development Control Plan (Pittwater 21 DCP).
6. An aerial image showing the Site with a blue border, and the surrounding properties is provided below.

Figure 2 - Aerial photograph of the Site and surrounding area (Source: SEA Northern Beaches Council) Statutory Planning Controls:

1. The legislation, environmental planning instruments, development control plans and policies that apply to the site and the development are set out in the Council's Statement of Facts and Contentions in Reply [Ex 4, para 14].
2. The central control underpinning Council's imposition of the conditions in dispute is cl C1.5 of the Pittwater 21 DCP, concerning Visual Privacy which states, relevantly, as follows: [diagrams not reproduced, emphasis added]. "C1.5 - Visual Privacy - Controls "Private open space areas including swimming pools and living rooms of proposed and any existing adjoining dwellings are to be protected from direct overlooking within 9 metres by building layout, landscaping, screening devices or greater spatial separation.. Elevated decks and pools, verandahs and balconies should incorporate privacy screens where necessary … Direct views of private open space or any habitable room window within 9m can be restricted by:

• vegetation/landscaping
• …
• …
• fixed translucent glazing in any part below 1.7 metres above floor level,
• solid translucent screens or perforated panels or trellises which have a maximum of 25% openings, and which are: • permanent and fixed; • made of durable materials; and
• designed and painted or coloured to blend in with the dwelling." Council's Contentions: (A) PARTS OF CONDITIONS PROPOSED TO BE DELETED Condition 10, dot point 4: Privacy Screen to Proposed deck on southern side of the First Floor.

1. "The Respondent contends that this condition should not be deleted, as it is necessary to maintain the reasonable amenity and privacy of the neighbouring property at 77 Riverview Road Avalon Beach. Particulars: 1. Condition 10 is consistent with the objectives of clause C1.5 Visual Privacy of the Pittwater 21 DCP. 2. The proposed deck will be located off the master bedroom. It will be increased in size and interlinked with the new deck off the main habitable parts of the dwelling (kitchen, living and dining rooms). It is considered given the increased use and the increased area of the deck that a privacy screen fitted to the southern edge of the deck for the length of the existing balcony will maintain reasonable amenity to the southern dwelling and principal private open space at 77 Riverview Road, Avalon Beach." Condition 10, dot point 5: Supplementary Privacy - Planting along the southern boundary of the site:
2. "The Respondent contends that this condition should not be deleted, as it is necessary to maintain the reasonable amenity and privacy of the neighbouring property at 77 Riverview Road Avalon Beach Particulars: 1. The proposed deck located off the master bedroom will be increased in size and interlinked with the new deck off the main habitable parts of the dwelling (kitchen, living and dining rooms). To supplement the partial privacy screen to the balcony on the first floor adjoining the master bedroom and linked to the larger deck off the kitchen, living and dining area, it is considered given the increased use and the increased area of the balcony/deck that planting along the southern boundary of the site will maintain reasonable amenity to the southern dwelling and principal private open space at 77 Riverview Road, Avalon Beach. 2. Condition 10 is consistent with the objectives of clause C1.5 Visual Privacy of the Pittwater 21 DCP.
3. Condition 10 does not require a removal of any existing trees along the southern boundary of the Site. The condition requires supplementary planting only." (B) PARTS OF CONDITIONS PROPOSED TO BE AMENDED Condition 10, dot point 3: Privacy Screen on Proposed deck on the northern side of the First Floor:
4. "The Respondent contends that this condition should not be amended as it is necessary to maintain the reasonable amenity and privacy of the neighbouring property at 81 Riverview Road, Avalon Beach. Particulars: 1. The Development Application incorporates a 1.65 metre high privacy screen of louvre construction on the proposed deck, however only for a length of 1 metre. Condition 10 requires that the privacy screen be the length of 3.45 metres. 2. Condition 10 is consistent with the objectives of clause C1.5 Visual Privacy of the Pittwater 21 DCP. 3. The proposed new deck off the western elevation adjoining the main habitable parts of the dwelling (kitchen, living and dining rooms). It is considered given the likely use and the large area of the balcony/deck that a privacy screen is to be fitted to the northern edge of the deck which will maintain reasonable amenity to the northern dwelling and principal private open space at 81 Riverview Road, Avalon Beach." Condition 10, dot point 2: Privacy Screen on Proposed deck on northern side of the Ground Floor:
5. "The Respondent contends that this condition should not be amended as it is necessary to maintain the reasonable amenity and privacy of the neighbouring property at 81 Riverview Road Avalon Beach. Particulars: 1. The Development Application incorporates a 1.65 metre high privacy screen of louvre construction on the proposed deck, however only for a length of 1.9 metres. Condition 10 requires that the privacy screen be the full length of the proposed deck. 2. Condition 10 is consistent with the objectives of clause C1.5 Visual Privacy of the Pittwater 21 DCP.
6. The proposed new lower deck on the northern and western elevations off the rumpus room it is considered given the significant increased area and use of the balcony/deck that a privacy screen is to be fitted to the northern portion of the deck which will maintain reasonable amenity to the northern dwelling and principal private open space at 81 Riverview Road, Avalon Beach." Applicants submissions:
7. In their 'Outline of Submissions' filed with the Court on 27 July 2023 (Ex D) the Applicants state the following with reference to each of the conditions challenged.
8. Condition 10, dot point 4 - install 1.65m privacy screen to proposed first floor deck, southern side: 1. In the Amended DA plans, the proposed balcony deck extension has been carefully designed to avoid any amenity impact on the neighbouring property at 77 Riverview Rd. 2. The balcony deck and the main deck are essentially two separate decks providing an improved interior design. 3. There will be no net increase in size of the extended balcony deck. 4. We do not anticipate any increased use of the extended balcony deck above what would be normal for a balcony deck off a master bedroom. 5. There is already ample screening vegetation along the southern side boundary in the vicinity of the deck extension. 6. We do not believe this small extention poses any privacy issues for the neighbouring property.
9. Condition 10, dot point 5 - plant vegetation to southern boundary line of Site: 1. There is no privacy issue here, and no need for supplementary vegetation screening. 2. The proposed deck extension to the balcony deck has been carefully designed to avoid any amenity impact, including privacy, on the neighbouring property at 77 Riverview Rd. 3. Our proposed first floor deck is not large, extending from the house by 3.45m and is unlikely to affect any water views from 81 Riverview Rd or their privacy. 4. The supplementary Weeping Lilly Pilly trees (10mx8m) will block water views from some of our property.
10. Condition 10, dot point 2 - - install 1.65m privacy screen to deck northern side, ground level: 1. The consent condition is unlikely to achieve a satisfactory privacy benefit for either 81 Riverview Road or ourselves.
11. Condition 10, dot point 3 - install 1.65m privacy screen to deck northern side, first floor: 1. The new deck will be a relatively minor addition and will only extend in width out to 3.45m. 2. Any outdoor use of the new deck will be near the centre of the deck and away from the northern side. 3. The residence at 81 Riverview Rd is set unusually close to our northern side boundary. It is set well back from our house and proposed main deck. 4. A large fixed vertical louvre privacy screen or panel would be an unnecessary and a costly addition that would impact on our amenity. 5. The proposed more open deck without large privacy screens will be visually less intrusive in the landscape.
12. The Applicants provided further written submissions on 21 August 2023 in support of their Appeal.
13. The Applicants state that the approved privacy screens to the proposed new deck at the first floor level would cause the Applicants' view loss, loss of sunlight and were not consistent with their mid century 1940s style of their home. Morevover they submit that Council arbitrarily and disproportionately applied the controls in the Pittwater 21 DCP on Visual Amenity in imposing large unsuitable privacy screens and supplementary vegetation screening on the southern boundary when other alternatives were available and vegetation screening plants were already growing on the subject Site.
14. The Applicants further submit that with respect to the claimed impact on 77 Riverview Rd to the south the proposed privacy screen for the existing balcony is not necessary and was not required in the initial Assessment Report which stated as follows: "The Assessment Report provided for the Panel's meeting states: "With respect to 77 Riverview Road, the proposed alterations are acceptable with respect to Visual Privacy..." [page 645 Respondent's Bundle of Documents Ex 1]. This is in sharp contrast to the Panel's hurried and arbitrary decision requiring privacy screens."
15. However, as discussed above, the Applicants provided with their submissions, as a fall-back position, Amended Plans which they submit achieve compliance with the C1.5 Pittwater 21 DCP 9 metre control as follows. "In respect of the Architect's Draft First Floor Plan Amendments, reducing the north side of the proposed first floor deck by 2.5m and the south side by 600mm, the Applicants submit as follows: 1. "Architect JJ Drafting has provided draft amendments dated 16.8.23 [Attachment A]. These show a reduction in the size of the first floor balcony addition and the first floor new deck (main deck), to meet the DPC >9m visual privacy setback control. 2. The current distance of our proposed balcony addition to the private open space areas of 77 Riverview Road is almost 9m. Our Architect has now adjusted the plans to meet the DCP's 9m setback control. The new main deck is well over 10m away."
16. Regarding Condition 10 dot point 4, in support of the deletion of this requirement for additional plantings to the southern boundary, the Applicants submit: " ..this consent condition is unnecessary, unsuitable, impractical and onerous on us. We will plant this tall high maintenance hedge if really necessary but we don't agree with this for the following reasons: 1. The amended plans from our Architect negate any reason for this hedge. Also there is already sufficient vegetation screening in place, as mentioned above, to address any privacy concerns that 77 Riverview Road may have about the 1.5m wide balcony addition. 2. Soil conditions in the terraced rock garden beds are problematic and they are already planted to capacity. They were built in 2018 on top of an extensive rock shelf, The soil depth varies from shallow to deeper near the south side boundary. An arborist would need to determine the feasibility of planting the required hedge. The hedge will require on-going maintenance and we have a large garden and we do not want increased garden maintenance and expense. On the other side of the pathway and opposite the terraced rock gardens is a large area of landscaping with established evergreen tall shrubs that will soon reach 6m. Council's expert evidence:
17. The Council relied on a Planning Expert Report (Ex 2) from Mr Phillip Lane, Principal Planner, Northern Beaches Council, dated and filed 14 July 2023. The Applicants did not rely on any expert evidence and Mr Lane was not cross examined on his report. In summary Mr Lane's opinion is that given the circumstances of this matter, namely the size and location of the new decks relative to the neighbours and the objections made, a strict application of the 9m rule in C1.5 of the Pittwater 21 DCP should apply and the sub conditions of condition 10 should not be deleted or modified. Council's Submissions:
18. Counsel for the Council, Mr Grace, submitted the following summary as to why the Appeal should be dismissed and the conditions not altered: "For the reasons set out in the Planning Expert Report at [14]-[21], this Court would not delete or amend Condition 10. By way of summary: 1. The Consent approved the construction of new decks on the Ground Floor and First Floor that are within 9 metres of private open space on 77 and 81 Riverview Road which will be exposed to direct overlooking as a result of the approved development. 2. The privacy screens would protect areas of private open space on 77 and 81 Riverview Road from direct overlooking, and promote privacy and amenity of the occupants of those properties. 3. The impugned parts of Condition 10 are consistent with the dictates of C1.5 of the Pittwater 21 DCP that require elevated decks to incorporate privacy screens where necessary to protect private open space from direct overlooking through the use of louvres. Conversely, the Applicants proposal would be inconsistent with C1.5. 4. The Court would regard C1.5 as a "fundamental element" in, or a "focal point" of, the decision-making process and although it is not determinative, as its provisions are directly pertinent to the determination this particular issue, the Court is entitled to give C1.5 "significant weight": Deancliff Developments v Hornsby Shire Council (2005) 141 LGERA 362, [2005] NSWCA 271 at [30]. 5. The use of louvres in the privacy screens will not adversely affect the Applicants' amenity because they would enable occupants of the Subject Land to look out toward Pittwater, whilst obstructing sideways views over the neighbouring properties. 6. Finally, the occupants of 77 and 81 Riverview Road have installed privacy screens and, in the case of 77 Riverview Road were installed, in part as a result of the Applicants' objection to their DA. It would be unfair, and result in inconsistent decision making, if the Applicants were not required to install privacy screens.
19. I do not agree with the last submission at (f). Whether or not it is 'fair' is not a relevant consideration in my decision making. If the owners of No 77 have installed screens pursuant to a consent granted by Council or otherwise and those screens assist their own privacy does not mean the neighbour also has to install screens. The Pittwater 21 DCP control - C1.5 - Visual Privacy - is not engaged if there is no issue as to visual privacy. Consideration - the Amended Plans:
20. Mr Grace's written submissions and Mr Lane's expert planning report did not address the Applicants Amended Plans as they were not available at the time the written submissions and the expert planning report were finalised.
21. At the further mention of the matter on 14 November 2023 the Council did not request time for the Amended Plans to be considered by their officers or by Mr Lane to update his report. My impression from words spoken although not formally put to the Court was that the Council considered the Amended Plans would be a reasonable outcome.
22. I note that provisions of the LEC Act give me as the presiding Commissioner in this Class 1 appeal wide powers to inform myself and to exercise all the functions and discretions of the Council as follows:
23. Section 38(2) - Procedure "(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits."
24. Section 39(2) - Powers of Court on appeals "(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal." Consideration:
25. Pursuant to my powers under s38(2) LEC Act I have decided that the Amended Plans represent the most favourable outcome in this Appeal that meets the Council's concerns and achieves an appropriate consideration of the Pittwater 21 DCP consistent with the authorities on the application of Development Control Plans: Deancliff Developments v Hornsby Shire Council (2005) 141 LGERA 362, [2005] NSWCA 271 at [30]; Zhang v Canterbury City Council (2001) 51 NSWLR 889, at [55]; and having regard to ss 4.15(1)(a)(iii) & 4.17(1)(a) EPA Act.
26. By cutting back the northern end of the proposed first floor rear deck, the potential for overlooking into No 81 is removed because it would be very difficult to see around the corner into the rear of the building and most of the rear yard at No 81 Riverview Parade. On site I observed that the primary focus of views from the first floor area where the deck will be built is towards Pittwater and any possible deliberate or accidental overlooking into No 81 will likely be only of trees and water towards the rear Pittwater boundary of No 81. This will be particularly the case with 2.5m cut off the northern end of the first floor deck. I note the Applicants Amended Plans denote the 9m distance prescribed in C1.5 of the Pittwater 21 DCP and the amendment to the plans has taken the proposed development outside that range.
27. Taking into account the Amended Plans and accepting the draftspersons annotations which were not challenged by the Council I am satisfied that there is no need for privacy screens on the northern end of the proposed first floor deck. Accordingly Condition 10 dot point 3 should be deleted.
28. I accept the Applicants proposed amendment to the privacy screening at the northern end of the ground floor deck as I consider this request to be reasonable and will not create unreasonable impact on the amenity of the dwelling at No 81. It follows that condition 10 dot point 2 should be amended to read "The 1.65m high privacy screen on the northern elevation of the proposed ground floor is to be extended for a width of 2m out from the existing north side deck".
29. As regards the southern end of the proposed first floor deck, the Amended Plans demonstrate a 600mm cut back to the southern end and I accept the draftspersons annotations that the proposed deck change achieves compliance with the C1.5 of the Pittwater 21 DCP. In any event, from my observations on site and taking into account the Applicants submissions, there is minimal privacy impact on No 77 from the Applicants proposed changes to the southern end. I note that the Council Panel that assessed the DA, did not consider that any privacy issues arose for No 77 from the proposed DA: see the quote from Council's report in Ex 1, reproduced above at paragraph [32].
30. For these reasons, particularly taking into account the Amended Plans, I do not consider that any form of privacy screening is required to the southern end of the proposed first floor deck and condition 10 dot point 4 should be deleted.
31. As regards additional planting of a hedge along the southern boundary, taking into account my observations on Site of the steepness of the land and the surrounding established vegetation on the subject property and the neighbouring property at No 77, I accept the Applicants evidence and submissions quoted above at paragraph [34] that this additional planting is not necessary and not suitable. Council did not provide any arborist evidence to the contrary. It follows that condition 10 dot point 5 should be deleted. Conclusion:
32. It follows from my reasons above that the upholding of this appeal relies on the Applicants filing the Amended Plans and I make a direction accordingly. I grant leave to the Applicants to amend the Consent with the filing of the Amended Plans and the amendment can be achieved by way of an additional condition replacing the two plans with the Version F of each of those plans. There was no issue raised by Council that the Amended Plans would result in a Consent that was not substantially the same development should the Court seek to rely on them but for completeness I find that the modification of the Consent by the Amended Plans satisfies the provisions of s4.55(2) of the EPA Act.
33. The parties will need to confer and agree on Conditions of consent that reflect my reasons above. In the ordinary course the Council will need to provide a draft of the Conditions of consent to the Applicants and I make orders accordingly as follows.

Orders

1. The Court orders and makes directions as follows: 1. The Appeal is upheld; 2. Direct the Applicants to file and serve on the Respondent the following Amended Plans within 21 days of judgment: 1. Site Analysis Plan drawing, DA.01, Rev: F - Revise Drawings Boundary Control 2. Proposed West Elevation Sheet 1, DA.11, Rev: F - Revise Drawings Boundary Control 1. Direct the Respondent to prepare and serve on the Applicants the following within 28 days of judgment: 1. Conditions of Consent for DA2022/0409 that reflect my reasons above; 1. Orders in accordance with the LEC Template, for an appeal on changes to the approved conditions of consent - Ex A and Ex B; 1. Direct that the parties file final agreed conditions of consent and orders in accordance with (3)(a) and (3)(b) above following which final orders will be made in chambers; 2. List the matter for Online Court at 12pm, 1 February 2024, to be vacated if direction (4) above has been satisfied.

Amendments 22 December 2023 - corrected MNC 12 February 2024 - Amended to correct cases cited on coversheet. 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: 12 February 2024