Wilson v Manly Council

Wilson v Manly Council - [2009] NSWLEC 1013 - NSWLEC 2008 case summary — Zoe

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14 On the uphill side of the street there are embankments and rock faces with the houses elevated on top. Statutory Controls Manly Local Environmental Plan (LEP) 1988 15 The site is within Zone No 2 - Residential zone and the proposal is permissible with consent. The relevant clauses of the LEP for consideration include:- Cl 3 (e): to increase availability and variety of dwellings without adverse effects on the character and amenity of Manly. Cl 10: Zone 2 onjective (d) to ensure building form including alterations and additions do not degrade the amenity of surrounding residents or the quality of the environment. Cl 17: no detrimental effect on the amenity of the Foreshore Scenic Protection Area. 16 Manly Development Control Plan for the Residential Zone 2007 (Dec 2007) as amended August 2008 Clause 1.2 Objectives - objectives (d) regarding adverse effects on the character, amenity, and natural environment of residential areas, (f) regarding amenity of existing and future residents, (h) regarding minimisation of impacts on privacy, views, solar access and general amenity of adjoining and nearby residences, (i) regarding view sharing for existing and proposed development. 17 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Relevant provisions are clause 2 (aims of SREP), clause 14 (nominated planning principles), clause 21 (relating to biodiversity, ecology and environmental protection), clause 22 (relating to public access to and use of the foreshore and waterways), clause 25 (relating to foreshore and waterways scenic quality) and clause 26 (relating to maintenance, protection and enhancement of views). The Proposal 18 Going down from the top level that I will call Level 1, is the carport, car manoeuvring area and entry at the east end of the existing house. The proposal is to put a timber deck on part of the car manoeuvring area and enlarge the entry lobby facing No.131. There are no council objections to this part of the proposal but there is from one neighbour.

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Northern Boundary The DCP requires a side setback to the northern boundary for the living room extension (new work only) of 5.1 m. The extension to the living room wall has a minimum setback of 4m. The DCP requires a side setback to the northern boundary for the bedroom 3 extension (new work only) of 4.1 m. The extension to the bedroom 3 wall has a minimum setback of 4m. The DCP requires a side setback to the northern boundary for the bedroom 4 extension (new work only) of 2.66m. The extension to the bedroom 4 wall has a minimum setback of 1.6m. The DCP requires a side setback to the northern boundary for the walkin-robe off the bedroom (new work only) of 1.1 m. The walk-in-robe off the bedroom has a minimum setback of 200mm. Southern Boundary The DCP requires a side setback to the southern boundary for the living room extension (new work only) of 4.3m. The extension to the living room wall has a minimum setback of 400mm. The DCP requires a side setback to the southern boundary for the bedroom 4 extension (new work only) of 3.3m. The extension to the bedroom 4 wall has a minimum setback of 400m. 2 The proposal will result in adverse privacy impacts on the adjoining neighbours. The proposed decks do not provide reasonable levels of privacy and amenity for neighbours. The proposed decks are very large in area; they are highly elevated and are excessive in size and number having regard to the existing provision of private open space on the land. Insufficient information has been submitted to demonstrate that there would be no unacceptable acoustic impact upon adjoining properties. Particulars a Section 79C(1 )(a)(iii),(b) & (d) of the Environmental Planning and Assessment Act 1979. b. Manly Development Control Plan for the Residential Zone 2007 Amendment 1 cl. 1.2 objective (h) provides: To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences; c. Manly Development Control Plan for the Residential Zone 2007 Amendment 1 cl. 2.4.18 provides: First floor additions shall compliment the architectural style of the ground floor and where possible retain the existing roof form. Notwithstanding setback provisions, the addition may follow the existing ground floor wall setbacks providing adjoining properties are not adversely impacted by overshadowing, view loss or privacy issues. The dwelling shall retain the existing scale and character of the street and it may be preferable that the addition be confined to the rear of the premises or be contained within the roof structure. d. Manly Development Control Plan for the Residential Zone 2007 Amendment 1 Section 4.2 Privacy & Security provides objectives and controls : Objectives 4.2.1 The objectives for privacy and security are: a. To provide for privacy screening between closely spaced buildings; b. To mitigate direct viewing between windows of adjacent buildings; c. To mitigate direct viewing between outdoor living areas of adjacent buildings; d. To provide for screening to outdoor living areas; and e. To encourage awareness of neighbourhood security Controls 4.2.2 The following controls apply to privacy and security: a. Use narrow, translucent, or obscured glass windows to maximise privacy where necessary; b. When building close to boundaries, windows shall be off-set from those in the adjacent building to restrict direct viewing and to mitigate impacts on privacy; c. Architectural or landscape screens must be provided to balconies and terraces to limit direct vision into adjacent properties; ... 3 The proposal will result in diminished quality of views from adjoining properties. The proposal will result in unreasonable view impacts on nos. 125, 125A and 131 Seaforth Crescent. Particulars a Section 79C(1 )(a)(iii),(b) & (d) of the Environmental Planning and Assessment Act 1979 b Manly Development Control Plan for the Residential Zone 2007 Amendment 1 cl. 1.2 objectives (h) and (i) provide: h) To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences; i) To provide for view sharing for both existing and proposed development; c Manly Development Control Plan for the Residential Zone 2007 Amendment 1 Section 2.4. Design Considerations, cl. 2.4.8 provides: The design of development shall respond to the slope of the site, with the aim of minimising loss of views and amenity from public and private spaces. The lower side of the site, whether to the foreshore or a street, needs to integrate the design of the building with the topography by minimising its height and bulk. Large under-croft spaces can be avoided by integrating the building into the slope. Development on steeply sloping sites will require preliminary geotechnical investigation in accordance with the Manly DCP for Landslip and Subsidence 2001. d Manly Development Control Plan for the Residential Zone 2007 Amendment 1 Section 2.4. Design Considerations, cl. 2.4.16 and 2.4.18 under Building Form provide: 2.4.16 The apparent bulk and design of a development should be considered and assessed from surrounding public and private view points. The development should not detract from the scenic amenity of the area. 2.4.18 First floor additions shall compliment the architectural style of the ground floor and where possible retain the existing roof form. Notwithstanding setback provisions, the addition may follow the existing ground floor wall setbacks providing adjoining properties are not adversely impacted by overshadowing, view loss or privacy issues. The dwelling shall retain the existing scale and character of the street and it may be preferable that the addition be confined to the rear of the premises or be contained within the roof structure. e Manly Development Control Plan for the Residential Zone 2007 Amendment 1 Section 4.3 Maintenance of Views provides objectives and controls: Objectives 4.3.1 The objectives for the maintenance of views are: a) To maintain continued access to existing views to the city, harbour, ocean, bushland, open space and recognised landmarks or buildings from both private property and public places (including roads and footpaths); b) To minimise loss of views from adjoining or nearby properties and public places, whilst recognising development may take place in accordance with the other provisions of this Plan; and c) To maintain and share views with existing and future Manly residents. Controls 4.3.2 The following controls apply to the maintenance of views: a) The design of any development is to minimise the loss of views from neighbouring and nearby dwellings and from public spaces. b) Views between and over buildings are to be maximised and variations to side boundary setbacks, including zero setback will not be considered if they contribute to loss of primary views from living areas. c) Templates may be required to indicate the height, bulk and positioning of the proposed development to assist in determining that view sharing is maximised and loss of views is minimised. The templates are to remain in place until the application is determined. A registered surveyor shall certify the height and positioning of the templates.

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Note: The assessment to determine the extent of and impact on views shall be made at eye height in a standing position (eye height is 1.6m above floor level) from within the main living areas (and associated terraces/balconies) of the proposed and existing, adjacent and nearby developments, as well as public spaces (refer to Figure 13). The ultimate assessment of views and view loss shall be in accordance the following Planning Principles established by the NSW Land and Environment Court, illustrated in Figure 14 below. 4. The proposal is to add to an existing five (5) storey building where only two (2) storeys are permitted. Particulars a Section 79C(1)(a)(iii),(b) & (d) of the Environmental Planning and Assessment Act 1979 b Manly Development Control Plan for the Residential Zone 2007 Amendment 1 Section 3.5 makes provision with regard to building height; Number of storeys 3.5.4 Other than within density sub-zones 1 and 2, and notwithstanding the provisions of specific numerical height controls, buildings shall not exceed two storeys unless specific physical site constraints warrant voiding this requirement. The proposal is within density sub-zone 7 and is subject to a 2 storey height limit. The existing development does not comply with the number of storeys, wall height and setback provisions of the DCP and the proposed alterations exacerbate this non-compliance at the points of greatest impact on neighbours. 5. The proposal is not in the public interest. Particulars a Section 79C(1 )(e) of the Environmental Planning and Assessment Act 1979 b The proposal exacerbates existing DCP non-compliances in locations that are the most significant having regard to impacts on neighbours. 6. Inadequacies and inaccuracies within the plans. The development application does not include an adequate Site Analysis as required by Manly Development Control Plan for the Residential Zone 2007 Amendment 1 . The drawings are inaccurate and inadequate. The information provided in the application does not allow proper consideration of the impacts of the proposal on adjoining neighbours. The information provided does not comply with the Court's requirements. 27 Most of these deficiencies that were listed at length in the Contentions were resolved by updated documents tended at the Hearing, at least sufficiently for there to be enough information to assess the proposal. The Evidence 28 The respondent's evidence came from Mr S Layman town planning consultant, Mr G Atkins acoustic consultant, Mr R L Dein resident objector of No. 131, Mr R Freilich objector on behalf of Mrs C F Babcock of Nos. 127-129, Mssrs A & J Milcz resident objectors of No. 125A, Mr K Wong resident objector of No.119A.

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42 Mr Dein took the hearing through his house and the observation mentioned above in his bathroom. Then we went to his Living Room and bedrooms that are more or less opposite the existing pool deck on Level 4 of the subject house. 43 Because the existing house on No. 129 projects about 15 metres further west than Mr Dein's on No. 131, the subject house looms large and high on the south side of Dein's. In No. 129, on the half level down outside the Living Room on Level 5 are bifolding doors onto a northern deck with outside table & chairs facing Dein's. The proposed two major new decks on the west side of the Living room and the Level 6 bedrooms would project out from there. 44 Mr Dein said already there is nuisance noise from activity at the pool and the existing deck of No. 129. Also they can easily look over and down into his living room, bedrooms and balconies, there is little privacy. Enlarging the existing deck and the new deck on Levels 5 and 6 of the subject house must increase the usage and numbers of people who can congregate there, and thus increase nuisance and invasion of privacy. 45 At the moment Mr Dein can see past the existing house to the south down into Sailor's Bay and Northbridge. That part of the panorama would be lost with the 5 metres overall extension of the Living Room, the bedrooms and the decks on Levels 5 & 6 of the proposal, 46 Mr Freilich did not to speak but relys on the written objections and to support the those who did speak. 47 The acoustic experts gave oral evidence. Mr Atkins report in Exhibit 8 had calculated from measured ambient noise at Seaforth, that groups of 10 or more on the proposed decks, would cause intrusive noise for No.131 under DECC Noise Guide for Local Government for the full range of Vocal Power Levels depending on the time of day and numbers of persons on the decks. Intrusive noise is defined as " noise that by reason of its level, nature, character or quality, or time at which it is made……..is harmful (or likely to be harmful)…………interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person outside the premises from which it is emitted". The vocal levels range from "Loud" down to "Casual" with specific sound power ranges for each derived from official research. 48 This would occur for No. 131, if 3 or 4 persons in a group of 10 on the decks of No. 129 are talking at "Loud" or "Raised" levels even during the day (7am to 8pm). That would be a party, or BBQ where people are dining and chatting excitedly and laughing together, possibly shouting occasionally, or children are noisily playing. There would be intrusive noise between 8pm and 10pm even if the same people were talking at "Normal" volume levels. There would be intrusive noise if the same people were talking in "Casual" or low volume levels from 10pm to 7am. No. 125A would only receive intrusive noise during the day and night if 3 or 4 persons out of a group of 10 are talking at "Loud" levels. 49 Mr Atkins agreed in cross-examination there were some other houses nearby where entertainment balconies might create noise for adjoining or adjacent house bedrooms. That did not change his evidence about this proposal. The balconies shown to him did not have a swim pool as does the subject house and that adds to the frequency of activity that might create intrusive noise for No. 131, he said. He thought a much bigger deck with access to the pool would attract more use by larger numbers of people too. 50 Mr Gross said that by extending the decks to the west, people are likely to congregate on the new decks instead of the existing north side deck and take the noise sources further away from No. 131. He thought the lower deck off the bedrooms on Level 6 would get less use than the one proposed on Level 5.

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51 Mr Gross said the house remains a single family home, so the frequency of any intrusive noise depends on behaviour. Normal consideration for neighbours, and the frequency of having friends over are the usual controls on such things. In cross examination he agreed that having the proposed wide opening operable glass walls from the living room out onto the big decks would encourage people to sit outside more often. 52 The parties did not cross-examine Mr Lovell or Mr Layman. Their joint report is in Exhibit 5. They agreed the existing house and the extensions only have about a 400mm side setback to the southern boundary. This appears to have been approved in the past possibly in consideration of the battle-axe access to No. 127 below that carries only an inclinator. 53 Nevertheless Mr Layman says the extension to Bedroom 4 at the south west corner of the house is so high off the ground the side setback requirement is 3.3 metres. The Living room extension and its deck being higher require a side 4.3 metres setback. The proposal is 0.4 metres. The proposed 4 metres westward extension of the decks on Levels 5 & 6 also at 0.4 metres side setback only exacerbate the impacts of this major non-compliance on No. 125A. 54 Mr Lovell thought the impacts of overlooking either up to the upper house on No. 125A or down to the part-built dual occupancy could be fixed by privacy screens on the proposed decks. Also that normal domestic use of the decks would not give rise to unacceptable acoustic impacts. 55 On the northern side boundary, because of the land crossfall, the building is higher again, so the Living Room extension requires a 5.1m side setback and it is proposed at 4 metres. The bedrooms below come close to compliance on side setbacks. But the two decks at Levels 5 & 6 would have a north side setback varying between about 1 metre and 1.3 metres due to the slight splay in the boundary when the setbacks should be 5 metres or more. 56 Mr Lovell says that the 6 metres wide unbuilt lane along the northern boundary and the 2.8 metres wide access handle with the inclinator on the south boundary enable these amenity improvements to the house to be built without significantly affecting the amenity of the surrounding properties. 57 Mr Lovell says the bedrooms 2, 3 and 4 on Level 6 are too small and need enlargement and the 9 metres x 4 metres deck to make them more useable. Mr Layman said the bedrooms are over 10 square metres each and useable already, the extensions will have adverse impacts on neighbours and the extensions are grossly non-compliant with the applicable controls.

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73 From Milcz's upper house more land/water interface close views will be lost although not as significant as Wong's. The lower dual-occupancy house will have view obstruction, towering bulk, shadows, loss of privacy and noise impacts. 74 The existing house creates impacts by extending up to 15 metre further west than No. 131 and 9 metres further west of No. 125A. Those impacts are caused by non-compliances with the current height, storey and side setback requirements. To exacerbate those impacts, by allowing extensions further west by another 5 metres to a total of approximately 19 metres and 14 metres respectively, resulting in heights of about 18 metres in an 8 metre height limit area, is unacceptable. Proposing the extension with 400 mm side boundary setback one side and between 1 metre and 1.3 metre setbacks on the other is also unacceptable. 75 I have formed the opinion that even cutting the decks back to 2 metre width and still allowing the 1m extension of the living room and bedrooms 3 & 4 as suggested by the applicant would be a large incremental increase in the existing impacts that under the current statutes and controls should not exist. Using the existing impacts resulting from major non-compliances to justify even moderate increases in impact cannot be accepted. 76 In the case of the impacts of the timber deck on Level 1, apart from the impact of views directly into Mr Dein's bath room and toilet, the deck is in the car manoeuvring area. The carport appears to have space to hold one car only given room to manoeuvre or two with some multi-point turns. The applicable DCP tendered says a dwelling house requires two on-site car spaces. The only place to put the second car and allow both to enter and exit separately is to park it or manoeuvre it at the end of the manoeuvring area where the timber deck is proposed. The council report of 5 May 2008 tendered says the existing 2 car spaces are retained. If that is so, the deck should not go in, and in any case on the basis of Mr Dein's objection and his privacy impacts the deck should not go in. The planter box is acceptable.

At a glance

Court

Decision date

Before

Source

Judgment (103 paragraphs)

Parties

Cases Cited (2)