Wilson v Manly Council

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 Tenacity Consulting v Warringah Council [2004] NSWLEC 140

APPLICANT Mr J. Hones, solicitor of Hones la Hood Solicitors LEGAL REPRESENTATIVES:

RESPONDENT Mrs L. Finn, solicitor of HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Commissioner: This is a Class 1 Appeal No. 10861 of 2008 between Wilson and Manly Council in regard to the refusal of DA 437/07 for alterations and additions to a multi level house at No. 129 Seaforth Crescent, Balgowlah. The site 2 The subject site is Lot 1 of Deposited Plan 850323 and is commonly known as No. 129 Seaforth Crescent, Seaforth.

3 The subject site is located on the western side of Seaforth Crescent. It is irregular in shape with a 5.26 metre frontage to Seaforth Crescent, a depth of 75.5 metres along the site's northern boundary, a dog-leg of 6.1 metres and 3.59 metres around a neighbouring lot at the street front and then 65.365 metres along the sites southern boundary. The site area is 750.2 sqaure metres. The site splays out a little and has a 13.075 metre rear or western boundary.

4 The land falls steeply from the street to the rear of the site. The total fall is about 45 metres over a distance of 75m giving a slope of 56% or 1:1.8. Some cross fall is evident. Vegetation on the site is confined to between the dwelling and the site's rear boundary. 5 The subject house has minimal side setbacks, due to the narrowness of the site. Due to this narrowness and the size of the house, it is about 27 metres long. Due to this length and the steepness of the land slope, even with 6 floor levels the lowest floor is still elevated about 7 metres above the ground at the western end. It is supported on steel columns and beams.

6 Within the steel framing there is a suspended timber deck under the western end of the house. It is about 3 metres above ground at one end, but touches the ground at the other end where it is accessed by steps from the 6th level of the house. The locality 7 The subject site is zoned 'Residential' pursuant to the Manly Local Environmental Plan 1988 (LEP).

8 Seaforth crescent runs around an approximately level contour of a headland in Middle Harbour called Seaforth Bluff. The street is partway down the steep slope. As a result all houses overlook views of the water and opposite to Long Bay, Northbridge, Sailors Bay, Castlecrag, Sugarloaf Bay and Castle Cove.

9 Adjoining the site to the north is an unformed lane. The lane reservation falls over cliff terrain that has caused it to be unconstructed. It runs from the street down to the water of Middle Harbour. Across the lane is No. 131 Seaforth Crescent a recently renovated 2-storey house adjacent the eastern end of the subject dwelling. 10 There are battleaxe lots below the subject site between it and the water. They are accessed by inclinators, and where practical by stairs.

11 Immediately adjacent to the site's southern boundary is an inclinator providing access to No.127 Seaforth Crescent below the subject site. On the south side of the inclinator is No.125A, a detached 2-storey house adjacent the east end of the subject dwelling. Lower down on No.125A is a partly built council approved second dwelling as a detached dual occupancy. This second dwelling is built close to the ground approximately adjacent the tall western end of the subject house.

12 On the south side of the inclinator to No.125 is another house No.119A that is up close to the street. 13 Surrounding sites are predominately occupied by single dwelling houses of varying heights, bulks and scales. From the visit to the site and photos in evidence it can be seen houses are generally 2-storeys, at least, with some having 4 storeys straight up, others being stepped down hill with 6 levels.

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.

19 On Level 2 more or less under the carport, and car manoeuvring area is proposed Ensuite, WC and Walk-in Robe to create a Master Bedroom suite. The council has no objections to this part of the proposal. 20 On Level 3 that is a half-level at the west end of Level 2 the proposal is to extend the Living Room westwards by about 1m. At Level 3 this extension is the ceiling void space of the Living Room on Level 5.

21 Level 4 contains another bathroom, laundry and Family Room facing No.131 across an existing lap pool in the north facing deck outside those rooms. 22 Level 5 is a half-level at the west end of Level 4, and as mentioned above it extends the Living Room by 1m and extends the existing western balcony by 4m by cantilevering it out on new steel framing off the existing steel sub-structure. At the highest point the new deck would be about 17m above the ground below, and projects 5m west of the existing west wall. The new deck would be about 9m wide with a boundary side setbacks of about 400mm on the south side and 900mm on the north side.

23 Level 6 is more or less below the Living Room, Laundry and stairwell. It has 3 bedrooms, a bathroom and a small deck facing No.131. The proposal is to extend Bedrooms 3 & 4 westwards by 1m inline with the Living Room extension above. Also on the west end, outside bedrooms 3 & 4, the proposal is to build a new 9m wide by 4m deep deck underneath the new deck above. The other northern bedroom is mistakenly also called Bedroom 4 on the plans, so I will call it Bedroom 2. It faces north towards No.131 and is to be extended about 1m north. The existing small deck on the north side is to be altered to take a new external staircase down to Level 7. 24 Level 7 is proposed to demolish an existing timber deck suspended within the steel sub-structure and build a new deck about 5.5m wide and about 5m deep. The new access staircase continues down to the ground level below.

25 The two new western end decks will cantilever out to the canopies of one large live tree and one dead tree that come up to about the same level as the new Living Room deck on Level 5. It is proposed to remove the dead tree and prune the live one. Contentions 26 The issues in dispute are: 1 The proposal intensifies existing non-compliances with respect to the wall height and side setbacks. The proposal does not comply with the maximum wall height of 8m. The proposal has a maximum wall height of 15.2m in the NW corner. The proposal exceeds the maximum number of two storeys. The proposal would result in five storeys including the "lower level deck". The proposed extensions to the living room, bedroom 3, bedroom 4 and the extension to the walk-in wardrobe, do not comply with the side setback requirements. 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 (Dec 2007) as amended August 2008, makes provision for building height. (The subject site is within Density Sub-zone 7): 3.4 Building Height Building height is regulated by applying standards for the maximum height of external walls and roof structures within density sub-zones. Objectives 3.5.1 The objectives for building height are: a) To regulate the height of buildings by specifying maximum wall and roof heights; b) To assist in controlling the bulk of buildings ; c) To provide for building heights that are consistent with the prevailing building heights in the locality; d) To minimise disruption to views from adjacent and nearby residential development and from public spaces; e) To allow sunlight to penetrate private open spaces within the development site; and f). To allow adequate sunlight penetration to private open spaces and windows to the living spaces of adjacent residential development .

Controls 3.5.2 On level sites the maximum wall height measured to the underside of the eaves the topmost floor, shall be: In density sub-zones 3, 4, 5, 6 and 7: 6.5m. In density sub-zone 2: 9.0m. In density sub-zone 1: 12.0m. 3.5.3 On sloping sites the maximum wall height shall be interpolated from the graphs shown in Figures 4 and 5. The gradient/slope for the purpose of calculating wall height, is the slope of the land (at natural ground level) along the length of the proposed wall expressed os a vertical to horizontal ratio (as shown in Figure 7).

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.

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.

29 The applicant's evidence came from Mr N Gross acoustic consultant, Mr J Lovell town planning consultant.

30 At the on-site part of the Hearing, the existing steel support structure under the building was compared to the plans and it was found they do not match. The respondent said this related to Issue 6, and that the ground levels were not shown accurately. The height from the ground up to the 6th floor level actually varied between 7-9 metres. Updated plans tendered in the Hearing verified this height. A survey plan tendered during the hearing showed the relative levels of the houses on Nos. 129, 131, 125, 125A, 127. The survey included side elevations and windows of the houses facing the proposal. 31 I formed the opinion there was enough information to assess the proposal.

32 At the end of the Hearing the applicant said it deleted the new deck on Level 7 and would seek a Building Certificate for the existing deck separately. The applicant pressed for the rest of the proposal to be approved. But if the Court is not minded to approve the full application, the applicant said it would accept conditions that reduced the new cantilevered decks on Levels 5 and 6 to 2 metres wide and having 45o splays 2 metres x 2 metres at northwest and southwest corners. It would also accept a 1.8 metres high privacy screen on the south side of each deck to protect the privacy of No. 125A. 33 The respondent said it opposed any extension of the Living room and its deck on Level 5, and the two western bedroom extensions (Nos 3 & 4) and their deck on Level 6. The respondent did not oppose the extension of the other northern bedroom on Level 6, the Ensuite, WC and Walk-in Robe on Level 2 or the Entry lobby extension on Level 1.

34 But the respondent pressed Mr Dein's objection at No. 131 to the timber deck and planter box on Level 1 based on the evidence seen from his bathroom, that there is a direct view from the proposed deck through his clear glass roof-lights into his bathroom and directly to the toilet seat. Another objection to the Level 1 timber deck is as seen from Mr Milcz upper house that there is a direct line of sight from the timber deck into his northern Living room and Kitchen windows. Those windows are kept open to the distant views to Killarney Heights in the north. It was put that the timber deck would occupy part of the car manoeuvring area needed for turning, and would be a place for people to sit or stand and look out from if constructed. 35 Both parties agreed that at the least, the uncontested parts of the proposal should be approved.

36 Mr Wong at No. 119A arrived on-site just in time after his house had been inspected. He pressed his written objections. His western deck and living room has panoramic views similar to the rest of the houses. He notes that as Seaforth Crescent follows around the contours of the bluff, the houses up near the road generally follow the same curved alignment so that each house generally has the same access to views. The exception is the existing subject house that extends further west than its neighbours, limiting their views past it. The subject house already exceeds the height limit by double being about 15 metres at the highest point when the limit is 8 metres. The extension will mean the Level 5 cantilevered balcony would be about 17 metres high to the floor level. It would block more of existing views and prompt other home owners to seek similar extensions. Already its bulk and height are objectionable and the extensions make it worse. 37 I note from the survey plan that No. 129 extends about 9 metres further west than the balcony of the upper house on No. 125A (Milcz), and about 15 metres further west than the balcony of No. 131 (Dein).

38 Mr Milcz said he had not objected to the original approval of No. 129, but in seeing its impact on his northern views, he had obtained approval for his part-built dual occupancy (the lower house on No. 125A). In order to retrieve his northern views he had placed the part-built house just west of the existing structure of No. 129. 39 The views are along Middle Harbour to Castle Cove and Killarney Heights, and along the eastern foreshore to Pickering Point and the closest bay with the pleasant view of yachts and boats at moorings. The proposal would come forward abreast the dual occupancy and partly block those views, but most unacceptably will totally dominate the dual occupancy with overpowering bulk and height and steel structure. The Level 5 deck would have only 4 metres separation and be about 6 metres above the living room level of the dual occupancy. And as seen from that Living room, side-on it would tower 17 metres above the ground with the second deck below it. 40 The second deck on Level 6 would be only about 3 metres above the dual occupancy Living room and balcony and 4 metres separate. There would be total overlooking and invasion of privacy from both decks, as well as noise from activities on the decks. Increased overshadowing from the massive decks would also occur and reduce solar access especially in winter for the dual occupancy. Privacy screens would make it worse. 41 From his existing upper house there would be a reduction of the water/land interface in his field of view and more building bulk on his north side that is the predominant view line. One must acknowledge however that the majority of the panorama is unaffected from the Mikz's upper house.

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.

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.

58 The experts agreed that the Ensuite, Walk-in Robe and WC on Level 2 although also non-compliant with side setbacks as small as 200 mm, there is minimal impact from that part of the proposal, and subject to obscured glass being put in the windows facing No. 125A it is acceptable. 59 In regard to Pafburn v North Sydney, the experts disagreed. Mr Layman said the parts of the proposal cause significant amenity impacts on neighbours on north and south. They are caused by additional gross non-compliances with the applicable controls. The unreasonably large size and the locations of the two decks on Levels 5 & 6 are inappropriate. 60 Mr Lovell said the decks are so far above the neighbours and will re-orient the most attractive view-lines to the west above and away from the neighbours. Normal domestic use of the decks are unlikely to create acoustic problems. Neighbours will retain most of their existing views.

61 Mr Layman says based on Tenacity Vs Warringah whilst the view loss for each neighbours might be rated as moderate, it is taking shoreline-water interface parts that are considered to be of high value, and the losses are due to gross non-compliances with the applicable controls and therefore are not justified. 62 Mr Lovell said all the neighbours have panoramic views and the loss in each case is rated as negligible to minor. The losses are to view-lines across adjoining properties and therefore under Tenacity are difficult to justify for retention.

63 The experts agreed there is a 2-storey height limit in Sub-zone 7 that the site is located in. They agreed the proposal rates as 5-storey.

64 Mr Layman said there is a matter of the general public interest in deciding whether it is reasonable to allow non-compliances with the applicable controls versus the resultant impacts on neighbours. 65 Mr Lovell said the amenity improvements for the subject site outweigh the minor impacts on the neighbours. Conclusions 66 The applicant submitted that there are many houses in the vicinity of 3, 4 and 5 storeys. The neighbours privacy is already compromised and their view losses are minimal considering the panorama they all have. Below is an extract from the subject plans showing the height of the existing house and the proposal.

67 The Amcord guide for privacy between habitable rooms or private open space is 9 metres and the separation is 22 metres to the deck of No. 131 and 30 metres to the closest bedroom or living room.

68 One should remember that Amcord is a guide for medium density housing and lower density zonings usually have greater privacy. Nevertheless there is mutual overlooking existing between No. 131 and 129. But in view of the existing and proposed non-compliances of the subject house it does not justify making privacy losses worse. 69 The subject house is obviously designed to look across the north side boundary to the views and to get the northern sun. So if Tenacity is a guide the existing house enjoys huge views across adjoining properties by blocking similar north views from No. 125A and by creating privacy, noise and view loss impacts on No. 131 and bulk and overlooking impacts on both. The proposal increases these impacts.

70 There are existing views and narrow balconies facing west to the panorama on the subject house. On the west and north there are bi-folding glass walls to the existing balconies so there is total access to the spectacular views as it stands. The extensions enhance this at the expense of neighbours view losses. View sharing appears to be the intent of the Council controls.

71 The only other reason to add decks of 4 metres x 9 metres is to get more people onto them, and the acoustic evidence shows that even small groups of people enjoying themselves will cause regular intrusive noise for No. 131 at least, and on occasions for No. 125A. The current noise and privacy nuisances should not be increased by allowing grossly non-compliant extensions. 72 The view losses cannot be termed insignificant or minimal. As seen on the view from Mr Wong's he will lose the close shoreline views from both Living room and balcony to Pickering Point and the bay with moorings, From Dein's the loss is of Sailor's Bay and Northbridge, another land and water interface that is recognised in Tenacity as being significant.

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.

77 This is a case where apart from the merit issues, the public interest is important, and should be preserved by not allowing increased non-compliances with the very statutes and controls, which are aimed at maintaining appropriate amenity and environmental outcomes in suburbia. Approval of this development would not be in the public interest apart from those small works on Levels 1 (the entry and planter box only) & 2 (Ensuite, walk-in Robe and WC) and 6 (extension of renamed Bedroom 2). Any approval of the other works would be a major departure from the legislative planning purposes and the intended outcomes. 78 It seems to me that overcoming the privacy impacts by putting privacy screens on the north and south sides of the decks only increases the bulk, view loss, visual impacts and shadow impacts of the proposal. Little would change for the noise impacts.

79 Therefore I propose to grant consent in part only to those parts of the proposal referred to above. In the orders I revert back to the level numbers shown on the subject plans. 80 Therefore the Orders of the Court are: 1. The appeal is upheld in part. 2. Development consent is granted only to the enlargement of the Entry and the planter box shown on the Level 4 plan, and the En-Suite, WC and walk-in-robe shown on the Level 3 plan, both in drawing DA04 issue D, and the north side extension of Bedroom 4 shown in the Level 1 plan of drawing DA03 issue D and the relevant parts of the elevation and section drawings Nos. DA02 issue D, DA 05 issue A and DA06 issue A by Squillace Nicholas Architects all updated to 14 October 2008, at No. 129 Seaforth Crescent, Seaforth. The alterations and additions are subject to the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except 1, 11, A and B.

      K G Hoffman
      Commissioner of the Court
      ljr

Annexure 'A' Conditions of Consent Wilson v Manly Council Development Application: 434/07 Premises: 129 Seaforth Crescent, Seaforth

Proposal: Alterations and Additions to the existing multi-level dwelling Including additional decks

DA1 This approval relates to Drawing Nos DA01 issue D, DA02 issue D, DA03 issue D and DA04 issue D, DA05 issue A and DA06 issue A, all Job No WIL0607 and all updated 10 October, 2008 as prepared by Squillace Nicholas Architects.

ANS01 The 'new deck on the 'lower deck plan' of Drawing DA03 issue D is to be deleted. The reason for this condition is that the deck has in fact already been constructed. Details are to be contained on the plans accompanying the Construction Certificate of the deck being deleted.

ANS02 The 'new deck', proposed off the 'Level 1 plan', in drawing DA03 issue D is to be deleted. Details are to be contained on the plans accompanying the Construction Certificate.

ANS03 The 'new deck', proposed off the 'Level 2 plan', in drawing DA03 issue D is to be deleted. Details are to be contained on the plans accompanying the Construction Certificate.

ANS04 The western living room extension as identified on the 'Level 2 plan', of drawing DA03 issue D and on the Level 3 plan of drawing DA04 issue D and the west extension of bedrooms 3 & 4 on the Level 1 plan shown in Drawing DA03 issue D are not to be increased in floor area. That is, the consent does not allow for the proposed infill of the existing 1.2 metre deep west facing deck. Details are to be contained on the plans accompanying the Construction Certificate.

ANS05 The raised timber deck on the Level 4 plan on Drawing DA04 issue D is to be deleted. The planter box proposed on the Level 4 plan is to include a privacy screen on the north and south ends 1.7 metres high made of fully obscure materials and extend along the north side of the concrete terrace sufficient to prevent direct vision into the bathroom skylights of No. 131 Seaforth Crescent. The reason for this condition is to preserve the residential amenity of the adjoining property owners. Details are to be contained on the plans accompanying the Construction Certificate.

ANS06 The plan, elevation and section drawings to be amended in accordance with these conditions and filed with the Council and the Court prior to the issue of the Construction Certificate.

ANS08 Balustrading to decks that are 4 metres above ground level are to comply with Part 3.9.52.3(e) of the Building Code of Australia Housing Provisions restricting horizontal elements between 150mm to 760mm above floor level so as not to facilitate climbing. Plans to be notated/amended accordingly prior to the issue of the Construction Certificate.

DA016 Pursuant to Section 97 of the Local Government Act, 1993, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $5,000. The deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site.

Note: Should Council property adjoining the site be defective eg, cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site.

Note: Where Council is not the principal certifying authority, refund of the trust fund deposit will also be dependent upon receipt of a final occupation certificate by the Principal Certifying Authority and infrastructure inspection by Council.

DA017 No obstruction shall be caused to pedestrian use of Council's footpath or vehicular use of any public roadway during construction.

DA342 Separate application shall be made to Council's Infrastructure Division for approval to complete, to Council's standards and specifications, works on Council property. This shall include vehicular crossings, footpaths, drainage works, kerb and guttering, brick paving, restorations and any miscellaneous works. Applications shall be made a minimum of twenty-eight (28) days prior to commencement of proposed works on Council's property. Applicant to notify Council at least 48 hrs before commencement of works to allow Council to supervise/inspect works.

DA343 Any adjustment to the public utility service is to be carried out in compliance with their standards and the full cost is to be borne by the applicant.

DA018 Details of the builder's name and licence number contracted to undertake the works shall be provided to Council/Accredited Certifier prior to issue of the Construction Certificate.

DA019 Insurance must be undertaken with the contracted builder in accordance with the Home Building Act, 1997. Evidence of Insurance together with the contracted builders name and licence number must be submitted to Council /Accredited Certifier prior to issue of the Construction Certificate.

DA021 Toilet facilities are to be provided at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets.

DA022 Retaining walls being constructed in conjunction with excavations with such work being in accordance with structural engineer's details. Certification of compliance with the structural detail during construction shall be submitted to the Principal Certifying Authority.

DA023 No person shall use or occupy the building or alteration which is the subject of this approval without the prior issue of an Occupation Certificate.

DA024 A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24 hour contact details. The sign is to have dimensions of approximately 500mm x 400mm. Note: The sign is not required if the building on the site is to remain occupied during the course of the building works.

DA026 All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans with certification being submitted to the Principal Certifying Authority during construction from a registered surveyor certifying ground and finished ridge levels.

DA031 Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position which may involve a survey to identify the allotment boundary.

DA038 A Certificate of Adequacy signed by a practising Structural Engineer is to be submitted to the Council/Accredited Certifier in respect of the load carrying capabilities of the existing structure to support the proposed additions prior to the issue of the Construction Certificate.

DA039 Four (4) certified copies of the Structural Engineer's details in respect of all reinforced concrete, structural steel support construction and any proposed retaining walls shall be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate.

DA040 Where any excavation extends below the level of the base of the footing of a building on an adjoining allotment of land, the person causing the excavation shall support the neighbouring building in accordance with the requirements of the Building Code of Australia.

DA044 The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with AS3740. Certification is to be provided to the Principal Certifying Authority from a licenced applicator prior to the fixing of any wall or floor tiles.

DA047 A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system.

DA048 The implementation of adequate care during demolition/ excavation/ building/ construction to ensure that no damage is caused to any adjoining properties.

DA058 An adequate security fence, is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project.

DA357 Four (4) copies of Architectural Drawings consistent with the development consent and associated specifications are to be submitted to Council/Accredited Certifier prior to the issue of the Construction Certificate.

DA109 All demolition is to be carried out in accordance with AS2601-2001.

DA111 Asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority.

DA085 Roofwater and surface stormwaters from paved areas from the development shall be collected and piped to the harbour foreshore according to Council's Specifications for Stormwater Drainage and On Site Stormwater Management 2003 and shall be submitted with the Construction Certificate application. The principal Council/Accredited Certifier shall ensure that the design complies with the above said specification prior to the issue of a Construction Certificate.

DA087 A detailed stormwater management plan shall be prepared to fully comply with Council's "Specification for on-site Stormwater Management 2003" and shall be submitted with the Construction Certificate application. The stormwater management plan shall be prepared by a suitably qualified Engineer. The principal Council/Accredited Certifier shall ensure that the design complies with the above said specification prior to the issue of a Construction Certificate

DA097 Any work shall not prohibit or divert any natural overland flow of water.

DA121 All building work must be carried out in accordance with the provisions of the Building Code of Australia.

DA126 An automatic fire detection and alarm system shall be installed in the proposed dwelling in accordance with the requirements of Part 3.7.2 of the Building Code of Australia 1996 - Housing Provisions.

DA230 No building materials, waste containers or skips may be stored on the road reserve or footpath without prior separate approval from Council, including payment of relevant fees.

DA261 A sediment/erosion control plan for the site shall be submitted for approval to the Council/Accredited Certifier prior to the issue of the Construction Certificate. Implementation of the scheme shall be completed prior to commencement of any works on the site and maintained until completion of the development.

DA269 A Construction Certificate Application is required to be submitted to and issued by the Council/Accredited Certifier prior to any building works being carried out on site.

DA270 Should you appoint Council as the Principal Certifying Authority (PCA) to undertake inspections during the course of construction then the following inspection/certification are required:

Silt control fences Footing inspection - trench and steel Reinforced concrete slab Framework inspection X 3 Wet area moisture barrier Final inspection

The cost of these inspections by Council is $1,380 (being $230 per inspection inclusive of GST). Payment of the above amount is required prior to the first inspection. Inspection appointments can be made by contacting the Environmental Services Division on 9976 1414.

At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $110.

DA271 An Occupation Certificate is to be issued by the Principal Certifying Authority prior to occupation of the development.

DA285 Roof and framing including provision for tie downs, bracing and fixings are to be designed by a practising Structural Engineer. The Engineer is to specify appropriate wind category relating to the site terrain, house design and height of the structure, with details being submitted to the Principal Certifying Authority prior to the commencement of framework.

DA332 The capacity and effectiveness of erosion and sediment control devices must be maintained to Council satisfaction at all times.

DA337 Building operations such as brickcutting, washing tools or paint brushes, and mixing mortar not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system.

DA340 The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land. The measures must include:- (i) siltation fencing; (ii) protection of the public stormwater system; and (iii) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place.

DA289 Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1.00pm to 4.00pm Saturdays. Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours.

DA319 Details of the method of termite protection which will provide whole of building protection, inclusive of structural and nonstructural elements, shall be submitted to the Council/Accredited Certifier prior to issue of the Construction Certificate. Attention is drawn to the provisions of Australian Standard 3660.1 "Protection of Buildings from Subterranean Termites New Buildings" and to Council's Code for the "Protection of Buildings Against Termite Attack".

DA320 Prior to issue of the Occupation Certificate, a durable termite protection notice shall be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with Council's Code for the "Protection of Buildings Against Termite Attack".

DA274 Payment of contributions in accordance with Section 94 of the Environmental Planning and Assessment Act, 1979, may be required for this development. If required the amount will be in accordance with Councils Section 94 Policy applicable at the time of payment prior to the issue of the Construction Certificate.

DA323 This approval shall expire if the development hereby permitted is not commenced within 2 years of the date hereof or any extension of such period which Council may allow in writing on an application made before such an expiry.

K G Hoffman Commissioner of the Court ljr

21/01/2009 - typographical - Paragraph(s) Par 74 and Order No. 2

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.