Land and Environment Court New South Wales Medium Neutral Citation: Oates v Northern Beaches Council [2021] NSWLEC 1684 Hearing dates: 4 November 2021 Date of orders: 9 November 2021 Decision date: 09 November 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: 1) The appeal is dismissed. 2) Development Application No. 2020/1684 for alterations and additions to a group home to enlarge the northern balconies, at 89 Wyadra Avenue, North Manly, is refused. 3) The exhibits, other than Exhibits 1 and C, are returned. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing group home to enlarge balconies – amended development application – visual privacy and amenity impacts – building bulk uncharacteristic of the low density residential locality Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Warringah Local Environmental Plan 2011 Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Texts Cited: Warringah Development Control Plan 2011 Category: Principal judgment Parties: Tom Oates (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Farrell (Respondent) Solicitors: Self-represented (Applicant) Northern Beaches Council (Respondent) File Number(s): 2021/177837 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2020/1684 for alterations and additions to a group home known as Manly House to enlarge the northern balconies, including opaque or solid balustrades, privacy screens and planter boxes (the proposal), at 89 Wyadra Avenue, North Manly (the site) by Northern Beaches Council (the Council) on 16 June 2021. 2. The appeal was subject to conciliation on 9 August 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. The development application is amended 1. The applicant sought leave to amend the development application to rely on the amended sketches in the Class 1 Application bundle (Ex C). The Council, as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agreed to the applicant amending the application. 2. I made the following orders on 4 November 2021: "(1) The applicant is granted leave to amend Development Application No. 2020/1684 to rely on the sketches in the Class 1 Application bundle, Exhibit C. (2) The parties are to facilitate the amended application being lodged the on the NSW planning portal by 11 November 2021, and the applicant is to file a copy of the amended development application after the amendment has been lodged on the NSW planning portal." 1. The Council uploaded the amended development application on 4 November 2011 and filed the sketches shortly afterwards. Issues 1. The Council's contentions can be summarised as: The proposal would provide inadequate visual privacy to neighbouring properties and result in an unreasonable adverse impact on those properties. The proposed privacy screening would contribute to unreasonable bulk and scale and not consistent with the character of the area. The proposal is not in the public interest. The site and its context 1. The site is on the north-eastern corner of Wyadra Avenue and Quilpie Street, North Manly. The site has an area of 543m2. 2. The site contains a three storey building used as a group home. The existing building consists of two structures, one north and one south, with a flat roof and cantilevered balconies on the southern and western elevations. The northern elevation includes balconies on the first and second floors to four bedrooms, with a non-trafficable area of the slab extending beyond the balconies on the first floor to form the roof of a carport, and a non-trafficable area of the slab extending beyond the balconies on the second floor. The site has vehicular access from Quilpie Street. 3. The locality has a low density residential character, with one and two storey dwellings in garden settings. The proposal 1. The proposal is to enlarge the balconies on the first and second floors of the northern elevation, by extending the balconies over non-trafficable areas of existing concrete slabs on both levels. The balustrades of the balconies are to be 1.2m high and opaque or solid. The sides of the balconies include 1.65m high privacy screens. The new balustrades and privacy screens include planter boxes along the northern and western sides, supported by the existing slabs. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to Warringah Local Environmental Plan 2011 (LEP 2011). The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah. 1. The proposal is permissible with consent in the R2 zone. 2. The Warringah Development Control Plan 2011 (DCP 2011) applies to the site at Part A.3. 3. Part D Design of DCP 2011 includes objectives and requirements for private open space (including balconies), at D2, as follows: "Objectives • To minimise any adverse impact of private open space on adjoining buildings and their associated private open spaces. Requirements 4. Private open space is to be located and designed to ensure privacy of the occupants of adjacent buildings and occupants of the proposed development." 1. Part D of DCP 2011 includes objectives and requirements for privacy, at D8, as follows: "Objectives • To ensure the siting and design of buildings provides a high level of visual and acoustic privacy for occupants and neighbours. • To encourage innovative design solutions to improve the urban environment. • To provide personal and property security for occupants and visitors. Requirements 3. The effective location of doors, windows and balconies to avoid overlooking is preferred to the use of screening devices, high sills or obscured glass. 5. Planter boxes, louvre screens, pergolas, balcony design and the like are to be used to screen a minimum of 50% of the principal private open space of a lower apartment from overlooking from an upper apartment." 1. Part D of DCP 2011 includes objectives and requirements for building bulk, at D9, as follows: "Objectives • To encourage good design and innovative architecture to improve the urban environment. • To minimise the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes. Requirements 7. Landscape plantings are to be provided to reduce the visual bulk of new building and works." Public submissions 1. Written submissions objecting the proposal are included in the Council's bundle (Ex 2, tabs 12 and 23). The submissions raised concerns regarding the exacerbation of the existing amenity impacts by the proposal on the privacy of backyards and rooms of dwellings to the north and north-east of the site caused by overlooking from the northern balconies of the existing development. Expert evidence 1. The Council relied on the expert planning evidence of Jeff Mead. Mr Mead prepared an expert report (Ex 3) and gave oral evidence. 2. The applicant did not engage a planning expert to give evidence and consequently, there is no joint planning report in the proceedings. Consideration 1. I accept Mr Mead's uncontested expert planning evidence, summarised as follows: * The enlarged balconies will contribute greater amenity to the bedrooms on the northern side of the existing development. * The obscure or solid balustrade to a height of 1.2m successfully deals with the overlooking issue when in a seated position on one of the extended balconies. * From a standing position on the extended balconies, there is a privacy issue of overlooking the backyards and rear rooms of the dwellings to the north and north-east of the site. The proposal will provide direct and unobstructed sightlines into the rear of properties 33 and 35 Thomas Street. The proposed enlargement of the existing north-facing balconies would further exacerbate the degree of overlooking into neighbouring properties by virtue of allowing occupants of the development to traverse closer to the outer edge of the existing slab structure and this would result in greater opportunities for overlooking neighbouring properties. * The degree of overlooking caused by the proposal is inconsistent with the objectives of Part D, D2 Private Open Space of DCP 2011, because the proposal reduces the setback to shared boundaries, reduces privacy for neighbours and is detrimental to the amenity of surrounding residences. * Landscaping on the site and in planter boxes should not be relied upon as the sole means of providing privacy to adjoining properties. The planting proposal is unclear and ambiguous. The proposed height of vegetation in the planter boxes is 1m and this will not assist with screening of standing views from the extended balconies. * The existing development is uncharacteristically proportioned compared to surrounding development. The addition of the proposed privacy screens at each end of the extended balconies would elongate the built form and would enclose an otherwise open portion of the building envelope, thus increasing the visual bulk, scale and visual dominance of the development. The obscure or solid balustrades to a height of 1.2m, the privacy screens, and the planter boxes, will add further bulk to an existing bulky building envelope that is already contrary to the character of the low density residential zone. * The form of the existing development does not provide an adequate opportunity for the establishment of deep soil landscaping at the northern end of the property, which is inconsistent with the layout of surrounding properties which provide generous back gardens and generally a 12m deep rear setback. 1. I am satisfied, by all of the evidence before me, that the proposal to extend the northern balconies towards the rear boundary of the site and to enclose those balconies with obscure or solid balustrades 1.2m high, privacy screens 1.65m high at the eastern and western ends and planter boxes, is contrary to the objectives for private open space and privacy; to minimise any adverse impact of private open space on adjoining buildings and their associated private open spaces, at D2 of DCP 2011; and to provide a high level of visual and acoustic privacy for neighbours, at D8 of DCP 2011. The location of the extended balconies, close to the shared boundary at the rear of the site, does not protect the privacy of adjoining neighbours. The proposal adds unacceptable bulk to an already uncharacteristically large building envelope in a low density residential area. 2. Mr Oates tendered a report by an Occupational Therapist (Ex A) regarding the benefits of a larger balcony to an occupant of the existing development. The Council submitted that the proposal to enlarge the northern balconies would result in greater amenity for the occupants of the existing development, however, this does not trump other town planning considerations including the privacy and amenity of neighbours. Mr Oates submitted that the amenity of the occupants of the existing dwelling, and the rights of the disabled, should be given priority. 3. I accept the Council's submission that the personal circumstances and requirements of one of the current occupants of the group home, as described in Ex A, is not a relevant consideration, because development consents "run with the land" (Davies v Penrith City Council [2013] NSWLEC 1141 at [120]). The plans the subject of the appeal do not comply with the Court's Practice Note 1. The sketches in the Class 1 Application (Ex C) do not comply with the requirements for plans listed under Schedule A to the Court's Practice Note – Class 1 Development Appeals made on 22 March 2017. 2. The sketches are hand drawn over the original plans of the development with notes imposed over the plans. There is no survey plan; no site plan; no sections; the floor plans are incomplete and obscured by notes, the proposal is un-dimensioned and the materials unspecified; and there is no landscape plan. 3. The Council submitted that there are fundamental defects and deficiencies in the application, which made the assessment of the application difficult. 4. The applicant submitted that the plans should not have to fully comply with the requirements of Schedule A and could be "proportionate" to the proposal, as the original proposal was a simple relocation of the balustrades on the northern elevation. The applicant submitted that he was unwilling to invest in drafted plans without being certain of the outcome of the application. 5. The Council's (without prejudice) conditions of consent (Ex 4) include a deferred commencement condition to address the deficiencies in the application and, according to the Council's submission, "provide certainty about what is being finally approved". The deferred commencement condition proposed is in the following terms: "1. Deferred Commencement Condition – Balcony Treatment Prior to this development consent becoming active, plans shall be provided to the satisfaction of Council's Manager Development Assessment which identify the following: a) A continuous planter box is to be constructed with 600mm height and 500mm width along the northern edge of the Level 1 and Level 2 balconies, returning along the western side to the alignment of the northern external wall. The planter box is to be constructed from materials to achieve consistency with the existing building. b) The planter box referred to in (1) above is to incorporate Metrosideros 'thomasii' or Murraya paniculata of 300mm pot size, planted at 600mm centres. c) The planter boxes are to be irrigated and details of this irrigation system shall be provided in the plan. d) A privacy screen is to be erected on the southern side of the planter referred to in (11.a), using fixed angled lightweight aluminium panels that preclude northwards views. The screening is to be a height of 1.5m. The screen is to include a removable panel to each balcony to enable maintenance access. e) A solid screen to a height of 1800mm is to extend north-south on the Level 1 and Level 2 balcony to separate the private open space to individual rooms. f) A privacy screen, 1.65m in height and comprising fixed angled lightweight aluminium panels that preclude eastwards views is to be erected on the eastern end of the Level 1 and 2 balconies, extending from the southern edge of the planter referred to in (1) to the northern external wall of the building. g) Structural certification of the proposed design shall be provided to the satisfaction of Council's Manager Development Assessment. h) A Landscape Maintenance Plan shall be provided to the satisfaction of Council's Manager Development Assessment. The Plan shall include provision for replacement of nutrients lost over time, as well as a schedule for pruning and general upkeep. The Plan shall require inspection by Council's Manager Development Assessment, or delegated officer, at planting and at 12 months after establishment. The Plan shall include provisions that should any planting fail in the establishment period, or in perpetuity, that planting shall be replaced in accordance with this condition. Evidence to satisfy these conditions must be submitted to Council within two (2) years of the date of this consent, or the consent will lapse in accordance with Section 95 of the Environmental Planning and Assessment Regulation 2000." 1. I do not accept that many of these matters could have been postponed until after (a deferred commencement) consent was granted, because the deficiencies in the application, including the inadequacies of the sketches depicting the proposal in Ex C, result in uncertainty as to the precise form and materiality of the proposal and its relationship to adjoining developments (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 739). This issue with the application has not been determinative because I have instead dismissed the appeal based on the merits of the proposal. Conclusion 1. The proposal results in unacceptable visual privacy impacts on adjoining properties and the bulk and scale of the proposal is inconsistent with the low density residential character of the locality. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 2020/1684 for alterations and additions to a group home to enlarge the northern balconies, at 89 Wyadra Avenue, North Manly, is refused. 3. The exhibits, other than exhibits 1 and C, are returned. ____________ Susan O'Neill Commissioner of the Court ********** 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: 09 November 2021