Land and Environment Court of New South Wales CITATION : Benscher v Waverley C [2005] NSWLEC 432 APPLICANT Amanda Benscher PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10522 and 10523 of 2005 CORAM: Hoffman C KEY ISSUES: Appeal :- Alterations and additions for a single storey house - carport and front fence - streetscape - overshadowing - height - bulk and scale - privacy issues. Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 LEGISLATION CITED: Waverley Development Control Plan No. 2 - Dwellilng Houses Waverley Development Control Plan No. 14 - Land Use & Transport DATES OF HEARING: 5/08/05 EX TEMPORE JUDGMENT DATE : 08/05/2005 APPLICANT Mr M. Fraser, solicitor of Fraser Clancy Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr G. Hartley, solicitor of Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 5 August 2005 10522 of 2005 and Amanda Benscher – Waverley 10523 of 2005 Council JUDGMENT 1 This is two Class 1 Appeals, No. 10522 and 10523 of 2005, between Amanda Benscher and Waverley Council, in regard to Conditions of Consent for alterations and additions to a single storey house No. 40 Plowman Street, North Bondi. 2 Appeal 10522 was for alterations with no second storey addition. Relevant to this appeal was condition 2 of the consent requiring the front fence and returns within the front setbacks to be lowered to 1.5 m high piers and 1.3 m high infill between the piers. Applicant wanted 1.8 m high fences. 3 Appeal 10523 was for a second storey addition to the house and of relevance to this appeal was conditions 2(a)(b)(c) and (d). Condition 2(e) was conceded to the satisfaction to both parties that it been reworded to require frosted glass to 1.5 m high above the floor to windows W2.3 and W2.5 on the south elevation. Plan elevations in Appeal 10523 showed the front fence lowered to comply with the condition of Appeal 10522 but the applicant sought the 1.8 m high fence in both appeals. 4 The issues were: 1. Whether or not the condition imposed by the respondent as to the height of the fence is reasonable and appropriate. 2. Whether or nor the proposal for the height of the fence complies with the current zoning controls and guidelines set by the DCP. 3. Whether or not the proposal is sensitive to the existing, adjoining buildings and the site itself. 4. Whether or nor the form of the fencing detracts from the existing house or the neighbouring context and is consistent with local examples in the area. 5. Whether or not the proposed fence height and design is consistent with the council's planning controls within the DCP, specifically Section 7, design solution S1 of the DCP. 6. Whether or not the height of the side return piers are consistent with the DCP controls for side fences. 5 Attending the on-site hearing were for the respondent: · Mr G. Hartley, solicitor · Mr Z. Gamble, town planner of the council · Mr T. Kay, objector of No. 42 Plowman Street 6 Attending for the applicant was: - Ms M. Fraser, solicitor - Ms A. Benscher, applicant - Mr A. Schultz, architect 7 The parties took me on a walk in Patterson Street opposite the site and Plowman Street. There is a variety of fence heights from 500 mm low masonry fences up to perhaps 1.8 m or slightly below that in masonry fences or masonry piers with infill panels between piers of lattice work or iron lace work or pickets. 8 The Dwelling House DCP required 1.2 m high maximum solid front fences and returns within the front setback. If higher than that, then they are required to be "see through" fences. The intention is for low fences to keep the streetscape more open to enable surveillance of the front entrance and windows to reduce crime, and to prevent further intrusion of "walled in" frontages to the streetscape. 9 Bearing this in mind the applicant indicated that there was technical compliance with the provisions of the DCP that the solid piers were 1.8 m high and therefore higher than 1.2 m. However, the infill panels between consisted of pickets, which were evenly spaced so that they were 50% "see through" as laid down in DCP. 10 In looking at the streetscape in both Paterson Street and Plowman Street, in the vicinity of the site, it was notable that there was a great variety of fences some obviously very old and those seemed to be the lower fences, and others being of the higher variety perhaps approved in the last 10 or 15 years. The DCP obviously had the intention to be different in future to the high blank walls that exist as front fences in some of the properties nearby. 11 Immediately adjoining the proposal on it's northern side was a low brick fence of only about 500 mm high, and on the south side a fence that had a 500 mm masonry lower section and then wrought iron infill panels up to about 1.5 m. 12 Being conscious that the future intention of the council was to have a more open appearance, I see no reason to support the applicant's proposal for 1.8 m high fence as it would only contribute to the greater inclosure of the subject property preventing surveillance to reduce crime, and adding to the "walled in" frontages seen elsewhere in the streetscape. 13 Therefore my decision in Appeal 10522 is that the applicant's appeal on that matter is dismissed. 14 The drawings in Appeal 10523 show the front fence and returns within the front setback in accordance with conditions in Appeal 10522. No further condition is required to ensure consistency with the other decision. 15 In regard to the other outstanding matters the proposal in Appeal 10523 had a carport that was 4.050 m between the brick piers at the carport entry. The applicant sought this in order for a car to be able to enter and open doors on both sides without striking the brick piers; and, when a car was in the carport to enable the garbage bins to be rolled out from a side gate at the back of the carport, and for bicycles etc to pass by the car without scratching etc. 16 The council opposed this on the basis that it increased the bulk of the carport that was designed with a pitched roof to match the house. This would make the visual impact too great in the streetscape. Also, since the allotment was about 10.67 m wide, the carport including piers would be about 4.8 m wide and occupy just over 40% of the frontage. 17 Practical requirements of the applicant when seen on the site did not seem unreasonable to me. The additional width above what would normally be a 3 m wide carport plus piers, would not create such an impact on the streetscape, that it would be noticeably different to the smaller carport. It would not achieve the proportions of a double carport, the width between the piers would not enable two cars to enter the structure. The ornate brick piers which are part of the architectural treatment would also prevent future amendment to enable two cars to be accommodated. 18 Given the decision on the front fence, it seems to me that the increased width of the carport is not unreasonable in the circumstances of this case. Therefore I propose to delete conditions 2(a) and (b), in Appeal 10523. 19 In regard to condition 2(c) the respondent pressed that the balcony still be reduced to 1.5 m width in order to minimise the potential to use it for entertainment and thereby minimise aural privacy and visual privacy impact particularly on Mr Kay to the south. 20 The applicant during the course of the hearing had made the concession that the balcony would be reduced in width by installing a second masonry wall inside the outer one to create a built in planter box 600 mm wide. This would substantially reduce the width of the balcony without changing the architectural treatment to the street. 21 The applicant also conceded to put a similar planter box 400 mm wide along the southern side of the balcony in order to overcome the need for a privacy screen required in condition 2(d). The applicant also debated the need for the privacy screen since it would only enable overlooking of Mr Kay's front yard and a window to his front sunroom, which did have vegetation and Venetian blinds covering the glass. 22 There was concern however, that a person on the balcony might be able to look back into the study window, which was slightly down the driveway on Mr Kay's property. 23 It seems to me that the concessions offered by the applicant are sufficient to give reasonable aural and visual privacy by limiting the size of the front balcony since it is off the master bedroom and would not usually be thought to be a place of general entertainment for guests. Although the residents might indeed use it themselves quietly to read a magazine or relax. I therefore propose to amend condition (c) in accordance with the applicant's concession and delete condition (d). 24 There was a further matter raised by Mr Kay in his objection in regard to the loss of sunlight to his living room and study room windows on his northern elevation, which would be completely overshadowed by the second storey of the proposal. I noted that the council had already approved the second storey addition and therefore to a large extent the matter is taken out of my hands. 25 In addition, it was pointed out that the DCP had no requirements numerically for the retention of solar access in situations such as this. It simply requires "reasonable" solar access to be maintained. In the design of the proposal the applicant had modified the roof at the rear to enable sunlight to go to Mr Kay's dining room window and had also agreed to lower the pitch of the roof to 25o. 26 It was my opinion that the concession at the rear of the proposal was a good concession, and that the preserving of solar access to the other side window was almost impossible due to the proximity of the two buildings. The subject proposal did comply with council's height and setbacks controls. In fact the height was considerably lower than the maximum permitted by the council. In those circumstances it was not a reasonable expectation for Mr Kay to preserve sunlight to those windows in mid winter. He said he was more concerned about the fact that the shadows would probably extend three months either side of June 21ST whereas at present time even in mid June he got direct sunlight to those windows. He sought that the ceiling height of the upper floor be reduced to 2.5 m from the 2.7 m shown. 27 The applicant's architect I think quite correctly made the observation that even that difference in height would not return the sun to Mr Kay's windows. Further 2.7 m ceiling height is becoming the de facto new minimum ceiling height because it is being put forward by the State Government in its BASIX controls as the appropriate height in habitable rooms rather than the statutory 2.4 minimum. 28 The applicant could have gone to Cathedral ceilings in the upper floor in order to obtain additional height whilst lowering the wall height. However, that would have involved additional expense, on which there was little evidence at this hearing. It seems to me that in regard to the shadowing of the adjoining properties it is not unreasonable to permit the development as proposed. 29 Therefore the orders of the Court in Appeal 10522 of 2005 is: 1. The appeal is dismissed. 30 The orders of the Court in Appeal 10523 of 2005 are that: 1. The appeal is upheld in part. 2. The development consent No. DA-141/2005 granted by Waverley Council on 3 August 2005 is hereby amended as follows: Conditions 2(a) and (d) are deleted. Condition 2 (c) is deleted and replaced with: "The front balcony is to be reduced in floor area by the construction in masonry and concrete of a permanent planter box inside the west and south masonry balustrades for the full length of both balustrades. The western planter box is to be 600 mm wide internal dimension, the southern planter box 400 mm wide internal dimension. Depth for soil at least 400 mm in each and be planted with salt tolerant vegetation to be maintained in thriving condition and replaced if needed for the life of the structure. The door onto the balcony to be reduced in width and centralised appropriately on the balcony as seen from the street." Condition 2(e) to be deleted and replaced with: "Translucent frosted glazing to be installed to 1.5 m height above the first floor level to windows W2.3 and W2.5 on the southern elevation to reduce privacy impacts upon the neighbour to the south." 3. The exhibits are returned to the parties except Exhibits A, B, C and 4. 4. No order as to costs. ___________________ K G Hoffman Commissioner of the Court Ljr/rjs 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.