Land and Environment Court of New South Wales CITATION : Mendes H v Kogarah C [2005] NSWLEC 91 APPLICANT Helena Mendes PARTIES : RESPONDENT Kogarah Council FILE NUMBER(S) : 11458 of 2004 CORAM: Tuor C. Development Consent :- Section 96 application to use garage roof as outdoor terrace. Bulk and privacy impact on adjoining residents KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Kogarah Local Environmental Plan 1998 CASES CITED: Progress and Securities Pty Limited v North Sydney Council 1998 66 LGRA 236 DATES OF HEARING: 15/02/2005 EX TEMPORE JUDGMENT DATE : 02/15/2005 APPLICANT Mr Hall, barrister instructed by Mr Kapetas of Taouaras Legal LEGAL REPRESENTATIVES: RESPONDENT Mr Griffiths, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 15 February 2005 11458 of 2004 Helena Mendes v Kogarah Council JUDGMENT 1 This is an appeal against Kogarah Council's refusal of a s96 application to amend the development consent 163/97 at 20 Myers Street, Sans Souci. 2 The development application was approved on 3 June 1998, for "the construction of an attached dual occupancy development" subject to conditions, including condition 22, which states that "access for the dwelling to the roof area of the garages is not permitted." 3 The s96 application seeks to delete condition 22 and to use the roof area of the northern dwelling of the dual occupancy as a terrace. The development has been constructed and the rooftop area of the garage is being used as a roof terrace off this dwelling's living areas. The area adjoins the garage roof of the southern dwelling of the dual occupancy development. The amendment does not propose that this area be used as a terrace. 4 The site is zoned Residential 2(a) (low density) under Kogarah Local Environmental Plan 1998 (LEP 1998). Dual occupancy developments are now not permissible within the zone but the roof terrace is ancillary to the approved residential use and is permissible with consent. 5 The objectives of the zone are relevantly: a) to provide for housing needs for Kogarah area; b) to maintain the amenity of low density environment of areas predominantly characterised by detached dwelling houses. 6 Clause 7(2) of the LEP requires the consent authority to be of the opinion that development is consistent with the objectives of the zone if consent is to be granted. Kogarah Residential Development Control Plan - Better Home Design Guide (DCP) is also relevant. Although it does not provide specific provisions relating to rooftop terraces. 7 Section 5.5 of the DCP relates to privacy, safety and security and relevantly includes the following objective: Ensure the siting and design of buildings provides a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open spaces. 8 It includes performance criteria that buildings are to be designed and located to minimise direct overlooking and external noise reaching private open spaces. 9 A description of the site, its context and the history of the application are contained in the Statement of Basic Facts. No expert evidence was provided. 10 The Court visited the site and heard evidence from Mr and Mrs McCarthy, 22 Myers Street, and Mrs L O'Brien, 18 Myers Street. The main concern of the residents was the impact that the existing development had on their amenity and that this amenity would be further eroded by the approval of the deck. 11 The deck had formed part of the original application but this had been amended to delete the deck and a condition had been included in the consent to restrict the use of the garage roof area. Both the McCarthy's and Mrs O'Brien considered that the approval and this condition should be retained. They stated that the impact of the proposal as a whole had been assessed at the time of approval and the provision of open space was found to be acceptable. In their opinion approval of a deck would be a further example of incremental reduction in their amenity. 12 Mr Griffiths, for the Council, referred to the principles of Progress and Securities Pty Limited v North Sydney Council 1998 66 LGRA 236, which he summarised as being that in accepting the benefits of a consent the responsibilities and burdens of that consent must also be accepted. He stated that the applicant had agreed that the development provided sufficient open space without the roof deck, had deleted the roof deck from the application and had accepted a condition that it not be used. The circumstances had not changed to warrant a change to the approval. 13 Mr Hall, for the applicant, stated that the redevelopment of No. 22 from a single to a two-storey development had changed the circumstances from the original approval by removing the view previously enjoyed by No. 20. Further he stated that No. 22 was now set back and had no windows other than bathroom windows on its boundary to No. 20. Mr Griffiths stated that this had been done in order to minimise the impacts of No. 20 on the open space of No. 22. 14 The McCarthy's main concern with the current proposal were the increased bulk that would result from the privacy screen, the overlooking of their back garden, and the noise impacts particularly resulting from the size of the terrace being some 48 sq m. They had additional concerns about odour from barbeques into their property and the resultant need to close their windows as well as the loss of sun. 15 Mrs O'Brien had similar concerns of both visual and aural privacy. In particular she was concerned about her existing ground floor deck and swimming pool being already overlooked by the deck at No. 16 and what little privacy she had would be diminished by the current proposal. 16 Both residents were concerned that approval of the deck would create a precedent for the roof of the southern dwelling. Council also raised concerns about the privacy between the two dual occupancy developments. At the moment both dwellings are occupied by the same extended family and are in the one title. However, Council considered that this could change and the relationship of the deck to the adjoining bedrooms of the southern dwelling would be unsatisfactory. 17 In considering the application with regard to the principles in Progress and Securities, I accept Mr Hall's submission that the circumstances have changed since the original approval. The two-storey development, setback and use of the upstairs rooms at No. 22 is different to what existed at the time of the original approval. While I accept that this was done by the McCarthy's to seek to minimise the impact of the development at No. 20 on their outdoor living space, it is a change in circumstances that is sufficient to mean that the impact of the terrace on No. 22 can be reassessed. It is obvious that the impact of the proposed roof terrace may be different depending upon what it adjoins. 18 In examining the impacts of this proposal, I find that the view from the deck over No. 22, even without the privacy screen, is limited. With the privacy screen there is no view over the adjoining property. The additional bulk that the privacy screen adds to the development is negligible. Views to this part of the garage from No 22 are largely restricted and the increase in the height of the balustrade with an opaque glass screen will not materially add to the bulk of the building. Particularly when the overall bulk of the development is considered, which Mr McCarthy understandably finds to be oppressive. 19 In relation to aural privacy the size of the deck is approximately 48 sq m and is relatively large. I note that Council does not have any controls that limit the size of decks but the impacts on privacy are required to be assessed. There are a number of decks in close proximity to the proposal, which vary in size but those at No. 1A The Boulevard and No. 24 Myers Street are also large areas. 20 The decks in the area are unscreened and permit overlooking of adjoining properties. I do not accept that these should be taken as a precedent for approval of this deck as the degree of overlooking that they permit does not appear to be what is normally considered to be acceptable. The proposed deck, particularly with the screen, would not permit overlooking to the same extent as these existing decks. However, the fact that there are other decks of similar size to the one proposed is a relevant consideration in assessing the proposal's consistency with the 2(a) zone. 21 The proposal includes 1m wide planter boxes to the east and west which would reduce the size of the deck. I consider that this should be extended to the southern boundary to further limit the deck size and provide separation and privacy to the bedroom windows of the other dual occupancy dwelling. The applicant and Council have agreed to this. 22 I find that the noise likely to be generated would be no different to that of adjoining back gardens and that even in a low density residential area it is reasonable to hear the activities of neighbours. I make the same comment in relation to smell, it is not unreasonable for there to be the smell of a barbeque and this would be no different to adjoining back gardens. 23 In relation to the impact on Mrs O'Brien, the properties are separated by a road that provides sufficient distance to prevent unreasonable aural and visual privacy impact. The proposed planter box will provide added screening to prevent distant overlooking. 24 In relation to loss of sun, the overshadowing diagrams that formed part of the original application indicate that the shadow at 3pm in mid-winter is over the road and any increase from plants is unlikely to affect No 18. The increase in shadow in the morning as a result of the screen wall will have a negligible impact on No 22. 25 I therefore find that the proposal has minimal impact on the adjoining neighbours while providing a useful outdoor area directly adjacent to the living areas of No. 20. I do not consider it to be an unreasonable desire on the part of the applicant for additional open space provided it does not unreasonable impact on adjoining properties. 26 In reaching this conclusion I note that the roof area of the southern dwelling would have greater bulk and privacy impacts if it were also to be used as a roof terrace as it can be viewed directly from No. 22. This area opens directly off bedrooms and therefore does not have the same relationship with living areas as the current proposal. There is no proposal to use this roof as a terrace but this approval should not be a precedent for any future proposal as the circumstances and likely impacts are different. 27 The orders of the Court are: 1. The appeal is upheld. 2. The s96 application to modify development consent 163/97 for a dual occupancy development at 20 Myers Street, Sans Souci is approved and the consent is amended as follows: Replace condition No 1 with 1. The development of the site being carried out generally in accordance with the information and plans identified as Drawings No A-02 'B', A-05 'A' and A-06 and Drawings No A-03 'E' and A-04 'E' except where amended by conditions specified hereunder. Delete condition 22 Add new condition 34 34. That planter boxes having a minimum width of 1m shall be constructed along the southern, eastern and western sides of the terrace for the northern dwelling and suitable plants are to be installed so as to form a continuous, evergreen landscape screen to a height of 1.6m above the floor level and thereafter to be maintained at that height so as to reduce the area of the terrace and the potential adverse amenity impacts to the adjoining property owners. Add new condition 35 35. Access to the roof area of the garage of the southern dwelling is not permitted. 3. The exhibits, except Exhibits A, 1, 2 and 8 may be returned. 4. No order as to costs. _________________________ Annelise Tuor Commissioner of the Court ljr 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.