Land and Environment Court of New South Wales CITATION : Giordano v Leichhardt Municipal Council [2005] NSWLEC 278 APPLICANT Stephen Giordano PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 11645 of 2004 CORAM: Nott C Development Application :- proposal to reduce the height of a balustrade around a rear first-floor deck and to extend a polycarbonate roof over the whole deck - existing balustrade 1.7 m high - privacy and amenity of adjoining neighbours overlooked from deck - interpretation of a building certificate KEY ISSUES: Environmental Planning and Assessment Act 1979, s 97 LEGISLATION CITED: Leichhardt Residiential DCP CASES CITED: Super Studio v Waverley Council [2004] NSWLEC 91 DATES OF HEARING: 08/04/2005 DATE OF JUDGMENT: 07/12/2005 APPLICANT Mrs M-L Taylor, solicitor SOLICITORS LEGAL REPRESENTATIVES: Norman Waterhouse RESPONDENT Ms A Sowden, council's employed solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 12 July 2005 11645 of 2004 Stephen Giordano v Leichhardt Municipal Council [2005] 11645 of 2004 JUDGMENT 1 Commissioner Nott: This is an appeal against the council's refusal of a development application to reduce to 1.36 m the height of a balustrade around an existing first-floor deck at the rear of a dwelling at lot 1 DP 563, 1 Wells Street, Annandale, and to extend the polycarbonate roofing over the whole deck. This development application was lodged with the council on 23 February 2004, reference D/2004/90. 2 The council refused the above application by notice of determination dated 16 June 2004. At the hearing, the council opposed the granting of consent having regard to the objections of adjoining neighbours whose main concern was that their privacy would be affected. 3 In order to understand the concerns of the neighbours, it is necessary to refer to some of the history relating to the construction of the subject first-floor deck and balustrade. The building on the subject site was originally a single-storey building. 4 By a notice of determination dated 15 May 2001, the council granted development consent (to application D/2000/817) for a first-floor addition to the existing shop and residence and for the erection of a carport at the rear. That consent was subject to conditions 4(a) and (c), which required the proposed first-floor deck to be deleted or, alternatively, enclosed with no window openings in the rear enclosing wall. However, the applicant did not implement those conditions. 5 A subsequent development application, D/2001/402, was lodged relating to the rear part of the building. The plans dated 14 June 2001 accompanying this application show the proposed rear deck as having a lattice balustrade 1.2 m high. However, condition 4(a) of the notice of determination dated 15 April 2002 granting development consent required that this lattice balustrade be deleted and replaced by a 1700 mm high fixed louvred balustrade so as to preserve the privacy of neighbouring properties. 6 Moreover, condition 4(b) of the development consent of 15 April 2002 envisaged that there would be detailed landscaping along the rear (that is, eastern) boundary: A detailed landscape plan, prepared by a suitably qualified landscape architect, detailing suitable screening plans to the eastern boundary to ensure privacy and amenity is maintained to the adjoining property shall be submitted. The plan shall specify type, height, location, and number of plants that is proposed. Details of the above privacy measures are to be submitted with the application for a construction certificate. 7 The construction-certificate plans (relating to the consent of 15 April 2002) are dated 24 September 2002 and bear the council stamp of approval dated 28 October 2002. The plans show, among other things, a 1.7 m high louvred balustrade around the rear first-floor deck, consistent with condition 4(a) of the development consent (par 5 above). However, it is not apparent that the applicant submitted a landscape plan for approval (par 6 above). 8 Another condition of the consent of 15 April 2002 was that the roofing over the deck was to be half solid and half slats with the slats being 50% open (condition 3(e)). This was achieved in the construction-certificate plans dated 24 September 2002 by having the western half of the roof covered with polycarbonate translucent material, and the eastern half as a slat-covered pergola. 9 What in fact has been constructed? The evidence indicates that the rear deck or balcony has a total area of 11.21 sq m. It is 3.865 m wide and 2.9 m deep. Around the open eastern end and open northern side are vertical louvred timber slats forming a balustrade. Across the top of this timber balustrade is a horizontal railing, the top of which is 1.365 m high above the floor of the deck. On top of this horizontal railing of the balustrade, the applicant erected translucent glass panels, and the top of the timber frame of the glass panels is 1.708 m above the deck. There were four such glass panels with timber framing across the rear (or eastern) end of the deck and apparently similar glass panels above the balustrade on the northern side. 10 The balustrade and timber-framed glass panels can be seen in a photograph taken by an adjoining neighbour (exhibit G), a copy of which I reproduce below: 11 At the time of the hearing, only one of these glass panels was in place and the other glass panels were (temporarily (?)) replaced with solid board panels. The actual existing structures are generally in accordance with an (unapproved) plan entitled "Confirmation of Roofing & Balustrading to First Floor Deck" dated 30 April 2003 (ex F), except that the glazed panels (save for one panel) are now temporarily installed solid boards. 12 Insofar as the timber-louvred balustrade does not extend up to height of 1.7 m, it is not in accordance with condition 4(a) of the consent of 15 April 2002 and not in accordance with the approved construction-certificate plans. 13 However, it is open to the applicant to apply for development consent to reduce the approved height of the timber balustrade (which should have been 1.7 m high above the deck) so that the balustrade would be 1.365 m high, measured from the floor of the deck to the top of the existing timber horizontal railing. In other words, the existing solid panels across the top of that railing would be removed. In effect, this is what the applicant is applying for in the present appeal; and he is also applying to extend the polycarbonate roof over the rear half of the deck (par 1 above). 14 The evidence is not altogether clear as to when the first-floor addition together with the deck at the rear was erected. It appears that the balustrade was erected probably in about March 2004, that is, prior to the issue of building certificates BC/24/2004 and BC/53/2004, each dated 21 October 2004. In accordance with s 149E of the Environmental Planning and Assessment Act 1979 a council is precluded from taking legal proceedings in respect of any unlawful building work that is the subject of a building certificate. 15 What is the subject matter of each of the building certificates? The first building certificate, BC/24/2004, approved an increase in the heights of the first-floor RL and of the first-floor ceiling and pergola by 110 mm; this certificate only related to those structures. 16 The subject matter of the second building certificate, BC/53/2004, is uncertain. In the answer to the request for particulars of the building, whether "part of building" or "whole of building", the certificate simply says "1a". I do not know what that answer means. It seems to me that the building certificate has to be read in the light of the information in the schedule to the building certificate where the council states what information it used in deciding to issue the certificate. This information was: "architectural 'works as executed' plans dated 23.02.04 prepared by Classic Plans; architectural 'works as executed' plans dated 17.03.04 sheet 1-2 and sheet 2-2; surveyor's sketch plan prepared by G V Hull and Associates dated 06.02.04." The survey plan dated 6 February 2004 was tendered in evidence. But neither the applicant nor the council could find the works-as-executed plans referred to in this second building certificate. 17 In the circumstances, I place no reliance on BC/24/2004. I am not satisfied that the building certificate authorised glazed panelling on top of the 1.36 m high timber balustrade. 18 However, during the hearing I raised with the parties the possibility of the Court granting an alternative form of development consent to application D/2004/90, if the Court was not minded to allow a reduction of the height of the balustrade so that there was no panelling on top of the 1.36 m high vertical louvres. That is, instead of solid boards in the timber framing above the existing vertical timber slats, could approval be given for translucent glazing to be inserted in the framing, as was apparently originally unlawfully carried out (par 10 above)? 19 Such glazing would prevent overlooking to the adjoining neighbours' properties at the rear at Nos 84, 84A and 86 Nelson Street—which was their main objection to the present development application. At the same time, glazing at the upper part of the balustrade would reduce the closed-in effect complained of by the applicant. From the applicant's point of view, the glazing would appear to be better than having solid boards in the framing above the existing vertical timber slats; and would probably be better than having the slats continue up to a height of 1.7 m, as was required by the development consent dated 15 April 2002 (par 5 above). Of course, the applicant's desire was that there should be no panelling at all and that the balustrade should extend to a height (including the railing) of 1.36 m above the floor of the deck—which, however, would allow significant overlooking of the small private rear yards of Nos 84 and 84A and perhaps some minor overlooking into part of the rear bedroom of No. 86. 20 Mr Fern, who lives at No 84A, was opposed even to having the glazed panelling, because he said that he would still be able to know when any persons were on the deck, although those persons could not overlook his property. He also expressed a concern that a light on the deck could reflect from the polycarbonate roof extension. Having regard to the distance between the rear deck and that rear of the dwelling on No 84A, I am of the opinion that this is not a sufficient reason to reject the glazed panelling and roof extension. The lighting would only be normal domestic lighting and presumably would only be used at times when the deck was in use. A bedroom, as well as a small hallway, has access onto this deck. 21 As regards acoustic privacy for the adjoining neighbours, it seems to me that there would be little or no discernible difference resulting from the structures that the applicant seeks or from the possible alternative form of development consent, as compared with the approved 1.7 m balustrade. 22 As I said, the main concern of the neighbours was that, if the balustrade was reduced in height to 1.36 m, there would overlooking into the private areas of their properties from the applicant's deck. The distance from the rear edge of the applicant's deck to the rear boundary of his land is approximately 8.4 m. A narrow walkway 1 m wide separates the rear boundary of his land from the rear boundaries of Nos 84 and 84A. The read boundary of No. 86 is not directly behind the subject land—the survey plan shows that only the southwestern corner of that property is coterminous with the northeastern corner of the subject land. 23 According to the evidence of the local residents, the councillors viewed the relationship of the subject land to adjoining properties on two occasions, resulting in the council's requirement that the balustrade should be 1.7 m high. 24 A consultant town planner, Ms A Moore of SMEC, was engaged by the council to express a preliminary view concerning the present development application. In her letter dated 7 May 2004 she stated: … I am of the view that [the} balustrade should remain at the 1.7 metre [height] to minimise overlooking and privacy impacts onto rear properties, as lowering of the balustrade would allow views into the rear properties if a 1.8 metre person was standing at least a metre from the edge. The current balustrade with solid infills ensures…reasonable privacy levels are maintained to adjoining properties. 25 The weight of the evidence indicates that the applicant's proposal to reduce the balustrade to 1.36 m high, with no additional panelling on top, is not acceptable. However, as I indicated earlier, the erection of obscure glazed panels within the timber framing above the vertical louvres slats would maintain reasonable privacy for the neighbours. 26 In relation to visual privacy, two of the controls in B3.3 of the council's Residential Development Control Plan state: Obscure outlook by providing screening it habitable room windows or private open space is overlooked within 15 m… Provide landscape screening either by using existing dense vegetation or new planting that can achieve a 75% of screening effectiveness within three years. Specify mature height to provide effective screening, while retaining access for light, sunlight and views… 27 In the present case, the distance from the edge of the balcony to the private open space of Nos 84 and 84A is less than 15 m, and adequate screening by landscaping is not provided. 28 In relation to landscaping, I bear in mind what was said by Senior Commissioner Roseth in Super Studio v Waverley Council [2004] NSWLEC 91: …where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens. 29 I have considered whether to impose a condition along the following lines: The applicant shall prepare a landscape plan to the satisfaction of the council's landscape officer. The plan is to include advanced species of trees or plans to achieve 75 percent screening effective as within three years, to specify mature height (to provide effective screening), the species and the availability of the soil for planning such species. Landscaping is to be implemented in accordance with the plan so approved until the heights specified have been achieved, the glass panels in the louvres shall be maintained. 30 However, because the subject land is at a higher level than the land at Nos 84 and 84A, the overlooking is exacerbated, and any landscaping to be provided by way of screening would have to achieve a height of probably between 3 m and 3.5 m above the garden bed of the subject land, which is at about RL 22.05. I have some doubt whether such landscaping could be appropriately achieved within three years. While under ideal conditions it might be achieved, there is a good chance that it might not be. While the landscaping was growing over a number of years, it would be ineffective to reduce the significant overlooking into the private rear yards of Nos 84 and 84A. Having regard to the history of the development at the subject land (where the 1.7 m high balustrade was a compromise to the council's original position that there should be no deck at all but an enclosed room), I am of the opinion that it would be clearly preferable for the applicant to first actually establish a permanent landscaping screen, after which the question of removing the obscure glazing from the balustrade could be considered in the light of the circumstances then prevailing and having regard to the then current provisions of council's DCP. 31 Accordingly, the orders of the court are: 1. The appeal is upheld. 2. Development consent is granted for— (1) the erection of translucent glazed panels in timber framing above the existing vertical louvred timber balustrade around the rear of the deck of the building at 1 Wells Street, Annandale, as seen in the photograph exhibit G, so that the top of the timber framing around the glazing is approx. 1.7 m above the height of the floor of the deck, and (2) the extension of the polycarbonate roofing over the rear half of the deck (and projecting beyond the rear end of the deck by no more than 0.5 m), in accordance with structural details to be submitted for approval with the construction certificate. 3. The exhibits, other than exhibit G, may be returned. ____________ A J Nott Commissioner of the Court 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. 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