Land and Environment Court of New South Wales CITATION : Cullis-Hill v Woollahra Municipal Council [2004] NSWLEC 350 APPLICANT Sydney David and Christine Cullis-Hill PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10089 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and additions to an existing terrace - heritage item -resident objection - privacy - visual impact - costs. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 CASES CITED: DATES OF HEARING: 03/06/2004 EX TEMPORE 06/03/2004 JUDGMENT DATE : APPLICANT Mr P Clay, barrister SOLICITORS Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor SOLICITORS Michell Sillar JUDGMENT: - - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 3 June 2004 10089 of 2004 Sydney David and Christine Cullis-Hill v Woollahra Municipal Council JUDGMENT 1 This appeal relates to Development Application No. 03/0729 which is for alterations and additions to an existing heritage listed terrace house at 91 Adelaide Parade, Woollahra. 2 The proposal is permissible with development consent subject to the requirements of the Woollahra Local Environmental Plan 1995 which is the instrument that lists this property and a number of adjoining properties as heritage items and includes the site within a conservation area. 3 The original application was notified and there were some fourteen objections to that proposal. However the application has since been the subject of a significant alteration and that alteration, together with a number of other changes, has resolved the majority if not all of the matters raised by the council in the statement of issues, those mainly being matters of heritage. 4 The remaining issues, which were described to me at some length by Mr and Mrs Stretch and Mr Connelly their architect, involve two matters. The first is a matter of privacy associated with the proposed first floor windows of a new bedroom at the southern end of the existing building and whether there is a need for a privacy screen on the boundary wall between the two properties. The second involves the extent of the proposed ground floor extension within an area described as a breezeway on the east side of the existing building. 5 In relation to the privacy issue there are two aspects. The first involves a request for the provision of a privacy screen on top of the wall, which separates the subject property and No. 93. Having inspected the affected windows and taking into account that what is involved is a bathroom window, I agree with the two town planners, Mr Rowan and Mr Harding, that a privacy screen in this location is not required and I have decided not impose a condition to that effect. I have reached this conclusion notwithstanding Mr Connelly's suggestion that a screen, similar to a screen elsewhere on the western boundary of No. 93, would provide an architectural interest and a softening of the proposed extension (which I later consider). I think Mr Connelly is right but that is not a reason to require this applicant to provide such a screen. The Stretch's, if they think that such an arrangement is important, could provide that themselves. 6 As for the privacy concerns at the upper level, these relate to overlooking opportunities from an existing window in proposed bedroom 2, a new window in proposed bedroom 2 and a large new window in proposed bedroom 3. Those windows look directly across or look obliquely at other bedroom windows on the same level in No. 93. The two town planners agree that, with the provision of obscure glazing to a height of 1.65 m, this would provide a satisfactory resolution of any privacy concerns of the neighbours. Mr Connelly and the Stretch's believe that the provision of obscure glazing to a height of 1.65 m would be too low and that it would be possible to look over the top of the mullions, which would delineate the 1.65 m height. 7 Whilst on site I commented, and there was no disagreement, that the 1.65 m height was reflective of half of the height of the existing window in proposed bedroom 2. This, in my view, together with what the experts have said about the effectiveness of this arrangement to provide a reasonable level of privacy, confirms that the height as now proposed would be satisfactory, even though I recognise that some people may be able to look over the mullion at that height. The windows in proposed bedroom 3, which it seems to me are the windows of greatest concern to the Stretch's, are effectively a mirror image of the windows in the equivalent opposite bedroom in No. 93. No attempt has been made to reduce opportunities to look out on to No. 91 from No 93 and I am of the opinion that, being a reciprocal arrangement, there is an acceptable balance. Moreover the Stretch's can, if they wish, instigate some mitigation of their own. I also note that the Stretch's also have, from that bedroom, extensive south facing windows which are not affected by overlooking. 8 As for the matter of the building extension into the breezeway, I note that the Stretch's believe that this should be reduced such that it does not extend any further north than their own family room area. I do not accept that this is an appropriate approach to take, particularly bearing in mind that the two town planning experts do not agree that this is necessary. 9 The correct approach in dealing with this issue is to consider whether or not the arrangement as proposed would have any adverse effects on the amenity of the Stretch's courtyard and family room. It will have the effect of introducing an additional wall relatively close to a viewer at No. 93, and reducing daylight access. But I do not accept that it would so adversely impact upon that outlook and daylight that the change as sought is entirely unreasonable. 10 Mr Connelly was of the view that the extension into the breezeway could nevertheless be reduced in size, such that its northern end is moved about 500 mm to the south to line up with the northern remaining nib adjacent to the existing bay window. This would soften the visual impact of the proposal and would facilitate some additional daylight into the Stretch's family room. Mr Connelly also said that this change could be supported because that part of the proposed extension which would be reduced in size had no apparent functional use. Mr Rowan and Mr Harding did not agree. They believe that Mr Connelly's suggested changes would make no discernible difference. It was submitted to the Court that the change as suggested by Mr Connelly would at best provide a marginal benefit to the neighbours and it was reluctantly conceded that the affected floor space was of marginal utility. 11 On balance I have decided that the benefit to the neighbours would outweigh the utility to the applicant of that quite small amount of floor space and given the importance to the neighbours of their family room and its outlook, I have decided that the application should be amended. This will be such that the northern wall of the extension within the breezeway should extend no further to the north than the thickness of a wall beyond the southern end of the nib. In other words the remaining nib within the family room at the northern end of the bay window will form the inside of the wall within that room. 12 The orders of the Court will therefore be that the appeal is upheld and the development consent, essentially as sought, will be granted subject to the conditions in Exhibit 4, and the amended plans. Exhibits 4, A and C are retained. 13 Having heard submissions in relation to the respondent's application for costs I have decided that such an order is not warranted. It seems to me that this case is an example of how, as issues have arisen, and as expert evidence has been provided and been dealt with, this process has resulted in changes to the design. Conversely and as I observed during submissions; had this been a situation where the applicant had behaved in a delaying and unresponsive manner to raised issues and had left changes to the last minute, despite having earlier obtained appropriate evidence in relation to the need for such changes, then the situation might have been different. 14 In this case I do not accept that the applicant has behaved in such a fashion that, in the circumstances, it would be fair and reasonable to award costs as sought. Therefore there will be no order as to costs. ___________________ T A Bly 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. 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. 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