Land and Environment Court of New South Wales CITATION : Evanel Pty Ltd & Ors v Woollahra Municipal Council [2006] NSWLEC 712 APPLICANT Evanel Pty Ltd RESPONDENT PARTIES : Woollahra Municipal Council INTERVENER Mr D Studdy FILE NUMBER(S) : 10646 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Section 96 Modification to conditions, height of terrace, landscape, view loss LEGISLATION CITED: Environmental Planning and Assessment Act Woollahra Local Environmental Plan 1995 CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 09 and 26/10/2006 DATE OF JUDGMENT: 11/13/2006 APPLICANT Mr S Griffiths, solicitor SOLICITORS Pike Pike & Fenwick RESPONDENT LEGAL REPRESENTATIVES: Mr M Connell, solicitor SOLICITORS Home Wilkinson Lowry Intervener: Mr A Pickles, Barrister SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 13 November 2006 10646 of 2006 Evanel Pty Ltd & Ors v Woollahra Municipal Council JUDGMENT 1 This appeal was lodged against the council's refusal to allow s 96 Modifications to a development consent granted for alterations to a dwelling situated at 15A and B Dumaresq Road, Rose Bay. The full details of the site, its development history and the conditions of consent, including prior s 96 Modifications are contained in the Statement of Basic Facts, on which I rely. 2 In particular, the matters appealed concern the modification to the following conditions of the development consent; 51, 52, 54, 55, and 57. These conditions mainly relate to restrictions on elements of the roof/terrace structure and the associated landscaping, in terms of their intrusions into the view corridors of neighbouring properties. 3 The parties agreed that the matter be determined by way of a Section 34 Conference, which was held at the site on 9 October 2006. In addition to the applicant and respondent, a number of neighbours (Mrs Carter and Ms Mullins) attended and were given the opportunity to express their objections to the proposal. Detailed objections on behalf of Mr Studdy, neighbour from 15 Dumaresq Road, were made in his absence. 4 Having heard the objections, the Court had the opportunity of assessing the view impacts from the objectors' properties. This assessment was made with the benefit of a "profile" which indicated the location of the terrace planter boxes and the height of the proposed landscaping screen. 5 Insofar as a number of conditions were initially appealed, conferencing between the parties resulted in agreement to amend some of the other conditions, with the unresolved conditions generally relating to impact on views and privacy in terms of: o the height and location of landscaping on the rooftop terrace, o height of the constructed perimeter planting box, o placement of umbrellas on the rooftop terrace. o deletion of the metal clad roof for the southern part of the terrace 6 Following the discussions at the s 34 Conference, preliminary findings were made and the parties directed to confer and file draft conditions of consent reflecting the preliminary findings. 7 Subsequently, a Notice of Motion was granted that Mr D Studdy be given leave to tender photographs and make submissions contained documents dated 26 October 2006. Mr Pickles made these submissions and the parties were then directed to confer and present final draft conditions by 5 pm, 27 October 2006. 8 Having considered the evidence, undertaken a view and considered the respective submissions, including those on the draft conditions, my conclusions are as follows: Condition 51 Height restriction on planting to roof terrace; This condition relates to the restriction on the height of the vegetation in the existing planter box on the terrace, so as to maintain reasonable view corridors from 15 Dumaresq Road. The original conditions of consent restrict the height of planting to RL 10.5. For reasons of convenience and privacy the applicant sought to modify this requirement by increasing the height to RL 10.76. 9 Because of the location of the rooftop terrace planter box and its vegetation, the main view losses are experienced from Mr and Mrs Studdy's residence. However, having observed the profile from the various positions in the Studdy's residence and outdoor areas, I am satisfied that the proposed increase of 260 mm in the landscaping height, represents a minimal intrusion into the existing magnificent harbour/bridge and Opera house views, that are otherwise maintained. 10 In balancing the competing positions, I consider some weight should be given to the improved privacy between the two properties, which is achieved by the increase in height of the privacy screen. Accordingly I am satisfied that the proposed increase in the height of the landscaping screen is minimal and its approval maintains equitable view sharing principles, as outlined in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. 11 Insofar as submissions were made about the landscaping species, I am satisfied that the planter box situation will effectively restrict growth and the conditions of consent require the landscaping to be maintained, so as not to exceed the allowed height of RL 10.76. Therefore, in my opinion restriction on the planting species is unnecessary in the circumstances of this case. Condition 52 : Deals with the prohibition of shade structures to roof terrace. The original condition provided that: "In order to minimise loss of views to adjoining properties, shade structures are prohibited from the roof terrace with the exception of one (1) shade umbrella which is to be removed when not in use". 12 From the evidence presented on-site, it is apparent that the lack of specification in the condition on the size and height of the allowed (1) shade umbrella could on occasions cause significant harbour view losses. Accordingly, the applicant demonstrated how 2 smaller umbrellas with a maximum diameter of 3 m and height of 2.5 m, would be consistent with the view corridors established by the aforementioned Condition 51 revision. 13 The positioning of these umbrellas is also to be restricted to a predetermined area (designated generally northerly of Points C and D), which also maintains this consistency. I consider these clarifications and modifications reasonable. Condition 54 Deals with amendments to the first floor level roof terrace, whereby the original condition required metal cladding of the southern section of the rooftop, so this area of the terrace would be non-trafficable. Condition 55 This condition required the deletion of planter boxes and unauthorised plantings, so as to maintain views from neighbouring properties. Condition 57 This condition required the demolition of an unauthorised part of the roof parapet which is approximately 100 mm higher than approved. 14 These three conditions deal with the treatment of the southern part of the roof terrace. The effect of the original conditions is to restrict the height of this area, in terms of the parapet height and associated landscaping so that harbour views are maintained. Also, this area is not to form part of the usable terrace area. The area is substantially delineated by the elevated, glass walled light well. 15 The view assessment indicated that the increased parapet height (approximately 100 mm) has a marginal effect on views to harbour and as it is consistent with the other parapet heights, I consider it is reasonable to be maintained in conjunction with the internal planter box to incorporate landscaping to soften the appearance of the building. 16 With regard to the metal clad roof, I consider the applicant's submissions that this metal roof be deleted and replaced with gravel type material and subsequently vegetated and maintained, should achieve the objective of these conditions (i.e. make it non-trafficable) whilst improving the streetscape appearance of the development. The extension of the planter box, incorporating appropriate planting adjacent to the light well, should, minimise nuisance to the neighbours' property arising from reflected headlight glare off light well. 17 Having considered the merits of all the submissions, I consider it reasonable to amend the aforementioned conditions as set out in Annexure A. Court orders 1. The appeal is upheld. 2. The conditions of consent for DA 474/2003/2 are amended in accordance with Annexure 'A'. ___________________ R Hussey 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.