Robbie and Rowan Fotheringham (Cracknell & Lonergan Architects) v Leichhardt Municipal Council [2004] NSWLEC 602

Land and Environment Court of New South Wales

CITATION : Robbie and Rowan Fotheringham (Cracknell & Lonergan Architects) v Leichhardt Municipal Council [2004] NSWLEC 602 APPLICANT Robbie and Rowan Fotheringham (Cracknell & Lonergan Architects) PARTIES : RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 10956 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Visual and aural privacy impacts upon neighbours Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000 CASES CITED: DATES OF HEARING: 22/10/2004 EX TEMPORE 10/22/2004 JUDGMENT DATE :

APPLICANT Mr M Ball, town planner

LEGAL REPRESENTATIVES: RESPONDENT Ms E Rankin, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

22 October 2004

10956 of 2004 Robbie and Rowan Fotheringham (Cracknell & Lonergan Architects) v Leichhardt Municipal Council

JUDGMENT

1 This was a judgment in a class one appeal No. 10956 of 2004. The applicants were to change the party from Cracknell & Lonergan to R and R Fotheringham at the commencement of the hearing. The respondent Leichhardt Municipal Council did not object and the change was allowed by the Court. 2 The proposal was a s 96 application to amend consent No. D/2002/86. That consent had been acted upon and constructed. It had permitted reconstruction of the roof of No. 45 Donnelly Street, Balmain, and by raising it and incorporating dormer windows, a studio was provided. Mr Fotheringham is an artist and the studio is his workroom. 3 At the rear of the studio on the roof of the ground floor dining room a deck was approved. Originally the applicant sought a deck 3.35 m wide x 6.49 m long. The council required in the original consent that it be reduced to 1.5 m x 3.6 m in order to address visual and aural privacy concerns of the neighbours. Part of that was limiting the size of the deck so that it was unlikely to be used for entertainment. 4 The council subsequently allowed on review a deck 1.4 m wide x 3.03 m long in order to give a useable space. That deck was built. The applicant now sought under this s 96 amendment to enlarge the deck to 3.3 m wide x 5 m according to scale on Exhibit B to make it more useable. 5 The original reasons for the deck was to act as a relaxation space associated with the studio and to obtain a winter sunspot. It seemed because the house was on the south side of the hill but with many trees, in mid winter, little sun penetrated the ground floor living room and back yard. 6 The applicant said the increased size would permit a couple of reclining chairs, a table and upright chairs. There was a large umbrella already installed on the existing deck and a photo in Exhibit 4 showed a table with 4 chairs on the existing deck. 7 There was a privacy screen on the west side of the deck facing the Pinkerton's at No. 47 Donnelly Street who had objected. There was no privacy screen on the east side of the deck as it existed nor as it was now proposed although the proposal brought the deck 1.8 m closer to the edge of the roof below and closer to the neighbours at Nos. 41/43 Donnelly Street. That property was owned by the Nettles who had also objected but they did not live there and rented it out. They were concerned about the affect on their tenants privacy. 8 The Issues were: 1. The proposed deck creates visual aural privacy impacts on neighbouring properties and in particular on No. 43 and No. 47 Donnelly Street, Balmain, and therefore raises the following issues: (a) The proposed development is inconsistent with the objectives for the built and natural environment and amenity, particularly in terms of loss of privacy, having regard to cl 13(2)(d) of Leichhardt Local Environmental Plan 2000 . (b) The proposed development is inconsistent with the objectives for housing, particularly in terms of the controls set down in DCP 2000, having regard to cl 17(a) of Leichhardt Local Environmental Plan 2000 . (c) The proposed development is inconsistent with the principles and controls for visual and aural privacy having regard to the provisions of Pts B3.2, B3.3 and B3.5 of Leichhardt Development Control Plan 2000 . 2. Issues raised by objectors, particularly in terms of loss of privacy. 9 Attending the adjoining s 34 Conference on site was for respondent: · Ms E Rankin, solicitor, · Mr S Harding, consultant planner, · Mrs S Pinkerton and Mr P Pinkerton 10 Attending for the applicant was: · Mr M Ball, town planner and · Mr R Fotheringham and Mrs R Fotheringham. 11 Experience of the Pinkertons since construction of the deck at 2.4 m x 3.03 m wide had been that from their master bedroom, that was less than 6 m from the deck they could easily overhear conversations of persons on the deck, including mobile telephone calls, etc. This included activity at night that prevented their relaxation and sleeping. They have had to close their curtains because the existing privacy screen was not high to prevent views into their bedroom through its only window. The bedroom was not large and any position the bed was put, persons looking over the screen could see the bed. 12 The applicant proposed to enlarge the screen to prevent overlooking. Mr Harding said standing at the east end of the enlarged deck a person of his height could probably still see over to the Pinkerton's bedrooms. Whilst this could be resolved by a higher screen, the evidence was that the aural privacy would not be improved. 13 The Court noted the area had a number of houses close together, aside from the Nettles, there was a house behind them at about the same level as the ground floor of the Fotheringham house. As is often the case in Balmain, people lived in close proximity to each other, and aural and visual privacy often becomes an issue between neighbours. 14 The applicant assured the Court the deck would not be used for entertainment, because of it being off the studio that is like an office and to which visitors were not often taken. The deck was mainly for family use to get winter sun that was unavailable elsewhere. 15 The respondent made the point that whist the Fotheringham's may only use the deck for such purposes, future owners may use the studio and the deck quite differently. 16 Overall the Court has concluded that the provisions of Leichhardt DCP Pt B cll 3.3 and 3.5 assume determinative weight. The plain experience of the neighbours with the existing deck is that there have been impacts on their visual and aural privacy. Whilst visual privacy may be improved by the proposal, the aural privacy issue must increase if the deck becomes even more useable than at present. 17 It seems to the Court that in this group of tightly packed houses, the limit has been reached in regard to the deck at No. 45 Donnelley Street. 18 Therefore the orders of the Court are: 1. The appeal is dismissed.