Land and Environment Court of New South Wales CITATION : Catalina Developments Pty Limited v Woollahra Municpal Council [2004] NSWLEC 545 revised - 13/10/2004 APPLICATION Catalina Developments Pty Limited PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10895 of 2004 CORAM: Murrell C KEY ISSUES: Appeal :- s. 96 application - to provide a roof top terrace on a residential flat building LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra LEP CASES CITED: DATES OF HEARING: 23/09/2004 EX TEMPORE 09/23/2004 JUDGMENT DATE : APPLICANT Mr G Green, solicitor SOLICITOR Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor SOLICITOR Michell Sillar JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 23 September 2004 10895 of 2004 Catalina Developments Pty Limited v Woollahra Municipal Council JUDGMENT 1 This is an appeal against Woollahra Council's refusal of a s. 96 application for the property known as 675 New South Head Road, Rose Bay. The application is for a modification to a development containing three units currently under construction. The s 96 application for modification is to provide a roof top terrace for the top unit in the development to be accessed by that unit only. 2 The application is one that has come before the Court and the parties agreed that an expert planner would not be required in these proceedings. And that the Court would with the benefit from the site inspection and viewing from the relevant properties with the Court's own expertise be able to determine this matter. 3 It is noted that there is a report from the council officer recommending approval. Council as it does on occasions may not accept that recommendation and that the council considered the proposed development would have an effect or impact in terms of the acoustic and visual privacy of adjoining properties. This morning we have gone to great lengths and I have had the opportunity of seeing the proposed roof top deck area from a number of properties in the vicinity of the subject development. 4 The applicant referred to a previous Court decision by Consent Orders, where the council agreed to the granting of consent to a development on the adjacent property to the east of the subject property. This development is a similar development to the one currently being constructed on this site but with an extensive roof top terrace. 5 A number of objectors raised the issue that the subject development has been changed along the way. The Court is always conscious of development by 'creep', that is whereby developments become larger with greater impacts by incremental amendments to the plans originally approved. 6 The issue of precedent has also been raised and the objectors are of the opinion that roof top terraces are not something that the council approves. On the other hand I have the benefit of the approval of the adjoining property, that has a roof top terrace. However, at the end of the day it is the merits of this application that I must look at, although consistency in decision making is also a relevant consideration in the planning process. And in this regard I have the benefit of other judgments referred to me today. In particular the Woollahra Council and the property Fernleigh Gardens is relevant, however, the facts of that particular application are significantly different from what I have before me and people do expect consistency in administrative decision making in terms of certainty in the planning process and this is important. 7 The council has taken me to the relevant controls. The subject site is zoned 2(b) under the Woollahra LEP. The LEP contains a number of objectives for residential zones and the objectives include: to provide for areas of medium and high density residential development in appropriate locations; to encourage a diversity of dwelling types and tenure; to allow non residential developments and to improve access to the harbour foreshore to protect the environmental attributes of the foreshore. I must also consider the application in terms of the Regional Plan for the Harbour foreshore in terms being viewed from the Harbour. 8 The other control or guideline that was referred to the Court and which for my consideration is the Woollahra Residential Development Control Plan 2003. It is noted that the provision that I was taken to in this plan is in respect of acoustic and visual privacy and the explanation in that regard is: Privacy is a major determinative of the ability of residents and neighbours to enjoy their homes. Privacy refers to low acoustic and visual privacy. Privacy means that residents and neighbours should influence all stages of design for a location of dwellings and the placement of windows and private open space through to the selection of materials for construction. Visual privacy can be achieved by layers and avoid overlooking screening and separation. The level of acoustic privacy depends on the location of habitable rooms relative to noise sources such as air conditioning units, swimming pools etc. and the objective is to ensure adequate acoustic and visual privacy for occupants and neighbours. 9 The performance criteria also contain reference to bedrooms and provide that "they should not share walls with living rooms of other dwellings; bedroom windows should be at least 3 m from streets, shared driveways and parking areas; dwellings close to high noise sources such as busy roads, railway lines etc. should be designed to locate habitable rooms and private spaces away from the noise sources; and bedroom areas should be separated by barriers or distances from on-site noises." 10 In terms of visual privacy the controls state that: "habitable rooms that are in direct sightline to the habitable room windows of an adjacent dwelling within 9 m should be off-set and have obscure glazing and the sill heights increased; balconies, terraces and decks and other like areas within a development are suitably screened to prevent direct views into habitable rooms or private open space of adjacent dwellings; windows and balconies of an upper level dwelling are designed to prevent overlooking of the private open space of a lower living dwelling; and balconies are designed to provide privacy for occupants of the buildings when viewed from the streets and the nearby public spaces. 11 I have heard all of the concerns of the residents here today. I have also heard the concerns about precedent and precedent is an important matter for the Court to consider because precedent includes where a development may not be objectionable in itself but cumulatively there may be a cause for objection. The situation here is one that I am of the opinion that neither situation arises. For the separation distance the roof top terrace is well forward to the north and has a minimum separation of 22 m to the nearest building and 24 m to the more affected unit. And the Court has had the opportunity of viewing to and from this unit to understand the impact of the proposed roof top terrace. The roof top terrace is not an area where people are going to live nor is it a window to window situation. The separation distance of 22 – 24 m in my assessment is acceptable I must be guided by adopted guidelines and documents and in this regard I refer to the "Residential Flat Design Code Book" which is referred to in the State Policy No. 65 (urban design for residential flat buildings) where 12 m separation distances are provided as a rule of thumb. A distance of 22 – 24 m in the location that we have seen here is not one that I consider creates unreasonable impacts. 12 I do understand peoples concerns of being impacted by development and it is true to say that all development has some impact. The question is whether that impact is unreasonable. And where there are other balconies/terraces this is a relevant consideration in my merits assessment of the proposed roof top terrace and if I assessed the impact from this roof top terrace to be an intrusion in terms of privacy and acoustic noise generation then I would not approve the application. But the impacts that would be generated by the use of the roof top in the portion of the roof as shown on the plan to my mind would not be unreasonable or interfere with the amenity of the adjoining properties. 13 I understand that people are concerned about change in their residential areas and it is important that the Court, and councils give very serious consideration to the impact on the lifestyle and amenity of existing residential properties. And I must do this in the context of the council's controls that I have before me as well and the guidelines that have been provided in State Policies. These guidelines provide one measure but even if I assess it in a more stringent way the proposal in my opinion is not one that would warrant refusal. 14 I mentioned before about development by creep and yes this is a concern to the Court in assessing s 96 applications. And if I in any way considered the impacts were unreasonable or even of a magnitude that could not be appropriately considered then I would not approve this application for modification. I understand peoples concerns about certainty in the planning process and council has advertised the s 96 application, as it does for other development applications to allow those people that would be considered to be impacted the opportunity to make a submission and to be present at these proceedings here today. 15 The conditions that have been proposed by the applicant are that there be no permanent structure erected above the balustrade on the roof terrace. As such there be no opportunity under this modification for a sail to be erected because anything on the terrace above the balustrade level would have to be removed and would not be allowed for more than a 24 hour period. I have had the opportunity of viewing the roof top terrace and I agree with the applicant's submission that people on the roof terrace will be focused on views to the north over the park to the water. Furthermore, even if one looks to the south I do not consider that there would be an interference in terms of privacy because of the separation distances. The separation distances in terms of an urban area such as this where medium density development is envisaged and contemplated by council's controls and council's zone are an important consideration and it is very important to abide by minimum standards where there are denser populations. In this regard it is noted that controls today provide a greater separation distance of 12 m than where it was previously considered to be appropriate at 9 m. No doubt this is because there is a concern about visual residential amenity and privacy where there are denser populations which should be considered in the design of buildings. The fact that this roof top terrace area is on the northern portion of the building is appropriate. I would not have approved of a roof top terrace located at the rear of the building because of adverse impacts or the cumulative impact in terms of the residential flat buildings behind. 16 As I have said I have assessed this development application in terms of its merits and any future development applications for roof top terraces would have to be similarly looked at in terms of their merits. There is not a prohibition on roof top terraces as such. Nonetheless, it is important that they do not impose or have unreasonable impacts on adjoining properties and in this particular instance I do not consider there are unreasonable impacts. 17 Therefore on the basis of my assessment above the Orders of the Court in this matter are: 1. The s 96 application to modify the consent, issued by Woollahra Municipal Council in October 2003, by the provision of a roof top terrace, is approved subject to the conditions agreed to between the parties and shown in Annexure "A". (The conditions include that there be no permanent structures on the roof top and the provision of additional canopy trees on the site at the front as well as the rear of the property). 2. The exhibits are returned with the exception of Exhibits A and 6. ______________________ J S Murrell Commissioner of the Court Ljr/rjs Annexure "A" Amended Condition 1 for s. 96 Appeal Catalina Developments Pty Ltd v Woollahra Municipal Council 675 New South Head Road, Rose Bay. Section 96 Modification to the consent granted by Woollahra Municipal Council - October 2003 Conditions of the original consent is replaced by the following: 1. The development must be carried out in accordance with plans numbered DA02B, DA03B, DA04B, DA05B, DA06A, DA07B, DA08B and DA09B, dated 5 March 2003, drawn by Manolev Associates P/L Architects, and landscape drawings numbered 1 and 2 dated 7 March 2003 drawn by John O'Brien Landscape Consultants, all of which carry a Council stamp "Approved DA Plan" and the signature of a Council officer except as amended by plans numbered DA.96.1/01-03 inclusive and DA.2/01-04 inclusive dated 13 April 2004 and drawn by Manolev Associates P/L Architects, and as further amended by the following conditions. (a) The provision of two canopy trees planted on the north eastern boundary of a suitable species to be selected, to grow to a mature height at 8-10 metres. (b) The provision of two canopy trees be planted in the south eastern corner of the site of a suitable species to be selected, to grow to a mature height of 8-12 metres. (c) No permanent structures shall be erected above the balustrading on the roof terrace and temporary structures, such as shade structures, shall not remain visible above the balustrade for periods longer than 24 hours. This approval does not include the masonry exhaust shaft enclosure. ______________________ J S Murrell Commissioner of the Court Ljr/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.