Land and Environment Court of New South Wales CITATION : Barker v Manly Council [2006] NSWLEC 668 APPLICANT John Barker PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10527 of 2006 CORAM: Hoffman C KEY ISSUES: Deemed Refusal :- Non-compliance with provisions of Residential Development Control Plan, bulk of building, privacy, removal of trees, setback of building, streetscape, car parking, height, swimming pool Manly Local Environmental Plan 1988 LEGISLATION CITED: Manly Development Control Plan for Residential Zone 2001 Sydney Regional Environmental Plan, Sydney Harbour Catchment 2005 Residential Development Control Plan DATES OF HEARING: 16/10/2006 EX TEMPORE JUDGMENT DATE : 10/16/2006 APPLICANT Mr M Staunton, solicitor SOLICITORS Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 16 October 2006 10527 of 2006 John Barker v Manly Council JUDGMENT 1 This is a class one appeal No. 10527 of 2006 between John Barker and Manly Council in regard to the deemed refusal of an application for a new dwelling at No. 5 Sandy Bay Road, Sandy Bay, at Clontarf. 2 Whilst there is only limited weight in looking at the chronology of this matter it is useful to know that the application was preceded by development consent No. 64/04 issued by council on 13 September 2004 for the construction of alterations and additions to an existing dwelling house on the land. There was also Development Consent No. 572/03 issued by council on 4 November 2004 for the carrying out of landscape works associated with those alterations and additions. 3 It was said in evidence that the previous consent for the previous house was for a very similar structure which was in fact about 600 mm closer to the harbour front and 600 mm higher than the subject proposal. Adverse geotechnical conditions were encountered during construction of the previously approved alterations and additions and they required demolitions of the sections of the existing building which were intended to be retained. 4 Council then on 17 February 2006 issued a stop work order on further building works associated with the approval as such work was not considered to be in accordance with the consent which related to alterations and additions and this gave rise to the fresh development application. It was notified to surrounding residents as Development Application No. 164/06 and one submission was received from the owner of 6 Sandy Bay Road, the northern neighbour of the subject property, Mr Caffin and his wife. 5 The application was also notified to the Clontarf Precinct Community Forum, New South Wales Rural Fire Service and New South Wales Maritime. The Rural Fire Service advised that it had no requirements in regard to bushfire protection. The Community Forum did resolve to ask council to pay attention to the privacy impact of the proposal on its neighbours and the provisions of the control plans applicable. 6 The subject proposal now before me is for a house with a front section facing the harbour across Sandy Bay Road to the public beach reserve of two storeys elevated high above carports or garages and a three storey pavilion section at the rear. The floor space ratio of the development represents about 0.4:1 and the open space area of the site will be about 78 percent and over half of that will represent soft landscaped areas. The land is generally rectangular in shape and has a frontage of 15.98 m to Sandy Bay Road and average depths of some 56 m and an area of 852 sq m. 7 The site is currently vacant except for some major retaining walls at the rear of the area proposed for the subject dwelling. The actual site of the subject dwelling is virtually level due to the excavation and the retaining walls. It is located approximately beside the house on No. 6 although slightly further up the hill. The site rises steeply in two directions one towards the rear of the allotment and the other being the steep cross-fall putting the proposal on the uphill side of No. 6. The land has significant falls in both directions, having some 20 m fall from its south-eastern corner to its north-western corner adjacent to Sandy Bay Road. 8 There are some trees at the rear of the allotment however there are no trees on the subject site of the house or below it. One tree that had been present had a dangerous lean towards No. 6 and due to the colluvium nature of the soil it was feared it would ultimately fall. At some time council had granted consent to its removal and this had been carried out. 9 The land is affected by easements to drain water 1.065 m wide adjacent to the north-side boundary, an easement for electricity purposes 2 m wide adjacent to the south-side boundary and an easement to drain sewerage over an existing sewer line serving the property to the east of the site being No. 25 Peronne Avenue from which the site was originally subdivided. The front boundary of the site is between 16 and 20 m from the eastern edge of Sandy Bay Road pavement and there is an 8 m tree located in the verge in front of the site. 10 The land is zoned Residential under the terms of the Manly Local Environmental Plan 1988. The land is situated in a Foreshore Scenic Protection Area established under the plan. The proposal is permissible with council's consent under the terms of the plan. No buildings in the vicinity have been identified as items of environmental heritage in Sch 4 of the Plan, nor is it located in a Heritage Conservation Area. 11 The Manly Development Control Plan for Residential Zone 2001 Amendment 1 applies to the proposal and is its principle control. The Sydney Regional Environmental Plan, Sydney Harbour Catchment 2005 and its associated Development Control Plans also apply. 12 The issues raised in the appeal are: 1. The proposed dwelling house exceeds the maximum wall height control of 8 m contained in s 3.4.2(II)A of Development Control Plan for the Residential Zone 2001 Amendment 1 Residential DCP at its north-western corner and as such will adversely affect the amenity of the residents of the adjoining dwelling house on No. 6 Sandy Bay Road in terms of its visual impact. 2. The proposed dwelling house will have an adverse effect upon the amenity of the residents of the adjoining dwelling house on No. 6 Sandy Bay Road in terms of the both visual and acoustic privacy, contrary to the objectives contained in s 3.10.1 of the Residential DCP. 3. The proposed dwelling house will have an adverse visual impact on Middle Harbour in terms of the provisions of the Sydney Regional and Environmental Plan and its associated Development Control Plan in terms of the design of its western elevation, and 4. Matters raised by the resident objector including: (a) non-compliance with provisions of the Residential DCP, (b) the visually dominating bulk of the building on the residents of the dwelling house on 6 Sandy Bay Road, (c) the loss of privacy of residents of the dwelling house on 6 Sandy Bay Road, (d) the removal of trees, (e) the setback of the building from the boundaries of the site, (f) the dominant impact of the car parking elevated driveway in the streetscape, and (g) inappropriate location and height of the proposed swimming pool. 13 The house - as were all the houses in this locality is proposed to be oriented towards the harbour. Due to the steep fall on the property the driveway climbs the hill to an appropriate level below the main living spaces. This leaves which left about a 6 m high under-croft which contains the garages and the entry lobby with stairs rising to the living areas. 14 At the upper level there is a large deck overlooking the harbour with a living and dining room beyond it and a kitchen and these are facing west. On the north side the kitchen has a doorway onto a side deck and along this northern side of the house is a lap-pool. The pool is partially elevated and partially excavated in the ground adjacent No. 6. Towards the rear of the house on the same level is another deck off what is called a lounge room, but which the parties agreed would effectively be a rumpus room for the children whose bedrooms are in the two floors above. 15 Behind the house the ground rises steeply and it could be regarded as bushland in the future. I would probably not be used directly in association with the house due to its steep incline. 16 On the second floor at the front is the master bedroom and another deck looking towards the harbour and behind it are three bedrooms, one of which overlooks the rear deck and bathroom of No. 6 at an oblique angle. It is almost opposite the roof of the kitchen of No. 6 which is directly below it. 17 At the rear there is a third storey containing bedrooms 4 and 5 for the children and they have windows on all four walls of the pavilion. Bedroom 4 overlooks No. 6 and has windows on three sides. The design of bedrooms 4 and 5 in this upper pavilion is with cathedral ceilings such that the eave line of the bedrooms corresponds with the normal door height of about 2 m. They are in effect rooms in the roof. 18 The roof pitch is generally low hipped in design with a metal deck. 19 The finishes utilise several different types of materials to break up the mass and visual bulk of the elevations, in particular the elevation facing the harbour and the northern elevation facing No. 6. 20 At the appeal the Court heard from Mr Caffin, the objector at No. 6 and for the applicant, Mr Bell, the architect of the proposal. 21 The parties had agreed that the Court should appoint a joint expert to assess the application and this was Mr J Moody, town planner and lawyer. 22 Various reports were tendered in association with the evidence and the Court inspected the site with the parties and the witnesses on the first day of the hearing. 23 The plans had been amended somewhat to account for several of Mr Caffin's concerns but he had only just seen the plans on the morning of the inspection of the site. Therefore an adjournment was allowed to the next most convenient date for the Court to allow Mr Caffin to see the full scale plans and understand the changes and make further submissions or evidence if he so chose. 24 On the resumption of the hearing Mr Caffin had provided two further documents which he said encompassed his total concerns with the development rather than referring back to previous documents. In summary, his suggestions were, in order to make the proposal acceptable: 1. The removal of the rear three storey section to make it a two storey section, 2. A reduction of the overall height of the development by about 1 m in order to bring it into compliance, he said, with the maximum wall height of the Development Control Plan, 3. The installation of a 1.8 m high masonry wall along the full length of deck 2 and the lap-pool on the northern side of the proposal adjacent his property, 4. The master bedroom screening at the northern end of its deck to be of a permanent nature such as to deny access to the metal deck area on the northern side of the deck and that the screen be of a height of 1.6 m, 5. That the deck 1 the planter box be replaced by 1.6 m screen as mentioned in the letter from the applicant to Mr Moody, and 6. The plant room, air conditioning and pool equipment should be located remote from the northern boundary and acoustically insulated from sound emissions to the north, 7. That a dilapidation report should be obtained for each of the adjacent properties prior to the issuance of a construction certificate, and 8. That adequate measures be installed and maintained to avoid run-off from No. 5 accumulating in front of No. 6. 25 In the second document he was concerned with the privacy screens proposed by the applicant for the stair and bedroom 1 at second floor level and bedroom 4 at the third floor level which was intended to prevent overlooking of his property, mainly by the installation of horizontal louvres quite close together at 80 mm spacing such that a person standing behind them would be able to look out in a horizontal direction but in looking down there would be increased screening. This intended so that his rear deck and clear glass window to his bathroom could not be seen. His analysis of the applicant's proposal was that with the current spacing of 80 mm apart, persons on the northern side of his deck and in the bathroom could be seen and he suggested that the spacing of the louvres be reduced to 40 mm and that would solve the problem. 26 Mr Moody had examined all of these matters. I shall deal with the major issues first. In regard to the wall height, Mr Moody had carefully looked at the plans and found that the non-compliance with the wall height was fairly minor. It in fact is a triangular area on the north-western corner of the master bedroom which goes from zero breach to about a 1 m height breach along a length of about 2.3 m. That is on the northern elevation and when one turns the corner of the master bedroom, it becomes even less dramatic in that the taper occupies only a small section of the front elevation. There is also a minor penetration of the height limit of the north-west corner of the flat roof adjoining the deck off the master bedroom and Mr Moody had concluded that whilst not excusable in themselves they did not constitute a major breach. 27 He made further examination of that matter in his report in Exhibit 6 and concluded that there will be no unreasonable overshadowing arising from the breach due to the fact that the subject site is to the south of the objector's property. The proposed dwelling has significant articulation along its northern façade with a significant portion of the northern wall of the proposed dwelling being much lower than the 8 m height control. 28 The main aspect to Middle Harbour from the adjoining dwelling at No. 6 is to the northwest from both the kitchen, the living room windows and the living room deck which face directly towards the harbour and, favour their northern exposure for sunlight. The proposed breach at No 5 would not impact on the views enjoyed by the adjoining property to the south. 29 The potential overlooking from the master bedroom deck would be prevented by the amended plans which proposed a fixed louvre screen on the northern edge of the terrace to prevent any overlooking and the originally proposed planter box in that location was to be removed. From a visual impression the proposed north-western wall height of the proposed dwelling, he said, appeared to be consistent with a number of dwellings in the Sandy Bay area. 30 The Residential Development Control Plan permits roof structures to extend 3 m above the maximum external wall height and the proposed roof height of the dwelling is well below the council's requirement. The roof pitch is at a low angle and the dwelling is designed in a pavilion style of a number of smaller roofs. These features tend to reduce visual impact of the dwelling. 31 The control plan also allows a parapet to extend 1 m above the maximum external wall height. Whilst not a justification for the proposal, it indicates that in fact a complying total wall height similar to the proposal could be provided if indeed there was a parapet treatment in a different design of dwelling. 32 In regard to Issue 2 - the adverse effect of the amenity on the residents of the adjoining dwelling - we had already covered the concerns of the master bedroom wing in Issue 1. There was also a similar deck off the living room at the lower level which, if a person stood at its northern end, they would be able to look back into the living room and deck of No. 6. This was also to be resolved by an appropriate fixed screen which would have vertical louvres aimed towards the water, thus preventing any view at all to the private areas of No. 6. 33 The other concerns in regard to privacy arose from the north-side deck called deck 2 adjacent to the kitchen and the lap-pool which may also have enabled overlooking into the kitchen window of No. 6. The applicant proposed again a timber screen on the northern side of the deck, and along the lap-pool the screen would extend the full length. This changed somewhat during the hearing to be beside the lap-pool 1.2 m high masonry wall for its full length with a lattice above it and a full lattice adjoining the deck. This would prevent any visual intrusion. 34 Mr Caffin was also concerned about acoustic privacy and noise from activity on the deck and in the lap-pool. This had been the subject of an acoustic report by Mr Cooper which was tendered in evidence and he was not called to be cross-examined. Mr Caffin was correct that Mr Cooper's report had only analysed noise from activity in the lap-pool and had not considered potential noise from the living room, the kitchen and the room called lounge which, as I mentioned before, the parties agreed would probably act as a family or rumpus room. The acoustic expert had given some consideration to those impacts but concluded very much, as Mr Moody had done, that such activities were part and parcel of normal domestic activity in a residential area and should not be something that would give rise to a refusal of the application. 35 Mr Cooper had also considered the potential impact of pool filtration equipment which was to be behind the garage, apparently from the drawings to be unenclosed underneath the house. This could give rise to noise being projected towards No. 6 at about the level of its living room and kitchen. He proposed maximum power levels for any noise generation from the equipment or the alternative of acoustic insulation to maintain noise levels at not greater than 5 decibels above ambient noise at the boundary. The latter controls could be translated into conditions. 36 Mr Caffin remained concerned about the acoustic impact and proposed that the masonry wall along the edge of the pool and the deck should be increased to 1.8 m. 37 In hearing from Mr Bell on this matter I was taken to plans and reminded that on site we had noted a tall lapped and capped timber fence on the boundary between the subject property and No. 6. It rose to heights of up to 2.4 m above existing ground level. It was a new fence and was intended to remain. I presume it was approved either by agreement between the neighbours or in the landscape works which were previously approved by council. 38 Adjoining the pool and the deck at the western end the fence was about level with the deck just outside the kitchen. Due to the slope of the hills, at the eastern end of the lap-pool, the fence is 3 m above the pool deck level due to the steepness of the site and the pool being excavated at that end into the ground. 39 It seemed to me that the height of the fence, particularly at the eastern end, was such that any noise in that location would be well controlled by the height of the fence and the addition of further masonry adjoining the lap-pool would only serve to shade it from any sunlight it might obtain. Since the reference from Mr Cooper and Mr Moody was that the domestic activity which might arise on the deck adjoining the lap-pool from the kitchen was normal residential amenity and to be expected in this locality, I do not believe any further noise attenuation is needed in that position. 40 Mr Bell did advise me that what appeared to be glass doors from the living room onto the same deck were not doors in fact. There is a level change from the living room to the deck level and it would simply be windows that would allow some cross-ventilation in the living room area. 41 In turning further to the visual privacy matter, I bore in mind the observations taken on the rear deck of Mr Caffin's house and from his bathroom that there would be a clear line of sight from bedroom 4 in the upper pavilion and also from bedroom 1 at the second storey level unless the timber screens proposed were in place. 42 In bedroom 4 the windows proposed with the timber screens were in fact sliding windows that could be slid to the side and there would then be a clear view. In considering that bedroom 4 has windows on three sides, it seems to me that there would be ample ventilation to that room from the windows on the other two sides and the sliding windows should be fixed so that they cannot be opened towards the northern side which would look directly down onto Mr Caffin's rear deck and into his bathroom. 43 Windows on the bedroom below that were in fact high level windows and did not warrant such a measure. Bedroom 1 which was at the lower level had its only windows facing to the north and they were full height windows with a full timber screen in front of them. 44 In looking at Mr Caffin's submission on the ability of a person to look through the 80 mm gaps between the horizontal timber laths it seemed to me that he was probably quite correct that a person would have a reasonably good view or be able to see fairly clearly down onto parts of the deck and into the bathroom window at the separation distance and the lower elevation that would exist in relation to the bedrooms. 45 It seems to me therefore that below 1.6 m the battens should be spaced as he suggested at 40 mm spacing vertically between each lath and above that height they could be spaced at the 80 mm centres in order to enable a person in those rooms to look horizontally outwards and upwards to the view and to obtain light. 46 In turning to the provisions of the Sydney Regional Environmental Plan, Sydney Harbour in Issue 3, I note that Mr Moody said that the proposed front setbacks to Sandy Bay Road to the proposed dwelling are well in excess of the minimum building setback of 6 m under the Residential Development Control Plan and are also very acceptable in terms of the setbacks of adjoining properties. Whilst there are some breaching sections of the 8 m height requirement at the north-western corner, the proposed south-western corner fronting Middle Harbour is well below the maximum wall height and ridge height requirement. 47 There is opportunity to provide a reasonable degree of landscaping within the front setback area and this was illustrated in the landscape plan attached to Exhibit A, the subject drawings. Whilst it is correct to say that the garage is elevated with an under croft area, the western elevation does provide for a range of external finishes including the timber slatted screens, the cedar panel garage door and the recess into the under croft which will provide a shaded area to lessen the visual impact of the façade. Also the façade steps further back as one climbs from the ground floor to the next floor and finally, at the rear, to the pavilion providing articulation in the elevation facing the harbour. 48 Mr Moody had taken photographs of the context of the property as seen from Sandy Bay and this was observable at the time of the view. There are significant other houses in the same locality which would probably have greater visual impact than the subject proposal. He concluded that the proposal would be in context and the extensive amount of landscaped area on the site would provide further softening of the architectural form. The various external finishes proposed he recommended should be in muted tones with non-reflective finishes and this was to be in conditions. 49 In turning to those matters of objection that I have not dealt with already, it seemed to me that the bulk and dominance of which Mr Caffin was concerned at the rear would be counteracted by the fact that the three storey pavilion, apart from being more like two storeys with an attic, would be located over 4 m from the side boundary when the provisions of the Development Control Plan would require about a 2.4 m side setback. 50 Also the landscape plan showed a significant amount of vegetation to be planted along the side boundary between the swimming pool and Mr Caffin's property which would in time provide further softening of the built architectural form and reduce any feeling of dominance. 51 I also note that the provisions of the Development Control Plan do not prohibit three storeys as he suggested. The terms of the control plan are that they are not favoured and given the support of Mr Moody for the various reasons he gave, that the visual dominance would not be such that would justify refusal, I accept his evidence. 52 In regard to the bulk of the building at its western end the evidence and my conclusions in that regard indicate that the proposal is in context, it is smaller than the existing consent would allow for a very similar structure and it is in context with the general locality in terms of the built form and is on the southern side of Mr Caffin's and will not obstruct his views to the water from his major rooms including his kitchen, his living room and its associated harbour front deck. 53 Overall therefore I have concluded that the proposal is suitable for consent subject to the amended conditions as in Exhibit G of the documents before me. 54 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to a new house at No. 5 Sandy Bay Road, Clontarf as shown on Drawing Nos DA000 to DA011 all issue A dated March 2006 and Landscape Plan prepared by Myles Baldwin Landscapes all as amended by and built in accordance with the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits A, F, G and the disc in Exhibit 4 and Exhibits 6, 7 and 8 ___________________ K G Hoffman Commissioner of the Court Rjs/ljr 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.