Land and Environment Court of New South Wales CITATION : O'Connor & Anor v Manly Council [2005] NSWLEC 373 APPLICANT J & M O'Connor PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10068 of 2005 CORAM: Tuor C Development Application :- Alterations and Additions to existing dwelling non compliance with height and setback control KEY ISSUES: impact on residential amenity - overshadowing and privacy LEGISLATION CITED: Manly Local Environmental Plan 1998 DATES OF HEARING: 29/06/2005 EX TEMPORE JUDGMENT DATE : 06/30/2005 APPLICANT Mr D Wilson, Barrister SOLICITORS Roper & Steggall LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 30 June 2005 10068 of 2005 O'Connor v Manly Council PRELIMINARY JUDGMENT 1 This appeal is against the refusal by Manly Council (the council) of a development application for alterations and additions to an existing house at 17 Rosedale Avenue, Fairlight (the site). 2 A description of the site, its context and the history of the application, are set out in the Statement of Basic Facts. The site is within Zone No 2 Residential under Manly Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent. Manly Development Control Plan for the Residential Zone 2001 (DCP) is also relevant. 3 The hearing was conducted on site where I heard expert evidence from: · Ms K Gordon, court appointed expert on planning, · Mr S Oi, council's consultant planner, · Mr T Hookins, architect for the proposal. 4 I inspected the properties and heard objections from the following residents: · Mrs K Bothwell, 15 Rosedale Avenue. · Mr and Mrs Du Vernet, 14 Willyama Avenue. 5 I also inspected the property at 14A Willyama Avenue, and reviewed the letter of objection from the owners, Mr and Mrs Franklin, who were unable to attend the hearing. 6 The Statement of Issues contained eleven issues. Issues 1, 2 and 7 were resolved by further information and conditions. Issue 11 was not pressed. The remaining issues can be summarised as: 1. Whether the setback of the first floor from the southern and eastern boundary has an acceptable bulk, overshadowing and privacy impact on the adjoining properties. 2. Whether the height and bulk of the proposed study is acceptable. 7 These issues were essentially the same as those raised by the objectors. Setbacks 8 Clause 3.5.2 of the DCP addresses setbacks. The relevant objectives are: (b) To provide privacy; (c) To provide equitable access to light and sunshine; (d) To promote flexibility in the siting of buildings. 9 The objectives are to be achieved using the performance criteria. If these performance criteria are not met clause 3.5.2(vi)(a) states that: Council may permit buildings to be erected within the calculated boundary setback area in special circumstances, provided it can be demonstrated that the objectives of this provision are met. 10 The side setback performance criteria in cl 3.5.2(b) requires: sufficient access to the side of properties to allow for property maintenance, planting of vegetation, and sufficient separation from neighbouring properties. 11 The performance criteria then applies a formula for setbacks which requires side setbacks to be one third the height of the external wall. 12 The height of the eastern wall of the dwelling is proposed to be between 5.8m and 6m high, the first floor requires a setback under the DCP of between 1.93m and 2m. The proposed first floor setback ranges between 1m to 2.5m. 13 Mrs Bothwell, 15 Rosedale Avenue, was concerned about the bulk, privacy and overshadowing impact on her property that would result from the non compliance with the setback requirement of the DCP, particularly the impact on the front garden and swimming pool area and the northern upstairs window. 14 The existing house on the site is set back approximately 700 mm from the eastern boundary, and its eaves extend almost to the boundary. The proposed first floor is built above the ground floor for part of this elevation. Most of the first floor which would be visible from the front garden of No. 15 is set back about 2.25 m from the boundary and complies with the setback controls at this level. A length of about 3.5 m would be apparent from the garden of No 15. The remainder of the elevation that does not comply adjoins the blank wall of No. 15. 15 The non-compliance with the setback of part of the first floor would not result in a bulk of building beyond that anticipated by the controls. The difference in setbacks breaks up the length of the facade. There is only a hall window that faces the front garden of No. 15, and a condition has been agreed to by the applicant that requires obscure glazing or a sill height of 1.6 m to this window. Therefore there are no privacy or bulk issues that would result from the non-compliance with the setback controls. 16 The proposal will result in a small increase in overshadowing of the front garden and the west elevation of No. 15 at 3pm, but this is not as a result of the non-compliance with the side setback control. At noon, there would be no discernable impact on the north window of No. 15. The experts agreed that the overshadowing met the requirements of the DCP, and that the non-compliance with the setbacks along the eastern boundary was not of such concern to warrant refusal of the application. 17 I accept that the non compliance results largely from the setback of the existing building. The additional floor does not exacerbate the situation, and I am satisfied that it meets the objectives of the standard. 18 The criteria in cl 3.5.2(c) requires that rear setbacks provide: space for planting and vegetation, including trees and other landscape works, and private and/or common open space. 19 The performance criteria require that any part of the building shall be not less than 8m from the rear boundary. 20 The existing building is constructed on the rear boundary and the eaves overhang the adjoining property. Given this situation, the performance criteria of locating landscaping and private open space within the rear 8m of the site cannot be achieved if the building is to be retained, regardless of the location of the first floor. 21 In assessing this non-compliance, it is appropriate to consider the objectives of the rear setback control. Of relevance are objectives (b) and (c) which address privacy and solar access. The part of the proposed addition, which breaches the control is the upstairs master bedroom, walk-in wardrobe and en suite. The window of the master bedroom is angled to the east to obtain views to the water. The angle also assists in minimising direct overlooking of the western kitchen window in No. 15 Rosedale Avenue, and the upstairs bedroom window and balcony, and the downstairs courtyard and family room of No. 14 Willyama Avenue. 22 Ms Gordon found the privacy impacts of the proposal to be acceptable due to the use of the bedroom and the separation between the dwellings of 11.5m to the kitchen of No. 15, and 9 m to the bedroom of No. 14. Mr Oi and the residents considered the impact to be unacceptable. 23 Unless part of the ground floor is demolished, which was suggested by the council planner in the assessment report for the application, the ground level cannot comply with the performance criteria of the standard. As the proposal is an extension to an existing building it is constrained to some extent by the ground floor. I accept that it would not be reasonable to require a setback of 8m from the rear boundary. However, the setback of the upper level must achieve the objectives of the control. 24 In relation to privacy, the proposed bedroom has been designed to take advantage of the views, as such its usage may be more than that of a bedroom without views. Despite the angle there will be a degree of overlooking from the bedroom to the upper level kitchen and bedroom of the adjoining properties. However, this is not uncharacteristic of the area where there is a large degree of overlooking. The separation distance is such that the overlooking between these rooms is acceptable. The overlooking of the courtyard will be mitigated by the roof of the ground floor of the proposal and as such is acceptable within the context of the area. 25 I accept Ms Gordon's opinion that the privacy impacts of the proposal are reasonable, and that the objective of the setback control in relation to privacy is met. 26 In relation to overshadowing, the experts examined detailed shadow diagrams and agreed on the extent of overshadowing of the courtyard and the doors to the family room of No. 14 that would result. The experts agreed that the impact on the courtyard would satisfy the numerical requirements of the DCP in that there would be no increase in shadow at 9am and 3pm in mid winter, and at 12pm the impact would be to less than a third of the area of the courtyard that receives solar access. 27 The solar access to the living room would be reduced at 12 noon, approximately 30% of the doors would retain solar access. However, the experts held different opinions as to whether this impact was acceptable. Ms Gordon considered it to be acceptable, whereas Mr Oi considered it to be unacceptable. 28 In assessing whether the impact is acceptable, it is important to understand what is causing the impact, and whether it can be mitigated, particularly as the proposal is within the required setback area, and the impact therefore results from a non compliance. 29 The overshadowing of the living room results from the angled section of the master bedroom, and the walk-in wardrobe. Ms Gordon recommended that the walk-in wardrobe be relocated to the void area above the entry to reduce the overshadowing impact. 30 I requested the experts to undertake an exercise that would further setback the bedroom to reduce the overshadowing impacts. The amended proposal, exhibit 13, removes the overshadowing of the living room of No. 14 by setting the bedroom back 4 m from the boundary and relocating the walk-in wardrobe. The proposal would eliminate any overlooking of the kitchen at No. 15 Rosedale Avenue but would result in more direct overlooking of the bedroom of No. 14, although this would be at a greater distance, between 10.3m and 11.8m. Overlooking of the courtyard of No 14 would also be eliminated due to the 4m expanse of ground floor roof, although some overlooking of the courtyard of No. 14A may result. 31 In balancing these competing factors, I consider that the improvement in the solar access to the living area of No. 14 should be pursued. As stated above, the privacy impacts of the proposal in the context of the area are acceptable, whether it is the current proposal or the amendment, however the overshadowing impacts are significantly reduced by the amendment. 32 I do not accept Ms Gordon's opinion that the overshadowing impact to the living room is acceptable. This area is directly off the kitchen and opens onto a courtyard, which faces north. It is, therefore, an area of importance to the owners and provides significant amenity. The reduction in solar access to the living area resulting from a non-compliance is therefore unacceptable, especially in the context where it can be mitigated. I therefore consider that the proposal should be amended as indicated in exhibit 13. This proposed amendment would also reduce the bulk of the building when viewed from No. 14 and 14A Willyama Avenue, and No. 15 Rosedale Avenue. Height 33 Clause 3.4.2 of the DCP has a wall height control of 6.6m. Roof structures may extend a further 3m giving an overall building height of 9.6m. Habitable rooms are permitted above the wall height where it can be demonstrated that these do not detrimentally affect the amenity of the locality. The proposed study projects above the wall height by 1.57m, but with a maximum height of 9.4m, is below the overall building height control. 34 The study has an area of about 3m by 3m, and is located above the entrance lobby at roughly at the centre of the western elevation. The experts agreed that the study was a three storey element, but held different opinions as to whether it was acceptable or not. In Ms Gordon's opinion the study met the objectives of the height control in that it is: · below the overall height control · consistent with the height of nearby buildings, being between the height of 15 Rosedale Avenue and the building opposite in Willyama Avenue. · a small projection and most of the building is well below the height of other buildings. · does not result in any impact on views, overshadowing and privacy · an acceptable architectural treatment, and is not so large as to be an intrusion in the character of the area. 35 Mr Oi held the contrary opinion that: the breach in the height control is unreasonable, resulting in a third storey, it being noted that the study element is too large to be considered a turret or architectural feature. As such the proposal is not characteristic of the area and is contrary to the requirements of the DCP. 36 I accept Ms Gordon's opinion, while the study breaches the wall height control, it meets the objectives of the standard for the reasons given by Ms Gordon. Directions 37 For the reasons outlined in this judgment I find that the proposal is acceptable subject to the setback of the main bedroom and wardrobe a minimum of 4m from the rear southern boundary. I propose that amended plans and conditions are to be filed and served, which incorporate these amendments, within 2 weeks, and I will then issue final orders in Chambers. _________________________ Annelise Tuor Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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