Reznik v Waverley Council [2006] NSWLEC 513

Land and Environment Court of New South Wales

CITATION : Reznik v Waverley Council [2006] NSWLEC 513

APPLICANT: PARTIES : Yury Reznik RESPONDENT: Waverley Council

FILE NUMBER(S) : 10534 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Breach in the area of the proposed rooftop terrace and Likely adverse amenity impacts

LEGISLATION CITED: Waverley Local Environmental Plan 1996, (WLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

Catalina Developments Pty Limited v Woollahra Municipal Council [2004] NSWLEC 545 ; CASES CITED: Super Studio v Waverley Council [2004] NSWLEC 91 ; Zhang v Canterbury Council (2001) 115 LGERA 373

DATES OF HEARING: 17/08/2006

EX TEMPORE JUDGMENT DATE : 08/17/2006

APPLICANT: Mr Y Reznik, in person SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr S Patterson, solicitor with Ms K Allen, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

17 August 2006

10534 of 2006 - Yury Reznik v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Waverley Council (the council) to refuse a development application to alter and add to an existing terraced building to provide a rooftop terrace towards the rear at Lot 5, DP 2044, being No 9 Leichhardt Street, Waverley. 2 I visited the land in company with the parties at the time of the on-site hearing. 3 I have concluded that the application fails when considered under s 79C of the Environmental Planning and Assessment Act 1979, for reason of a breach in the area of the proposed rooftop terrace and likely adverse amenity impacts. The land 4 The land is situated on the western side of Leichhardt Street on the corner of Leichhardt Lane. It has northern frontage to Leichhardt Lane of about 31.9m, an eastern frontage to Leichhardt Street of about 12m, a southern boundary of about 38.2m, and a western rear boundary of about 10.1m, and an area of about 354.4m2. 5 Erected on the land is a two-storey terraced building with a double (tandem) garage on the south side. The existing dwelling has a hipped roof tiled roof towards the front of the dwelling and a skillion roof to the rear. There is a shed in the southwestern corner of the land. There are some trees, including palms, that provide some aesthetic and visual screening benefit. 6 There is a rear yard of about 116m2, including the area under awning/veranda, directly accessible from the kitchen and living areas. There is a landscaped front yard of about 38m2. Also, there is a ground level veranda, at the front, located off an existing living room, and a front balcony at the first floor, directly accessible from the main bedroom. About 165m2 of private open space is available to the occupants including that open and under cover (balcony). 7 Nearby development comprise single-storey and two-storey dwelling houses and multi-unit residential flat buildings. St Catherine's Schools is located further to the north along Leichhardt Street. To the north of the land, on the opposite side of Leichhardt Lane, is a three-storey residential flat building, known as No 7 Leichhardt Street. To the east, on the opposite side of Leichhardt Street, are two-storey terraces and dwelling houses. To the south, at No 11 Leichhardt Street is a two-storey terrace. To the west and the rear of the land is a three-storey residential flat building at No 4 MacPherson Street. Relevant planning controls Waverley Local Environmental Plan 1996, (WLEP) 8 Under the provisions of the WLEP the land is zoned Residential 2(a) and the proposal is permissible with consent. The proposal and its history 9 Development application No DA-475/05 was lodged with the respondent council on 4 August 2005 to alter and add to an existing terraced building to provide a rooftop terrace of 7.3m x 3.2m or an area of 23.36m2 (about 22m2 when the stair is excluded) towards the rear. The level of the floor of the proposed terrace would be similar to the height of the parapet that surrounds the rear roof and level with nearby balconies. No survey accompanied the application so precise levels are difficult to determine on-site. 10 This development application was considered by the Development and Building Unit (DBU) and recommended for refusal and was formally refused by notice dated 16 December 2005, for the following reasons: 1. The proposal is inconsistent with Clause 3(7)(d) and (f) of the Waverley Local Environmental Plan (LEP) 1996, in regard to housing, as the proposal is not compatible with surrounding development and does not improve the amenity of the residential area. 2. The proposal is inconsistent with the relevant zone objectives, in particular Clause 10(1)(b) of the Waverley LEP 1996, as the proposal is not compatible with surrounding development and does not improve the amenity of the residential area. 3. The proposal is inconsistent with C11.2 of the Waverley Development Control Plan (DCP) No 2 - Dwelling House and Dual Occupancy Development, as the proposed roof terrace is not acceptable and is considered to result in adverse amenity impacts. 4. The proposed rooftop terrace does not comply with the maximum dimensions and area for elevated external decks under C11.2 of the DCP, and is considered to result in adverse amenity impacts on surrounding properties. 5. The proposal is not considered to be in the public interest. 11 A building application for the rebuilding of a double garage BA 61/1993 had been approved on 1 July 2002. Applicant's purpose 12 In a position statement the applicant indicated that the purpose of the roof terrace was to provide a quiet sunny place for his parents to enjoy distant southeast water views over rooftops. Mr Reznik explained that the rooftop terrace would be accessible from the bedroom level, and would not be used for entertainment. He stated that from no other outdoor place on the property are substantive water views available, however, water glimpses are possible from the first floor eastern balcony. He explained that the eastern outdoor front open spaces are compromised by traffic noise, pollution and lack visual privacy. 13 Mr Reznik stressed that the proposed rooftop terrace would be separated 13.5m to kitchens of the units in the front part of No 7 Leichhardt Street to the north of the land. It would be separated 24.6m to the objector's property at Unit 16/7 Leichhardt Street. The impact on the balcony to No 4 McPherson Street would be slight as it would be separated 23.3m from that dwelling. He also pointed out that the proposed rooftop terrace would be partly screened by palms and other trees growing on the land. 14 Mr Reznik considered the impact of the proposed roof terrace would be negligible because privacy impacts would be ameliorated by distance and screening. He said that views to the southeast from the proposed rooftop terrace were not in the direction of any windows of open space of nearby properties. Notification 15 The application was notified to nearby owners and occupants and the council received objections in respect of both the original development application and the s82A review, from Mr T Halas, 16/7 Leichhardt Street, Waverley. In a recent letter to the council, dated 11 August 2006, he reiterated his concerns including the likely adverse impacts on the amenity of the occupants of his unit. He said the proposed rooftop terrace would be around the same height as the balcony on his dwelling and would be in the same quarter as the southeasterly ocean views. He was also concerned that noise might be occasioned by the use of the proposed new terrace, if it were used for entertaining and this would be most likely if it were fitted with a barbeque. He was also concerned that even if Mr and Mrs Reznik might use the rooftop terrace for quiet recreation there is always the chance that the property might change hands and the rooftop terrace might be used for more intense entertaining use. Noise pollution and visual impact were his major concerns. Section 82A review decision 16 On 30 January 2006, an application for a review of determination under Section 82A of the Act was lodged by the applicant. The council's assessment officer and DBU recommended refusal for the following reasons: 1. The proposal does not satisfy Clause 2(c) - General aims of Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979. 2. The proposal does not satisfy Clause 3(7)(d) and (f) - Specific aims of Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979. 3. The proposal does not comply with the 2(a) Residential - Low Density Zone objective (b) of Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979. 4. The proposed development is considered contrary to the Council's Development Control Plan No 2 Dwelling House and Dual Occupancy Development in respect to the following provisions of the DCP: (a) The objectives and controls concerning Part 11 Privacy and Noise Control, in particular the non-compliance with the general elevated external deck area and depth standards and that roof terraces are generally not acceptable. (b) The objectives and controls concerning Part 6 Building Height. In particular the non-compliance with the objectives relating to minimising the bulk-related impacts of housing, ensuring that buildings enhance the predominant neighbourhood and street character and that the visual impacts of the scale of the dwelling-house being acceptable and the non-compliance with the external wall height control. Having regard to section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979. 5. The proposed roof terrace is considered to create an unacceptable impact upon the character and visual amenity of the existing streetscape, having regard to section 79C(1)(b), (c) and (e) of the Environmental Planning and Assessment Act 1979. 17 Accompanying the notice dated 3 June 2006; the council's DBU assessment provided the following additional comments: The proposed roof level deck significantly increases the bulk of the existing building and substantially exceeds the size requirements for elevated decks in DCP 2. The existing house has a front verandah and reasonable sized backyard. The deck is not necessary for the provision of adequate open space for the site, as adequate open areas already exist. The NSW Land and Environment Court has articulated principles as to when elevated decks are appropriate (see Super Studio v Waverley Council [2004] NSWLEC 91 (16 March 2004). This case states: 'The first [principle] is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible.' The deck in question is not reasonable or necessary, the subject house has adequate existing open space (both elevated and at ground level) and the size and location of the deck is inappropriate. The hearing 18 The appeal was filed on 21 June 2006. 19 At the hearing the court received written evidence on behalf of the respondent council from Ms Z Flannery, (Nee Gamble), Senior Planner of Waverley Council. 20 On behalf of the applicant Mr Reznik gave evidence in person. 21 Ms Flannery also prepared the statement of basic facts. The issues 22 On 20 July 2006 the council filed a statement of issues. Waverley Local Environmental Plan 1996 1. The proposed development should not be approved as it does not comply with the general aims contained in clause 2, the specific aims contained in clause 3 and the objectives of the site's Residential 2(a) zoning contained in clause 10 of Waverley Local Environmental Plan 1996 ("WLEP 1996"). Particulars (a) The proposed development does not improve the amenity of the built environment as required by clause 2(c) of WLEP 1996; (b) the proposed development will not be compatible with surrounding development as required by clause 3(7)(d) of WLEP 1996; (c) the proposed development will not improve the amenity of its residential area as required by 3(7)(f) of WLEP 1996.