Land and Environment Court of New South Wales CITATION : Raymond & Ors v Woolahra Municipal Council; Raymond v Woolahra Municipal Council [2007] NSWLEC 748 10824 of 2002 APPLICANTS B & Y Raymond T & L Kennedy RESPONDENT PARTIES : Woollahra Municipal Council 11118 of 2006 APPLICANT B Raymond RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10824 of 2002; 11118 of 2006 CORAM: Sheahan J KEY ISSUES: Appeal :- Section 56A appeal; Section 96 modification application; abuse of process CASES CITED: Russo v Kogarah Municipal Council (1999) 105 LGERA 290 DATES OF HEARING: 14-15 November 2007 EX TEMPORE JUDGMENT DATE : 15 November 2007 APPLICANT Mr J Johnson Solicitors LEGAL REPRESENTATIVES: McKees Legal Solutions RESPONDENT Mr A M Pickles Solicitors Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 15 November 2007 10824 of 2002; 11118 of 2006 Raymond & Ors v Woollahra Municipal Council; Raymond v Woollahra Municipal Council EXTEMPORE JUDGMENT 1. His Honour: The two matters before the Court concern a 3-storey residential flat building, containing 2 units over basement car parking, located at 42 Bundarra Road, Bellevue Hill. 2. In matter 11118 of 2006 there is a s 56A appeal against the imposition of a condition by the Court on an earlier occasion, and there has today been an agreement reached that the s 56A appeal will be discontinued on the basis that the Applicant will pay the reasonable costs incurred by the Council in respect of that matter. 3. The Court, therefore, has concentrated on matter 10824 of 2002 in which the Applicant has brought an appeal against Council's refusal of a s 96 modification application. 4. The initial development consent was granted by the Court on 28 May 2004. There have been three subsequent s 96 applications, some of which resulted in a number of modifications being approved. The current fourth s 96 application seeks the following further modifications: a) Delete the requirement for the retaining wall on the south eastern boundary; b) Retain the concrete and paving in the rear setback area which extends from the rear ground floor apartment 1 to the first tier level; c) Delete the glass roof and replace it with a reinforced concrete roof on the ground floor entry to apartment 2; d) Delete the steel balustrade on the north and south western edge of the building and retain existing tiled access way and planter boxes on the first floor of apartment 2; and e) Erect glazed screens to a height of 1500mm above terrace level on the ground floor level of apartment 2. 5. The main issues identified for the appeal can be summarised as: · The proposed modifications are contrary to previous s 96 determinations; · The modification in respect of the rear ground paving adjacent to apartment 1 is contrary to the agreement made by the parties; · Non-compliances with Council's requirements regarding adverse visual and acoustic privacy of adjoining properties; · Objectors' concerns; · A submission by the Council that either the Applicant is estopped from reagitating some of its issues or that in some respects the proceedings constitute an "abuse of process". 6. While I do not consider the proceedings should be struck out as an abuse of process, in accordance with the Court of Appeal's reasoning in Russo v Kogarah Municipal Council (1999) 105 LGERA 290, I have entertained the various arguments of the parties on that question in arriving at how the Court should apply, if at all, its discretion to the substantive issues. 7. Following consideration of those substantive issues, the applicant responded with further amendments as detailed on the plans in Exhibit A6. The parties agreed that these plans form the basis for the final determination of this matter, and in that determination I have been assisted by Commissioner Hussey. 8. In determining the current s 96 application, the Court is satisfied that: 1 The modification relates to the same development, 2 The objectors have been notified and given the opportunity to comment on the proposal, 3 The merits of the modifications have been assessed on the following basis. 9. A detailed statement was presented by Mr D Waghorn, Council's senior assessment officer - town planner (Exhibit C5). Other expert evidence was presented by Dr Felix Barda (Exhibit C4) regarding the structural engineering issues associated with the retaining wall condition. 10. In addition to the written objections contained in Council's bundle of documents, oral evidence was taken at the site from: · Mr B Sterling-Levis, owner of the neighbouring property at the rear of the subject site; · Mrs J Streimer, neighbour from 40 Bundarra Road, Bellevue Hill, and · Mr M Robinson, representing the Bellevue Hill Residents Action Group. Retaining wall 11. Following the site inspection by the respective engineers, the applicant has agreed to construct a section of the retaining wall as shown on the plan in Exhibit A6. Such work should facilitate the completion of outstanding landscaping works and the replacement of the dilapidated timber boundary fence. The Council agrees that these proposed works are satisfactory. 12. The Court is satisfied that these proposed retaining wall works will reasonably address the concerns raised by Mrs Streimer. Ground floor terrace – Apartment 1 13. This matter concerns the width of paved areas adjacent to Bedrooms 1 & 2. The original consent required the rear setback area to contain three tiers of landscaping to suit the sloping topography of the site. This allowed a residue 'pathway' of approximately 1m in width adjacent to the building for access to maintain the landscaping. 14. However, previous s 96 modifications allowed the extension of the basement carpark, from that originally approved. The applicant then constructed the 'pathway' approximately 3.3m wide in conjunction with the extended carpark roof structure. This consequently reduced the landscaping within the rear setback area to allow only two tiers. 15. Mr Sterling-Levis objects to this reduction in landscaped area because he considers the consequential widened pathway is effectively transformed into a rear courtyard providing opportunities for significant increase in usage, which he considers will cause disamenity, particularly from noise generated from the rear courtyard area that he describes as a 'sound box' or 'sound chamber'. He says the wider landscaping strip should be maintained to allow planting, which he considers will mitigate noise disturbance from the rear of the subject property. 16. Mrs Streimer also objects to the widening of this courtyard area on the basis that it will allow increased usage and noise disturbance to the outdoor living areas of her property. 17. Mr Waghorn says that: " The three tiered landscaped area at the rear of the subject premises is considered to be an essential element of the approved plans and provides an acoustic buffer between the subject site and the adjoining properties. Replacement of any of the tiers within the landscaped area for a concrete slab will result in an increase in the usable amount of private open space by 17.68m2. This will, in turn, increase the number of people using the rear yard, thereby increasing noise transmissions to adjoining properties ." 18. Furthermore, Mr Waghorn points out that the extent of the rear pathway and tiered landscaping was previously agreed by the Applicant, Council and neighbours. 19. During the proceedings, the Applicant responded to these concerns and requested a further amendment to reduce the width of the rear terrace area to 2.5m from the dwelling, so as to maintain the existing drainage pits and achieve better utility of this space. 20. The Council submissions are that the retention of this rear 'courtyard' area is not consistent with the performance criteria controls in s 5.8.1 of the DCP whose stated objective is : "To ensure adequate acoustic and visual privacy for occupants and neighbours." 21. The associated figures in the DCP show building layouts for achieving acoustic privacy and particularly refer to avoiding reverberations. Both Mr Waghorn and the other neighbours expressed concern about the sunken configuration of the proposed 'courtyard area' and its potential for greater use and the generation of noise nuisance. Whilst no acoustic evidence was presented to the Court, the Court relies on the planning expertise of Mr Waghorn that the proposed modification is likely to result in a decrease in the acoustic amenity experienced by neighbouring properties. 22. The Court also accepts that considerable negotiations have previously been undertaken between the parties and neighbours to establish a reasonable balance between the property owners benefit and the neighbours amenity. The Court is satisfied that the proposed modification would upset that balance and as the Applicant was unable to establish any change in circumstances, the Court considers that the previous agreement should be maintained, in order to reasonably satisfy the provisions of the DCP. The Glass Roof Issue 23. This modification seeks the approval of the currently constructed reinforced roof element over the entry to apartment 2. 24. According to the Applicant's evidence this replacement structure was constructed to better achieve the acoustic condition 8 of the consent. The Applicant contends the concrete roof better mitigates sound attenuation than the sloping glass roof required in the original approval. However, no expert evidence was submitted to support this submission, and both the Council and objectors reject it. 25. Instead, the Applicant now contends that the resultant amenity issues of accessibility and possible loss of privacy arising from the roof as constructed can be addressed by way of completion of the front planters as originally approved and inclusion of a fixed 1500mm glass screen to prevent access to this roof area. 26. This concern does not arise if the original sloping glass roof is maintained, as originally approved, and as required to be retained by Commissioner Moore in the previous s 96 appeal, and the windows on that side are non-operable as envisaged by condition 14. 27. In so far as the Applicant submits there are significant costs involved to rectify this unauthorised work, the Court gives this submission little weight. 28. Accordingly, the Court is satisfied that this component of the s 96 application is not reasonable to modify, so that the original amenity relationship between the neighbours is maintained. North-West Terrace 29. The modification sought for this terrace is to retain the constructed accessway inside the planters. This is required to provide safe access for maintenance of those planters. In order to address privacy/overlooking issues the Applicants' proposed modification is to extend the end planters and erect a 1500mm glass screen at the northern end of them to prevent access. 30. Based on the evidence and observations at the view, the Court considers this satisfactory to achieve safe maintenance of the planters and notes that overlooking opportunities are restricted. 31. However, the Court considers that some suitable material should be placed and maintained on the accessway surface to prevent it being trafficable. Access to this accessway is via the windows. Orders 32. The formal orders of the Court are: 1. Leave is granted to the Applicant to discontinue the s 56A appeal in matter No.11118 of 2006, by consent, on the basis that the Applicant will pay the reasonable costs of the Respondent, as assessed or agreed. 2. The s 96 application currently before the Court in matter No. 10824 of 2002 is determined as set out in these reasons and the parties are directed to bring in short Minutes of Order to reflect that determination. 3. There will be no order as to costs in matter No. 10824 of 2002. 4. The exhibits may be returned except Exhibit C2, Exhibit C5, Exhibit C6, Exhibit A2, Exhibit A5, and Exhibit A6. 5. Liberty is granted to the parties to apply on 48 hours notice regarding the final orders in matter No. 10824 of 2002. 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.