Land and Environment Court of New South Wales CITATION : Tannous v Port Stephens Council [2007] NSWLEC 7 APPLICANT Charly Tannous PARTIES : RESPONDENT Port Stephens Council FILE NUMBER(S) : 11595 of 2005 CORAM: Bly C KEY ISSUES: Development Consent :- Modification application, unlawful works, roof top terraces, building height, floor space ratio, planning controls, amenity impacts Environmental Planning and Assessment Act 1979 s 96 LEGISLATION CITED: Port Stephens Local Environmental Plan 2000 Port Stephens Council Development Control Plan PS1 Draft Port Stephens Development Control Plan 2006 CASES CITED: Super Studio v Waverley [2004] NSWLEC 91 ; Lido Real Estate v Woollahra [1997] 98 LGERA 1 DATES OF HEARING: 03-04/08/2006, 04/09/2006 and 03/11/2006 DATE OF JUDGMENT: 10 January 2007 APPLICANT Mr I Hemmings, barrister Instructed by: Ms V Wilson, solicitor Of: Sage Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr M Maston, barrister, Instructed by Mr P Jayne Of: Sparke Helmore, JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 10 January 2007 11595 of 2005 Charly Tannous v Port Stephens Council JUDGMENT Introduction 1 On 5 March 2003 the Port Stephens Council granted development consent No. 16-2002-1760-1 for the demolition of an existing dwelling and the erection of an attached dual occupancy development in the manner of infill development on the site the subject of this appeal at 80 Government Road, Nelson Bay. 2 In June 2004 an application under s 96 of the Environmental Planning and Assessment Act 1979 ("EPA Act") was lodged seeking the modification of the development consent. This application was mainly for the provision of a roof top terrace (27 sq m) and associated toilet facilities for each of the two approved dwellings. This appeal relates to the council's refusal of this modification application. 3 The site is situated in an existing built up residential area, consisting predominantly of one and two storey dwelling houses and dual occupancy development. Positioned on a ridge, the site has extensive views over Port Stephens. 4 This judgement concludes that the modification application can be approved subject to the removal of the two roof top terraces. Planning controls 5 The site is zoned Residential 2(a) under Port Stephens Local Environmental Plan 2000 ("the LEP"). Dual occupancy development is permitted with development consent. The relevantly applicable objective of the 2(a) zone is: (a) to ensure that infill development has regard to the character of the area in which it is proposed and does not have an unacceptable effect on adjoining land by way of shading, invasion of privacy, noise and the like. 6 Clause 19 of the LEP sets, for dual occupancy development, a maximum building height of 8 m and a maximum floor space ratio of 0.5:1. 7 Also applicable to the site is the Port Stephens Council Development Control Plan PS1 ("the DCP"). 8 On 26 July 2005 the council adopted an Interim Roof Top Terrace Policy ("the roof terrace policy"), which has now been incorporated into the Draft Port Stephens Development Control Plan 2006 dated 12 October 2006 ("the draft DCP"). Advertising and council's decision 9 The modification application was advertised and three submissions were received from neighbours expressing concerns regarding loss of visual privacy, noise impacts from the use of the terraces, excessive building height and unsatisfactory appearance. 10 Amended plans reducing the size of the terraces were subsequently submitted. The council nevertheless refused the application on 6 December 2005 for the following reasons: 1. The development is inconsistent with the provisions and 2(a) zone objectives of the LEP. 2. The development does not comply with the height development standard pursuant to the LEP. 3. The development is out of character with the immediate locality and will detract from the residential amenity. 4. The development is considered an overdevelopment of the site and incompatible with the immediate streetscape in terms of height, bulk and scale. 5. The development is contrary to the public interest and expectations of an orderly and predictable built environment. 11 The building has now been constructed and notwithstanding that the s 96 modification application was refused, the terraces and the toilet facilities have been substantially completed. 12 During the proceedings it was discovered that the plans for which are now sought to be incorporated into the development consent did not correctly reflect what had actually been built. The Court consequently required the applicant to prepare survey plans of the constructed building. These plans have been provided [Exhibit E] and not only show the terraces and toilet facilities but also reveal that the heights of the roof of the building exceed those shown on the approved plans. 13 The revised modification application plans [Exhibit D] now incorporate all of these matters as well as the proposed glass (noise and visual) privacy screens on the sides of the terraces to a height of 1.8 m above the decking. Hence all of the changes must be considered. The issues 14 The Statement of Issues in essence identifies the following issues: o Exceedence of the building height and floor space ratio development standards in the LEP and inconsistency with objective (b) of the 2(a) zone together with the unsatisfactory appearance of the roof top terrace and toilet structure. o Amenity impacts on neighbouring dwellings resulting from the use of the terraces including noise and loss of privacy. 15 The hearing began on site when the court heard evidence from o Mr G and Mrs P Noonan of 1/82 Government Road. o Mr I and Mrs M Howden of 2/82 Government Road. o Mr C and Mrs H Baker of 84 Government Road 16 These residents opposed the proposal for the reasons mentioned above and detailed in their written submissions. 17 Expert evidence was provided by the two court-appointed experts: o Mr B Newbold- architect and town planner o Mr R Tonin - acoustic engineer 18 Mr Newbold and Mr Tonin were of the opinion that, subject to a number of changes, the modification proposal would not have any impacts that would warrant refusal. 19 On behalf of the respondent council Mr P Pollard gave expert architectural evidence. He did not support the proposal because of its impacts on neighbouring properties and because the structure would be readily visible from neighbouring properties and Government Road. It would also diminish the architectural quality of the approved design. Height, floor space ratio and associated impacts Building height 20 The 8 m height development standard in the LEP sets a maximum building height measured above natural ground level. The steeply sloping nature of the site means that the height plane generated by the standard intersects with the proposed (existing) and approved buildings at various points as shown by the plans [Exhibit E]. An examination of these plans reveals that the north-western corner of the approved building exceeds this height limit by up to 1 m. The height of the roof of the proposed (existing) building is variously higher than the approved building as shown on these plans by up to about 800 mm. 21 Hence the non-compliance with the height standard again in the north-western corner of the building is up to 1.8 m and extends (in plan) over a significantly greater area of roof. This exceedence is somewhat greater when the roof top terrace balustrades, that project out of the roof by 1.2 m (by scale), are taken into account. 22 The building height objectives in s 3.3 of the DCP seek to ensure that new development is not excessive and relates well to the local context as well as ensuring that the amenity of surrounding properties is properly considered. The associated performance criteria require that there be no significant loss of amenity to adjacent dwellings. The bulk and scale objectives in section 3.4 also require that new development not be excessive and should relate well to the local context. The associated performance criteria require that there be no significant loss of amenity to adjacent dwellings. The external appearance objectives in s 3.5 whilst allowing flexibility in design, encourage high architectural standards and require that there be continuity of character utilising characteristic elements and massing. Floor space ratio 23 According to the statement of basic facts the floor space ratio of the approved development is 0.495:1 and as a result of including the additional floor area associated with the two toilet facilities this ratio increases to 0.501:1, slightly in excess of the applicable development standard. The draft DCP 24 The proposed roof top terraces do not comply with s B6.11 of the draft DCP which provides that the development of a single dwelling or a dual occupancy dwelling must not include such terraces. However s B8.16 of the draft DCP permits roof or podium terraces in residential flat buildings provided that they are designed to minimise impacts on visual and acoustic privacy and provided that users of such terraces are not readily visible from public streets or reserves. Residential flat buildings are not prohibited in the 2(a) zone. Whilst the requirement for roof top terraces in residential flat buildings are not applicable here, they are nevertheless of some assistance in assessing the merits of this modification application. 25 By the introduction of privacy screens up to 1.8 m high persons using these terraces would not be seen from the street or from neighbouring properties and given the distance of separation from Dutchies Beach would be barely noticeable. Also the balustrades would only be seen within a relatively narrow compass when viewed from Government Road and from neighbouring properties. 26 Whilst the draft DCP has been exhibited, it has not yet been adopted and as a consequence cannot be given the weight normally attributed to a properly completed development control plan. This is particularly so in relation to its attempt to prohibit roof top terraces above dwelling houses and dual occupancy developments, given that the policy, that is now incorporated in the draft DCP, was adopted by the council after the modification application was lodged. 27 Nevertheless, taking into account the general absence of roof top terraces in this locality it is plainly a policy that can be implemented and an approval of these roof top terraces could establish a precedent that would interfere with this policy. Expert evidence 28 In his reports, which predate the amended plans, Mr Newbold mainly dealt with impacts associated with the terraces and the toilet facilities. In dealing with architectural design he acknowledged that there had been some loss of quality. Despite this he was of the opinion that the works do not represent a stark contrast or an abrupt departure from the forms and proportions of the approved development. In reaching this conclusion he took into account the limited visibility from the street frontage and surrounding properties and concluded that the changes are not prominently visible from any vantage point. He recommended that glass screens should be installed around the terraces to ensure the visual privacy of the neighbours and that such screens would not alter his conclusions in relation to design compatibility. In relation to noise impacts he deferred to the evidence of Dr Tonin. 29 Despite the minimal exceedence of the floor space ratio, the structures associated with the additional floor space and the terraces were matters of concern to Mr Pollard especially in terms of the appearance of the building. According to his amended report, taking into account: the increased building height; the additional floor space and roof volume; and loss of transparency, the architectural character of the development has been seriously compromised. The toilet elements are an obvious, unfortunate afterthought. 30 By reference to ss 3.3 and 3.4 of the DCP Mr Pollard said that the terraces and the toilet facilities would be clearly visible from neighbouring properties, Dutchies Beach and Government Road. Architecturally, the end result is of a significantly lesser standard than the approved design. 31 In dealing with the amenity impacts for the neighbors Mr Pollard made reference to the roof terrace policy, which actively discourages roof top terraces, noting that in attempting to mitigate privacy impacts the screens have adverse aesthetic consequences. He was of the opinion that visual bulk is increased and this bulk is visible from the neighbouring properties. 32 Dr Tonin prepared a report describing his investigation into the likely acoustic impacts associated with the proposed modified development. Existing ambient noise levels over a seven-day period were recorded and calculations made of the noise likely to be generated buying a party of six people engaged in loud conversation. He concludes that whilst it is possible for the use of the roof top terrace to produce noise levels that would be intrusive and unreasonable, those impacts would be generally no greater than the use of the other balconies of the building or the backyard on the ground level. A 1.5 - 1.8 m high glass screen on the sides of the roof top terraces would be effective and would reduce noise levels emanating from them. He also prepared a supplementary report in response to matters raised by Mr Pollard including the use of amplified music and the ultimate capacity of the lower-level balconies and the terraces. He calculated that the combined noise level would not be much greater than what he had already calculated and this increase would be indiscernible. Impacts - Super Studio v Waverley 33 In Super Studio v Waverley [2004] NSWLEC 91 (applied in Griffin v Mosman MC [2005] NSWLEC 108) which deals with a modification application that included a new roof terrace Roseth SC applied the principal 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. In that case he took into account that the approved proposal already had three outdoor areas and said: 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 34 In this case the surrounding houses do not have roof terraces and I agree that the proposed roof top terraces would be new elements for dual occupancy developments in this area. Whilst I am satisfied that the increased roof height and the toilet structures do not have significant impacts, the roof top terraces above the elevated roof have architectural impacts that when assessed with heightened sensitivity, the impacts would certainly not be minor or negligible and would not relate well to the local context. Here I agree with Mr Pollard that the high architectural standard sought by the DCP would not be achieved. 35 In relation to the question of necessity, each of the dwellings has two other elevated terraces with excellent northerly outlooks plus relatively large backyards. Hence there cannot be said that there is a necessity of any significance for the proposed terraces. 36 Whilst I do not agree that the proposed changes would destroy the architectural aesthetic and functional design of the original building, I agree with Mr Pollard in so far as he was concerned at the architectural impact of the appearance of the terrace balustrades projecting through the roof and adversely affecting its form. Conversely whilst I understand what he says about the impact of the toilet structures on the building form I agree with Mr Newbold that the impact would not be significant. Development standards - Lido Real Estate v Woollahra 37 Relying on the decision of Talbot J in Lido Real Estate v Woollahra [1997] 98 LGERA 1, and this being a modification application, I accept that the above-mentioned development standards can be exceeded without the benefit of an objection under State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") 38 Despite this, where a modification application results in a development changing from one that complies with the development standard to one that exceeds the development standard the fact that the development standard is exceeded needs to be taken into consideration. However I agree that by itself, the exceedence of the floor space ratio development standard is, as explained by Mr Newbold, minimal and not of concern. As I have already indicated, I also agree with him that the manifestation of this additional floor space into built form has no critical consequences. 39 Whilst the increased the building height does not involve a change from compliance with the 8 m development standard to non-compliance, resulting instead in an increased non-compliance, a similar approach can be taken. By comparison with the impacts associated with the increased floor space ratio, the impacts here are significantly different and of much greater concern. 40 If the entire development were to be the subject of a development application then the non-compliances with the development standard would need to be justified within a properly prepared objection under SEPP 1. As already indicated an objection is not required, this being a modification application. However if an objection were to be prepared it would need to establish that compliance with the development standard was unreasonable or unnecessary. 41 As described above, the building design approved by the council exceeds the 8 m height development standard and I can understand how this exceedence was deemed to be acceptable, taking into account the steeply sloping nature of the site and the fact that the majority of the roof (of that part of the building to the north of the entry foyers and in which the roof terrace exists) is well beneath the height envelope. 42 However, taking into account the roof top terrace balustrades, the extent of the non-compliance with the development standard is, in my view, significantly increased and it would be difficult to justify this exceedence if the SEPP 1 tests were to be applied. However if the roof top terraces and their balustrade structures were omitted, one could accept a similar argument to that which would have supported the original approval based upon the slope of the site and the fact that much of the roof form would be beneath the height envelope. 43 Any impacts on neighbouring properties in terms of privacy and overshadowing would have been virtually identical to the approved development. As for impacts associated with the appearance of the modified building, considering the proposed height of the gutter line by comparison with what was approved the difference will not be conspicuous. This would involve an increase in height of about 300 mm above the 6 m high east wall and the 6.5 m high west wall. On that basis it would have been unreasonable to strictly apply the height standard. 44 Conversely, because the roof top terraces and their balustrade structures project further above the height envelope, especially as shown by the west elevations (Exhibit E), alter the architectural form of the roof and taking into account the other terraces and backyards, one would have difficulty concluding that compliance with the standard was unreasonable or unnecessary. Unlawful works 45 Although it is inappropriate to give weight to existing unlawful works, in my opinion the circumstances of each case can be considered. One can take into account the consequences in terms of the extent of works that would be required as a result of a refusal as against the benefit for the public interest. In this case to require the removal of the toilet structures and the lowering of the roof form to comply with the original approval would not in my opinion produce a sufficient benefit by comparison with the works that would be involved. 46 Conversely the removal of roof terraces including the relatively easy task of extending the roof over them would have a significant architectural benefit in terms of the building's presentation as well as its response to the applicable planning controls. In this context I recognise that works including modifications to the existing building to integrate the two roof forms will be necessary. Amenity impacts 47 In relation to noise impacts on neighbours I accept that Dr Tonin's analysis is correct, considering the usability of the existing roof top terraces and the likely relatively low frequency that these would be used to the extent that generated noise would approach an unreasonable threshold. 48 For reasons already given I agree with Mr Pollard and the neighbours as to the unsatisfactory appearance of the rooftop terrace, especially when the necessary balustrade and the privacy and noise mitigation screens are taken into account. Conclusions 49 The objective of the 2(a) zone requires that developments such as this have regard to the character of the area and for the reasons I have given I conclude that the proposed roof top terraces would not meet these objectives, notwithstanding the absence of critical amenity impacts involving noise and privacy on the neighbouring properties. 50 In its present form, the application should be refused. However I have decided that the critical flaw in the modification proposal could be readily rectified by the removal of the roof top terraces. Their removal will produce a satisfactory outcome in terms of the appearance of the building and will thus facilitate the approval of the application. 51 I have therefore decided to uphold the appeal and amend the existing development consent by the inclusion of an additional condition that requires the roofing-over of the roof top terraces to make them unusable as such. Other conditions sought to be imposed by the council in relation to these terraces involving drainage and the like are unnecessary and are therefore deleted. Orders 52 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development consent No. 16-2002-1760-1 for the demolition of an existing dwelling and the erection of an attached dual occupancy development at 80 Government Road, Nelson Bay, is modified in accordance with the conditions in Annexure A hereto. 3. Exhibit D is retained. ___________________ T A Bly Commissioner of the Court 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.