Land and Environment Court of New South Wales CITATION : O'Connor, Barry v Waverley Council [2007] NSWLEC 840 APPLICANT Barry O'Connor PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10952 of 2007 CORAM: Hussey C KEY ISSUES: Section 96 Modification :- Rooftop terrace, size and noise impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley LEP 1996 CASES CITED: "Super Studio" v Waverley Council 2004, NSWLEC 91 DATES OF HEARING: 17 December 2007 EX TEMPORE JUDGMENT DATE : 17 December 2007 APPLICANT Ms J. Walsh, solicitor Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Ms K. Allen, solicitor Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 17 December 2007 10952 of 2007 B. O'Connor v Waverley Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This is a s 96 application in respect of modifications to a development consent for alterations and renovations to a dwelling at 14 Loombah Road, Dover Heights. The modifications comprise a roof terrace with access stairs, new front patio and air conditioning. 2 The only issue for the appeal concerns a 22 square metre open roof top terrace, which Council considers is of excessive size and likely to cause adverse noise impacts on neighbours. 3 The Applicant's submissions are that this roof top terrace is a secondary outdoor recreation area to take advantage of views towards the city and will be used on the occasional basis when there are special events. I note that the relevant controls are in Part 6 & 5.6 of the DCP and s 5.6.2 deals with noise generation and loss of privacy arising from the use of terraces on the basis that their size should be minimised. 4 The key point in the controls is that elevated external decks are to be generally less than 10 square metres of area and have a depth of not greater than 1.5m, so as to minimise privacy and noise impacts to surrounding dwellings. 5 Following today's detailed view of the Applicant offered to undertake some further amendments to reduce the impacts and these are: o to provide a 1.5 m glass balustrade with 25% reflectivity, o reduce the stair width to 900mm to restrict usage, o provide soft/sound absorbent floor surface to the terrace, o reduce the area to terrace size to 5m x 3.7m i.e. approximately 18.5 square metres so as to fit a table and accommodate approximately 10 people, and o accept condition 2A. c which restricts head height within the stairway. 6 Council still does not accept these amendments are adequate, due to its concern that the excessive terrace size will still result in unreasonable noise impacts on neighbours. Conclusions 7 Having considered the evidence and the submissions, it seems reasonable to me that a reduced area of this secondary terrace should be allowed in the circumstances of this case, where amenity impacts on neighbours is likely to be restricted because: o there is a large family room opening onto an outdoor deck readily accessible at ground floor level of the kitchen; o this attractive primary entertaining area enjoys panoramic ocean views; 8 The rooftop terrace is therefore very much a secondary area, which offers the opportunity of the alternative city views. However I consider its usage will be limited due to the restricted stair access over 2 levels from the ground floor level, which passes through the bedroom level. 9 The restricted stair width and the associated access, in my opinion limits the usage and consequently the potential noise impacts should also reduced with normal usage. Of relevance in my assessment, is the locational context where the proposed terrace is well separated from other properties and there is a sense of openness, which should assist in the dissipation of any noise. I also consider that the exposed location of the rooftop terrace and its minimal enclosure will restrict its utility also. 10 I note that the original modification application was notified and received no objections from neighbours. Also, that it was subsequently assessed by Council's officers, who supported the application. 11 The initial s 96 application was also assessed by Mr W Long, consulting town planner for the applicant. He supported that proposal on the basis that it occupied a small area of the total roof area and said that the restricted size would limit the number people capable of using the roof terrace and the potential noise generation by the use of the terrace is not likely to give rise to an adverse impact on the amenity of the adjoining properties. He also said that: o the proposed roof terrace will not impact on private or public views and the materials proposed, particularly the balustrade will be non reflective, o the original proposal be consistent with the objectives and criteria of cl 5.6.2 of the Waverley DCP, o he supports the proposal and in its reduced size, as revised. 12 Insofar as reference was made to Super Studio, it appears to me that in the subject context the extent of noise impact is likely to be very limited because of the restricted access and usage of the source arera and the openness and separation to neighbouring properties. 13 I also consider it a reasonable expectation of a property owner to take advantage of the alternative city views from the terrace, where there are no adverse material impacts. The main outstanding concern is the size of the terrace and I consider that the applicant's revised submission for a reduced size of 4.5m x 3.6m, which is approximately 16 square metres is reasonable, in terms of satisfying the identified noise amenity issue. 14 On the basis of the aforementioned amendments and the circumstances of this case, where I rely on the opinion of Mr Long, the Court orders are: Court Orders 1. The appeal is upheld. 2. The s 96 application for modification to the dwelling at 14 Loombah Road, Dover Heights is approved subject to the conditions in Annexure A. 3. The exhibits may be returned except for Exhibits 'B' ___________________ R Hussey Commissioner of the Court cc/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. 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