Land and Environment Court of New South Wales CITATION : Pizzuto v Randwick City Council [2010] NSWLEC 1350 APPLICANT Marino Pizzuto PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10797 of 2010 CORAM: Morris C KEY ISSUES: DEVELOPMENT APPLICATION :- construction of rooftop terrace impacts on amenity of the area LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998(Consolidation) CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley [2004] NSWLEC 91 DATES OF HEARING: 13 December 2010 DATE OF JUDGMENT: 17 December 2010 APPLICANT Ms C Rose SOLICITOR Maddocks Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton SOLICITOR Marsdens Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Morris C 17 December 2010 10797 of 2010 Marino Pizzuto v Randwick City Council JUDGMENT 1 Commissioner: This is an appeal pursuant to the provisions of s96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Randwick City Council (the council) of an application which sought to modify development consent No. 232/2008 (the consent) by the deletion of a condition of that consent which has the effect of preventing the construction of a roof terrace above an approved garage. The modification included a proposal to install privacy screens around that terrace area. The site and its context 2 No. 4 Northumberland Street, Clovelly (the site) is a rectangular shaped allotment located on the western side of the street between Park Lane and Warner Avenue. The site has a frontage of 10.06m, depth of 35.42m and area of 356.4m2. Northumberland Lane provides vehicular access to the site and other properties in this section of Northumberland Street and also those which front Campbell Street. 3 The locality is residential in nature and comprises a mix of semi detached and freestanding dwellings. A number of residential flat buildings are located to the north of Park Lane and in the next street to the east, Ocean Street. 4 The immediate locality, incorporating those lots which obtain access from Northumberland Lane, comprises a series of single and two-storey dwellings, some of which include rear garages. All of those garages are single storey structures. 5 The site contains a two-storey dwelling, a double garage with access to the lane and a swimming pool in the south western corner. Background and the proposal 6 The consent was issued by the council on 11 June 2008 and authorised the construction of alterations and additions to the dwelling, a swimming pool, rear decking, fencing, and an additional garage. The original development application also included a proposal to construct a trafficable roof deck above the garage. The council did not consent to that part of the application and included a condition in the consent to prohibit its construction. That condition, condition 6, reads as follows: To maintain privacy to the adjoining properties the proposed roof terrace to the garage and access steps are to be deleted from the plans and the garage roof is not to be used for trafficable purposes. 7 An application pursuant to the provisions of s96(2) of the Act to delete condition 6 of the consent was refused by the council on 27 August 2010. The reasons for the refusal are: 1. The proposal is inconsistent with relevant objectives of the Residential A zone. 2. The objectives and/or performance criteria of Part 2 – Developing in Context, Clause 4.5 – Visual and Acoustic Privacy and Clause 4.9 – Foreshore Development of the Dwelling Houses and Dual Occupancies Development Control Plan are not satisfied. 3. The proposed modification is not of a minimal environmental impact. 4. The proposal will result in adverse impacts to the built and social environments. 5. The proposal will result in unreasonable impacts to the privacy of neighbouring residents. 6. The proposed built form is incompatible with existing development facing Northumberland Lane. It is this determination that is the subject of the appeal. 8 The modification sought is to allow the use of the rooftop as a terrace area from which a view of Clovelly Bay is available. The area of the terrace is approximately 21sqm and it is at a level of RL42.40. The level of the existing yard area is RL41.15 so the terrace would be 1.25m above finished ground level. 9 The plans include the provision of steps from the yard to the terrace, a 440mm high opaque glass screen on top of the existing masonry dividing fence between the site and No. 6 Northumberland Street. That panel would run for a distance of 4.2m along the boundary. The addition of a 300mm high similar screen on top of an existing 1.5m high timber privacy screen erected above the garage is also proposed along with a further 1.8m high screen to match it. That additional screen would be setback 1.4m from the rear boundary and run from the terrace to the southern side boundary fence. The terrace would necessitate the erection of further pool fencing and that fencing would comprise 1.2m high glass panels along the southern face of the terrace and proposed stairway. The planning controls 10 The site is zoned Residential 2A under Randwick Local Environmental Plan 1998(Consolidation) (the LEP) and is within the Foreshore Scenic Protection area. 11 Clause 9 of the LEP requires consideration of the extent to which the proposed development is consistent with the general aims of the LEP and the specific objectives of the zone within which the development is proposed. 12 The relevant objectives of the Residential A zone are: (b) to maintain the desirable attributes of established residential areas, and (c) to protect the amenity of existing residents, and (f) to allow people to carry out a range of activities from their homes, where such activities are not likely to adversely affect the environment of the locality. 13 Clause 29 of the LEP applies to the Foreshore Scenic Protection Area and requires a consent authority to consider the probable aesthetic appearance of the proposed building in relation to the foreshore. 14 The council's Dwelling Houses and Attached Dual Occupancies Development Control Plan (the DCP) applies to the application. 15 The DCP provides controls for the construction of dwelling houses, including alterations and additions to existing dwellings, garages, carports and ancillary structures to dwellings. The DCP operates on a hierarchy of controls using a "performance" approach to design guidance and development control. To gain approval, developments must fulfil the relevant objectives for each control. The performance criteria provide the means by which a development will achieve the objectives. Preferred solutions are offered and illustrate how the performance requirements may be achieved in the design of developments but are not compulsory, rather, they are a guide of what would deemed to be compliant. 16 Part 4.5 of the DCP is relevant to the application and clause 4.5.1 provides the objectives of that part which are: To ensure that new buildings and additions meet occupants' and neighbours' requirements for visual and acoustic privacy. There are no specific provisions in the DCP that relate to roof terraces and therefore the objective must be satisfied. The contentions 17 The matters in contention are: 1. The proposal will have an unacceptable impact upon adjoining residential properties in terms of loss of visual and aural privacy and is contrary to Part 4.5 of the DCP, the objective of which is to ensure that new buildings and additions meet occupants' and neighbours' requirements for visual and acoustic privacy. 2. The proposal is inconsistent with objectives (b), (c) and (f) of Zone No 2A in clause 10 of the LEP. 3. The proposal is contrary to Part 2 of the DCP which seeks to ensure proposed development sensitively responds to the surrounding character. 4. The proposal is contrary to the objectives of Part 4.9 of the Dwelling Houses DCP for development within the Foreshore Scenic Protection Area. This contention was not pressed during the hearing. 5. The proposed roof terrace is unnecessary and unreasonable having regard to the various other opportunities for private open space at the subject site. The site view 18 An inspection of the site and its locality was undertaken in the company of the parties and their experts and the extent of works proposed was viewed. Evidence was heard from a number of neighbours who had lodged objections with the council. The main issues of concern in relation to the proposal were: Loss of privacy; Scale and bulk of the development; Incompatible built form that would adversely impact on the character of the area; Unacceptable noise from use of the terrace; Precedent that would arise if approval to the terrace were granted; Non-compliance with the council's planning controls. 19 Inspection of the adjoining property to the south of the site, No. 6 Northumberland Street, was made in the company of the owner of that property. His concerns related to the existing impact of the boundary fence that had been erected as part of the works authorised by the consent and how that impact would be increased by the erection of the proposed 440mm high opaque glass screen along part of that fence particularly in relation to solar access, bulk, and appearance. He was also concerned that the screen proposed would not ensure that his privacy was maintained and that the enjoyment of the current use of his rear verandah, yard and rooms within his dwelling would be compromised. 20 The rear yard and upper floor deck of No. 7A Campbell Street was also inspected and the owner of that property expressed her concerns regarding the impact of the deck on her privacy, the view into her living areas and the noise associated with its use. 21 The final property viewed was the rear yard of No. 3 Campbell Street in order that the height and scale of the proposed privacy screens could be determined. The evidence 22 Expert planning evidence was heard from Mr Harding for the council and Ms Nolan for the applicant. 23 Ms Nolan considers that the existing and proposed screening will ensure a reasonable amount of privacy is maintained to adjoining properties. She says the screening proposed along the top of the existing boundary fence will direct views from people utilising the proposed deck over the adjoining property No. 6 Northumberland Street towards the foreshore and Clovelly Bay. Mr Harding considers the impact of the proposed deck to be unacceptable, particularly in relation to the two adjoining properties, Nos. 2 and 6 Northumberland Street and that screening proposed is insufficient ot protect the privacy of adjacent residents. Ms Nolan advises that the owner of No. 2 does not object to the proposal and a letter to that effect was tendered as Exhibit C. Her opinion is that the users of the terrace will not look back into that property, as they will be attracted towards the view to the south. 24 Ms Nolan does not consider that the terrace will provide a view into the living areas of No. 6 but did accept that there will be some view of the grassed yard area however, maintains that the predominant view was over the buildings to the bay and not the immediate view into yards. Whilst she maintained that the proposed privacy screens were sufficient to mitigate the impact of the terrace, Ms Nolan agreed that further privacy screens would assist in further reducing that impact. Ms Nolan is of the opinion that development in the vicinity of the site adopts the principle of view-sharing due to the slope of the land and that this will remain if the deck is allowed. Mr Harding disagrees and states that there are no other similar structures to that proposed and the approval of a roof terrace would introduce a foreign element which would be out of character with the locality. 25 Ms Nolan considers that the proposed terrace will not result in any additional noise from that currently experienced at the site. Her evidence is that the deck is well separated from habitable rooms including sleeping areas and as such will not result in a loss of acoustic privacy. Mr Harding disagrees stating that the elevated nature of the terrace will exacerbate acoustic issues and impacts to neighbours. 26 Ms Nolan's view is that the proposed terrace was consistent with the character of the area as there are many other dwellings that include upper floor decks to the rear and those decks were higher than that proposed. Mr Harding disagreed and stated that these decks were not comparable as they were attached to the rear of the dwellings, were not erected to the rear boundary with the lane, there was a greater separation between the deck and the yards of dwellings on the opposite side of the lane and those decks do not allow views back into houses. He considers there to be a modicum of privacy from the existing decks through the privacy screens that have been installed at their ends. He considers that most living areas (which he takes to include outdoor entertaining areas) have a high level of privacy and that privacy would be lost if the terrace is approved. 27 The experts agree that the laneway at present has few intrusions above the single storey garages other than a large single garage on the north-eastern corner of the lane and the site itself, which incorporates the upper level privacy screen on the boundary above the garage and adjacent to the proposed terrace. Ms Nolan considers that the existing screen, its proposed glass extension and the additional screen, which is to be setback 1.4m from the laneway, does not have an unreasonable impact on the character of the laneway, nor would it be prominent in this streetscape. Mr Harding considers that the existing screening and the proposed screening result in an element that is not characteristic of the lane and other lanes in proximity to the site. He does not consider the existing screen to be an element that is a desirable attribute of the laneway and therefore maintains that it should not be replicated. He says that the absence of structures of two storey height allows views and vistas of the Clovelly foreshore area which is part of the visual qualities of the foreshore recognised in Part 4.9 of the DCP and that erecting screening to allow roof top terraces that protect privacy will dramatically change this situation. 28 Mr Harding considers that the resultant height of the boundary fence and additional screen between the site and No. 6 is excessive and results in further adverse impacts to that property. Ms Nolan considers that the glazed panel would not result in any unreasonable bulk and scale when viewed from No. 6. Both experts agreed that the finished height of the wall would be approximately 3m from the existing ground level at No. 6. 29 The Court was referred to the plans approved under the consent that included the erection of a masonry wall along this boundary to a height of 1.8m above the finished ground level of the site's rear terrace area and 1.65m above a timber pool deck adjacent to the southern boundary. It was noted that the existing fence has not been erected to this height and Ms Nolan stated that the height of the fence with the addition of the glass screen would be consistent with the approved fence height for that length where the screen is proposed and the fence would remain at the current height for the remainder of its length. Mr Harding considered the impact of the existing fence was already "a lot to look at" and its extension would not be appropriate. 30 Ms Nolan estimated that the existing area of private open space (POS) available on the site was approximately 40sqm and that the terrace would increase this by 21sqm so that there is at least 61sqm POS provided. She agreed that the DCP requires a minimum of 25sqm however considered the exceedance to be consistent with the locality, which, she says, also provides POS in excess of that required by the DCP. 31 Ms Nolan advised that the intent of the terrace was to allow the owners of the site to enjoy a wider view of the vista to Clovelly Bay. Currently, that view is available from the rear yard from a standing position only and the terrace would facilitate enjoyment of the view from a seated position. The current elevated deck to the dwelling is small and attached to the front of the house and she does not consider this area is usable POS. Mr Harding considers that the site already enjoys views towards Clovelly Bay and whilst these are from a standing position only, he considers that it would be unreasonable to create a viewing terrace at the expense of the privacy of adjoining properties and change the character of the area to the extent proposed. Conclusions and findings 32 The site view and consideration of the evidence demonstrates that the proposed terrace is inappropriate for a number of reasons. Applying the planning principles in Pafburn v North Sydney Council [2005] NSWLEC 444 and Super Studio v Waverley [2004] NSWLEC 91, it is necessary to consider the reasonableness of and necessity for the development, the magnitude of the impact, the vulnerability of the property receiving the impact, whether a more skilful design could avoid the impact and whether the impact arises from a proposal that fails to comply with planning controls. 33 Ms Nolan estimated during the proceedings the area of POS currently available to residents of the site, excluding the pool, to be in the vicinity of 40sqm. A review of the approved plans suggests that the area may be closer to 60sqm and the proposed deck would add a further 21sqm. From a quantitative assessment, I consider that there is adequate area available and note that the area is in excess of the 25sqm minimum required by the council. Extensive views are currently available from the POS towards Clovelly Bay and whilst these views are obtained from a standing position, I consider that, given the location of the site, its east/west orientation, distance from the foreshore and the siting of development in the locality, that view is expansive. Whilst I accept that the views from the terrace enhance those available due to its elevation, I do not consider that the adverse impacts that it will cause, particularly in relation to the two adjoining properties, Nos. 2 (despite the owner advising he does not object to the proposal) and 6 Northumberland Street, but also to the character of the area can justify its approval. I do not find that the terrace is a necessity, rather, it would supplement the adequate areas currently available for leisure and entertainment and the good view to Clovelly Bay. 34 As noted in Super Studio, "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." I am not satisfied that the impacts of the proposed deck would be either minor or negligible. The additional screening to be installed along the existing screen on the laneway boundary would increase the imposing nature of that structure. The additional 1.5m high screen, even on a 1.4m setback would add to the foreign element within the laneway and would be a prominent structure, particularly when viewed from the properties to the south and further south in Northumberland Lane. It would be out of character with the area. 35 The increased height to the boundary fence between the site and No. 6 would further increase the detrimental impact to that site that has resulted from the current development. A 3m high wall to the northern boundary is not appropriate due to its location to the north of the POS of this property and the adverse solar impact it causes. Whilst I accept that the wall has been approved to the height proposed, it has not been built to that height and this is to ensure that the owners of the site maintain the view towards Clovelly Bay. It would be a poor planning outcome if the existing wall height was increased. 36 I disagree that the elevated decks attached to the dwelling houses in the locality have the same impact as the terrace was built as proposed. I consider that the proposed privacy screens would provide adequate protection towards those properties immediately to the west of the site however, that is not the case for those properties to the south. I consider the impact of the terrace to be excessive, that it would increase overlooking opportunities to properties to the south and adversely affect the amenity of those residents. 37 I do not consider the extent of aural impact that would result form the use of the terrace would be sufficient grounds to refuse the application alone however, I do agree with Mr Harding that its proximity to the laneway and its elevation would exaggerate the noise impacts. 38 Finally, the additional bulk created by the proposed privacy screens and pool fencing, despite the latter being glass, all contribute to the perceived bulk of the development and one which is out of character with the area. Alone, this would not be a reason for refusal of the application, however, when combined with the other considerations, the application must fail. 39 For these reasons the proposal is inconsistent with zone objective (c) and as such, development consent cannot be granted. 40 The orders of the Court are: 1. The appeal is dismissed. 2. The application to modify development consent No. 232/2008 to allow the construction of a rooftop deck and associated privacy screens and pool fencing is refused. 3. The exhibits are returned. ______________________ Sue Morris 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. 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. 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