Land and Environment Court of New South Wales CITATION : Smith trading as CSA Architects v Waverley Council [2007] NSWLEC 691 APPLICANT Alex Smith trading as CSA Architects PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11221 of 2006 CORAM: Bly C KEY ISSUES: Development Consent :- alterations and additions to the existing dwelling house, view loss, privacy. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Council Development Control Plan No 2 DATES OF HEARING: 20/02/2007 EX TEMPORE JUDGMENT DATE : 20 February 2007 APPLICANT Mr M. McMahon, solicitor of M.E. McMahon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 20 February 2007 11221 of 2006 Alex Smith trading as CSA Architects v Waverley Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 On 26 July 2006 the Waverley Council granted deferred development consent for alterations and additions to the existing dwelling house at 144 Ramsgate Avenue. North Bondi. The deferred commencement matters include a requirement that the first floor deck be reduced to a maximum depth of 3.5 metres. Amended plans were subsequently provided to the council in response to these matters and on 7 Aug 2006 the applicant was advised that these plans were considered satisfactory and accordingly the development consent DA 107/2006 was considered to be active. 2 A modification application has now been lodged pursuant to s 96 (2) of the Environmental Planning and Assessment Act 1979 to amend the consent by reducing the size of the west facing deck at the elevated bedroom level and increasing the size of the deck at the upper living level. 3 The site is included in the 2 (b) Residential zone under Waverley Local Environmental Plan 1996 ("the LEP") in which zone the proposal is permissible with development consent. The relevant objective of the zone is to maintain and improve the amenity and existing characteristics of the locality. The relevant specific aims of the LEP in relation to housing are to ensure that new housing is compatible with surrounding development and to improve the amenity of residential areas. 4 Also applicable is the Waverley Council Development Control Plan No 2 ("the DCP"). The relevant provisions of the DCP, particularly relating to the extension of the upper level deck, are contained in the section dealing with privacy and noise control. Strategy S11.2 provides that noise generation and loss of privacy resulting from the use of terraces should be minimised. Control C 11.2 requires that elevated external decks are to be generally less than 10 square metres in area and have a depth not greater than 1.5 metres, so as to minimise privacy and noise impacts to surrounding dwellings. 5 The modification application was advertised and one submission was received from Miss B Scanlon of unit 4, 144 Ramsgate Avenue, expressing concern that the proposal might block her views of Bondi Beach. I visited her property during the hearing. I also inspected two other dwellings at the same address. 6 The application was reported on by Miss K. Davies a town planner who assessed the proposed changes in detail. She concluded that the adjoining unit 4 would not suffer any view loss as a result of the extension of the deck. She noted that the deck was larger in area and longer in a depth than the maximum area and depth requirements indicated in the DCP. She concluded that the proposed deck extension would not result in any excessive noise impacts on the adjoining properties and that it would result in a considerable improvement to the amenity of the dwelling with minimal adverse impacts on adjoining properties. Whilst the variation of the maximum size is significant it is nevertheless warranted. In reaching this conclusion she noted that the proposed deck is typical of many larger balcony/terraces in the Ramsgate Avenue locality. 7 The council's development and building unit considered Ms Davies' report in the context of the requirements of the act and the provisions of the DCP and concluded that the proposal should be refused. This was because the initially approved depth of terrace was very generous and already exceeded council's policy. The larger deck leading directly from a high use living area would result in unacceptable negative impacts on the adjoining properties and therefore is not supported. Whilst that assessment did not identify what the unacceptable negative impacts would be or how they might have arisen, the recommended reasons for refusal make reference to visual and acoustic privacy impacts. 8 The application was subsequently refused for reasons involving non-compliance with the specific aims of the LEP and the zone objectives in that the proposal does not maintain or improve the amenity of the locality. Also the extension is contrary to the requirements of the DCP in relation to the privacy and noise controls in that there would be visual and acoustic privacy impacts on neighbouring properties. The statement of issues reflects the reasons for refusal. 9 The approved the deck has overall measurements of 6.7 metres in length by 3.5 metres deep with an area of 23 square metres. Taking into account the fixed seating around part of the perimeter of the deck the effective trafficable area measures 5.7 metres in length by 3.1 metres deep, an effective area of 17.7 square metres. The proposal will increase the depth of the deck by 2.1 metres to 5.6 metres resulting in an additional area of 15 square metres. Similarly, taking into account the fixed seating around part of the perimeter of the deck the effective trafficable area measures 5.7 metres in length by 4.6 metres deep, an effective area of 26.2 square metres which is an increase of 8.5 square metres. Whilst the perimeter seating should be taken into account the increase in the effective trafficable area of 8.5 square metres is the most useful indicator of possible impacts. 10 In dealing with the issues of impacts on the neighbours' amenity involving increased noise and loss of privacy I was assisted by Mr A Faruqi, a council town planner and member of the development building unit and Mr A Betros the applicant's consultant town planner. 11 Whilst there was no argument that the proposal would cause any loss of views beyond those already affected by the approved development, Mr Faruqi elaborated on the concerns expressed in the building development unit's report. In essence he explained that the deck was now too large and that the presently approved deck was very generous, being larger than what would otherwise be permitted by the DCP. Moreover there is no justifiable need for the extra space. As a consequence of its size, when utilised to its capacity it would be noisy and would adversely affect the amenity of the neighbours in a number of dwellings in the adjoining residential flat building at 146 Ramsgate Avenue. In addition people utilising the northern half of the deck would be able to look over the privacy screens into the bathroom and kitchen/living rooms of the top level dwelling on the northwest corner of that building. 12 Mr Betros was of the opinion that the increase in the deck's area would provide an increased amenity for the occupants providing a more spacious feel and better circulation around the tables and chairs that would-be provided, although he argued that it was not necessary to justify the larger deck in terms of need, because there are no adverse amenity impacts of any significance. Also the deck is of a size that is commensurate with the size of this family home once extended. He explained that the day-to-day usage of the deck for a typical family occupying this home would have no adverse noise impacts. The occasional maximum use could be noisy but taking into account that this would only occur infrequently, the existing relatively high background noise and applicable noise laws, this is not a reason to refuse the application. As for loss of privacy this was of little concern given the reciprocal arrangement that would result between the two affected windows in the adjoining building and the deck. Also of significance are the angle of view and the distances of separation of between 6 and 10 metres. He emphasised that the size of the terrace is consistent with or less than numerous elevated terraces, which are prevalent in this area, affording occupants opportunities to enjoy the outstanding coastal views. 13 Having considered the evidence and the materials provided I have been persuaded by that marshalled on behalf of the applicant, in support of the modification proposal. Notwithstanding the significant non-compliance with the numerical requirements of the DCP and having carefully considered the likely impacts I am satisfied that the proposed extension to the deck will not result in any changes to the visual and aural privacy of the neighbours at 146 Ramsgate Avenue of any determinative significance. I have reached this conclusion, accepting as I do the reasoning provided by Mr Betros and indeed the reasoning provided by Miss Davies. More particularly I have not been persuaded that the increase in the size of the deck (by comparison with the permissible size of decks) is likely to generate additional noise or overlooking sufficient to cause impacts that are beyond the threshold of acceptability. 14 Hence, the proposal is not, in this context unreasonable. I have reached this conclusion despite there being no clear necessity for the extension other than the applicant's wish to have larger living areas with better amenity. Whilst necessity can be a reason to support a proposal, an absence of necessity is not necessarily a reason for refusal. Non-compliance with the requirements of a development control plan and adverse amenity impacts can be reasons for refusal but for the reasons I have given these matters do not attract determinative weight. 15 Finally, whilst existing decks in the locality (that do not comply with the numerical requirements of the DCP) should not be treated as precedents they are nevertheless part of the architectural character of the area that can be taken into consideration. In this context although the proposal is by no means identical, it is typical of many of these. In the circumstances I am satisfied that the proposal meets the applicable aims and objectives of the LEP particularly in relation to compatibility with surrounding development and the amenity of the surrounding properties not being adversely affected. 16 In the circumstances I have decided that the appeal should be upheld and the development consent amended in accordance with the plans that became Exhibit B in the proceedings. ___________________ T A Bly Commissioner of the Court 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. 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.