Ryals v Warringah Council [2010] NSWLEC 1202

Land and Environment Court of New South Wales

CITATION : Ryals v Warringah Council [2010] NSWLEC 1202

APPLICANT Christian Ryals PARTIES : RESPONDENT Warringah Council

FILE NUMBER(S) : 10210 of 2010

CORAM: Pearson C

KEY ISSUES: CONSENT ORDERS :- Modification application Privacy screen

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Warringah Local Environmental Plan 2000

CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 24 June 2010

EX TEMPORE JUDGMENT DATE : 24 June 2010

APPLICANT Mr B Swain, solicitor LEGAL REPRESENTATIVES: Hones La Hood RESPONDENT Mr D Thomas, solicitor Wellings Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pearson C

24 June 2010

10210 of 2010 Ryals v Warringah Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal under s96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Warringah Council (the Council) of an application made under s96(1A) of the Act seeking modification of a development consent 2003/1292 granted for a first floor addition and extension to a dwelling at 3 Parr Avenue, North Curl Curl. 2 The development consent has been modified on two occasions in 2008. The application for modification the subject of these proceedings was lodged on 4 January 2010 and sought approval for a 2.2 metre high privacy screen for the length of 1.8 metres to the eastern part of the northern perimeter of the first floor deck at the rear of the house at 3 Parr Avenue, a change to the two panels at the eastern end so that they would have fixed vertical louvres at a 45 degree angle, and the deletion of condition 22 of the development consent. 3 Condition 22 of the development consent reads: The northern elevation of the deck shall not be enclosed. Reason: To protect the view and visual amenity of the adjoining neighbour. 4 The privacy screen the subject of this modification application has already been erected. The hearing commenced this morning on site, where the Court was in a position, as were the experts engaged by the parties in these proceedings, to view the privacy screen both from the subject property and from the immediate neighbouring property, No 1 Parr Avenue. 5 The contentions raised by the Council in the proceedings were first, that the privacy screen is contrary to cl 61 of the Warringah Local Environmental Plan (the LEP) because of its unreasonable impact on the water views from 1 Parr Avenue; secondly, that when assessed against the planning principle in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 the privacy screen is unacceptable; and thirdly, that the privacy screen is not necessary to protect reasonable levels of privacy of the occupants of No 3 Parr Avenue. 6 The hearing commenced as an on site hearing under s34B of the Land and Environment Court Act 1979. Evidence was given on site by Mr Cronin, the owner of the adjoining property. Mr Cronin's evidence was that before the privacy screen was erected there had been planters and vegetation which he considered met the needs of privacy, and also enabled ocean views and access to the south-easterly breeze in summer. The privacy screen, in his evidence, produces glare and in his opinion there are also privacy issues for No 3 Parr Avenue from the property at 123 Headland Drive and also from along the street along Headland Drive. 7 The room from which the views are primarily obtained from No 1 Parr Avenue is both a bedroom and a home office/parents retreat. It is a factor in these proceedings that there is an operative development consent for 1 Parr Avenue under which there are approved modifications to the existing timber deck at the rear of No 1 to extend it further east. The consent is subject to a requirement that there be a privacy screen on part of that extended deck. The development consent also includes the reconfiguration of the stairs up to the first level and the construction of a wall to divide the bedroom area from the rest of the room. As part of this work the window from which the views are obtained is to be moved further to the east and reduced in size. 8 The expert planning evidence in these proceedings by Ms Cynthia Chan, Development Assessment Officer for the Council, and by Mr Norman Fletcher for the applicant, has addressed both the existing privacy relationships and also the privacy relationships with the relocated window as approved in the development consent for No 1 Parr Avenue. 9 It was common ground that the modification application complies with the numerical standards and controls in the LEP. The particular relevant general principles of the development controls are cl 61 of the LEP, which states that development is to allow for the reasonable sharing of views, and cl 65, which states that development is not to cause unreasonable direct overlooking of habitable rooms and principal private open spaces of other dwellings. 10 The parties have reached agreement with the benefit of further discussions between the expert planners to an amendment of the application currently before the Court, and are now seeking consent orders. The substance of the amendment is now reflected in a new condition 1E which is that the two privacy screens on the eastern side of the screen as it is now erected be reduced from their current height to a maximum height of 1.5 metres above the existing deck finished floor level, and that those two panels include vertical 45 degree angle fixed louvres instead of the existing horizontal movable louvres. 11 The experts on site supported the proposed amendment. Mr Fletcher expressed the opinion that reducing those two panels to 1.5 metres and requiring that objects be kept 1.6 metres away from the privacy screen, would maintain a view corridor at the 45 degree angle across the back of the deck from No 1 Parr Avenue. Ms Chan agreed with that assessment. 12 The owner of the adjoining property, Mr Cronin, was advised of the amendment and expressed his opinion on site as to the significance of that. Mr Cronin's evidence was that he originally had had some concerns about the proposed amendment, however, he agreed with the condition that the area next to the privacy screen at the eastern end be kept free of objects. As noted in submissions before the Court this afternoon, Mr Cronin's evidence was that he thought that the third panel in from the east blocked a significant view from his property, however, it is clear from the plans of the approved development consent for No 1 Parr Avenue and from the site view this morning that the relocation of the window on that part of the first floor to the east will alter the primary direction of the view from the property. 13 I agree with the Council's submission that the application that is now before the Court addresses the significant issues that have been raised by Mr Cronin as the immediately adjoining neighbour while at the same time meeting the privacy concerns of the owners of No 3 Parr Avenue. 14 The Council has referred the Court to the planning principle in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, where the Senior Commissioner set out principles for the assessment of reasonable sharing of views as required by cl61 of the LEP at paragraphs 26 to 29. On the basis of the expert evidence before me, and the evidence from the site view, I see no reason to disagree with the conclusion that the parties have reached that the application now before the Court addresses the concerns of reasonable sharing of views and privacy that are raised in the Council's contentions. 15 Further relevant evidence before the Court is in the form of a certificate dated 3 June 2010 by Mr E Bennett of Civil and Structural Engineering Design Services Pty Limited in which Mr Bennett states that he has inspected the privacy screen and certifies that the existing privacy screen is structurally adequate and has been erected in accordance with the relevant Australian Standards, the Building Code of Australia, and in accordance with good industry practice. Mr Bennett goes on to say that he has reviewed the proposed modification as shown and confirms that the modification is structurally adequate to meet the Australian Standards and the Building Code of Australia. 16 The position now is that there is evidence of the structural adequacy of the existing screen. The parties have agreed that the amended application meets the concerns for reasonable sharing of views and privacy that are raised in the Council's contentions. The interests of the neighbour who participated in these proceedings have been taken into account and his views have been considered in the course of the discussion between the parties. In all of those circumstances I am satisfied that it is appropriate to make the consent orders as requested by the parties. 17 The Orders of the Court are: 1. The appeal is upheld. 2. The application under s96 of the Environmental Planning and Assessment Act 1979 DA2003/1292-S96(1A) for alterations and additions to a dwelling involving the erection of a privacy screen at 3 Parr Avenue North Curl Curl is approved subject to the consolidated conditions in annexure A. 3. The exhibits are returned except for exhibits A, B, C and 1.