Land and Environment Court of New South Wales CITATION : Crowley v Pittwater Council [2008] NSWLEC 1252 APPLICANT Juanita Crowley PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11211 of 2007 CORAM: Brown C KEY ISSUES: Appeal :- modification of approval for alterations and additions to dwelling - overlooking and noise impacts - driveway grade LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96 DATES OF HEARING: 5, 20, 27/05/08, 17/06/08 DATE OF JUDGMENT: 26 June 2008 APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: a THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 26 June 2008 11211 of 2007 Juanita Crowley v Pittwater Council JUDGMENT 1 COMMISSIONER: This is an appeal against a condition relating to the construction of a swimming pool imposed by Pittwater Council (the council) on an application to modify Development Consent N0626/06 for alterations and additions to any existing dwelling at 1941 Pittwater Road Bayview (the site). 2 The proceedings were heard as a s 34 Conference on 5 May 2008 and 20 May 2008 where on the latter date the Conciliation Conference was terminated as no agreement could be reached by the parties in accordance with s 34(3) of the Land and Environment Court Act 1979. The parties consented to the proceedings being disposed of with a further hearing on site on 27 May 2008 in accordance with s 34(4)(b). The judgement reflects the contents of the Statement of Facts and Contentions and the findings given on-site on 27 May 2008. 3 The condition in dispute is condition C.10. It states: C.10. The pool structure (pool deck level) is to be lowered to a maximum RL of 13.14 m AHD. The stairs off the northern side of the first floor balcony to be deleted from the proposal. 4 Condition C.8 is relevant. It states: C.8. The proposed privacy screen to the north west edge of the pool be a height of 1.7m above pool deck level and swimout levels and shall be constructed without any openings to allow for acoustic privacy. 5 Condition C.9 is relevant. It states: C.9 That landscaping be provided to the north of the pool along the north western boundary to screen the pool structure. 6 The applicant sought the deletion of condition C.10 and proposed the pool deck level be constructed at 14.33 m AHD (as submitted with the modification application). 7 The issues raised by the council in support of the imposition of condition C.10 related to visual (cl C1.5 of Pittwater Development Control Plan 21 (DCP 21)) and acoustic impacts (cl C1.6 of DCP 21) on the adjoining property at 1943 Pittwater Road, the breach of the side setback requirements (cl D4.6 of DCP 21) and the breach of the site coverage requirements (cl D4.10 of DCP 21). 8 The issues raised by the council were generally those raised by the owner of the adjoining property at 1943 Pittwater Road, Mr Byrnes. Mr Byrnes was represented by solicitor Mr P Vergotis, town planner Mr D Ryan and acoustical engineer Mr G Atkins. There was agreement between the applicant and the council that Mr Vergotis, Mr Ryan and Mr Atkins could participate in the proceedings without the formal status as a party. Ms J Marshall provided town planning evidence for the council and Mr V Milligan for the applicant. Ms Sonter provided evidence on the landscaping issues for the applicant. 9 Ms Marshall stated that condition C.10 (as well as conditions C.8 and C.9) were provided to reduce the bulk and scale of the pool structure when viewed from the adjoining property. Without the reduction in height there will be unacceptable impacts on the private open space and entertaining areas of this property. Additionally, the stairs to the upper level stairs have not been deleted but relocated and there are insufficient details of the 1.7 m high privacy screen. Ms Marshall also raised issue over the side setback and site coverage. Mr Ryan supported the conclusions of Ms Marshall and also relies on the acoustic report of Mr Atkins that raised issues of noise from the use of the pool. 10 Mr Milligan stated that the height of the pool as proposed in the application was acceptable because of the proposed 1.7 m high privacy screen and when combined with the proposed perimeter landscaping and existing landscaping, the screen effectively mitigates any overlooking and visual privacy impacts. The proposed privacy screen will also mitigate any acoustic impacts from the pool. Mr Milligan further stated that the height of the pool was also responsive to the owners needs to ensure that high levels of visibility and accessibility are maintained to the pool from the dwelling for safety reasons. 11 Following the presentation of the town planning experts evidence on site, the Court provided preliminary findings on the merits of the different levels for the pool, that is at 13.14 m AHD (as required by the council) or at 14.33 m AHD (as proposed by the applicant). The parties were advised that with the benefit of the site view and the town planning evidence there was no substantive reason why the pool could not be reduced to around the level required by the council. Also, the parties were advised that direct access from the deck area to the pool was appropriate for a residential development although the impact on the adjoining property should be an important consideration in the location of the access stairs. 12 The parties were also advised to investigate the relocation of the walkway and stairs from the western side of the pool to the eastern side. This could potentially limit the need for the privacy screen on the common boundary with Mr Byrnes property, as there would be no access directly adjoining the common boundary. Stairs leading to the pool from the proposed new deck could also be provided in a different location that could potentially allow quicker access to the pool from the dwelling and overcome any potential overlooking issues. The increased setback of around 1 m from the street could also be deleted with the reduced height of the pool structure, there being many structures within the area between dwellings on adjoining properties and the street boundary in the immediate area. The parties were further advised that the issue of acoustic privacy was not an issue that would warrant excessive regulation or control, such as limits on the use of the pool, because of the domestic use of the pool and its residential context. 13 Following a short adjournment, Mr Green on behalf of the applicant, offered to reduce the height by 600 mm, relocate the walkway and stairs to the east side of the pool and the relocate the stairs from the deck to a location on the northern and end of the deck. 14 The council and Mr Vergotis agreed that the proposed amendments adequately addressed their concerns over visual and acoustic privacy and also allowed for the deletion of the proposed 1.7 m high privacy screen. As I understand, the concessions offered by the applicant were sufficient to overcome the concerns expressed by the council in relation to the breaches of the side setback and site coverage requirements in DCP 21. 15 Directions were given for the filing and serving of amended plans and revised conditions that reflected the agreed amendments. The directions included the restoration if there was any dispute over the drafting of the conditions or the issue over the grade of the existing driveway was not settled. The amended conditions were filed on 4 June 2008 and the amended plans (Exhibit B) were filed on 11 June 2008. 16 Also filed with the revised conditions were additional conditions requested by the adjoining owner, Mr Byrne. The council stated that they make no submissions either for or against the additional conditions. These conditions involve the swimming pool to be covered when not in use (new Condition B 18), details of the wet edge of the pool (new Condition C 11), a check survey (new Condition D 10), acoustic attenuation from structural radiated vibration (new Condition D 11) and the provision of a super advanced screen landscape planting (new Condition E 8). 17 A telephone mention was held on 17 June 2008 with the parties and Mr Vegotis to address the additional conditions requested by the adjoining owner and the outstanding issue of over the grade of the existing driveway. The issue of the driveway grade remained in dispute between the parties and the parties were directed to file short statements on their respective positions by close of business 19 June 2008. Of the conditions sought to be imposed by the adjoining neighbour, Condition B 18 was not pressed but all others were sought to be imposed by Mr Vegotis. The applicant opposed all conditions with the exception of Condition D 10. 18 Of the additional conditions, I am satisfied that Condition C 11 should be included however it should be amended to require only that the pool wet edge should be designed to ensure any persons using the pool cannot sit or stand on the wet edge. Condition D 11 is unnecessary because of the domestic nature of the pool and Condition E 8 is also unnecessary because of the revised design of the pool and pool deck. 19 On the driveway grade, the council submits that the drawings relied upon by the applicant (the existing driveway) do not fully overcome their gradient concerns and does not result in safe access for cars into and out of the carport and upper level of the driveway. The gradient of the existing driveway between RL 9.7 and RL 11.5 is 60%, which does not comply with the council standard or Australian Standard AS/ANZ 28901-2004. In order to achieve safe access and parking, the council submits that two additional conditions should be imposed that prevents access to the most northern car space within the carport (Condition E8) and the provision of a further car parking space on the driveway (Condition C11). 20 The applicant opposes the additional conditions and submits that the council, through Development Consent No 626/06, approved the existing driveway and carport structure on 7 June 2007. The conditions sought to be imposed by the council would result in the loss of one car parking space from the approved carport and would require the further car parking space to be in close proximity to the pool. The location would be rely on the use of a handbrake to prevent movement down the driveway. Further, the relative level of the carport is some 400 mm below that approved by the council through Development Consent No 626/06 and as such is an improvement on the originally approved driveway grades. 21 I accept that the applicant's submissions on the driveway grade for a number of reasons. Firstly, and of some importance is the fact that the driveway is the subject of a recent approval by the council. There was no disagreement that the driveway has been constructed in accordance with the approved plans. Secondly, and while the grade of the driveway exceeds the appropriate standards it is for a limited distance and on the inside of the radius of the driveway. Thirdly, it is not necessary to use that part of the driveway with the 60% grade to gain access to the carport. A wider turn into the carport can utilise a flatter grade on the driveway. Fourthly, the site is relatively steep and strict compliance with the appropriate standards would always be difficult. Fifthly, the driveway is likely to be used predominantly by the residents of the dwelling and as such they will adapt their driving to the steepness of the driveway and maximise safety. 22 The Orders of the Court are: 1) The appeal is upheld. 2) The application to modify Development Consent N0626/06 for alterations and additions to any existing dwelling at 1941 Pittwater Road Bayview is approved in the manner set out in Annexure A. 3) The exhibits are returned with the exception of exhibit B. ___________ G T Brown 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.