Land and Environment Court of New South Wales CITATION : Inkson v Lane Cove Council [2008] NSWLEC 1518 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Helen Inkson PARTIES : RESPONDENT Lane Cove Council FILE NUMBER(S) : 10884 of 2008 CORAM: Hoffman C KEY ISSUES: Section 96 Application :- Alterations and additions to a house, deletion of conditions requiring a proposed roof terrace to be removed, overlooking, acoustic privacy, number of storey, precedent. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Lane Cove Local Environmental Plan 1987 draft Lane Cove Local Environmental Plan 2007 DATES OF HEARING: 16/12/2008 and 17/12/2008 EX TEMPORE JUDGMENT DATE : 17 December 2008 APPLICANT Mr N. Eastman, barrister Instructed by Henry Davis York LEGAL REPRESENTATIVES: RESPONDENT Mr S. Griffiths, barrister Instructed by Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 17 December 2008 10884 of 2008 Helen Inkson v Lane Cove Council JUDGMENT 1 This is a Class 1 appeal, 10884 of 2008, between Inkson and Lane Cove Council in regard to the refusal of a s 96 application to delete conditions 3, 4 and 5 of consent DA302/2007 for extensive alterations and additions to a house, No 12 Chisholm Street, Greenwich. The conditions relate to the deletion of a roof top terrace and staircase in the renovated house. 2 The respondent sought no supplementary conditions such as privacy screens should the court uphold the appeal. This situation is a little unusual in that all the neighbours were notified and there have been no objections from them but much of the council's case is about privacy and overlooking of neighbours and potential noise nuisance if the terrace is used for entertainment. 3 The lot is about 600 sq m in area as are most in the vicinity. This lot has about a fourteen metre frontage and the usual detached dwelling setbacks. There is a school nearly opposite the site, otherwise one would say it is suburbia predominated by one and two storey houses. In the walk through the locality that I was taken on quite a few of the houses had undergone major alterations and additions similar to the proposal or had been rebuilt completely. These appear to be larger than the earlier homes. 4 Chisholm Street runs down near the ridge line from the direction of Lane Cove towards the harbour and all the lots on the east side such as the proposed lot have good views towards North Sydney, the harbour bridge, the CBD, Pyrmont and Balmain. Parts of the harbour waters can be seen. 5 The existing house has a first floor living room with panoramic views to the areas described above. The approved renovations extend that living room and put a 2.5 metre by 5.5 metre balcony along the east facade. From the living room the proposal has a stairwell up to the roof terrace which has dimensions of about 3.5 metres by 4.5 metres. The terrace sits between two skillion roof planes, one on the north and one on the south side of the house. Both skillions run the length of the house. The stair comes up between these two roof planes in about the centre of the house with the top of the stairwell having just enough head room for a door on to the roof terrace at the head of the stairs. Its height is below the maximum roof height of 9.5 metres allowed under the council statutes and controls. 6 The applicable legislation is the Environmental Planning and Assessment Act 1979, the Lane Cove Local Environmental Plan 1987 in which the subject site is zoned Residential 2 (a2), the draft Lane Cove Local Environmental Plan 2007 in which the subject site is zoned R2, low density residential, and the Lane Cove Code and development application check list for dwelling houses, fences, private swimming pools and outbuildings for dwelling houses dated August 2002. 7 The draft Local Environmental Plan 2007 is of interest mainly because in its definition of storey (which is not yet adopted) it says that a stairwell does not constitute a storey and part of the respondent's case is that under the current Local Environmental Plan the stairwell is a storey. 8 The issues in the appeal are: (1) The proposal does not retain the existing residential amenity of the adjoining building houses with regard to visual privacy. Particulars : The proposed roof to terrace would overlook or would have potential to overlook adjoining properties towards the rear and the sides of the subject property. This would adversely impact upon their residential amenity in terms of visual privacy. (2) The proposal does not retain existing residential amenity of the adjoining dwelling houses with regard to acoustic privacy. Particulars : The proposed roof top terrace can be used as an entertainment area. This would adversely impact upon their residential amenity in terms of acoustic privacy. (3) The proposal does not comply with the Lane Cove Code and development application check list for dwelling houses, fences, private swimming pools and outbuildings with regard to maximum width of deck more than one metre above natural ground level. Particulars : As per cl 3.6 (3) of the code, elevated decks more than one metre above the natural ground level are not to exceed a width of three metres of useable area. The proposed width of the deck is 4.5 metres at the maximum dimension which is much in excess of the maximum permissible. (4) The proposal is inconsistent with the objectives of the R2 zone of the draft Lane Cove Local Environmental Plan 2008 in that it does not retain the existing residential amenity of detached single family dwelling area. (5) The proposal does not comply with the code with regard to the maximum ceiling height. Particulars : As per cl 3.3 (1) (i) of the code the ceiling height should not exceed seven metres. The proposed ceiling height is 8.8 metres to the stair roof which exceeds the maximum permissible ceiling height limit. (6) Number of Storeys: The proposal does not comply with the code with regard to the number of storeys. Particulars : As per cl 3.3 (3) of the code no dwelling house will be permitted to exceed two storeys in height above natural ground level at any point. The portion of the stair leading up to the roof terrace forms a third storey. (7) Precedent : The proposal would set a precedent for roof top terraces which would adversely impact upon the privacy of adjoining properties. (8) Public Interest: Council has consistently refused applications for roof top terraces because of the potential adverse impact upon the amenity of adjoining development. (9) Issues raised by objectors include: (a) the roof top terrace is larger than permitted (b) a flat roof design is not typical to the area (c) the roof top terrace is a third storey and is at odds with the two storey limit for residential dwellings (d) the roof top terrace will impact on privacy of neighbours and (e) the roof top terrace will be visually intrusive. 9 The evidence for the respondent came from Ms M Southwood, President of the Greenwich Community Association, and Mr R Shankar, architect and senior town planner for the council. The evidence for the applicant came from Ms M Campbell, consultant town planner. 10 Ms Southwood said the Association's main objection is to the precedent a roof terrace might create and cause a proliferation of them in an area where there are none and result in an accumulation of impacts on residential amenity. It is a de facto third storey, she said, and introduces a non-typical element to the streetscape and is large enough for entertainment. 11 Mr Shankar's evidence supported the issues in the appeal and he and Ms Campbell had reached only a small amount of agreement in their joint report. On privacy, mainly visual privacy, when they were both in the witness box they produced two different maps of the increased overlooking of Nos 10 and 14 Chisholm and Nos 13 and 15 Vista Street, the latter being the neighbours at the rear. 12 The key point of Ms Campbell's evidence is that there is extensive mutual overlooking already of most neighbours' backyards due to everyone wanting to see the harbour views and the topography suiting that. The small extra overlooking is minimal impact and that is proven by the lack of objectors. 13 Mr Shankar's point is that there are already impacts existing which have been increased by the consent DA302/2007. He considered that the consent set a reasonable limit on overlooking and the extra sought by the s 96 application is too much and introduces the unusual and unfavoured roof top terrace, especially since it would overlook five backyards and create noise nuisance potential. 14 Another roof terrace at No 41 Chisholm that had been approved overlooked the street and one neighbour's roof he said. There was less impact than this proposal, in his opinion. 15 The applicant drew attention to the council's statutes and development control plans being silent on roof terraces so it could not be said they are prohibited. A council code, that is not an adopted development control plan under the Local Environmental Plan, had provisions of amenity that needed consideration but Ms Campbell said they are all met, and the code does not raise acoustic privacy. She said also that even in detached houses one hears neighbours, hears traffic or household pets and other noises. She said the major entertainment area of the renovated house would remain the first floor living room and kitchen with its bi-fold glass wall that opens on to the approved new balcony. She thought the roof terrace may be used for more people on special nights such as New Year's eve but at other times it would be used for quiet family relaxation. 16 Mr Shankar said part of the code's maximum three metre width for an elevated outdoor area is to reduce potential for entertainment. At 3.5 metres by 4.5 metres this could accommodate eight persons at a table or maybe sixteen standing. He noted the council had already received other applications for roof terraces nearby so proliferation is imminent if this application is approved. Ms Campbell thought each should be considered on its merits. There is no prohibition of roof terraces. 17 The proposal complies with numeric controls except for the width. The roof form of the stairwell could easily be built and would comply if the stair flight is deleted. At the most the only part that could possibly be interpreted as a storey is a 200 mm eave overhang at the top of the stairwell. This could be cut off if necessary. 18 The new or renovated houses in the vicinity had various roof forms so it is not so different in the locality and at least the proposal has pitched roofs as seen from all directions and pitched roofs are a characteristic of the locality. The only part of the proposal which is flat is the roof terrace that is hidden behind the pitched roof elements. 19 It is noted that the council also discourages flat roofs, it is said, however, No 41, the other roof top terrace approved, is a flat roofed house. 20 Ms Campbell said from the street, although the back of the stairwell roof would be visible it is a pitched roof and would look like a lantern or clerestory window feature and the roof terrace would not be seen. It sits between the two skillion roof planes that act as solid balustrades. Another matter of interest is that the code only has concern about overlooking of internal rooms of neighbours, not yards, and in this case the respondent's evidence on privacy is about yard space only. 21 In terms of distance separation it seemed to me by measurement on the plans the distance of separation to the Vista Street properties from the terrace to the nearest points of increased overlooking on the maps in evidence from both Mr Shankar and Ms Campbell ranged between 30 metres and 40 metres. That is close to twice to three times the width of a normal street. The guidelines in the AMCORD guide say 9 metres separation is acceptable in medium density development so even though this area is low density residential where one would expect greater separation, the Vista Street properties have ample separation for both visual and acoustic buffering. Also there is no issue saying that interior rooms of neighbours can be seen into. 22 To the nearest point of increased overlooking to the yard of No 10 Chisholm there is about 15 metres separation or a little less than a standard street width. To No 14 Ms Campbell estimates 15 metres and Mr Shankar 20 metres to the nearest increased area of overlooking in its yard . In the case of No 14 these distances are due to existing vegetation within No 14 in its backyard that gives some privacy from the proposal. 23 It is noted that in normal practice the Court would not normally rely on vegetation to provide privacy. However, the owner of No 14 has not objected to the proposal. The council is concerned that although the neighbours have not objected, once built and used, the roof terrace may be regretted by them. 24 Overall I have formed the opinion that since the applicable code is not an adopted development control plan and in any case silent on roof terraces there is no prohibition or even disfavour of roof terraces in council's statutes and controls. There have been other roof terraces in Greenwich and elsewhere in the Lane Cove area. It seems to be a practice of council staff to oppose them, or a practice of the councillors more than anything else. If the council is strongly of the mind to oppose roof terraces one would think it would be reflected more directly in their statutes and controls. 25 In looking at the impacts of this proposal they appear to be minimal and acceptable and that is the same opinion apparently that all the neighbours have for this particular application. As a result, residential amenity must be taken to remain acceptable. The only real non-compliance is the width of the terrace but that is only 0.5 metres if you take the 3.5 metre width or 1.5 metres in the other direction. It is noted that the width limit is the only limit in the code. It is not constrained in size or length. 26 The issue regarding the three storeys, or not 3-storeys I regard as either inconsequential or in view of the draft local environmental plan an issue of little weight. 27 The question of precedent cannot apply. It is the tests in each case of undesirable impacts and the merits that should be determinative. In any case, this is not the first roof terrace in Greenwich so it is not a precedent and it is probably a better design than most in terms of the council's planning objectives. 28 Therefore, the orders of the Court are: (1) The s 96 application is upheld. (2) Conditions 3, 4 and 5 of DA302/2007 for No 12 Chisholm Street, Greenwich are deleted, and (3) The exhibits are returned to the parties except exhibits 1, 6, A and E. ___________________ K G Hoffman Commissioner of the Court ljr 18/06/2009 - DA302/2006 was changed to DA302/2007 - Paragraph(s) 1, 13, 28 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.