Land and Environment Court of New South Wales CITATION : Cristovao v City of Canada Bay Council [2009] NSWLEC 1449 APPLICANT: Duarte Bras Cristovao PARTIES : RESPONDENT: City of Canada Bay Council FILE NUMBER(S) : 10559 of 2009 CORAM: Tuor C KEY ISSUES: DEVELOPMENT MODIFICATION :- modification of development consent - terrace extension - potential privacy impact - modification allowed with increased setback and reduction in size Environmental Planning and Assessment Act 1979 s 96 LEGISLATION CITED: Canada Bay Local Environmental Plan 2008 Canada Bay Development Control Plan 2008 DATES OF HEARING: 17 November 2009 EX TEMPORE JUDGMENT DATE : 17 November 2009 APPLICANT: Ms S Hill (solicitor) SOLICITORS: Susan Hill & Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr P Jackson (solicitor) SOLICITORS: Pikes Lawyers JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 17 November 2009 10559 of 2009 Cristovao v City of Canada Bay Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by the City of Canada Bay Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (568/2006) for alterations and additions to an existing dwelling at 8 Collingwood Street, Drummoyne (the site). 2 Council granted the development consent on 21 March 2007 subject to conditions, including Condition 2(a), which requires: the first floor terrace area above the ground floor deck shall be deleted. The reduced terraced area shall extend no further north than the northern elevation wall of bedroom 4. 3 The s 96 application seeks to delete condition 2(a) and extend the first floor terrace to the north to be set back 3 metres from the side boundary. The slab for the proposed terrace has been constructed contrary to condition 2(a). 4 The key issues between the parties are whether the proposal achieves acceptable privacy to the balconies and windows of the adjoining townhouses at 11 Napier Street, particularly units 1 and 2, and whether the bulk of the terrace adversely impacts on the streetscape when viewed from Napier Street. 5 The site is zoned R3 Medium Density under Canada Bay Local Environmental Plan 2008 (LEP 2008). The proposal is permissible with consent. Canada Bay Development Control Plan 2008 (DCP 2008) is also relevant; Part 5 of DCP 2008 relates to dwelling house development. Part 5.1.4 provides objectives and controls for Streetscape and Context and Part 5.2.4 refers to Visual and Acoustic Privacy. Part 6 of DCP 2008 provides similar controls for medium density development. 6 The hearing was conducted on site and the court heard planning evidence from Mr G Shiels, for the applicant, and Ms E Sorensen, for the council. Their opinions are summarised in their joint report. Privacy 7 The balconies at 11 Napier Street are off bedrooms and face south and the windows are to laundries and bathrooms. The townhouses primary area of open space is at ground level on the northern side. The proposed terrace extension is off bedrooms, faces north and is approximately 2 to 2.5 metres deep and 2.8 metres wide. It is set back 3 metres from the boundary. 8 The applicant has agreed to reduce the depth of the terrace to 1.8 metres to comply with C3 of Part 5.2.8 of DCP 2008. He would also accept a reduction in the width of the terrace to increase the separation between the balconies at 11 Napier Street. 9 The applicant has also agreed to conditions, which include the requirement that the balustrade is clear glass and the terrace is uncovered with no furniture. 10 The closest distance between the proposed terrace and the balcony at unit 1, 11 Napier Street is approximately 6.3 metres. Unit 2, 11 Napier Street is approximately 10 metres distant from the terrace at its closest point. 11 The experts agreed that balconies off bedrooms normally have low levels of usage and are not for entertaining. Ms Sorensen is concerned that there would be potential privacy impacts between the proposed terrace and the balconies and windows of unit 1 and 2, 11 Napier Street as it is possible to overlook these balconies and windows. In her opinion, it is not reasonable to obtain views at the expense of neighbouring residents' privacy. 12 Mr Shiels considers that as the balconies at 11 Napier Street are orientated across the site, there are likely to be privacy impacts. However, the proposed terrace would be used infrequently and it is orientated towards the views of the Harbour Bridge and the Opera House sails rather than across 11 Napier Street. In his opinion the extent of setback provides adequate separation to provide privacy, although he recognised that the setback could be increased by about 1 metre while still providing uninterrupted views. He considered there is no privacy impact to the windows as these are to laundries and bathrooms. 13 The experts agreed that privacy screens would potentially impact on the views from the properties in Collingwood Street and that the balustrade should be clear glazing. Findings 14 Part 5.2.4 of DCP 2008 includes the objective: 01 Ensure the siting and design of building provides a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open space. 15 The controls relevantly provide: C3 Upper level balconies to the rear of a dwelling should be set back a minimum of 2.0 metres from any side boundary and should have a maximum depth of 1.8m C6 Where the visual privacy of adjacent properties is likely to be significantly affected from windows, doors and balconies, or where external driveways and/or parking spaces are located close to bedrooms of adjoining buildings, or adjoining buildings,one or more of the following alternatives are to be applied: (a) Fixed screens of a reasonable density (minimum 85% block out) should be provided in a position suitable to alleviate loss of privacy; (b) Where there is an alternative source of natural ventilation, windows are to be provided with translucent glazing and fixed permanently closed; (c) Windows are off-set or splayed to reduce privacy effects; and (d) An alternative design solution is adopted which results in the reduction of privacy effects. 16 Mr Jackson, for the council, submits that the proposed extension does not meet Objective 01 and will have a significant effect on 11 Napier Street. This was addressed in the development consent through condition 2(a) which required the deletion of the proposed terrace extension. 17 Further, Mr Jackson submits that the existing terrace off the bedrooms is large and provides significant views to the harbour. The proposed extension of this terrace is not necessary, particularly when balanced against the potential privacy impacts. 18 I acknowledge that the existing terrace already provides substantial views of the harbour and the city and, in part, towards the Harbour Bridge. The applicant seeks to extend the terrace to provide, in his opinion, a better view of the Harbour Bridge and Opera House sails for his family, particularly, to view events such as the fire works and also to provide access to the roof for maintenance. 19 The key question before the Court is whether the desire to enlarge the terrace is unreasonable given the potential privacy impacts that may result. 20 Given that the proposal is off bedrooms and that the balconies to 11 Napier Street are also off bedrooms, I accept the expert evidence that the usage of both these areas is not likely to be frequent. 21 People using the proposed terrace will be able to overlook the balconies of units 1 and 2, 11 Napier Street. The separation distance between the balcony of unit 2 and the proposal of a minimum of 10 metres is adequate. However, the distance of a minimum of 6.3 metres between the proposed terrace and unit 1 has the potential for adverse amenity and privacy impacts. I note that no objection has been received from this unit and that it has views towards the harbour from its bedroom. However, the potential privacy impact is still a relevant consideration. 22 The size of the proposed terrace is relatively large, particularly in conjunction with the existing terrace off the bedrooms. The size is beyond that required to meet the stated objective of the applicant to provide an area for his family with uninterrupted views of the Harbour Bridge and Opera House sails. 23 An increased setback and consequent reduction in size would reduce the number of people able to use the terrace and ensure that it is utilised for only passive non recreational purposes, thereby mitigating any likely privacy impacts while providing the iconic views sought by the applicant. 24 Condition 2(a) should therefore be amended to require a minimum setback of 4 metres from the boundary and a depth of 1.8 metres. Bulk and scale 25 I accept Mr Shiels' evidence that the terrace extension and the proposed glass balustrade will not result in a material increase in the bulk of the building or an adverse impact on the Napier Street streetscape. Orders 26 The orders of the court are therefore: (1) The appeal is upheld. (2) The application under s 96 of the Environmental Planning and Assessment 1979 to amend development consent (568/2006) for alterations and additions at 8 Collingwood Street, Drummoyne is approved. The consent is modified as set out in Annexure A. (3) The exhibits, except exhibits A and B, may be returned. ___________________ Annelise Tuor Commissioner of the Court Appeal No: 10559 of 2009 Annexure 'A' Conditions of Consent Cristovao v City of Canada Bay Council 8 Collingwood Street, Drummoyne The following conditions of development consent (DA568/2006) are modified to read as follows: 1 Consent and Approved Plans: Development shall take place and operate generally in accordance with this consent accompanied by the following plans and documentation: Job / Sheet No. Prepared by: Dated: DA-1000 (B), DA-1001 (B) DA-1201 (B), DA-1401(B) Candalepas & Associates 30/01/07 DA-1501(B), DA-1502(B) SW-DA01 &2 AJK Design 20/12/06 As amended by the changes shown on the following plans: Job / Sheet No. Prepared by: Dated: 01 - 06 (Issue A) Arkivis 28/05/08 (6 Sheets Inclusive) As amended by the changes shown on the following plans: Job / Sheet No. Prepared by: Dated: 01 - 06 (Issue B) Arkivis 15/07/09 (6 Sheets Inclusive) except where otherwise altered or amended by other conditions of this consent. Please read the conditions of this development consent carefully and make sure that you understand all the conditions that have been imposed. Any minor modification to the approved plans will require the lodgement, and assessment of an "Application to Modify Consent" under Section 96 of the Environmental Planning and Assessment Act, 1979, (as amended ). Major modifications to the approved plans shall require the lodgement, and consideration of a new Development Application. (Reason: Statutory requirement and to clarify the terms of the consent) 2 Amended plans The following amendment shall be made to the approved plans: a) Subject to the terms of condition 2, the balustrading for the first floor terrace area which is above the ground floor deck and which adjoins the northern end off the master bedroom shall be set back a minimum of 4m from the northern side boundary and have a maximum depth of 1.8m at any point of measurement. b) The proposed external stairs located to the northern boundary of the site, which access the ground floor deck, shall be relocated to extend off and across the rear (east) of the deck. The stairs are to be located no closer than 1.5m from a side boundary. [No changes] c) The northern side elevation of the ground floor deck shall be screened to a minimum height of 1.65m with fixed angled louvers, lattice or similar material attaining a minimum density of 85%. [No changes] d) The first floor terrace area above the ground floor deck referred to in (a) above shall be constructed of and maintained with clear glass at all times in order to minimise view loss from adjoining properties. e) The first floor terrace area above the ground floor deck referred to in (a) must not interfere with the amenity of the area and adjoining residential dwellings. No structures, furniture, play and/or recreational equipment, drying facilities, privacy screens, awnings/shade structures or any landscaping including planter boxes, shrubs, trees or pot plants shall be placed on the extended balcony. This involves a change to the Development Application plans as submitted to Council and this change shall be reflected on the plans submitted to the Principal Certifying Authority with the Construction Certificate for the proposed development. (Reason: Compliance and amenity) ________________________ Annelise Tuor 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.