Land and Environment Court of New South Wales CITATION : Casa Maria Pty Ltd v Waverley Council [2008] NSWLEC 1531 APPLICANT Casa Maria Pty Ltd PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10920 of 2008 CORAM: Hoffman C KEY ISSUES: Modification Application :- Overlooking; privacy; noise; amenity impact on residential precinct Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 DATES OF HEARING: 10 November 2008 EX TEMPORE JUDGMENT DATE : 10 November 2008 APPLICANT Mr P McEwan SC, instructed by Mr H Snow of Swaab Attorneys LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: - 6 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 10 November 2008 10920 of 2008 Casa Maria Pty Ltd Vs Waverley Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 Commissioner: This is an appeal against the refusal of a s96 application to amend DA 577/2006 for alterations and additions to No. 40 Hall Street, Bondi. 2 The site is about three blocks from the beach and previously had a mixed use development of cafés and flats on it. The approved development is four storeys high with a semi basement at the rear for seven cars, ten bicycles, a surfboard store and garbage storage. 3 Council approved the development that is under construction and has been built as far as structure, walls and floors. Work is continuing. I am told several other s 96 applications have been approved during construction. 4 The site has 12 metre frontage to Hall Street and a depth of 36 metres. The site is zoned Business General 3(a) under the Waverley Local Environmental Plan 1996 and the development is permissible with council consent. 5 The subject site is located on the southern side of Hall Street and forms a corner lot with Consett Avenue. The building under construction on site is a mixed use development with retail on the ground floor, commercial on part of the first floor and seven residential units above with the entrance to the units and the partial basement car park located off Consett Avenue. The Locality: 6 The site adjoins a single storey double frontage retail shop to the west at 42 Hall Street and backs onto and perpendicular to No. 20 Consett Avenue, which is a heritage listed single storey semi detached dwelling. The properties directly to the site's rear on the western side of Consett Avenue are zoned Residential 2(a) with mainly single and two storey dwelling houses. 7 On the opposite side and eastern side of Consett Avenue the area behind the Business General 3(a) zone fronting Hall Street is zoned Residential 2(b). It consists of a mixture of single dwellings and residential flat buildings. 8 The immediate locality facing Hall Street contains a mixture of single to three storey buildings of varying architectural styles and construction periods. The area facing Hall Street is developed as mixed use with shops and offices at ground floor generally and residential units above. 9 The area past the site to the south in Consett Avenue is one and two storey dwellings, some detached, some semi detached and some units. Numbers 20, 18 and 15 Consett Avenue are heritage items. The street has over arching street trees and presents, as the objectors attest, a residential character compared to the busy commercial, retail and beach side holiday activity in Hall Street. Statutes and controls 10 The statutory controls are the Waverley Local Environmental Plan 1996 and the applying development control plan is Waverley Development Control Plan 2006 in regard to Bondi Beach area, Land Use and Transport, Retail and Commercial premises, Advertising and Signage. 11 Under the Environmental Planning Assessment Act s96 modifications can be approved on their merits upon considering the relevant matters under s79C(1) of the Act provided the development remains substantially the same and provided objectors have been notified and their submissions considered. The Contentions: 12 In the appeal are: (1) The proposed first floor rear balcony will overlook the adjoining southern properties having an unacceptable privacy impact. This contention can be resolved by way of a condition requiring the provision of 1.8 metre high lightweight privacy screen erected on the southern elevation of the new proposed balcony; (2) The works proposed on council land being new paving and landscaping are inconsistent with council's existing upgrade for this location. I note that the applicant has withdrawn that component of the s 96 application and it needs no further comment; (3) The proposed transparent glass for Retail Space 1 window facing Consett Avenue should be refused because an agreement was reached between the council and the applicant. The applicant agreed to keep glazing obscured so as to minimise the commercial impact towards Consett Avenue. Since that time there has been no relevant change in circumstances to warrant the alteration of this agreement; (4) The Court should take into consideration the following matters raised by the objectors in its determination, noting that council does not propose to call any expert evidence in respect of those matters: (a) noise (b) privacy, other than as raised by council in contention 1 (c) pedestrian safety The Evidence and Conclusions 13 Attending the on-site hearing held both on-site and at the home of one of the objectors were, appearing for the council, Mr S Patterson of Wilshire Webb Staunton Beattie and Miss K Thomas, also of Wilshire Webb Staunton Beattie, Mr A Faruqi, Waverley Council Area Manager and objectors, Mr P Paech, owner of units near the site in Consett Avenue, Mrs G Findlay, owner occupant of a house near the site in Consett Avenue, Mrs J Gentle, owner occupant of house in Consett Avenue, Mr R Cattana, owner of a house in Consett Avenue, Mr Mango, occupant of a house in Consett Avenue and M Munzami tenant of a house in Consett Avenue. 14 Representatives for the applicant were Mr P McEwen, Senior Counsel, Mr H Snow of Swaab Attorneys, Mr D Crane, Consultant Town Planner and Mr P Stewart, Architect. 15 The objectors were particularly concerned about the conversion of the retail/commercial space window of Retail Space 1 from obscured glass to clear glass, and about overlooking and noise from the new balcony to unit 4 on the first floor. They were also concerned about noise from the extra cars in the basement. 16 In summary, the concerns about the obscured glass were, firstly, because the window, in their opinion, was agreed at a s 34 conference last year to be obscured, whilst the other two show windows on the Consett Avenue façade of Retail Space 1 were agreed to be clear glass. The latter two being closer to Hall Street. 17 The basis of that agreement was said to be the council and the objectors are committed to preserving the residential character of Consett Avenue and other residential streets off Hall Street by limiting commercial uses down the sides of buildings that front Hall Street and have side street frontages. 18 I was told, for instance, that café seating and shop fronts have been refused on the side streets in several other instances. This keeps the activity on Hall Street with a swift transition to quieter residential amenity in the side streets. 19 The objectors felt that this window would just extend the potential commercial activity one window too far from Hall Street. They felt their past concessions and patience is being tested, especially given the various amendments to the building and their need to be involved on the various proposals for this site since 2001. Most of the objectors have lived in Consett Avenue for between 30 and 40 years, and feel that the increased activity in Bondi has put increasing pressure on their residential amenity over the years and requires continual defence. 20 The second reason for their objection was from the owners and occupants of Nos.15 and 11A Consett Avenue, which are detached houses a little further down the street. They fear that the angled views across the street from this window could offend their privacy, especially if the commercial space becomes a café or bistro where people would be present for several hours and could watch them in their houses and front yards. 21 It was alleged, although no development application was lodged, that duct work suitable for kitchen exhausts to Retail Space 1 have been approved by council. It was confirmed the ductwork has been approved but there is no DA for any restaurant, café or bistro at this stage. 22 In dealing with this second reason, I noted the distance to the nearest house from the subject window is approximately 40 metres and the houses have open fences that enable anyone passing on the footpath to look directly into the front yard and the house windows. As a result, I cannot accept that privacy is a valid reason to refuse the conversion of that window to clear glass. 23 The first reason, however, has more weight. It relates somewhat to the creep effect feared by the residents and the council of allowing retail and commercial or entertainment uses to extend further from Hall Street into the residential area. 24 The applicant says the window is now closer to Hall Street than the previous approval because a fire hydrant required its relocation. Therefore, it should be allowed as clear glass to extend the potential retail show window space to the tenancy in Retail Space 1. 25 In my opinion, the tenancy was approved with only two clear glass show windows in Consett Avenue and the applicant agreed to that condition previously. Given the objectives of the business zone to control physical and functional characteristics of business centres to minimise their impacts on neighbouring residential areas, I believe the window should remain largely as obscured glass. 26 To give some outlook to the pleasant trees in Consett Avenue the applicant was prepared to accept, if I chose, to allow obscured glass up to 1.6 metres above the floor so that some outlook through the top of it could be had. That is the appropriate amendment in my opinion. 27 In regard to the unit 4 balcony, I note it is only about 1 metre wide internally, measuring 1.2 metres to the outside of the concrete balustrade. It is accessed off the single bedroom of unit 4 and via a new door in the approved living room window. The applicant has agreed to a privacy screen on the south end of the balcony overlooking No.20 and a return of the privacy screen on the west side of the balcony for about 1 metre. The balcony faces west. Number 20 is to the south. The existing consent approved the bedroom window facing west and the living room window of unit 4 facing south. 28 In the façade of No.20 that is looked at there are three bedroom windows, one bathroom window and one living room window looking towards the development. From my observation from No.20 and from unit 4, the balcony and privacy screen plus the vergola over unit 6's terrace below, greatly improve visual privacy to the bedroom windows of No.20 and does not change the privacy situation for the living room window of No.20 as approved by the council from both the bedroom window and the living room window of unit 4. 29 The remaining question is noise. The objectors noted that Bondi Flats often have noisy parties and music and activity. I was told the balcony in the objectors' opinions could hold up to twenty (20) persons. In actual fact, it is 4 metres long by about 1 metre wide to the inside of the concrete balustrade. On normal rates of occupancy that means a maximum of eight persons. Also the flat is a one bedroom flat, giving limited space for large numbers of people to collect therein. 30 It is my opinion that with the approved windows being openable, any party noise that may be generated off this narrow balcony would not be significantly different to noise from the living room with the windows open. Any difference would not be such that the balcony should be refused. 31 In regard to unit 6's terrace that has a Vergola roof, the applicant agreed to additional privacy screens on the south side along its entire southern length in order to improve the visual privacy of No.20 to all of the windows on its northern side. It seems to me the potential impacts on the residential amenity of No.20 and No.16 Consett Avenue are improved by the modification to units 4 and 6 and in the case of No.20 substantially improved. 32 In regard to the car park, the residents are concerned about the increased noise of cars using the semi-basement. It has louvred openings on the south side facing No.20 as approved. But the openings are in an excavated garden several metres below the ground line of No.20 and with a landscaped garden that is 3 metres wide between the basement and the boundary. 33 The existing conditions of consent that are not changing I am told provide noise controls to prevent equipment such as the car hoists and the garage door being more than 5 decibels above the background noise at the boundary. This means the extra noise operation for just two additional cars using the basement should not be a problem for the residents and certainly would be very little different compared to the approved situation. 34 There is, of course, the noise of cars starting up, doors slamming, et cetera that would not be subject to that condition. However, it seems to me that the movements caused by two extra cars per day would be so small that it could not cause such additional impact on No.20 that it should be refused. 35 Therefore, the Orders of the Court are: 1) That the appeal is upheld in part; 2) The modification application to change the obscured glass window to the Consett Avenue façade of Retail Space No.1 is refused, except as provided in Annexure A hereto; 3) The other modifications to Consent No.577/2006 at No.40 Hall Street, Bondi: a) The balcony privacy screens and window amendments to Unit 4; b) The privacy screens and Vergola to the courtyard of Unit 6; c) The increased capacity of the car park stacker system to provide 8 car spaces instead of 6; d) The minor reconfiguration of the bike, bin and board store areas, are approved subject to the conditions in Annexure A hereto; 4) The exhibits are returned to the parties except exhibits A, D, 2, 3 and 4. ___________________ K G Hoffman Commissioner of the Court kgh/ljr Page 1 of 1 Annexure 'A' Conditions of Consent CASA MARIA PTY LTD V WAVERLEY COUNCIL Property: 40 hall street, bondi 1. Approved Development The development must be in accordance with: Architectural Plan Nos. A1.15K, A1.16J, A1.17J, A1.18K, A1.19J & A1.20J and Statement of Environmental Effects prepared by Giles Tribe Architecture, dated 02/07/2008, except where amended by the following conditions of consent. 2. RELOCATION OF WINDOW The proposal to relocate the southern most window on the eastern facade of retail tenancy No.1 is approved. This window is to be glazed opaque to a height of 1.6 metres above the finished floor level. 3. PROPOSED LANDSCAPING WORKS No approval is expressed or implied for any works proposed on Council land that being new paving and landscaping. 4. PRIVACY SCREEN- UNIT 4 The new first floor balcony to Unit 4 linked to bedroom 1 is to be provided with a minimum 1.8m high privacy screen on the southern elevation which is to wrap around to the western elevation to a minimum length of 1 metre and such screen is to be constructed of opaque glass framed in powder coated aluminium casing. 5. PRIVACY SCREEN- UNIT 6 The ground floor courtyard relating to unit 6 is to be provided with a 1.8m high privacy screen constructed in opaque glass framed in powder costed aluminium casing for the full length of the southern elevation of the courtyard. _____________________ K G Hoffman 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.