Land and Environment Court New South Wales Medium Neutral Citation: Luxcon Developments Pty Ltd v North Sydney Council [2011] NSWLEC 1176 Hearing dates: 22 June 2011 Decision date: 22 June 2011 Jurisdiction: Class 1 Before: Smithson AC Decision: 1.The appeal is upheld. 2.The application under s96 of the Environmental Planning and Assessment Act for modifications to Development Consent to extend an external terrace and modify the materials of the balustrade and add a planter box is determined by the granting of consent. 3.The development conditions in Exhibits 4 and E apply but with the modification to Conditions A (ii) and 17 to allow transportable pot plants and pots not exceeding 600 mm in total height on the extended terrace, and to Condition 18 to refer to 10pm rather than 9pm. 4.The exhibits are returned to the parties with the exception of Exhibits 1, 2, 4, C, D and E. Catchwords: DEVELOPMENT MODIFICATION - terrace extension - view sharing - glass balustrading impact on views Legislation Cited: Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002 Protection of the Environment (Operations) Act 1997 Cases Cited: Finlay v Manly Council [2006] NSWLEC 224 Super Studio v Waverley Council [2004] NSWLEC 91 Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: Luxcon Developments (Applicant) North Sydney Council (Respondent) Representation: Counsel Mr S Brockwell (Applicant) Solicitors Mr J Denes, Denes Ebner (Applicant) Ms J Hewitt, HWL Ebsworth (Respondent) File Number(s): 10307 of 2011 Extempore Judgment 1This is an appeal against the refusal by North Sydney Council (the Council) to modify Development Consent No 520/08 under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) for a residential apartment development substantially complete at 43 Kurraba Road, Neutral Bay. The proposal is to modify the penthouse of the apartment building by increasing the size of its roof terrace and modifying the nature of the terrace's balustrading. 2The grounds raised by the Council are that: the proposal would double the approved area of the roof terrace; the terrace would not comply with the provisions of Council's Development Control Plan for roof terraces; and the proposal would create adverse impacts on the adjoining residential dwellings, in particular in terms of acoustic and visual privacy. Whilst not explicit in the Council's decision, the main issue arising from all three grounds for refusal is the impact on views, from two apartments opposite the site in Kurraba Road in particular. 3The subject site, Lot 1 DP 83937 is located on the northeastern corner of Kurraba Road and Manns Avenue. The site is 1201 sq m in area and irregular in shape with a 50.8 m frontage to Kurraba Road and a 51 m frontage to Manns Avenue. The site falls approximately 5.7 m from Kurraba Road to its lowest point on Manns Avenue. 4The site was formerly used for a service station, which has been remediated and is being redeveloped for a part four, part five storey residential apartment building. 5A heritage building, the 'Elvira Private Hotel', immediately adjoins the site's eastern boundary. This is also the boundary of the Kurraba Point Conservation Area. Other than the hotel, the surrounding development comprises predominantly residential dwellings of various heights and densities. 6The building the subject of the application for modification is substantially complete. The modification applies to the topmost penthouse apartment, unit 14. 7The s 96 application comprises two modifications to the approved plans: firstly to increase the area of the roof terrace to unit 14 from 30 sq m to 69 sq m (requiring the deletion of two skylights). The stated basis for the increase in terrace size is to create a useable area of outdoor open space; and, secondly to replace the balustrade on the southern side of unit 14, which is part masonry and part glazed, with entirely glazed (i.e. glass) balustrading and a planter box. 8In the area where the proposed extended terrace meets the concrete roof there will be a difference in levels in the order of 250 mm. Background 9DA 520/08 granted approval to a part four, part five storey residential apartment building containing sixteen apartments comprising a mixture of one, two and three bedrooms. The proposal included an excavated two level basement car park, new fencing along both street frontages, landscaping works, and a strata subdivision. 10The application was approved on June 1, 2009 following various modifications to plans, including in response to a Council requirement to delete the top floor unit on the eastern side of the building. 11A s 96 application was lodged with the Council on 24 September 2009 and approved on 9 November 2009. The application proposed a series of modifications, which included reconfiguring and enlarging a number of units, and modifications to meet BCA compliance. 12A further s 96 application was lodged with the Council on 5 February 2010. The applicant was advised by the Council that the application would not be supported in its current form, because of the view impacts from the proposed extension to the eastern side of the top level and the roof terrace. Amended plans, which reduced the impacts, were submitted and approved on 22 March 2010. Two additional conditions were imposed on the consent. The first prohibited any permanent structures or umbrellas on any portion of the roof terrace located east of the eastern elevation of the top floor. This was to preserve views. The second new condition required a s 88B instrument to be created to reinforce the first new condition. 13The subject s 96 application was lodged on 9 December 2010 and was refused on 14 March 2011. The Statutory Context 14The site is zoned Residential 2C under the North Sydney LEP 2001 (LEP). The LEP contains various controls relevant to this application, including requiring development to be consistent with the aims, objectives and desired character for the Residential 2C zone. 15The application was also assessed under the provisions of the North Sydney Development Control Plan 2002 (DCP). The DCP contains various clauses of relevance to the application, predominantly in terms of preservation of views. The Issues Nature of the Application 16The Council considers that the application will result in a modification to the consent that is not minor and is therefore not an application under s 96 (1A) of the Act and a Design Verification Statement under SEPP 65 is required. 17The applicant considers the application to be essentially the same as that approved and that it will not significantly impact on adjoining dwellings. 18Section 96 (1A) of the Act relates to modifications which, to the Council's satisfaction, have minimal environmental impact, results in substantially the same development as was subject to the original consent, the application has been notified, and the Council has considered any submissions made in response to the modification. 19In determining the application, the Council is to consider such matters as are relevant under s 79C(1) including: the provisions of any existing environmental planning instrument and development control plan, the likely impact on the natural and built environments, the social and economic impacts in the locality, the suitability of the site, any submissions, and the public interest. 20The applicant argues that the modifications are minor, relating to only one terrace and its balustrading. 21Whilst the approval history of this development indicates ongoing modification by iteration, it is still the case that only one element of the application in this instance is objected to and that this is the extended terrace for unit 14, and the material of its balustrade. No structures are permitted on the terrace. 22The environmental impact of the terrace is confined by the Council to its concern with the impact on views. The development remains the same in terms of the nature, number and height of the dwellings and in terms of form, bulk, location and scale. 23In my view, the application is of a minor nature, being to extend a terrace as one element of a more substantial building, including modifying the balustrade material to reduce the impact on neighbours' views. The application thus meets the test for a modification under s 96(1A). It will have minimal environmental impact overall and the development will remain substantially the same development as approved and in fact as constructed. A Design Verification Statement under SEPP 65 is not required accordingly. This does not however, remove the requirement to assess the application under the provisions of s 79C (1) of the Act, including the Council's environmental planning instruments. 24The Council also raised a concern that the plans with the application did not show whether or not the concrete roof under the proposed extended terrace is being demolished or not. If not, the plans did not show steps where the extended terrace would meet the approved terrace. Further, if the roof remains, the planter box would be higher than shown on the drawings. 25In response the applicant submitted amended plans showing two steps where the existing (approved) terrace meets the proposed extension to the terrace. A survey was also undertaken and as a result the balustrade heights on the plans were amended and accepted by the Council. 26The modified plans meet the Council's concerns with regard to the level changes and access to the extended terrace. Objections 27The s 96 modification was notified and three submissions of objections were lodged. These were from neighbouring properties in Kurraba Road. The objections were with regard to loss of views, loss of privacy, noise impacts from the use of the terrace, size of the terrace, safety impacts of airborne rooftop items, and possible non-compliances. The possible impact from light spill was also raised, but the Council accepted this could be resolved by conditions of consent. 28An onsite hearing was held and commenced with the Court hearing the objections of neighbouring residents. 29The Court heard from Ms Alison Vickory of 80 Kurraba Road. Her concerns were with regard to the fact she had already lost her views with the development occurring. She was concerned with the number of people on an enlarged terrace and light spillage. 30The second resident was Ms Helen Dignan of 82 Kurraba Road. In her opinion she has only been left with a strip of views post-development and she wants to protect these, in particular from her bedroom and living area/study area. She was also concerned with noise and light spillage. 31Finally the Court heard from Mr Anthony Jackson from 80 Kurraba Road. Mr Jackson's issues were a concern about any further loss of views and noise impacts. Whilst his view is partially distracted from a street tree, he would be seeking the Council to prune the tree back to try and return some of his views, and his views are from his living, dining and kitchen areas. Impact on Views 32The key issue in this matter was agreed by the parties to be the impact on neighbours' views and, directly related to this, the size of the extended terrace. Ms Brennan, a town planner, gave evidence on behalf of the Applicant. Mr Layman, an architect and town planner gave evidence on behalf of the Council. 33The Council argued that the impact on views is unacceptable having regard to: - SREP Sydney Harbour Catchment 2005, Clause 26 (Maintenance, protection and enhancement of views); - North Sydney LEP2001, clause 2 (General Aims) and clause 3 (Specific Aims) ; and - North Sydney DCP2002 section 7.2 - Views and section 8.4 - Privacy (Use of Rooftops of buildings and garages). 34Specifically, the Council believes the proposal will have an unacceptable impact on the views of certain neighbours at 78 to 80, 82 and, to a lesser extent, 84 Kurraba Road. These views are described as "to landmark features", or "iconic", being of the harbour and city skyline and are the outlook from various rooms of the subject dwellings situated opposite the site. The extended terrace, balustrading and planter box proposed by the application will be elevated some 255 mm above the level of the approved terrace. 35The Council considers that the proposal fails the principles in Super Studio v Waverley Council [2004] NSWLEC 91 regarding reasonableness and necessity in that unit 14 is well provided for in terms of private open space, with existing terraces. Further, that the impact of the extended terrace is neither minor nor negligible, having regard to the view sharing principles in Tenacity Consulting v Warringah [2004] NSWLEC 140. 36The Council argues that a design which maintains the extended terrace at the same level as the existing terrace would reduce the impact. Also that the size of the terrace is excessive and appears arbitrary. An improved design at the outset would have avoided or reduced the current issues. The Council also noted that the balustrading to the extended terrace would remove a view corridor originally proposed by the applicant to retain views, before the plans were modified and approved. 37The applicant's view is, in summary, that no additional solid structures beyond what have been approved are proposed. The balustrade will now be glass and will therefore be transparent and it was acknowledged that this would assist in minimising impacts on views. 38In terms of impacts on each of the neighbour's views, Ms Brennan argued that these could be summarised as follows: - 78-80 Kurraba Road - the approved roof terrace directly aligns with the view corridor of the upper level of the adjacent dwelling at 80 Kurraba Road. Extending the terrace to the east will enable it to be screened from this address by the existing large street tree in Kurraba Road; - 82 Kurraba Road - the proposed extended terrace is not directly in line of sight from this address and will therefore have no visual impact on it; and - 84 Kurraba Road - the building's predominant view is across the northeastern corner of the site and will not be impacted on by the location of the proposed planter box or balustrade. 39It was agreed by both experts that the views of 84 Kurraba Road were not primary or iconic views, and that all views were partially obstructed by foreground development. 40In Super Studio v Waverley , several planning principles were considered to be of relevance in determining impacts of proposed modifications to a development, albeit these impacts related to overlooking rather than loss of views. However, the relevance is not only the extent of the impact but the "reasonableness of, and necessity for, the development that causes it". For example, impact caused by an extra balcony in a development which already has three balconies. Also, where landscaping is the main safeguard to offset impacts it should be given minor weight. In Super Studio , the weight given to landscaping was in regard to minimising overlooking where the landscaping was part of the development but similar principles could apply to the impact of external landscaping, namely the street tree in Kurraba Road. 41In Tenacity Consulting v Warringah , the Court adopted a four stage approach to view sharing and assessing impacts on view. 42Firstly, an assessment of views to be affected - noting that water views and views to iconic landmarks have a higher value than other views. Both experts agreed that at least two of the neighbours in Kurraba Road had water and/or city views which were iconic and which would have some impact from this proposal, but to varying degrees. 43Secondly, to consider from which part of the property the views are obtained (i.e. from the front versus the side and from standing versus sitting). Both experts agreed there would be some impact from both standing and sitting at least to the 2 units at 80 and 82 Kurraba Road although the views from 80 Kurraba Road were at least in part obstructed by a street tree, and Ms Brennan considered the impacts to be minor or negligible. 44Thirdly, to assess the extent of the impact - i.e. whether from the whole of the property or from key rooms such as living rooms - and whether any view loss would be negligible, minor, moderate, severe or devastating. The experts agreed the impact on views would vary between the neighbours but, in no instance, would they be severe or devastating, given the glass balustrading proposed. 45Fourthly and finally, to assess the reasonableness of the proposal that is causing the impact. A complying development would be considered more reasonable to impact views than a non-complying development. In this instance, it was agreed that the proposed modification complied with the relevant planning controls. However, even if the development complied, "the question should be asked whether a more skilful design could provide the applicant with the same potential and amenity and reduce the impact on the views of neighbours". (p 6 of Tenacity ) 46Mr Layman agreed that, if the extended terrace was at the same height as the approved terrace, the impact would not be as significant. However the ability to achieve that outcome no longer exists. Mr Layman further argued that the proposal as presented would impact on both standing and sitting iconic views from living rooms and bedrooms to at least one neighbour, the potentially most affected neighbour at 7/82 Kurraba Road. Mr Layman agreed that, in terms of 80 Kurraba Road, the existing street tree already partly obscures views but the impact would still be moderate, in his view. 47Further Mr Layman argues that the terrace extent is arbitrary and a narrower terrace at the same level would have less impact and could still provide amenable private open space. Mr Layman also believes unit 14 is adequately provided for with two existing terraces and the impact of the extension is neither negligible nor minor. 48Ms Brennan believes the design has had regard to minimising impacts on views by setting the terrace back from the northern and eastern walls of the building in order to maintain a view corridor. Further that the expanded terrace is proposed given unit 14 is a large penthouse with its main terrace having limited useable space due to limited depth and the penthouse therefore having inferior outdoor areas compared to most other units in the development. Floor to ceiling heights of the living area of the unit below preclude lowering the finished level of the extended terrace given this unit had already been constructed. 49In my opinion, the views impacted on are iconic views to water and the city skyline in main, albeit they are variously obstructed already, and the impact would be at the most moderate, depending on the material of the balustrading and the use of the terrace. 50In terms of the reasonableness of requiring an extended terrace to serve unit 14 as a penthouse, this can be argued. However, extending the terrace does at least provide opportunity to screen the rooftop and its structures from unit 14 and deter unauthorised use of the rooftop area. Balustrade Material 51The Council raised a concern that the replacement of the terrace's balustrading material from part masonry and part glazing to entirely glazing (ie glass), with a planter box, would still impact on neighbours' views. 52The applicant argued that replacing a predominantly solid masonry balustrade with a glazed glass balustrade only will ensure that it is transparent, add variety and interest to the facade, enhance the views obtained and light penetration to the unit, and will not adversely impact on neighbours. In fact, for at least one neighbour, the view would improve. Furthermore, the planter box is no higher than the currently approved height. 53Both experts agreed that the glass balustrade would be an improvement to the existing masonry in terms of impacting on views, but disagreed as to the degree of improvement. Mr Layman believes it would still impact views: when the glass is wet; because it would distort views; and because it would be affected by salt deposits given the location. The obscurity caused by looking through two areas of glass was also raised as an issue. 54In my view, the glass balustrade will have less impact on views than masonry balustrading and, whilst there will be some impact, the proposal to remove existing masonry will improve the existing views given the use of frameless glass, as agreed by the applicant, and will not make the impact significant. 55Finlay v Manly Council [2006] NSWLEC224 was also raised as a case of relevance to this matter in terms of the visibility of glass under certain conditions and its impact on views. In Finlay , the structure was a roof structure providing rain protection, not terrace balustrading but the Court did find that glass was affected in terms of clarity of views by both rain and salt deposits. 56Notwithstanding, rain effects and deposits on a roof structure vis a vis a side balustrade would likely be different and residents are more likely to be able to and motivated to maintain a relatively clean surface for a balustrade which provides views, than a roof structure which is for rain protection. 57In terms of other issues, the Council did not provide any substantive argument with regard to their concern as to the impact on the neighbours' acoustic or visual privacy. The applicant argued the extended terrace would not facilitate unreasonable levels of noise. There is sufficient separation from neighbours, noise would impact on residents of the building itself and thus be controlled by the body corporate, and it can otherwise be controlled by the Protection of the Environment (Operations) Act 1997. I agree with this view. 58The applicant indicated that the intent of the planter boxes was to allow low level landscaping to assist with minimising noise from the terrace. Due to the location of the terrace, no overlooking from the terrace is anticipated. 59Mr Layman stated issues raised by objectors, other than view impacts, such as overlooking, light spill and noise were not determinative of the application and I agree with this assessment with the conditions as proposed, including a curfew on external lighting and given there is already an approved terrace in this location, albeit smaller. 60In terms of conditions, it was requested that condition A1 of the approved be changed to reflect the amended plans, and they are the plans that were subsequently further amended at the hearing. There was disagreement regarding whether the light curfew should commence at 9pm or 10.30pm and whether pot plants should be permitted on the extended terrace. 61In summary, in my opinion the proposal satisfies the requirements of s96 of the Environmental Planning and Assessment Act . The changes are relatively minor and, whilst there will be some impact on views, the 'through view' will generally be maintained and, in some instances, improved by the replacement of the existing masonry balustrading with glass. 62I am also of the opinion that the installation of a planter box is an appropriate element to screen the rooftop area from unit 14 and will act as a deterrant to use of the rooftop by the future occupants and their visitors. 63The Court is cognisant of the impact the existing development has already had on the previously enjoyed views of residents of 78-84 Kurraba Road inclusive, but that is not the subject of this application. Similarly, whilst it is the case that the street tree could be removed or trimmed in the future, it could similarly remain, grow taller or be replaced and it does impact the views already, from Mr Jackson's apartment in particular. Orders 64The orders of the Court are therefore that: 1.The appeal is upheld. 2.The application under s96 of the Environmental Planning and Assessment Act for modifications to Development Consent to extend an external terrace and modify the materials of the balustrade and add a planter box is determined by the granting of consent. 3.The development conditions in Exhibits 4 and E apply but with the modification to Conditions A (ii) and 17 to allow transportable pot plants and pots not exceeding 600 mm in total height on the extended terrace, and to Condition 18 to refer to 10pm rather than 9pm. 4.The exhibits are returned to the parties with the exception of Exhibits 1, 2, 4, C, D and E. J L Smithson Acting 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. Decision last updated: 01 July 2011