Land and Environment Court New South Wales Medium Neutral Citation: Habib v Kogarah City Council [2012] NSWLEC 1240 Hearing dates: 2 August 2012 Decision date: 29 August 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Modification application no. 287/2011/2 for glass louvre bi-fold aluminium panels along the western elevation and return bays of the ground and first floor balconies and first floor bedroom 1 southern wall aligned with the southern elevation, is approved, subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 2 and 3, are returned. Catchwords: MODIFICATION: application to modify consent to delete a condition, glass louvre system for sun-shading and amendment to the first floor. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mr Joseph Habib (Applicant) Kogarah City Council (Respondent) Representation: Mr M. Staunton (Barrister) (Applicant) Mr A. Hudson (Solicitor) (Respondent) Solicitors Gadens (Applicant) Wiltshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10434 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the refusal of modification application no. 287/2011/2 (the application) by Kogarah City Council (the Council) to insert glass louvres above the glass balustrade of the ground floor and lower ground floor balconies on the western façade and return bay on either side of the western facade and to realign the southern and northern walls of bedroom 1 on the first floor, at 57 Vista Street, Sans Souci (the site). 2The appeal was subject to mandatory conciliation on 2 August 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. Issues 3The Council's contentions in the matter can be summarised as: * The two storey glazed louvre curtain wall will result in excessive areas of unrelieved glazing, which will give an unarticulated, blank wall presentation to the foreshore and the glazed curtain wall will provide a planning precedent for other water front properties; * Moving the southern wall of bedroom 1 to align with the southern elevation will result in a southern elevation that is unarticulated and inconsistent in scale with adjoining dwellings. The proposal 4The application seeks to delete condition 5 of the development consent for alterations and additions to the existing dwelling. Condition 5 states: (5) Deletion of Louvers to Balconies The external glass and aluminium louver system along the western, southern elevations of verandahs and the western most louvered panels of northern elevation on the Lower Ground Level and Ground Level shall be deleted. 5The proposal is for fixed frames of glass louvres above the glass balustrade on the ground and lower ground western elevation of the balconies and for a single return bay of glass louvres at either end of both balconies. 6The application seeks to move the external southern and northern walls of bedroom 1, on the first floor. The southern wall is to align with the southern elevation, by moving south 1.5 m. The northern wall is to be moved to the south by 300 mm, to align with the northern elevation on level 1. The proposal was amended to adjust the position of these walls during the development assessment process, in response to Council's concerns and the applicant is seeking to reinstate bedroom 1 as originally proposed. 7During the hearing, Council agreed to the proposed change in position of the northern wall of bedroom 1. The planning framework 8The site is located within the 2(a) zone, Residential (Low Density), pursuant to Kogarah Local Environment Plan 1998 (LEP 1998) and the proposal is permissible with consent. 9The aims of LEP 1998, at clause 2, include: (g) to promote ecologically sustainable development 10The definition of gross floor area, at clause 25 of LEP 1998, is: gross floor area means the sum of the areas of each floor of a building, where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1,400 millimetres above each floor level, excluding: (a) columns, fin walls, shading devices, awnings and any other elements, projections or works outside the general lines of the outer face of the external wall, (b) lift towers, cooling towers, machinery and plant rooms and ancillary storage space and air-conditioning ducts, (c) car parking needed to meet any requirements of the Council and any internal vehicular or pedestrian access to that parking, (d) space for the loading and unloading of goods, and (e) internal public arcades and thoroughfares, terraces and balconies and the like. 11The site is located within the waterfront scenic protection area, as defined by clause 25 of LEP 1998. 12The site is subject to the provisions of the Residential Design Guide 2005 (RDG 2005). The RDG 2005 is divided into general controls (Part 3), controls for development along the foreshore (Part 6), 19 Locality Guides (the site is within Locality 17, Sans Souci) and 10 Foreshore Locality Guides (the site is within Foreshore Locality 2: Kogarah Bay). 13Part 3 of RDG 2005, General Controls, includes, at clause 3.1, objectives and controls for the height of buildings. The objective for the height control is as follows: Ensure that the height of development is not excessive and relates well to the local context. 14The introductory paragraph of clause 3.1 includes the following statement: Building height is also critical in addressing impact from development such as solar access, privacy and view loss. 15The relevant maximum height control is 7.8 m to the top of the parapet. 16Clause 3.3 of RDG 2005 includes the maximum floor space ratio (FSR) objectives and controls. The objectives for the FSR control are as follows: The overall building floor space should present a building mass that is: * in scale with the allotment size; and * provides opportunities for modulation and articulation of the building form; and * does not detract from the satisfaction of any other requirement. 17The permissible FSR for the site is 0.47:1. 18Locality 17 Sans Souci includes a description of the physical character of the locality, which includes: The housing styles are mixed, with no particular style predominating. 19Locality 17 Sans Souci includes, under Building Form and Materials, the following statements: The use of excessive amounts of glazing in windows and/or walls is unacceptable. Buildings within the Waterfront Scenic Protection Area should be designed to blend with adjoining buildings. 20The site is within the Wellington Street to Torwood Street area of Foreshore Locality 2: Kogarah Bay. The objectives and controls for land based development in the Wellington Street to Torwood Street area are as follows: Objectives · Minimise the level of reflectivity for facades facing the foreshore. · Colours and materials of dwellings should be sympathetic with their surrounds and blend into the natural landscape. · Minimise the visual impact of dwellings and retaining walls, when viewed from the water. Controls Land based development above the FBL 3.1 The following controls apply to land based development above the FBL and are in addition to any other controls contained within this DCP: 3.1.1 Facades and rooflines of dwellings facing the water are to be broken up into smaller elements with a proportion of solid walls to glazed areas. Rectangular or boxy shaped dwellings with large expanses of glazing and reflective materials are not acceptable. In this regard, the maximum amount of glazed area to solid area for façades facing the foreshore is to be 50%-50%. 3.1.2 Colours that harmonise with and recede into the background landscape are to be used. In this regard, dark and earthy tones are recommended and white and light coloured roofs and walls are not permitted. To ensure that colours are appropriate, a schedule of proposed colours is to be submitted with the Development Application and will be enforced as a condition of consent. 3.1.3 Buildings fronting the waterway, must have a compatible presence when viewed from the waterway and incorporate design elements (such as roof forms, textures, materials, the arrangement of windows, modulation, spatial separation, landscaping etc) that are compatible with any design themes for the locality. 3.1.4 Blank walls facing the waterfront shall not be permitted. In this regard, walls are to be articulated and should incorporate design features, such as: (i) awnings or other features over windows; or (ii) recessing or projecting architectural elements; and (iii) open, deep verandahs. Public submissions 21The Court, in the company of the parties and their experts, conducted a view of the dwelling from the jetty in front of the site and from a boat in Kogarah Bay. 22The neighbour to the south of the property, at 59 Vista Street, is in support of the proposal. He said that he has to run the air-conditioning continuously during the summer months due to the significant heat load from the western orientation of the dwelling towards Kogarah Bay and reflection from the water. He supports the glass louvre proposal to screen the verandahs and says that the proposed repositioning of the southern wall of Bedroom 1 will have no impact on his property. Expert evidence 23Expert planning evidence was provided by Mr Andrew Darroch on behalf of the applicant and Ms Kandace Lindeberg on behalf of the Council. 24The experts agree that the approved development has a maximum wall height of 10.5 m. 25The planning experts agree that the FSR of the approved development is 0.58:1. They agree that the enlargement of bedroom 1 would increase the FSR to 0.59:1. They disagree whether the balconies should be included in the FSR calculation for the proposal. According to Mr Darroch, the proposed glass louvres are a shading device, which is excluded from the definition of gross floor area in LEP 1998 and the floor area of the balconies should not be included in the FSR calculation as the balconies are outside the face of the external wall of the dwelling. According to Ms Lindeberg, the proposal to install louvres above the glass balustrade of the balconies results in the enclosure of the balconies and the floor area of the enclosed balconies should be included in the FSR calculation. Glass louvres 26Three glass samples for the louvres were tendered as Exhibit D as follows: * Viridian VLam Clear 6.38 mm (clear) * Viridian ComfortSave Neutral 6 mm (light tint) * Viridian Vfloat Grey 6 mm (dark tint) 27According to Mr Darroch, the samples are coated e-glass (glass with a low-emissivity (Low-E) coating) and the Viridian VLam Clear 6.38 mm glass will exclude 70% of the heat transference. 28The experts disagree whether the louvres will form the external wall of the dwelling. Mr Darroch says that the masonry form of the existing western elevation will be discernable through the glazing and Ms Lindeberg says that the proposed louvres will result in a two storey curtain wall appearance when viewed from the foreshore and Kogarah Bay. 29Ms Lindeberg agreed during cross examination that in her assessment of the modification application, she gave priority to considering the appearance of the glass louvres over any consideration of the potential benefits of the proposal in terms of ecologically sustainable development (ESD) principles. 30The experts agree that the more transparent glass sample (Viridian VLam Clear 6.38 mm) will allow the masonry structure to be seen behind the louvres. Mr Darroch says that the glazing should be selected on the basis of its performance in terms of reducing heat gain, however he agrees that the sample with a lighter tint (Viridian ComfortSave Neutral 6 mm) would be a suitable compromise between transparency and solar control. 31Ms Lindeberg agrees that the original development application proposal for glass louvres within an aluminium bi-fold frame (which was deleted by the Council in the granting of development consent) is preferable to the modification application for fixed panels of louvres, as the modification application will enclose the balconies and blinds or curtains could be installed behind the louvres, further compromising the transparency of the proposal. A bi-fold frame means that the shading device can be in the open position when not required for solar control, allowing the balcony to be read as an external space. External wall positions of bedroom 1 32According to Mr Darroch, the approved position of the northern and southern walls of bedroom 1 will require substantial structural members to support the masonry walls, as they are not located over walls below. Mr Darroch says that blind windows could be introduced to articulate the southern wall of bedroom 1. 33According to Ms Lindeberg, the proposed position of the southern wall of bedroom 1 results in a southern elevation with an extensive area of unarticulated flat masonry surface. The approved development enables articulated to the western elevation, improving the visual impact of the proposal when viewed from Kogarah Bay. Ms Lindeberg agrees that the proposed position of the southern wall of bedroom 1 has no impact on the amenity of its neighbour, no. 59 Vista Street. Findings Glass louvres 34I appreciate that a proposal that effectively reduces the significant heat gain from the western orientation of the dwelling is a priority for the applicant and ESD principles should be given significant weight in the assessment of this application. I understand that reliance on air-conditioning to provide a comfortable internal temperature during summer is neither desirable, nor sustainable. 35I disagree with Ms Lindeberg that the louvres will appear as a 'curtain glass wall'. Glass louvres have a distinctly different appearance to curtain glass walls. They provide a textured, transparent appearance, as they can be placed in a semi-open position. 36I agree with Ms Lindeberg that the development application proposal for glass louvres within an aluminium bi-fold frame is a preferable solution to the modification application for fixed panels of louvres. The fixed panels will interrupt the view of Kogarah Bay from the dwelling at all times, whereas the bi-fold panels allow the sun shading device to be in an open position when not required and the applicant will be able to enjoy an unimpeded view of the bay from their bedroom and living areas. When the panels are in the open position, the balconies will appear as external balconies. 37I find that the panels of glass louvres on the ground and lower ground western elevations will have an acceptable appearance when viewed from Kogarah Bay (assuming the reflectivity of the selected glazing product is acceptable). I have given significant weight to the purpose of the proposal to act as a sun-shading device in order to lessen the heat gain from the western orientation of the dwelling during the summer months. In my opinion, if the glazing is transparent, the balconies will continue to appear as external areas and the masonry façade of the western elevation will be discernable through the glazed panels, both through the glass when the louvres are closed and between the open louvres. 38While the issue of flyscreens was not raised during the hearing, Ms Lindeberg did raise the issue of curtains or blinds being installed behind the glass louvres and that this would result in the appearance of the balconies being enclosed. The installation of flyscreens, blinds or curtains within the louvre panels would contribute to the proposal appearing less transparent. Therefore flyscreens, if desired, should be located within the external openings of the masonry façade. 39In my opinion, it would be acceptable for the proposal to provide a planning precedent for sun shading of western verandahs and balconies of dwellings along the foreshore, if it is an effective solution. I disagree with the Council that the cumulative impact of glass louvres as a shading device for western balconies along the foreshore would be unacceptable. As each development application must be assessed with reference to the relevant development standards and the merits of the individual application, I have given no weight to a consideration of the cumulative effect of glass louvres as a shading device along the foreshore. 40As the primary purpose of the glass louvres in this application is to act as a sun-shading device, glazing with a low solar heat gain coefficient (SHGC) should be used. SHGC is a measure of the proportion of total solar radiation transferred through the glass and the value ranges from 0 to 1. The lower the value, the better, as the solar gain is less. The visible light reflection is expressed as a percentage of normally incident visible light and solar energy reflected towards the exterior. Glazing products with the lowest SHGC values have the highest visible reflection. Therefore the SHGC value must be balanced against the visible light reflection of the glazing, in order to optimise the solar control, while also ensuring that the external reflectivity remains acceptable. 41Tinting or toned glass was the traditional way to control solar heat gain, however it absorbs solar heat and re-radiates some of that heat into the dwelling. It also reduces the amount of natural daylight entering at all times. I agree with Council that the glazing should be transparent, with a light tint to control the glare from the water's reflection if required, in order to allow for views through the louvres to the masonry external wall of the dwelling, so that the balconies continue to appear as external spaces. External wall positions of bedroom 1 42The Council agrees that the proposed position of the northern wall of bedroom 1 is acceptable. 43I accept the evidence of both experts and the neighbour at 59 Vista Street that the proposed position of the southern external wall of bedroom 1 on the first floor will have no impact on the amenity of the neighbour at 59 Vista Street. 44The proposed position of the southern wall will have no impact on the appearance of the dwelling from Kogarah Bay. The proposal is compatible with the scale and proportions of the neighbouring dwellings. The first floor has a smaller footprint than the lower levels, which provides for the overall articulation of the dwelling. I find that the proposed position of the southern wall is acceptable and nothing was gained by moving it 1.5 m to the north during the development assessment process. 45In my opinion, the proposed blind windows in the southern elevation are neither beneficial nor necessary. Interim findings - amended plans 46Interim findings were handed down on 8 August 2012 that required amended architectural plans and agreed conditions, as follows: * The plans are to show the ground floor and lower ground floor balconies western elevation and return bay either end with a glass louvre system within an aluminium bi-fold frame; * The glazing to be used is to be specified on the drawings and a sample of the proposed glazing, with a specification sheet from the manufacturer indicating the SHGC and visible light reflection (outwards) is to be provided; and * A condition is to be included to prevent curtains, internal blinds or flyscreens being installed within or behind the aluminium bi-fold panels. 47The hearing was re-listed before me on 15 August 2012 and Mr Sonter, Solicitor on behalf of the applicant, provided a copy of an email from Viridian's Technical Specifications Manager stating that the only suitable and recommended glass for external window louvres is a toughened monolithic glass and that Viridian's 6mm ComfortSave Neutral Soltech (#2) is a suitable choice for the louvres. The applicant provided amended drawings with a note referring to the bi-fold external panels as follows: Viridian ComfortSave Neutral 6mm glass. Louvre system installed within aluminium bi fold frame. Finishes to be determined. 48According to Viridian's Technical Specifications Manager, the 6 mm ComfortSave Neutral glazing, specified on the architectural drawings, has a solar heat gain co-efficient of 0.53 and external reflectivity of 9%. 49I am satisfied that the selected glazing will successfully reduce the significant heat gain from the western orientation of the dwelling and that it is sufficiently transparent and has an acceptable external reflectivity. Orders 50The orders of the Court are: 1. The appeal is upheld. 2. Modification application no. 287/2011/2 for Viridian ComfortSave Neutral 6mm glass louvre bi-fold aluminium panels along the western elevation and return bays of the ground and first floor balconies and the first floor southern wall of bedroom 1, aligned with the southern elevation, is approved, subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 2 and 3, are returned. Susan O'Neill 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: 29 August 2012