Land and Environment Court New South Wales Medium Neutral Citation: Geoform Design Architects Pty Ltd v Woollahra Municipal Council [2012] NSWLEC 1278 Hearing dates: 5 October 2012 Decision date: 10 October 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No 12/0132 for a rooftop terrace and stair access is refused consent. 3. The exhibits, except for exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION - rooftop terrace, SEPP 1 objection to maximum building height development standard, impact on visual privacy and views of neighbours Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environment Plan 1995 Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444 Project Venture Development v Pittwater Council [2005] NSWLEC 191 Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: Geoform Design Architects Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Mr Gary Green (Solicitor) (Applicant) Mr Stephen Patterson (Solicitor) (Respondent) Solicitors Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10737 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No 12/0132 (the application) by Woollahra Council (the Council) to construct a stair access and roof terrace, at 8A Ginahgulla Road, Bellevue Hill (the site). 2The appeal was subject to mandatory conciliation on 4 October 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 s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) of the LEC Act. Issues 3Council's contentions in the matter can be summarised as: * The proposal would result in an unacceptably high building; * The proposal would have unacceptable visual privacy impacts on the interior and exterior living areas of neighbouring dwellings; and * The proposal would result in unacceptable impacts on neighbours' harbour views. The site and its context 4The site is located on the northern side of Ginahgulla Road on a battleaxe allotment with a shared access handle to Ginahgulla Road, to the west of 10 Ginahgulla Road. The site contains a three storey dwelling. The roof of the dwelling consists of a concrete slab concealed by parapet walls. The site is irregular in shape and has an area of 1624 m2. 510 Ginahgulla Road adjoins the southern boundary of the site and 12 Ginahgulla Road adjoins the eastern boundary of the site, both contain two storey dwellings fronting Ginahgulla Road. Background and the proposal 6DA 278/2010/1 was approved on 1 November 2010 for alterations and additions to the dwelling at 8A Ginahgulla Road, which includes construction of a new skylight structure on the roof to replace the existing skylight. The alterations and additions are currently under construction. 7The proposal is to extend the existing internal stair to the roof, housed within a glass clad stair enclosure, which will be 1550 mm above the top of the parapet (RL75.09) and to provide a 30 m2 timber deck area on the northern side of the roof with stepping stones, a shallow water feature and handrails. The remainder of the roof slab is to be finished with a layer of pebbles. 8The proposal was amended during the s 34 conciliation conference to reduce the height of the glass clad stair enclosure by 300 mm and to clad the enclosure in obscure glass. These amendments were by way of condition in the applicant's version of the conditions of consent (exhibit E). 9The Council's version of the (without prejudice) conditions of consent, include, at condition C1, a requirement for the glass stair enclosure to be deleted and replaced by an external stair access and for screens to be placed around the southern and eastern edge of the timber deck area. 10The applicant's version of the conditions includes a first and second preference for condition C1, as follows: * The plans are to be amended such that the overall height of the glass staircase enclosure is lowered by 300 mm to a maximum RL of 75.090. A minimum 900 mm wide planter box shall be constructed along the southern edge of the roof, 6 m in length, running from the eastern edge of the staircase enclosure in an easterly direction. Planting to a height of 1.5 m shall be provided and maintained within this planter box; or * The plans are to be amended such that the glass staircase enclosure is to be removed and replaced by an open stairwell access in the location currently proposed. A minimum 900 mm wide planter box shall be constructed along the southern edge of the roof, 10 m in length running from the western edge of the open staircase in an easterly direction. Planting to a height of 1.5 m shall be provided and maintained within this planter box. Planning Framework 11The site is zoned Residential 2(a) pursuant to the provisions of the Woollahra Local Environment Plan 1995 (LEP 1995). The proposal is permissible with consent. 12The objectives of the Residential 2(a) zone include, at cl 3(a): To maintain the amenity and existing characteristics of areas predominately characterised by dwelling-houses. 13The Woollahra LEP 1995 height map specifies a maximum height of 9.5 m for the site. 14In relation to the height of building, cl 12 of LEP 1995 states: (1) A building shall not be erected on land within a height zone to a height greater than the maximum height shown on the height map as applicable to land within that height zone. 15The objectives of the maximum building height development standard, at cl 12AA of LEP 1995, include: (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings, 16The definition of height in LEP 1995, Schedule 1 Definitions, is: In relation to a building, means the greatest distance measured vertically from any point on the building to the existing ground level immediately below that point. 17The definition of existing ground level in LEP 1995, Schedule 1 Definitions, is: Means the surveyed level of the ground surface immediately prior to the proposed development and prior to any associated excavation, development or site works. 18The proposal is subject to the provisions of the Woollahra Residential Development Control Plan 2003 (DCP 2003). 19The objectives of DCP 2003 include, at cl 1.4: (c) to minimise the negative impacts of development on the amenity of adjoining and neighbouring properties. 20The site is within the Bellevue Hill North precinct. The Bellevue Hill North Street Section of DCP 2003, includes, at control 4.7.9.3 Building Heights - Storeys: Development is to have a maximum height of two storeys. Where the landform of a site falls more than two metres from the street to the rear of a property an additional basement storey may be permitted as long as all other RDCP controls are met. 21The Bellevue Hill North Street Section of DCP 2003, includes, at control 4.7.9.7 Roof Form: Roof forms are to be designed having consideration for neighbouring amenity, over-looking, streetscape suitability and to maintain views across the precinct. 22Section 5.2 'Building Size and Location' of DCP 2003 includes the following objective at O 5.2.2: To ensure the size and location of buildings allow for the sharing of views and preserve privacy and sunlight access for neighbouring residents. 23The floor space ratio (FSR) control for the site, at Figure 5.2.9 'Maximum floor space ratio for dwelling houses and dual occupancies' is 0.55:1. 24Section 5.5 of DCP 2003, Views, includes, at control 5.5.7: Awnings and coverings on roof terraces, if provided, must be within the applicable height control and other planning controls and must ensure the sharing of views. 25Section 5.8 of DCP 2003, Acoustic and Visual Privacy includes the following objective at O 5.8.2: To ensure adequate visual privacy for occupants and neighbours while balancing the need to provide for reasonable levels of environmental amenity, including access to sunlight and ventilation, and good architectural outcomes. 26Section 5.8 includes the following controls, at C 5.8.6 and C 5.8.9: Balconies, terraces, decks, roof terraces and other like areas within a development are suitably located and screened to prevent direct views into habitable rooms (including bedrooms) or private open space of the adjoining and adjacent dwelling (see Figure 5.8.4). The trafficable area of the roof terraces must be set back so that there is no direct line of sight to neighbouring open space or to the windows of the habitable rooms of adjoining dwellings within a distance of 12 m as measured form the external face of the building with the roof terrace to the external face of the adjoining building (see Figure 5.8.5). Public submissions 27The owner of 10 Ginahgulla Road provided evidence on site and the Court, in the company of the parties and their experts, viewed the site from the ground floor living areas, first floor bedrooms, rear yard and first floor terrace of 10 Ginahgulla Road. The dwelling at 10 Ginahgulla Road has the majority of its rooms, including all living areas, oriented to the north and opening onto outdoor terraces on both ground and first floor levels. Her objection to the proposal can be summarised as: * A direct line of sight exists between any user of the proposal and the living rooms, bedrooms and outdoor living areas including the pool area of 10 Ginahgulla Road which will significantly impact on the privacy enjoyed by the occupants of 10 Ginahgulla Road; * The addition of the glass structure over the stairs will impact on views of the heritage listed Norfolk Island Pine at 8A Ginahgulla Road from 10 Ginahgulla Road; and * The roof of 8A Ginahgulla is trafficable and the occupants will not be confined to the proposed timber deck area, but will be able to move around the roof. Expert evidence 28Expert planning evidence was provided by Mr Greg Boston on behalf of the applicant and Mr Neil Kennan on behalf of the Council. 29The existing dwelling has a FSR of 0.78 and the proposal will increase the FSR to 0.79:1. Does the proposal satisfy the objectives of the maximum building height development standard? 30The planning experts agree that the proposal breaches the development control for maximum building height in LEP 1995 as the original proposal is 12.5 m high. 31According to Mr Boston, the State Environment Planning Policy No 1 - Development Standards (SEPP 1) objection to the maximum building height control is well founded, as the proposal will not give rise to any unacceptable impacts on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the city skyline. The structure will be an element within the view line from the ground and first floor habitable areas of 10 Ginahgulla Road. 32According to Mr Kennan, the SEPP 1 objection is not well founded, because the proposal will result in significant impacts on the amenity of the adjoining residents, which are directly attributable to the non compliance of the proposal with the development standard, to the extent that the proposed development would not exist in harmony with the adjoining development (citing the planning principle in Project Venture Development v Pittwater Council [2005] NSWLEC 191 para 22). Mr Kennan says that the impacts on the adjoining residents do not arise from a necessary or reasonable development. Privacy 33According to Mr Boston, the proposal maintains appropriate visual privacy for the adjoining dwellings for the following reasons: * The separation between the proposed roof terrace and living areas of neighbouring dwellings is greater than 12 m; * The deck proposed is small and it is positioned on the northern side of the roof; * The use of the roof terrace as a living area is to be a tertiary outdoor living area; the primary area being the ground floor private open space terrace accessed from the living areas and the secondary outdoor living area being the first floor balcony; and * There is existing planting adjacent to the shared boundary with 10 Ginahgulla Road, which screens views from the roof terrace. 34Mr Boston says the applicant would be prepared to provide privacy screens or planting to ensure privacy between the dwellings, however in Mr Boston's opinion, no further privacy measures are necessary given the spatial separation between the proposal and the living areas of the adjoining dwellings. 35According to Mr Kennan, the proposal would unreasonably impact on the internal privacy of dwellings in the vicinity of the site. Mr Kennan agrees with Mr Boston that the proposal provides a greater separation than 12 m from the living areas of 10 Ginahgulla Road, however notwithstanding this, it will be possible to see into the habitable rooms and outdoor areas of 10 Ginahgulla Road from the roof terrace. Views 36The planning experts agree that there are no unacceptable view loss impacts on existing views of Sydney Harbour, ridgelines; public and private open spaces and views of the Sydney City skyline. Findings SEPP 1 objection to the height development standard 37There was agreement that the proposed development breaches the development control in LEP 1995 for maximum building height and the applicant submitted a SEPP 1 objection to the development standard. 38If the SEPP 1 objection to the development standard is not well founded, then the application must be refused. The most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, as found in the judgment of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe), set out at para 42. The Court must be satisfied of three matters before it can uphold a SEPP 1 objection and then consider the merits of the application. The matters are: * The Court must be satisfied that the objection is well founded (cl 7 of SEPP 1); * The Court must be of the opinion that granting consent to the development application is consistent with the aims and objectives of the SEPP 1 policy, as set out in cl 3 (cl 7 of SEPP 1). These are to provide flexibility in the application of planning controls, operating by virtue of development standards, in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Act. The objects in s 5 (a) (i) and (ii) are to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, * The Court must be satisfied that a consideration of the matters in cll 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection. These are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument. 39The SEPP 1 objection prepared by Mr Boston addresses the objectives of the maximum building height development standard and the matters in cl 12AA of LEP 1995. The SEPP 1 objection can be summarised as follows: * The proposal will not give rise to any unacceptable impact on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline; * The height, bulk and scale of the proposed development is consistent with that established by adjoining development; * There is adequate spatial separation between the proposal and the habitable areas of neighbouring dwellings; * The stated objectives of the standard are achieved and accordingly strict compliance is both unreasonable and unnecessary. 40The relevant objectives for the maximum building height control, at cl 12AA of LEP 1995, are: (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline (b) to provide compatibility with the adjoining residential neighbourhood (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings 41In summary, the relevant objectives for the maximum building height development standard are to ensure that development is compatible with the residential neighbourhood and does not unreasonably impact on the visual privacy of neighbours or on the iconic and scenic views enjoyed from neighbouring dwellings. 42For reasons set out later in the judgment, I am not satisfied that when tested against the relevant objectives, the breach of the maximum building height development standards is consistent with the aims of SEPP 1, because: * The proposal will impact on existing views of Sydney Harbour; * The proposal is not compatible with the adjoining residential development; * The proposal does not safeguard the visual privacy of interior and exterior living areas of neighbouring dwellings. 43In reaching my conclusion, I have considered the merits of the application because it is necessary to do so in order to evaluate whether the proposal is consistent with the objectives of the development standard for maximum building height. Visual privacy of neighbouring dwellings 44Ginahgulla Road runs across the knoll at the northern end of the Bellevue Hill ridgeline. The knoll falls to the north, east and west towards the harbour (Double Bay to the north-west and Rose Bay to the north-east), providing the majority of dwellings within the Ginahgulla Road and Victoria Road precinct with harbour views. The dwellings on the northern side of Ginahgulla Road orientate to the north and development to the north of these properties generally steps down the hill in response to the topography. 458A Ginahgulla Road is to the north of 10 Ginahgulla Road and to the west of the rear garden of 12 Ginahgulla Road. There is a fall to the north of roughly 7 m, from 10 Ginahgulla Road to 8A Ginahgulla Road. The form of 8A Ginahgulla Road, box-like with a flat roof concealed by a parapet and dug into the hill at the rear, suggests that the 1970s design was a response to maintaining the harbour views of the historic dwellings fronting Ginahgulla Road, while still achieving a substantial dwelling over three levels. The dwelling is positioned on the southern part of the site, with the external living areas and garden located to the north and north-west, to take advantage of the stunning harbour views to the north west and the ideal northern aspect. The original form of the dwelling was a thoughtful response to the opportunities and constraints of the site and a decorous addition to an established neighbourhood. 46The proposal will result in the occupants of 8A Ginahgulla Road being able to access their flat roof area and in the absence of any screening devices, there is a direct sight line from the roof area to the exterior and interior living areas of 10 and 12 Ginahgulla Road and the exterior living areas of Rona, 51 Fairfax Road to the north-west. 47The planning experts agree that the separation between the proposed roof terrace and the external face of 10 Ginahgulla Road is 35 m, in excess of the 12 m required by control 5.8.9 of DCP 2003. However, according to Mr Kennan, the impact of the proposal on the visual privacy of 10 Ginahgulla Road is directly attributable to the non-compliance of the proposal with the maximum building height development standard, in other words, it is the height of the roof terrace that creates the amenity impact, as someone on the roof terrace can look down and over the pool terrace and garden of 10 Ginahgulla Road and into the rooms facing the northern facade. I agree with Mr Kennan and his opinion is verified by the fact that the existing southern terrace on the first floor 8A Ginahgulla Road does not unduly compromise the visual privacy of 10 Ginahgulla Road, primarily because the southern terrace is at a similar height to the pool terrace at the rear of 10 Ginahgulla Road and so someone standing on the first floor terrace can only look across to the pool terrace and their eye level is below the garden level of 10 Ginahgulla Road. The existing mature vegetation along the northern boundary of 10 Ginahgulla Road screens views between the pool terrace and the southern terrace of 8A Ginahgulla Road. 48Mr Green submits that the existing vegetation along the northern boundary of 10 Ginahgulla Road, which shows evidence of having been pruned, could be allowed to grow to a height to conceal the proposal. It is, however, a generally accepted principle of planning that the mitigation of any impacts of a proposal should be accommodated on the site of the development. The vegetation on the northern boundary of 10 Ginahgulla Road has been pruned at a similar height to the parapet to conceal the southern elevation of 8A Ginahgulla Road, when viewed from 10 Ginahgulla Road, while allowing for district views and presumably so that the vegetation does not obscure views from 12 Ginahgulla Road. 49Mr Kennan refers to the Pafburn planning principle (Pafburn v North Sydney Council [2005] NSWLEC 444) in the planning experts joint statement. I agree with Mr Kennan that the second theme of the Pafburn planning principle is particularly relevant to this matter. The second theme states: 21 The second theme is that in assessing an impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal than adding a balcony to a dwelling that already has six balconies. 50Following the renovation of the existing dwelling, the occupants of 8A Ginahgulla Road will be able to enjoy views of Sydney Harbour from the ground floor, first floor, the outdoor ground floor terrace and the first floor balcony. The proposal will provide, according to Mr Boston, merely a 'tertiary' outdoor living area to be used infrequently for viewing fireworks. 51The second theme of the Pafburn planning principle contemplates the necessity and reasonableness of the proposal. As the existing dwelling provides ample opportunities to enjoy iconic views of Sydney Harbour, the proposal cannot be characterised as 'necessary'. Therefore a higher threshold is warranted when considering the magnitude of the impact of the proposal on the amenity of adjoining neighbours. 52In my opinion, roof top access at 8A Ginahgulla Road will significantly compromise the visual privacy of 10 and 12 Ginahgulla Road and neighbouring properties. Impact on views from neighbouring dwellings 53I accept the evidence of the expert planners that the original proposal has no unacceptable view loss impacts on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney city skyline and that the view towards the Norfolk Island Pine from 10 Ginahgulla Road will not be totally obstructed by the proposal. 54The Council's version of condition C1 includes a screen around the southern and eastern edge of the timber deck area, at a height such that those using the timber deck have no direct line of sight to any habitable room or private open space area of 10 or 12 Ginahgulla Road and the screen is to be constructed of material which will allow for the attachment of suitable vegetation. The applicant's versions of condition C1 both include the addition of a planter box with plantings 1.5 m high along the southern side of the roof area. 55While I accept that the introduction of screens or planter boxes will ameliorate the visual privacy impact of the proposal on its neighbours to the south and south-west, in my view, both screens and planter boxes will have a detrimental and unacceptable impact on district views from 10 Ginahgulla Road and the harbour views from 12 Ginahgulla Road. Conclusion 56Having regard to the objectives of the maximum building height development standard, the proposal is, in my opinion, not compatible with the adjoining residential neighbourhood. The proposed roof terrace will significantly compromise the visual privacy of interior and exterior living areas of 10 and 12 Ginahgulla Road and the exterior living areas of neighbouring properties. 57It follows that compliance with the maximum building height development standard is not unreasonable or unnecessary in this case and that the SEPP 1 objection is not well founded and the application should be refused. Orders 58The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No 12/0132 for a rooftop terrace and stair access is refused consent. 3.The exhibits, other than exhibits 1 and A, 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: 11 October 2012