Land and Environment Court New South Wales Medium Neutral Citation: Ziegler and anor v Waverley Council [2013] NSWLEC 1109 Hearing dates: 26 June 2013 Decision date: 27 June 2013 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld Catchwords: MODIFICATION: appeal against a condition of consent; impact on views and the public interest Legislation Cited: Environmental Planning & Assessment Act 1979 Land & Environment Court Act 1979 Waverley Local Environmental Plan 1996 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Miriam & David Ziegler (Applicants) Waverley Council (Respondent) Representation: Applicant: Ms M & Mr D Ziegler (Litigants in person) Respondent: Ms C Morton (Solicitor) Respondent: Sparke Helmore File Number(s): 10203 of 2013 Judgment 1COMMISSIONER: This is an appeal against the imposition of a condition of consent requiring a reduction in length of a proposed balcony at 38 Portland Street Dover Heights (the site). The appeal is made under s 97AA of the Environmental Planning & Assessment Act 1979 (the Act). 2In September 2012, Waverley Council approved a s96 Modification Application to modify Development Consent DA-402/2011 issued in December 2011 to carry out works described as: modification to internal layout, window changes, extensions to front balcony including pergola. 3The modification was approved in accordance with the submitted plans, a BASIX certificate, a Site Waste and Recycling Management Plan and Checklist, and the original conditions of consent, except as modified by Amended Condition 2 - General Modifications. This is the condition in contention; it states: 2. General Modifications To reduce the visual bulk related impact on the northern adjoining property and improve view sightlines towards the southwest, the proposed first floor balcony extension is to be reduced in length from 3860m [sic] to 2360mm so as to provide a 1500mm setback from the northern elevation of the building. 4Originally, the balcony was to be enclosed with horizontal louvres; this was deemed by council to be out of character with the surrounding buildings and the streetscape. The proposed changes to the balcony are the extension to the north of the existing first floor balcony for the full width of the first floor and the erection of glass balustrading. The louvres have been deleted. 5The applicants' position is that the proposed balcony extension does not increase the visual bulk of the site nor does it unreasonably impact on any view from the neighbouring property to the north. The applicants maintain that approval has been given to the pergola, the pergola is not mentioned in the condition in contention, and that the appeal therefore relates only to 1.5m of the proposed balcony. 6The council contends that the concerns of the owner of the neighbouring property to the north and unacceptable impacts on the streetscape should be considered as representing the public interest, an essential consideration under s 79C of the Act. The council accepts that while the pergola is not specifically mentioned, it is logical that the end of the balcony should be the end of the pergola. 7The council considers that the impact on the neighbouring property could be minimised by reducing the length of the proposed balcony by at least 1m, although 1.5m is the preferred reduction, or by introducing a splay at the northern end, consistent with the adjoining property. 8The matter commenced on site as a s 34AA mandatory conciliation under the Land & Environment Court Act 1979, however, as no agreement could be reached, the matter went immediately to a hearing. The site and its locality 9The site is Lot C DP 178750 or 38 Portland Street, Dover Heights. The site contains a three storey residential dwelling with garages on the lower ground floor. 10The dwellings to the north and south are three storey dwellings of similar size and bulk, all with front balconies and some with roof top terraces. 11The site faces west, overlooking a park and has panoramic harbour and city views. The assessment framework 12The site is zoned 2(a) Residential - low density under the Waverley Local Environmental Plan 1996 (WLEP). 13Waverly Development Control Plan 2010 applies, as do Draft Waverley WLEP 2011 and Draft WDCP 2011 [since gazetted as WLEP 2012 and WDCP 2012]. 14Section 79C(1)(e) of the Act requires a consent authority, in this case the Court, to take into consideration the public interest relevant to the development the subject of the development application. Objector evidence 15Both parties rely in part on the evidence from Mr Harvey, the owner of the adjoining property to the north (no. 36). Mr Harvey lodged a written objection with the council; the submission included a report from a Planning Consultant engaged by Mr Harvey. Mr Harvey made oral submissions at the hearing and the Court had the benefit of considering the potential impact of the proposal from Mr Harvey's property. 16Mr Harvey's written submission is that the proposed balcony is inconsistent with a number of relevant sections of the WLEP 1996 and WDCP 2010 including zone objectives, objectives specific to the Dover heights Residential Character Study, setback objectives, and streetscape and visual impact. 17At the site inspection, Mr Harvey stated that the proposed balcony and pergola would obstruct his standing views of the street to the south-west from the glass doors of his first floor study; a room from which he works. He is concerned that further applications for modifications may see more enclosure of the balcony thus further impacting on the amenity of his property. He cited the applicants' earlier development application that showed the proposed balcony screened with louvres. 18Mr Harvey stated that when he built his dwelling in 1991, he complied with the council controls on setbacks and splayed the northern and southern ends of his balcony in order to minimise the impacts on neighbouring properties. In his view, the extension of the pergola will extend beyond the line of adjoining balconies and thus disrupt the streetscape. He would be satisfied with either the setback required by the council or a splay similar to that on his own balcony. Planning evidence 19The parties' planners, Mr Moody for the applicants, and Mr Faruqi for council, prepared a joint report. The planners agree on the following issues: * An extension to the first floor balcony is reasonable but disagree as to whether there should be a setback at the northern end; and * There is no unreasonable loss of views or aspect from the adjoining property to the north (Mr Harvey's property). 20The planners address a number of contentions prepared by Mr Faruqi, a council Senior Planner. Apart from the areas of agreement noted above, the planners disagree on each of the four contentions. The contentions addressed are: * Visual bulk when viewed from no. 36 as the balcony projects eastward approximately 300-400 mm when compared with those on nos 34 and 36; * Visual bulk when viewed from the street; particularly as a consequence of the pergola; * Privacy impacts on no. 36 by providing a direct sight line into the study; and * No side setback proposed from the external building alignment to minimise overlooking and visual bulk impact on no 36. 21In essence, Mr Faruqi considers that as the first floor building line of the site extends further than that of no. 36, the proposed balcony extension and pergola will further disrupt the front building line and result in additional bulk when seen from no. 36 and from the street and is likely to set an undesirable precedent. In his view it does not meet objective (a) in cl 5.6 of WDCP 2010 - Privacy and Noise Controls, or the setback controls in cl 5.3.1(a) - that is to minimise the extent of overlooking to internal areas and open spaces of other dwellings and to establish setbacks that allow adequate privacy and minimise visual and other bulk-related impacts. 22Mr Faruqi maintains council's position that the balcony (and pergola) should be reduced by at least 1m at the northern end or splayed to the same extent. 23Mr Moody provides a detailed opinion as to why the proposed extension of the balcony has no adverse impact on Mr Harvey's property. He cites the reports of both council's assessment officer, Mr Connor, and council's Development and Building Unit (DBU - which he says included Mr Faruqi). The assessment officer concluded that there would be no adverse visual impact on no. 36 or the public domain or the streetscape; he also considered the proposal unlikely to impact on the visual and acoustic privacy of surrounding dwellings. While he notes that while the DBU report concluded there would be an adverse visual impact from no. 36, it raised no objections on the issue of streetscape or privacy impact on no. 36. In essence, Mr Moody agrees with the assessing officer's conclusions that the s 96 modification application be approved 24Mr Moody opines that the pergola cannot be considered as it is approved in its proposed form and extent - that is to the full width of the first floor. Notwithstanding this opinion he cites the DBU's report which states that 'The proposed pergola is a light weight structure and is not considered to be excessively bulky to warrant refusal.' Submissions 25The applicants contend that there is no proper basis for the imposition of the condition in contention. In regards to view loss they cite the agreed position of the planners. 26With respect to the issue of 'visual bulk impact', the applicants rely on the evidence of their planner, Mr Moody as well as the findings of Mr Connor, the council officer who assessed the s96 modification application to which this appeal relates. Specifically they refer to the following parts Mr Connor's report of August 2012 [summarised]: * The proposal is unlikely to result in unreasonable environmental impacts and therefore is considered to satisfy clauses 21-26 of WLEP 1996; * The modified balcony is generally open in design and retains the existing front building line. Accordingly the proposed modification is considered acceptable with regards to the established front building line and consistent with the streetscape (WDCP 2010 - Setbacks - Front established building line and Dover Heights Character Study Area and Streetscape); and * The proposed balcony modification is considered unlikely to impact on the visual and acoustic privacy of surrounding residential allotments, especially as it is located off a bedroom, which is considered a low intensity use. 27The applicants contend that the consequence of these findings in the council officer's report is that there is no unacceptable impact of visual bulk arising from the proposed extension of the balcony. 28In regards to Mr Faruqi's contention regarding privacy/ overlooking, the applicants submit that this was not a matter raised by Mr Harvey, and in any event, the removal of the existing first floor north-facing window that overlooks Mr Harvey's balcony (as approved in Development Consent DA-402/2011) results in improved privacy for Mr Harvey. 29The applicants maintain that the balcony extension, and the approved pergola, will improve the amenity of their property by providing shade and solar protection for their first floor west-facing rooms. 30The council raises no further submissions other than reiterating its position that the impact on the streetscape and on Mr Harvey's property that relate to a sense of enclosure, loss of views and loss of privacy, warrant considering the public interest. The council maintains its position that the extent of the balcony and the pergola should be limited to a minimum 1m setback from the northern corner of the applicants' dwelling. Consideration The pergola 31The parties differ in their opinions as to whether or not the condition of consent in contention should include the pergola. 32While I appreciate the council's submission that it should follow that the pergola is included because the corner post rests on the edge of the balcony, in my view, a condition should be clearly written and should not introduce a level of uncertainty. 33While I accept that the length of '3860m' as written in the condition is a typographical error, and should read '3860mm', the word 'pergola' does not appear in the condition. I note that the pergola is referred to as a separate component of the development in both Mr Connor's report and that of the DBU. In my view it would have been easy for whoever drafted the condition to add the words "and the associated portion of the pergola" after the words "the proposed first floor balcony extension". However, no reference is made to the pergola. Therefore I have considered the condition as referring only to the extension of the balcony. Views/ sight lines 34Having had the benefit of standing in Mr Harvey's study, and on his first floor balcony, I agree with the planners that there is no unreasonable loss of views from this property. 35In their application, the applicants cite the Planning Principle on 'view sharing: the impact on neighbours' published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 at [25] - [29]. I have applied the four-step assessment process to the impact of the proposed balcony on Mr Harvey's study and associated balcony. Assessment of the views to be affected 36The contested portion of the potential view from Mr Harvey's study is an oblique view to the south-west of the dwellings on the other side of the street and that portion of the streetscape. The dominant view from Mr Harvey's study and balcony is a panoramic view, across a park, of Sydney Harbour including the Harbour Bridge and the CBD - an iconic view. This panoramic view is in no way obstructed by the proposal. From what part of the property are the views obtained 37The view in dispute is a view across a side boundary, obtained only from a standing or sitting position close to the glass doors of the study. The view to the front of the property is unaffected. The extent of the impact 38While I accept that Mr Harvey spends a great deal of time in his study, this is not the principal living area of the dwelling. As stated above, the dominant view to the west from the study, the associated first floor balcony and from the ground floor living room, is unaffected. Quantitatively and qualitatively, the potential loss of the view of the streetscape is negligible and there is no qualitative or quantitative loss of the dominant iconic view. The reasonableness of the proposal 39The proposed extension of the existing balcony to the north is a modest development and not unreasonable in the circumstances. The use of glass balustrading will enable views through and across the northernmost corner of it from Mr Harvey's property. While there appears to be a minor numerical non-compliance with the area of the balcony, the survey plan tendered by the applicants shows that the outer edge of the balcony is consistent with the projection of the balconies on the adjoining properties to the north and south. Conclusion - impact on sightlines/ views 40I agree with the planners that the proposed balcony extension will have a negligible impact on sightlines from the adjoining property to the north. I accept the applicants' submission that there is no proper basis for the imposition of the condition of consent on the basis of impact on sightlines. Visual bulk impact 41On the evidence, I am not satisfied that the proposed extension of the balcony will have an unacceptable visual bulk impact on the adjoining property to the north. As stated above, the balcony extends no further forwards than the balconies of the adjoining properties and the glass balustrading will lesson the potential bulk of the structure. 42Considering the issues discussed in the planners' report in regards to the impact on the streetscape and views to it from the public domain, I prefer Mr Moody's position. I agree with Mr Connor's statement that the "balcony is generally open in design and retains the existing front building line". Most of the nearby dwellings have balconies across the full extent of the dwelling and therefore, I do not consider the proposal to be out of character with the established streetscape. Similarly I find that the proposal will have a negligible impact on visual bulk in terms of the overall dwelling and any adjoining properties. The public interest 43Considered objectively, I do not accept that the condition should be imposed "in the public interest" as contended by council. Mr Harvey was the only objector to the proposal and his objection largely concerned the impacts on the amenity of his property. While he did raise concerns about the impact of the proposal on the streetscape, the condition as written refers only to lessening the impacts on his property, it does not require the balcony to be reduced in length because of an unacceptable impact on the public domain or anything else that could be construed as having a broader public interest. Mr Connor assesses the proposal against the requisite matters in s 79C and finds it acceptable. The DBU report makes no finding in regards to the public interest. 44To the extent that the public interest may be represented by the zone objectives in the WLEP 1996, I find that the proposal does not offend any of the objectives. Conclusions and orders 45After considering the evidence, submissions and the matters for consideration under s 79C of the Act, the Orders of the Court are: (1)Appeal 10203 of 2013 is upheld. (2)Amended Condition - General Modification in section (a)(2) of Waverley Council's Notice of Determination of Modification of Development Consent DA-402/2011/A - 38 Portland Street, Dover Heights, dated 21 September 2012 is deleted. (3)The exhibits are returned. ___________________________ Judy Fakes 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: 27 June 2013