Land and Environment Court New South Wales Medium Neutral Citation: Hain v Pittwater Council [2013] NSWLEC 1155 Hearing dates: 14 August 2013 Decision date: 16 August 2013 Before: Brown C Decision: 1. The appeal is upheld. 2. The modification application to delete condition B19 of Development Consent N0349/09 for the construction of a new dwelling with swimming pool at 75 Bungan Head Road, Newport is determined by the deletion of condition B19. 3. The exhibits are returned with the exception of exhibit A. Catchwords: MODIFICATION; whether condition requiring privacy screen justified - loss of privacy to adjoining property Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Pittwater 21 Development Control Plan Category: Principal judgment Parties: Paul Steven Hain (Applicant) Pittwater Council (Respondent) Representation: Mr A Pickles, barrister (Applicant) Ms M Carpenter, barrister (Respondent) Solicitors Beilby Poulden Costello Lawyers (Applicant) King & Wood Mallesons (Respondent) File Number(s): 10367 of 2013 Judgment 1COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) on 11 February 2013 of a s 96(1A) Modification Application (N0349/09/S96/3) for the deletion of condition B19 of Development Consent N0349/09 granted by the council on 6 November 2009 for the construction of a new dwelling with swimming pool at 75 Bungan Head Road, Newport (the site) 2Condition B19 reads as follows; A 1.7 metre high vertically fixed solid lowered privacy screen at a 45° angle in an easterly direction for a minimum length of 3.0 metres is to be provided along the northern end of the ground floor deck area (adjacent the ground floor living room). This is to prevent direct overlooking into the adjoining property at NO 77 Bungan Head Road. In this regard the privacy screen shall be permanent and fixed, constructed of solid translucent screens of perforated panels or trellises which have a maximum of 25% openings, made of durable materials and designed and painted (sic) or coloured to blend with the house. 3The council contends that the modification application should be refused because the proposed modification results in an unacceptable loss of privacy to the adjoining residential property to the north at 77 Bungan Head Road, Newport. The councils principle position is that condition B19 should be retained however the council would accept a condition that requires a translucent film to be applied in rows to the first two panels of the 1.2 m high glass balustrade. 4The applicants principle position is that condition B19 should be deleted however they would accept a condition that requires a translucent film to be applied in rows to the first two panels of the glass balustrade up to height of 700 or 800 mm. 5The appeal was subject to mandatory conciliation and arbitration on 14 August 2013 under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 6The site is located to the north-east of Bungan Head Road and is accessed via a Council Reserve for access and drainage. It is rectangular in shape and has dimensions of 56.5m on the northern boundary, 20.1m on the western boundary, 53.0m on the southern boundary and 20.4m on the eastern boundary, resulting in a total area of 1112.7 sq m. There is a fall of approximately 9.75m from the upper south-west corner down to the lower north-east corner, with an average slope of approximately 16%. 7The site contains a multi-storey residential dwelling house, with an elevated driveway, double garage, hardstand parking area, and swimming pool. It adjoins a split-level residential dwelling to the north (77 Bungan Head Road, Newport) and a multi-storey residential dwelling to the south. Expansive views of the Pacific Ocean are available to the east from the site and adjoining and nearby dwellings. 8The relevant planning requirements to address the contention are found in Pittwater 21 Development Control Plan (the DCP) where C1.5 Visual Privacy states: Outcomes Habitable rooms and outdoor living areas of dwellings optimise visual privacy through good design. (S) A sense of territory and safety is provided for residents. (S) Controls Private open space, recreation areas including swimming pools and living rooms of proposed and any existing adjoining dwellings are to be protected from direct overlooking within 9m by building layout, landscaping, screening devices or greater spatial separation as shown in the diagram below (measured from a height of 1.7m above floor level). Elevated decks and pools, verandahs and balconies should incorporate privacy screens where necessary and should be located at the front or rear of the building Direct views from an upper level dwelling shall be designed to prevent overlooking of more than 50% of the private open space of a lower level dwelling directly below. 9Expert evidence was provided by Mr Andrew Darroch for the applicant and Ms Rebecca Englung for the applicant. 10Ms Englung states that the north-eastern corner windows associated with the ground floor living room are located within 9m of an area of private open space associated with the adjoining property to the north. These floor-to-ceiling windows provide an opportunity to overlook this area of private open space, resulting in unacceptable impacts upon the amenity of the neighbouring property. In her opinion, the screen will not unreasonably impact on the views enjoyed from the dwelling on the site. 11Mr Darroch states that there is a degree of overlooking from most properties in the area because of the desire to maximise the panoramic views of the ocean. As the dwelling has been constructed, it is clear that the only position in the dwelling that offers views into the adjoining property is in the north eastern corner of the living room however furniture restricts access to this area. A screen in the location suggested by the council will have a devastating effect on the views from the living area. While views to the ocean will still be available, the more interesting views north of the land/water interface, the headlands and rocks would be lost. 12The owner of 77 Bungan Head Road provided evidence on his property and opposed the modification because of the loss of privacy to an area of private open space near the common boundary with the site. The inspection of 77 Bungan Head Road revealed that the building is orientated to the north east and that there are a number of distinct areas that make up the private open space for the dwelling. These areas consist of a large paved covered area with table and chairs that directly adjoin the living area of the dwelling, a smaller paved, uncovered and stepped area contains a smaller table and chairs and adjoins the site (and is the area in contention) and a grassed area between the two paved areas that extends to the escarpment adjoining the ocean. 13In considering the evidence of Ms Englung and Mr Darroch, together with an inspection of the site and the adjoining property at 77 Bungan Head Road, I am satisfied that no screening is required on the balustrade for a number of reasons. First, the privacy of the area of private open space, in question, is largely unprotected from overlooking from the deck and its 1.2 m high clear glass balustrade. The deck has direct access from the living room of the dwelling. The deck area is not subject to condition B19 or any other condition to address any loss of privacy to the adjoining property. Second, the room layout does not reasonably or practically encourage people to view from the critical position in the north-east corner of the living room because of the likely placement of furniture in this location. Third, the location of the potential view impact is of the smaller of the two paved open space areas on the adjoining site. The other area is larger, adjoins the living area of the dwelling and provides weather protection although I accept that the evidence of the adjoining owner that the smaller area is used in optimal weather conditions. Fourth, there is a large amount of private open space in the adjoining property that is beyond the 9 m limit identified in the DCP. The larger covered private open space area is well beyond this distance and is not visible from any part of the dwelling on the site, including the deck. I also note that the distance from the north east corner of the dwelling on the site to the tables and chairs on the smaller paved area of open space is in excess of 12 m. Fifth, I am not satisfied that viewing down to the adjoining private open space area is likely to be a regular or consistent view from the site, given the expansive and panoramic views of the ocean and headlands that are available from the deck and from within the dwelling. Sixth, I agree with Mr Darroch that the potential loss of views created by the screen from within the dwelling is excessive and is disproportionate to the potential overlooking of the adjoining open space area as the more interesting views north of the land/water interface, the headlands and rocks would be lost. 14In relation to C1.5 Visual Privacy of the DCP, I am satisfied that given the particular circumstances of the case, as set out in the preceding paragraphs, that no screening is required to provide a reasonable level of protection from overlooking from the living room of the dwelling to the adjoining open space area on 77 Bungan Head Road. 15The orders of the Court are: 1. The appeal is upheld. 2. The modification application to delete condition B19 of Development Consent N0349/09 for the construction of a new dwelling with swimming pool at 75 Bungan Head Road, Newport is determined by the deletion of condition B19. 3. The exhibits are returned with the exception of exhibit A. _______________ G T Brown 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: 16 August 2013