Land and Environment Court New South Wales Medium Neutral Citation: Carnabuci v Waverley Council [2014] NSWLEC 1103 Hearing dates: 14 May 2014 Decision date: 15 May 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions; see paragraph [50] Catchwords: DEVELOPMENT APPLICATION: Additions and alterations; bulk and scale; impacts on solar access Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Ms Connie Carnabuci (Applicant) Waverley Council (Respondent) Representation: Applicant: Ms J McKelvey (Barrister) Respondent: Ms C Morton (Solicitor) Respondent: Sparke Helmore File Number(s): 10147 of 2014 Judgment 1COMMISSIONER: The applicant appeals Waverley Council's refusal of Development Application DA-469/2013 for alterations and additions to a recently approved but as yet unbuilt dwelling house at 4 Lola Road, Dover Heights. 2The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 3The applicant seeks consent for: * The extension of the southern timber-slatted privacy screen adjacent to the first floor level terrace adjoining the second study, from 1.6m to a height of 1.9m; and * The construction of a partial shading device and supporting structure for the first floor level terrace. The proposal and relevant background 4A more detailed history is provided in council's Statement of Facts and Contentions. In summary: * In May 2012, council granted consent for the erection of a new dwelling on the site (DA-543/2011). * In April 2013, council's Development Control Committee granted conditional consent to a new application for the demolition of the existing dwelling and erection of a new 2-storey dwelling with associated pool, garage and driveway (DA-560/2012). * Conditions were imposed to delete and or reduce elements on the rear southern side of the proposed dwelling. These conditions included deletion of a proposed roof structure over the first floor terrace off the second study. The replacement condition required a privacy screen of fixed obscure glass 1.8m high on the southern side of the terrace to assist with light penetration to the property located to the south. * In May 2013 the applicant lodged a s96 application to modify the consent by deleting those conditions. The Waverley Development Assessment Panel (WDAP) determined the modification application by deleting the proposed roof and replacing the privacy screen with timber slats to 1.6m. * In October 2013, the applicant submitted DA-469/2013, the subject of this appeal, for the works described in [3]. WDAP considered the applicant and refused it on a number of grounds including excessive bulk and scale, and extent of overshadowing. * The applicant filed the Class 1 application on 11 March 2014. 5The relevant component of the development approved by the s 96 modification application is the rear of the southern wing of the approved dwelling. The approved plans illustrate a first floor open terrace above the roof slab of the breakfast room and accessed from the second study. The approved terrace is bounded by timber slats on its northern, eastern and southern sides; the screen on the southern side extends to 1.6m. Apart from the floor, there are no significant masonry elements comprising the approved terrace. 6The proposal involves increasing the height of the southern screen to 1.9m. The timber, slatted screen comprises the southern façade of the eastern projection of the southern wing. The shade structure involves extending the ground floor masonry columns (approximately 1000mm wide x 350mm thick) to the full height of the dwelling roof and topping the eastern and northern sides with masonry beams or spandrels 450mm deep. There is no spandrel proposed on the southern façade. The roof of the terrace comprises a timber pergola. 7The 2013 development consent is yet to be commenced. The site and its locality 8The site is situated on the eastern side of Lola Road, Dover Heights, on top of steep sandstone coastal cliffs, and directly overlooks the Pacific Ocean. The rear of the boundary is irregular as it follows the edge of the cliff. 9There is a part 1, part 2 storey dwelling and a pool on the site. To the north is a two-storey dwelling (No. 2) with a rear first floor terrace and pool; to the south is a part1, part 2 storey dwelling (No. 6) with a pool at the rear. The locality is characterised by two-storey dwellings. 10The site is zoned R2 Low Density Residential in Waverley Local Environmental Plan 2012 (WLEP). The issues and the evidence 11The issues raised in council's contentions and particulars are: * Excessive bulk and scale resulting in unnecessary and unreasonable visual impacts when viewed from 6 Lola Road; * Breach of the rear building line controls in Waverley Development Control Plan 2012 (WDCP); and * Unacceptable shadowing impacts on the north facing bedroom window of 6 Lola Road. * The matters raised by the objectors are matters, which warrant refusal in the public interest. Objectors 12The hearing commenced on site as a mandatory conciliation between the parties under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As is usual in these matters, the Court and the parties heard from a number of local residents who had made written submissions opposing the development application. 13The owner of 2 Lola Road invited the parties onto his property to view what he contends will be unreasonable impacts on his amenity as a result of the approved development. He maintains that the rear building line controls in WDCP have been breached in that the northern wing of the approved dwelling extends beyond the rear wall of his dwelling, the point at which he considers complies with the controls. To illustrate his contention, he installed two poles, one level with the rear wall of his dwelling, the other at the approved position level with the forward edge of his rear first floor terrace. His issues were bulk, scale, privacy and over-shadowing. 14While this is clearly a genuine and strongly held concern, it is not something I can consider as the northern element of the applicant's approved dwelling is not the subject of the development appeal currently before the Court. There would be limited impact on this property from the proposed development on the southern wing. 15A local resident, who is also an architect, voiced similar concerns about the need to work within council's development controls. 16No 6 Lola Road is the property most affected by the proposal. The room most impacted is the main bedroom on the first floor. The north-facing window of this room looks directly onto the proposed terrace. The owners work from home and use a desk adjoining this window. The Court and the parties viewed the window. To assist the process, the applicant erected a scaffold with poles and platforms to illustrate the extent of the proposed terrace. A surveyor verified the heights and locations of poles and the platform. Vegetation prevented erection of the scaffold to southern setback however projections extending 700mm from the scaffold indicated the proposed location of the southern façade. 17The owners of No. 6 voiced their concerns that the approved dwelling has removed all but this portion of their northern sun and that the bulky nature of the proposal will further reduce sunlight to this window. They agree with a 1.6m height limit for the privacy screen as this will provide enough privacy for their needs but will enable solar access above the screen. They accept that they will have to close the blind if they need privacy when anyone is on the terrace. They stated that a less bulky shade structure could have been designed. They consider the proposal exacerbates their considerable loss of northern sunlight and is unreasonable in the circumstances. 18During the conciliation process, the parties discussed a number of alternative designs and options, however, as there was no agreement, the conciliation was terminated in accordance with s 34AA(2)(b) of the Court Act. The hearing was held on site. Planning evidence 19The Court was assisted by the parties' planners, Mr Andrew Darroch for the applicant, and Ms Kerry Gordon, council's planning consultant. The applicant's architect, Mr Jake Eaton, was also present. 20Mr Darroch and Ms Gordon prepared a joint report in which there was no agreement on any point. 21In regards to the applicant's proposal concerning the privacy screen, Mr Darroch stated that while 1.6m may be appropriate in some situations, in the particular circumstances of this site, it would be possible for anyone of above average height standing on the terrace to look over the screen directly into the neighbours' bedroom and bathroom. This would be very uncomfortable for his clients. While the neighbours said they did not have a problem with that height, as an approval runs with the land, this may not be the case for future occupants of the neighbouring property. He maintains that a height of 1.9m is vital for good neighbourliness. Given the quality of the views from the terrace, he stated it would be used on a regular basis. 22The stated purpose of the shade structure is to comply with BASIX but also to provide a sense of enclosure and privacy for anyone on the terrace. Mr Darroch maintained that considerable architectural effort had gone into designing a shade structure that was integral to the design of the building but had only marginally more impact on the overshadowing of the dwelling to the south. In the joint statement he opined that deleting such a significant part of the building would compromise the functionality and aesthetic of the dwelling. In his opinion, deletion of the southern spandrel reduced the bulk and impact of the terrace on the adjoining property. 23Ms Gordon maintained her opinion that a 1.9m high privacy screen is excessive and that 1.6m would provide adequate privacy given that the terrace is off a study, not a living area, and people would be far more likely to look at the view of the ocean to the east. 24In Ms Gordon's opinion, the shade structure is excessively bulky and unnecessary. In her view the BASIX requirement could have been met by a much lighter structure. She maintains her position that the size and bulk of the structure unreasonably and additionally overshadows the neighbouring property. In addition she states that the extra overshadowing is a consequence of an unreasonable and unnecessary element which projects beyond the required rear building line. She relies on Part 1.8 WDCP that states that where a reduction of sunlight to a window is caused by a breach of setback controls, then any reduction in sunlight may be considered unreasonable. 25There was no agreement as to whether the approved dwelling constituted a breach of the rear building line. 26Mr Eaton prepared shadow diagrams illustrating the shadows cast onto the northern bedroom window of No. 6 by the various elements of the approved development as well as by the proposed shade structure and screen. The diagrams were prepared for the winter solstice. 27At 8am and 9am, the diagrams illustrating the proposed structure showed the masonry columns and spandrels shading most of the window, with some effect of the screen at 9am. At 10am and 11am the roof structure shades the lower third of the window. From about 12.30pm the window would be completely shaded by the approved building. The shadow diagrams for the approved structure show partial shading of the window by the 1.6m privacy screen between 8am and 10am. At 11am there is no shading and by 12noon the building is having an effect. 28In addition to the shadow diagrams, a computer model was used to view the impacts of the proposed structure on the northern bedroom window of No. 6 as well as the sunlight that would be available to other windows in that room - both east and west facing windows. The applicant's position is that while the northern window would be partly shaded, sunlight is available at other times of the day through the other windows. 29Ms McKelvey, counsel for the applicant, pressed the architectural merits of the design, the limited impact of the proposal on amenity, and the undesirability of someone being able to see into a neighbours bathroom and toilet. 30 Ms Morton questioned comments from Mr Darroch and Mr Eaton regarding the intended symmetry of the building. It was clear from the model and the plans that the eastern façade of the northern wing has masonry columns of about 350mm wide. She maintained councils concerns about excessive bulk and scale and overshadowing. Alternative options 31During the course of the hearing, several options were discussed. The computer model was useful in assessing the likely impact of a less bulky structure. The alternative options included the use of a retractable shade structure, changing the screen to opaque glass, replacing the timber pergola roof structure with wires on which a deciduous vine could be grown, and reducing the dimensions of the masonry elements including the columns and the spandrels. 32The parties were given an opportunity to consider these options on their own and jointly. 33The applicant's amended proposal is to: * Reduce the width of the southern column on the eastern façade of the southern wing from just over 1000mm to 350mm and retain a thickness of 350mm; * Reduce the width of the northern column on the eastern façade of the southern wing from just over 1000mm to 600mm and retain a thickness of 350mm; * Reduce the depth of the spandrels from 450mm to 300mm; * Replace the timber pergola roof structure with wires on which a deciduous vine will be grown from pots located behind the columns; and * Reduce the proposed height of the privacy screen to 1.75m if timber blades, or in the alternative, to 1.8m if the blades are replaced by opaque glass. 34The council agrees with all aspects of the alternative proposal except that the privacy screen should be opaque glass to a height of 1.7m. 35Therefore, the remaining differences between the parties are the type and height of the privacy screen on the southern side of the terrace. Findings 36With the benefit of the site view and the comparative shadow diagrams, I agree with the council and the owners of No 6 that the proposed shade structure exacerbates an already significant loss of sunlight to the north-facing windows of their dwelling. The bulk of the proposed shade structure would also be visually intrusive from the bedroom window in question and from the rear garden. It is clear from the model that the main contribution to shading arises from the dimensions of the masonry elements, especially the width of the columns and the depth of the spandrels. 37The computer model gave a good indication that reducing the dimensions of the columns and spandrels would substantially reduce the overshadowing and visual impact. I agree with the parties' alternative dimensions. Similarly, removing the timber pergola roof and replacing it with wires and a deciduous vine would provide more solar access and be less visually bulky. The placement of the wires is to be limited to the dimensions and location of the proposed timber pergola; that is, they are not to be moved closer to the south. 38Reducing these elements would also result in a lighter structure that would provide some privacy and enclosure for the applicants and would perhaps be more in line with the request from the owners of No 6 for a lighter, less intrusive structure. 39In regards to the privacy screen, I note that the original development consent in 2013 imposed a condition requiring an opaque glass privacy screen to 1.8m. Given the neighbours' concerns about sunlight, I propose to order the replacement of the timber slats with opaque glass, as this will allow more transmittance of light. While this will alter the architectural detail of the southern façade of the eastern extension of the southern wing, it will reduce the visual bulk of the dwelling when viewed from the neighbouring property to the south. 40In regards to the height of the screen, I consider 1.75m is reasonable. This is a compromise position between the parties that will limit overlooking into the neighbouring property. I also consider the likelihood of overlooking to be low given the location of the terrace and the other viewing locations within the approved dwelling and therefore its relatively low use, the expansive ocean views to the east, the direction from which the terrace is accessed and the proposed seating on the southern side of the terrace. An opaque glass screen should also provide the desired privacy and sense of enclosure. 41In regards to the contention regarding non-compliance with the rear building line, I agree with Mr Darroch that this does not appear to have been raised as an issue in any previous assessments/determinations. I also note that it was not raised by WDAP as a reason for their refusal of the current proposal. As the footprint of the ground floor is clearly approved, there does not appear to be any basis to support this contention in regards to the upper terrace or to warrant the refusal of the application on this basis. 42The public interest is one of the matters to be considered under s 79C(1) of the EPA Act. The scope of this appeal is limited to the south-eastern element of the approved dwelling. 43Two objectors raised concerns about compliance with council's controls. Apart from the matter Ms Gordon raises in regards to the rear building line, there is no question of non-compliance with other controls in WDCP. Indeed, the objectives of the solar access controls in cl 1.8 of the relevant part of WDCP are to minimise overshadowing of windows to internal living areas and private open space. While the window in question is a window of a bedroom, the merits of any further impact on sunlight to the dwelling at No 6 have been considered and the alternative proposal found to be reasonable. 44In my view, there is no new and unreasonable impact on the amenity of the owners of No 2 as a consequence of this proposal. The revised position will reduce the visual bulk of the southern wing when viewed from the rear garden of that property. 45Therefore, to the extent that the public interest is reflected by the concerns of objectors, there is nothing in the public interest to warrant the refusal of this proposal as amended. Conclusions and Directions 46After viewing the site, hearing from the neighbours, and considering the expert evidence and submissions, I propose to upheld the appeal and approve Development Application 469/2013 subject to conditions of consent that reflect the agreed amendments and the findings in this judgment. 47The parties are directed to: (1)Prepare agreed conditions of consent and to file them with the Court both in hard copy and electronically as a Word (*.doc) document by a date to be agreed. (2)The applicant is to prepare, file and serve amended plans showing the agreed changes by the same date. 48Final orders will be made in chambers. Final orders 49As the parties have complied with the directions and I am satisfied that the conditions of consent and amended plans reflect the findings in this judgment. 50The Orders of the Court are: (1) The appeal is upheld. (2) Development Application 469/2013 for alterations and additions to a recently approved but as yet unbuilt dwelling house at 4 Lola Road, Dover Heights (Lot 13 DP 10675) is approved subject to the conditions of consent and plans in Annexure A. (3)All exhibits except A, are returned. ______________________ Judy Fakes Commissioner of the Court Annexure A Site + Roof Plan Floor Plans Elevations + Sections Plan 1 Elevations + Sections Plan 2 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: 03 June 2014