Land and Environment Court New South Wales Medium Neutral Citation: Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129 Hearing dates: 4-5 April 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Modification Application No. DA 344/2014/A to add a roof top terrace to an approved three storey dwelling is approved, subject to the consolidated conditions of consent at Annexure "A". 3. The exhibits, other than exhibits 2 and F, are returned. Catchwords: MODIFICATION APPLICATION: consent orders; roof top terrace; impact on views and privacy; height. Cases Cited: Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Category: Principal judgment Parties: Alexakis Building Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: Ms J. Reid barrister (Applicant) Mr S. Patterson solicitor (Respondent) Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 11197 of 2015 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. DA-344/2014/A to modify development consent DA-344/2014 (approving the construction of a three storey dwelling over basement parking and granted on 14 January 2015) to add a roof top terrace and access stair under a sliding skylight (the proposal), at 11 Loombah Road, Dover Heights (the site) by Waverley Council (the Council). 2. The appeal was subject to mandatory conciliation on 4 April 2016 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. Following the commencement of the hearing, the applicant was granted leave by the Court to tender an amended proposal (exhibit F) and on the basis of the amendments made to the proposal, the Council agreed to enter into consent orders. Issues 1. The Council's contentions in the matter can be summarised as: * The proposal results in a development of excessive height; * Roof top terraces are uncharacteristic in the immediate vicinity of the site; * The size of the proposed roof top terrace is excessive; * The proposal results in unacceptable amenity impacts on neighbouring properties, including view and privacy impacts. 1. The Council submits that the amended proposal (exhibit F) adequately addresses the contentions. The site and its context 1. The site on the northern, inside corner of Loombah Road as it turns from a north-south direction to an east-west direction. The site is irregular in shape, with a wide V shaped front boundary of 12.8m to the south and 12.555m to the south-west. The site has an area of 380sqm. 2. The site falls from the rear towards the street by approximately 4.74m. The site is positioned high above North Bondi and enjoys extensive views over North Bondi as well as city skyline views to the west and north-west, including the Opera House and Harbour Bridge (from the upper levels) and Bondi Beach to the south. 3. 9 Loombah Road is to the east of the site and contains a three storey dwelling over a basement level that includes a garage fronting Loombah Road. The uppermost level of 9 Loombah Road is a pop up style room with a large roof terrace on the western side. There are two first floor balconies on the southern side of the dwelling from which the city skyline, including the Opera House and Harbour Bridge, can be seen from a standing position, across the top of the existing flat roof of 11 Loombah Road. 4. 108 Military Road is to the north of the site and is separated from the site by the rear yard of 15 Loombah Road. 108 Military Road contains a two storey dwelling over a basement garage. The dwelling is positioned to the rear of the site in contrast to the dwellings on either side, so that views of the city skyline, including the Opera House and Harbour Bridge, can be seen to the west, across the rear yard of 110 Military Road. 108 Military Road also has views to the south, from the upper level, towards Bondi Beach, across the existing flat roof of 11 Loombah Road. Background and the proposal 1. The amended proposal (exhibit F) is to extend the approved internal stair to access the approved flat roof, with a sliding skylight access over the stair at a maximum height of RL76.25 (300mm above the parapet), to access a 15sqm trafficable roof terrace enclosed within a 1m high glass balustrade (maximum height of RL76.95). Resident evidence 1. Two objectors provided evidence on site and the Court, in the company of the parties and their experts, viewed the site from 9 Loombah Road and 108 Military Road. In addition, the written submissions of seven resident objectors were tendered (Exhibit 1, tab 5). 2. A planner representing the owner of 9 Loombah Road objects to the proposal as it will obstruct views of the city skyline, including the Opera House and Harbour Bridge, when viewed from the first floor balconies on the southern side of the dwelling. 3. The owners of 108 Military Road object to the proposal as it will further obstruct their views towards Bondi Beach to the south and impinge on their visual and acoustic privacy, as someone on the proposed roof top terrace will be able to look into the main bedroom, ensuite and bedroom windows on the first floor southern elevation. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to Waverley Local Environment Plan 2012 (LEP 2012). 2. The maximum building height development standard for the site is 8.5m (Height of Buildings Map Sheet HOB_003 LEP 2012). The relevant objectives for the height of buildings at cl 4.3 of LEP 2012 are: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties, (d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space. 1. The dictionary of LEP 2012 includes the following relevant definitions: basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing). ground level (existing) means the existing level of a site at any point. 1. The provisions of Waverley Development Control Plan 2012 (Amendment 3) (DCP 2012 Am 3) are a relevant consideration. The current Waverley Development Control Plan 2012 (Amendment 4) (DCP 2012 Am 4), which commenced on 13 January 2016, includes a savings provision at section 1.6 requiring the modification application to be determined as if the current DCP 2012 had not commenced. 2. Part C section 1.1 Height of DCP 2012 Am 3 relevantly includes the following text in relation to the height of buildings and a control at 1.1.1(a) that building with a flat roof are to have an overall building height of 7.5m: Flat roof dwelling houses can potentially have a greater impact on neighbouring properties than pitched roof dwelling designs. As such, the proposed height of a flat roof dwelling must not preclude the achievement of standards relating to overshadowing, building orientation topography, privacy and views as specified elsewhere in this DCP. 1. The objectives for section 1.1 include, at (c), To ensure the height and scale of development does not unreasonably impact on views enjoyed by neighbouring and nearby properties. 2. Section 1.7 Visual and Acoustic Privacy of DCP 2012 Am 3 includes the following text: Roof terraces are generally discouraged however there may be instances where a small roof terrace may be appropriate. Where a roof terrace is proposed the application must have regard for the and and Environment Court "Super Studio" Planning Principle. 1. Control 1.7(d) of DCP 2012 Am 3 includes that roof tops are to be non-trafficable and not capable of being used as roof terraces or as entertainment areas, except in circumstances where the predominant residential character in the vicinity of the site includes roof terraces, they do not result in unreasonable amenity impacts and they should not exceed 15sqm. 2. Pursuant to s 79C(1)(a)(ii) of the EPA Act, the provisions of DCP 2012 Am 4 are a relevant consideration. Section 1.8 of Part C, Visual and Acoustic Privacy includes at control (d), that roof tops are to be non-trafficable and not capable of being used as roof terraces or as entertainment areas, except in circumstances which include that development adjacent to the subject site include a roof terrace. Expert planning evidence 1. The applicant relied on the expert planning evidence of Mr Anthony Betros and the Council relied on the expert planning evidence of .Ms Kerry Gordon. 2. The planning experts agreed on the following in relation to the amended proposal (exhibit F): * The deletion of the structure over the stair access to the roof top terrace deals with the Council's contention regarding height and any breach of the height development standard by the glass balustrade is of no concern. * The use of 'self-cleaning glass' in the balustrade and the reduction of the height of the balustrade deals with the Council's contention regarding any impact of the proposal of views from 9 Loombah Road towards the city and 108 Military Road towards Bondi Beach. In addition, a condition of consent has been added at no. 62 requiring no furniture or pot plants to be left on the roof top terrace when it is not in use so as to not obstruct the existing views over the roof top of the dwelling at 11 Loombah Road. * The existing roof terrace at 14 Loombah Road is "adjacent" to the site when considering the terms of control (d) at Part C, Section 1.8 of DCP 2012 Am 4 and as such, roof terraces are characteristic in the vicinity of the site. * The distance of the roof top terrace from 108 Military Road and the reduced area of the roof top terrace to 15sqm, results in a proposal with acceptable privacy impacts on 108 Military Road. 1. The planning experts agreed that the proposed roof top structures (in the original proposal which included a glass structure over the stair extension) would be "technically over the height limit due to the excavated basement and ground level which were associated with the approval and construction of the subject dwelling" (Mr Betros in exhibit 3, paragraph 11), to which Ms Gordon adds, "It is acknowledged that AB's comments that the breach is increased due to the excavation for the garage approved with the development is correct, however, even were the roof terrace proposed with the original application it would have resulted in a breach of the height control. The roof structure is, in part, over the garage of the previously existing dwelling which, according to the survey, had a level of RL 67.82, resulting in a height of 9.43m or a breach of 930mm" (Ms Gordon in exhibit 3, paragraph 23). Submissions 1. The applicant submits that the word "adjacent" in control (d) at Part C, Section 1.8 of DCP 2012 Am 4 should be construed loosely as being "near to" or "in the neighbourhood of". I accept the applicant's submission and I am satisfied that there are existing roof top terraces in the vicinity of the site. Consideration 1. I accept the agreed evidence of the planning experts that the amended proposal in exhibit F addresses the contentions raised by Council. 2. I do not accept the planning experts agreement that the height of the proposal is to be determined either by taking existing ground level as the excavated level of the site as it is now or the excavated level of the site under the garage of the recently demolished dwelling on the site, on the basis of the same reasoning set out in my judgment Bettar v Council of the City of Sydney [2014] NSWLEC 1070 at [35] – [41]. 3. As a modification application to a development consent, it is appropriate to consider the existing ground levels on the site survey submitted as part of the development application package. The site contours are drawn on the site survey (exhibit A) in the unbuilt upon areas of the site. Joining up the contours to determine the overall topography of the hill on which the site is located, the existing ground level under the proposed roof top terrace at the lowest point was approximately RL 68.4. The glass balustrade of the amended proposal is RL 76.95, resulting in an overall height at the highest point of 8.55m. I am satisfied that the amended proposal is consistent with the height of buildings development standard in LEP 2012. Conclusion 1. I accept the agreement of the planning experts that the amended proposal in exhibit F addresses the contentions raised by Council and that the amended proposal can be granted consent, subject to the conditions of consent at Annexure "A". Orders 1. The orders of the Court are: 1. By consent, the appeal is upheld. 2. Modification Application No. DA 344/2014/A to add a roof top terrace to an approved three storey dwelling is approved, subject to the consolidated conditions of consent at Annexure "A". 3. The exhibits, other than exhibits 2 and F, are returned. _____________________ Susan O'Neill Commissioner of the Court 11197 of 2015 - Annexure A (8.74 KB, pdf) 11197 of 2015 - Annexure B (74.8 KB, pdf) 11197 of 2015 - Approved plans (8.09 MB, pdf) ********** 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: 08 April 2016