Barclay v Woollahra Municipal Council [2017] NSWLEC 1641

Land and Environment Court New South Wales

Medium Neutral Citation: Barclay v Woollahra Municipal Council [2017] NSWLEC 1641 Hearing dates: 1 November 2017 Date of orders: 14 November 2017 Decision date: 14 November 2017 Jurisdiction: Class 1 Before: Gray C Decision: (1) The appeal is upheld. (2) The development application (DA221/2016) for the addition of a roof terrace with an external spiral staircase at 6 Rawson Road, Rose Bay, is approved subject to the conditions in Annexure A. (3) Exhibits 1, 2 and 4 are returned. Catchwords: APPEAL – development application – roof terrace on dwelling – frameless glass balustrade – acoustic and visual privacy – assessment of impact on views – view sharing - precedent Legislation Cited: Environmental Planning and Assessment Act 1979 s97 Land and Environment Court Act 1979 s34 Woollahra Local Environmental Plan 2014 Woollahra Development Control Plan 2015 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: Miles David Barclay (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Ms N Hammond (Applicant) Mr K Webber, Solicitor (Respondent)

Solicitors: Wiltshire Webb Staunton Beattie (Applicant) File Number(s): 2017/157511

Judgment 1. COMMISSIONER: Properties along Rawson Road in Rose Bay have the benefit of expansive and iconic views over Sydney harbour, including over Rose Bay toward Sydney and over both the Opera House and Sydney Harbour Bridge. Mr Barclay is the owner of one such property, at 6 Rawson Road. Mr Barclay wishes to take advantage of his views by the construction of a rooftop terrace. He appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("EPA Act") against a determination made by Woollahra Council ("the Council") refusing development consent for the construction of the rooftop terrace. 2. The appeal was subject to mandatory conciliation on 10 October 2017 pursuant to s34AA of the Land and Environment Court Act 1979 ("Court Act"). The Council did not give delegation to allow the parties to enter into an agreement to resolve the proceedings but amendments to the proposal were discussed. To allow the objectors to be notified of the amended proposal and to consider making submissions on its impact, an adjournment of the conciliation was granted on 11 October and again on 18 October 2017. In the intervening period prior to the resumption of the conciliation on 1 November 2017, height poles were erected to reflect the maximum height of the glass balustrade to the proposed roof deck in accordance with the amended plans. 3. On 1 November 2017, the appeal proceeded to a hearing pursuant to s 34AA(2)(b)(i). In moving to a hearing, the parties consented to the admission of the evidence of the resident objectors and of the observations of the site and the locality. 4. At the commencement of the hearing, the applicant sought and obtained leave to amend the development application to reduce and change the area of the proposed roof terrace. The amended proposal reduces the impact of the proposed roof terrace by increasing the setback to the northern side boundary to protect the privacy of the adjoining neighbours. It also reduces the extent of the view loss by moving the stairway to the rear of the terrace and within the existing roof form, and moving the access path from the stair landing to the terrace so that the balustrade along that path is parallel to the view corridor rather than across it. The result is that the width spanned by the balustrade and across the view corridor is less than one third of the total width of the second floor roof. 5. As a result of the amendments to the plans, the Council accepts that all of the contentions it raised in the proceedings have been satisfactorily addressed, but says that the question as to whether the residents' concerns warrant refusal of the proposal on the basis that it is against the public interest is a matter for my determination. 6. The residents raise the following issues, which they say have not been resolved by the amended plans: * Loss of visual and acoustic privacy, with the greatest impact on the visual privacy of the private open space and pool at 4 Rawson Road. * Insufficient information on the plans to verify the finished levels of the balustrade, which means that the view impact is not known with sufficient certainty. * Loss of views, with the greatest impact on the property at 1 Churchill Road. * The approval of the roof terrace will create an undesirable precedent. 1. There are therefore four matters for my determination: * Whether the proposed roof top has an unacceptable impact on visual and acoustic privacy, * Whether there is sufficient information to assess the impact of the proposal on the views of the neighbours, * Whether the proposed roof top has an unacceptable impact on the views of neighbours, and * Whether the approval of the roof terrace will create an undesirable precedent. 1. For the reasons set out below, I have determined that I ought to accept the expert evidence of Mr Booth that the amended plans address the contentions raised by the Council, and in so doing they also satisfy the concerns raised by the residents regarding view loss and loss of privacy. I have also determined that, given that the controls contemplate roof terraces, and the existence of at least one roof terrace in the area, it cannot be said that the roof terrace will create a precedent that is undesirable.