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.

7. 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.

8. 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.

The site and its context

9. The site has an area of approximately 695.6m² and is legally described as Lot 16 in DP 6048. It is located on the corner of Rawson and Churchill Roads, Rose Bay, with an 18.3m primary frontage to Rawson Road to the west and a 34m frontage to Churchill Road to the south. The site is currently occupied by a 2 storey dwelling house with east to west orientation, allowing it to have views westward to Sydney over Sydney harbour. The second storey is setback from the first storey in a podium style design, with a significant set back from the second storey to the eastern boundary. The land slopes up from the western frontage to the eastern rear boundary, allowing the properties to the rear on Churchill Road and Chamberlain Avenue to similarly have views in a westerly direction toward Sydney.

10. The locality is characterised by 2-3 storey dwelling houses with an east/west orientation to take advantage of the western aspect toward Sydney harbour.

Planning controls

11. Section 79C(1)(a) of the EPA Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

12. The land is zoned Zone R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (“WLEP 2014”). Clause 2.3(2) of the WLEP 2014 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are:

“• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.”

13. The development standard for height is established by cl 4.3 of the WLEP 2014 and is 9.5m for the site. The proposed deck does not exceed this height.

14. The Woollahra Development Control Plan 2015 (“WDCP 2015”) applies, and roof terraces are contemplated by the controls contained therein. The stated objective in clause O3 of B3.5.3 of WDCP 2015 is to “encourage view sharing as a means of ensuring equitable access to views from private property” and requires that:

“C5  Development is sited and designed to enable a sharing of views with surrounding private properties, particularly from the habitable rooms (refer to Figures 17 and 18).

C6  Development steps down the hillside on a sloping site.

C7  The design of the roof form provides for view sharing.

C8  Roof terraces are uncovered to provide for view sharing. All elements on roof terraces are to comply with the maximum building height control.”

15. B3.5.4 of the WDCP 2015 concerns acoustic and visual privacy and its objective is to “minimise the impacts of private open space”. It requires that:

“The trafficable area of a roof terrace (above the second storey) (refer to Figure 19) is setback so that there is no direct line of sight, from that part of the building where the terrace or deck is, to:

a)  neighbouring private open space within 12m; or

b)  windows of habitable rooms in neighbouring dwellings within 12m.”

16. In applying the requirements established by the WDCP 2015, it is also important to recognise that I cannot require more onerous standards, as per s 79C(3A)(a) of the EPA Act:

“(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development

…”

The proposal

17. The amended proposal is for a modest roof terrace of 13.66m2, which comprises a terrace area of 10.175m2 with an access path along the roof that is 3.25m long and 1.075m wide. The application now describes the terrace as a deck. Access is proposed to be by way of a spiral staircase of 1400mm in diameter from the existing ground floor roof, accessible from the second storey. The proposal includes frameless glass balustrades of 1m height from the staircase landing to around the terrace, and Mr Barclay has agreed to a condition that the height of any tiling be limited to 20mm above the existing roof level. As a result, the total height of the balustrade would be 1.02m above the existing roof line.

18. The north to south span of the balustrading, when viewed from 1 Churchill directly to the east, is 3.7m. Mr Barclay has indicated his intention that the terrace be used only for occasional major events on the harbour, and agrees to a condition preventing any furniture from being placed on the terrace.

Evidence

19. The conciliation commenced on site and I had the benefit of viewing 6 Rawson Road from the properties of a number of residents, as follows:

• 6 Churchill Road, the ground floor courtyard at the front of the property, where there was a concern about loss of views of the Kincoppel-Rose Bay school.

• 25 Chamberlain Avenue, the second storey main living area and ground floor outdoor entertaining area, where there was a concern about the loss of water glimpses.

• 32 Chamberlain Avenue, ground floor living area and second storey main bedroom and ensuite, where there was concern about visual and acoustic privacy impacts due to a direct line of sight to those rooms from the proposed deck.

• 4 Rawson Road, where there was concern about a direct line of sight from the roof terrace through the skylight to living areas, as well as a direct line of sight to the private open space where a pool is situated.

• 1 Churchill Road, which is the property directly to the rear of the site, where there was said to be both privacy impacts and the loss of iconic views of Sydney Harbour from the living room and outdoor first floor balcony.

20. Mr Boskovitz attended the site and made submissions on behalf of the residents of the above addresses. He also attended the hearing, made further submissions and gave further evidence concerning the amended plans. Similarly, Dr Lamb attended the hearing on behalf of a number of the residents, particularly in relation to the loss of views. Through Mr Boskovitz the residents raised the following concerns:

• Insufficient survey information and 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.

• Loss of visual and acoustic privacy, with the greatest impact on the visual privacy of the private open space at 4 Rawson Road.

21. Dr Lamb provided a report on his assessment of the loss of views from 1 Churchill Road, accompanied by photographs. His evidence was that the view loss from other properties was not significant.

22. I am also assisted by the evidence of Mr Barwick and Mr Booth, town planners, who participated in a joint conference of experts and prepared a joint report.

23. Mr Booth also gave evidence at the hearing. His evidence was that he had attended the site and 1 Churchill Road following the erection of the height poles. From the area of the proposed terrace, Mr Booth had observed that when standing within the height poles on the roof he could not see into the skylight of 4 Rawson Road, and could only see the paving on the opposite side of the pool, which was a distance of greater than 12m. From 1 Churchill Road, Mr Booth had observed that views would be obscured by a glass balustrade when in a seated and standing position in the centre of the first floor terrace and in the living area behind the terrace, but that there would nonetheless be unobstructed views from the southern portion of the terrace and from the southern section of the internal living area.

24. Mr Booth’s evidence was that he wasn’t concerned about lack of survey detail because the balustrade will fall with the existing roof, the fall is not of concern because it is quite minimal to allow for draining, and that the impacts are protected by the proposed condition of consent limiting the balustrading to 1.02m above the flat roof surface immediately adjacent to the balustrades, and limiting the tiling to 20mm above the existing flat roof surface immediately adjacent.

25. Mr Booth’s evidence was therefore that, as a result of the amendments to the proposal and the agreed conditions of development consent, he was satisfied that a ‘reasonable compromise’ had been met. His view was that this compromise resolved his earlier concerns about impacts on privacy and views of neighbouring residents. This reflects the agreement of both Mr Barwick and Mr Booth in the joint report, in which they contemplated a larger roof terrace than what is currently proposed and said that a 1.0m frameless clear glass balustrade would have acceptable impacts, as follows:

“It is agreed that 1.0m high frameless clear glass balustrades to the northern and eastern alignments to the roof terrace instead of the proposed 2.4m high privacy screens would have acceptable impacts on the views currently enjoyed over 6 Rawson Road from adjoining properties including the most affected, 1 Churchill Road (aka 30 Chamberlain Avenue).”

26. Notwithstanding the agreement of the town planners, I am required to execute the functions of the consent authority by considering the merits of the application in accordance with s79C of the EPA Act.

Assessing the impact on privacy

27. The properties most affected by a loss of visual and acoustic privacy are 4 Rawson Road and 32 Chamberlain Avenue. At 4 Rawson Road, the residents’ concerns are that there is a direct sight line from the proposed roof terrace firstly through the skylight into their living area, secondly into their rear bathroom used by their granddaughter, and thirdly over the private open space and pool. At 32 Chamberlain Avenue the residents are concerned about visual and acoustic privacy due to the proximity of the proposed roof terrace to their outdoor terrace area, and that there is a direct line of sight from the roof terrace to the outdoor terrace, to the main bedroom and to the ensuite.

28. I accept the evidence of Mr Booth that the amended proposal does not create a direct viewing line through the skylight at 4 Rawson Road. I also accept that there is no direct view into the bathroom at 4 Rawson Road, and that there is no unreasonable overlooking of the pool, which is obscured by the awning. Mr Booth’s evidence was that standing between the height poles enabled him to view the paved area on the other side of the pool at 4 Rawson Road, which is a distance of greater than 12 metres, consistent with the requirements of B3.5.4 of the WDCP 2015.

29. Similarly, I consider that the distance between 32 Chamberlain Avenue and the proposed roof terrace is sufficient to afford the visual and acoustic privacy envisaged by the requirement for a 12m separation by B3.5.4 of the WDCP 2015.

30. Given that there is no direct line of sight within 12m from the roof terrace to the private open space or habitable rooms of 4 Rawson Road and 32 Chamberlain Avenue, the control is met and s 79C(3A) of the EPA Act prevents me from requiring something more onerous than this to protect the privacy of the residents of those properties.

31. As a result, in accordance with the standards established by the WDCP 2015, the impact of the proposal on visual and acoustic privacy must be considered as acceptable and does not warrant refusal of the application.

Understanding the impact on views

32. Mr Boscovitz, who spoke on behalf of the residents, submits that there is insufficient information to assess the full impact of the view loss. Firstly, he submits that there is insufficient information on the method of construction to ensure that the flooring would be limited to 20mm. From his understanding, the process of laying tiles required preparation and waterproofing that would need around 45mm of depth prior to the tiling. Secondly, Mr Boscovitz pointed out some areas of the plans where insufficient detail was provided, such as the site section, which Mr Boscovitz says does not adequately represent the existing second storey. Thirdly, Mr Boscovitz was concerned that the plans were not accompanied by a survey and do not show the final RL of the top of the glass balustrade, and nor can that be calculated from the plans. Mr Boscovitz therefore submits that the final height of the glass balustrade cannot be understood and that the Court should not be satisfied that the full impacts of the proposed roof terrace can be ascertained and assessed in considering the present application.

33. Mr Booth’s evidence was that although the final RL is not known, there is sufficient information for the Court to assess the application. Mr Booth expressed that he questioned the need for tiling given that the roof is trafficable in its current condition, but was of the view that 20mm of tiling would be acceptable. He also indicated that the question of construction method can be dealt with at the construction certificate phase.

34. I accept the evidence of Mr Booth that the impacts are protected by the proposed condition of consent limiting the tiling to 20mm above the adjacent existing roof, and the requirement that the balustrade be only 1m above that or 1.02m in height in total. I also accept that I need not be concerned about the construction method that will be used and whether it is possible to have tiling that is glued directly to the roof, as it will be the responsibility of Mr Barclay to ensure that he complies with the condition of consent and the method of construction can be finalised for the construction certificate. I accept, therefore, that the plans are sufficiently specific as to what is proposed, the height poles were placed in accordance with what is proposed, and that the photographs taken by objectors and observations made by Mr Booth are sufficient to assess the impact of the proposal.

Assessing the impact on views

35. In considering the impact of the proposal on the views enjoyed from neighbouring dwellings, it is helpful to consider the notion of view sharing, described by Roseth SC in Tenacity Consulting v Waringah [2004] NSWLEC 140 as “when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment” (at [25]). The planning principle on view sharing, found in Tenacity, requires a four step assessment. The four steps can be summarised as follows:

1. Assessing the value of the views to be affected.

2. Considering from what part of the property the views are enjoyed and whether they are enjoyed from a sitting or standing position.

3. Assessing the extent of the impact with respect to the whole of the property affected.

4. Assessing the reasonableness of the proposal that is causing the impact, and whether it is a compliant development that minimises the impact on the views of neighbours.

36. I do not accept that I ought to consider the view loss from anywhere other than 1 Churchill Road. Each of the other neighbouring properties will only suffer a very minor view loss caused by the proposal, such as the obscuring of a water glimpse such as that from 25 Chamberlain Road or the obscuring of a minor portion of otherwise expansive views, such as from 32 Chamberlain Road and 6 Churchill Road.

37. Turning then to 1 Churchill Road, and carrying out the four step test, it is clear that firstly the view from 1 Churchill Road is of high value. It comprises expansive iconic views of Sydney Harbour over Rose Bay and Bradley’s Head, including the Opera House, the Harbour Bridge, Shark Island, the cityscape of Sydney and the land and water interface. Secondly, the dwelling is oriented to take advantage of these iconic views, which are enjoyed from the first floor living area and bedroom, the second floor bedroom, and balconies on both the first and second floor.

38. Thirdly, assessing the impact of the proposal on those views, it is clear that the glass balustrade will obscure part of the sitting and standing views from the first floor terrace and indoor living area immediately to the east of the terrace. When in use, it will obstruct standing and sitting views of the Opera House and Harbour Bridge from the level 1 terrace, from the living area immediately behind the terrace and from the first floor bedroom area. However, it will nonetheless retain these views from the second floor bedrooms and balcony. Further, I accept the evidence of Mr Booth that unobstructed views will be retained from the south side of the terrace and the inside living area to the south of the terrace. As a result, the overall view loss to be suffered by 1 Churchill Road is moderate.

39. As for the final step, Mr Barclay has taken steps to significantly reduce the area of the terrace and reduce its impact. The glass balustrade now spans less than half of the width of the roof when viewed from 1 Churchill Road. Although Mr Barclay already benefits from expansive iconic views from his living areas, bedrooms, first floor balcony and ground floor private open space, a roof terrace is clearly contemplated by the WDCP and the proposal complies with the controls for setbacks and is well below the development standard for height. Whilst a glass balustrade will obscure the views from some areas of the first floor of 1 Churchill Road, and the use of the deck will obstruct those same views, views remain from some of the first floor and the entirety of the second floor such that the design could not be any more skilful to reduce that view loss. Both experts agree that the glass balustrade results in an acceptable impact even to the most affected property at 1 Churchill Road. As such, this is a proposal about which the statement by Roseth SC in discussing the fourth step is apt:

“With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.” (At [29]

40. I accept that the proposal complies with the relevant controls and that Mr Barclay has now, through the amended proposal, presented a design that minimises view loss. I therefore accept the evidence of Mr Booth that the view impact can be considered acceptable. As such, I also accept that the proposal meets the objective O3 of B3.5.3 of WDCP 2015 to “encourage view sharing as a means of ensuring equitable access to views from private property”.

Whether consent for a roof terrace would establish an undesirable precedent

41. Mr Boscovitz, on behalf of the neighbouring residents, submits that the approval of a roof terrace will establish an undesirable precedent in the immediate locality, which is not currently characterised by roof terraces.

42. The submission that something is an ‘undesirable’ precedent is based on a presumption that firstly, the nature of the proposal is inconsistent with the relevant standards or controls, or has some objectionable impact, and secondly, that the approval of such a proposal would inevitably lead to other applications of a similarly objectionable nature. However, this is not true in the circumstances of the present application. A roof terrace is envisaged by the WDCP 2015 and the precedent has already been created by the roof terrace in existence at 31 Chamberlain Avenue, around 60m from the site. In any event, each development application must be considered on its merits and, in an area sensitive to development that obstructs or obscures views of high value, the development standards and the principles regarding view sharing must be applied to the circumstances of each case. I do not accept that a proposal that is envisaged by the DCP and complies with the relevant controls should be refused on the basis that it establishes an ‘undesirable’ precedent.

43. There being no other basis to refuse to grant consent for the roof terrace, I make final orders as follows:

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.

……………………….

Commissioner Gray

157511.17 Gray (C) (378 KB, pdf)

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Decision last updated: 14 November 2017