Bretag v Woollahra Council

[2005] NSWLEC 112

Land and Environment Court

of New South Wales

CITATION:

Bretag v Woollahra Council [2005] NSWLEC 112

PARTIES:

APPLICANT
D E Bretag

RESPONDENT
Woollahra Council

FILE NUMBER(S):

10736 of 2004

CORAM:

Moore C

KEY ISSUES:

Costs - Development Application :-
Privacy
Sunlight
Heritage
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 5
.

CASES CITED:

Super Studio v Waverley [2004] NSWLEC 91;
Zhang v Canterbury City Council 115 LGERA 373;
Parsonage v Ku ring gai Council (2004) NSWLEC 347;
Latoudis v Casey (1990) 170 CLR 534;
.

DATES OF HEARING:

24 February 2005

EX TEMPORE JUDGMENT DATE:

02/24/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen SC
INSTRUCTED BY
Freidman Reeves Lawyers

RESPONDENT
Mr M Connell, solicitor
Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

24 February 2005

04/10736 D E Bretag v Woollahra Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Woollahra Council (the council) on 4 May 2004 of Development Application 938/2003 for the demolition of an existing structure on 37A Caledonia Street, Paddington; the erection of a new dwelling on that allotment; a re-alignment of the boundary between that allotment and the adjacent allotment to the east at 37 Caledonia Street and substantial alterations and additions to the existing dwelling on 37 Caledonia Street. The effect of that will be, if granted, the creation of a pair of effectively mirror-image dwellings on 37A and 37 Caledonia Street (the site).

2 The process of assessment of the application from the time of its original lodgement has included a deal of consultation between the parties and a number of significant amendments to the plans – particularly some significant amendments to the plans as a consequence of the initial reports provided by two Court-appointed experts, Professor D Mackay, a heritage expert, and Mr S Layman, a town planner.

3 I had the opportunity of inspecting the site and the immediately surrounding precinct in company with the parties and hearing the evidence of a range of resident objectors and objectors representing community interest groups. The objectors’ evidence was taken informally on site and I have also had the advantage of a set of notes of that evidence taken by Ms E Whitney, a solicitor for the council, tendered in the proceedings.

4 There were five relevant issues arising out of the application on the amended plans before the Court after the applicant had considered the expert witnesses comments. These were:

• The general acceptability of the bulk and scale of the property, particularly from a heritage context, when viewed from Whelan Lane at the rear of the property;

• The acceptability, when viewed from the west in Caledonia Street of bedroom four (and particularly its balcony element) of the proposed new dwelling on 37A (an earlier proposal for a similar fourth bedroom at the upper level in the reconstructed dwelling on 37 Caledonia Street having been deleted);

• The roof terraces proposed above the garages at the south of each of the proposed dwellings – particularly as to the impact on the privacy of the properties at 39 and 41 Caledonia Street and the potential impact on the privacy of the properties to the south across Whelan Lane;

• The intensification of the overshadowing of the private open space at the rear of the properties at 39 and 41 Caledonia Street; and

• The potential for overlooking from the upper hallway area of the proposed reconstructed dwelling on 37 Caledonia Street into the kitchen and adjacent living area of 39 Caledonia Street.

5 Toward the conclusion of the hearing, the applicant sought leave to amend the proposal in a further range of significant respects. The council did not oppose this application. The effect of those amendments was as follows:

• First, the balcony proposed to be attached to the west of the fourth bedroom of 37A Caledonia Street was removed with the wall to that bedroom moved to the side boundary of the property (with no windows in the western wall but with windows on each side of the proposed chimney in the southern face of the wall of that bedroom);

• Second, the deletion of the roof terraces for each of the dwellings as they address Whelan Lane with their replacement by Juliette balconies 1.2 m wide and 3 m long that meet at the centre of the property (that is at the common boundary between 37 and 37A). Thus a significant separation on each side of the balconies will be provided to each of the adjacent properties to the site. This will be accompanied by the installation of French doors to access those Juliette balconies and the replacement of the existing proposed doorways (which were to the east and west facing elements of the proposed roof terrace) by windows, with the resultant window facing the property to 39 Caledonia Street to be of obscure glazing; and

• Third, the proposed fenestration to the upper hallway in 37 Caledonia Street to be of obscure glazing to 1.6 m above the floor with the nature of that treatment being one of three options for settlement by the applicant and his advisers – those options being fixed obscure glazing; awning hung obscure glazing or some form of fixed louvring that would prevent the overlooking of the adjacent property.

6 There remained, however, a number of issues that were pressed by the resident objectors.

7 The first of those was the question of the bulk and scale of the rear presentation of the property – particularly in its heritage context to Whelan Lane. That matter has been the subject of a lengthy discussion process between the council and the applicants.

8 A model of an earlier proposal was in evidence. This demonstrated quite starkly the unacceptable nature of that proposal in its presentation to the rear laneway.

9 The appointment of the Court-appointed experts and a meeting on 17 November 2004 meeting between those experts (particularly Professor Mackay) and advisers to the applicant and the respondent resulted in changes to the plans.

10 Professor Mackay provided a supplementary statement of evidence which included a detailed analysis of the revised proposal; a summary of the changes and his assessment of the proposal as changed. His summary of conclusions and reasons for them were contained in 1.2 to 1.10 of Exhibit 7.

11 I am satisfied that, with the further change to the rear by the removal of the above garage roof terraces, Professor Mackay’s conclusion that the proposal is acceptable in the context of the heritage streetscape of Whelan Lane is one which the Court should adopt. I do so particularly mindful of the fact that, although there is a degree of consistency to the streetscape of Whelan Lane to the south of the subject site and immediately to its east, to the west of the subject site there is a modern apartment block that is significantly out of character with the remainder of the heritage streetscape. I note that the proposal is much more in sympathy with that streetscape than that more modern apartment building.

12 With respect to the front presentation, I had the opportunity of walking from east to west along Caledonia Street with the representatives of the parties. I am satisfied that, consistent with the opinion expressed by Professor Mackay, the element of proposed bedroom four to 37A Caledonia Street will be of significantly less discernible impact than the backdrop created by the very large and out of character modern apartment block further to the west.

13 I am satisfied, in this context, that, to the extent to which the roofline of proposed bedroom four will be above the existing roofline of 37 Caledonia Street, it will not be able to be discerned and will have no appreciable impact.

14 The position when viewing the proposed bedroom four in 37A Caledonia Street when looking from the west towards the east is marginally more problematic, particularly in its originally proposed form.

15 One of the reasons given by Professor Mackay for the acceptability of the proposed balcony to the fourth bedroom was that it would be shielded from view by a pair of very large trees that appeared to be located within the private property front setback of the modern apartment building immediately to the west of number 37A. Those trees appeared to be deciduous.

16 I am not satisfied that it would have been appropriate to adopt the position that an otherwise marginally unacceptable position would be made marginally acceptable by reliance on vegetation (this is consistent with more general principles enunciated about the protection of privacy by vegetation set out by Roseth SC in Super Studio v Waverley [2004] NSWLEC 91).

17 I am satisfied, however, that the amendment to the plans that has been accepted by the applicant in this regard renders the bulk and scale of the now blank wall of bedroom four at 37A acceptable as opposed to the unacceptability of what would have otherwise been, in the area, an entirely out of character balcony.

18 The removal of the roof terraces from the rear of the proposal addresses satisfactorily three matters that were raised by the residents (or were necessarily to be inferred from an inspection of the site and of the size of the proposed terraces). The one inferred issue not raised by the residents was the possible noise impact of two large area of private open space at the first floor, although each opening from a bedroom, which would be sufficiently large for a number of people to gather there for social purposes. The amendment to limit these spaces to Juliette balconies addresses that issue.

19 With respect to the possible impact on the neighbours to the south across Whelan Lane, I am satisfied that, given the comparatively intense nature of the settlement of the immediate precinct and the fact that there is a good deal of existing potential for overlooking from one property to another’s private open space at some distance, this imposes on the residents of the precinct the adoption of a significant degree of good neighbourly respect in their social inter-relationship with their immediate neighbours.

20 That social discipline, coupled with the evidence available from the inspection of a height pole erected to assist me understand what would be a sightline from the proposed roof terraces to the private open spaces or rear living rooms of the dwellings to the south of Whelan Lane, caused me to be satisfied that the degree of separation between them was sufficiently great as not to warrant refusal on that basis.

21 However, the same could not have been said for the possible impact on the private open space of 39 Caledonia Street. The size of the proposed roof terraces (even with the planter boxes proposed along the boundary between 37 and 39 Caledonia Street) would not be acceptable. This was demonstrated from the height pole that was held immediately outside the property but at what would have been a viewing height from that roof terrace.

22 Roof terraces are not common in the area. The degree of overlooking into the private open space of 39, from that height, even with the planter box, would be an unacceptable impact.

23 In that regard, as I put on site to Mr McEwen SC, counsel for the applicant, although the private open spaces at 39 and 41Caledonia Street had been amalgamated (as they are in common ownership) for the purposes of canine management and other social interaction, I proceeded to assess the impact on the private open space on 39 as if it were divided from the private open space at number 41.

24 However, the amendment to incorporate Juliette balconies, given their dimensions and setback from the boundary with 39, does not, in my view, constitute an unacceptable impact on the privacy of the occupants of 39 and there is therefore no basis founded on overlooking to refuse the application as amended.

25 With respect to the issue of overshadowing of the properties at 39 and 41 Caledonia Street, the applicants provided shadow diagrams for an earlier proposal. However, it was put to me on behalf of the applicant (and accepted by the council) that there was no significant material difference between the diagrammatic representation of the shadow contained in that exhibit and that which would apply from the plans as presently before the Court.

26 I indicate, at the commencement of dealing with this issue, that I am satisfied that the private open space that is to the north and east of 41 Caledonia Street (and fenced off from Caledonia Street by a substantial wall) is sufficiently large, albeit containing a swimming pool, to offset any possible impacts that might exist on the private open space solar access of 41 Caledonia Street at its rear.

27 Those shadow diagrams (which do not show elevational impacts of overshadowing) disclose that, at mid winter, there is such a small additional impact on the shadowed area of 39 and/or 41 Caledonia Street at noon as to be de minimus. The diagrams at the equinox disclose that there is a more marginally significant impact in plan on the private open space of 39 Caledonia Street and a perhaps more significant impact on the private open space of 41 Caledonia Street at the rear, from sometime just before noon through until 3pm.

28 The owner of numbers 41 and 39 Caledonia Street commissioned evidence from Mr Moody, a town planning expert (who was not required by the parties for the purposes of cross-examination in these proceedings). Also tendered as part of the process of enabling me to understand Mr Moody’s evidence were two sets of shadow diagrams prepared by Clement & Reid Project Surveyors which formed the basis of Mr Moody’s conclusions. Those shadow diagrams not merely deal with the issue of the impact of the proposals in plan but also:

• differentiate between the shadow cast by the existing tree on number 37 which is to be replaced by solid structures thus removing the effect of the filtered light which might be available through that tree; and
• provides with the details of the impact of the increased shadowing in elevation at a number of locations and a number of times.

29 The conclusions which Mr Moody reaches (although acknowledging, as I apprehended it, that there are minor inaccuracies in these plans) are contained in a supplementary report he provided dated 23 February 2005. He reached the conclusion that the impact of the proposal on the private open space at 39 Caledonia Street is unacceptable. He does so for a number of reasons set out in his report which might essentially be summarised as his view that the overshadowing arises out of poor design of the proposal. He said:

In my view, the excessive bulk and site cover of the proposed development particularly in the rear portion of the development site creates unreasonable overshadowing impacts on my client’s rear courtyard.

30 He also commented, earlier in this report, in response to commentary made to him by Mr Layman, that he does not consider that development in the locality is dense apart from the intrusive residential flat building nearby.

Whilst it is acknowledged that the terrace style of development is at a greater density than the normal low density residential, it is not to a level which I would consider to be dense.

31 Relevant controls concerning solar impacts in residential areas being the precinct within which the site is located, is contained in the Paddington Development Control Plan at 5.1.7 objective 5, which is to minimise the impact of new development on the access to sunlight for private properties and public places such as neighbourhood parks. The guideline and control which accompanies that is that contained in G4:

New development and additions must not create any additional overshadowing where solar access is less than two hours between 9am and 3pm at the winter solstice to habitable rooms, private open space and the public domain.

32 The approach I must take to this development control plan must be consistent with that prescribed by the Court of Appeal in Zhang v Canterbury City Council 115 LGERA 373.

33 Although the Court has a wide-ranging discretion, that discretion is not at large and is not unfettered and the provisions of this development control plan are to be considered by me as a fundamental element in or a focal point to my decision-making process in this appeal.

34 However, it is also clear from the remarks by Spigelman CJ in Zhang that a provision of a development control plan directly pertinent to the application is entitled to significant weight but it is not in itself determinative.

35 On the other hand, if a proposal does not meet a development control plan’s requirements, the Court may still grant consent in an otherwise appropriate case given a proper and genuine consideration of the development control plan and having considered all other matters that are relevant under s 79C of the Act.

36 My role is not to determine the excellence of the proposal but is to address a much lower standard. The relevant test is merely, Is the proposal one which meets an appropriate minimum standard of acceptability?

37 In Parsonage v Ku-ring-gai Council (2004) NSWLEC 347, Roseth SC dealt with the planning principles concerning the impact of a development on the solar access on neighbours. I adopt several of those principles as being relevantly correct and appropriate to be applied in this case. These are the are those set out in para 8 of his decision where he said, inter alia:

• The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong.
• The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained.

• Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal’s design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours.
• …….. The amount of sunlight on private open space should be measured at ground level.

38 I have no evidence before me of any alternatives to the present design save those which have been canvassed during the course of the proceedings.

39 I do, however, have the evidence of earlier designs which would clearly have had a greater impact on the amenity of the residents of numbers 39 and 41 Caledonia Street.

40 I have also had the benefit of not merely Mr Layman’s expert evidence in this regard but Mr Moody’s countervailing evidence. Effectively Mr Layman says that:

• there is a higher density in the precinct and thus greater density is appropriate on this site;
• given what he considers the present underdevelopment of 37A Caledonia Street site, it is ripe and appropriate for redevelopment; and
• the present proposal meets, albeit perhaps only just, the standards of acceptability in its totality notwithstanding its non compliance with the relevant solar access objective and control in the Paddington Development Control Plan.

41 I am satisfied that:

• there is a more than trivial adverse impact on solar access on the residence at number 39 Caledonia Street when the impact is assessed in elevation;
• part of this adverse impact would be caused by the removal of the filtered sunlight available through the tree which is to be replaced with solid structure on 37 Caledonia Street

• there is only a de minimus adverse impact on solar access on the residence at number 39 Caledonia Street when the impact is assessed in plan; however
• there is some relevant potential the residents of 39 Caledonia Street to use the open area at the street frontage and thus enjoy good solar access whilst doing so.

42 Although this front area is small and close to the street, given the nature of the street area in which it is located, particularly the fact that Caledonia Street does not appear to be a main road or a significant thoroughfare and also given the degree of mutual good neighbourly respect and manners that is necessarily inherent in such a location, I am satisfied that that area is usable.

43 Although it is not medium density as that term is conventionally used, the surrounding area is densely settled and includes some medium density developments. Thus, in the present circumstances, the solar access of 39 Caledonia Street is more difficult to protect than might be expected in a lower density area.

44 Adopting and applying the element of the Parsonage principles that the amount of sunlight on private open space should be measured at ground level, the loss of sunlight to the rear of 39 Caledonia Street is, as mentioned earlier, de minimus. In addition, whilst there might be a greater degree of loss when considered in elevation, it is so much a loss as to warrant a departure from the appropriate test to apply if I were to adopt (as I do) the relevant elements of the Parsonage principles.

45 As a consequence of all of the above, when coupled with the general objective for orderly and economic use of land contained in s 5 of the Act, I am satisfied, on fine balance, that the impact on the rear area of the additional overshadowing although adverse, is not such as to warrant refusal of the amended application.

46 Therefore, on the substantive issues in the appeal, the orders that I propose arise from this appeal are that:

1. the appeal is upheld;
2. the development application as further amended be granted consent subject to conditions and revised plans to be settled between the parties; and
3. the exhibits other than exhibits B and 12 are returned.

47 I therefore give the following directions:

• the matter is set down for callover on 18 March subject to the proviso that if settled, revised plans and conditions are filed prior to that date, I will make orders in chambers and vacate that callover date; and
• liberty to re-list before me on two days’ notice at 9am if required;

Costs application

48 I turn to address the submission on costs made by Mr Connell. that the costs of the expert witnesses on the original plans prior to the amendments being made ought be borne by the applicant as opposed to shared between the parties. He puts to me that it would be fair and reasonable for this to occur.

49 I propose to deal with the matter on this basis. The revision to the rules of the Court provide that, unlike the then former practice in Class 1 appeals where costs were only awarded in exceptional circumstances, the test that is now applied is whether it is fair and reasonable to award all or some of the costs of one party or another.

50 As Mr McEwen SC quite properly puts on behalf of the applicant, this does not import into the rules of the Court the principle that flows from the High Court decision in Latoudis v Casey (1990) 170 CLR 534 that costs in the ordinary course of events will follow the determination of the issues in dispute between the parties, that is that costs follow the event. He also puts to me, again quite properly that the purpose of costs orders is not to be punitive nor should it act to discourage applicants. It is long settled that the general principle of costs it is that costs are purely compensatory.

51 In these proceedings after the commencement of the proceedings in the Court the Registrar appointed two court appointed experts, Professor McKay and Mr Layman. As a consequence of those appointments on 20 August 2004, those experts underwent a process leading to each of them providing an initial report and there being a pair of meetings between those experts and the parties’ representatives. As a consequence of that, at the conclusion of November 2004, the then hearing dates were vacated and on 30 November 2004 revised series H plans were served and submitted to the experts for their consideration.

52 Mr McEwen puts to me the proposition that the matters that arose by those experts could or perhaps ought properly to have been raised by the council’s officers during the earlier process and that the additional cost ought not to be borne by his client.

53 However, on the other hand, his client has had the benefit of two matters arising out of this hearing process. The first is that he has only been obliged to meet half the costs of the earlier portion of the cost of those experts rather than having to retain independent heritage experts and planning experts at the applicant’s total expense and secondly, although Mr McEwen put it as an advantage to the respondent council, it is also of advantage to his client that this hearing will have concluded in one day rather than two.

54 As a consequence of the indulgence to the applicant of amendment to the plans, further work has been necessary and indeed has involved the assessment of those plans against the objections raised by the residents. I do consider that, under the circumstances, it would be fair and reasonable as a price for permitting that set of amendments to the plans (and the resulting consent that the applicant will receive as a consequence of today’s hearing) that it is fair and reasonable that the applicant meet the costs of the council of the expert witnesses in responding to the revised series H plans.

55 I do not consider however, because the experts were required to attend on site today (and Mr Layman in court this afternoon) to give evidence in response to the continuing objections pressed by residents, that the costs to be borne by the applicant should extend to preparation for today’s hearing or attendance thereat.

56 It is my understanding that it is more appropriate, given that the costs will be of comparatively small amount, that any order that I should propose to the Chief Judge for his concurrence should be one that quantified the amount of the costs sought rather than through a process of an order that would be on an as agreed or assessed basis – this being in order to obviate the necessity for the parties to go through such an assessment process absent agreement as I have no information that would enable me to formulate the terms of such order as I would propose to put to the Chief Judge pursuant to s 69(8) of the Act for his concurrence.

57 Therefore the course that I propose to follow is this, having set the matter down for callover on 18 March, I further direct that:

• the respondent provide the applicant and the Court, by the close of business on 3 March, with the amount of costs that it proposes I should order with respect to Professor McKay and Mr Layman;
• if the applicant wishes to be heard or to submit purely on the quantum that is proposed to be inserted in the orders that such submissions be made to me by 10 March or the matter re-listed before me at 9am pursuant to the general liberty to re-list; and

• if the council puts the quantum to me and the applicant does not wish to make any submissions on those amount, the course that I propose to follow will be to propose to the Chief Judge orders to the effect that the applicant pay the sum of $X (representing the additional costs of Professor McKay and of Mr Layman responding to the amended plans.

58 The parties will be provided with a copy of the draft orders that I propose to submit to the Chief Judge in their precise terms and from the time those draft orders are provided to the parties, the parties will have the periods of time, fourteen days, as set out in the relevant practice direction to make such submissions as they might wish to make to the Chief Judge as to whether or not he should concur in the making of those orders.

59 I draw the attention of the parties to the fact that the role of the Chief Judge in dealing with costs orders is one of concurrence, that is a yes or no role in effect, rather than the opportunity afforded pursuant to s 69(8) being some form of informal appeal against my exercise of the cost’s discretion conferred on me pursuant to the rules subject to his Honour’s concurrence pursuant to that section of the Act.

Commissioner of the Court