Calabro v Waverley Council
[2008] NSWLEC 1230
•12 June 2008
Land and Environment Court
of New South Wales
CITATION: Calabro v Waverley Council [2008] NSWLEC 1230
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
Anthony Calabro
Waverley CouncilFILE NUMBER(S): 11276 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- roof terrace, potential noise nuisance, overlooking, streetscape, character of locality, aesthetic fit with house LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996DATES OF HEARING: 21/03/2008
DATE OF JUDGMENT:
12 June 2008LEGAL REPRESENTATIVES: APPLICANT
Mr I. Hemming, barrister
Instructed by Ms J. Walsh, solicitor
of Pike Pike & FenwickRESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
12 June 2008
11267 of 2007 Anthony Calabro v Waverley Council
JUDGMENT
1 This is a Class 1 Appeal No. 11267 of 2007 between Anthony Calabro and Waverley Council in regard to the refusal of DA301/2007 for a rooftop terrace with associated stair, at an existing 2-storey house, No. 32 Bourke St, Queens Park. The stair to the roof on the third level is to be built by extending the existing stairs with two extra flights, and raising the existing lantern roof of the stairwell so that a door can be installed onto the roof terrace.
2 The hearing was attended for the respondent by:
- Mr S Patterson solicitor,
- Ms A Rossi town planner,
- Mr J Hayes objector No. 16A Cuthbert St, Queens Park,
- Mr M Shirley No. 28 Bourke St, Queens Park.
3 The applicant was represented by:
- Mr I Hemmings barrister, instructed by
- Ms J Walsh solicitor,
- Mr R Tonin acoustic engineer, and
- Mr A Betros town planner.
4 The site is a rectangular lot of about 330 sq m and has a 2-storey painted masonry house in the currently popular “Tuscan” style. There is a double car garage built into the house on the southern Cuthbert St elevation. The house has about a 1.6m side setback to Cuthbert, but the garage projects out to the boundary and creates a narrow balcony at the first floor level. The front door is off Bourke St on the west with about 3 m front setback. There are Belvedere balconies off 2 rooms facing the street at the first floor level.
5 On the north, the house has zero side setback and butts up against the terrace house on No. 30-30A Bourke St for about half No 32’s length, then steps away to a 1m side setback for the rest of the north side of the house.
6 The back yard is really a Courtyard about 6 m wide against the east boundary adjoining the side and rear yards of No. 16A Cuthbert, a 2-storey brick house.
1. The proposed development should not be approved as it does not comply with objective (b) of its 2(a) Residential - Low Density Zone under Waverley
Local Environmental Plan 1996 ("WLEP 1996"):Particulars
(a) The proposal does not maintain or improve the amenity and existing characteristics of the locality as it results in unacceptable impacts on the streetscape and the aural and visual privacy of adjacent buildings.2. The proposed development should not be approved as it does not satisfy the General and Specific Aims of WLEP 1996:
Particulars
(a) The proposal does not satisfy Clause 2(c) - General Aims, in that the proposal does not improve the amenity, safety and environmental quality of the built and natural environment;(b) The proposal does not satisfy Clause 3(7)(d) - Specific Aims, in that the proposal is not compatible with surrounding development;
(c) The proposal does not satisfy Clause 3(7)(f) - Specific Aims, in that the proposal does not improve the amenity of residential areas;
Waverley Development Control Plan 2006
- 3. The proposed development should not be approved as it does not comply with Part D1 - Dwelling House and Dual Occupancy Development of Waverley Development Control 2006 ("WDCP 2006") in respect of the following provisions:
- (a) Clause 5.6 relating to Privacy and Noise Control, in that
(i) The controls set out in clause 5.6.2 require elevated external decks to be generally less than 10 sq metres in area and have a depth not greater than 1.5m;
(ii) The proposed roof deck has an area of 51 sq metres and a depth of 6m;
(iii) The controls set out in clause 5.6.2 provide roof terraces are generally not acceptable and roof tops are not to be capable of being used as entertainment areas;
(iv) The proposed access to the roof top is unacceptable as this will facilitate the use of the roof top for entertainment;
(v) As a result of the non-compliance with Council's privacy and noise control provisions, the proposal will create unacceptable overlooking impacts upon adjoining buildings; and
(vi) As a result of the non-compliance with Council's privacy and noise control provisions, the proposal will create unacceptable noise impacts upon adjoining buildings.
- (i) The controls set out in clause 5.1.1a require a maximum external wall height of 7.O m and a maximum overall building height of 8.5m; and
(ii) The maximum height of the balustrade is 7.6m and the maximum height of the roof hood structure is 9.3m.
(c) Clause 3.2 relating to the Queens park Character Study, in that:
(i) There is no compelling planning justification to accept the non-compliance with Council’s height and privacy and noise controls;
(ii) The roof hood structure is out of character with the adjoining historic streetscape; and
(iii) The proposal does not satisfy the desired future character objectives for streetscape and architectural style. The proposed development should not be approved as it will create an unacceptable precedent within the existing residential area.
The Evidence
7 Mr Hayes, the objector said the proposal had a history of the house having a metal roof in the Council approval, but a private certifier approved a concrete roof fitted out as a terrace and Council had to take action against it. This application is the same in his opinion, and due to his proximity as the neighbour on the east of the subject property, the terrace will cause noise nuisance and overlooking of his back yard and living room windows. Other neighbours would be affected too, due to the proximity of houses to the site.
8 Mr Shirley said he had a conditional objection. He is the neighbour on the north, and operates a childcare centre from the property with a flat on top. He had applied to use a first floor large rear balcony as part of the childcare use and had been refused by Council If this is approved he believes his balcony should be approved for childcare use too.
9 Mr Hayes said the tenants of the flat used Mr Shirley’s balcony now and the noise of their activities from time to time is a noise nuisance. All the neighbours have that nuisance and it would have been much worse if used for childrens’ play. The existing noise is proof of the unacceptability of a roof top terrace on the subject site he said. Being one storey higher than Mr Shirley’s balcony, the proposal would project noise to disturb even more people.
10 The applicant said there are legal test cases that the history of the matter is irrelevant, and it is this proposal that is before the Court. The applicant volunteered that there had been a s 121B Order to demolish. The terrace was made unusable, and the Order was withdrawn and a Building Certificate issued with a condition of “no use of the roof” plus a covenant on title to that effect.
11 Also, the applicant said, the proposal is different to what the neighbours might think. It is only to use part of the roof space for recreation. The useable space will be relatively small and divided off from the rest of the areas that might overlook neighbours. Also the involvement of the acoustic expert, Mr Tonin, has shown that by restriction of the area to the southwest corner of the roof away from the neighbours, and the raising of glass balustrades to 1.570m above the terrace floor, noise nuisance will not occur and overlooking will not occur.
12 The plans in Exhibit E were earlier drawings CAL-01 and –02 and showed about half the roof to be the terrace being across the full Bourke St frontage.
13 The applicant put Exhibit G drawings CAL-01 and –02 both Revision B as the subject plans.
- They delete the area adjoining the north side and part of the Bourke St frontage, and put an 800 mm wide setback from the Bourke St and Cuthbert St edges of the roof on the basis of Mr Tonin’s recommendations. The setback is to be controlled by installing a glass balustrade along the 800 mm setback line from the parapet. At the edge of the roof all around is an existing 1m high masonry parapet.
- The area of the terrace is reduced from about 50 sq m to about 20 sq m.
- Also Exhibit G changes the profile of the new roof over the stairwell to make it less visible from the streets below and from the neighbours.
- The original drawings also showed a solar panel array on the non-trafficable part of the roof, and on Exhibit G the panels are deleted.
- On the ground floor there is a new hood roof over the front entry porch to give it weather protection.
14 The respondent objected that the plans were only received recently. The applicant said the plans only give effect to its draft conditions that had been properly filed and served. I noted that the plans appear to involve a substantial reduction rather than an increase in impacts. Further the respondent said its experts could deal with the amendments in oral evidence, and the amendments had been explained to the objectors on site, and I had heard their evidence. I allowed Exhibit G.
15 The applicant said that the raised roof of the stairwell would hardly be seen, and the existing parapet is approved at7.6m high, and the only likely vision from neighbours would be the glass screen going to 1.570m above the roof, or only about 500 mm above the parapet. Being setback from the parapet now, only part of the glass screen would be visible.
16 The respondent noted that the parapet was approved at 7.5m the maximum height limit under the WDCP, so the parapet is actually 100 mm too high at RL84.4.
And the top of the stair roof is proposed at RL 86.1 so it is 1.8 m above the maximum.
17 Another consideration is that Council does provide for upper level balconies, but they are to be a maximum of 10 sq m area and 1.5m wide so that there is limited potential for entertainment use and therefore little noise nuisance. The size intentionally is too small for furniture. In this case even with the reduced size of the terrace, it measures more than 5 m in two directions, and so there is ample room for furniture and entertainment. Shade umbrellas, or even more permanent structures if needed, would be highly visible from the street and surrounding buildings and encourage regular use of the terrace for entertainment.
18 The applicant said the WDCP cannot prohibit, only apply merit requirements. In this case it says to minimise overlooking, privacy and noise nuisance.
The amended proposal solves those concerns. The applicant also contended that Part D cl 5.6.2 of WDCP 2006 (Amdmt 2) is the relevant control for balconies, terraces, verandahs, decks and roof terraces. They are all mentioned by name in their relevant “bullet point” of cl 5.6.2, and only the last two bullets appear to relate to roof terraces.
19 From that the applicant submits the 10 sq m area and 1.5m width only apply to elevated external decks, decks along side boundaries and rear decks.
20 Roof terraces have the controls “not to be capable of use as entertainment areas” and “generally not acceptable” but in exceptional circumstances they may be approved where:
- Balustrade is compatible with the overall detailing of the building, of low reflectivity, preferably open design, setback from the roof edge by 1 m minimum to reduce overlooking of neighbours.
21 Mr Tonin and Mr Betros put that the only substantial existing outdoor space for the house is the eastern rear Courtyard that is immediately beside Mr Hayes, and is one of the sources of nuisance he complains of. The roof terrace is at the opposite end of the site with the house itself acting as a barrier to noise. Mr Tonin said the noise reduction achieved by the reduced area of terrace and its location at the west end of the building, and the masonry and glass acoustic screening will mean very little would be heard by Mr Hayes or Mr Shirley.
22 Also the applicant put that the terrace would be used by the family and perhaps small groups of friends that could hardly be called entertainment.
Being two-storeys up and remote from the living room and kitchen, the terrace would be inconvenient to use for a party. Also the applicant accepts conditions that no sound reproduction device would be operated on the terrace, and it would not be used before 8 am or after 10 pm on any day, except it could be used up until midnight on any Friday, Saturday or day immediately before a public holiday.
23 Ms Rossi said these latter conditions would be hard to enforce. Also the redesign of the terrace might reduce impacts on Mr Shirley and Mr Hayes, but the proposal is just as close as before to houses across both Cuthbert and Bourke Streets. They would get noise from the terrace. Also the glass balustrade even though raised to 1.5 m for acoustic purposes would be “see-through” and create privacy impacts.
24 Mr Betros said the distances of separation are significant, about 24 m to the nearest house across Bourke St and about 30m across Cuthbert. The second storey windows of the subject house already look directly at those neighbours, so if “privacy” is an impact, they already have it. Mr Betros felt the distances of separation only confirm the exceptional circumstances of this proposal under cl 5.6.2 of WDCP.
25 The final point of the respondent is that there are few if any roof terraces allowed in Queens park, and the Council has discouraged them due to the closeness of neighbours to each other and the nuisance impacts they create. It was put that there were no roof terraces visible from the site. The introduction of this terrace would have an adverse impact on the character, amenity and not fit in with the predominantly Federation and Victorian streetscape.
26 The applicant pointed to a row of new town houses visible from the subject roof at No.15 Blenheim St, still under construction, and in the same Residential 2(a1)
zone under the WLEP. Also an older terrace house across Bourke St on the corner of Cuthbert has an elevated deck out from a dormer window/door in its roof.
Conclusions
27 In regard to the stairwell, I noted that it is against the northern boundary adjoining No. 16A Bourke St, and therefore is largely hidden from view from the north by that property’s roof. Due to the parapets around the perimeter of the roof and the stairwell being 4.5 m to 7 m from any roof edge (apart from the north side), it would be difficult to see from the street level. If partly seen it would be a minor part of the bulk of the house that is in the currently popular “Tuscan” style.
28 I do not think the height of the stair roof could be sufficient for refusal.
29 According to the Council officer’s evidence the interpretation of cl 5.6.2 has come about because of problems encountered with roof terraces in Dover Heights and Queens Park. Ms Rossi has been at the Council 14 months and has dealt with four other roof terrace applications. Two were deleted, one greatly reduced and the last refused. She agreed if this application was 10 sq metres area and 1.5 m wide she would recommend approval.
30 It appears to me that the WDCP has not been amended to fit the Council interpretation of it. In this appeal the words must stand on their own.
31 Whilst Ms Rossi accepted Mr Tonin’s expertise on acoustics, she did not think the noise reduction measures would prevent nuisance to neighbours. But
there is no acoustic evidence to contradict Mr Tonin.
32 Mr Betros had identified a number of other roof terraces in Dover Heights that had been approved under the current WDCP or its predecessor that he said only was absent the words “only in exceptional circumstances” in cl 5.6.2. He said he calculated a maximum of 12 persons on the roof terrace is likely, given some furniture.
33 Mr Tonin said, with his measures, neighbours may hear something when there is activity of 12 persons, but it would be in the background and acceptable.
He had allowed noise level calculations for drinking, laughing, ladies with high pitched voices, but not shouting at the top of a person’s voice.
34 He agreed with about 12 persons on the terrace. It was put to him it could be 20; he said only if there was no furniture. Mr Tonin said with 12 persons the noise at the nearest neighbour would be background as monitored on site plus 5 dB. That is acceptable by noise standards within the time limits proposed in the conditions. If it was 20 persons it may reach background plus 10 dB. But, he said his calculation was conservative, as the background noise level he used was 37 dBA. That is quite a low noise level not usually reached until late at night or early morning hours. So in the mid hours of the evening, or if there were fewer than 12 persons, the neighbours would hear even less.
35 I have formed the opinion that a simple reading of the WDCP and the applicable clause 5.6.2 can only produce the interpretation the Mr Betros and the applicant submitted. Namely, that roof terraces are not confined to 10 sq m area and 1.5 m width, and that they are not prohibited. They are subject to the tests of exceptional circumstances and the prevention of nuisance for neighbours from noise and overlooking/privacy, design to be compatible with the host building and the streetscape, and setbacks from the edge of the roof.
36 The distance of separation from neighbours and persons in the street who may see the terrace is an exceptional circumstance, and the restriction of its size and Mr Tonin’s acoustic measures and time limits for use protect any nearer neighbours from nuisance by overlooking, proximity or noise. The amenity of the neighbourhood is protected, and neither the character of the area nor the streetscape are changed by this discreet roof terrace.
37 Overall I find no reason sufficient to refuse the proposal subject to appropriate conditions.
38 Therefore the orders of the Court are;
- 1. The appeal is upheld.
2. Development consent is granted for the changes to No. 32 Bourke St, Queens park as shown on drawings in Exhibit G as updated by drawing CAL-01 Issue B filed on 28 March 2007, subject to any amendments, and conditions for use required by conditions in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits 2, 4, G, and C.
___________________
Commissioner of the Court
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