Chiefari v Waverley Council

[2017] NSWLEC 1567

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Chiefari v Waverley Council [2017] NSWLEC 1567
Hearing dates:	14 and 15 September 2017
Date of orders:	10 October 2017
Decision date:	10 October 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	The Court orders: 1. The appeal is upheld. 2. The application to modify development consent no. 486/2013 to include a roof top terrace of not more than 15m2, including a glass balustrade and opaque glass privacy screen at 172 Hasting Parade, Bondi is approved subject to the Council’s proposed conditions of consent. 3. The Exhibits are returned apart from Exhibits 2 and B.
Catchwords:	MODIFICATION APPLICATION - roof top terrace - impact on views, privacy and amenity; height compliance - INTERPRETATION - Waverly DCP 2012 - whether developments ‘contiguous’ to the subject site include a roof terrace - meaning of ‘contiguous’
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Goldin & Anor v Minister for Transport Administrating the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 HSN Holdings Bondi 2 v Waverly Council [2016] NSWLEC 1574
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Tony Chiefari (Applicant) Waverly Council (Respondent)
Representation:	Counsel: Mr P Tomasetti SC (Applicant) Mr S Patterson (Respondent)   Solicitors: BCP Lawyers and Consultants (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/146965
Publication restriction:	No

Judgment

1. This is an appeal pursuant to section 97AA of the Environmental Planning and Assessment Act1979 (‘EP&A Act’) against the refusal by Waverley Council of an application (DA 486/13D) to modify an approved dwelling (DA 486/13) at 172 Hastings Parade, Bondi (‘the subject site’) to add a 15m2 roof top terrace and access stair under an existing skylight. The design includes a transparent glass balustrade set back variously 3.39m to 4.19m from the front façade and a single lightweight privacy structure erected outside the terrace area made of toughened obscure glass parallel to the side boundary, set back 2.955m from the boundary and 4.19m from the front façade (‘the proposal’).

2. The background facts, statutory controls and original contentions are detailed in the Council’s Statement of Facts and Contentions (Exhibit 2) and the applicant’s Statement in Reply (Exhibit B). I do not need to repeat that detail, which I have read, save to note that the Council’s concern that the development will generate privacy impacts for the dwelling to the south, and facilitate opportunity for overlooking toward the properties adjacent (in particular into the property owned by the objector at 172 Hasting Parade) have been satisfactorily addressed by a redesign of the proposal to include a modified glass balustrade and opaque privacy screen (joint planners report Exhibit 3 at 2.2.1.1).

3. Put simply, the parties’ town planning experts, Steven Layman (respondent) and Kerry Nash (applicant), now agree that the proposed balustrade and privacy screen will not intrude into the 9.5m height control in cl 4.3 of the Waverley Local Environmental Plan 2012 (‘LEP’). And, while the upper corner of the obscure glass privacy screen will be visible from opposite the site at 157 and 163 Hasting Parade the experts agree that its reduction in height by 100mm (as proposed) and the detailing of the top front corner will likely address this view (Exhibit 3 2.1.1.3). They also agree that the recently approved 3 storey residential flat building on the adjoining site at 170 Hasting Parade will obscure the view of the terrace and its balustrade from the northern sections of Hastings Parade and that the balustrade will not be visible from the south.

4. And, while there is still a minor non-compliance with the 7.5m (above existing ground level) flat roof height control in the Waverley Development Control Plan 2012 – Amendment No 2 (‘DCP’) at C1.1.1 – generated by the privacy screen this non-compliance pales into insignificance when compared to the 2m height exceedance approved by the Council on the adjoining residential flat building to the north: HSN Holdings Bondi 2 v Waverly Council [2016] NSWLEC 1574.

5. In that context it cannot be argued that the Council has consistently applied the flat roof height control in this part of Hasting Parade or that the roof terrace on this site will be a detractive element above the roof in the streetscape. As I said, the proposed roof terrace will be barely visible from any public space and I am satisfied for the reasons stated by Mr Nash onsite and in the Courthouse that the proposal achieves the relevant objectives and controls in Section C1.4 of the DCP. That is, I accept that the street character of Hasting Parade, on the eastern side is dominated by 3 storey buildings, has distinctive roof forms, balconies and façade elements as evidence in the photographs 6 and 7 in appendix B to Exhibit 3 and confirmed by my observations at the site view. Accordingly, the opportunity to view a portion of an obscure glass screen on the lower roof of the dwelling on the site will not be incompatible with the height of adjoining dwellings or the streetscape of Hasting Parade.

The remaining Issue

6. At the conclusion of their oral evidence the parties’ experts were generally satisfied that the proposal complied with the matters raised by control (e)(ii) – (v) of Section 1.8 Visual and Acoustic Privacy of Part C1 of DCP.

7. They held different views about control (e)(i). For ease of reference I have reproduced the relevant provision in its entirety. It states:

“(e) Roof tops are to be non-trafficable and not capable of being used as a roof terraces or an entertainment areas, except in the following circumstances:

(i) Developments contiguous to the subject site include a roof terrace.

(ii) They will not result in unreasonable amenity impacts such as overlooking loss of privacy and unacceptable noise;

(iii) They are not to exceed 15 m² in area;

(iv)They provide for casual and infrequent activity and not as an extension of private open space entertaining areas; and

(v) Any access must be provided within the envelope the main building and there are to be no access hoods or lift overrun proposed above the main roof level. Operable skylights and hydraulic lifts are acceptable with a finished generally flush with the roof level.”

8. Put simply, control (e)(i) raises the question: “are there developments “contiguous” to the subject site which include a roof terrace?”

The Council’s position

9. Accepting that the word “contiguous” means: - “2. In close proximity without actually touching: near”, as defined in the Macquarie Dictionary – Mr Layman told me that in his assessment the control was referring to those properties adjoining the site and directly opposite. As there are no roof terraces on those four properties the proposal does not satisfy control (e)(i) of the DCP and therefore needs to be refused. To do otherwise, it is submitted, will undermine the Council’s DCP - which seeks to limit roof terraces in this part of the Ben Buckler area; and set a negative precedent for future development in this part of Hastings Parade.

10. Although the property at 151 Hasting Parade is one property outside his arbitrarily defined ‘contiguous’ area, when pressed, Mr Laymen said that he disagreed with Mr Nash’s assessment that the private open space accessed through the roof on that property was a roof terrace and insisted it was a balcony which did not satisfy the control (e)(i).

The applicant’s position

11. The applicant submits that the provisions of the DCP cannot be interpreted to operate as a prohibition to a proposal which is otherwise acceptable on a merit assessment under s 79C of the EP&A Act. Each case must be considered on its own facts. And, on any view of the evidence roof terraces are not uncommon in the vicinity of the site. The marked up aerial photograph (Exhibit 4) clearly identifies a number of balconies and/or roof terraces within the Ben Buckler area and more particularly identifies at least 3 roof terraces within Hasting Parade proximate to the site.

12. Of particular relevance is the existing roof terrace on the dwelling at 151 Hasting Parade which the applicant contends is contiguous with (i.e. lying near) the site being diagonally opposite.

13. Based on the evidence of Mr Nash, the applicant submits that the Council’s interpretation of the control (e)(i) invites something akin to a finding of a jurisdictional fact and a DCP control cannot be interpreted in this way.

14. Mr Nash accepts the Macquarie Dictionary meaning of the word “contiguous’ to mean “near” and on that basis does not agree that control (e)(i) is only referring to the 4 properties identified by Mr Layman. He believes that Mr Layman’s arbitrary definition of the relevant area does not facilitate a proper planning assessment of the proposal and rather mandates a refusal in circumstances where there is development with a roof terrace sufficiently proximate, near or ”contiguous” in the street to satisfy the control. The approved roof terrace/balcony diagonally opposite at 151 Hasting Parade – (and one property removed from Mr Layman’s’ defined area); together with those observed during the view on the older style flat buildings to the north of the site are clearly relevant. According to Mr Nash the irrationality of the Council’s interpretation of the provision was made plain by Mr Layman when he accepted the proposition that if the site was adjoining a development which contained a roof terrace then the proposal would satisfy this control of the DCP and be approvable. Mr Nash said that the Council’s interpretation of the control invites opportunity for bad planning and allows for a cascading development of roof top terraces irrespective of a merit assessment provided the site under review is contiguous with a terrace.

Consideration/findings

15. Following my observations at the view I accept that there are numerous balconies/roof terraces on properties within the Ben Buckler area (as identified on Exhibit 4). While the Court heard tedious evidence from the planners as to whether the roof terrace/balcony at 151 Hasting Street (deemed to be the nearest private open space extending from a roof) was in fact a roof terrace or balcony – which included an examination of the development plans approved by the Council in about 2007 - and discussion about the features which distinguish a roof terrace I must agree with the applicant’s submission that not much turns on this.

16. The EP&A Act and for that matter controls (e)(ii) and (v) of the DCP invite a consideration of the acceptability of the impacts of a proposal. In my opinion it is entirely unhelpful to get caught up defining the type of private open space which is obviously accessed from the roof space at 151 Hasting Parade in circumstances where the proposal is otherwise acceptable on a merit assessment under s 79C of the EP&A Act.

17. The EP&A Act is clear (albeit in respect of a development application) that a DCP provision cannot rise above the statutory planning scheme in the LEP to introduce more onerous standards: s 79C(3A) of the EP&A Act. While the section does not refer to a modification application it is not unreasonable in this case to accept as part of the public interest that an ambiguous and arbitrary provision in a DCP such as control (e)(i) cannot operate to displace a merit assessment which supports an approval of a proposal.

18. Based on my observations at the site view and the evidence as it evolved during the hearing I prefer Mr Nash’s assessment of the proposal and interpretation of the DCP control. The term “contiguous” must mean “near’ and on that basis if it is necessary to identify a roof terrace near the site to justify this proposal (which is entirely acceptable in my view on its merits) the private open space at 151 Hasting Parade fits the bill. Control (e)(i) is satisfied.

19. More importantly I accept Mr Nash’s assessment that the 15m2 proposed roof top terrace will provide a modest casual outdoor space from which to enjoy iconic views of Bondi Beach and the surrounding cliffs which are not otherwise available from the dwelling. I am also satisfied on the evidence of Mr Nash that the space is likely to be used infrequently because it is not an extension of a private open space or an entertaining area. It is accessed via an open able skylight and the DCP accommodates such access to a roof terrace: control (e)(v) of section 1.8.

20. In my assessment the proposal achieves the relevant objectives and controls in the DCP as identified by Mr Nash. It does not generate unacceptable privacy or amenity concerns. The proposed balustrade will preclude people from overlooking other properties despite the concern raised by the neighbour at 155 Hastings Parade. Given the size and location of the balcony it is unlikely to generate unacceptable noise because it is not accessed from a main living area and cannot hold a large crowd. In any event, there are several other balconies and terraces within the dwelling accessed from living areas which no doubt will be utilised more freely and frequently by the applicant and his guests.

21. In my view this terrace is very much a secondary private open space albeit with views to iconic Bondi Beach. As such it is not based on my observations an unusual feature of the area. As the Council’s submission to the exhibition of the Amendment No 2 to the Waverly DCP 2012 acknowledges:

“In Ben Buckler the “horse has bolted” on roof top terraces, and they are a defining feature of the area. In this locality a certain level of reduced privacy is mutually accepted by the community for the shared mutual benefit of improved views to the ocean and Bondi Beach”.

22. I have considered the objections raised by some of the local residents in writing and email and I am satisfied that their concerns about privacy, overlooking and noise have been adequately addressed by the modifications to the design and the size of the proposal. I accept Mr Nash’s evidence that there are no unacceptable adverse impacts generated by this proposal. I do not wish to labour Mr Layman’s evidence in respect of the need for the proposed terrace as this matter is clearly not a relevant in circumstances where it is agreed that there are no privacy or overlooking impacts generated by the proposal (Exhibit 3 at 2.2.1.1). Nor is his concern about precedent because it must be accepted that each case necessarily turns on its own facts: Goldin & Anor v Minister for Transport Administrating the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 at [7]. And, while Mr Layman raised issue about a possible loss of solar access to dwelling to the south by the proposed opaque privacy screen in the absence of shadow diagrams demonstrating as much I am not prepared to refuse the proposal on that basis and rely on Mr Nash’ assessment that there is no issue in this regard based on his calculations in the witness box.

23. While I acknowledge that the Council has over recent years attempted to limit roof terraces in certain circumstances, and to that end amended its DCP three times (Exhibit 3 at 2.3.1.1) it does not seem reasonable to me to require the refusal of this roof top terrace where there are no adverse amenity impacts on neighbouring residences, compliance with the numerical requirements and no adverse streetscape impact arising from a proposal. Inevitability, the Council’s DCP must be assessed under s 79C(1)(a)(ii) on the facts and evidence as presented at the time and weighted appropriately against all relevant considerations. After carrying out such a weighted assessment under s 79C of the EP&A Act there is no planning basis to refuse this proposal.

24. Accordingly, the Court orders:

1. The appeal is upheld.

2. The application to modify development consent no. 486/2013 to include a roof top terrace of not more than 15m2, including a glass balustrade and opaque glass privacy screen at 172 Hasting Parade, Bondi is approved subject to the Council’s proposed conditions of consent.

3. The Exhibits are returned apart from Exhibits 2 and B.

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Susan Dixon

Commissioner of the Land and Environment Court of NSW

Annexure A

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Amendments

25 January 2019 - Conditions of Consent marked as "Annexure A" are attached.

Decision last updated: 25 January 2019