Dorner D H v Council of the City of Sydney

[2007] NSWLEC 344

Land and Environment Court

of New South Wales

CITATION:	Dorner D H v Council of the City of Sydney [2007] NSWLEC 344
PARTIES:	APPLICANT: Daryll Hume Dorner RESPONDENT: Council of the City of Sydney
FILE NUMBER(S):	10297 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Amenity impacts Size of the deck
LEGISLATION CITED:	South Sydney Local Environmental Plan 1998, (SSLEP) South Sydney Development Control Plan 1997, (SSDCP) Environmental Planning and Assessment Act 1979, 76C and s96(6)
DATES OF HEARING:	08/06/2007
DATE OF JUDGMENT:	14 June 2007
LEGAL REPRESENTATIVES:	APPLICANT: Ms M-L Taylor, solicitor SOLICITORS: Norman Waterhouse, Lawyers RESPONDENT: Mr S Kondilios, solicitor SOLICITORS: Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

14 June 2007

10297 of 2007 - Daryll Hume Dorner v Council of the City of Sydney

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Council of the City of Sydney (the council) to refuse a Section 96(2)D modification application (D indicates the fourth modification application that the council has dealt with in respect of recent works) that seeks to delete Condition 2(a) of the previous approval requiring deletion of the unauthorised 10.17m2 rear first floor deck at No 183 Albion Street, Surry Hills. The subject property is part of the ‘Carlingford Terrace’ that dates from around 1869 and part of a heritage listed row of eight three-storey terraced buildings at Lot 1, DP 741154 and Lot 3 DP 106586, being Nos 179-193 Albion Street.

2 I have concluded that the application must be dismissed when considered on its merits under s 79C of the Environmental Planning and Assessment Act 1979.

The land

3 The land is situated on the southern side of Albion Street between Crown and Bourke Streets, Surry Hills.

4 The land is rectangular in plan with a frontage to Albion Street of 5.085m and a depth of around 47.6m giving an area of some 242.2m2. Erected on the land is a Victorian terraced building.

5 The area is characterised by a mixture of building types and styles with Victorian and Federation terraced buildings being predominant. Albion Street comprises a highly cohesive group of terraces and a significant range of fine houses.

6 The subject building is a three-storey terraced dwelling within a row of eight heritage-listed buildings. The group is divided into two four-terraces on each side of a central carriageway. Above the carriage way are two floors incorporated into an adjacent terrace at No 185 Albion Street owned by Dr D Westmore. The group is highly intact in its urban form although dormers have been added to the terraces at Nos. 191 and 193 Albion Street. The verandahs have been infilled at Nos. 187, 183 and 181. Double dormers have been added to Nos. 191 and 193. Unsympathetic tiles have replaced the once slate roofs. Where the group has been restored, pairs of French doors at ground level have been installed and the front gardens have been well vegetated.

7 The front facade of the subject terraced building (No 183 Albion Street), retains its urban form but the verandah has been infilled at the first floor and conceals two French doors with highlights. Much building work has been undertaken on the subject terraced building, particularly to the interior and rear.

Relevant planning controls

South Sydney Local Environmental Plan 1998, (SSLEP)

8 Under the provisions of the SSLEP the land is zoned residential 2(b) and the proposal is permissible with consent.

9 Clauses (12)(1)(a) and (c) and 28(1)(c), (d)(i) and (h) of the SSLEP apply to the land and the proposal.

10 The building is part of ‘Carlingford Terrace’, dating from 1869, a heritage listed row of eight three-storey terraces (Item No. 17) within the Bourke Street North Conservation Area (CA 6) and within the Albion Street Heritage Streetscape (HS 1) under the SSLEP.

South Sydney Development Control Plan 1997, (SSDCP)

11 The SSDCP applies to the land and the proposal, in particular the following sections:

· Part E 4.1 Visual and Acoustic privacy and

· Part F 1.2.5 Upper level decks.

12 Under Part F, 1.2.5 upper level decks are required to be restricted in plan to 3m2. The reason for restricting the size of upper level decks was to improve the visual and acoustic privacy of neighbours.

The proposal and its history

13 Modification application No D/2003/00441/D was lodged with the respondent council on 5 April 2006 to “…extend the first floor terrace at rear beyond the façade by 2m as shown on attached drawings.”

14 The proposed modification “…seeks to lessen the impact of the terrace by visually screening a portion of terrace from view from neighbours behind by making the balustrade glazing opaque.”

15 On 9 January 2004, development consent (U03-00441) was granted for a change of use of the subject terraced building from a boarding house to a single dwelling and alterations and additions including the refurbishment of the front facade, internal alterations and erection of extensions at the rear.

16 Condition 2 of this consent required the following:

That the following amendments shall be made to the proposal and revised plans demonstrating these changes shall be submitted to the Principal Certifying Authority for approval prior to the issuing of a Construction Certificate:

a) The balconies/terraces at the rear at ground and first floor level shall be deleted and the glazed sliding doors at first floor level on the rear elevation shall be replaced with a single window;
b) The kitchen at ground floor level shall be deleted and the adjoining full height internal wall shall be removed to allow compliance with the Building Code of Australia in regard to light penetration into the ground floor level. In this regard, the dwelling shall contain only one kitchen;
c) The original staircase extending from the front hallway is to be retained and restored.

17 On 2 February 2004 a s 96A application (the first modification application) requested the following modifications to the original consent:

· Removal of main staircase;

· Addition of extra balcony area to the rear of level 1 extension (2m deep, 10m2 area) (required to be deleted under condition 2(a) of the original consent and the subject of the current s 96D application);

· Replace internal wall with a new glass wall; and

· Add glazed roof over part of level 1 approved terrace within the light well.

18 These above modifications were assessed by the council’s staff to be reasonable except for the extension of the rear first floor balcony (second dot point above and the subject of the current s 96D application) which could not be supported by the reporting officer on the basis that it would detrimentally impact on the residential amenity of surrounding dwellings in terms of acoustic privacy and would also set a negative precedent.

19 A s 96B application (the second modification application) was lodged on 12 July 2004 requesting the following modifications to the previous consent:

· Addition of extra balcony area to the rear of level 1 extension (2m deep, 10m2 area) (required to be deleted under condition 2(a) of the original consent and the s 96A application discussed above and the current s 96D application);

· Utilise the attic space as a gymnasium/habitable space with an additional bathroom, storage area and two skylights on the rear roof elevation;

· Addition of an upper level deck to the rear of level 2, accessed from level 2 bathroom and laundry within the light well.

20 The above modifications were assessed by the council’s staff to be reasonable except for the extension of the rear first floor balcony extension (first dot point above and the subject of the current s 96D application) which was not supported due to its excessive size and as stated by the reporting officer would significantly impact on the acoustic amenity of surrounding properties and would likely set a precedent for this type of development which would have a cumulative negative impact to the amenity of the area.

21 A s 96C report dated 19 October 2004, dealing with the third modification application and associated Notice of Determination of 21 October 2004, were prepared to tidy up the previous approvals. In particular, whilst the s 96B assessment concluded that the rear ground floor balcony/ terrace was acceptable, this was not reflected in the decision and the reference to the deletion of the rear ground floor balcony/ terrace was unintentionally retained in Condition 2(a) of the s 96B Notice of Determination. The requirement for the rear first floor balcony extension to be deleted remained as required by Condition 2(a) of the original consent and in the ss 96A and 96B determinations.

22 The subject s 96(D) application (fourth modification application) was lodged on 5 April 2006 and sought to modify the original consent to permit the 10.17m2 extension of the side deck to remain. The present modification seeks approval of the same deck as was refused under the ss 96A, 96B and 96C determinations and as under Condition 2(a) of the original consent to be deleted.

23 That modification application D05-01737 (lodged in response to the council's Notice of Intention to Give an Order) approved the use of the ground floor of the premises as a local business organising events, with no more than two non-resident employees permitted.

Notification

24 The present modification application was notified on 13 April 2006, to nearby owners and occupants and the council received two objections. However, the third objector, Mr Meehan who occupies land to the rear had apparently written to the council however his letter had been lost in transit.

The council’s decision

25 The council refused the modification application for reasons that are reflected in the statement of issues.

The hearing

26 The appeal was filed on 10 April 2007 .

27 At the hearing the court heard evidence on behalf of the respondent council from Mr D Meehan, resident of the terraced building at the rear of No 183 Albion Street. He was permitted by the Court to give evidence after he clarified that he had written on behalf of the body corporate but apparently his letter had been lost in transit. The Court also received a statement of evidence in Exhibit 3 from Ms Clair Elek, town planner of the Council of the City of Sydney and who had also prepared the statement of basic facts.

The issues

28 On 1 May 2007 the council filed a statement of issues.

1. The proposal to delete condition 2 of the previous consents, thereby retaining the 10.17m2 deck that has been illegally built and is connected to another deck of 12.8m2 and to an entertaining area, does not satisfy the zone objectives in clause (12)(1)(a) and (c) of the South Sydney Local Environmental Plan 1998 .
Particulars
1.1 the retention and use of the subject deck does not enhance the amenity of the existing medium density residential area;
1.2 the retention and use of the subject deck detracts from the amenity enjoyed by nearby residents.
2. The proposal to delete condition 2 of the previous consents, thereby retaining the 10.17m2 deck that has been illegally built and is connected to another deck of 12.8m2 and to an entertaining area, does not satisfy clauses 28(1)(c), (d), (i) and (h) of the South Sydney Local Environmental Plan 1998 .
Particulars
2.1 The use of the subject deck and combined with the use of the adjacent deck and the entertaining area they serve is not compatible with the scale and design of neighbouring development.
2.2 The use of the subject deck and combined with the use of the adjacent deck and the entertaining area they serve is not designed with adequate provision for the privacy of occupants in the vicinity of the site.
2.3 The use of the subject deck and combined with the use of the adjacent deck and the entertaining area they serve is not an activity that is complementary to surrounding residential uses.
3. The proposal to delete condition 2 of the previous consents, thereby retaining the 10.17m2 deck that has been illegally built and is connected to another deck of 12.8m2 and to an entertaining area, does not satisfy the relevant Objective, Performance criteria and Controls of Part F 1.2.5 Upper level decks of South Sydney Development Control Plan 1997 . The acoustic privacy of surrounding residents will be impacted given the number of people that can be (and given the adjacent indoor entertainment area are more likely to be) accommodated by the subject deck and the adjacent deck (at first floor level thereby projecting noise a greater distance). In total, there are 23m2 of deck at first floor level connected to an entertaining space, the use of which will impact on the acoustic privacy of surrounding residents.
Particulars
3.1 the deck compromises the residential amenity and privacy of adjoining premises;
3.2 the use of the deck will result in excessive noise that will adversely affect neighbours;
3.3 the deck is itself much larger than the allowed 3m2 deck area with maximum 1.2m depth allowed. These maximum dimensions have already been significantly exceeded by the adjoining 12.8m2 deck.
4. the proposal to delete condition 2 of the previous consents, thereby retaining the 10.17m2 deck that has been illegally built and is connected to another deck of 12.8m2 and to an entertaining area, does not satisfy the relevant Objectives, Performance criteria and Controls of Part E 4.1 Visual and Acoustic Privacy of South Sydney Development Control Plan 1997.
Particulars
4.1 The size and location of the deck and its connection to a larger deck all located off an entertaining area is not designed to minimise the transmission of noise from the subject premises to adjacent premises.
5. The proposal to delete condition 2 of the previous consents, thereby retaining the 10.17m2 deck that has been illegally built and is connected to another deck of 12.8m2 and to an entertaining area, will set a negative precedent and therefore commence a negative cumulative impact with regard to unacceptable deck size and resulting acoustic impact to surrounding properties.
6. The use of the subject deck on its own as well as in association with the existing deck (which is also large) and adjoining entertainment area will have unacceptable acoustic impacts on the surrounding residents.

29 The amenity impacts and the size of the deck were the salient issues.

The evidence and findings

Amenity impacts and size of the deck

30 The proposed modification seeks to retain a 10.17m2 deck that has been built without approval on the first floor of the rear of the subject terraced building and is connected to another first floor deck of 12.8m2 on the western side of the dwelling that was approved by the council. The council says that the approved deck is already much larger than would be permitted under the SSDCP that seeks to limit the area of first floor decks to 3m2.

31 I have had regard for the evidence of Mr Meehan who is an owner and resident of the terraced development to the rear of the subject terraced building and for the objections of Dr D Westmore of No 185 Albion Street and Ms R Mikanovic at No 181 Albion Street who are side neighbours. These neighbouring residents all complained of aural and visual privacy impacts. Overlooking by the occupants of the subject terraced building of their rear yards and of their acoustic privacy were their main concerns.

32 Mr Meehan’s building is directly exposed to view of the occupiers of the deck and he gave evidence on the site inspection that he considered the overlooking of his building to be unreasonable.

33 Dr Westmore’s rear vegetated courtyard is partially screened from view by a tree growing in that courtyard and Ms Mikanovic’s rear courtyard is obliquely overlooked in the area of her washing line. On the site inspection, I visited the rear courtyard of Dr Westmore’s property and was able to see up to the deck. Mr Meehan’s property was observed from the subject land.

34 Ms M-L Taylor submitted that the applicant has never received a proper assessment of its modification applications by the council and considers that the first floor deck was not adequately dealt with on the merits. She submitted that there have been other 10m2 decks approved for nearby terraces such as at No 179 Albion Street that were approved after being screened by condition. She submitted that the SSDCP suggests ways of dealing with privacy, including the erection of screens. After returning to Court she tendered a drawing showing a glazed screen to 1.5m height to be positioned along the leading edge of the deck in Exhibit E.

35 She submitted the fact that the first floor deck is already constructed should not be part of the Court’s consideration, and that it should be dealt with on its merits. She submitted that as the leading edge of the deck would be situated around 12m from the courtyard wall of Mr Meehan’s terraced building and that his building is setback a few metres further that distance separation was sufficient to address his concerns and to ensure adequate privacy. She submitted that Mr Meehan’s unit is on the diagonal from the deck and he could improve his privacy to his bedroom by pulling down a blind. She submitted that on the merits this modification application would be satisfactory with a glazed screen in front of deck.

36 Mr Kondilios, for the council, submitted that the modification application for the first floor deck is “…not good enough for this dwelling that has been extensively renovated.” He submitted that the council has over time engaged in “…significant compromise to the applicant’s benefit. [This is a] …bit too much and enough is enough.”

37 The proposed use of the subject deck in association with adjacent entertaining uses both on its own, as well as in association with the entertaining use of the existing deck will be likely to adversely impact on the acoustic and visual environment of surrounding residents.

38 Under the SSDCP first floor decks are sought to be limited to 3m2. The council has approved a first floor side deck larger than permitted to the west of the entertaining area. On merit I am satisfied that this existing deck is in proportion to the use and should not be extended. This first floor side deck could be improved by placing a glazed screen to 1.5m in height at its southern end.

39 I am satisfied that the modification application to delete Condition 2(a) of the previous consent, cannot be supported. Thus the only deck off the entertaining area would be side first floor deck.

40 If the proposed 10.17m2 deck were screened as shown in Exhibit E to a height of 1.5m, it would bring the glazed southern wall of the proposal 2m closer to Mr Meehan’s terraces. I am satisfied that such an outcome would be visually assertive and out of character with the area. Also, as the applicant has only lately provided this option the neighbours have not had the opportunity to comment. However, in the circumstances, I consider further notification unnecessary. The council has been consistent in its opposition to this proposal on reasonable grounds.

41 For the above reasons, the appeal is dismissed.

Orders
42 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Modification application No D/2003/00441/D lodged with the respondent council on 5 April 2006 to “…extend the first floor terrace at rear beyond the façade by 2m…” at No 183 Albion Street, Surry Hills, is refused consent.

3. The exhibits except for Exhibits A, B, C, 1 and 2 are returned.

S J Watts

Commissioner of the Court

sw