Durbin v Ashfield Council

[2004] NSWLEC 686

Land and Environment Court

of New South Wales

CITATION:

Durbin v Ashfield Council [2004] NSWLEC 686

PARTIES:

APPLICANT
Michael Durbin

RESPONDENT
Ashfield Council

FILE NUMBER(S):

11092 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- S 96 appeal to amend development consent
overlooking
privacy

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1985

CASES CITED:

DATES OF HEARING:

25/11/2004

EX TEMPORE
JUDGMENT DATE :

11/25/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Johnson, solicitor
Bartier Perry

RESPONDENT
Mr P Jackson, solicitor
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

25 November 2004

11092 of 2004 Michael Durbin v Ashfield Council

JUDGMENT

1 This was appeal No. 11092 of 2004 between Michael Durbin and Ashfield Municipal Council in regard to the refusal of a s 96 application to amend DA 10.2003.301.1 issued on 10 November 2003.

2 The property involved was No. 10 James Street, Summer Hill. It was a medium sized single storey brick house, circa 1920 to 1930, with a large backyard.

3 Number 8 on its west side is a similar house, again with a large backyard. The property on the east of No. 10 is an Energy Australia yard, nearly all concreted.

4 The backyards of Nos. 8 and 10 are nicely landscaped with some mature trees, shrubs and lawn. Number 10 sought, and had received, an approval for a fairly large back verandah in DA10.2003.301.1, but it has not yet been built.

5 The reason given for not proceeding to construction was dissatisfaction with condition 6A and 6B of the consent, which were considered too onerous. Merit considerations and circumstances related to the conditions were heard at an on-site hearing. Attending the hearing were:

• Mr Peter Jackson, of Pike Pike and Fenwick for the council, and
• Mr Jeffrey Johnson, solicitor for the applicant, and with him
• the applicant Mr Michael Durbin applicant, and
• Mr J Overall, resident.

6 Also attending on behalf of the objector was:

• Ms Jane Hewitt, solicitor of Michelle Sillar.
• Ms Leona Goldsworthy of No. 8 James Street, Summer Hill, resident and objector, also attended.

7 The Court gave Ms Hewitt leave to act for Mrs Goldsworthy as an intervener but not as a party.

8 Evidence was heard from Mr M Durbin, applicant, and Mr J Overall, resident, of No. 10 and Ms L Goldsworthy objector and resident of No. 8 James Street. Ms Goldsworthy was the only objector to the proposal.

9 There was in evidence reports from the council’s bundle of documents in Exhibit 1, including the applicant’s town planner, Mr Michael Baker, of SPD Town Planners, and council officer reports in favour of the proposal by Mr M Morsanuto, Building Surveyor.

10 For the objector there was a report from Town Planner, Mr B Threlfo of Burrell Threlfo Pagan and letters from the objector’s solicitors, Taylor Kelso at one time and Michelle Sillar at the present time. There were also a number of letters from the objector and one letter from a nearby neighbour supporting the s 96 amendment.

11 Of some importance there was also minutes of a mediation held at No. 10 James Street on 6 November 2003. This mediation gave rise to agreed conditions between the applicant and the objector, namely,

“In order to preserve the privacy of adjoining properties, the following amendments are necessary.

A. The privacy screen to the western side of the deck is to be constructed of fixed louvres. The size and spacing of the louvres must be constructed so that no direct line of sight is possible.

B. The screening to the western side of the deck shall be extended for 1.8 metres to provide additional screening. The extended screen need not be provided all the way from the ground up. The extended screen shall begin from a maximum height of 2.1 metres above the ground and extend to a similar height as the proposed roof line of the deck.

C The steps to the rear, including the additional landing, shall be deleted. The replacement steps shall lead directly off the deck towards the rear of the garden. It was agreed the width of the stairs, the riser and going dimensions would be at the applicant’s discretion .”

12 In the consent issued by the council these became conditions 6(a), (b) and (c). Condition 6(a) and 6(b) were the subject of the s 96 application. The applicant wanted to delete condition 6(b) and change condition 6(a) to substitute a plan that showed the screening structure has horizontal timber slats with a 10 mm gap between.

13 The issues were:

.

Modification of development consent No. 10.2003.301.1 of 10 November 2003 (“the consent”) in the manner sought, pursuant to the s 96 application of 23 April 2004, by amending condition 6(a) and deleting 6(b) of the consent, will result in an unacceptable overlooking to the private outdoor open space of the adjoining property.
Particulars .

• Clause 6(a) of the consent provides:
6. Privacy Screen
“In order to preserve the privacy of adjoining properties, the following amendments are necessary:
(a) The privacy screen to the western side of the deck is to be constructed of fixed louvres. The size and spacing of the louvres must be constructed so that no direct line of site is possible.”
• The application for modification seeks to amend condition 6(a) as follows:
“Modification of condition 6(a) to provide privacy screening of 65 x 10 mm timber screwed on to 100 x 100 mm posts as shown on the accompanying diagrams.”

• The modification of condition 6(a) will permit persons standing on the proposed deck to have a direct view through the gaps in the privacy screen into the private open space of the adjoining premises at No. 8 James Street, Summer Hill. The potential for direct overlooking through the gaps in the now proposed privacy screen is contrary to clause 6.2.1(iv) of Ashfield Development Control Plan No. 1, dwellings and residential zones.
• The modification of the consent in the manner sought pursuant to the s 96 application of 23 April 2004 by deleting condition 6(b) of the consent will also result in overlooking into the rear private open space of the adjoining premises.
• Condition 6(b) of the consent provides:
6. Privacy Screens
“In order to preserve the privacy of adjoining properties, the following amendments are necessary:
(a) …
(b) “The screening to the western side of the deck shall be extended for 1.8 m to provide additional screening. The extended screen need not be provided all the way from the ground up. The extended screen shall begin from a maximum height of 2.1 m above the ground and extend to a similar height as the proposed roof line of the deck” .
• The application for modification seeks to delete condition 6(b) of the consent, which will result in overlooking directly into the rear private outdoor open space of the adjoining premises at No. 8 Summer Hill. Direct overlooking from the deck into the rear private outdoor open space is contrary to clause 6.2.1(iv) of the Ashfield Development Control Plan No. 1 Dwelling in Residential Zones.
2 Circumstances of the case and matters of public interest
Modification of the consent as proposed by the applicant is not in the public interest, having regard to the circumstances leading to the granting of the consent.
Particulars.
• On 12 September 2003 council received a development application seeking consent for the construction of an above ground deck at the rear of the premises, known as No. 10 James Street, Summer Hill. The application was notified in accordance with council’s policy of notification and council received a submission from the owner of adjoining premises at No. 8 James Street, Summer Hill.
• The written submissions of the adjoining owner, at No. 8 James Street, Summer Hill of 12 October 2003 raises inter alia issues of privacy and overlooking from the proposed rear deck into the private open outdoor space of the neighbour’s rear yard.
• On 6 November 2003 the applicant for consent, the owner of the adjoining premises at No. 8 and representatives of the council attended a site mediation at No. 10 in an endeavour to resolve the objector’s concerns relating to the overlooking issue. The mediation resulted in the applicant in those proceedings agreeing to the imposition of condition 6(a) and (b) of the consent, which are now sought to be modified.
• The conditions which are now sought to be modified pursuant to the application for modification ought to be retained, so as to maintain the integrity and efficacy of the agreement reached with the neighbour at No. 8 James Street, Summer Hill and the applicant during mediation which took place on 6 November 2003.”

14 The Court was taken into the yard of No. 10 and a step ladder was placed at the north west corner of the proposed deck. The Commissioner stood on the rungs at the same level as the proposed deck floor height, in order to observe how much of No. 8’s yard could be seen, if the 1.8 m side extension of the privacy screen was not built.

15 The council officer’s report on the s 96 application thought that a person in that location could only see into the north-east rear corner of No. 8’s backyard, and that would provide reasonable suburban privacy for No. 8. The objector said that she worked from home and used the landscaped backyard more than other people might, and she valued the privacy and amenity of her backyard. There were two sets of tables and chairs in the yard, one near the fence and the proposed deck, another further down the yard.

16 Taking into account the proposed deck and side screens to it, but not the extension of the side screens, the Court could see about half of the backyard of No. 8 from the step ladder, not just the rear north-east corner. True, areas closer to the fence were screened a little by the fence and shrubs but the heads of persons standing in those yard locations would still be visible from the deck by a person standing on the deck. There was only slightly less visibility when the step ladder was moved to the eastern side of the proposed deck location.

17 The council’s and the objector’s solicitor made the point that the deck was a large extension of the living room of No. 10 and had a pleasant northern aspect, pleasant views into the backyard. It would be well utilised when built. Regular use meant persons in No. 8 would be seen also.

18 The extended side screen would not give complete privacy to No. 8, but it would restrict casual viewing of No. 8’s backyard to the rear portions only, not the ones where the tables and chairs were located. Also the proposed slats with gaps between instead of louvres would enable some viewing by a person standing close to them.

19 A model to the full scale of the part of the screen had been made by the objector, and shown to the Court. The parties agreed it was accurate. It could be observed at the demonstration that a person standing behind the screen at about arms length could be readily noticed as might be the case if the screen was built that way.

20 The applicant put that screen vegetation had been planted in No. 10 that would eventually prevent any viewing from the deck to No. 8’s yard, making the need for screening unnecessary. The change to slats was to give a more airy look to the verandah, and let air circulate, and to let some western winter sun in through a gap in the trees. The grove of trees at the northern end of both backyards stopped winter sun from about 10am to 2 or 3pm into No. 10’s rear windows. But after that time there would be some solar access in the late afternoon.

21 There was also the question of early morning sun. The applicant said that the extension of the screen for the 1.8 m would prevent sun accessing the garden areas on that western side of the house, in order to encourage vegetation growth. The Court noted the condition that the screen not start until 2.1 m above ground level, such that morning sun could reach the boundary vegetation.

22 The applicant pressed that reasonable suburban privacy would be obtained for No. 8’s yard if the modification were allowed.

23 The terms of the applicable controls were in Ashfield Development Control Plan No. 1, cl 1.4(ii), (iii) and (iv). Clause 6.1.1(i) and (ii), and cl 6.2.1(iv). They are:

“Clause 1.4
(ii), to ensure new development has a high standard of urban design and site landscaping and contributes to the established character and residential amenity of Ashfield’s housing neighbours.
(iii) to ensure residential design follows an appropriate process and meets all those criteria necessary for the creation of good living environments, and
(iv) to ensure that new development does not cause loss of residential amenity for neighbours.
Clause 6.1.1
(i), the objectives for privacy are, to ensure housing design provides adequate privacy for residents, and
(ii) to protect visual and acoustic privacy of the neighbours.
Clause 6.2.1
(iv) windows and balconies shall not overlook adjoining areas of private open space. The outlook from windows, balconies, stairs, landings, terraces and decks, or other private communal or public areas within a development is to be obscured or screened where a direct view is available into adjoining areas of private open space.”

24 Bearing in mind the simple meaning of those controls and the extensive negotiation and final mediation on the many alternatives to provide reasonable privacy to No. 8’s yard, the Court finds it difficult to see a justification for the s 96 application.

25 At the time of the mediation agreement was reached and a consent issued subject to those conditions. If the screen extension was not built one would be able to see most of the active areas of No. 8’s rear yard from the elevated floor level of the proposed deck. The screen vegetation planted at the time of this hearing was not a condition of any original consent and being shrubs could be removed at any time by the current or any future owner of No. 10.

26 The deck being elevated putting the screen on the fence line was shown to necessitate a fence 2.5 m high to provide similar privacy and would be an unreasonable structure to impose on either property. The change of the screen to slats was shown to compromise the privacy it might otherwise provide.

27 The Court observed to the parties an alternative condition that the screen extension be required until the screen vegetation had grown to an acceptable height and density, but that option was not taken up for consideration by the parties.

28 The physical screen as approved was a reasonable requirement.

29 The orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned to the parties except for Exhibits 1, 2 and Exhibit A.

___________________________

K G Hoffman

Commissioner of the Court

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