Fegan v Lane Cove Council

[2008] NSWLEC 1171

Land and Environment Court

of New South Wales

CITATION:

Fegan v Lane Cove Council [2008] NSWLEC 1171

PARTIES:

APPLICANT
Inga Fegan (nee Rozenauers)

RESPONDENT
Lane Cove Council

FILE NUMBER(S):

10841 of 2001

CORAM:

Brown C

KEY ISSUES:

Development Consent :- Modification of development consent for a two storey house and a swimming pool and deck - overlooking and view loss from pool deck

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

28/04/2008

 
DATE OF JUDGMENT: 

29 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr I. Hemmings, barrister
SOLICITORS
Northside Law

RESPONDENT
Mr A. Seton, solicitor
SOLICITORS
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 April 2008

10841 of 2001 Inga Fegan (Nee Rozenauers) (formerly in the name of John Lei Fegan) v Lane Cove Council

JUDGMENT

1 COMMISSIONER: This is an appeal against conditions imposed by Lane Cove Council for the modification of development consent 287/198 for the construction of a two storey house and a swimming pool and deck at 52B Cliff Road, Northwood. The proposed modifications generally consist of:

1. increasing the floor space ratio from 0.5 to 1 to 0.54 to 1
2. a new design for the dwelling house
3. extending the length of the northern wall of the dwelling house by one metre towards the eastern boundary
4. a new design for the swimming pool and deck,
5. increasing the finished level of the deck of the aboveground swimming pool.

2 The contentions raised by the council address two main areas being the breach of the FSR requirement of 0.5 to one in cl 3.2 of the Lane Cove Code and Development Application Checklist for dwelling houses, fences, private swimming pools and outbuildings and the width, height and setback of the new pool deck. The FSR issue was not pressed by the council following the approval of the council of a boundary adjustment that increased the size of the lot and consequently the FSR requirements were satisfied.

3 Evidence on the remaining issue was provided by Mr Kerry Nash for the applicant and Miss May Lee for the council. The difference in the location of the proposed pool deck from that previously approved is an increase in the height of the deck by 1.35 metres from RL 23.5 to RL 24.85 and an increase in width in an easterly direction by 3.36 metres from 6.19 metres to 9.55 metres.

4 The change also provides for the reorientation of the pool from north-south to east-west. Amendments to the pool deck volunteered by the applicant propose reducing the coping width on the northern eastern and part southern edges of the pool from one metre to 0.5 metres to minimise the opportunities for people to congregate in these areas.

5 Any impacts from the change to the pool deck is felt by the adjoining property at 50A Cliff Road. The owner Ms Fiona Walkerton(?) provided evidence on site and her property was also inspected on the site view. The height location of the proposed pool deck was marked so an assessment could be made of any potential impact from Ms Walkerton’s dwelling.

6 Mr Nash states that the proposed location of the pool deck is acceptable as this area is located fifteen metres to the deck, nineteen to twenty metres to the living room and 690 millimetres below the dwelling at 50A Cliff Road. In his opinion this provides adequate physical separation in terms of the quality of privacy and amenity.

7 Miss Lee states that the proposed deck level should be reduced to that originally approved. While accepting that the reduction in the pool coping width would reduce the potential overlooking impacts, it would not eliminate the problem. This was a concern reiterated by Ms Walkerton. The use of privacy screens would not be acceptable as it would block the views across the pool deck to Gore Creek and Lane Cove River.

8 Loss of views was also addressed by the experts. Their evidence was based on the site inspections when both agreed that the proposed pool deck would not impact on views to Gore Creek and Lane Cove River because of existing vegetation in the Walkerton property. At the hearing, however, these trees have been trimmed to open up the views to Gore Creek and Lane Cove River. The water land in face was now visible from the eastern end of the lounge room of the Walkerton dwelling, although this view would be lost with the proposed pool deck.

9 On the issue of loss of privacy, I accept the conclusions of Mr Nash. Clause 3.6 of the Code addresses privacy and overlooking. The objective states:

“Buildings are to be designed and constructed so as the use will not significantly affect the privacy of the occupants of any adjoining site.”

10 I am satisfied that the separate distance between the pool deck and the Walkerton dwelling is sufficient to not create a significant effect. I agree that the reduction in the pool coping is a positive step to further reducing any potential overlooking. It is also relevant to take into account the size of the deck that will clearly encourage the congregation of people in this location rather than the pool coping and the attractive water views in the opposite direction to the Walkerton property.

11 The loss of views is an important matter, particularly with the recent trimming of the trees. In their consideration of the s 96 application, the council imposed a requirement that reduced the easterly extension of the pool by 2.5 metres. This was an amendment endorsed by Ms Walkerton.

12 With the benefit of the site view and an understanding of the location of the pool deck, I agree that this is an appropriate requirement even if not for the same reasons imposed by the council. The increased setback will maintain an unrestricted view corridor from parts of the lounge room of the Walkerton dwelling to Gore Creek and Lane Cove River and the important land water interface. While reduced views will be available across the new pool deck, I accept that the significance of these views is reduced because of the new pool deck and the likely activities on this area.

13 Ms Lee raised concerns over breaches of the setback and height requirements in the Code for the proposed deck. With the increased setback from he eastern boundary, I am satisfied that the respective objectives in cl 3.8 and cl 5 are satisfactorily addressed.

14 The width of the deck was also raised as an issue by Ms Lee. Clause 3.6 provides for a maximum width of 3.5 metres whereas the proposal provides for a 6.66 metre width. I note that the Code does not provide a maximum area for terraces or decks. In this case, the additional width raises no issues that would warrant any reduction in the size of the deck. This area is located at a further distance from the Walkerton property than the pool, some 25.5 metres from the centre of the deck to Ms Walkerton’s dwelling based on the evidence of Mr Nash.

15 Precedent was also raised by the council but because of the particular characteristics of the site and the application, I accept that it is likely that this application could be clearly distinguished from other similar applications if submitted to the council.

16 Other issues raised by the council but not as specific contentions were the cantilevered extension of the first floor of the eastern elevation. This extends one metre beyond the face of the building. However, I accept it creates no impacts that would warrant its deletion. The breach of the foreshore building line was also raised but with the proposed increase in the eastern setback of the pool deck, the degree of non-compliance is likely to be relatively small and not a matter that would require further amendments.

17 The council's condition requiring any landscaping limited on the site to 1.2 metres above the pool coping should be amended to limit any landscaping to the height of the pool coping. This will allow the views to be maintained from the Walkerton property over the pool deck.

18 Ms Hudson, there were a number of conditions that required amending before the judgment. I think Mr Seton marked those conditions. There was also some that require amending as part of the judgment. One is the setback, the extra 2.5 metre setback. The other is the amendment to the condition for landscaping on the site that limits it to the pool coping rather than 1.2 metres above the pool coping. I think they are the only ones that require amendment from the judgment but there were certainly some that were made yesterday just in handwriting on the exhibit that was handed up with the conditions. If there is any questions, you can just do an email thing and I will reply.

HUDSON: So the setback was an extra 2.5 metre setback from the eastern boundary, yes.

COMMISSIONER: Eastern boundary, yes.

HUDSON: Of the deck?

COMMISSIONER: Of the deck, yes. Well, from the edge--

HUDSON: Yes, I understand.

COMMISSIONER: And there was some discussion as to the terms of the orders, whether it was dismissed, upheld in part or whatever so I am happy to leave that to Mr Seton and Mr Hemmings to work that out so if you could provide short minutes of order, the amended conditions by the close of business on Friday which is 2 May.

HUDSON: Yes.

COMMISSIONER: If there is any problems with that just let the court know but that is four days to get that in order.

HUDSON: Yes, so approved subject to the conditions as discussed on site and the two changes to the conditions you have just mentioned now.

COMMISSIONER: And the other ones that were marked which I think Mr Seton has got copies of.

HUDSON: Yes.

COMMISSIONER: So just to clarify the 2.5, it was 2.5 back from what is already there.

HUDSON: Yes, on the eastern boundary, yes, I understand.

___________________

G T Brown
Commissioner of the Court
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