Gea Gea v Bankstown City Council

[2009] NSWLEC 1405

Land and Environment Court

of New South Wales

CITATION:

Gea Gea v Bankstown City Council [2009] NSWLEC 1405

PARTIES:

APPLICANT
Dani Gea Gea

RESPONDENT
Bankstown City Council

FILE NUMBER(S):

10581 of 2009

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT CONSENT :- extension to existing upper floor balcony.
requirements for private open space
visual and aural privacy impacts
character of the area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Bankstown Local Environmental Plan 2001
Bankstown Development Control Plan 2005

DATES OF HEARING:

18 November 2009

 
DATE OF JUDGMENT: 

2 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr R O'Gorman Hughes (barrister)
SOLICITOR
Thurlow Fisher Lawyers & Consultants Pty Ltd

RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

2 December 2009

10581 of 2009 Gea Gea v Bankstown City Council

JUDGMENT

1 This is an appeal against the refusal by Bankstown City Council (council) of part of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent (DA/524-2006) which council granted on 1 March 2007 for alterations and additions to an existing dual occupancy development at 119 Hillcrest Avenue, Greenacre (the site), including the construction of a pergola and awning at the rear of the premises.

2 The s 96 application seeks approval for an entry structure in the front setback area, extensions to an existing rear facing first floor balcony and modification to a pergola, which have been constructed without consent. On 7 August 2009, council granted approval to the entry structure and pergola but not the extensions to the balcony.

3 The main issue in dispute between the parties is whether the balcony extension will result in adverse aural and visual privacy impacts and is uncharacteristic of the area.

The site and its locality

4 The site is located on the eastern side of Hillcrest Avenue. It is a relatively flat rectangular-shaped allotment, which is developed with a two-storey dual occupancy, with one residence occupying the ground floor and the other occupying the first floor.

5 The first floor of the development has a front and rear balcony, which span the full width of the building. The rear yard contains an in-ground swimming pool in the north-eastern corner and a covered patio area in the south-eastern corner.

6 The site is adjoined to the north and east by single-storey dwellings, to the south by a two-storey dwelling, and to the west by Hillcrest Avenue. The surrounding development consists of a mixture of single and two-storey dwellings.

Planning controls

7 The site is zoned 2(a) Residential under Bankstown Local Environmental Plan 2001 (LEP 2001). Dual occupancy development, dwellings, row houses and villas are permissible with consent within the zone. Residential flat buildings are prohibited.

8 Dual occupancy is defined under LEP 2001 as:

dual occupancy means “two attached dwellings (with a single common wall) or two detached dwellings on a single allotment where both dwellings face the street.

9 The parties agreed that the existing two-dwellings were approved as a dual occupancy development in August 1987 under the planning controls applicable at that time. The development would not be characterised as a dual occupancy development under the definition in LEP 2001.

10 Bankstown Development Control Plan 2005 (DCP 2005) has the same definition for dual occupancy as LEP 2001.

11 Section 8 - Visual and Acoustic Privacy of DCP 2005 includes the following relevant objectives and performance criteria:

Objectives
The objectives are:
a) to minimise the overlooking of a living area and private open space of a dwelling;
b) to maximise privacy between buildings; and
c) to ensure the design and siting of a building provide acoustic privacy for residents and neighbours in their dwellings.
Performance criteria
The performance criteria to achieve the objectives are:
a) the privacy of a dwelling (particularly a living area) and a private open space should be protected through:
i) the building layout and setbacks;
ii) the location and design of windows, balconies, terraces and the like; and
iii) landscaping and screening;
b) the building design should minimise overlooking in preference to a screening device, high sills, or obscure glass. Where used, these elements should integrate with the building design and have a minimal impact on the amenity of neighbouring properties.

12 Clause 8.3 and cl 8.4 provide the following development controls for upper floor balconies:

8.3 Council may allow an upper floor balcony to a dwelling house, dual occupancy, and family housing solely where the design and siting of the balcony.
a) takes advantage of a vista or provides appropriate privacy screening devices; and
b) is not accessible from a living area or hallway, and
c) does not have an external staircase; and
d) does not exceed a width of 1.5 metres throughout; and
e) is partially recessed into the building.

8.4 An upper floor balcony to townhouses and villas may require screening where the open space overlooks more than 50% of the private open space of a lower-level or neighbouring dwelling. The screening must be in the form of a permanent fixed structure such as:
a) a solid translucent screen or perforated panel that is:
i) durable and designed to blend in with the development: and
ii) the sum of the perforated panel opening do not exceed 25% of the total surface area: or
b) another form of screening to the satisfaction of council

13 Mr Seton, for the council, submits that cl 8.3 is a guide for the assessment of the application. Whereas Mr O’Gorman-Hughes, for the applicant, submits that it does not apply and that cl 8.4 is more relevant as a guide.

14 Section 10 - Open Space of DCP 2005 provides the following relevant objectives and performance criteria:

Objectives
The objectives are:
a) to provide sufficient open space for the reasonable needs of residents for privacy, access, outdoor and communal activities, and landscaping;
b) to provide private open space that relates to the living areas of dwellings.
Performance criteria
The performance criteria to achieve the objectives are:
a) the orientation and design of private open space should:
i. serve as an extension to the dwelling for relaxation, dining, entertainment, recreation and children’s play, and be accessible from a living area or bedroom of the dwelling;
ii. take advantage of any outlook or natural features on an allotment; and
iii. avoid overlooking and overshadowing from neighbouring buildings, and vice versa.

15 The Development Controls in cl 10.6 provide:

10.6 A dwelling house and dual occupancy must provide a minimum 80 sq m of private open space per dwelling. The private open space must be provided as:
a. a single space with a minimum area of 80 sq m and a minimum width of 5 m throughout; or
b. as two separate spaces provided each space contains an area greater than 35 sq m and a minimum width of 5 m throughout; and
c. the remaining spaces must have a minimum width of 2 m throughout.

16 Clause 10.7 requires a minimum of 60 sq m of private open space for townhouses and villas.

17 Clause 10.8 provides requirements for open space in residential flat buildings, which depend upon the zone and size of units and range between 55 to 70 sq m. No minimum requirement for private open space of residential flat buildings is stated other than in cl 10.13 which requires:

At least one balcony to each dwelling must achieve a minimum area of 15 sq m and a minimum width of 3 m.

18 DCP 2005 separately defines “open space” and “private open space” as:

Open space means any open or vacant area on an allotment that is designed, constructed or adapted for living or outdoor recreation, but does not include:
(a) a driveway, parking area, drying area or other service area, undercroft area, balcony, and the like: or
(b) any above ground terrace, deck, or verandah where the height of the floor level is more than 300 mm above natural ground level.

Private open space means open space used only by the residents of a dwelling.

19 The parties disagreed on the applicable planning controls given that the existing building is not a “dual occupancy” as defined under LEP 2001 and DCP 2005, and that “residential flat buildings” are not permissible within the 2(a) Residential zone. While the existing development does not fall within the definition of “dual occupancy” it was approved as such and is by its characteristics and function more akin to a dual occupancy development than a residential flat building, town house or villa. The controls in DCP 2005 for dual occupancy development or for other forms of residential development are not directly relevant to the existing development and therefore operate only as a guide to what is reasonable under the planning controls. The proper planning approach is to consider whether the proposal meets the objectives and performance criteria in DCP 2005 for Visual and Acoustic privacy (s. 8) and Open Space (s. 10).

Evidence

20 The Court visited the site and heard evidence from the adjoining neighbour at 121 Hillcrest Ave whose principal concerns were the number of people that can be accommodated on the balcony extension and the likely visual and acoustic privacy impacts. He was also concerned about the loss of solar access in winter from the privacy screen.

21 The adjoining owner at 117 Hillcrest Ave made a written objection, which also raised the potential for acoustic and visual privacy impacts as well as the appearance of the balcony, particularly its steel construction.

22 The Court heard expert planning evidence from Mr L Joseph, for council and Mr J Mead, for the applicant.

23 The experts agreed that under the 1987 approval the ground level rear yard of the site, which includes a swimming pool and cabana, is common open space with direct access to both the upper and lower floor dwellings. This has an area of about 360 sq m (including the pool).

24 The area of the existing upper floor balcony is about 30 sq m with a width of 2 m along the entire length of the rear of the building. The proposed extension is 6.9 x 2.3 m, an increase of about 16 sq m.

25 The key difference of opinion between the planners is whether the existing rear (and front) balconies provide adequate private open space for the upper dwelling.

26 In Mr Mead’s opinion, the amount of private open space required to provide reasonable amenity is not only related to area but also to dimensions and to the size of a dwelling. He stated that the upper dwelling has an internal area of about 205 sq m with 4 bedrooms. The rear balcony is accessible off a living/dinning/kitchen area but has a maximum width of 2 m. In his opinion, a width of 2 m did not provide adequate private open space and amenity for a dwelling of this size.

27 Mr Mead recognised that the existing development does not meet the definition of dual occupancy in the planning controls. Nonetheless, it was approved as a dual occupancy development and its characteristics and function were that of a dual occupancy development.

28 In Mr Mead’s opinion, the minimum controls in cl 10.6 of DCP 2005 for private open space for dual occupancy (80 sq m and minimum width of 5 m) were an appropriate guide for the reasonable private open space requirements of the existing dwelling.

29 Mr Mead acknowledged the large area of communal open space provided at ground level but did not consider that this replaced the requirements for usable private open space accessible off living areas required by the objectives for Open Space in s. 10 of DCP 2005.

30 Mr Mead accepted that the proposed extension would probably increase the use of the balcony, particularly as it would be large enough for outdoor dining. However, in his opinion, this would not result in privacy impacts beyond those expected for a residential development. He agreed that a privacy and acoustic screen should be placed at the southern end of both the existing balcony and the proposed extension, which would prevent overlooking of 121 Hillcrest Ave and mitigate acoustic privacy impacts. He considered this would result in less impact than the current balcony as this has no screening.

31 Mr Joseph held the contrary position that the communal open space, together with the balconies at the front and rear of the upper dwelling, were more than adequate to meet the needs of the upper floor unit. In his opinion, a width of 2 m was adequate to provide usable private open space for a dwelling of this size. He considered the open space controls for residential flat buildings were an appropriate guide and that the existing amount of communal and private open space was more than adequate. Even if the controls for dual occupancy were used as a guide, Mr Joseph stated that the existing balcony and the extension did not comply with the requirements for upper level balconies in cl 8.3 of DCP 2005.

32 Mr Joseph was particularly concerned that the extension of the upper balcony would increase the potential for large social gatherings and that it would be able to be used in a more active rather than passive manner, particularly for entertaining and parties. Although he accepted that the proposed privacy/acoustic screen on the southern end of the existing and proposed balcony extension would limit opportunities for overlooking of 121 Hillcrest Ave and mitigate acoustic impacts.

33 Mr Joseph considered that a similar screen should also be required at the northern end of the existing balcony as he considered this would also be used more and result in potential impacts to 117 Hillcrest Ave. He did not consider a privacy/acoustic screen to the northern end of the proposed extension to be necessary as it is setback about 9 m from the boundary to 117 Hillcrest Ave.

34 Mr Mead considered the privacy/acoustic screen to the northern end of the existing balcony to be unnecessary as the area is utilized mainly to provide access to the stairs and this would not change.

35 Both Mr Mead and Mr Joseph agreed that the materials and the details of the proposed pergola (Exhibit 6) were acceptable given the varied materials and types of buildings in the area. However, Mr Joseph considered that upper level balconies of the size proposed were uncharacteristic of the area. Mr Mead stated that there were examples of large upper level balconies in the vicinity of the site, although he considered “vertical dual occupancies” to be unusual he did not consider that upper level balconies were uncharacteristic of the area.

Findings

36 The key question is whether the proposed balcony extension meets the objectives and performance criteria for Visual and Acoustic Privacy and Open Space in DCP 2005.

37 To answer this question it is necessary to assess what are the reasonable requirements for open space, including private open space for the existing development and to balance these against the potential impacts on adjoining properties.

38 The form of dual occupancy development envisaged under DCP 2005 is attached by a common wall with the primary private open space likely to be at ground level off living areas and secondary private open space at an upper level off an area such as a bedroom. While the existing development does not fall within the definition of dual occupancy development it was approved as such and its requirements for private open space are those of a dual occupancy development. These requirements cannot be met at ground level given the stacked arrangement of the dwellings. The communal open space does not replace the need for usable private open space directly accessible off the dwelling.

39 The controls in DCP 2005 for dual occupancy private open space require a 80sqm with a minimum width of 5m (cl 10.6). Clearly this is not envisaged to be in the form of an upper level balcony with a width greater than 1.5 m or adjoining a living area with an external staircase (cl 8.3). However, given that this is the current and only feasible location for private open space for the upper floor dwelling, the proposed extension must be considered within this context.

40 I accept Mr Mead’s evidence that while there is clearly more than adequate communal open space at ground level, adequate private open space to meet the needs of the upper dwelling is not an unreasonable expectation. The width of private open space is an important criterion in establishing its usability, as are other factors such as solar access, outlook and accessibility to living areas.

41 The existing balcony at the rear is reasonably large, north facing, with an outlook to the city and direct access to the living areas. However, I accept that its width limits its use for activities such as outdoor dining. Although, its size, proportions, outlook and aspect mean that it is already suitable for use for parties and other entertaining for large groups, as is the communal area at ground level. There is currently no privacy/acoustic screen at the ends of the existing balcony, which enables direct overlooking into the adjoining properties, including part of the pool area of 121 Hillcrest Ave.

42 The proposed condition for a privacy/acoustic screen on the southern end of the existing and proposed balcony will limit overlooking into 121 Hillcrest Ave, including its pool area, and mitigate noise impacts to an acceptable level in a residential environment.

43 I accept Mr Mead’s evidence that it is not necessary to provide an acoustic screen at the northern end of the existing balcony, as its size and use do not change and it is unlikely to be used by large groups with resultant noise impacts. However, this area provides access to the swimming pool and communal open space and already overlooks 117 Hillcrest Ave, it is therefore not unreasonable to provide a privacy screen to a height of 1.8 m at the northern end of the existing balcony.

44 The only other condition in dispute between the parties restricted the use of balcony by residents/occupants of the ground floor dwelling. I have amended the condition to delete this component but to maintain the requirement that the balcony is approved as private open space for the first floor dwelling and is to be used only in association with this dwelling.

45 With these conditions, the use of the balcony for dining on a regular basis and occasional parties is not unreasonable nor will it result in significant impacts beyond those of the approved balcony, particularly as this is not currently screened.

46 On balance, I find that an increase in the width of the balcony from 2 m to 4.3 m is not unreasonable as this is the primary area of private open space for a four bedroom dwelling that is directly accessible off the living area. The proposal meets the relevant objectives and performance criteria Visual and Acoustic Privacy (s. 8) and Open Space (s. 10) in DCP 2005 and is therefore acceptable.

47 I also accept Mr Mead’s evidence that the upper level balcony is not uncharacteristic of the area and the extension would not warrant refusal of the application.

1. The appeal is upheld.
2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (DA/524-2006) for alterations and additions to a dual occupancy development at 119 Hillcrest Avenue, Greenacre, is approved. The consent is modified as set out in Annexure A.
3. The exhibits, except exhibits 1, 6, 7, B and E, may be returned

___________________

Annelise Tuor
Commissioner of the Court