Gilkes v Sutherland Shire Council

[2008] NSWLEC 1256

Land and Environment Court

of New South Wales

CITATION:

Gilkes v Sutherland Shire Council [2008] NSWLEC 1256

PARTIES:

APPLICANT
Andrew and Heather Gilkes

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10267 of 2008

CORAM:

Hoffman C

KEY ISSUES:

Development Application - Modification Application :- variation of consent, privacy, shadows, bulk

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006

DATES OF HEARING:

24/06/2008

EX TEMPORE JUDGMENT DATE:

24 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister

RESPONDENT
Ms J. Amy, solicitor
of Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

24 June 2008

10267 of 2008 Andrew and Heather Gilkes v Sutherland Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This is a Class 1 appeal between Andrew and Heather Gilkes and Sutherland Shire Council in regard to a condition of consent in DA03/1823 for No.s 22-24 North East Crescent, Lilli Pilli.

2 The subject property is a detached house on a large allotment having a 17 m frontage and varying depths between 35 and 55 m and a site area of 1132 sq metres. It slopes down from the street towards the rear and has on either side adjacent detached houses. There are a number of trees on the site and there are attractive panorama views over Port Hacking across the rear lawns. The proposal is to set aside a condition of consent for a small rear deck addition to an existing large deck on the subject property.

3 The deck was approved by Council after some debate over various conditions in regard to protection of the privacy of neighbours at No. 26 North East Crescent requiring a condition for a 2 m high masonry and translucent glass privacy screen on the southern edge of the elevated terrace parallel to the side boundary.

4 In the modification application which is MA07/0354, it was sought to delete this condition and to erect instead a screen within the side setback. The applicant had put two proposals one being sailcloth screens and the other being lattice screens on structures adjoining the boundary and these were both refused by the Council.

5 During the section 34 Conciliation Conference onsite, the parties did reach agreement that the condition requiring the masonry and obscured glass screen could be deleted. In its place there could be a privacy screen adjacent to the boundary constructed of horizontal batons approximately 3 cm by 3cm and set approximately 3 cm apart. This would allow some daylight in the early morning mid-winter and equinox period to go through the screen to bedrooms on the lower level of No. 26. As well as screening the bedrooms from persons on the small deck it would also screen out the rear yard of No. 26 currently visible from the kitchen windows of Nos. 22 - 24.

6 The parties also agreed that the existing stainless steel balustrade along the southern edge of this small terrace extension could be approved.

7 The conditions that were disputed between the parties that caused them to end conciliation, and proceed to an on-site hearing, were that the respondent wanted the existing kitchen windows and fly-screens to remain in the future, and that there be no tables and chairs to be placed on this new terrace extension for reasons of protecting the acoustic privacy of No. 26. The applicant sought that those two conditions not be imposed but a single condition be imposed being that a servery shall not be constructed in the location of the kitchen windows of No 22-24.

8 Hearing the matters discussed during the s.34 conference that the parties had agreed I should be able to take into evidence, it was obvious for the neighbours at No. 26 privacy had always been a concern, both visual and acoustic privacy. From their point of view, the original consent requiring the 2 m high translucent glass screen had satisfied their concerns in regard to those matters and a further consideration of proximity of bulk had been satisfied by this wall being on the edge of the rear deck extension and not adjoining the property common boundary.

9 The Council in its facts and contentions statement had concerns about:

1. Privacy for No. 26;
2. Daylight access to lower rear bedrooms in the spring and autumn periods;
3. Amenity in regard to privacy and daylight access in contentions 1 and 2, and the visual intrusion resulting from the location of the proposed alternative privacy screen;
4. Insufficient information in regard to sunlight shadows
5. Matters raised by the Objectors.

10 The screen the parties agreed on is lower than the original approval and its height above ground at the fence line had been decided by erecting two poles one at each end of the proposed screen and calculating the RL level. The screen does not block any water views and would be a little above a side fence amongst trees and shrubs. It would have little visual impact.

11 Whilst I am content with the agreed position of the parties with regard to the amended privacy screen and the conditions, I have to give closer consideration to the issues raised, particularly those raised by the neighbour in regard to the conditions in contention.

12 I note that this small rear deck which is an extension to substantial large decks at the rear of the subject house has a raised floor level up to the same as that of the kitchen. There is a large kitchen window which looks out over it and across the rear yard of No. 26. The applicant explained that the original consent in erecting a 2 m high wall on the outer edge of the balcony, blocked that view, and made the kitchen feel quite enclosed as well as the deck. The alternative solution would protect the neighbours’ privacy to a sufficient extent, whilst giving the applicant the benefit of a more open outlook from their kitchen window and this small rear deck extension.

13 The respondent was more concerned with the privacy of the lower two bedrooms, which could be looked into from this deck extension, than about rear deck to rear deck privacy between No. 26 and the subject site. There are already some privacy screens on No. 26’s rear deck that limit sightlines to and from No. 22-24’s large existing rear decks. The predominant views from both rear decks are straight down their individual backyards to the water. Sightlines to each others decks require a deliberate or a casual look almost at 90 across the common boundary. The water view is the attraction.

14 In looking at the various houses nearby it was obvious, because of the views over the waterway, that there is an extent of mutual overlooking from both ground floor and second storey windows and over each other’s yards. The yards might normally be called private open space but the fact is that people have very little absolutely private open space in this locality. This position has led to the respondents agreement to the reduced privacy screen, which as I’ve said before largely protects the privacy of the two lower bedrooms in No. 26 and protects to a greater extent than existing, privacy of its rear yard.

15 I am conscious of the fact that the original consent would have given No. 26 more privacy than the current proposal, and the respondent said that its additional conditions maintained that privacy to a suitable extent by limiting the use of this small rear deck extension.

16 The applicant objected to the condition on the basis that the existing kitchen windows are a combination of fixed glass and awning hung sashes with fly-screens attached. From a practical point of view it would be very difficult to use the window as a servery at the present time. Therefore the applicant said the main contention is that the window not be converted into a servery to convey food to and from the kitchen to people on the outer more extensive rear deck areas.

17 Also, the applicant said that in regard to tables and chairs on this small rear deck, it was most likely only to be used for breakfasts or perhaps noisier use during the occasional entertainments when large numbers of people are present. In the latter case, there would be no real change of intrusion from people on the small deck, as most of the noise would come from the larger decks and the occasional use for such purposes is typical of suburban living, and should not be a reason for such a condition.

18 The respondent said having no furniture on that small deck would mean that it would receive only limited use, and therefore be less likely to create a privacy problem for the neighbour. People at Nos. 22-24 would be more likely to use the extensive rear decks, and other tables and chairs on the subject property.

19 It seems to me that in this situation, the most appropriate decision is to approve the amended privacy screen and the existing balustrade on the small rear deck extension by amending Condition 1 in the consent and adding the two conditions that were agreed, plus all of the conditions proposed by applicant and respondent in Exhibit 1. I do not see that the requirement of the applicant that a servery not be constructed in the location of the kitchen windows is mutually exclusive to the respondent’s requiring the existing windows with fly-screens to remain. For more abundant caution I believe both should be applied including the requirement that there be no furniture for tables and chairs placed on that small rear deck.

20 Therefore the orders of the Court are:

1. That the appeal is upheld.
2. That modification application MA07/0354 is granted in regard to DA03/1823 for premises at 22-24 North East Crescent, Lilli Pilli subject to Condition 1, having inserted the agreed condition in Exhibit A plus the conditions contained in Exhibit 1 as set out in Annexure ‘A’ hereto.
3. The exhibits be returned to the parties except for Exhibits A and 1, 2 & 3.

___________________

K. G. Hoffman
Commissioner of the Court
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