Godwin v Randwick City Council

[2005] NSWLEC 568

Land and Environment Court

of New South Wales

CITATION:

Godwin v Randwick City Council [2005] NSWLEC 568

PARTIES:

APPLICANT
Paula Margaret Godwin

RESPONDENT
Randwick City Council

FILE NUMBER(S):

10756 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Spa pool
noise and visual impact

LEGISLATION CITED:

Randwick Local Environmental Plan 1998
Swimming Pools Act 1912

DATES OF HEARING:

29/09/2005

EX TEMPORE JUDGMENT DATE:

09/29/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Hold
of Verekers Solicitors

RESPONDENT
Ms A Bowen
of Bowen & Gerathy Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

29 September 2005

10756 of 2005 Paula Margaret Godwin v Randwick City Council

JUDGMENT

1 This is an appeal against the refusal by Randwick City Council (the council) of a development application (203/2004) for a spa pool on the front terrace of 172 Beach Street, Coogee (the site).

2 The proceedings were conducted as an On Site Hearing. A description of the site, its context and the history of the application are contained in the Statement of Basic Facts.

3 No written expert evidence was tendered but planning evidence was heard on the site from Ms L Ozog, for the council, and Mr A Smith, for the applicant. Mr S Poidevin and Ms R Fahlstrom of 170 Beach Street and Mr A Stephenson of 174 Beach Street provided resident evidence.

4 The site is zoned residential 2(c) under Randwick Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent. Spa pools 900 mm away from a boundary are exempt development and do not require consent under LEP 1998. The Dwelling House and Attached Dual Occupancy Development Control Plan (the DCP) applies to the site.

5 Neither LEP 1998 nor the DCP have specific controls that relate to spa pools or swimming pools. Section 4.5 of the DCP relates to visual and acoustic privacy. Its objective is:

to ensure that new buildings and additions meet occupants and neighbours requirements for visual and acoustic privacy.

6 The key issue in this case is whether the proposed spa would achieve this objective. The other issues are whether the location of the spa is a safety hazard and whether it had an appropriate impact on the character of the area, being a foreshore protection area.

7 The properties at 170 and 172 Beach Street are a pair of two-storey semi detached dwellings. Both have front terraces which are not identical but are similar in their size, appearance, set back from the street and are elevated above a sandstone wall to the properties. The terrace of 174 Beach Street and other properties in the street are also similar to the terraces of 170 and 172 Beach Street in that they are exposed to both the street, the beach reserve and each other and therefore provide little privacy or separation.

8 The use of the terraces of the semi detached dwellings is to provide access and as outdoor living areas for passive recreation including outdoor dining areas with expansive views of the ocean.

9 The proposal provides for the north east corner of the terrace of 172 Beach Street to be extended towards the street to accommodate the spa. It will adjoin the common boundary and access stairs of 170 Beach Street and be about 3m from this property’s outdoor dining area.

10 The owners of 170 Beach Street were concerned that entry to their house would be past the spa and that it would be clearly visible from their terrace and their eating area. They considered the noise and activity of the spa use to be incompatible with and compromise the use of their terrace.

11 As stated above, the DCP has no specific controls for spas or swimming pools. A spa use would be more akin to a swimming pool and as such would be considered as a more active recreational use than passive uses associated with a terrace area. A spa is a use, like a swimming pool, that has the potential to adversely impact on residential amenity, although probably not to the same extent as a swimming pool.

12 I note that the council report, which recommended approval of the application, acknowledged that the location of the proposed spa has the potential to cause disturbance to the occupants of adjoining properties in terms of noise and privacy. It was found that this was acceptable on the basis that the properties already overlooked each other and can be used for social gatherings and entertaining purposes. The report concluded that the spa would provide an additional facility for social and entertaining purposes.

13 Mr Smith held a similar opinion and considered that the noise generated from the spa and its location would not adversely impact on the acoustic or visual privacy of adjoining properties. He noted that the terraces already experience high levels of noise from the road and the beach and the potential for noise impacts from the existing use of the terraces. In his opinion, the spa would not contribute to this existing noise in an unacceptable way. He said that the motor for the spa was located within the sub-cavity space beneath the pool and neither it, nor the jets or the use of the spa by people would cause unreasonable noise.

14 I do not accept this opinion. A spa is clearly a more active use than the existing passive use of the terraces. I recognise the applicant’s desire to locate the spa to take advantage of the expansive views of the ocean. However, there is already approval for a plunge pool at the rear of the site that could incorporate a spa. The council and the residents agreed this would not impact on their amenity. The location of the spa on the front terrace immediately adjoining the entry stairs at 170 Beach Street and in close proximity to their main outdoor dining area is unreasonable as there is a degree of incompatibility between the two uses.

15 The terraces of the semis overlook each other and afford little privacy. However, they are both used for similar passive activities such as social gatherings with people talking and eating that generate similar impacts. This is different to the relationship and impact that is likely to result from the use of one terrace for outdoor eating and the other being used for a spa with the noise of the jets and the potential for a reasonable level of activity.

16 I therefore find that the location of the spa on the front terrace is not compatible with the characteristic use of these terraces and is likely to result in acoustic and visual privacy impacts beyond those reasonably to be expected from the use of a front terrace for passive recreation. On this basis the application must fail, particularly as there is the opportunity to provide a spa at the rear of the properties, which would not result in the same incompatibility of uses and impact.

17 As the application fails on this basis I have not addressed in any detail the other issues raised in this appeal. Although the proposal meets the requirements of the Swimming Pools Act 1912, as it has a clip-down cover, its accessibility to young children at 170 Beach Street would be of concern if the cover were not in place and the spa were left unattended. I note the applicant has indicated a willingness to provide a safety barrier or fences to address this issue, however, there was no evidence to determine what would be required or the extent to which this may add to the structures on the terrace.

18 The spa would also involve extending the terrace beyond the line of the existing terraces of both semis. While of itself this would not be a reason for refusal, the compatibility of the semis is largely achieved through their similar appearance and changes to one should not be considered in isolation from the adjoining pair.

Orders

19 The orders of the Court are therefore:

(1) The appeal is dismissed.
(2) Development application 203/2004 to construct a spa pool and timber balustrade at the front deck of an existing semi at 172 Beach Street, Coogee is refused.
(3) The exhibits may be returned.
(4) No order as to costs.

_______________________
Annelise Tuor
Commissioner of the Court
rjs