Hamod v Wollongong City Council

[2014] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hamod v Wollongong City Council [2014] NSWLEC 1121
Hearing dates:	20 June 2014
Decision date:	20 June 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Consent Orders: Modification of development application; roof top terrace; impact of privacy and amenity of adjoining property
Legislation Cited:	State Environmental Planning Policy (Major Development) 2005; Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Anthony Hamod (Applicant) Wollongong City Council (Respondent)
Representation:	Mr M Mantei Planning Law Solutions (Applicant) Mr GJ Reilly Wollongong City Council (Respondent)
File Number(s):	10125 of 2014

Judgment

1. Mr Hamod obtained development consent DA-2011/856 (consent) from Wollongong City Council on 31 October 2011. That consent authorised the construction of a dwelling house at Lot 501 DP 1161858, No 2 Bowman Close, Bulli. The plans approved did not include a roof terrace as part of the development despite such a structure having originally been proposed by Hamod.

1. An application seeking to modify the consent by amending the approved plans to provide for a roof top terrace was lodged with the council and subsequently refused and Hamod is appealing that decision.

1. The issues in the case are visual privacy, acoustic impacts and visual impact. Those issues have been resolved through the submission of amended plans and the parties are now seeking consent orders from the Court.

The site and its context

1. The site is a corner allotment having a frontage of 12.5m to Bowman Close and 33.7m to Geraghty Street. It rear boundary adjoins a riparian area and further to the north is land used for industrial purposes. The Illawarra railway line is to the west of the site with dwelling houses erected on the adjoining site to the east and around the cul-de-sac roadway that is Bowman Close. The site is within a recent subdivision at Sandon Point that contains large, single and two storey dwelling houses. It is also in close proximity to Bulli Beach.

1. The dwelling house approved under the consent has been constructed and occupied. The rooftop terrace has also been constructed.

Background and the proposal

1. The application seeking to modify the consent was lodged following the council inspecting the property and finding the terrace had been constructed. An application for a building certificate was lodged with the council on 13 September 2013 and that application was subsequently refused on 24 September 2013. An Order under Section 121B of the Environmental Planning and Assessment Act 1979 requiring demolition of the roof top terrace as issued by the council on 7 November 2013.

1. The modification application was lodged with the council on 29 November 2013 and notified to owners of adjoining properties. One objection to the proposal was received from the owners of the dwelling to the immediate east of the site. The council refused the modification application on 19 February 2014.

1. The application sought consent to construct a spiral staircase at the southern end of the first floor balcony to access the rooftop terrace. The balcony was approved with a pergola roof and the plans provide for that roof to be constructed as a trafficable roof and used as the terrace area. Dimensions of the main area are approximately 4.4m x 4m with a narrow walkway along the eastern side of the building providing access from the stairway to the terrace area.

1. The reasons for refusal were the council considered the roof terrace would have an adverse impact upon the amenity of the occupants of the adjoining premises and an undesirable impact on the built environment in the locality. The development is not suitable given the impact on the amenity of the occupants of the adjoining premises and would set an undesirable precedent for similar inappropriate development and is therefore not in the public interest.

1. The appeal commenced as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 however no agreement was reached between the parties and the conference was terminated. As a result of the discussions held during that conference, the applicant filed amended plans with the Court. Those plans propose:

• Provision of solid walling along the eastern side of the level 1 balcony including the installation of two highlight frosted glass windows finished in render to match the existing dwelling;
• Deletion of the spiral staircase and installation of a retractable access ladder within the ceiling of the level 1;
• Provision of a 1200mm high parapet around the perimeter of the roof terrace;
• Provision of a 1000mm wide roof around the northern and eastern perimeter of the deck;
• Reduction in size of roof terrace to 4.4m x 3.1m.

The Planning Controls

1. The site is zoned R2 Low Density Residential under State Environmental Planning Policy (Major Development) 2005 (SEPP). Part 24 of Schedule 3 applies to the Sandon Point site. The objectives of the R2 zone are:

(a) to provide for the housing needs of the community within a low density residential environment,

(b) to enable other land uses that provide facilities or services to meet the day to day needs of residents,

(c) to minimise the impact of non-residential development on residential development (such as impacts relating to operating hours, noise, loss of privacy and vehicular and pedestrian traffic),

(d) to ensure that development does not destroy, damage or otherwise adversely affect the ability to protect, manage and restore waterways and riparian corridors.

1. Dwelling houses are permitted with consent in the R2 zone. The development as proposed is compliant with the development standards for floor space ratio and height.

The evidence

1. The conciliation conference commenced on site and included and inspection of the terrace and observation of the structure from the adjoining site. Evidence was heard from the objector on that site. A view of the Sandon Point subdivision was also undertaken.

1. The issues raised by the objector are summarised as follows:

• Proposal has been rejected previously, has been built without approval and the applicant continues to attempt to gain approval;
• Adverse impacts on the amenity of property from overlooking and noise; Privacy impacts, particularly to pool and rear yard area;
• Unsightly and out of character with design of the house and neighbourhood;
• Will be used as an entertainment area;
• Existing balcony already impacts on enjoyment and amenity through noise and overlooking and this will be exacerbated by the additional balcony area.

1. The council has notified the objector of its intention to enter into consent orders and advises that the objector maintains his concerns in relation to visual privacy impacts.

1. Expert Planning evidence was heard from Mr G Debnam for the applicant and Mr M Adamson for the council. They prepared a supplementary joint report that assesses the amended plans (Exhibit 1).

Visual privacy

1. The experts agree that the amended plans, subject to further amendments, have now incorporated a combination of roof elements and parapets that serve to limit the area that can be occupied. The design provides a solid form parapet with a roof element behind. This methodology prevents occupants of the terrace overlooking the adjoining yard area at No 4 Bowman Close. The parapet interrupts the view line whilst the roof element prevents the area immediately behind being trafficable for a width of 1 metre.

1. The outer wall of the parapet has a proposed height of 1200mm. They agree that at 1200mm the parapet may allow for some deliberate or casual overlooking of some limited areas, albeit less active or privacy-sensitive areas. However, it is agreed that if the outer wall of the parapet is raised to a finished height of 1350mm above the deck, no overlooking of the neighbouring property can occur. They also agree this would be an appropriate response to this contention and recommend the plans be amended to indicate the "new rendered wall" finished to a height of 1350mm.

Acoustic impacts

1. The experts agree that the amended plans now incorporate a solid rendered wall on the first floor balcony that will improve noise attenuation on this existing balcony. The area of the roof terrace has been reduced from that originally proposed and again, the solid rendered outer wall to a height of 1350mm, together with the proposed inner wall, will also improve attenuation. The reduced area serves to both move occupants a further r1meter from the adjacent boundary as well as limiting the number of people able to use this area. Given the reduction in usable area its overall use is also likely to be reduced. They note that the neighbouring property has air conditioning units and a pool pump located adjacent to the common boundary immediately below windows to the home and that these will to an extent increase the ambient background noise in this location.

Visual impact

1. The design now includes solid rendered surfaces and replaces the spiral staircase/glass balustrade construction visible from Bowman Close. The experts agreed that this better ties the addition in with the overall development. Mr Adamson noted a disparate glazed element remained on the street elevation and says it should also be finished in render, consistent with the rest of the works. Mr Debnam says that this was an attempt to mimic the scale and proportion of the rendered rectilinear form on the western side of the font elevation. They agreed that overall the design would benefit by the removal of the glazed element and a consistent rendered finish would be preferred.

1. Contentions in relation to inconsistencies with the plans and lack of dimensions were resolved through the provision of the additional detail included in the amended plans.

Conclusion and findings

1. Having regard to the evidence, I am satisfied that the contentions of the council can be addressed through the imposition of those further changes recommended by the experts and as shown in the further amended plans, Exhibit A. The Consent Orders filed as Exhibit 2 reflect those changes.

1. The concerns of the objector have also been addressed and in particular, though not related to the application, there is an improvement to the level 1 balcony area in terms of privacy and amenity impacts.

1. The Orders of the Court are:

(1)   The applicant is granted leave to rely on amended plans, Exhibit A in these proceedings.

(2) The Applicant is to pay the Respondent's costs in the amount of $500 pursuant to Section 97B of the Environmental Planning and Assessment Act 1979;

(3)   The appeal is upheld;

(4)   Development Consent DA-2011/856 granted by Wollongong City Council on 31 October 2011 for the construction of a dwelling house at Lot 501 DP 1161858, No 2 Bowman Close, Bulli is modified as follows:

(a)   Modify Condition 1 to include reference to the amended plans;

(b)   Modify Condition 5 to address the changes made to privacy screen details;

(c)   Add a new condition, Condition 5A to address access to upper level balcony;

(5)   As the consequence of Order 4, Development Consent No DA - 2011/856 is now subject to the consolidated, modified conditions of development consent set out in Annexure A.

(6)   The exhibits, other than exhibits A and 2, may be returned.

________________

Sue Morris

Commissioner of the Court

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Decision last updated: 26 June 2014