Hassarati v City of Canada Bay Council

[2024] NSWLEC 1068

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hassarati v City of Canada Bay Council [2024] NSWLEC 1068

Hearing dates:

Conciliation Conference 12 December 2023

Date of orders:

22 February 2024

Decision date:

22 February 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA2023/0004 for construction of a masonry retaining wall along the northern boundary dividing No. 43 and No. 45 Dorking Road and the erection of a dividing fence subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – masonry retaining wall and dividing fence – foreshore area– compatibility with surrounding area – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.28 and sch 6

Canada Bay Local Environmental Plan 2013

Cases Cited:

Meriton v Sydney City Council [2004] NSWLEC 313

Super Studio v Waverley [2004] NSWLEC 91

Category:

Principal judgment

Parties:

Jason Napoleon Hassarati (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
P Tomasetti (Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
CKSD Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/206793

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2023/0004 for construction of a masonry retaining wall along the northern boundary dividing No. 43 and No. 45 Dorking Road and the erection of an 1800mm high privacy screen above the retaining wall (the Proposed Development) at 43 Dorking Road Cabarita legally described as Lot 101 in DP1223512 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 12 December 2023. I presided over the conciliation conference. At the conciliation conference, the parties were unable to reach agreement and the conciliation conference was terminated and the hearing commenced forthwith in accordance with s34AA(2)(b) of the LEC Act.

3. This case is about a proposed dividing fence to be constructed on a proposed new retaining wall along the northern boundary of a waterfront residential property. The issue in dispute, and for determination by the Court, is the terms of condition 13(a) of the agreed Proposed/Draft Conditions of Consent filed 13 December 2023 (Ex 3), namely, the ultimate height of the fence for a portion of the side boundary of approximately 11m closest to the foreshore. The Respondent seeks a reduction in height of the proposed fence of half a metre for that portion of the side boundary whereas the Applicant does not agree to that further reduction in height for that portion of the side boundary because, the Applicant submits that, the reduction in height sought by the Respondent will defeat the intended purpose of achieving visual privacy to the rear ground floor internal and rear external private open spaces of the Site by preventing overlooking at ground level from the adjoining property.

4. The Respondent submits that “the matter comes down to the Court being required to balance two things. One is the applicant's desire for privacy against two aspects. One, the impact of the Proposed Development on the scenic quality of the foreshore; and two, the impact on the outlook from number 45.” (Transcript 13 December 2023, page 77 at par 10). I note that view loss, or outlook from number 45, was not included as a contention in the Statement of Facts and Contentions (SOFAC) filed 9 August 2023 (Ex 1). The SOFAC sets out the Respondent’s case that the development application should be refused because of excessive bulk and scale and adverse impact towards the foreshore. In closing submissions, the Respondent submits that the difference in height of half a metre is achieved following an exercise of balancing the Applicant’s desire for privacy against the impact on the scenic quality of the foreshore and the Applicant’s desire for privacy against the impact on the outlook from the adjoining property at 45 Dorking Road.

5. The Respondent seeks, at Condition 13(a), the following amendment to the approved plans prior to the issue of a Construction Certificate (Ex 3):

“The fence eastward of window W-06 on 45 Dorking Road as shown in Plan 20025-06 shall not exceed RL 7.050 in height. From the point of the south eastern corner of the building at 45 Dorking Road easterly to the end of the fence, the fence shall not exceed RL 6.550 in height.”

6. The Applicant does not agree with the second sentence as underscored above. The Applicant’s Statement of Facts and Contentions in Reply was filed on 25 August 2023 (Ex B) however, ultimately the Applicant submits that the only means by which the Applicant can achieve the desired high level of visual privacy at ground level is by the construction of the fence as proposed without any further reduction in height as sought by the Respondent.

7. I have determined that the Proposed Development warrants the grant of consent subject to conditions including condition 13(a) to read as follows:

“The fence eastward of window W-06 on 45 Dorking Road as shown in Plan 20025-06 shall not exceed RL 7.050 in height.”

8. I now set out my reasons.

9. The Site is located within a low-density residential context with surrounding dwellings comprising detached houses of varying architectural styles that are generally orientated to the east, towards the waterway. A comparison between what is existing, depicted in Fig 1 Below from Drawing 20025-04 Elevation View existing (Class 1, Ex A) and what was proposed and prior to the agreed 200mm overall height reduction, depicted in Fig 2 Below from Drawing 20025-04 Elevation View – proposed (Class 1, Ex A) is reproduced below:

Fig 1: Extract of existing north elevation as seen from No 43 looking onto No 45 Drawing 20025-04

Fig 2: Extract of proposed north elevation as seen from No 43 looking onto No 45 Drawing 20025-06

10. The Court was assisted by the expert evidence of both Mr Anthony Betros, Town Planner for the Applicant, and Mr Barry Curran, Town Planner for the Respondent who prepared a Joint Expert Report (JER) filed 14 November 2023 (Ex C). I reproduce from the JER the general points of agreement between the experts as follows”

“GENERAL POINTS OF AGREEMENT

9. Both planners agree that a reduction to the height of the fence from 1.8m to 1.6m, as measured from the grassed private open space (RL5.45) of the northern neighbour at 45 Dorking Rd, would provide for an acceptable level of privacy.

10. Both planners agree that the Foreshore Building Line Map contained in the SOFAC is incorrect and relies on the updated map provided by BC [in the JER].

11. Both planners agree that the proposed extent of the fence is 8 meters from the Mean High Water Mark, which complies with the relevant provisions of the DCP (E3.2 -C7).

12. BC – Agreed that the DCP Control (E3.2 -C7), reads as “Boundary fences are not permitted within 8.0 metres of the mean high water mark”, however this was not demonstrated nor measured during the teleconference discussion.

13. Both planners agreed that a significant portion of the proposed fencing is within the Foreshore Building Line, as was demonstrated on Council's Intramaps during the teleconference and indicated above in the updated Aerial photos.”

11. I note the further general agreements reached in relation to the following:

1. Retaining wall as proposed including stormwater and drainage (condition 18);

2. Material of fence (condition 13(b));

3. Overall reduction of fence 200mm;

4. Conditions of consent except for the second sentence of the wording of condition 13(a).

12. The Applicant relies on the opinion of Mr Betros who considers that the extent of the fence at the agreed reduced height should continue without further reduction to the eastern extent of the property's grassed private open space area at 45 Dorking Rd. (JER Planning, par 15, Ex C)

13. The Respondent relies on the opinion of Mr Curran who considers that the extent of the fence (reduced by 200mm) in line with the southernmost corner/point of the roof parapet of the property at 45 Dorking Road and the remainder after this portion to the extent of the grassed private open space area to be taken 1 metre above the planter box level at RL 5.010. (JER Planning, par 16, Ex C)

14. The proceedings commenced on site and the Court heard from neighbouring objectors in accordance with the Notice of Objectors filed 5 December 2023, except that Mr Greg Boston spoke on behalf of the adjoining neighbour at No 45. The Court also inspected No 49B and the Court benefitted from a view of the Site and the surrounds from the water in a water taxi. All evidence during the site inspection is evidence in the hearing and only those discussions during the conciliation conference within the Court room remain without prejudice and confidential.

15. The Respondent Council’s contention as to bulk and scale is further particularised in the SOFAC and relate to the Foreshore Area (particular (a)), compatibility with the surrounding area (particular (b)) and Complementing materials (Particular (c)). Materials has been agreed and the dispute between the parties is now confined to the following words sought by the Respondent to be added to condition 13(a):

“From the point of the south eastern corner of the building at 45 Dorking Road easterly to the end of the fence, the fence shall not exceed RL 6.550 in height”

16. I therefore consider the foreshore area and compatibility in the context of the disputed wording of condition 13(a).

Bulk and scale in the Foreshore Area

17. The Site is in the Foreshore Area pursuant to the definition and maps in the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) and s 6.28 is relevant.

18. Particular a) provides as follows in the SOFAC:

“The [State Environmental Planning Policy (Biodiversity and Conservation) 2021] Biodiversity and Conservation SEPP, and specifically Part 6.3 Foreshores and Waterways Area applies to the site in that it does abut the Foreshores and Waterways Area. The site is located adjacent to zone 2 ‘Environmental Protection’ and Zone 5 ‘Water Recreation’. Specifically with respect to zone 5, an underlying objective seeks to ensure that the scale and size of development protect and improve the natural assets and the natural and cultural scenic quality of the surrounding area, particularly when viewed from waters in the zone or from areas of public access. Given the bulk and scale of the structure, the proposed development is viewed as inconsistent as does not assist in achieving the desired scenic quality. Further and with respect to the Sydney Harbour Foreshores and Waterways Area DCP, section 5.4 relates to built form and provides that walls and fences should be kept low enough to allow views of private gardens from the waterway.”

19. The Dictionary for Chapter 6 to the Biodiversity and Conservation SEPP in Sch 6 provides the following definitions:

Foreshores and Waterways Area means the area identified as the Foreshores and Waterways Area on the Foreshores and Waterways Area Map.

Foreshores and Waterways Area Map means the State Environmental Planning Policy (Biodiversity and Conservation) 2021 Sydney Harbour Foreshores and Waterways Area Map.

20. Section 6.28 of the Biodiversity and Conservation SEPP provides the general framework for deciding whether to grant development in the Foreshores and Waterways Area which includes mandatory considerations and jurisdictional prerequisites as follows:

6.28   General

(1)  In deciding whether to grant development consent to development in the Foreshores and Waterways Area, the consent authority must consider the following—

(a)  whether the development is consistent with the following principles—

(i)  Sydney Harbour is a public resource, owned by the public, to be protected for the public good,

(ii)  the public good has precedence over the private good,

(iii)  the protection of the natural assets of Sydney Harbour has precedence over all other interests,

(b)  whether the development will promote the equitable use of the Foreshores and Waterways Area, including use by passive recreation craft,

(c)  whether the development will have an adverse impact on the Foreshores and Waterways Area, including on commercial and recreational uses of the Foreshores and Waterways Area,

(d)  whether the development promotes water-dependent land uses over other land uses,

(e)  whether the development will minimise risk to the development from rising sea levels or changing flood patterns as a result of climate change,

(f)  whether the development will protect or reinstate natural intertidal foreshore areas, natural landforms and native vegetation,

(g)  whether the development protects or enhances terrestrial and aquatic species, populations and ecological communities, including by avoiding physical damage to or shading of aquatic vegetation,

(h)  whether the development will protect, maintain or rehabilitate watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity.

(2)  Development consent must not be granted to development in the Foreshores and Waterways Area unless the consent authority is satisfied of the following—

(a)  having regard to both current and future demand, the character and functions of a working harbour will be retained on foreshore sites,

(b)  if the development site adjoins land used for industrial or commercial maritime purposes—the development will be compatible with the use of the adjoining land,

(c)  if the development is for or in relation to industrial or commercial maritime purposes—public access that does not interfere with the purposes will be provided and maintained to and along the foreshore,

(d)  if the development site is on the foreshore—excessive traffic congestion will be minimised in the zoned waterway and along the foreshore,

(e)  the unique visual qualities of the Foreshores and Waterways Area and its islands, foreshores and tributaries will be enhanced, protected or maintained, including views and vistas to and from—

(i)  the Foreshores and Waterways Area, and

(ii)  public places, landmarks and heritage items.

(3)  In this section—

aquatic vegetation includes seagrass, saltmarsh and algal and mangrove communities.

21. I accept and agree with the Applicant that the evidence shows that the majority of the natural quality of the foreshore in the immediate area is mostly lost as a result of the constructed urban development however there is a natural rock outcrop adjacent to the Site. Mr Curran’s evidence in para 21 of the JER provides as follows:

“BC considers that the key element in assessing of the extent of the proposed fencing into the harbour foreshore area is the unique natural rock outcrop at this particular location. The property boundary cuts back from the southern edge of 45 Dorking Rd at the rear and drops off exposing a large expanse of rock face and shelf which gives this location a different appearance from the other properties along the foreshore. There are no other properties in the vicinity that have such a variation in depth as exists between these two sites. Considering this together with the proposed fencing which is greater in length than other rear fences in the immediate vicinity, the extent of depth of the proposed fencing will further exacerbate the negative impacts on the natural and scenic quality of the foreshore. BC considers the proposed depth of fencing, past the southernmost corner/point of the roof parapet of the property at 45 Dorking Road at the height proposed to be unnecessary in that it would result in a highly prominent structure visually which neither protects nor improves the natural and scenic quality of the surrounding area. …”

22. In the context that both planners agree that the proposed extent of the fence is 8 meters from the Mean High Water Mark, which complies with the relevant provisions of the DCP, and following my observations from the site view and the photographs in Ex F, I have formed the opinion that the wording proposed by the Respondent in Condition 13(a), which will result in a stepping down of half a metre, for a length approximately 11m when there is already compliance with the 8m setback will not necessarily enhance or improve the impact of the Proposed Development on the foreshore and the natural rock outcrop may be appropriate.

Is the appearance of the Proposed Development compatible with the surrounding area (Character)?

23. Particular (b) of the SOFAC provides as follows:

“The rear component of the structure protrudes within the Foreshore area and in this regard the provisions of clause 6.4 of the [Canada Bay Local Environmental Plan 2013] CBLEP are applicable. Subclause (2)(c) does permit such structures though that proposed is subsequently viewed as inconsistent with clause (3)(b) in that the appearance, from both the waterway and adjacent foreshore areas, will not be compatible with the surrounding area and is viewed to adversely impact upon the setting of the site. In this regard the configuration of the site and exposed rear component does contribute to the impact noting also that provided plans appear to incorrectly define the foreshore area.”

24. Mr Betros notes that the height of the fencing required to achieve an acceptable and reasonable level of privacy is due to the raising of the ground level of the property at 45 Dorking Road. The Respondent acknowledges in particular (c) of the contentions in the SOFAC that fill was utilised in the redevelopment of the adjoining property at 45 Dorking Road.

25. Mr Betros observes from the pre and post-construction surveys of No. 45 that the rear yard adjacent to the boundary has been significantly raised, which now necessitates a greater height of fencing than would be required if the land at No. 45 was not raised. (JER Planning par 27)

26. The Court is assisted by the Site view and the photographs taken from neighbouring properties and photographs taken from the water (Ex F) in order to assess compatibility.

27. The Applicant refers to the DCP Part E regarding Residential Development. E2 deals with Environmental criteria and residential amenity and E2.4 deals with visual and acoustic privacy. The Applicant relies on the objectives of E2.4 at page E-91 and places emphasis on the reference to ‘high level’. I reproduce Objective 1 of E2.4 below which reads as follows:

O1. To ensure the siting and design of a building provides a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open spaces.

28. The Applicant submits that visual privacy is very important for the psychological amenity of the occupants of a residence, “people want to feel safe and secure from visual overlooking, particularly in the privacy of their own home, and by that I mean within the building itself.” (Transcript 13 December 2023, page 67 at par 20)

29. Applicant’s closing submission (Transcript 13 December 2023, page 67 at par 36):

“There is some support from Mr Betros' evidence and we'd ask you to use your specialist expertise as well, but within the family the privacy of women, in particular, is very important. Women are generally, I think, the homemaker and in some cultures it's even more important that women are protected from view and that goes back centuries in different cultures. And that's embodied in our contemporary planning instruments, including the council's DCP by an explicit statement. There are feelings of discomfort arising if there is not freedom from overlooking. There are pressures of conformity to live away otherwise than you might otherwise naturally live from time to time, so that other people don't make adverse judgements about you, you just want to relax. And it encourages good neighbourly relationships.”

30. There is no evidence before the Court regarding the culture of the Applicant. The particular expertise of the Commissioner was also not identified or particularised. I therefore reject this submission as it is not supported by evidence and the Court is not assisted by it to determine the issues for determination, namely, compatibility of the Proposed Development and the disputed wording of condition 13(a).

31. The Applicant refers the Court to two decisions, namely Super Studio v Waverley [2004] NSWLEC 91 (Super Studio) and and Meriton v Sydney City Council [2004] NSWLEC 313 (Meriton Apartments) , and submits that:

“we're in a much more serious situation because in this case there is a complete absence of visual privacy from the rear yard of number 45 toward number 43. And the photographs [in Ex F] demonstrate it. … No reasonable person deliberately looks back to invade people's privacy, but they can do so quite inadvertently and unintentionally just in the course of turning around to move from one area to another or from being in a group of people talking, say in a circle, some are looking east, some are looking south, some are looking north, some are looking west. And those that are looking back in this case have the opportunity to see into the neighbour's place. The occupants of number 43 have an expectation under the DCP to a high level of visual privacy, which they are not getting.” (Transcript 13 December 2023 page 69 at par 29)

32. The decision of Meriton Apartments provides at [45] and [46] as follows:

“45 When visual privacy is referred to in the context of residential design, it means the freedom of one dwelling and its private open space from being overlooked by another dwelling and its private open space. Most planning instruments and development control plans acknowledge the need for privacy, but leave it to be assessed qualitatively. Numerical guidelines for the separation of dwellings exist in the Australia-wide guideline, AMCORD; as well is in the NSW-specific Residential Flat Design Code attached to SEPP 65. AMCORD recommends a separation of 9m between habitable rooms. The Residential Flat Design Code recommends increasing separation between buildings as they get taller. For buildings up to three storeys, it suggests 12m between habitable rooms and balconies, 9m between a habitable and non-habitable room, and 6m between non-habitable rooms. For tall buildings (such as the proposal) it suggests 24m between habitable rooms, 18m between habitable rooms and non-habitable rooms, and 12m between non-habitable rooms.

46 Generalised numerical guidelines such as above, need to be applied with a great deal of judgment, taking into consideration density, separation, use and design. The following principles may assist.

· The ease with which privacy can be protected is inversely proportional to the density of development. At low-densities there is a reasonable expectation that a dwelling and some of its private open space will remain private. At high-densities it is more difficult to protect privacy.
· Privacy can be achieved by separation. The required distance depends upon density and whether windows are at the same level and directly facing each other. Privacy is hardest to achieve in developments that face each other at the same level. Even in high-density development it is unacceptable to have windows at the same level close to each other. Conversely, in a low-density area, the objective should be to achieve separation between windows that exceed the numerical standards above. (Objectives are, of curse, not always achievable.)
· The use of a space determines the importance of its privacy. Within a dwelling, the privacy of living areas, including kitchens, is more important than that of bedrooms. Conversely, overlooking from a living area is more objectionable than overlooking from a bedroom where people tend to spend less waking time.
· Overlooking of neighbours that arises out of poor design is not acceptable. A poor design is demonstrated where an alternative design, that provides the same amenity to the applicant at no additional cost, has a reduced impact on privacy.
· Where the whole or most of a private open space cannot be protected from overlooking, the part adjoining the living area of a dwelling should be given the highest level of protection.
· Apart from adequate separation, the most effective way to protect privacy is by the skewed arrangement of windows and the use of devices such as fixed louvres, high and/or deep sills and planter boxes. The use of obscure glass and privacy screens, while sometimes being the only solution, is less desirable.
· Landscaping should not be relied on as the sole protection against overlooking. While existing dense vegetation within a development is valuable, planting proposed in a landscaping plan should be given little weight.
· In areas undergoing change, the impact on what is likely to be built on adjoining sites, as well as the existing development, should be considered.”

33. The neighbouring objector expressed concerns as to the impact of the Proposed Development on views, the outlook from no 45, and suggested that the existing hedge was sufficient. The Applicant notes and acknowledges that although the impact on views was not contended by the Respondent in the SOFAC, the Court is required to consider the objectors submissions pursuant to s 4.15(1)(d) of the EPA Act.

34. I note the Planning Principle that one cannot rely on landscaping for privacy as set out in Super Studio at [6] as follows:

“6 The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens.”

35. Mr Betros notes Mr Curran’s comments in the JER in relation to the potential loss of views for the neighbour at No. 45 resulting from the Proposed Development and confirms that such views are over the side boundary of the Site and Mr Betros opines that when having regard to the Tenacity Consulting Planning Principle, side-facing views are difficult to retain. Given that the fence is setback in accordance with that required by the Development Control Plan (DCP) (8m from the MHWM) and that the fence height of 1.6m from the grassed area of No. 45 is reasonable, I accept that the expectation of retaining uninterrupted views across a side boundary is unrealistic. I also accept that substantial views will be retained by the neighbouring property at No 45 from ground and upper levels, and that it is commonplace for views to be largely confined to the direct views eastwards in between side boundary fencing, as shown in the photos. The Court also observed that the internal areas of the neighbour’s dwelling are at a slightly higher RL than the grassed area RL, which will thereby retain some side views over the proposed fence. (JER Planning, par 32)

36. I do not agree that the height of the proposed fence is excessive because it is compatible with the area as evidenced in the photographs at Ex F, and the impact on the foreshore has been appropriately addressed by complying with the 8m setback and the use of materials.

37. For all of these reasons I conclude that it is appropriate to impose condition 13(a) as sought by the Applicant, that is, deleting the second sentence sought by the Respondent and without further reduction in height of the proposed dividing fence.

Orders:

38. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA2023/0004 for construction of a masonry retaining wall along the northern boundary dividing No. 43 and No. 45 Dorking Road and the erection of a dividing fence subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A

Decision last updated: 22 February 2024