Issa v Woollahra Municipal Council

[2008] NSWLEC 1109

Land and Environment Court

of New South Wales

CITATION:

Issa v Woollahra Municipal Council [2008] NSWLEC 1109

PARTIES:

APPLICANT
Michael Issa

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10987 and 11141 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Application :- dwelling house, partly constructed
privacy issues

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

05/02/2007 and 06/03/2008

 
DATE OF JUDGMENT: 

10 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Reid, solicitor
of Pike Pike & Fenwick

RESPONDENT
Mr P Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

10 March 2008

10987 of 2007 Michael Issa v Woollahra Municipal
11141 of 2007 Council

JUDGMENT

1 These are two appeals against conditions of development consent granted by Woollahra Council (the council) for two applications for dwelling houses, which are partly constructed at 20A and 20B Tivoli Avenue, Rose Bay (the site).

2 Appeal No. 10987 of 2007 (DA 463/2007) is for 20A Tivoli Avenue. Appeal No. 11141 of 2007 (DA 464/2007) is for 20B Tivoli Avenue.

3 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.

4 The site has a long and complicated history. Previous approvals have permitted the erection of a dwelling house on both 20A and 20B Tivoli Avenue and the houses are partly constructed.

5 Unauthorised works were carried out and Class 4 proceedings commenced in the Court. On 12 June 2007, the proceedings were dismissed on the basis that an agreement was reached between the applicant and council which included the requirements that:

1. The upper storey building works above RL 24.7 to be demolished.
2. The development application to indicate a maximum height of RL 24.7.

6 The required works have been demolished. A survey of the work constructed to date has been undertaken (Exhibit G). The applications before the Court seek approval for work required to complete the dwellings and limit the maximum height to RL 24.7.

7 The appeals were heard together as a s 34 conference, which commenced on site on 5 February 2008. The s 34 conference was adjourned to enable further discussion between the objectors’ representatives, the council and the applicant. The main concern of the residents was to ensure that any consent would limit the height of the development to the height agreed to in Class 4 proceedings. The owners of the adjoining properties at 22 and 22A Tivoli Avenue were also concerned about the privacy impacts of the windows and the balcony on the northern elevation of the proposal.

8 The s 34 conference reconvened on 6 March 2008. After discussion, the only issue in dispute remained the privacy concerns of the residents of 22 and 22A Tivoli Avenue and whether the proposal met the requirements for privacy in Woollahra Residential Development Control Plan 2003 (WRDCP).

9 To address the privacy impact council proposed the following conditions.

3. Privacy treatment of study window
In order to adequately maintain the visual privacy of the rear terrace at 22 Tivoli Avenue the upper 1.2 m of the study window at ground floor level is to consist of fixed translucent glazing. Additionally the windows along the northern elevation to the ground floor family and living rooms are to be provided with fixed translucent glazing to a height 1.7 m above floor level. Such is to be indicated on the plans submitted with the construction certificate application.
4. Privacy treatment of ground floor level balcony
In order to adequately maintain the visual privacy of 22A Tivoli Avenue, a 1.7 m high fixed obscured glazed privacy screen is to be provided to the northern edge of the ground floor level balcony. Such is to be indicated on the plans submitted with the construction certificate application.

10 The applicant objected to these conditions and proposed fixed louvres 600 mm deep to the top of the windows to the study and family room and an 800 mm deep planter box to the balcony. Ms Reid, for the applicant, submitted that no treatment was required to the living room window as it was a significant distance from the deck and bedroom of 22 Tivoli Avenue (some 13.5 m at the closest point).

11 Further Ms Reid submitted that any overlooking of 22A Tivoli Avenue was limited to an entry courtyard, steps and walkway. The use of these areas and their separation did not necessitate any privacy treatment of the balcony or living room window. However, the proposed planter box would restrict overlooking of these areas from the balcony of 22 Tivoli Avenue.

12 The council report prepared by Mr D Booth, town planner, assessed the privacy impacts of the proposal. It stated that:

The provisions of Part 5.8 of WRDCP 2003 require the maintenance of the visual and acoustic privacy of adjoining properties and to ensure adequate privacy for the occupants of the proposed dwelling-house.

The owners of both adjoining properties to the north (22 and 22A Tivoli Avenue) have objected to the proposal on the basis of loss of privacy.

A recent inspection of the partially completed dwelling-house (with the first floor level demolished) enabled a full appreciation of the loss of visual privacy potential to adjoining properties as a result of the proposal.

The ground floor level (uppermost level) terrace and windows predominantly overlook the roof, entry, driveway and garage of 22A Tivoli Avenue. However, to prevent lines of sight down into 22A Tivoli Avenue, it is recommended that a planter be provided to the northern edge of the terrace.

The ground floor level study window is adjacent to the rear terrace of 22 Tivoli Avenue and whilst, the terrace of the adjoining property contains structures along its southern edge which partially obstruct lines of sight, it is recommended that the upper half of the study window consist of fixed translucent glazing in order to prevent lines of sight up to the adjoining terrace.

Subject to these conditions, it is considered that the ground floor level terrace and windows will not result in any significant loss of visual privacy to the adjoining properties.

13 The conditions sought to be imposed by council are more onerous than those recommended by Mr Booth.

14 The objective of Part 5.8 of the WRDCP is:

O 5.8.1 To ensure adequate acoustic and visual privacy for occupants and neighbours.

15 The performance criteria are:

Visual Privacy
C 5.8.5 Habitable room windows with a direct sightline to the habitable room windows in an adjacent dwelling within 9.0 m:
· are offset from the edge of one window to the edge of the other by a distance sufficient to limit views into the adjacent windows; or
· have sill heights of 1.7 m above floor level; or
· have fixed obscure glazing in any part of the window below 1.7 m above floor level.

C 5.8.6 Balconies, terraces, decks and other like areas within a development are suitably screened to prevent direct views into habitable rooms or private open space of adjacent dwellings; (see Figure 5.8.4).

C 5.8.7 Windows and balconies of an upper-level dwelling are designed to prevent overlooking of the private open space of a lower level dwelling directly below and within the same development.

C 5.8.8 Balconies are designed to provide privacy for occupants of the building when viewed from the street or nearby public space.

16 Figure 5.8.4 provides a diagram that illustrates the requirement for screening of views from windows to adjacent open space areas.

17 In applying this diagram to the proposal and 22 Tivoli Avenue, the only area where there may be a privacy issue is the area of the deck of 22 Tivoli Avenue which is within 9 m of the study window. As the study is directly off the living/family room area, I consider its use may be as a continuation of the primary living area.

18 The deck of 22 Tivoli Avenue is elevated above and only slightly overlaps the study window. The distance from the centre of the study window to the closest corner of the deck is approximately 7.7 m. There is a solid balustrade around the deck and until recently its southern side was enclosed. There is a 1.8 m fence along the boundary between the two properties.

19 I am satisfied that the combination of the separation distance, the elevation of the deck, the fence, the balustrade and the fixed louvres will ensure there are acceptable privacy impacts between the deck and people using the study in both a seated and standing position. The 1.2 m deep fixed louvres are not necessary to achieve reasonable privacy, particularly as the deck of 22 Tivoli Avenue is elevated above 20B and there are only oblique views up to the deck from the study.

20 In relation to the privacy impacts on 22A Tivoli Avenue, the areas that may be overlooked are within 9m but are not primary open space areas. The main outlook of the living/family room and the balcony of 20B Tivoli Avenue is to the water. The entry courtyard of 22A Tivoli Avenue is significantly below the level of 20B Tivoli Avenue and its occasional overlooking, even if it is used for children’s play, is not unreasonable in the context of other dwellings in the area. The planter box on the balcony will limit opportunities of overlooking into the entry courtyard. A 1.7 m high screen sought by the condition would block views from the proposal and is not warranted given the WRDCP controls.

21 Conditions 3 and 4, proposed by the council, are therefore deleted.

Orders

22 In relation to Appeal 10987 of 2007, the Orders of the Court are:

1. The appeal is upheld.
2. The development application (463/2007) for a single dwelling (partially constructed) at 20A Tivoli Avenue, Rose Bay is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits 1, A, B and G are returned.

23 In relation to Appeal 11141 of 2007, the Orders of the Court are:

1. The appeal is upheld.
2. The development application (464/2007) for a single dwelling (partially constructed) at 20B Tivoli Avenue, Rose Bay is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits 1, A, B and G are returned.

___________________

Annelise Tuor
Commissioner of the Court
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