Just v Hornsby Shire Council

[2009] NSWLEC 1120

Land and Environment Court

of New South Wales

CITATION:

Just v Hornsby Shire Council [2009] NSWLEC 1120

PARTIES:

APPLICANT
Allan Just

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10760 of 2008

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT APPLICATION :- alterations and additions to an existing house
impact on views and privacy

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Hornsby Local Environment Plan 1994
Hornsby Dwelling House Development Control Plan

CASES CITED:

Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING:

7 and 9 April 2009

 
DATE OF JUDGMENT: 

30 April 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Just,
Litigant in person

RESPONDENT
Mr T Pickup, solicitor
of Storey & Gough Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

30 April 2009

10760 of 2008 Allan Just v Hornsby Shire Council

JUDGMENT

1 This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and additions to an existing house at 22 Warandoo Street, Hornsby (the site).

2 The key issues between the parties are whether:

1. the proposed two storey addition (the family/living/kitchen area on ground level and the master bedroom/ensuite on the first floor level) would adversely impact on the views from the adjoining property to the north, 20 Warandoo Street.
2. the proposal, particularly the proposed southern deck will have adverse privacy impacts on the adjoining property to the south, 24 Warandoo Street.
3. the proposed cabana should be set back from the rear boundary to 30 Greenvale Close.

Site and its context

3 The site is located on the western side of Warandoo Street, it has an area of 866.3 square metres with an average fall from the street of one in five to the rear.

4 A single storey weatherboard house is located in roughly the centre of the property. A swimming pool and pool shed are at the rear of the property.

5 The surrounding area is characterised by one and two storey houses from the 1950s and 60s as well as more recent dwellings.

6 The adjoining property to the north (20 Warandoo Street) is a one and two storey dwelling which is orientated principally towards the south west to take advantage of the views to the creek and council reserve. The adjoining property to the south (24 Warandoo Street) is a single storey weatherboard and tile dwelling at a lower level to the site. To the west the rear of the site adjoins 30 Greenvale Close.

Planning controls

7 The site is zoned Residential A (Low Density) under Hornsby Local Environment Plan 1994 (the LEP). The development is permissible with consent.

8 Hornsby Dwelling House Development Control Plan (the DCP) applies to the site. The DCP includes primary control elements, which council contends are relevant to the application relating to setback, height, privacy and solar access.

9 State Environmental Planning Policy – (Exempt and Complying Development Codes) (the SEPP) permits development that complies with specific development standards in Development Codes as exempt and complying development. This option may be open to the applicant but the standards in the SEPP are not of relevance to this application.

Background and the proposal

10 Both the applicant and the council prepared Statements of Facts and Contentions, which outline the extensive background to the proposal. The initial report to council recommended approval of the application. After further consideration and site visits, council refused the application on 5 December 2008.

11 A conciliation conference under s34 of the Land and Environment Court Act was held on 14 January 2009. The parties did not reach agreement and the conference was terminated.

12 The hearing commenced on site and the Court heard evidence from residents whose main concerns reflect the issues raised by council.

13 The Court heard expert evidence from Mr P Fryar, consultant town planner for the council. Mr B Newbold provided evidence for the council on alternate schemes which reduce the height of the addition to address the issues in relation to view loss and privacy.

14 Ms D Prowse, the architect of the proposal and Mr G Bakewell an architect provided planning and architectural evidence for the applicant.

15 Mr T Pickup, for the council, submits that the planning evidence of Ms Prowse and Mr Bakewell should be given little weight as they are not qualified planners. Further, Ms Prowse is the architect for the proposal and her personal relationship with Mr Just, the applicant, is unclear. It is not necessary for me to me to adjudicate on this submission as I have found that the application in its current form should not be approved because of unacceptable view loss impacts.

The issues
Height

16 The experts agreed that the overshadowing of 24 Warandoo Street resulting from the height of the addition would meet the requirement of the DCP.

17 Ms Prowse indicated that the proposal had been designed to limit the impact of overshadowing on 24 Warandoo Street by locating the addition away from the southern boundary, and to maximise solar access to its internal living areas by providing a light well to capture northern sun.

18 Mr Newbold provided a study of the overshadowing impacts in his Statement of Evidence. He concluded that over half of the rear yard of 24 Warandoo Street would receive approximately 4.5 hours of sunlight during mid-winter from 10:30am to 3pm. The overshadowing was similar to that of a 1.8 metre boundary fence.

19 The owners of 24 Warandoo Street remained concerned about the overshadowing impacts of the proposed addition and any planting or fence along or near their boundary.

20 The experts agree that the height of the addition is below the nine metres maximum in the DCP. They disagree whether the height achieved the objective of the control or complied with either the performance or other prescriptive measures for height in the DCP.

21 Mr Fryar and Mr Newbold consider that the treed outlook from the living areas and balcony of 20 Warandoo Street is important and will be adversely impacted by the proposal. Mr Newbold estimated the loss of outlook from particular vantage points to be:

• Approximately 50% looking to the south west
• Approximately 65% looking to the south
• Approximately 65% looking to the south east

22 Mr Newbold investigated the alternate options of lowering the height of the addition by one metre or providing a single storey addition. Lowering the height by one metre would not eliminate view loss but would achieve appropriate view sharing. He estimated the lowering would place the addition below standing adult eye height level and would reduce the obstruction to the view by approximately 50%. Mr Newbold considered these changes to be reasonable.

23 Ms Prowse and Mr Bakewell consider that there are other, better views, available from the living areas and balcony as well as from the bedrooms of 20 Warandoo Street. They consider that the outlook to be impacted upon was across a side boundary which results in a loss of privacy to the site and to 24 Warandoo Street.

24 Ms Prowse states that the height of the additions has already been minimised to reduce the impact on 20 Warandoo Street and that a further reduction in height was not feasible without placing unacceptable constraints upon the proposed design such as loss of solar access to the light well, increased excavation and potential for water inundation. She considered the alternative options to be an unreasonable impost on the development of the site.

Findings

25 I accept the evidence of Mr Newbold and Mr Fryar.

26 The element objective for height in the DCP states:

Building height consistent with residential development in the local area and that maximises privacy, solar access and views.

27 The prescriptive measures include the requirements that:

Dwelling houses on battleaxe allotments should not exceed single storey in height. Council will allow two storey dwelling-houses at the street frontage where they do not adversely impact upon the streetscape, privacy, solar access and views enjoyed by adjacent properties.

Two storey dwelling-houses should generally not exceed 9 m in height measured vertically from the natural ground level to the ridge line.

28 Mr Just, the applicant who represented himself, submits that the prescriptive measure for two storey development relate only to dwellings on battle axe blocks.

29 I accept that the wording of this prescriptive measure is unclear, but consider it would not make sense if two storey dwellings at the street frontage of battle axe sites were constrained by considerations such as views, but that two storey dwellings at the street frontage on single allotments were not.

30 Even if Mr Just is correct, the impact of height on matters such as privacy, solar access and views is a relevant consideration under s79C or the Act.

31 The principles to be considered when assessing view sharing were set out by Roseth SC in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The Senior Commissioner said:

25. The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26. The first step is the assessment of views to be affected. Water views are valued more highly than land views (eg Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interference between land and water is visible is more valuable than one in which it is obscured.

27. The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult that the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28. The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (through views from kitchens are highly valued because people spend so much time in them.) The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29. The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

32 Adopting and applying these principles to the present case, I find that the outlook from the living/dining area and balcony of 20 Warandoo Street is a view that provides amenity to the occupants. The house has been orientated and altered over the years, whether rightly or wrongly, to take advantage of the treed outlook. If standing at the window or on the balcony edge, the rear open space of 22 Warandoo Street can be directly overlooked. However, due to its elevation, from most positions inside 20 Warrandoo Street there is not overlooking of the site.

33 For people using the rear garden of the site, the presence of 20 Warandoo Street would result in a feeling of being overlooked with resultant privacy impacts. It is reasonable that the addition has been designed to try to screen 20 Warandoo Street, which is a building of excessive bulk that also impacts on solar access to the site.

34 Nonetheless, the building on 20 Warandoo Street is there and the amenity provided by its view would be severely impacted upon by the addition.

35 The height poles on the site as well as the 3D modelling of Mr Newbold and Ms Prowse clearly indicate that the primary outlook from 20 Warandoo Street will be largely removed by the addition.

36 The views to the west or from other parts of 20 Warandoo Street such as the bedrooms do not provide the same level of amenity as those views that will be lost. It is not reasonable to expect the living areas of 20 Warandoo Street to be relocated to access alternate views as suggested by Mr Just. The views affected are generally over a side boundary and are therefore more difficult to retain. However, given that these are the primary views from an existing building, I accept that it is reasonable to try to achieve a degree of view sharing. I recognise Ms Prowse attempts to reduce the impact by the height of the addition being less than the nine metre height limit. However, this does not alter the fact that the view loss will be significant.

37 The proposal that is causing the impact complies with the numerical controls in the DCP and is reasonable within the context of other buildings in the area particularly, 20 Warandoo Street. The key question becomes one of whether “a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on views to the neighbours.”

38 The answer to the question is yes. The alternative solutions proposed by Mr Newbold demonstrate that the addition could be lowered by one metre and provide a similar development potential to that proposed. I recognise Ms Prowse concerns about impacts on solar access to the light well, excavation and inundation but I do not consider that these place unreasonable constraints on the development when balanced against the impact of the proposal on 20 Warandoo Street.

39 Mr Newbold’s modelling did not demonstrate the same level of solar access to the light well that Ms Prowse considers will be available. However, even if I accept Ms Prowse’s opinion, the light well in Mr Newbold’s option is lowered by approximately 500mm and there are options that could relocate the window or the roof to achieve the same level of solar access. Alternatively, the light well is not part of the addition that is required to be lowered, as Mr Newbold and Mr Fryar accept the view loss in that direction.

40 The additional demolition involved is minimal given that it involves largely an existing porch which is to be altered to become part of the dining area. The additional excavation is also minimal and I accept Mr Newbold’s evidence that concerns about inundation exists with the current design. Within the context of the degree of alterations proposed to the existing dwelling these additional constraints not unreasonable.

41 Mr Newbold’s options are prepared to demonstrate that an alternative is feasible. They are not the only options. I am sure that Ms Prowse could propose an alternate design which reduced the height of the addition (the living/dining/kitchen area on ground level and the master bedroom/ensuite on first floor level) by one metre (to RL 149.40) and still provided acceptable solar access to the light well.

42 Further, I am not convinced that the location of the addition close to the northern boundary maximises solar access. I recognise the need to protect solar access to 24 Warandoo Street but consider that with a reduction in height of one metre there is the opportunity to place the addition further south without further impacting on solar access to 24 Warandoo Street greater than that proposed or the overshadowing that would result from the single storey addition. This may also have the benefit of placing the addition on a lower part of the site and reducing the extent of excavation.

Privacy

43 The principle concern of Mr Newbold and Mr Fryar relate to the privacy impacts from the large deck off the rear of the living area and which runs along the southern side of the addition. This deck is elevated above natural ground up to about 1.35 metres on its south west corner and is setback from the boundary about 6.3 metres.

44 Mr Newbold and Mr Fryar considered that due to the slope of the land, with the private open space of 24 Warrandoo being at a lower level to the site, there would be significant privacy issues. They recommended that these be addressed by a privacy screen along the southern side of the deck. They did not consider that there would be unacceptable privacy impacts from the upper deck off the bedrooms or the deck off the TV room due to the existing landscaping.

45 Ms Prowse and Mr Bakewell considered that due to the topography of the area there is overlooking and the impacts of the rear and southern decks are mitigated by separation landscaping and screen structures along the boundary.

46 Ms Prowse indicated that the purpose of the southern deck was to provide access to the deck of the TV room and to the garage. She agreed that it could be reduced in width to one metre which would limit its usage to that of a walkway.

Finding

47 The separation and elevation of the rear and southern decks above 24 Warandoo Street will result in privacy impacts. These would not be mitigated by a 1.8 metre fence along the boundary (due to the lower level of the boundary) or by landscaping without further increasing overshadowing impacts on 24 Warandoo Street.

48 The lowering of the addition by one metre would involve a lowering of the floor level of the deck and reduce, but not eliminate, the privacy impacts on 24 Warandoo Street. The reduction in the width of the deck along the south of the dwelling to one metre would limit its use to that of a walkway, also reducing privacy impacts on 24 Warandoo Street. A screen at the southern side of the rear deck would further prevent overlooking and should be required as a condition to any consent.

Cabana

49 The proposal seeks to extend the pool deck to the boundary at the north west corner and construct a cabana and pool room.

50 Mr Fryar considered that the cabana is ancillary to a dwelling and would require a three metre setback from the boundary under the DCP. However, he accepted that the impacts of the cabana on 20 Warandoo Street would be acceptable with a nil setback to the boundary.

51 Mr Fryer also accepted that the setback to 30 Greenvale Close could be reduced but due to the elevated position of the pool deck above 30 Greenvale Close, the cabana would appear as a two storey structure and that it should be setback sufficient to enable landscaping to screen the cabana. Ms Prowse and Mr Bakewell did not consider the cabana would impact on the adjoining property due to vegetation but conceded that the deck could be setback in line with the existing pool deck (about 600 millimetres.)

52 The owners of 30 Greenvale Close were also concerned about the existing location of the pool deck and the lack of a fence between the properties which enabled access to the underside of the pool deck and the pool machinery from their property. They wish to put a 1.8 metre fence along the boundary and considered that the pool deck and cabana on the boundary would preclude this.

Findings

53 I accept Mr Fryar’s evidence. The elevated deck and cabana would appear as a two storey structure from the adjoining property to the rear. A 600 mm setback would not be sufficient to provide landscaping to screen the cabana.

54 I find that the deck can be extended to within 1.5 metres of the boundary, which would provide space for landscape screening and still provide about a seven metre length of deck for the cabana and pool room.

Conclusion

55 In submissions, Mr Just indicated that he would not be prepared to make changes to lower the addition and that he preferred the application to be refused rather than approved with a deferred commencement condition requiring that the addition not exceed RL 149.40. On this basis the application should be refused.

1. The appeal is dismissed.
2. The development application for alterations and additions to an existing house at 22 Warandoo Street, Hornsby is refused.
3. The exhibits, except Exhibits 1 and B, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
es/ajl/ljr