Layman v Sutherland Shire Council

[2010] NSWLEC 1158

Land and Environment Court

of New South Wales

CITATION:

Layman v Sutherland Shire Council [2010] NSWLEC 1158
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Steven Layman

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10120 of 2010

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT MODIFICATION :- S96 Modification, Roof top terrace expansion; Privacy; Acoustic amentiy; view impact

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Council LEP 2006

DATES OF HEARING:

16 and 28 June 2010

 
DATE OF JUDGMENT: 

2 July 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Vergotis (solicitor)
SOLICITOR
DLA Phillips Fox

RESPONDENT
Ms J Amy (solicitor)
SOLICITOR
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

2 July 2010

10120 of 2010 Steven Layman v Sutherland Shire Council

JUDGMENT

Background.

1 This appeal is against council's refusal of a s96 application to modify aspects of a development consent granted for alterations to the roof of a dwelling at 17C Tara Street, Sylvania.

2 The consent approved the new roof and the use of part of it for a terrace subject to the following condition 38:

38 . Balustrading shall not at any stage be installed around the perimeter of the replacement conc r ete roof and shall not be used as a deck.

3 However the entire roof area has been constructed in a way, which has included the perimeter balustrade, thereby allowing a much larger terrace area than originally approved. The proposed modification relates to retention of the existing glass balustrade and the use of the roof as a roof terrace along with the installation of an obscure glass privacy screen adjacent the western edge of the roof terrace.

4 The contention raised in this appeal are summarised as:

• visual impacts; in that the location, size and height of the proposed privacy screens causes unacceptable visual impacts on the outdoor and indoor living areas of adjoining properties at 17 A and 17B Tara Street, Sylvania;
• loss of privacy;
• objections;
• design considerations.

The site

5 This property is described as Lot 4 DP 225029. It is a waterfront property on the southern foreshore of the Georges River and is access via a right of carriageway, which runs some 140 m from the street before joining an access corridor forming part of the subject property.

6 Situated on the subject land is a 2-storey brick dwelling. Ancillary structures comprise a carport and an in-ground swimming pool. Below the mean high watermark and appurtenant to the property is a jetty. This property, together with the neighboring properties, enjoy expansive views of the Georges River, Tom Uglys Bridge and the surrounding foreshore.

7 The site is subject to a number of planning controls as follows:

• Sutherland Shire Local Environmental Plan 2006 (SSLEP 2006); under which the site is located in the Zone 2 -­Environmental Housing (Scenic Quality).
• Draft Sutherland Shire Local Environmental Plan (Amendment 6); this draft LEP has been endorsed by Council and the Minister requested to make the draft plan.
• Sutherland Shire Development Control Plan 2006 (SSDCP 2006); which relatively contains general and urban design principles.

8 Detailed evidence was presented by:

• Ms D Pinfold; Council's town planner
• Mr S Layman; Applicant's consulting architect/town planner.

9 Following negotiation between the parties, the contentious elements of the S96 concern the size and associated usage of the upper level terrace whereby the applicant proposes:

• to formalise the use of the existing terrace/and roof area as constructed,
• to install a parapet atop the northern elevation (above bedrooms) to provide a privacy screen for other residents to the south,
• to provide a glass privacy screen varying in height from 1.8m at the building and transitioning to 1.2m high around the northern part of the terrace and including a 1 m wide safety area.

10 The modification application was notified and objections received from the neighbouring property owner at No 17B regarding loss of privacy and views and acoustic disamenity.

11 The experts conferred resulting in the submission of a joint report (Exhibit 5). This included a number of points of agreements and acknowledged that the occupants from the rear dwelling (No 17 A) are vulnerable to view loss and loss of privacy. Accordingly they discussed the various planning principles (Padfurn) and other controls in Amcord, which provide guidance for separation distances and associated privacy impacts in built up residential areas.

12 Ms Pinfold says that a smaller terrace area would result in an appropriate balance between the various residents amenity on the basis that:

A smaller sized terrace would still provide more than adequate outdoor area or passive recreational for use by the occupants, without the visual intrusion. As such it is possible to ameliorate the impact on the adjoining property without loss of reasonable development potential or amenity for the occupants of 17C Tara Street.
• The size and scale of the terrace is unreasonablThe size and scale of the terrace is unreasonable and unnecessary having regard to with proposed use and the availability of other outdoor living areas. The proposed terrace has a total area of 76.68 sq m and the existing terrace and attached adjoining balcony has an area of 32 sq m.
• It is a reasonable expectation of the neighbour that this area would be being retained as a roof given the two-storey height of the building and as the use of a roof as a roof top terrace is not a usual element associated with low density housing this area.

13 With regard to the privacy and acoustic issues, this mainly concerns the opportunity for increased usage of the larger terrace, which would allow viewing back towards the northern terraces of No 17 A, it's bedroom and pool area. But Mr Layman says that considering the separation distances and the fact that the terrace has been in existence for a number of years without any apparent complaint record, the proposed enclosure works should result in an acceptable level of amenity.

Conclusion

14 During the course of the OSH, there was the opportunity for the parties and the Court to assess various options for the size and location of an expanded terrace. Having considered the evidence, the submissions and undertaken a view, I am satisfied that the revised terrace enclosure, as shown in Exhibit E, merits consent.

15 Initially I note that the 1996 consent allowed part of the roof structure to be used as a terrace. It is apparent from the view that this layout is somewhat restricted, which limits its utility. Accordingly, the planners agree that an appropriate expanded area is appropriate in the circumstances, subject to satisfactory privacy and privacy measures.

16 I accept this basic agreement is reasonable. The revised plans then incorporate a slightly higher parapet along the northern elevation above the bedroom and study. This parapet is to be connected and transitioned to a translucent panel forming a new balustrade, recessed approximately 3m from the existing western wall.

17 Based on the general agreement of the planners and my observations at the site, it is apparent that the revised parapet will restrict viewing and overlooking opportunities from the terrace area towards neighboring properties, to an acceptable level, taking into account the existing properties layout, separation distances and the general privacy amenity in this locality.

18 It also appears that the transition and partial enclosure of the deck area should also mitigate noise to acceptable levels. In this regard, I think that some allowance should be made for the fact that the rooftop terrace is mainly located adjacent to the bedroom area and not the main living areas of the house. Its usage is therefore likely to be somewhat reduced considering the other attractive outdoor entertaining areas available to the occupants of the dwelling.

19 Notwithstanding this, I have considered the applicant's submissions that the existing perimeter balustrade be allowed to remain so as to provide an additional level of safety. Ms Pinfold disagrees that this is necessary. My assessment is that it is not reasonable to allow this section of balustrade to remain because of the likelihood of unauthorised expansion of the terrace causing adverse amenity impacts.

20 Importantly however, I note that the BCA does not require the "secondary" balustrade. It then seems to that it is reasonable that a consistent level of safety is maintained. The terrace outside the partially lower level adjacent to the bedroom has an open terrace area beyond the existing balustrade. As it is an integral part of the enlarged terrace, a consistent level of safety is appropriate, which does not require the retention of the secondary balustrade, as requested.

21 In summary then I am satisfied that the revised area of terrace is permissible under the SSLEP. Insofar as the DCP contains various design principles for all development in chapter 1, I am satisfied the revised proposal satisfies the following relevant objectives:

(c) It is compatible with the scale of neighbouring development . . .
(e) It protects the amenity of residents in its vicinity.
(o) It is of high architectural quality.

22 The other controls in cl 7.b.2 specify the minimum dimensions of usable open space areas and this proposal is compliant. With regard to the additional controls for decks, balconies in cI 13.b.7, I am satisfied the revised terrace area and its containment is reasonably compliant with these controls.

23 My conclusion is that this modification application relates to the same development, it has been notified and the objections considered. The merits have been assessed on the aforementioned basis resulting in the conditional approval of the modification.

24 The conditions have been substantially agreed by the parties except condition 2, which proposes a timeframe for completion of 3 months. Having considered the various submissions, I understand council’s concern to now require the proposed works to be completed as soon as practical so that the existing amenity and any safety issues are expeditiously resolved, in the public interest.

25 Whilst there are some public interest considerations, I accept the applicant’s submission that the Court does not have specific power to impose a timeframe for commencement and completion of the works. Therefore the draft condition 2 is deleted. If however this timeframe element is crucial, it would appear that the appropriate course of action may be via Section 121B Orders.

26 The Court orders that:

1 The appeal is upheld .
2 The s96 modification to extend and use part of the roof as a terrace area at 17C Tara Street , Sylvania is approved subject to the conditions in Annexure A.
3 The exhibits be returned except for E and 9.

___________________

R Hussey
Commissioner of the Court
ljr

Annexure ‘A’

Conditions of Consent

Steven Layman v Sutherland Shire Council

17c Tara Street, Sylvania

These conditions specifically relate to the S.96 Modification Application (MA09/0292). These conditions are in addition to the conditions contained within the earlier development consent (Activity Application AA96/1144 as issued on 20/09/96 and as amended on 29/10/96). With the exception of conditions 38 and 39 respectively, which prohibited balustrading and use of the roof as a deck. The conditions are superseded by the conditions contained below.

The development shall be implemented substantially in accordance with the details and specifications set out on the drawing no.DA09/A-1C and 2C dated 28 June 2010 and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.

Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any building, construction or subdivision works.

Prior to the commencement of any building or construction work being carried out, a 'Construction Certificate' shall be obtained from Council or an Accredited Certifier.

Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with:
(a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA
(b) Notification of the commencement of building works with a minimum of 2 days notice to such commencement.

2. Deleted.

The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.

A Compliance with the Building Code of Australia
The development must be carried out in accordance with the provisions of the Building Code of Australia.
B Residential building work
1) Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority (PCA) for the development to which the work relates:
(a) in the case of work to be done by a licensee under that Act:
(i) has been informed in writing of the licensee’s name and contractor license number, and
(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or
(b) in the case of work to be done by any other person:
(i) has been informed in writing of the person’s name and owner-builder permit number, or
(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of “owner-builder work” in section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.
2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

C Details to be Provided to Council with the Notice of Commencement.
Builders and Insurance details required under part B above shall be provided to Council with the Notice of Commencement. In relation to non-residential building work Builders details shall be provided to Council with the Notice of Commencement

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE
The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development and to ensure the development, when constructed, meets appropriate standards for public safety and convenience . The information required by conditions 4-6 shall be submitted with the Construction Certificate.

4. External Lighting – (Amenity)

Any lighting on the site shall be designed and operated so as not to cause a nuisance nor adverse impact on the other residents of the surrounding area. All external lights shall be designed in accordance with Australian Standard AS4284 – Control of the Obtrusive Effects of Outdoor Lighting.

Supplementary Certification shall be provided from a suitably qualified Structural Engineer that the existing concrete roof, which is the subject of this application, is structurally adequate and fit for purpose, having regard to the following:
(a) Use of the approved roof terrace as an area that could support people and the anticipated dead loads arising from its use as a roof terrace;
(b) The proposed pebble/mulch treatment of the non trafficable roof area; and
(c) The existing engineering certification of the roof slab plans numbered 96094-S1 and 96094-S2 both Issue A dated October 1996 prepared by Peter Chan & Partners Pty Ltd Consulting Engineers.

PRE-COMMENCEMENT CONDITIONS

The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

No works in connection with this development consent shall be commenced until:

(i) A Construction Certificate has been issued and detailed plans and specifications have been endorsed and lodged with Council,
(ii) A Principal Certifying Authority has been appointed. Council shall be notified of this appointment along with details of the Principle Certifying Authority, and their written acceptance of the appointment, and
(iii) Notice of commencement has been provided to Council 48 hours prior to commencement of construction work on the approved development.

CONSTRUCTION CONDITIONS

These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 1.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 – Environmental Site Management.

POST CONSTRUCTION CONDITIONS

These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, or a Subdivision Certificate for the development

To ensure that all works are completed in accordance with the Development Consent, certification from an Accredited Certifier shall accompany the Occupation Certificate, to the effect that the following works have been completed:

Certification shall be provided from an Accredited Certifier that all works approved by these conditions have been completed in accordance with the requirements of the Conditions and the approved plans.

OPERATIONAL CONDITIONS

These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and / or the environment.

All external lights shall be operated and maintained in accordance with the Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting so as not to cause a nuisance or adverse impact on the amenity of residents of the surrounding area.

The non trafficable roof area shall be maintained as such at all times and balustrading shall not at any stage be installed around the outer perimeters (that is, the northern and western sides) of the non trafficable roof.

ljr

13/07/2010 - Corrections to Coversheet and conditions - Paragraph(s) Condition 2