Mackay v Warringah Council - [2008] NSWLEC 1386

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Mackay v Warringah Council. [2008] NSWLEC 1386

PARTIES:
APPLICANT
Andrew Mackay
RESPONDENT
Warringah Council.

FILE NUMBER(S): 10624 of 2008

CORAM: Hoffman C

KEY ISSUES: Development Application :- Alterations and additions to existing house, bulk, contrary to visual pattern of houses in locality, privacy of neighbours.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000

DATES OF HEARING: 12/09/2008

DATE OF JUDGMENT:
7 October 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr A. Sattler, solicitor
of Sattler & Associates Solicitors
RESPONDENT
Mr K. Webber, solicitor
of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

7 October 2008

10624 of 2008 Andrew Mackay v Warringah Council.
JUDGMENT

1 Commissioner: This is a Class 1 appeal No. 10624 of 2008 between Andrew Mackay and Warringah Council in regard to the refusal of DA2006/0148 for proposed extensions and alterations to a house at 30 Anzac Ave, Collaroy. The hearing was held on-site, with observations and evidence taken in the adjoining properties.

The Locality and surroundings

2 The area is just west of the beach and the coastal plain at the foot of the Collaroy escarpment. The built forms of the houses are predominantly detached houses of 1- and 2-storey around the subject site. But houses are 3-storey at the rear of the site where the land slopes more steeply up to the escarpment.

3 On the east side of the site are two detached 2-storey houses that were originally approved as a dual occupancy. They now have a Torrens Title lot each, by dividing up what was a similar lot to the proposal. No.28 fronts the street, No.28A is a battleaxe at the rear.

4 No.28A has a deck at the first floor level off its living rooms. The deck looks north over vegetation and a detached double garage between the two houses. From the deck there is sideways overlooking into the back yard of No. 30 the subject site. This is partially screened by a large canary palm tree on No.28A, a hedge on the common boundary and a low lattice screen on the west end of its first floor deck. No.28A also has highlight windows to its living room on the west side also overlooking the back yard of the subject site. Some evidence was given about the master bedroom of No.28A that is in the south-east being the far corner of the house from the proposal on the first floor. There was also evidence about the ground floor guest bedroom and study. Other evidence was about visual privacy from the rear and east side windows and deck and balconies of the proposal.

5 Between the detached double garage and its house No.28 has a courtyard that is paved. It has an outdoor dining setting and vegetation around the perimeter. On the west side adjoining the subject site the vegetation is not as thick as elsewhere. This does not afford a view from one to the other at the moment since No.28 is downhill, and there is a retaining wall for the boundary vegetation so the side fence is higher than usual above the paved courtyard of No. 28 and provides a screen.

6 The only place the existing house on No.30 can look into No.28 is from its rear deck that is elevated up at the floor level of the house. Due to the position of the deck, someone on it can only see the rear part of No.28’s courtyard against the double garage. The dining setting in the centre of the courtyard remains visually private. There was evidence about the bulk of the extensions of the proposal and its windows, deck and balconies giving increased overlooking and reduced amenity for the courtyard.

7 On the west of the subject site is No.32, it is a detached 2-storey house with garage under on a lot similar to the subject, but slightly uphill. It has a rear deck behind the house leading to its back yard that has substantial trees and vegetation.. The deck has an open framework or trellis on the side adjacent No.30 apparently intended for screen vegetation. There is screen vegetation that prevents overlooking of No.30, but it is mainly growing in the side setback between the deck and the boundary. There was evidence about the bulk of the extensions of the proposal as seen from No.32’s rear deck, and possible overlooking into its living room.

8 Uphill of No.32 is No.34, a 3-storey house that extends back past No. 32’s deck and has windows overlooking the back deck of No.32.

9 Obviously there is limited aural privacy amongst the houses due to their proximity to each other.

10 In all cases the land slopes up from the street such that there are garages or rooms under the ground floor at the street front of the houses. This also means in the cases of Nos.28, 30 and 32 the ground floor level at the rear of the houses is almost at natural ground level.

The Proposal

11 The existing 1-storey house above the garage is to be retained and refurbished. In the subfloor area that is largely excavated between the piers, there are to be two store rooms as well as the garage walled in and a stair up to the ground floor. The subfloor external walls are to be random stone masonry.

12 At the rear of the house the existing rear deck is to remain. From the deck there are to be new stairs down to ground level where a landscaped courtyard is proposed adjacent No.28’s courtyard. The new courtyard is in what is existing back yard of No.30.

13 On the western half of No. 30 adjoining this existing deck and new courtyard is proposed a single storey new kitchen and laundry. Just outside the kitchen and laundry on the east side is proposed a 1m wide walkway linking the existing deck to a new 2-storey pavilion proposed just south of the laundry and adjacent the double garage between No.28 and No. 28A.

14 The pavilion has a bedroom, en-suite and robe on the ground floor and another bedroom on the upper floor. The en-suite has a door to the back yard also to operate as a shower/change for a proposed new swim pool adjoining the rear boundary. The pool terrace has a wide landscape garden bed adjacent No.28A and the rear boundary.

15 There were no issues about the swim pool and terrace.

16 The applicant has an elderly mother. The design provides disable access via a pathway from the street along the east boundary to the rear of the pavilion giving access at ground level to the continuous ground floor of house and extensions.

1.

INCONSISTENCY WITH DESIRED FUTURE CHARACTER

Warringah Local Environmental Plan 2000

2. OVERDEVELOPMENT OF THE SITE

"Landscaped open space is to be of such dimensions and slope and of such characteristics that it will:

enable the establishment of appropriate plantings that are of a scale and density commensurate with the building height, bulk and scale, and
enhance privacy between dwellings, and”

"Development is not to cause unreasonable direct overlooking of habitable rooms and principal private open spaces of other dwellings.”

"Buildings are to have

a

visual bulk and an architectural scale consistent

with structures on adjoining or nearby land and are not to visually

dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise.

3. SITE TOPOGRAPHY

Environmental Planning and Assessment Act 1979

4. OBJECTORS CONCERNS

Council has received submissions in relation to the proposed development, including with respect to the following:

The Evidence

17 The respondent’s evidence and submissions were heard from: Mr K Webber solicitor, Mr N Kennan consulting town planner, Ms N Jones solicitor, Mr R Piggott council town planner, Ms C Chan council town planner, Mr R Fleming objectors’ town planner, Mr & Mrs G & P Parrett of 28 Anzac Ave, Mr & Mrs J & C Trisic of 32 Anzac Ave, Mr P Hensman of 28A Anzac Ave and Mrs D Boston of 26 Anzac Ave.

18 The applicant’s evidence and submissions were heard from: Mr T Sattler solicitor, Mr L Winnacott consulting town planner, Mr A Green architect, Mr M Cumming architect, Mr A Mackay applicant and Mrs N Fleming of No. 30 Anzac Avenue.

19 During the hearing, a number of changes, easily made by conditions of any consent, were put by the applicant in an attempt to resolve the concerns of the neighbours:

The existing rear deck of the house to have a full length privacy screen erected on its east side to further reduce any overlooking of No.28’s courtyard.
Parallel to the side fence adjoining No.28’s courtyard, but set in 1m from the boundary on the subject land would be another privacy screen that would prevent overlooking from No.30’s ground floor level, until the screen vegetation along the side boundary grew high enough to give a softer screen.
The previous north balcony of the pavilion’s upper bedroom is changed to a pergola only, so it is non-trafficable. Already included in the design is a privacy screen at the east end of the pergola that returns 1.5m along the north side of the pergola. This is to prevent persons at the north bedroom windows of the pavilion’s upper bedroom being able to look into No.28’s courtyard.
The south balcony of the pavilion’s upper bedroom is also converted to a pergola only, to avoid someone on it looking onto the living room balcony of No.28A. Also the pergola is cut back about 1m from the south-east corner of the pavilion and a privacy screen erected on the full east side of the pergola. This would mean someone at the bedroom windows of the pavilion’s upper bedroom could only get a very oblique view, if at all, to No.28A’s balcony.
Also the upper floor level of the pavilion and its roof are to be lowered by 400mm. This has two functions: the first being to reduce visual bulk, and the second to bring the upper floor level to be about the same as No.28A’s upper floor. This lowering means that someone at the south bedroom windows of the pavilion’s upper bedroom could no longer have the possibility of looking through No.28A’s highlight windows, through No.28A’s living room and kitchen, through the bedroom door of No.28A’s master bedroom and thus see into that bedroom.
Another measure already included in the design relates to the eastern bedroom windows of the pavilion’s upper bedroom. The windows are three double hung type box frames. The bottom sash of each is to be obscured glass and fixed. Obscured glass is to go to 1.5m above the bedroom floor level. This is to give greater privacy to both No.28’s courtyard and No.28A’s upper balcony and ground floor terrace. This screening is in addition to the large canary palm in No.28A that by itself nearly provides all the sought after privacy.
A further measure is to make a 4 metre high hedge in the garden bed beside the boundary with No. 28A.
These measures would give positive privacy to No 28 and No. 28A and they will be softened and obscured from view when the proposed new landscaping along the common boundary grows.
In regard to No.32, the lowering of the upper floor of the pavilion is said to reduce the visual bulk as seen from No.32’s rear deck. Also a privacy screen is added to the west end of the pavilion’s upper bedroom north pergola. The screen has a return of 1m on the north side of the pergola. This is to ensure no one at the bedroom windows of the pavilion’s upper bedroom could get any sightline onto the rear deck or into the living room of No.32.

20 The respondent was not satisfied with these changes saying that they did not overcome the basic objections of the proposal being out of character with the pattern of surrounding development, the visual bulk of the pavilion and the inconsistency with the Desired Future Character for the Locality D5 - Long Reef in the Warringah Local Environmental Plan 2000.

21 The objectors said they would be happy with the pavilion if it was 1-storey only, such that it would not present the visual bulk as seen from their properties, and it would overcome the privacy impacts without the need for all the privacy screens and conversion of balconies to pergolas etc.

22 They suggested that to regain the upper bedroom of the pavilion, a “room in the roof” bedroom should be designed in the existing house. They said it could be easily accessed by extending the new stairwell up an extra level. Also it should obtain better views to the coastline than the upper bedroom of the pavilion.

23 Mr Kennan the respondent’s town planner favoured this also as he said the typical pattern of houses in the locality is to have the house towards the fronts of allotments with large back yards. Any 2-storey extensions were either on top of the original house or attached at the rear so that the house bulk remains towards the front of the lot. This proposal with the pavilion about halfway along the lot protrudes past the rear facades of adjoining houses and creates visual bulk where the usual pattern is to have the openness of rear yardspace as seen by neighbours. The location of the pavilion also creates the overlooking problems that have to be overcome with the various screens and conversion of balconies to pergolas.

24 The applicant’s architect investigated that option and said the existing house is light timber construction, and the roof pitch is not high enough for a “room in the roof” so it would mean major strengthening of the house frame and a new roof. The cost of this part-demolition and re-building, and the existing house becoming unliveable for the construction period make it an unattractive alternative. Three further and important problems are the height of the building would exceed the height limit, and being at the north end of the property a higher building (3-storey with the “room in the roof”) may shade the courtyard of No.28 and be objected to. An exception under cl 20 of the statute would need to be approved by Council. These problems cast doubt upon any council approval and the applicant pressed the current design.

25 Mr Green and Mr Winnacott said the current design locates the 1-storey kitchen and laundry adjacent the rear deck of No.32 and rear courtyard of No.28. That provides the “open sky” amenity for the neighbours. If a new owner of No.30 decided to demolish and build a McMansion, it could well extend back as far as the proposal does in solid 2-storey all the way along without the 1-storey kitchen and laundry “link”.

26 Further to the issue of bulk, the proposal more than complies with the building envelope controls by having 6.5m side setback to the 1-storey and 2.8m side setback to the pavilion on the east or downhill side. A complying continuous 2-storey house could be much closer and bulkier to No.28’s courtyard. On the uphill side adjacent No.32 the 1-storey section of the proposal has 0.9m side setback and the pavilion 1.8m. Again a complying continuous 2-storey house would appear much bulkier than the proposal.

27 The pavilion is adjacent the double garage between Nos 28 and 28A so it has a similar position on the land in terms of structures. No.30 is downhill from No.32 so the visual height of the pavilion is reduced, and in any case, is only 2-storey. The further lowering of the ceiling and roof reduces the bulk again. Houses of 2-storey are typical in the area.

28 The proposal keeps the character of the locality by retaining the existing house and designing the extension to match in the lightweight timber style.

29 Mr Fleming said in regard to the proposed amendments that they did not change the uncharacteristic position of the pavilion compared to the typical house layout in this D5 - Long Reef locality. He thought the impact on the amenity of No.28A’s first floor deck would still be there even if reduced somewhat. He thought the physical screens just add to the bulk as seen from No.28’s courtyard even they do solve the privacy impacts. No.32 is similar in that the physical screen just adds to the bulk even if it solves any potential overlooking.

30 Mr Winnacott felt the respondent’s witnesses were exaggerating. Area D - 5 character statement says it is for detached houses, the proposal is that. It asks to keep the pattern and scale of detached houses. In the broadest sense this is a detached house on the front half of its lot and part 1- and part 2-storey. It fits the pattern and scale.

31 If one interprets the pattern and scale to be more detailed, one must go to the numerics. When one turns to the setbacks and envelope controls the proposal complies with all of them, and creates no unreasonable overshadowing of neighbours, and with the amendments no overlooking. The floor space ratio is well below the maximum.

32 The only non-compliance on numerics is the front setback of the existing house, but all of the neighbours have the same street setback and it is not in the respondent’s issues. The proposal cannot be called “overdevelopment”.

33 In regard to character of neighbours, Nos 28 and 28A are two houses plus a detached double garage on combined land area about the same size of No.30. The proposal has much less structures on the same area.

34 In looking at Nos 28 and 28A they are cottages on lots that are half the size of the subject land. The existing cottages on Nos 30 and 32 are similar sizes to Nos 28 and 28A but have double the amount of land. Nos 28 and 28A must expect a larger house on No.30 and No.32 in the longer term if not now. The section of the proposal that the neighbours complain about is small, the pavilion is 4.9m x 7.7m in plan, or about the size of a double garage.

35 No.34 is a house extending back to about half the length of its lot similar to the proposal. If position of buildings on their lots is a determinant of “pattern” then the proposal matches No. 34 and is less intense than Nos 28 and 28A. Aerial photos show extensions at the rear of houses are quite common in this locality. Alterations and additions to houses are typical of the area, there is no particular local character other than being 1- and 2-storey detached houses.

36 Mr Winnacott said, with the amendments, the closest distance a person at the rear upper bedroom windows of the pavilion could get to No.28A’s upper deck is 9m. That is the accepted distance in the council’s statute for visual privacy in residential areas without any screening. It would be 12m at least to where the table and chairs are on No.28A’s deck. In any case No.28A overlooks No.30’s back yard so there is mutual overlooking now, ie people can look at each other between No.28 A and No.30 now. The proposal will reduce that. Also any view from the proposal to No. 28A’s deck is from a bedroom of the proposal. See comments below.

37 The concern of No.28A about a view through its highlight side windows to its far bedroom cannot be supported for the following reasons:

First of all any view would be from a bedroom in the proposal and usually bedrooms are not considered high risk of privacy loss under the test cases of the Court.
Views between living rooms are more important to protect. Bedrooms are mainly used at night and are less of a concern because people use curtains in bedrooms for privacy at night. The highlight windows in No. 28A have blinds.
Next of all, to see through the highlight window, now the pavilion upper floor level is lowered, would require someone in its bedroom to stand on a stool or a chair. View assessments assume people are standing on the floor or sitting in a chair.
And the distance from that person to the far bedroom of No. 28A is at least 16m by measurement, or about the width of a street! More than enough for suburban amenity.

38 In regard to No. 28’s courtyard, Mr Winnacott said the additional screen fence 1m inside the subject property and the extension of the existing side screen on No. 30’s rear deck will stop any possible overlooking from the ground floor level of No. 30 to No. 28’s courtyard. That is an improvement from the current partial overlooking.

39 From the pavilion’s upper bedroom northern window:

The first point is that views from a bedroom are not usually accepted as potential privacy concerns for the reasons given above.
Secondly, the additional sight screens at the upper level should prevent any sight line into No. 28’s courtyard.
If someone was standing near the upper bedroom window where they might get some line of sight it is at least 8.5m from the boundary and therefore 9m plus to anyone in the courtyard. As said before 9m is the distance without screens the council statute says is adequate privacy in a suburban situation.

40 The privacy concerns of No. 32 have been dealt with too Mr Winnacott said, such that privacy cannot be a reason for refusal. On account of his evidence on bulk he said it too cannot be a reason for refusal. The bulk is reasonable, and the objectors seem to think just being able to see the pavilion part of the proposal is unacceptable. Being able to see it is not such an amenity impact that it justifies refusal.

41 Overall I have come to the conclusion that Mr Winnacott’s evidence is sound on all counts, and provided the amendments to further reduce any privacy or visual bulk impacts of the proposal are included as conditions of consent, there is nothing sufficient for refusal.

42 Therefore the Orders of the Court are:

___________________

K G Hoffman

Commissioner of the Court

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Mackay v Warringah Council [2008] NSWLEC 1386

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CITATION:	Mackay v Warringah Council. [2008] NSWLEC 1386
PARTIES:	APPLICANT Andrew Mackay RESPONDENT Warringah Council.
FILE NUMBER(S):	10624 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Alterations and additions to existing house, bulk, contrary to visual pattern of houses in locality, privacy of neighbours.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000
DATES OF HEARING:	12/09/2008
DATE OF JUDGMENT:	7 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr A. Sattler, solicitor of Sattler & Associates Solicitors RESPONDENT Mr K. Webber, solicitor of Wilshire Webb Staunton Beattie Lawyers