Magro v City of Canada Bay

[2012] NSWLEC 1082

Land and Environment Court

New South Wales

Medium Neutral Citation:	Magro & Anor v City of Canada Bay [2012] NSWLEC 1082
Hearing dates:	5 March 2012
Decision date:	07 March 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to revised plans and conditions
Catchwords:	DEVELOPMENT APPLICATION - extension of a balcony; issues of bulk, scale and privacy
Legislation Cited:	Land and Environment Court Act 1979 Canada Bay Local Environmental Plan 2008
Cases Cited:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	D & A Magro (Applicants) City of Canada Bay (Respondent)
Representation:	Applicants: Mr P Clay SC Respondent: Mr P Jackson (Solicitor) Applicants: Caldwell & O'Brien Solicitors Respondent: Pikes Lawyers
File Number(s):	11169 of 2011

Judgment

1. COMMISSIONER: Mr and Mrs Magro have appealed to the Court against the City of Canada Bay Council's refusal of a development application (No. 405/2011) for a first floor balcony at the rear of their dwelling at 43 Rickard Street Five Dock.

1. The matter commenced on site as a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (Court Act). The site was inspected and the proposed works explained. A number of residents from neighbouring properties voiced their concerns about the proposal. Most, if not all, of the residents who spoke had made written submissions to council. The site was inspected from the two adjoining properties to the east.

1. As no agreement was reached, the matter proceeded to a hearing under s 34AA(2)(b)(i) of the Court Act.

Background and the proposal

1. The applicants' two-storey dwelling was approved in 2008 as DA 185/2007 (under previous planning controls). The approved plans for that DA show two upper storey balconies at the rear or southern side of the dwelling: one off the living room accessed by double glass doors; and the other off the kitchen. Both approved balconies are 1.5m deep with glass balustrades and a roof. The living room is on the western side, and the kitchen is on the eastern side. For the purpose of this judgment, the living room balcony is referred to as the western balcony, and the kitchen balcony is described as the eastern balcony. The eastern balcony is enclosed at its eastern end by a full height part rendered part obscure glass block wall; similarly the western balcony is enclosed at its western end by a full height rendered wall. The remainder of the slab on which the balconies sit is to be treated as a non-trafficable steel roof.

1. The proposal before the council, and the original subject of the appeal, seeks to increase the depth of the eastern balcony to approximately 4.9m, construct a 1.5m wide/ 800mm high planter box at its southern end on the edge of the slab, and to connect the eastern and western balconies. The eastern wall is to contain two additional glass brick panels to full wall height to the point at which the planter box commences. Three sky light panels are shown on the roof of the eastern balcony. The plans show the glass doors to the western balcony replaced with an internal fireplace. Plants in the planter box are to be maintained to a height of approximately 700mm above soil level; a height which permits standing views to the city but limits overlooking.

1. The council refused the application on the basis of an unacceptable increase in bulk and scale and the visual impact of it on neighbouring properties, contravention of the building height plane and upper storey balcony depth controls, and unacceptable impacts on visual and acoustic privacy.

1. During the conciliation process, an amended proposal was put forward and the plans were marked up to illustrate the changes. The council did not oppose the amendments and leave was granted for the applicant to rely on the amended proposal. However, should it be approved, council would require accurate plans to be prepared.

1. The proposal now before the Court deletes the western balcony, reduces the width of the eastern balcony to 3m and the planter box to 1m wide. The planter box runs the entire length of the eastern balcony to the living room to the west; this will necessitate a change in the location of the doors from that room. The eastern wall retains two glass block panels and is setback 700mm from the eastern edge of the slab resulting in a setback from the eastern boundary of about 2.2m.

The site and its context

1. The site is on the southern side of the street and the block slopes about 3m down from street level. Adjoining and nearby dwellings are generally two storey. The upper level overlooks the rear of dwellings in Augusta Street to the west, Henley Marine Drive to the south and the back gardens/ studios in nearby properties to the east. A large Liquidambar near the rear boundary obscures some properties to the south.

1. The approved dwelling is still under construction. The walls of the upper level have not yet been built however, the slab that forms the ceiling of the ground floor level and the floor of the upper level is in place. This facilitated an understanding of the proposal and its potential impacts on neighbouring properties.

The planning controls

1. The proposal is permissible with consent under the Canada Bay Local Environmental Plan 2008. The council raises the following objectives and controls in Part 5: Residential controls for houses and attached dual occupancies in the City of Canada Bay Development Control Plan (CCBDCP).

1. Clause 5.2.4 Visual and acoustic privacy:

Objectives

O1Ensure the siting and design of building provides a high level of visual and acoustic privacy for residents and neighbours within dwellings and private open space.

Controls

C3Upper level balconies to the rear of a dwelling should be set back a minimum of 2.0 metres from any side boundary and should have a maximum depth of 1.8m.

1. Clause 5.3.3 Floor space ratio

Controls

C1Large void areas are considered to contribute to the overall mass of a building (when viewing the building from the exterior). For this reason, it should be shown that any void areas are necessary for the specific design requirements of the building.

1. Clause 5.3.5 Height of buildings

Objectives

O1To ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality.

O2To minimise visual impact, disruption of views, loss of privacy and loss of sunshine to existing residential development.

Controls

C2Dwellings and attached dual occupancies are not to exceed the building height plane projected at an angle of 45 degrees over the site from a vertical distance of 5 metres above ground level at any boundary of the site.

The issues

1. The key issues remain:

• Bulk and scale and resulting visual impact on adjoining properties,
• Height and compliance with the building height plane, and
• Visual and acoustic privacy.

The evidence

1. Mr C Hackett council's Statutory Planner gave evidence on behalf of council, Mr W Siwak, Urban Planning Consultant, gave evidence for the applicants. The planners prepared a joint report.

1. In part, the amended proposal is responsive to Mr Siwak's opinions expressed in the joint report, in particular the increased offset from the eastern boundary. While Mr Hackett agreed that the change achieves compliance with the building height plane control, in his opinion - the proposal is still excessive in its bulk and scale, the visual impact remains unacceptable when viewed from the properties to the east, and the revised depth of 3m is in excess of the 1.8m depth stated in the CCB DCP. In his view, the proposal will lead to a concentration of use on the eastern side, which will increase expected noise levels.

1. Under cross-examination, Mr Hackett stated that he considered the approved development to be excessive in its bulk and scale, and that he would not have approved it. Essentially his view, and that of the council's, is that the balconies, as originally approved, are at the maximum acceptable size and that any further extension of the eastern wall is unacceptable. While he agreed that deletion of the western balcony would improve the amenity for residents to the west, he did not think that transferring that space to the eastern balcony was acceptable. In essence, Mr Hackett considers the cumulative impact to be unacceptable. Mr Siwak stated that he had considered the proposal as a new development application and not as an amendment to the approved development.

1. The application contains an acoustic report from Koikas Acoustics Pty Ltd. Acoustic experts were not called. The modelling is based on an assumption of two people having a conversation on the proposed balconies with the air conditioning unit operating. The recommendations in the report include specifications for the type of air conditioner, thickness of glazing on the external balcony walls and skylights, and the installation of insulation batts in the roof to provide acoustic absorption. The report states that these measures will meet council's noise controls.

1. The concerns of the residents were principally about the bulk, scale and height of the approved dwelling with additional concerns over further visual impacts as a result of the extended eastern wall and associated roof structure. Several residents were concerned that the significant increase in size of the eastern balcony would accommodate more people and therefore more noise would be generated. Almost all voiced concerns over visual privacy and the uncertainty of relying on the maintenance of plants in a planter box to achieve long term mitigation.

1. I note that the residents' comments and the acoustic report relate to the original proposal, the subject of the appeal, and not to the amended proposal.

Submissions

1. Mr Clay for the applicants contends that the appropriate starting point is to assume that what was approved in 2008 was considered by council to be an appropriate and acceptable planning outcome. In this regard, the proposal before the Court must be considered on its own merits. Mr Clay submits that, on balance, the amended proposal is a better outcome for neighbours and for the applicants than the original approval. He says these benefits arise from deleting the western balcony and the glass doors, thus improving the amenity for the residents to the west and southwest; and increasing the setback from the eastern side to provide compliance with the building height plane.

1. Mr Clay argues that in itself, the extension of the eastern wall by 1.5m at full height and additional 1m at 800mm height, will have only a marginal impact on the neighbouring property to the east, particularly given the increased setback. He also contends that while transferring the area of the western balcony to the eastern balcony is numerically neutral, the additional width of the eastern balcony would enable outdoor dining - a positive for the applicants, and the space occupied by outdoor furniture would also limit the capacity of the balcony. Overall, he says this is a more sensible use of the space. The noise generated from such a space would be within normal expectations for such a residential area. He contends that the controls in the DCP are largely focussed on visual impact rather than acoustic.

1. Mr Jackson for the council cites Zhang v Canterbury City Council [2001] NSWCA 167 at [75] where Spigelman CJ states that a DCP must be considered as a 'fundamental element' or 'focal point' of the decision making process. Similarly he presses the importance of a DCP as considered by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. He stated that the applicant has not provided any examples where the council has not consistently applied the controls in question.

1. Mr Jackson submits that the original development application (DA 185/2007) proposed a similar extensive deck which was rejected by council and that the approved development is at the uppermost level of acceptability. He defends Mr Hackett's right to hold a view that differs from whoever approved the original development but he agrees that the assessment of the impact should not be considered in isolation but holistically, that is, the cumulative impact must be considered.

1. In this instance Mr Jackson argues that the non-compliance with the controls for upper storey balconies increases the size of the built form, which leads to unacceptable bulk and scale. He also considers that the Court should not be satisfied with the Koikas acoustic report as it is based on wrong assumptions as to the number of people that could reasonably be expected to be on the balcony. Notwithstanding the amendments, Mr Jackson contends that the proposal is fundamentally unacceptable to council.

Findings

1. In determining this matter I am obliged to consider the matters required by s 79(C) of the Environmental Planning and Assessment Act 1979 (the Act), including any relevant DCP. I am reminded of the statutory recognition afforded to DCPs in the Act (Stockland v Manly) and that CCB DCP is a focal point for my consideration ( Zhang v Canterbury Council ), however, I am not required to accept it uncritically and strict compliance with the controls of the DCP is discretionary if the particular circumstances of a matter warrant a variation in their application.

1. While I understand the residents' objections to the original approval, I accept Mr Clay's submissions that the appropriate starting point is to assume that the approved dwelling was considered by council to be an appropriate development. I also accept Mr Jackson's submissions that the original approval occurred under superseded controls.

1. On balance, I agree with Mr Clay's submissions that the deletion of the western balcony and the removal of the glass doors on the southern side of the living room will improve the amenity of neighbouring properties to the west and southwest. The reduction in the length of the western wall and the associated removal of the roof over the western balcony will reduce the overall bulk and scale of the western façade. The acoustic and visual privacy impacts will largely disappear from that portion of the property.

1. While I agree that the proposed depth of the eastern balcony exceeds the nominated depth of 1.8m, I am satisfied that the marginal increase in wall length of 1.5m over the approved wall will not significantly increase the visual impact of the dwelling on the adjoining properties. The further setback will assist in minimising the impact and achieves compliance with the height plane control. The overwhelming impact is, and will be, from the approved dwelling; the additional impact is marginal. I note the use of the word 'should' in control C3 - cl 5.2.3 of the CCB DCP in relation to maximum width of upper storey balcony. This appears to enable a degree of discretion in the application of the controls.

1. In terms of visual and acoustic privacy, the 3m width of the eastern balcony will create a more usable outdoor space off the main living areas, and while more people may be capable of using it, the planter box will limit direct overlooking of properties to the east and south; more so than a glass balustrade. The volume of soil within the planter should be sufficient to support plants to a height of about 700-800mm. I agree with Mr Clay that the objectives and controls in cl 5.2.4 of the DCP go to visual privacy more than acoustic privacy. I am satisfied that the combination of full-length planter box, extended side wall, and increased set back that the proposal achieves the relevant objective.

1. With respect to the acoustic issues, notwithstanding the very conservative assumptions made in the Koikas report, I am satisfied that the implementation of the recommended noise mitigation measures will reduce the acoustic impacts of the normal use of the eastern balcony. I note the construction of the dwelling uses concrete-filled foam blocks, which are presumed to have good insulating properties. While the enclosed balcony adds somewhat to the overall bulk and scale, it serves the purpose of reducing noise. I observed that most nearby balconies and decks have open balustrading and no apparent acoustic treatment. The visual impact of the void created by the eastern balcony is minimised by only extending the roof to the northern edge of the planter box (plus an allowance for the minimum width of eaves).

1. Other changes will flow from the amended proposal. The southern elevation appears to show the windows on either side of the glass doors (now fireplace) to be full length. The need to create a sloping roof over that portion of the slab will necessitate some change to their size. The plans need to be fully revised to show the removal of the doors and so on.

Conclusions and orders

1. On balance, I find that the amended proposal provides an overall better outcome than the original approved development. The benefits of removing the western balcony slightly outweigh the costs of increasing the size of the eastern balcony. While one numerical control is contravened, it is not sufficient to warrant refusal of the proposal.

1. As discussed during the hearing, accurate plans are to be produced showing the changes to the first floor plan, as well as the eastern, western and southern elevations. The recommended acoustic treatments are to be implemented for all parts of the eastern balcony. The council's draft without prejudice conditions are to be adopted but modified to reflect the revised plans and the implementation of the specific acoustic treatments recommended in the Koikas report.

1. Therefore, as a consequence of the forgoing, the Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. 405/2011 for a first floor balcony at the rear of their dwelling at 43 Rickard Street Five Dock as amended on 5 March 2012 is approved.

(3)   The applicants are to prepare detailed plans showing the changes to the first floor plan, eastern, western and southern elevations. The plans are to be lodged with council and the Court within 14 days of the date of these orders.

(4)   On receipt of the revised plans, the Council has 7 days to amend the draft without prejudice conditions of consent to show the changes in the plans and the inclusion of a condition regarding the specific acoustic treatments for the eastern balcony. The agreed conditions are to be filed electronically with the Court by close of business 2 April 2012 and final orders will be made in chambers.

(5)   All exhibits except A, 1 and 6 are returned.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 05 April 2012