Murphy and Anor -v - Waverley Council

[2009] NSWLEC 1386

Land and Environment Court

of New South Wales

CITATION:

Murphy & Anor -v - Waverley Council [2009] NSWLEC 1386

PARTIES:

APPLICANT
Terrence Paul and Tracey Anne Murphy

RESPONDENT
Waverley Council

FILE NUMBER(S):

10539 of 2009

CORAM:

Bly C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Extension to privacy screen, privacy, access to daylight, appearance and size.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006

DATES OF HEARING:

20 November 2009

 
DATE OF JUDGMENT: 

23 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Johnson Barrister

RESPONDENT
Miss C Morton Solicitor
SOLICITORS
Sparke Helmore

JUDGMENT:

- 3 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 November 2009

10539 of 2009 Murphy, Terrence & Tracey
v
Waverley Council
JUDGMENT

1 This appeal relates to a development application for a 900 mm extension to the height of existing boundary privacy screens adjacent to the south facing terrace at the rear of the existing dwelling house at 63 Belgrave Street Bronte. The purpose of the extended privacy screen on the east side is to reduce the extent of overlooking from the elevated access pathway and entrance to the neighbouring residential flat building at 65-69 Belgrave Street and from the living room and balcony of unit 8 in that building.

2 The site is situated in the Residential 2(a) - Low Density zone under Waverley Local Environmental Plan 1996 and the proposal is permissible with development consent. Also applicable is the Waverley Development Control Plan 2006. The relevant objectives of the LEP and the DCP are, in essence, concerned to ensure that new development protects the amenity of existing residential development. More particularly the DCP seeks to ensure that building bulk is compatible with surrounding built forms and will minimise adverse effects on adjoining properties. Also fence heights should be limited to 1.8 m and not cause unacceptable impacts on the amenity of neighbouring dwellings, although privacy and safety issues need to be taken into account.

3 The application was advertised and 10 objections were received mainly from the occupants of the neighbouring residential flat building. These objectors express concerns essentially as follows. The extended privacy screen would:

• Reduce access to daylight and sunlight for the residents of the lower level dwellings of building.
• Not do anything to mitigate noise impacts.
• Be a poor design with an excessive height and an unattractive appearance.

4 The appeal was conducted as an on-site hearing and the resident's concerns were explained in detail when I had the opportunity of visiting the affected dwellings and the common property of the residential flat building.

5 The application was refused by notice of determination dated 3 June 2009 for reasons essentially involving: incompatibility with surrounding development; failure to maintain or enhance the amenity of the locality; and excessive height.

6 The Court had benefit of the joint report and oral evidence of the town planning experts:

• Mr D Starreveld on behalf of the council
• Miss K. Gordon on behalf of the applicant.

7 The only disagreement between the town planners involved the contention that the proposal fails to satisfy the objectives of the LEP in relation to compatibility with surrounding development and the amenity of surrounding residential areas. In this regard they were both of the opinion that the extension to the screen would extend too far to the south and needed to be reduced in length.

8 The existing screen essentially comprises five separate/joined panels that were referred to at the hearing as panels 1 - 5 (counting from north to south). Mr Starreveld was of the opinion that the proposed 500 mm extension above panels 4 and 5 should be removed and if this were to occur any impacts on the neighbouring residential flat building would not be unacceptable. Miss Gordon believed that should the extension of the screen above panels 5 be removed this would produce a satisfactory outcome.

9 During the hearing the applicant was given the opportunity of explaining how the existing terrace is used and the nature and extent of the existing overlooking and how important extending the privacy screen was for her and her family.

10 Following a number of observations by me the hearing was adjourned to give the parties an opportunity to discuss the possibility of an adjustment to the design that could form the basis of an agreement. This was ultimately successful and an amended stepped design for the extension to the privacy screen was produced including the reversed angling down of the louvers for the additional screens. The two town planners are satisfied with this amended design.

11 The council and the applicant have now provided agreed conditions of consent and having considered the amended proposal in the light of the applicant's needs and the concerns of the neighbours I am satisfied that there are now no issues sufficient to warrant refusal of the application.

12 The orders of the Court are therefore:

1. The appeal is upheld.
2. The development application for the extension of the existing privacy screens adjacent to the rear terrace of the dwelling house at 63 Belgrave Street, Bronte is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit A is retained.

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T A Bly
Commissioner of the Court

Land and Environment Court of New South Wales

Without Prejudice Conditions of Consent as Amended

63 Belgrave Street, Bronte

Paul & Murphy v Waverley Council

NSW Land and Environment Court Appeal 10539 of 2009

A. Approved Development

1. Approved Development

The development must be in accordance with:

(a) Architectural Plan Nos. DA01 & DA02 Revision A, tables and documentation prepared by Smyth & Smyth, dated November 2008, and received by Council on date 19 November 2008,

Except where amended by the following conditions of consent;

2. Amendment to Eastern Privacy Screen

The existing five (5) panel privacy screen (comprised of panels numbered 1 to 5 from the North to South part of the screen) on the eastern side of the terrace is to be amended as follows:

(a) The additional screen to Panels 1, 2 and 3 is to have a height of 900mm;

(b) The additional screen to Panel 4 is to have a height of 600mm;

(c) There is no additional screen to Panel 5; and

(d) The angle of the louvers of the existing screen is to be reversed for the additional screens.

B. compliance prior to issue of construction certificate

3. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

The building work must not be commenced until:

(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

(b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

(c) Council is given at least two days Notice in writing of the intention to commence the building works.

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

C. compliance prior to and during construction

4. PRIOR TO SITE WORKS

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

(c) any change to these arrangements for doing of the work.

5. home building act

The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

6. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS

All site works complying with the occupational health and safety requirements of WorkCover NSW.

7. STOCKPILES

Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.

8. ALL BUILDING MATERIALS STORED ON SITE

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

9. CONSTRUCTION HOURS

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(b) Sundays and public holidays; and

(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

10. CONSTRUCTION NOISE - PERIODS OF 4 WEEKS OR UNDER

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 20dB(A) when assessed at any sensitive noise receiver.

11. BUILDING CODE OF AUSTRALIA

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

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T A Bly
Commissioner of the Court