Murphy, Daniel & Nicole v City of Canada Bay Council

[2008] NSWLEC 1129

Land and Environment Court

of New South Wales

CITATION:	Murphy, Daniel & Nicole v City of Canada Bay Council [2008] NSWLEC 1129
PARTIES:	APPLICANTS Daniel, Murphy Nicole, Murphy RESPONDENT City of Canada Bay Council
FILE NUMBER(S):	10022 of 2008; 11060 of 2007
CORAM:	Hoffman C
KEY ISSUES:	:- Refusal of Building Certificate, refusal of S96 amendment, side boundary setback, shadows, bulk, impact on conservation area streetscape and privacy.
LEGISLATION CITED:	Drummoyne Local Environmental Plan 1986 Environmental Planning & Assossment Act 1979 Drummoyne Comprehensive DCP 1999
DATES OF HEARING:	22-23/01/08
DATE OF JUDGMENT:	2 April 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr R K Graham Solicitor of Home Wilkinson Lowry RESPONDENT Mr A Seton Solicitor of Marsden Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Hoffman

Date 2nd April 2008

File Number 11060 of 2007 and 10022 of 2008

Parties Murphy, Daniel & Anor Vs Canada Bay Council

JUDGMENT

1 Commissioner: There are two appeals. No.11060 of 2007 is in regard to refusal of a s96 application to amend Development Consent No.677/2005 granted on 2 May 2006, for alterations and additions to a cottage at No.48 Plunkett St, Drummoyne. No.10022 of 2008 is in regard to refusal to issue a Building Certificate under s 149A for works completed at No.48 Plunkett St, Drummoyne.

PROLOGUE

2 The works include substantial but not complete demolition and rebuilding with a 2-storey extension to the existing house, plus an attached garage, a swim pool deck and cabana (the pool itself previously approved and built).

The issues revolve around the works not being built in strict accordance with the approved plans and conditions

3 I am told the footprint (site coverage) of the altered house is slightly less than the original cottage, but it now has the second storey. Nevertheless the parties agree “as-built” the house has a slightly reduced floor space ratio than the original approval allowed.

4 Attending the hearing for the respondent were: Mr A Seton, solicitor;

Mr A. Goodridge, objector 46 Plunkett St; Mr D Mathews, objector corner of Plunkett and 50 Henley St; Mr B Grunert, objector 22 Plunkett St; several other nearby residents (including a Mr Curran opposite the site), who had written objections attended the on-site component of the hearing.

Attending for the applicant were: Mr R Graham, solicitor, Mr D Furlong, town planner; Mr D Murphy, applicant.

5 The parties had agreed on a single town planning expert, Mr P Grech, town planner.

The land is oriented North-west to the rear and South-east at the street. The plans call the rear elevation the North, and the street elevation the South. For ease of reference I shall refer to them that way, although when considering the shadow impacts it is important to keep in mind the actual orientation.

THE ISSUES
The issues raised by the respondent in Exhibit 1 are in items c, e, h, j & k below. The other concerns are raised by objectors.

6 A summary of the works that gave rise to these appeals is:

a. The house is in the Bourketown Conservation Area.
b. The original house is a single storey timber cottage circa 1900 and therefore a contributory item to the conservation area and the streetscape. It is not a heritage item.
c. The council approval of the part demolition and rebuilding had careful attention to this character and required certain conditions. The front part of the old cottage was to remain and an existing unarticulated long side wall on the west boundary was allowed to remain. The additions were to be designed in character including materials, pitched roof etc. This existing west side wall was found structurally unsound, it is said, and was demolished and rebuilt. The objectors say being a new wall, it should have the correct side boundary setback, and it should have been articulated, as for the east wall. The wall at ground floor is 22m long, the applicable central limits unarticulated walls to 12m long.
d. The neighbour on the west has not objected, their driveway gives some separation between the subject house and their house. The upper floor of the proposal on the west side has been moved further away to the east. The approval gave 1.749m setback, as-built is 2.007m, and the eaves have been reduced, so the proximity of the bulk and shadows are reduced.
e. The new attached garage is setback behind the front façade of the old cottage so that it is subservient in the streetscape. It was approved at 8.9m front setback and has been built at 8.3m.
f. Although not a specific condition of consent, the return side wall of the original cottage from the front veranda to the garage is shown on the approved plans as retaining an old side window. Photos show that the window was originally about 1.5m from the veranda corner. To retain it in that position, the garage should have been further back than 8.9m in the neighbour Mr Goodridge’s opinion. The window has been moved to be adjoining the veranda corner so that it just fits between the corner and the garage. The approved plans show the existing window relocated, but the “as-built” plans reduce the length of return wall from 1.4m to 1.1m, and the new weatherboards on the return do not match the old ones on the front façade.
g. Combined with this the bedroom and balcony above the garage has moved forward 300mm also. The objectors say these two factors plus other non-compliances mentioned below unreasonably compromise the front façade contribution to the conservation area and the streetscape.
h. The east Ground Floor side wall adjacent Mr Goodridge’s has been built with an 830mm side setback at the garage front corner, reducing to 800mm at the rear Family room corner. The applicable statute and the consent requires 900mm.
i. The upper floor east side walls have a greater setback than the ground floor. Also there is a courtyard indented in the east façade to give it articulation. This creates a gap between the master bedroom at the front of the 2-storey extensions and three smaller bedrooms at the rear. The master bedroom was approved at 2.083mm side setback and the rear bedrooms at 1.926mm side setback. They both have been built at 1.667mm side setback. The applicable control is 1.5m setback at the 2nd storey, so they comply.
j. Mr Goodridge says these changes including use of cement render instead of the approved weathboard have directy increased impacts on his home by moving the bulk of the building closer to him. The “as approved” drawings had significant impacts, but the “as built” has taken what little solar access he had left to his living room.
k. Also his living room window is opposite the indented courtyard of the additions, so his privacy is affected. He agreed the deck of the courtyard “as built”, has a 900mm setback from the boundary whereas the approval showed it built right to the fenceline. The s96 shows a privacy screen 1100mm setback from the side boundary. But, it needs a better privacy screen than shown on the s96 drawings. The screen only covers half the width of the courtyard. The entire courtyard has a deck raised to the house floor level that enables anyone to look over the fence into Goodridge’s living room that has a large window.
l. Also at the first floor level above the courtyard, the new house has floor to ceiling windows to a hall and stair that enable direct viewing into his living room. The house was approved with the windows shown as large panes of glass, presumably fixed. They have been built with clear glass louvres. Condition 39 required obscured glass to bathrooms, ensuites and WC’s only; so the council approved it allowing the visual privacy intrusion. The s96 asks to legitimise the louvres and they add aural privacy intrusion. Mr Goodridge’s living room has to open windows for ventilation, so noise/conversations up in the hall and stairs will be clearly audible being only 4.5m from his living room.
m. The eaves of the upper floor have been deleted on both side walls, and this it is said changes the character of the house unsympathetically to the contributory item and thus to the conservation area streetscape.
n. The gabled roof at the rear was required to be lowered from RL40.95 to RL40.63 by Condition 2 of the consent and to be a hipped roof instead of gabled. In the original application the front gable over the master bedroom reached RL40.63. In the s96 application both front gable and rear hipped roofs reach RL40.655. Between them is a lower roof over the stair and hallway. It is lower because the internal floor plan narrows due to the indented courtyard.
o. Condition 2 (b) required a parapet wall to the ground floor east wall of the Family and Kitchen to be deleted. This was done, but the returns of the parapets to the east wall of the first floor were not deleted. The return at the family room corner of the east and north facades has increased the shadow impacts on Mr Goodridge’s kitchen and living room windows.
p. The plans show the existing swim pool has a relocated safety fence to separate it from the back yard of the house, but the plans do not show a new timber deck around the pool “as-built”. This increases the likely proximity of persons and noise and activity to Mr Goodridge’s back yard, where previously it was grassed. The pool area and deck is elevated compared to Mr Goodridge’s and facilitates overlooking with no privacy screens proposed.
q. Mr Goodridge said the original plans showed two small balconies off 2nd floor bedrooms on the north elevations. Careful perusal of the original plan show it was always one balcony across both bedrooms but some confusion may exist by showing two sun hoods one over each bedroom window.

CONCLUSIONS

7 The applicable Drummoyne Local Environmental Plan 1986 and Drummoyne Development Control Plan have a numbers of provisions that apply to these appeals.

8 In regard to the existing window to be retained on the return east wall from the front veranda to the garage, Mr Goodridge produced a council staff memo in 2005 indicating the garage would be setback 250mm north of the existing window. Whilst this might be the case, the plans were approved showing the window moved into approximately the current position, and no condition required the window to stay where it was. The variation by scaling from the plans is about 600mm.

9 The applicant says that the original approval showed a garage 5m long internally by scale. A garage has to be 5.5m long, so it was extended towards the street because lengthening the garage to the north would eliminate the laundry. In reality council should have detected this as a problem during assessment of the original application and realised the implications.

10 Mr Goodridge was also concerned that the new position of the existing window on the ground floor brought persons in the bedroom it serves, closer to his front yard and creates a privacy intrusion. It seems to me the driveway of the site is right beside Mr Goodgridge’s front yard, and has been there for many years. That is an existing situation, and his front yard is quite open to the street and public view. Bedroom windows are generally regarded as having less privacy impact than living rooms, because bedrooms are generally only occupied at night, and usually the persons in the bedrooms are more interested in their own privacy than looking out at others.

11 The other objectors said the changes made the house more bulky in the street as seen from the east. I was taken to Mr Mathews house to look from about 150m away. From that distance, it is my opinion the proposal is substantially the same appearance as the original approval.

12 The applicant and Mr Grech noted between the site and Mr Mathews are several older houses that have had 2nd storey additions built relatively recently. They are in character with the original house on each lot, and the period of each original house (most appear not as old as No.48’s cottage). Some have narrow side setbacks similar to the west wall of No.48, but in those cases the 2nd storey goes straight up from the ground floor without the increased setback on the 2nd floor of No.48. These houses have similar height and bulk to the subject house at No.48.

13 There are older single storey houses in the street, so there is a variety of 1- and 2-storey and various architectural periods, and alterations and additions in the streetscape.

14 The original approved plans show the garage and the window slightly further north than their current position, but there is no dimension giving a specific setback from the street boundary. The garage and the first floor above it are still visually well behind the original cottage and its front veranda. The respondent and Mr Grech believe the streetscape appearance is so similar to the approval that the affect on the conservation area is acceptable, provided the eastern return wall from the veranda to the garage is reclad in weatherboards to match those of the cottage front façade.

15 I agree with this, the matching of the weatherboards will emphasise the retention of this part of the original cottage, and enable it to be discerned from the extensions. The overall effect, in my opinion, is the sort of outcome envisaged by the Burra Charter.

16 Beyond the section of the west ground floor wall shown as “painted FC boarding” is the masonry rebuild of the previously existing wall. It is in painted cement render. It is a long unarticulated wall horizontally, but there is articulation vertically by the increased side setback of the upper floor and the pitched roof at ground floor level that covers that setback. And then the pitched roof at the first floor level being setback a little further than the original approval increases that vertical articulation.

17 Several of the other houses in Plunkett St shown to me that have had recent 2nd storey additions have long unarticulated full 2-storey walls with narrow side setbacks. It seems to me the council has a practice of allowing narrow side setbacks and unarticulated walls where additions to existing houses are involved. Also the western neighbour’s driveway gives separation between houses, and shadows falling on the driveway are not a major amenity impact. That being the case, I do not see a justification for requiring demolition and rebuilding of the west walls of No.48.

18 The major issues in my opinion are the increased privacy and solar access impacts on Mr Goodridge’s house that are caused by the narrow side setback of the ground floor east wall and the courtyard, the return parapet at the Family room north wall, and the windows to the stair and hall at the 2nd storey.

19 Mr Goodrige’s living room window is set about 900mm off his west boundary directly opposite No.48’s courtyard. The original plans had no privacy screen and the courtyard deck went to the boundary. Privacy in Mr Goodridge’s living room and on No.48’s deck would be almost non-existent. I agree with Mr Grech that for mutual privacy, the amended plans should be required to provide a full width privacy screen across the courtyard. He said the screen should be set in to allow a planter box to grow shrubs and climbing vines on the screen for mutual privacy and visual amenity.

20 Also Mr Grech said the window louvres at the 2nd storey level should be fixed to an angle to give visual privacy. It is my opinion the louvres need to be fixed closed to 1.8m above the floor so that the upper ones can be opened for ventilation. Although some sound from the 2nd storey hall and stairs may be audible in Goodridge’s as a result, it will be less than with full opening louvres. In any case little can be done about persons talking in the courtyard. The louvres need to be fixed closed to 1.8m because the angle of view from the 2nd storey into Goodridge’s is so steep that even slight opening of the louvres would enable a view.

21 In addition, the louvres to 1.8m above the floor should be obscured or frosted glass for mutual privacy of those in Goodridge’s Living room and Kitchen, and for privacy of those in No.48’s second storey hall and stair.

22 In regard to increased bulk caused by the closer proximity of No.48, I note from the on-site part of the Hearing, that the only place one is likely to feel it would be Goodridge’s living room and kitchen. The living room window is opposite the indented courtyard of No.48 and the impression of space outside the window will not change significantly because the 2nd storey west wall of the courtyard is not changed from the approval. It gives about 5m visual separation.

23 In Goodridge’s Kitchen there is a highlight west window that is more for light than view. It faces the east wall of No.48. The main Kitchen window is to the north looking into Goodridge’s back yard. It is located on a return wall of Goodridge’s. Mr Grech said the increased feeling of bulk and proximity could be made acceptable by growing climbing vines in the now cement rendered wall of the garage and the east wall of the Kitchen and Family room. Mr Goodridge agreed such a treatment would reduce glare from reflected sun and soften the bulk. I agree also. From the living room the return parapet at the corner of the kitchen and courtyard increases visual proximity and bulk. It should be deleted and the wall finished flush with the slope of the roof.

24 In regard to solar access Goodridge’s Kitchen window that faces north does not get sun until around midday, due to another wall on his house that projects further north.

25 There was some doubt cast upon the shadow plans the council had when it gave the original approval. New shadow plans that Mr Grech said were accurate came in Exhibits F and 6.

26 Photos Mr Goodridge had taken, in his side setback on 9th July between 3.30pm and 4pm, showed sun coming through the leaves and branches of tree in the backyard, just clear of the No.48 original cottage roof, towards his Living room window. The sun would be gone from the window shortly thereafter.

27 The new shadow diagrams showed the Living room window of Goodridge’s did not start to be affected by shadows of the new building until about 3.15pm mid-winter. By 3.30pm the window had existing fence shade to its lower glass panels, and from No.48 shadow to about halfway up the glass. This is about 1.5m off the floor.

28 The new shadow diagrams cast the shadow off the 2nd storey eave of the new building to show the impact described above. It was possible to stand where Mr Goodridge had taken his photo, and compare the position of the sun. It was obvious the return parapet of the ground floor north elevation would block some winter afternoon sun to the Living room and Kitchen windows too, and that was not shown on the shadow diagrams. The impact had been increased by the reduced side setback of the “as-built” versus the approved plans.

29 I have concluded that the parapet should be removed, and the Family room corner north wall should finish flush with its pitched tile roof, in order to return shadow impacts approximately to the same as council’s original approval.

30 The evidence says that even with the reduced setbacks the walls as constructed comply with the fire rating requirements of the Building Code of Australia.

31 In regard to the swim pool surround it seems activity related to the previous approved pool has been occurring for some time and the surround will not change that significantly. The pool surround leaves a 2 or 3 metres width of lawn to the boundary and it is to be planted out.

32 Mr Grech noted that council officer reports of Sept 4, 2007 and Oct 2, 2007 did not conflict with his conclusions: that with appropriate conditions the additional impacts caused by the building not being in strict accordance with the original consent, would be minimized to acceptable levels.

33 My overall conclusion is that the s96 modification of development consent DA677/2005 should be allowed subject to appropriate conditions, and that once complied with the Council should issue a Building Certificate.

34 The Orders of the Court are

1. Appeal No.11060 of 2007 is upheld in regard to the modification of Development Consent No.DA677/2005 for No.48 Plunkett St, Drummoyne, subject to the conditions in Annexure A hereto.
2. Appeal No.10022 of 2008 is upheld subject to compliance with the conditions in Annexure A hereto. Once complied with to the satisfaction of the City of Canada Bay Council, a Building Certificate shall be issued by the Council under s 149A of the Environmental Planning and Assessment Act 1979.

3. The exhibits are returned to the parties except Exhibits 1, C, D and H

___________________

Commissioner of the Court