Paino v Woollahra Municipal Council
[2002] NSWLEC 13
•01/23/2002
Reported Decision: 118 LGERA 396
Land and Environment Court
of New South Wales
CITATION: Paino v Woollahra Municipal Council [2002] NSWLEC 13 PARTIES: APPLICANT:
Salvatore PainoRESPONDENT:
INTERVENER:
Woollahra Municipal Council
Frank LowyFILE NUMBER(S): 10500 of 2001 CORAM: Lloyd J KEY ISSUES: Development Application :- modification application - acoustic and visual impact - foreshore building line - whether a development standard - application of State Environmental Planning Policy No. 1
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4 and s 97
State Environmental Planning Policy No. 1
Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours
Woollahra Local Environmental Plan 1995 cl 22 and cl 22AACASES CITED: Bowen v Willoughby City Council (2000) 108 LGERA 149;
North Sydney Municipal Council v P D Mayoh Pty Ltd [No. 2] (1990) 71 LGRA 222;
Russo v Kogarah Municipal Council (1999) 105 LGERA 290;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114DATES OF HEARING: 17/01/2002, 18/01/2002, 23/01/2002 EX TEMPORE
JUDGMENT DATE :
01/23/2002LEGAL REPRESENTATIVES:
APPLICANT:
Mr P C Tomasetti (Barrister)
SOLICITORS:
Hardings
RESPONDENT:
Ms J Hughes
SOLICITORS:
Phillips Fox
INTERVENER:
Mr L Forster SC and Mr J B Mason (Barrister)
SOLICITORS:
Speed & Stracey
JUDGMENT:
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Salvatore Paino
Applicant
v
Woollahra Municipal Council
Respondent
Frank Lowy
Intervener
EXTEMPORE JUDGMENT
- HIS HONOUR:
1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of a development application for an extension of a terrace or balcony on a house at No. 106 Wolseley Road, Point Piper.
2. On 25 September 2001 Cowdroy J made an order on the application of Mr F Lowy who owns the adjoining property at No. 102 Wolseley Road (the Lowy’s residence) that Mr Lowy be granted leave to appear at the hearing by counsel and solicitor in order to adduce evidence, cross-examine witnesses and make submissions.
3. The background facts may be briefly described. On 14 February 2000 the respondent, Woollahra Municipal Council, granted development consent for alterations and additions to the existing house on the applicant’s property, No. 106 Wolseley Road. That development involved the provision of a lift servicing each level of the house, the construction of additional terrace areas to the lower ground floor and ground floor, the demolition of a shower and toilet block adjacent to a boatshed, a new front gate, a widened external stairway and a new laundry.
4. The council’s consent was granted subject to a number of conditions including relevantly the following:
- 2. That the southern part of the ground floor terrace be deleted from a point south of the wall between the two existing dining room windows. The southern elevation of the revised terrace shall be parallel to and 3.2m north of the existing southern wall of the dwelling. Details to be included with the Construction Certificate Application.
3. A planter box 1 metre in height, capable of sustaining landscaping to a minimum height of 500mm, is to be provided at the southern end of the ground floor terrace. Details are to be provided with the Construction Certificate Application.
5. The work which was the subject of this development consent has now commenced and is continuing. On 16 June 2000 the present development application was lodged with the council. It seeks to re-instate the portion of the ground floor terrace deleted by condition 2 of the development consent of 14 February 2000. The development application seeks to extend the approved terrace by a further 11 square metres across the western face of the house in front of the dining room. The outer edge of the terrace will be 1.8 metres from the common boundary of Nos. 106 and 102 Wolseley Road. The balcony will now be about 0.7 metres higher than the balcony on the opposite side of the common boundary at No. 102.
6. The council considered the development application at a meeting of its Development Control Committee on 11 December 2000. A report prepared by the council’s staff recommended that consent be granted to the development application subject to the provision of a 900 millimetre high planter box and a 1.2 metre high balustrade on the southern edge of the balcony, being adjacent to the common boundary between No. 106 and No. 102 Wolseley Road.
7. The council nevertheless refused the development application on the following ground: “Adverse impact on the aural and visual privacy of the adjoining dwelling.” Both the solicitors for the council and the solicitors for Mr Lowy filed statements of issues which in effect expand upon the ground of refusal. They also raise an issue of whether the Court should, in the exercise of its discretion, grant consent under the circumstances which would involve a contravention of a condition of the development consent granted by the council on 14 February 2000; or circumstances which effectively seek the deletion of that condition, where the applicant has commenced construction in accordance with that consent where the applicant chose not to appeal against the imposition of the condition and where there are no changed circumstances. Mr Lowy’s solicitors also raise the issue of the visual impact under Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours, and whether the proposal is prohibited by cl 22 of the Woollahra Local Environmental Plan 1995 being within the foreshore building line fixed pursuant to that clause.
8. I should first consider the submission that in the exercise of its discretion the Court should in effect decline to exercise its jurisdiction because the impugned development application essentially seeks to delete conditions 2 and 3 of the development consent of 14 February 2000. In support of the submission reliance is placed on the decision of the Court of Appeal in Russo v Kogarah Municipal Council (1999) 105 LGERA 290, in which it was held that it was an abuse of process to bring repeated applications to the Court, and this sought to re-agitate the issues which have as a matter of substance already been determined in prior decisions. It is not suggested that in this case the appeal amounts to an abuse of process but that the Court should in the exercise of its discretion refuse the application.
9. The facts in Russo were somewhat different to those in the present case. In that case there had been three development applications, two appeals to the court both of which had been refused and then a third development application and appeal to the court. In the present case there has been and is only one appeal to the court, namely the appeal in this case. Moreover it is relevant that the applicant has and at all times had a statutory right to make a further development application for works that have been deleted from the earlier consent by way of a condition: see s 78A(1) of the Environmental Planning and Assessment Act 1979.
10. It is also relevant that the applicant has a statutory right to appeal to the Court if dissatisfied with the determination of the consent authority with respect to his development application: see s 97 of the Environmental Planning and Assessment Act 1979. In my opinion, a court should be reluctant to deny on discretionary grounds the right of an applicant to exercise his or her rights granted by an Act of parliament. I do not accept the submission, therefore, that the Court should in the exercise of its discretion refuse to entertain this appeal or otherwise grant relief.
11. Expert evidence in the present case was adduced for the applicant by Mr B Newbold, consultant town planner and urban designer and by Mr P Knowland, acoustical engineer; for the council by Mr H M Sanders, consultant town planner; and for Mr Lowy by Mr N Ingham, consultant town planner and Mr S E Cooper, acoustical engineer.
12. The subject land is within zone 2(a) under the Woollahra Local Environmental Plan 1995. The objectives of the zone include relevantly, “to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses.” It is clear that the proposed development is permissible with development consent in this zone and prima facie will not infringe any relevant objective of the zone.
13. The proposal is subject to Woollahra Residential Development Control Plan 1999. Part 5.8 is headed, “Acoustic and Visual Privacy”, the stated objective of which is: “to ensure adequate acoustic and visual privacy for occupants and neighbours.” The development control plan states that visual privacy can be achieved by layout that avoids overlooking by screening and by separation. Performance criterion P9 requires the outlook from windows, balconies, stairs, landings, terraces and decks or other private communal or public areas within a development to be obscured or screened where a direct view is available into the private open space of an existing dwelling. Private open space is defined in the development control plan as including a balcony or roof terrace. Performance criterion P6 specifies the criteria for the transmission of noise from a proposed development to any adjoining premises or occupancy.
14. The evidence of both Mr Sanders and Mr Ingham shows clearly that there will be an adverse impact by the proposed terrace upon the private open space of the Lowy’s residence. As I have noted the proposed terrace will be 1.8 metres from the common boundary and about 0.7 of a metre higher than the terrace on the opposite side of the common boundary to the Lowy’s residence and will also overlook it. It will also overlook, although separated by a greater distance, the lower outdoor recreation area at the Lowy’s residence. The evidence of Mr Cooper shows clearly that the potential level of noise emission from persons talking on the extended terrace will exceed the council’s noise criteria set out in the development control plan and exceed the Environment Protection Authority’s sleep arousal criteria at the Lowy’s residence. The proposed extension would thus have an adverse visual and acoustical impact on the amenity of the occupants of the Lowy’s residence.
15. In order to ameliorate these impacts the applicant proposed during the hearing a condition of consent as follows:
- 2. Provision of a Balustrade and Planter Box.
- A glazed screen and planter box shall be provided to the southern edge of the ground floor terrace. The planter box shall be 1.0 metres high, 1.0 metres deep and 2.4 metres long and shall be planted with plants approved by the Council landscape officer such that there shall be provided reasonable screening to the ground floor terrace of the property at 102 Wolseley Road. The planting shall be maintained at all times. A glazed screen to a height of 1.0 metre shall be provided on the southern edge of the planter box.
16. During the course of the hearing the applicant offered to increase the height of the glazed screen by an additional 0.5 of a metre. The applicant also offered as a condition to delete a proposed door from the dining room on to the extension of the terrace. The effect of this condition if imposed would be to afford a large measure of visual privacy to the balcony at the Lowy’s residence on the opposite side of the common boundary. Moreover both the acoustical engineers, Mr Cooper and Mr Knowland, have agreed that the placing of a glass screen 1.5 metres high on top of a 1 metre high planter box, the total height of the planter box and screen being 2.5 metres, would intercept sound beams from the extended terrace to the Lowy’s residence, including the Lowy’s master bedroom. Both acoustical engineers agree that a consequence of a screen of this height is that the situation of four people on the proposed terrace talking simultaneously, assuming eight people present, either in a normal or raised voice, would satisfy normal sleep arousal criteria at the Lowy’s residence. Whilst the sound level at the boundary adjacent to the Lowy master bedroom would not satisfy criterion P6 of cl 5.8.3 of the development control plan it does as I have noted satisfy the Environment Protection Authority’s sleep arousal criteria. Having regard to the fact that the relevant window to the Lowy’s master bedroom is fixed plate glass I am satisfied that the objective of the development control plan of achieving reasonable acoustical privacy will be achieved if the condition is imposed.
17. There will, however, be some overlooking of the lower outdoor recreation of the Lowy’s residence adjacent to the waterfront. That is a more distant view, the separation being about 25 metres. The overlooking of that area is not in my opinion of a great significance and is not an uncommon feature of properties in this area. The applicant also offered during the hearing a further condition that the proposed terrace must be not trafficable except for maintenance purposes. This would be achieved by the placing of potted plants to prevent ordinary access to the terrace. In my opinion such a condition would present practical problems in its enforcement and should not be entertained.
18. Overall the proposal now proposed with the conditions now proffered by the applicant will result in a terrace which would afford reasonable visual and acoustical privacy to the Lowy residence. Neither, in my opinion, will this minor extension of an existing terrace result in any adverse visual impact when viewed from the harbour being a consideration required by Sydney Regional Environmental Plan Number No. 23 – Sydney and Middle Harbours. Having had the benefit of a view with representatives of the parties it seems to me that the proposed terrace will probably have a beneficial visual impact in breaking up the otherwise bland and dominating external wall of an otherwise undistinguished building.
19. I turn now to cl 22 of Woollahra Local Environmental Plan 1995. That clause along with cl 22AA are as follows:
- 22AA Objectives of foreshore building line standards
- The objectives of the foreshore building line standards set by clause 22 are as follows:
(e) to retain Sydney Harbour’s natural shorelines,
(f) to provide larger foreshore setbacks at the points and heads of bays in recognition of their visual prominence,
(g) to protect significant areas of vegetation and, where appropriate, provide areas for future planting which will not detrimentally impact on views of the harbour and its foreshores,
(h) to protect the amenity of adjoining lands in relation to reasonable access to views and sunlight,
(i) to preserve the rights of property owners to maintain an encroachment on the foreshore building line by an existing main building,
(j) to protect rock platforms and the intertidal ecology.
(1) In this clause, foreshore building line means:
- (a) a line shown on the map marked “Woollahra Local Environmental Plan 1995 – Foreshore Building Line Map” as a broken line with “F.B.L. 12m” marked in black letters, being a line which is taken for the purposes of this clause to be situated 12 metres above the mean high water mark of the waters of Port Jackson, and
(b) a line shown on the map marked “Woollahra Local Environmental Plan 1995 – Foreshore Building Line Map” as a broken black line with “F.B.L. 30m” marked in black letters, being a line which is taken for the purposes of this clause to be situated 30 metres above the mean high water mark of the waters of Port Jackson.
- (a) bath (swimming pools) and ancillary buildings,
(b) boat sheds,
(c) wharves,
(d) jetties,
(e) structures or works below or at the surface of the ground.
Note: The precise location of a foreshore building line can be ascertained by a survey undertaken by a registered surveyor.
20. It is not clear where the foreshore building lies on the subject land. Is it the line shown on the map described in cl 22(1)(a) which applies to the subject land, or is it an imaginary line situated 12 metres from the mean high water mark? The former line is not 12 metres from the mean high water mark but is shown on the map at some distance greater than that. The latter imaginary line bears little relationship to the former. Fortunately I do not have to resolve this question. There is no doubt that the proposed terrace is between whichever line is selected as the mean high water mark. The proposed terrace does not come within the description of structures set out in cl 22(4) of the Woollahra Local Environmental Plan. There is nothing exceptional about the levels, depth or other features of the site which would enable the consent authority to invoke cl 22(5) of the Woollahra Local Environmental Plan and thereby alter or abolish the foreshore building line in this instance. Nevertheless during the hearing the applicant prepared and submitted an objection to the development standard, being the foreshore building line, pursuant to State Environmental Planning Policy No.1 (which I shall conveniently call SEPP No. 1) and which objection the applicant then amended during the course of the hearing.
21. The respondent accepts, but the intervener does not accept, that the foreshore building line described in cl 22 is a development standard and thus amenable to any objection under SEPP No. 1. This question requires a consideration of the definition of “development standards” in s 4 of the Environmental Planning and Assessment Act 1979, which is as follows:
- “ development standards” means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:-
- (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point;
(b) the proportion or percentage of the area of a site which a building or work may occupy;
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work;
(d) the cubic content or floor space of a building;
(e) the intensity or density of the use of any land, building or work;
(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment;
(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles;
(h) the volume, nature and type of traffic generated by the development;
(i) road patterns;
(j) drainage;
(k) the carrying out of earthworks;
(l) the effects of development on patterns of wind, sunlight, daylight or shadows;
(m) the provision of services, facilities and amenities demanded by development;,
(n) the emission of pollution and means for its prevention or control or mitigation; and
(o) such other matters as may be prescribed.
22. It seems clear to me that the foreshore building line described in sub-cll 22(1) and (2) of the Woollahra Local Environmental Plan 1995 falls within the definition of development standards. The proposed development is permissible with development consent under the relevant zoning table under the local environmental plan. Clause 22 specifies a requirement in respect of an aspect of the development, namely, the location of the building on the land which is affected by the foreshore building line. Moreover it is a requirement which falls within the description under par (a) of the definition, namely, a requirement in respect of the distance of any building or work from any specified point, in this case the mean high water mark. It also falls within par (c) of the definition, being a requirement in respect of the location or siting of a building or work.
23. The conclusion that cl 22 is a development standard is consistent with the approach of the majority of the Court of Appeal in North Sydney Municipal Council v P D Mayoh Pty Ltd [No.2] (1990) 71 LGRA 222 and which was recently affirmed by the Court of Appeal in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319. In Mayoh the majority, Mahoney and Clarke JJA, drew a distinction between a clause which prohibits the carrying out of development on identified land and a clause fixing a requirement to be complied with in carrying out that development, the former being a prohibition and the latter being a development standard. Clause 22 in the present case is, in my view, falls within the latter category.
24. Moreover, a prohibition on the erection of a building between a foreshore building line and the foreshore to which that line relates has been held to be a development standard within the definition and not a prohibition: see for example Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114 at 119-120 and Bowen v Willoughby City Council (2000) 108 LGERA 149 at 162. There is no difference in substance between the clauses considered in those cases and cl 22 in the present case. Clause 22 clearly sets a development standard and is thus susceptible to the power of dispensation under SEPP No. 1.
25. In order to obtain the benefit of the dispensation allowed by SEPP No. 1, however, an affirmative answer must be given to a number of questions. Would compliance with the development standard tend to hinder the attainment of the object specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 having regard to the width of those objects in particular the promotion and co-ordination of the orderly and economic use and development of land? The answer to this question would appear to be in the affirmative.
26. What is the underlying object or purpose of the standard? This is set out in cl 22AA. Although cl 22AA was inserted in the local environmental plan after the development application was lodged, it seems reasonably clear to me that that clause sets out the underlying objectives of the development standard in any event. These objectives are considered in the context of the next question.
27. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? In my opinion the answer is again in the affirmative when assessed against the objectives of the foreshore building line. There is no natural shoreline in this area having regard to the large number of man-made structures along the foreshore, which include such things as seawalls, boatsheds, jetties, pontoons, swimming pools and even tennis courts. The foreshore building line is already infringed by main buildings and other prominent structures and the proposed terrace in this case will not in my opinion be visually prominent.
28. There are no areas of significant vegetation. Existing areas available for future planting will not be lost. The proposed terrace is to be located within the footprint of the existing house and above an existing terrace at a lower level. Whilst there will be some loss of view from the Lowy’s residence, particularly from the kitchen, such loss of view could only be described as marginal and that residence will retain reasonable access to views.
29. Finally on this aspect of the objection to the development standard I have noted that the proposed terrace is to be directly above an existing terrace at a lower level which is already within the foreshore building line and it will not extend the footprint of the existing building. All these considerations suggest that compliance with the development standard in this case would be unreasonable and unnecessary. It also follows in my opinion that the objection is well founded.
30. My conclusion, therefore, is that the amended development application now before the Court may be granted.
31. The council, however, acted quite properly in my opinion in refusing its consent to the development application in its original form. The amendments made to the application during the course of the hearing, however, make what would otherwise have been unacceptable into a development which is on balance now acceptable.
32. The formal orders of the Court will be that the appeal be allowed and development consent be granted subject to the conditions which I have noted together with other conditions agreed to by the parties. The exhibits other than exhibits 5 and H may be returned.
- (1) Appeal allowed.
- (2) Development consent is granted for an extension to the approved balcony subject to the condition annexed hereto.
(3) The exhibits, other than Exhibits 5 and H, may be returned.
AssociateI hereby certify that the preceding 32 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd
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