Psaila v Northern Beaches Council - [2021] NSWLEC 1528

No judgment structure available for this case.

Land and Environment Court

New South Wales

Medium Neutral Citation: Psaila v Northern Beaches Council [2021] NSWLEC 1528
Hearing dates: 25 August 2021 and 1 September 2021
Date of orders: 13 September 2021
Decision date: 13 September 2021
Jurisdiction: Class 1
Before: Peatman AC
Decision:
Orders: See [27]

Catchwords:
RESIDENTIAL DEVELOPMENT – Appeal against 2 conditions of consent – privacy impact on neighbours – built form impact – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7, 4.2, 4.5, 4.15, 4.16, 4.17
Environmental Planning and Assessment Regulation 2000, cl 49, 55, 77
Land and Environment Court Act 1979, ss 17(d) and 39
Warringah Local Environmental Plan 2011

Texts Cited:
Northern Beaches Participation Plan
Warringah Development Control Plan 2011, Cll B3, D8 and D9

Category: Principal judgment
Parties: Sandra Psaila (First Applicant)
Jesmond Psaila (Second Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
L Nurpuri (Applicants)
F Berglund (Respondent)
Solicitors:
Alice Spizzo Advisory (Applicants)
Northern Beaches Council (Respondent)

File Number(s): 2021/94873
Publication restriction: No

Judgment

This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against 2 conditions of the consent granted by Northern Beaches Council (Council) in relation to Development Application DA2020/1737 (DA) for alterations and additions to the property known as 14 Kangaroo Road, Collaroy Plateau being the whole of the land in Lot 35 Deposited Plan 11593 (Land).

Background

The DA was lodged with Council on 19 January 2021. Council granted consent to the DA on 16 March 2021 for the following works to the dwelling house on the Land (DA Consent):

Extended storage area to the rear of the garage;

Use of tiled area above garage as a ground floor level deck;

Planter boxes along the sides and front of the ground floor level deck;

Use of the tiled area above the dining/kitchen as an upper floor deck; and

extending the rear timber deck and moving steps to access the rear timber deck.

The DA was notified to surrounding owners and occupiers between 20 January 2021 to 8 February 2021 in accordance with the Northern Beaches Community Participation Plan and cl 77 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations).
Two submissions were received during the notification period, and they raised the following objections:

Privacy impacts caused by access to and use of the first floor deck/balcony;

Privacy impacts caused by use of the ground floor and upper floor level decks/balconies; and

The proposal will result in a variation to the front set-back.

The subject property is in an R2 Zone – low density residential, and surrounded by 1 to 2 storey residences.
The DA Consent was subject to conditions, included the following conditions which are the subject of this appeal by the Applicants:

Conditions to be satisfied Prior to the Issue of the Construction Certificate
“5. Amendments to approved plans
The following amendments are to be made to the approved plans:
a)   The upper floor level balustrading to the front deck is to be set back 2.5m from the southern side boundary.
Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the construction certificate.
Reason: To ensure development minimises unreasonable impacts upon surrounding land.”
“7. Privacy Screen
a)   A 1.65 metre privacy screen (measured from finished floor level) is to be erected for a length of 1.5mof the outermost northern edge of the upper level deck located off Bedroom 1 as shown on the approved plans. The privacy screen shall be of fixed panels of louver style construction (with a maximum spacing of 20mm), in materials that complement the design of the approved development.
b)   A 1.65m privacy screen (measured from finished floor level) is to be erected for a length of 2.5m of the outermost southern edge of the upper floor level balustrading located off Bedroom 1 as shown on the approved plans The privacy screen shall be of fixed panels, lourver style construction with a maximum spacing of 20mm), or opaque glazing, in materials that complement the design of the approved development.
Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate.
Reason: In order to maintain privacy to the adjoining/nearby property.”

On 6 April 2021 the Applicants filed an appeal pursuant to s 8.7(1) of the EPA Act against Conditions 5 and 7 of the DA.
The appeal falls within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
In the proceedings, the Council raised the following Contentions:

B1: Privacy impacts on neighbouring properties

Absent Condition 5 of the DA, the proposed development should be refused as it will result in unacceptable impacts to the privacy of the neighbouring property at 12 Kangaroo Road, Collaroy Plateau.

Absent Condition 7 of the DA, the proposed development should be refused as it will result in unacceptable impacts to the privacy of the neighbouring properties at 12 and 16 Kangaroo Road, Collaroy Plateau.

B1: Unacceptable built form impacts

Insofar as the Applicant proposes the location of a privacy screen on the upper level deck in line with the outermost edge of the existing roof as contemplated in Contention B (1) of the Applicant’s Statement of Facts and Contentions, the proposed development should be refused as it will result in unacceptable built form impacts.

The proposed development should be refused as it is not in the public interest.

B3 – Insufficient information to assess the DA

There is an inconsistency between the ground floor plan and the south elevation plan which results in the Council being unable to properly assess the DA.

The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 August 2021 and 1 September 2021. I presided over the conciliation conference.

Legislation

Environmental Planning and Assessment Act 1979

4.2 Development that needs consent

(cf previous s 76A)

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.
(2) For the purposes of subsection (1), development consent may be obtained—
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.

(3), (4) (Repealed)
(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
(6)–(9)(Repealed)
Note—
Division 4.7 makes provision with respect to State significant development.

4.5 Designation of consent authority

For the purposes of this Act, the consent authority is as follows—
(a)  in the case of State significant development—the Independent Planning Commission (if the development is of a kind for which the Commission is declared the consent authority by an environmental planning instrument) or the Minister (if the development is not of that kind),
(b)  in the case of development of a kind that is declared by an environmental planning instrument as regionally significant development—the Sydney district or regional planning panel for the area in which the development is to be carried out,
(c)  in the case of development of a kind that is declared by an environmental planning instrument as development for which a public authority (other than a council) is the consent authority—that public authority,
(d)  in the case of any other development—the council of the area in which the development is to be carried out.

4.12 Application

(cf previous s 78A)

(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
Note—
Section 380AA of the Mining Act 1992 provides that an application for development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 1.5(1).
(3) If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely—
paragraph 1 of Part A
paragraph 1–6 of Part B
paragraph 1–5 of Part C
paragraph 1 of Part E
paragraph 1–5 or 10 of Part F.
(4) In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval.

4.15 Evaluation

(cf previous s 79C)
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
(a)  the provisions of—
(i)  any environmental planning instrument, and
(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii)  any development control plan, and
(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v)    (Repealed)

that apply to the land to which the development application relates,
(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c)  the suitability of the site for the development,
(d)  any submissions made in accordance with this Act or the regulations,
(e)  the public interest.

(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—
(a)  is not entitled to take those standards into further consideration in determining the development application, and
(b)  must not refuse the application on the ground that the development does not comply with those standards, and
(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,
and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—
(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and
(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

Note—
The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4).
(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—
(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and
(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c)  may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.
(4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5) A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).
(6) Definitions In this section—
(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and
(b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

4.16 Determination

(cf previous s 80)
(1) General A consent authority is to determine a development application by—
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
…..
(13), (14) (Repealed)

4.17 Imposition of conditions

(cf previous s 80A)

(1) Conditions—generally A condition of development consent may be imposed if—
(a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or
(b)  it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or
(c)  it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or
(d)  it limits the period during which development may be carried out in accordance with the consent so granted, or
(e)  it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or
(g)  it modifies details of the development the subject of the development application, or
(h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32.

(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
(3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.
(4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following—
(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b) clear criteria against which achievement of the outcome or objective must be assessed.

(4A) Conditions replaced by other legislative controls A development consent for the carrying out of development may be granted subject to specified conditions that cease to have effect on the issue of an authorisation under another Act relating to that development (or any part of it) if the consent authority is satisfied that the matters regulated by those conditions will be adequately addressed by such an authorisation when it is issued. The regulations may restrict the imposition of any such condition.
(4B) Conditions relating to financial assurance A development consent may be granted subject to a condition of a kind described in Part 9.4 of the Protection of the Environment Operations Act 1997 to secure or guarantee funding for or towards the carrying out of works or programs required by or under the consent. The regulations may restrict the imposition of any such condition and may make provisions with respect to any such condition of the kind set out in that Part (including in relation to the calling on and use of any financial assurance).
(6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following—
(a)  making good any damage caused to any property of the consent authority (or any property of the Planning Ministerial Corporation) as a consequence of the doing of anything to which the consent relates,
(b)  completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,
(c)  remedying any defects in any such public work that arise within 6 months after the work is completed,
(d)  in relation to coastal protection works (within the meaning of the Coastal Management Act 2016), either or both of the following—
(i)  the maintenance of the works,
(ii)  the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works.

(7) The security is to be for such reasonable amount as is determined by the consent authority.

(8) The security may be provided, at the applicant’s choice, by way of—
(a) deposit with the consent authority, or
(b) a guarantee satisfactory to the consent authority.

(9) The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority.
(10) The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security.
(10A) (Repealed)

8.7 Appeal by applicant—applications for development consent

(cf previous s 97)

(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.
(2) For the purposes of this section, the determination of an application by a consent authority includes—
(a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or
(b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

(3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.

8.10 Time within which appeals may be made

(1) An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11)—
(a)  6 months after the relevant date, if the relevant date occurs after the prescribed period, or
(b)  12 months after the relevant date, if the relevant date occurs—
(i)  during the prescribed period, or
(ii)  during the 6-month period immediately before the prescribed period.

(2) An appeal under this Division by an objector may be made only within the following periods after the relevant date (being the date the objector is notified of the decision appealed against)—
(a)  28 days after the relevant date, if the relevant date occurs after the prescribed period, or
(b)  56 days after the relevant date, if the relevant date occurs—
(i)  during the prescribed period, or
(ii)  during the 28-day period immediately before the prescribed period.

(3) In this section—
prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.

8.14 Powers of Court on appeals

(cf previous s 39(6A) Land and Environment Court Act)

(1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.
(3) If the consent authority was under this Act required to consult or obtain the concurrence of another person or body before making the decision the subject of an appeal under this Division—
(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence has been granted, and
(b) in a case where the concurrence has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(4) If an appeal under this Division relates to integrated development—
(a)  the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body, and
(b)  the Court is not bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval, and
(c)  the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body.

Environmental Planning and Assessment Regulation 2000

49 Persons who can make development applications

(cf clause 46 of EP&A Regulation 1994)

(1) A development application may be made—
(a) by the owner of the land to which the development application relates, or

55 What is the procedure for amending a development application?

(cf clause 48A of EP&A Regulation 1994)
(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal.
(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development.

77 Notice of development applications

(1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must—
(a)  publish notice of the application on the consent authority’s website, and
(b)  give notice of the application to—
(i)  the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and
(ii)  in the case of a development application other than designated development—the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

(2) The notice must contain the following information—
(a)  a description (including the address) of the land on which the development is proposed to be carried out,
(b)  the name of the applicant and the consent authority,
(c)  a description of the proposed development,
(d)  whether or not the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development,
(e)  a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority’s website for the period specified in Schedule 1 to the Act for that kind of development,
(f)  a statement that any person, during the submission period specified in Schedule 1 to the Act for that kind of development, may make submissions to the consent authority concerning the development application and that the submissions must specify the grounds of objection (if any),
(g)  if the proposed development is also integrated development—
(i)  a statement that the development is integrated development, and
(ii)  a statement of the approvals that are required and the relevant approval bodies for those approvals,

(h)  in the case of State significant development—whether the Minister has directed that a public hearing should be held,
(i)  in the case of designated development—a statement that, unless the Independent Planning Commission has conducted a public hearing, a person may appeal to the Land and Environment Court if the person makes a submission by way of objection and is dissatisfied with the determination of the consent authority to grant development consent,
(j)  in the case of designated development—a statement that, if the Independent Planning Commission conducts a public hearing, the Commission’s determination of the application is final and not subject to appeal.

Land and Environment Court Act 1979

17 Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—
(d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

39 Powers of Court on appeals

(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.
(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—
(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and
(b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A) (Repealed)
(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.
(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

Warringah Development Control Plan 2011

B3 Side Boundary Envelope

Applies to Land
This control applies to land shown coloured on the DCP Map Side Boundary Envelopes.
Objectives
• To ensure that development does not become visually dominant by virtue of its height and bulk.
• To ensure adequate light, solar access and privacy by providing spatial separation between buildings.
• To ensure that development responds to the topography of the site.
Requirements
1. Buildings on land shown coloured on the DCP Map Side Boundary Envelopes must be sited within a building envelope determined by projecting planes at 45 degrees from a height above ground level (existing) at the side boundaries of:
• 4 metres, or
• 5 metres
as identified on the map.
2. On land within the R3 Medium Density Residential zone, above and below ground structures and private open space, carparking, vehicle access ramps, balconies, terraces, and the like shall not encroach the side boundary envelope.

D8 Privacy

Applies to Land
This control applies to land to which Warringah Local Environmental Plan 2011 applies.
Objectives
• To ensure the siting and design of buildings provides a high level of visual and acoustic privacy for occupants and neighbours.
• To encourage innovative design solutions to improve the urban environment.
• To provide personal and property security for occupants and visitors.
Requirements
1. Building layout should be designed to optimise privacy for occupants of the development and occupants of adjoining properties.
2. Orientate living areas, habitable rooms and windows to private open space areas or to the street to limit overlooking.
3. The effective location of doors, windows and balconies to avoid overlooking is preferred to the use of screening devices, high sills or obscured glass.
4. The windows of one dwelling are to be located so they do not provide direct or close views (ie from less than 9 metres away) into the windows of other dwellings.
5. Planter boxes, louvre screens, pergolas, balcony design and the like are to be used to screen a minimum of 50% of the principal private open space of a lower apartment from overlooking from an upper apartment.
Note
Note: On corner allotments, to measure the side setback and side boundary envelope, the side boundaries are taken to be the boundaries that do not have frontage to a public street.
Exceptions
Land Zoned R2 or E4 or Zoned RU4 with frontage to The Greenway
For all land zoned R2 or E4, or land zoned RU4 with frontage to "The Greenway", Duffy’s Forest:
Fascias, gutters, downpipes, eaves (up to 0.675 metres from the boundary), masonry chimneys, flues, pipes or other services infrastructure may encroach beyond the side boundary envelope.
Consent may be granted for the addition of a second storey to an existing dwelling house that to a minor extent does not comply with the requirement of this control.

Land Zoned R3
Fascias, gutters, downpipes, eaves, masonry chimneys, flues pipes or other services infrastructure may encroach beyond the side boundary envelope.

D9 Building Bulk

Applies to Land
This control applies to land to which Warringah Local Environmental Plan 2011 applies.
Objectives
• To encourage good design and innovative architecture to improve the urban environment.
• To minimise the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes.
Requirements
1. Side and rear setbacks are to be progressively increased as wall height increases.
2. Large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief.
3. On sloping land, the height and bulk of development (particularly on the downhill side) is to be minimised, and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope. In particular:
    The amount of fill is not to exceed one metre in depth.
    Fill is not to spread beyond the footprint of the building.
    Excavation of the landform is to be minimised.
4. Building height and scale needs to relate to topography and site conditions.
5. Orientate development to address the street.
6. Use colour, materials and surface treatment to reduce building bulk.
7. Landscape plantings are to be provided to reduce the visual bulk of new building and works.
8. Articulate walls to reduce building mass.
Note
Buildings may be articulated in the following ways to help reduce building mass:
• Wall planes may be broken up into smaller areas to vary the elevation and to provide interest
• Vertical, rather than horizontal, elements shall dominate front and other elevations visible from the street
• Step the façade
• Utilise a variety of materials and treatments to add interest
• Incorporate recessed, projecting or enclosed balconies
• Elevations with individual balconies and open space between reduce dominant horizontal banding
• Include pergolas, verandahs, shutters, external louvres and sun shading elements
• Add features of interest such as windows and balustrades.

Warringah Local Environmental Plan 2011

Consent authority

1.6 Consent authority

The consent authority for the purposes of this Plan is (subject to the Act) the Council.

Zone R2 Low Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

2 Permitted without consent

Home-based child care; Home occupations

3 Permitted with consent

Bed and breakfast accommodation; Boarding houses; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dwelling houses; Educational establishments; Emergency services facilities; Environmental protection works; Exhibition homes; Group homes; Health consulting rooms; Home businesses; Hospitals; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Tank-based aquaculture; Veterinary hospitals

4 Prohibited

Any development not specified in item 2 or 3

During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, being a decision the Court could have made in the proper exercise of its functions.
The parties requested that I dispose of the proceedings in accordance with the terms set out in their s 34 Agreement. This decision involved amending the plans to include a panel of obscure glass on the southern side of the upper balcony, 1.5m high and 750mm from the southern parapet; and vertical batons on the northern side at 200mm apart and inserted both on the upper balcony and the lower balcony/outside entrance to the residence.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the functions in ss 4.16 and 8.14 of the EPA Act and ss 34(3) and 39(2) of the LEC Act. The parties orally identified the jurisdictional prerequisites set out below, and I agree that the jurisdictional prerequisites have been met in order for me to uphold the appeal.

Jurisdictional Prerequisites

The DA lodged with Council on 19 January 2021, and the applicants as owners of the Land are authorised to lodge the DA and subsequent appeal to this Court pursuant to cl 49 of the EPA Regulation. The development requires consent in accordance with s 4.2 of the EPA Act.
Under the Warringah LEP 2011 the Land is Zone R2 Low Density Residential, and the proposed development complied with the objectives of the zone which are:

To provide for the housing needs of the community within a low density residential development.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To ensure that low density residential environments are characterised by landscaped setting that are in harmony with the natural environment of Warringah.

The Council is the consent authority as the land falls within Council’s Local Government Area pursuant to s 4.5 of the EPA Act, and cl 1.6 of Warringah LEP 2011.
Council notified the DA to surrounding owners and occupiers between 20 January 2021 and 8 February 2021 in accordance with the Northern Beaches Participation Plan and cl 77 of the EPA Regulation.
Two objections were received by the Council. The objectors were invited to address the Court at the beginning of the s 34 Conciliation Conference. The 2 objectors chose not to address the Court. However, the various written submissions by both objectors were read by me.

On 16 March 2021 pursuant to s 4.16 of the EPA Act Council granted consent to the DA subject to conditions, which included conditions 5 and 7 as set out in para 6 above.
On 6 April 2021 the Applicants filed their appeal in the Court pursuant to s 8.7(1) of the EPA Act.
On 31 August 2021 the parties filed a s 34 Agreement, and on 2 September the parties filed a further s 34 Agreement.
Contentions B1, B2 and B3 set out in para [9] above were satisfied by the parties agreeing:

In relation to Condition 5 of the DA Consent: to construct an obscure glass panel a distance of 750mm from the Upper Balcony parapet on the southern side of the building.

In relation to Condition 7; firstly, to agree to a vertical screen for a length of 1250mm, and a height of 1650 with a maximum of 200mm spacing.

In relation to Condition 7, secondly to agree to the obscure glass panel which is a distance of 750mm from the Upper Balcony parapet on the southern side of the building, to be at a height of 1500mm.

The parties also agreed to the construction of a full height vertical privacy screen with a maximum of 200mm spacing at the outside entrance on the northern side of the residence.
The amendments to the DA set out in para [22] and [23] meet the objectives of R2 Low Density Residential Zone under the Warringah LEP 2011.
The amendments set out in para [22] and [23] further comply with Warringah Development Control Plan 2011 as follows:

By complying with B3: Side Boundary Envelope in that:

The development is not visually dominant by virtue of its height and bulk;

There is adequate light, solar access and privacy and the development responds to the topography of the site.

By complying with B8 Privacy in that:

The development by its design provides a high level of visual and acoustic privacy for occupants and neighbours.

It provides an innovative design solution and provides personal and property security for occupants and visitors.

D9 Building Bulk in that it has minimised the visual impact of development when viewed from adjoining properties.

The provisions of ss 4.15(1) and 4.17(1) of the EPA Act have been complied with by the amended plans and amended conditions. In accordance with ss 4.16 and 8.14 of the EPA Act and ss 34(3) and 39(2) of the LEC Act I shall uphold the appeal and grant consent to the DA subject to the conditions of consent in Annexure A.

Orders

The Court Orders:

The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Northern Beaches Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the development application No. DA/2020/1737 by amending the Plans Issue F as follows:

Ground Floor Plan Sheet 03 Issue F dated 27.08.21 by inserting a Full Height Vertical Privacy Screen (max 200 spacing) on the northern side of the residence at the exterior entry.

First Floor Plan Sheet 04 Issue F dated 27.08.21 by amending the Upper Floor Balcony on the southern side by insertion of a 1500H obscure glass panel for a length of 2000, and then clear for a length of 1970 to match with the clear glass balustrade of 1000H at the front of the Upper Floor Balcony AND inserting a 1650H Vertical Privacy Screen (max 200 spacing) for a length of 1250 on the northern side.

The Court notes that:

the respondent, Northern Beaches Council, as the relevant consent authority, has lodged the agreed amendments to the development application on the NSW planning portal on 31 August 2021, reference PEH – 701.

The applicants filed a copy of the amended Development Application No. DA/2020/1737 on 1 September 2021.

The Appeal is upheld.

Consent is granted to Development Application DA/2020/1737 subject to conditions contained in Annexure A for extended storage area at the rear of the garage, use of the tiled area above garage as a ground floor level deck, use of the tiled area above the dining/kitchen as an upper floor deck, and extending the rear timber deck and moving steps to access the rear timber deck, for the dwelling on Lot 35 Deposited Plan 11593 known as 14 Kangaroo Road, Collaroy Plateau.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (181162, pdf)

Plans (305982, pdf)

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Decision last updated: 13 September 2021

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Citations

Psaila v Northern Beaches Council [2021] NSWLEC 1528

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Medium Neutral Citation:	Psaila v Northern Beaches Council [2021] NSWLEC 1528
Hearing dates:	25 August 2021 and 1 September 2021
Date of orders:	13 September 2021
Decision date:	13 September 2021
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	Orders: See [27]
Catchwords:	RESIDENTIAL DEVELOPMENT – Appeal against 2 conditions of consent – privacy impact on neighbours – built form impact – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7, 4.2, 4.5, 4.15, 4.16, 4.17 Environmental Planning and Assessment Regulation 2000, cl 49, 55, 77 Land and Environment Court Act 1979, ss 17(d) and 39 Warringah Local Environmental Plan 2011
Texts Cited:	Northern Beaches Participation Plan Warringah Development Control Plan 2011, Cll B3, D8 and D9
Category:	Principal judgment
Parties:	Sandra Psaila (First Applicant) Jesmond Psaila (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: L Nurpuri (Applicants) F Berglund (Respondent) Solicitors: Alice Spizzo Advisory (Applicants) Northern Beaches Council (Respondent)
File Number(s):	2021/94873
Publication restriction:	No