Reznik v Waverley Council

[2006] NSWLEC 513

Land and Environment Court

of New South Wales

CITATION:	Reznik v Waverley Council [2006] NSWLEC 513
PARTIES:	APPLICANT: Yury Reznik RESPONDENT: Waverley Council
FILE NUMBER(S):	10534 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Breach in the area of the proposed rooftop terrace and Likely adverse amenity impacts
LEGISLATION CITED:	Waverley Local Environmental Plan 1996, (WLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Catalina Developments Pty Limited v Woollahra Municipal Council [2004] NSWLEC 545 ; Super Studio v Waverley Council [2004] NSWLEC 91 ; Zhang v Canterbury Council (2001) 115 LGERA 373
DATES OF HEARING:	17/08/2006
EX TEMPORE JUDGMENT DATE:	08/17/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr Y Reznik, in person SOLICITORS: N/A RESPONDENT: Mr S Patterson, solicitor with Ms K Allen, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

17 August 2006

10534 of 2006 - Yury Reznik v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Waverley Council (the council) to refuse a development application to alter and add to an existing terraced building to provide a rooftop terrace towards the rear at Lot 5, DP 2044, being No 9 Leichhardt Street, Waverley.

2 I visited the land in company with the parties at the time of the on-site hearing.

3 I have concluded that the application fails when considered under s 79C of the Environmental Planning and Assessment Act 1979, for reason of a breach in the area of the proposed rooftop terrace and likely adverse amenity impacts.

The land

4 The land is situated on the western side of Leichhardt Street on the corner of Leichhardt Lane. It has northern frontage to Leichhardt Lane of about 31.9m, an eastern frontage to Leichhardt Street of about 12m, a southern boundary of about 38.2m, and a western rear boundary of about 10.1m, and an area of about 354.4m2.

5 Erected on the land is a two-storey terraced building with a double (tandem) garage on the south side. The existing dwelling has a hipped roof tiled roof towards the front of the dwelling and a skillion roof to the rear. There is a shed in the southwestern corner of the land. There are some trees, including palms, that provide some aesthetic and visual screening benefit.

6 There is a rear yard of about 116m2, including the area under awning/veranda, directly accessible from the kitchen and living areas. There is a landscaped front yard of about 38m2. Also, there is a ground level veranda, at the front, located off an existing living room, and a front balcony at the first floor, directly accessible from the main bedroom. About 165m2 of private open space is available to the occupants including that open and under cover (balcony).

7 Nearby development comprise single-storey and two-storey dwelling houses and multi-unit residential flat buildings. St Catherine’s Schools is located further to the north along Leichhardt Street. To the north of the land, on the opposite side of Leichhardt Lane, is a three-storey residential flat building, known as No 7 Leichhardt Street. To the east, on the opposite side of Leichhardt Street, are two-storey terraces and dwelling houses. To the south, at No 11 Leichhardt Street is a two-storey terrace. To the west and the rear of the land is a three-storey residential flat building at No 4 MacPherson Street.

Relevant planning controls

Waverley Local Environmental Plan 1996, (WLEP)

8 Under the provisions of the WLEP the land is zoned Residential 2(a) and the proposal is permissible with consent.

The proposal and its history

9 Development application No DA-475/05 was lodged with the respondent council on 4 August 2005 to alter and add to an existing terraced building to provide a rooftop terrace of 7.3m x 3.2m or an area of 23.36m2 (about 22m2 when the stair is excluded) towards the rear. The level of the floor of the proposed terrace would be similar to the height of the parapet that surrounds the rear roof and level with nearby balconies. No survey accompanied the application so precise levels are difficult to determine on-site.

10 This development application was considered by the Development and Building Unit (DBU) and recommended for refusal and was formally refused by notice dated 16 December 2005, for the following reasons:

1. The proposal is inconsistent with Clause 3(7)(d) and (f) of the

Waverley Local Environmental Plan (LEP) 1996, in regard to housing, as the proposal is not compatible with surrounding development and does not improve the amenity of the residential area.

2. The proposal is inconsistent with the relevant zone objectives, in particular Clause 10(1)(b) of the

Waverley LEP 1996, as the proposal is not compatible with surrounding development and does not improve the amenity of the residential area.

3. The proposal is inconsistent with C11.2 of the

Waverley Development Control Plan (DCP) No 2 - Dwelling House and Dual Occupancy Development, as the proposed roof terrace is not acceptable and is considered to result in adverse amenity impacts.

4. The proposed rooftop terrace does not comply with the maximum dimensions and area for elevated external decks under C11.2 of the DCP, and is considered to result in adverse amenity impacts on surrounding properties.
5. The proposal is not considered to be in the public interest.

11 A building application for the rebuilding of a double garage BA 61/1993 had been approved on 1 July 2002.

Applicant’s purpose

12 In a position statement the applicant indicated that the purpose of the roof terrace was to provide a quiet sunny place for his parents to enjoy distant southeast water views over rooftops. Mr Reznik explained that the rooftop terrace would be accessible from the bedroom level, and would not be used for entertainment. He stated that from no other outdoor place on the property are substantive water views available, however, water glimpses are possible from the first floor eastern balcony. He explained that the eastern outdoor front open spaces are compromised by traffic noise, pollution and lack visual privacy.

13 Mr Reznik stressed that the proposed rooftop terrace would be separated 13.5m to kitchens of the units in the front part of No 7 Leichhardt Street to the north of the land. It would be separated 24.6m to the objector’s property at Unit 16/7 Leichhardt Street. The impact on the balcony to No 4 McPherson Street would be slight as it would be separated 23.3m from that dwelling. He also pointed out that the proposed rooftop terrace would be partly screened by palms and other trees growing on the land.

14 Mr Reznik considered the impact of the proposed roof terrace would be negligible because privacy impacts would be ameliorated by distance and screening. He said that views to the southeast from the proposed rooftop terrace were not in the direction of any windows of open space of nearby properties.

Notification

15 The application was notified to nearby owners and occupants and the council received objections in respect of both the original development application and the s82A review, from Mr T Halas, 16/7 Leichhardt Street, Waverley. In a recent letter to the council, dated 11 August 2006, he reiterated his concerns including the likely adverse impacts on the amenity of the occupants of his unit. He said the proposed rooftop terrace would be around the same height as the balcony on his dwelling and would be in the same quarter as the southeasterly ocean views. He was also concerned that noise might be occasioned by the use of the proposed new terrace, if it were used for entertaining and this would be most likely if it were fitted with a barbeque. He was also concerned that even if Mr and Mrs Reznik might use the rooftop terrace for quiet recreation there is always the chance that the property might change hands and the rooftop terrace might be used for more intense entertaining use. Noise pollution and visual impact were his major concerns.

Section 82A review decision

16 On 30 January 2006, an application for a review of determination under Section 82A of the Act was lodged by the applicant. The council’s assessment officer and DBU recommended refusal for the following reasons:

1. The proposal does not satisfy Clause 2(c) - General aims of

Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979.

2. The proposal does not satisfy Clause 3(7)(d) and (f) - Specific aims of

Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979.

3. The proposal does not comply with the 2(a) Residential - Low Density Zone objective (b) of

Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979.

4. The proposed development is considered contrary to the Council's

Development Control Plan No 2 Dwelling House and Dual Occupancy Development in respect to the following provisions of the DCP:

(a) The objectives and controls concerning Part 11 Privacy and Noise Control, in particular the non-compliance with the general elevated external deck area and depth standards and that roof terraces are generally not acceptable.
(b) The objectives and controls concerning Part 6 Building Height. In particular the non-compliance with the objectives relating to minimising the bulk-related impacts of housing, ensuring that buildings enhance the predominant neighbourhood and street character and that the visual impacts of the scale of the dwelling-house being acceptable and the non-compliance with the external wall height control. Having regard to section 79C(1)(a)(iii) of the

Environmental Planning and Assessment Act 1979.

5. The proposed roof terrace is considered to create an unacceptable impact upon the character and visual amenity of the existing streetscape, having regard to section 79C(1)(b), (c) and (e) of the

Environmental Planning and Assessment Act 1979.

17 Accompanying the notice dated 3 June 2006; the council's DBU assessment provided the following additional comments:

The proposed roof level deck significantly increases the bulk of the existing building and substantially exceeds the size requirements for elevated decks in DCP 2.
The existing house has a front verandah and reasonable sized backyard. The deck is not necessary for the provision of adequate open space for the site, as adequate open areas already exist.
The NSW Land and Environment Court has articulated principles as to when elevated decks are appropriate (see Super Studio v Waverley Council [2004] NSWLEC 91 (16 March 2004). This case states:
‘The first [principle] is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible.’
The deck in question is not reasonable or necessary, the subject house has adequate existing open space (both elevated and at ground level) and the size and location of the deck is inappropriate.

18 The appeal was filed on 21 June 2006.

19 At the hearing the court received written evidence on behalf of the respondent council from Ms Z Flannery, (Nee Gamble), Senior Planner of Waverley Council.

20 On behalf of the applicant Mr Reznik gave evidence in person.

21 Ms Flannery also prepared the statement of basic facts.

The issues

22 On 20 July 2006 the council filed a statement of issues.

Waverley Local Environmental Plan 1996

Particulars

Development Control Plan No 2 - Dwelling House and Dual Occupancy Development Height

Particulars

Privacy and Noise Control

Particulars

Public Interest

4. The proposed development should not be approved as it is not in the public interest and given the matters set out in submissions received by Council.

23 The following emerged as the salient issues:

· Breach in the area of the rooftop terrace; and

· Likely amenity impacts.

The evidence and findings

Submissions

24 Mr Resnik sought to distinguish the present development application for a rooftop terrace from others that the council had refused when applying the controls in DCP2.

25 He submitted the application was an ‘exceptional circumstance’ under DCP2 as a result of its location, separation and lack of impact on neighbours and on the streetscape.

26 He submitted the application could not be seen as a precedent. He drew the Court’s attention to the fact that the application had been advertised on two occasions and there was “…only one objector”. He submitted it should be approved because of its low-impact and the reasonable need of his parents in particular his mother, for sun and views.

27 He stated that he and his parents are content to be bound by any reasonable conditions of consent. Those conditions that were designed to address privacy impacts, including that the rooftop terrace should not to be used for entertaining would be acceptable, he said. He agreed that a condition should be imposed to ensure that there would be no cooking or other services provided to the rooftop terrace. He was willing to be bound by a condition ensuring that there would be no structures erected on the terrace at any time. Also, if privacy were a concern to the Court he stated that he would be willing to include a privacy lattice. He also said the terrace floor level could be lowered and the size of the rooftop terrace reduced by making part of it non-trafficable.

28 Mr Patterson submitted that the cases referred to by Mr Reznik could be distinguished from the present. These included Catalina Developments Pty Limited v Woollahra Municipal Council [2004] NSWLEC 545 (23 September 2004) wherein a rule of thumb for a reasonable separation distance was around 12m. Mr Patterson submitted that Woollahra Council has its own planning controls but apparently none limiting the area of rooftop terraces to 10m2, as in Waverley. He also distinguished this on the basis that the roof terrace in that case was to be at the same floor level as the top unit in a residential flat building. Also, he pointed out that the Woollahra proposal was within an area zoned Residential 2(b) for medium density development unlike the present application. In Super Studio v Waverley Council [2004] NSWLEC 91 (16 March 2004) questions of reasonableness and necessity were raised and distinguished.

29 Mr Patterson submitted that Mr J Maunsell, the council’s in-house solicitor, who was present, had confirmed that Waverley Council applied its planning controls consistently and had refused this present application. He submitted that even Mr Reznik’s admission that council officers at a pre-DA consultation had spoken to him of a “blanket control” discouraging, in Waverley, rooftop terraces, in part confirms the council’s persistence in this regard.

30 Mr Patterson referred to the Court of Appeal decision in Zhang v Canterbury Council (2001) 115 LGERA 373 and the fact that the Court is required to give “…proper, genuine and a realistic consideration” to the requirements of a DCP in place at the time of the decision.

31 He submitted that DCP2 provides guidelines for the depth and area of terraces and the fact that these parts of a building are not to be used for extended entertaining. He submitted that he has “…no doubt that the use by Mrs Reznik would be quiet” and reasonable but were the dwelling subsequently owned and “…used by a person with children, it [the rooftop terrace] invites the congregation of people”.

32 He submitted that the proposed rooftop terrace should not be there at all. Despite this he submitted that were the planning principle in Super Studio applied “…the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of and necessity for, the development that causes it”.

33 He submitted in the present case there is a rear outdoor area that is available to the occupants that would be in sunlight and could be used as an adjunct with the ‘living area’. Also, he submitted the upstairs eastern bedroom has a balcony with water views. Despite the street being busy and noisy that balcony could be used for sitting out and the street might not “…always be busy”. He submitted the need of the occupants of the present dwelling would not be as great as the need of the occupants of the residential flat buildings nearby who need the outdoor amenity of those balconies off their units. He submitted that despite there being only one objection received by the council, that objection had been maintained consistently and highlighted a need for the Court to carefully consider the application before it.

34 He submitted the application should be refused, as it would adversely impact on neighbours both visually and acoustically. He submitted that if screening to 1.8m in height were required for visual privacy, the physical form would be more apparent. He accepted the evidence of Mr Reznik that the proposal would be visible from parts of McPherson Street to the south as well as at other locations in Leichhardt Street.

35 He submitted that if a roof deck were approved in this location, he asked rhetorically, why would it not a precedent for the property next door at No 11 Leichhardt Street? He pointed out that this was a similar style of building although presently used as a residential flat building.

36 He considered the impact of the proposal even in a modified form with the deck decreased in size to 10m2 and lowered behind the parapet would be unacceptable as the council seeks to discourage rooftop terraces on dwelling houses.

Area breach and amenity impacts

37 The council was concerned that the proposed rooftop terrace would not be consistent with the privacy and noise control requirements of DCP2 largely because of its possible use for entertainment.

38 Section 11.2 of DCP2 addresses noise generation and loss of privacy arising from the use of terraces and states that these impacts “…should be minimised”. In order to achieve this end, rooftops are not to be designed for entertainment use and roof terraces per se, are “…generally not acceptable”, [Note: Exhibit 4 p 80 dot points 10 and 11]. If a rooftop terrace were permitted under ‘exceptional circumstances’ it should not be greater in area than 10m2 and not greater in width, than 1.5m, so as to limit entertainment use and minimise privacy and noise impacts on surroundings, [Note: Exhibit 4, p 80 dot point 1]. Also, this section states that decks, balconies and verandahs along side boundaries are not permitted.

39 I am satisfied that the proposal cannot be considered an exception under DCP2, [Note: Exhibit 4, Section 11.2, dot point 11]. Despite there being no definition of ‘exceptional circumstances’, it is not that. As the proposed rooftop terrace would be large in area, around 22m2, at around eye level of those in nearby dwellings, I consider it is exactly the type of structure that DCP2 seeks to avoid. I am satisfied that the proposed rooftop terrace being greater than 10m2 in area and perched on top of the existing parapet at the rear of the existing dwelling would be likely to encourage adverse noise and privacy impacts in nearby dwellings.

40 The proposed rooftop terrace would be accessible off the internal stair, from the common areas of the house and would be of a size that would invite frequent use, perhaps by visitors.

41 Some attenuation by distance must be accepted, however I am satisfied that unless specially designed screens were erected around the proposed rooftop terrace privacy and noise impacts are likely. The architectural plans in Exhibit B show no screening. Thus the application must be assessed on its merits in the absence of screens.

42 I accept the evidence of Ms Flannery supported by the submissions of Mr Patterson and consider that the application should fail on the grounds of adverse noise and privacy impacts.

43 Although Mr Reznik was prepared to submit to a condition limiting the entertaining use of the proposed roof top terrace I am convinced that such a condition would be unreasonable and could not adequately be policed.

44 I am thus satisfied that the proposal would be contrary to the specific aim of cl 3(7)(f) of the WLEP “…to improve the amenity of residential areas” as a result of its noise and privacy impacts. Also, were it to be considered ‘new housing’, it would be contrary to the specific aim in cl 3(7)(d), WLEP “…to ensure that new housing is compatible with surrounding development” for the same reasons.

45 The proposal would also not meet the objective of the Residential 2(a) zone cl 1(b) “…to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses”.

Height

46 The allowable maximum height, for pitched roofed dwellings, under DCP2 is 8.5m, [Note: Exhibit 4, p 61, Section 6.1.1, dot point 3]. Mr Reznik argued that as the main roof of the existing terraced dwelling is pitched that height control applies. However, there is an argument that as the rear roof of the dwelling is flat, that the proposal should be governed by the 7.5m height control that applies to flat roofed dwellings, [Note: Exhibit 4, p 61, Section 6.1.1, dot point 2]. The height to the top of the handrail around the proposed rooftop terrace was calculated to be around 8.6m or 8.7m above natural ground level and thus exceeds either height limit. If privacy screens to a height of around 1.8m above the floor level of the proposed rooftop terrace were considered necessary, the infringement of the height controls would be greater.

47 Mr Reznik suggested that the balustrade around the rooftop terrace might be glazed, in order to reduce its visual impact however, depending on its reflectivity, this might not meet the council’s requirement under DCP2 of being of “…low reflectivity and preferably of open design”, [Note: Exhibit 4, p 80, Section 11.2, dot point 11]. Depending on design it would be more of less visible and add or subtract from the apparent height of the proposal. The fact that the proposal would be perched on top of the parapet of the rear roof of the existing dwelling and could be seen from vantage points in both Leichhardt and McPherson Streets is cause for concern.

Need for the rooftop terrace

48 The stated need for the proposed terrace is diminished by the fact that there are other balconies and courtyards available to the occupants of the subject terraced building both at the ground and first floor level. There is a water glimpse from the first floor front balcony.

49 The proposal would be contrary to the requirements of DCP2 that seeks to discourage rooftop terraces in Waverley and the evidence suggests that this instrument has been consistently applied.

50 For the above reasons, the appeal is dismissed.

Orders
51 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No DA-475/05 lodged with the respondent council on 4 August 2005 to alter and add to an existing terraced building to provide a rooftop terrace towards the rear at Lot 5, DP 2044, being No 9 Leichhardt Street, Waverley, is refused development consent.

3. The exhibits are returned except for Exhibit B.

S J Watts

Commissioner of the Court

sw