Rose and Sanchez v Woollahra Municipal Council

[2016] NSWLEC 1348

Land and Environment Court

New South Wales

Medium Neutral Citation:	Rose & Sanchez v Woollahra Municipal Council [2016] NSWLEC 1348
Hearing dates:	10, 11 August 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	1. The appeal is upheld. 2. Development Application 436/2015 for alterations and additions to existing dwelling at 58 Glenmore Rd Paddington, is approved subject to the conditions in Annexure A. 3. The exhibits, except for exhibits 2 and B, are returned.
Catchwords:	Development Application: Impact on Paddington Heritage Conservation area; whether development meets objectives of zone; visual & acoustic privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Meriton v Sydney City Council [2004] NSWLEC 313 Davis v Penrith City Council [2013] NSWLEC1141 Trinvivass Pty Ltd v Council of the City of Sydney [2015]NSWLEC15 Kotronakis v Pittwater Council [2015] NSWLEC1508
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Rose and Sanchez (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: Mr Josh Palmer (Applicant) Mr Stuart Simington (Respondent)
File Number(s):	2016/155414
Publication restriction:	No

JudgEment

1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act, (EPA Act) against the refusal, by Woollahra Council, of Development Application number 436/2015 for alterations and additions to an existing dwelling at 58 Glenmore Rd [Lot B DP448073] (the site). Prior to the commencement of the hearing leave was granted for the applicant to rely on amended plans (Plans version B by JCB Design Partnership Exhibit B), and these were the subject of the proceedings.

2. The appeal was subject to mandatory conciliation on 10 May 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 10 June 2016 for the applicant to rely on the amended proposal.

3. The alterations and additions proposed (the proposal) principally affect the rear elevation of the existing terrace house and include the following scope of works:

Lower Ground floor:

• Extend the rear wing to the northern boundary, including part demolition of existing rear wall, and internal walls (outside the Principal Building form)

• Construction of a new rear elevation

• Demolition and reconfiguration of internal stairs

Ground Floor (Glenmore road level):

• Extend the rear wing to the northern boundary, insertion of new opening in existing rear wall, and demolition of internal walls (outside the Principal Building form)

• Construction of a new rear elevation

• Demolition and reconfiguration of internal stairs

• Removal of existing balcony

First Floor:

• Extend the rear wing to the northern boundary, insertion of new opening in existing rear wall, and demolition of internal walls (outside the Principal Building form)

• Construction of a new rear elevation and balcony

• Demolition and reconfiguration of internal stairs

Attic:

• Insertion of roof skylights

Issues

4. The Council maintains that the development should be refused because:

1. demolition of the rear elevation of the principal building form at the lower ground level and the complete obscuring of the rear wall on the first floor level is not appropriate in the context of the PHCA;

2. the rear extension is not an appropriate addition in the context of the PHCA and the site;

3. demolition of the chimney will detract from the significance of the contributory item within the context of the PHCA;

4. alterations will exacerbate visual and acoustic impacts to neighbouring properties.

5. development is inconsistent with the desired future character of Woollahra and the PHCA and for this and the above reason the development is not in the public interest.

5. The final matter in dispute between the parties was in relation to conditions, if consent was to be issued.

The site and surrounding precinct.

6. The site is on the western side of Glenmore Rd within the Paddington Heritage Conservation Area. The site shares a common rear boundary with residential development fronting Hopewell Street.

7. The sites allotment is a non-regular quadrilateral in shape with a primary street frontage width to Glenmore road of 4.99m, and a rear boundary width of 4.27m. The site has a total area of 92m².

8. According to the Amended Statement of Facts and Contentions (exhibit 2), the dwelling on the site is a three storey Victorian era terrace style house with attic (the dwelling). The adjoining terrace, 58 Glenmore Rd, was built as a pair with the dwelling.

9. Section 79C(1)(a) of the EPA Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

10. The relevant environmental planning instrument is Woollahra Local Environmental Plan 2014 (WLEP). Also relevant is Woollahra Development Control Plan 2015 (WDCP). The specific clauses are considered in the following.

The requirements of the Woollahra Local Environmental Plan.

11. The relevant aims of the WLEP are 1.2(2):

(a)  to ensure that growth occurs in a planned and co-ordinated way,

(b)  to promote the management, development, conservation and economic use of property,

(d)  to provide greater population densities in and around centres that are well serviced by public transport,

(f)  to conserve built and natural environmental heritage,

(g)  to protect amenity and the natural environment,

(j)  to promote a high standard of design in the private and public domain,

(l)  to ensure development achieves the desired future character of the area,

Aim (a) (f) (j) and (l) are of particular relevance to the assessment of the proposal.

12. Clause 2.3(2) of the WLEP states that the consent authority must have regard to the zone objectives when determining a development application in respect of land within the zone.

13. The site is zoned R2 Low Density Residential in the WLEP and the proposal is permissible with consent. The relevant objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• …

• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

14. The planning experts agree that the proposed development complies with the applicable development standards in the WLEP.

15. The site is located in the Paddington Heritage Conservation Area (Heritage Map Sheet HER_001). Clause 5.10 Heritage Conservation of WLEP relevantly includes the following relevant objectives:

• to conserve the environmental heritage of Woollahra,

• to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

…

16. The term conserve or conservation is not defined in the WLEP. The applicant asserted that the appropriate source of definition of this term is the Burra Charter: The Australian ICOMOS Charter for Places of Cultural Significance (2013), (Exhibit H) as follows:

1.4 Conservation means all the processes of looking after a place so as to retain its cultural significance.

Conservation also defined in the NSW Government document: Heritage Terms and Abbreviations (Exhibit G) as:

All the processes of looking after an item so as to retain its cultural significance.

17. In the context of the aims of the WLEP and Cl 5.10 I accept the applicant’s view that the aim of the PHCA is to conserve the heritage significance of both items and places, and importantly the unique sense of place contained within the PHCA.

18. The consent authority must consider the effect of the proposed development on the heritage significance of the PHCA before granting consent (sub-cl 5.10(4) of the WLEP)

Expert Evidence

19. In relation to heritage, the Council relied on the expert evidence of Mr James Phillips, and the applicant relied on the expert evidence of Mr John Oultram. In relation to planning, the Council relied on the expert evidence of Mr Max Moratelli, and the applicant relied on the expert evidence of Mr Jason Perica.

Weight given to the Development Control Plan

20. The EPA Act, at s79C(3A)(b) outlines how consent authorities are to give weight to, an apply provisions of, the relevant development control plans as detailed below:

S79C(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.

21. As was outlined by Moore AJ in Trinvivass Pty Ltd v Council of the City of Sydney [2015]NSWLEC15, at [68]: the effect of s79C(3A)(b) mandates taking a flexible approach to the matters in dispute between the parties and at 69 that this provision modifies the position that has followed since the decision in Zang V Canterbury City Council [2001]NSWCA 167, so that the issue is whether the objective of the development control is achieved by the proposal.

22. This approach was followed by Pearson C in Kotronakis v Pittwater Council [2015] NSWLEC1508 at [37] outlines the task for the consent authority to determine how the provisions of the DCP, which is a mandatory relevant consideration under s79C(1)(a)(iii) of the Act, should be applied to the development proposed.

23. I agree that the effect of sub-s 79C(3A)(b) is to require a flexible approach to those standards, allowing alternative solutions that would achieve the objects of the relevant standards.

Is the heritage impact of the proposal appropriate?

24. It is important in considering this question for it to be framed within the relevant objectives of the controls as detailed in paragraphs 10-14:

25. In addition the consent authority must consider the effect of the proposed development on the heritage significance of the PHCA before granting consent (sub-cl 5.10(4) of the WLEP).

26. In their evidence the experts focussed on four main areas of the proposal:

1. demolition of the rear elevation of the principal building form at the lower ground level and the complete obscuring of the rear wall on the first floor level is not appropriate in the context of the PHCA;

2. whether the proposed changes to the rear building fabric means that the development does not meet objective O6 of WDCP which seeks to promote the retention of distinctive shared characteristics of groups of buildings.

3. rear extension and whether or not it was an appropriate addition in the context of the PHCA and the constraints (or otherwise) of the site;

4. whether the demolition of the rear chimney will detract from the significance of the contributory item within the context of the PHCA;

27. There was not agreement between either of the planning or heritage experts as to whether the proposal was consistent with the desired future character of Woollahra and the PHCA. An assessment of consistency with the desired future character is relevant as it is an aim of the WLEP (1.2(2)(l)) to which the consent authority must give regard.

28. Both heritage experts agreed that 58 Glenmore Road is a contributory building in the meaning of the WDCP. A contributory building is defined by the WDCP as:

a building that makes an important and significant contribution to the character and significance of the heritage conservation area. It has a reasonable to high degree of integrity and dates from a key development period of significance of a heritage conservation area.

A building which:

• due to its materials, detailing, finishes, scale, form, siting and landscaping makes a positive impact and contribution to the streetscape character and to the cultural significance of the heritage conservation area; and

• due to its materials, detailing, finishes, scale, form, siting and landscaping makes a positive impact and contribution to the streetscape character and to the cultural significance of the heritage conservation area; and

• is from a significant historical period and is highly or substantially intact; or

• is from a significant historical period and is altered yet recognisable and reversible

29. I note that the definition places emphasis on the importance of these buildings contribution to the ‘streetscape character’ (public domain), and the cultural significance of the PHCA.

Demolition and Obscuring of the Rear Wall

30. The extent of works proposed to the existing fabric of the rear wall (rear of the Principal Building Form (PBF)) can be seen in the following extracts (dashed line) of the plans:

1. Lower Ground Floor

2. Ground Floor

3. First Floor

31. The heritage experts agreed that the changes proposed to the rear elevation would be visible only from the private domain by less than 10 people, with the exception of a small vignette in Hopewell Street (in approximate alignment with the rear boundary of 6 Campbell Ave) would not be visible from the public domain.

32. Mr Oultram argued that the part of the importance of the rear elevation, in terms of its contribution to character is derived by its visibility. He argued that low visibility reduces the weight given to Objective 4 of Section 1.4.1 of WDCP which seeks to promote design that conforms to the existing character of the area.

33. I concur with this assessment and have given weight to this in considering how the proposed development meets the requirements of Cl 5.10 (4) of the WLEP. It is my view that this is also consistent with the emphasis in the WDCP to the importance of controls for street front zones, and PBF in maintaining the integrity of the PHCA. This interpretation is consistent with the framing of the definition of Contributory Buildings in the WDCP, and is supported by the hierarchy of controls in the WDCP which seek to ensure that predominately alterations and additions occur at the rear of terraces.

34. It was not agreed by the heritage experts whether the fabric in the rear wing and rear façade of the property was ‘original significant fabric’.

35. WDCP defines Original Significant fabric as follows:

The physical materials and substances belonging to the initial construction phase of a place that contribute to heritage significance. In the case of a building, original significant fabric would include all the original materials of the principal building form and extant external materials of the secondary wing, if the form is intact and the external materials are substantially intact. (emphasis added)

36. Mr Phillips argued that, whilst the rear chimney and addition were not built at the same time as the PBF of the property, it constituted ‘original significant fabric’ as defined by the WDCP. This was on the basis that it was likely to have been constructed between 1885- 1930, with the most likely period to be prior to WW1 due to the lack of desirability for the laundry/ service areas to remain in the basement as they were originally constructed, and on the basis of inference from other building fabric changes such as the insertion of Waratah wall vents in the PBF.

37. Mr Oultram, whilst agreeing with the likely construction range of the rear addition, argued that the construction could have occurred as late as 1959 when the buildings ceased being in common ownership. It is his view therefore that major changes had been made to the PBF at the time of the construction of the rear wing.

38. The proposal will also result in the removal of the currently constructed rear balconies and non-original fabric, which in the majority does not positively contribute to the desired future character of the PHCA.

39. If the development was approved it was accepted by the experts that other than the insertion of new openings the existing rear wall with remain intact, as shown in the Architectural Plans (Issue B).

40. The Council asserts that the proposal does not meet Objective 4 of Section C1.4.1 of WDCP, namely: to promote design that conforms to the existing character of the area. Council also argues that the proposal is inconsistent with control 3: Where a building forms part of a group, any work to the PBF must be designed to retain the contribution of that building to the other buildings or building which comprise the group.

41. It is clear that the demolition component of the proposed works has been minimised through careful design, and the proposal will allow for the retention of the large proportion of the original fabric. The experts agreed that the works at the lower ground and ground floor where acceptable from a heritage perspective. This leaves only the obscuration of the rear wall and any demolition at the first floor level in contention.

42. Given the limited view from the public domain and the requirement, under s79C 3A(b) to apply a flexible approach to standards in the DCP, I find that the demolition works and the obscuration of the rear wall is not inappropriate for a contributory building in the Conservation Area in which it is situated.

Distinctive shared characteristics of 56 and 58 Glenmore rd.

43. The heritage experts agreed that the PBF, as defined by the WDCP at Part C1.1.16, of the dwellings at 56 and 58 Glenmore Rd were built as a pair. This is relevant in reference to the definition of ‘group’ provided in the in the WDCP A3.1 in Definitions, as follows:

Group: a number of related buildings that form a group, that may include pairs of buildings and terrace groups.

Groups of related buildings display shared characteristics such as an original builder, architectural style, form, scale and details.

In some instances, terrace groups can include sub-groups where a group comprises a range of buildings, e.g. corner commercial buildings integrated into terrace house groups.

44. The following elements were agreed as the key shared characteristics:

1. the overall view of the PBF and configuration of the wing walls;

2. floor levels and roofing of the PBF are consistent;

3. continuity of gutter level of principal roof, at front and rear;

4. chimneys, front and rear (although the date of construction of this chimney was not agreed);

5. use of bullnose roofing of the front verandas;

6. treatment of verandas as inset between the wing walls;

7. consistency of street facing fenestration;

8. palisade fencing to front boundary and upper floor street facing verandas;

9. Consistent highlight windows to the upper floor stair in the rear elevation.

45. Both experts acknowledged that the above distinctive shared characteristics were consistent with those detailed in C1.4.1. This section of the WDCP goes on to state that:

The loss of significant original fabric, in particular of the principal building form and street front zone, weakens the integrity of the heritage conservation area.

46. It was agreed in the course of the proceedings that the following details are inconsistent between the rear elevations of 56 & 58 Glenmore Rd:

1. Chimney capping brickwork and finish

2. First Floor balcony (only on 56 Glenmore)

3. Breezeway enclosed at 58 Glenmore at the ground and first floor

4. Rear window evident on 56, is in filled with brickwork on 58 Glenmore

47. Mr Phillips argued that these cumulative changes to building form and fabric is what the WDCP is seeking to limit to retain the intactness of the PHCA. He also argued that the rear elevations of 56 and 58 Glenmore Rd retain shared characteristics and that whilst a number of changes have occurred in his view they are minor and capable of being reversed.

48. It was agreed by the experts that as a result of the proposed development the current shared characteristics of the stair highlight window and the first floor window hood would be no longer able to be appreciated.

49. In evidence both Mr Oultram and Mr Phillips agreed that, from a heritage perspective, the proposed extension, including the enclosing of the breezeway, is acceptable at both lower ground and ground level.

50. Given the above changes to the building fabric, the evidence from the experts and observations from the site inspection, it is my view that the terraces at 56 and 58 are not an unaltered pair as referenced in Objective 3 of Cl 1.3.4. This clause seeks to retain the rear forms of unaltered pairs and groups of terraces.

51. Of significance to this application is the retention of the majority of the intact shared distinctive characteristics of the group, which I find will achieve the objective 06 Section Cl 1,4.1 that promotes the retention of these shared elements. It is my view, on the basis of the expert evidence and the appropriate planning controls, that the development meets objectives 01, 04, 05, 08 and 10 of this Clause, which are the most relevant in this case. In relation to Objective 02 given the context of the site, the most significant elevations are the street front and side elevation, which are retained.

52. Following consideration of the expert evidence and the relevant planning controls, I find that the proposed works will retain the majority of the shared characteristics that are necessary for the contributory item to continue to positively contribute to the PHCA.

The rear addition and its contemporary design

53. Clause 1.2.5 in WDCP addresses the role of Contemporary Design in the interpretation of PHCA. It notes, in summary, that a traditional approach may be appropriate for those areas of buildings that have significant original fabric. The design proposed by this application is contemporary in form and material. As such WDCP requires the design to achieve a cohesive relationship between the new and existing urban fabric and respond to the context of the PHCA.

54. I note heritage experts agreed with the appropriateness of the works at the lower ground and ground level, I have assessed these proposed works and agree with the experts as to their appropriateness.

55. As a result the remaining works in contention are the works at the first floor and their relationship to the existing chimney and the obscuring of the stair highlight window and door hood over the current balcony doors.

56. I am satisfied that the proposed rear extensions, whilst enclosing the breezeway and extending to the boundary, are of a contemporary design that is respectful of the PHCA. During the proceedings the architect detailed the approach to the design and materials and I am satisfied that verticality of the fenestration and design overall, the treatment of the separation of old and new materials, the simplicity of the forms achieves the cohesive relationship required by WDCP as well as the aims and objectives of WLEP.

57. This finding is influenced by the constraints of the site, its low visibility and the fact that an alternative design that sought to modernise amenity and address the BCA noncompliance of the existing stairway would result in more significant alterations to the PBF, which in this proposal remains intact. In addition I am persuaded by the heritage experts of the suitability of the breezeway enclosure at lower ground and ground floors, and any reduction in width at the first floor would have negligible impact. In a different set of circumstances such a proposed building form may not be suitable or meet the objectives of the WLEP.

Demolition of the rear chimney

58. During the course of proceedings Mr Phillips argued strongly that the rear chimney was a key shared characteristic and should be retained. In addition the Council argued that the demolition of the chimney would detract from the significance of the contributory item within the context of the PHCA.

59. Mr Oultram argued that the chimney did not meet the intent of original fabric in the WDCP and therefore was not required by C1 Section 1.5.2 to be retained.

60. As noted in 33 WDCP defines original significant fabric. With relevance to the current proposal the rear chimney in question is not part of the PBF, as defined by WDCP, but it is surviving material of the secondary wing. In its current state the chimney it is not functional, but is intact.

61. Whilst the rear chimney may meet the definition of original significant fabric, the WDCP acknowledges that change to building fabric is inevitable. The WDCP requires that after determining that the overall proposal meets the desired future character it is necessary to (amongst other things) determine and retain original significant fabric. In applying the objectives of the WLEP, the WDCP and the built character elements of the Paddington HCA, it is my finding that demolition of the chimney alone is not sufficient to warrant the refusal of the application.

The heritage impact is acceptable

62. This appeal was argued primarily on the acceptability or otherwise of the proposed works at the rear of a building in a heritage conservation area.

63. The aims of the WLEP seek to ensure development achieves the desired future character of the area. The values of the PHCA are best expressed in the WDCP under the Desired Future Character statement at C1.2.4 (serial a-k). This is reinforced by 5.10(4) of the WLEP, which requires a Consent Authority to consider the effect of the proposed development on the heritage significance of the PHCA before granting consent.

64. Following consideration of the expert evidence and the appropriate planning controls, I find that the proposed development is consistent with the aim of achieving the desired future character of the PHCA. The development thus meets the requirements of cl5.10(4), a precondition of consent.

65. I am satisfied that the effect of the proposed development on the heritage significance of the Conservation Area, in accordance with cl 5.10(4), is not significant, and that there are no heritage matters that warrant the refusal of the application.

66. In summary, and considering the proposal with all of its various elements and the context in which it is located, I find the development overall to not be inappropriate for a contributory site in the Conservation Area in which it is situated.

Is the privacy impact of the proposal appropriate?

67. An aim of the WLEP is to (g) to protect amenity and the natural environment. This aim is given effect through the WDCP at C1.4.10. This control has the following objectives:

01 To ensure an adequate degree of acoustic and visual privacy in building design.

02 To minimise the impact of new development on the acoustic and visual privacy of existing development on neighbouring lands.

68. During the site inspection evidence was given by the adjoining residents at 60 Glenmore Rd and 35 Hopewell St. As detailed in their evidence a material component of their objections to the proposal was the potential impact on their privacy, in particular to their primary open space. In addition to these two properties the evidence given by the joint planning experts addressed the likely impacts of the proposed development on the privacy of 56 Glenmore road, as well as 37 and 39 Hopewell Street.

69. It was agreed by the experts that the overall area of balconies at the rear of the dwelling would reduce as a result of the proposal. This is a result of the removal of the two existing rear balconies, and one new balcony being constructed at the first floor level. The proposed rear balcony is located at the first floor level and spans the full width of the site. It was agreed by the experts that the proposal will result in a reduction of balconies at the rear of the site by 3.24 sqm or 18%. It was accepted by the planning experts that the proposed first floor balcony does not comply with the dimensions prescribed by Control C6(b) of Section C1.5.4 of WDCP.

70. In relation to 60 Glenmore Rd, it was accepted by the experts that the existing impact of overlooking from the current dwelling on the site has recently been exacerbated by the removal of a large Ailanthus altissima (tree of heaven) from the rear yard. Notwithstanding this it was clear from the site inspection that currently a person standing on the ground floor balcony of the existing building has a clear, and unobstructed, view into the private open space of 60 Glenmore Rd. This balcony is currently located off a living area. The resident also expressed concern with the potential for viewing from the proposed balconet and balcony to her bathroom window. The orientation of these two structures, it was agreed by the experts, and I concur, that its setback and distance from the window make this view unlikely due to the oblique angle.

71. The proposal seeks to replace the current ground floor balcony with new sliding doors. These are proposed to have a trafficable sill and a balustrade fixed on the external façade, which the experts agreed was as a non-trafficable balconet. From reviewing the plans and the evidence of the experts I accept the proposed balconet meets the definition in the WDCP:

Balconet: is an area incorporating a guaRdrail only and a very minor projection from the outer wall of a building, fronting windows with deep sashes or inward opening doors, preventing people from falling.

72. In this case any person’s view is therefore in line with the rear wall of the building. This is distinct from a balcony which projects from the rear wall, and would allow a view from this projected position.

73. The proposed opening is located 3.1m further from away from the rear wall of the dwelling at 60 Glenmore Rd and 0.4m further from their common side boundary. From this level the planning experts agreed that the privacy impact to the rear private open space is improved. I note that in her evidence the resident emphasised the value to her of this space and its continued utility. For completeness any view to her ground floor rear sitting room would also be minimal if at all from this location, due to the oblique angle and the effect of proposed W01 which would obscure this angle of view.

74. The predominate view from the current first floor balcony is to the north, into the private open space of 60 Glenmore road, and across to the roof-scape of the adjoining terraces. This current balcony, whilst off a bedroom is of a considerable size and its dimensions are such that it could be used for a table or entertaining.

75. At the first floor the proposed development seeks a full width balcony with a depth of 0.9m. Due to the changes to the internal planning of the dwelling, if approved, this balcony will be accessed from a bedroom. It was accepted by the planning experts that the proposed balcony has an narrower width oriented to the private open space of 60 Glenmore and given it is proposed to be built closer to the rear boundary of the site. Due to the subdivision pattern the proposed first floor balcony will now be approximately 1m from the rear boundary of 60 Glenmore Rd, and due to its full width will be immediately adjacent the side boundary.

76. It was argued by Mr Perrica that there would be a reduced impact to the private open space of 60 Glenmore Rd by the proposed balcony at the first floor. It was not agreed whether any potential view to the house was available from this level, due to the movement of the balcony to the side boundary.

77. The Court has established a number of Planning principles that address the assessment of the privacy impacts. In Davis v Penrith City Council [2013]NSWLEC1141 Moore SC reconfirms, at [121], the following as the criteria for assessing impact on neighbouring properties:

How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?

How reasonable is the proposal causing the impact?

How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?

Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?

Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?

78. In applying these criteria Meriton v Sydney City Council [2004] NSWLEC 313 at [45] clarifies the scope of visual privacy in the context of residential design as: the freedom of one dwelling and its private open space from being overlooked by another dwelling and its private open space. This scope accords with the content of the objections from the adjoining residents.

79. In undertaking my assessment I have applied the principles in Meriton at [46]:

The ease with which privacy can be protected is inversely proportional to the density of development. At low-densities there is a reasonable expectation that a dwelling and some of its private open space will remain private. At high-densities it is more difficult to protect privacy.

Privacy can be achieved by separation. The required distance depends upon density and whether windows are at the same level and directly facing each other. Privacy is hardest to achieve in developments that face each other at the same level. Even in high-density development it is unacceptable to have windows at the same level close to each other. Conversely, in a low-density area, the objective should be to achieve separation between windows that exceed the numerical standards above. (Objectives are, of course, not always achievable.)

The use of a space determines the importance of its privacy. Within a dwelling, the privacy of living areas, including kitchens, is more important than that of bedrooms. Conversely, overlooking from a living area is more objectionable than overlooking from a bedroom where people tend to spend less waking time.

Overlooking of neighbours that arises out of poor design is not acceptable. A poor design is demonstrated where an alternative design, that provides the same amenity to the applicant at no additional cost, has a reduced impact on privacy.

Where the whole or most of a private open space cannot be protected from overlooking, the part adjoining the living area of a dwelling should be given the highest level of protection.

Apart from adequate separation, the most effective way to protect privacy is by the skewed arrangement of windows and the use of devices such as fixed louvres, high and/or deep sills and planter boxes. The use of obscure glass and privacy screens, while sometimes being the only solution, is less desirable.

Landscaping should not be relied on as the sole protection against overlooking. While existing dense vegetation within a development is valuable, planting proposed in a landscaping plan should be given little weight.

In areas undergoing change, the impact on what is likely to be built on adjoining sites, as well as the existing development, should be considered.

Findings regarding privacy impact to 60 Glenmore Rd

80. It is my conclusion that the overall privacy impacts to 60 Glenmore Rd are improved by the proposal, the proposal is reasonable, and reflects a considered approach to the balancing of private amenity and potential impact due to the location of the balcony off the bedroom, rather than a living area. In addition the architectural plans DA14: Proposed Northern (side) Elevation indicates an extension of the New Brick veneer wall to form the balustrade edge at the boundary. As part of the orders I will be seeking an extension in height of this edge of the balustrade to 1.5m. As such I am satisfied due to the downward angle of view, and the height of the balustrade, the impacts are reduced from the proposed development and are acceptable in relation to 60 Glenmore Rd and meets the intent of the planning controls.

81. In relation to 56 Glenmore Rd the existing view from the ground floor balcony is obscured by the common wall, due to the balconies setback. At best, there is currently a limited view of the rear fence of 56 Glenmore Rd from this location. The proposed balconet, and the wall of the proposed extension, will be 4.5m further west (and closer to number 56) that the current balcony. From this new location the view to the private open space of 56 Glenmore Rd will be broader but will not encompass all of the rear private open space of this dwelling. Any downwards view from the balconet will also be obscured by the existing dividing fence and vegetative creepers. Following and assessment of the impact, the objectives and provisions of the development controls, and the planning principles, I am satisfied that the impact of the view from this balconet is acceptable as proposed in relation to impacts to 56 Glenmore rd.

82. From the existing first floor balcony a partial view of the rear of 56 Glenmore Rd exists, however it does not encompass the core of the primary open space. The relevant control in the WDCP is:

Control C5 of Section C 1.5.4: Rear and side balconies must not impact on:

The privacy and amenity of the building occupants; or

On the amenity of the occupants of adjoining and adjacent properties

Control C7: New rear upper floor balconies and verandas must be designed with regard to the amenity of adjoining and adjacent properties. Privacy screens may be required to reduce the impact of new balconies.

83. The proposed works will align the rear wall of 58 Glenmore Rd with the existing rear wall of 56, this has the effect of removing an existing barrier to a view from this level to the rear yard. However analysis of the view from the proposed balcony, by applying the horizontal view cone of 70 degrees indicates that whilst expanded the impact is not to the whole of the private open space. Some private open space at the rear of 56 Glenmore Rd will without impact by overlooking. In addition, by applying the principles in Meriton, I have given weight to the location of this balcony being off a bedroom use and its dimension, both of which act to reduce the likely occupation of the space. It was accepted by the planning experts that this balcony is expected to hold two people.

84. My assessment is that the proposed first floor balcony is reasonable in its dimension and proposed use and in compliance with Control C5 & C7, above, has been designed with regard to the privacy and amenity of the adjoining property. A balcony of compliant width (Control C6(b) of Section C1.5.4 of WDCP) would not provide a material improvement in outcome for privacy.

Findings regarding privacy impact to 56 Glenmore Rd

85. Following and assessment of the impact, the objectives and provisions of the development controls and the planning principles I am satisfied that the privacy impact from the proposal is acceptable in relation to impacts to 56 Glenmore Rd.

86. As part of the proceedings we viewed the development from the rear of to 35 Hopewell St. The resident’s clear concern was the potential for increased overlooking from the rear of 58 Glenmore Rd, and due to the increased proximity to her boundary of the proposed works, an increased sense of overbearing to her rear yard. Concern was also raised in relation to the increased proximity of the proposed development to bedrooms located in the PBF of her property. In addition to her concerns regarding a potential loss of visual and acoustic privacy, was a concern regarding overshadowing and a loss of morning sun.

85. Addressing the matter of overshadowing first it was agreed by the planning experts, with reference to the tendered shadow diagrams, that the proposed works will have no overshadowing impact on 35 Hopewell St. On the basis of the evidence, I concur with this conclusion.

86. I accept the evidence of Mr Perrica that the design and nature of Paddington (namely predominately terrace housing) is such that privacy between dwellings is neither inherent, nor to be expected. Overlooking between properties is common and largely inherent in Paddington. Whilst this context is important, it does not obviate the need to consider the controls of the WDCP or assess the impact of the proposal.

87. In relation to the residents concern regarding the privacy impact to her bedroom, due to the increased proximity of the building form, it is appropriate to consider the impact that already exists from fenestration in the rear wall of 56 Glenmore road, at the ground floor level. From the existing dwelling an unobstructed view exists towards this bedroom window, demonstrating the existing vulnerability of this window. Given this duplication of impact and the distance, agreed by the planning experts to exceed 14m from the proposed balconet, I consider this impact acceptable.

88. In relation to the first floor balcony following and assessment of the impact, the objectives and provisions of the development controls and the planning principles, I have given weight to the significant separation (14m), the use of the two spaces being bedrooms and the current vulnerability of window. I find that the impact of the first floor balcony is acceptable.

89. Given the mirrored orientation of 37 Hopewell St, as there are no unique characteristics for this site the assessment therefore the conclusion of impacts to the bedroom window are considered to be the same.

90. It was accepted by the Planning Experts that currently the private open space and room at the ground level at the rear of 35 Hopewell St experiences overlooking from 56 and 58 Glenmore Rd. In particular the existing views from the rear fenestration of 56 are directed to the rear yard, as a result in part the impact from the proposal is a duplication of this existing impact. Therefore the focus of the assessment is the privacy impact of the changes to, or new, overlooking that results from the proposal.

91. The separation between the proposed first floor balcony to the rear private open space measures at 8.7m, and this represents the greatest potential for overlooking. The current balcony off the first floor provides a direct view into the rear room, but a limited view of the rear yard given the angle of view and the boundary creepers.

92. By analysis of the proposed section (DA14) and the vertical field of view it is possible to demonstrate that a view to the rear private open space of 65 from the proposed balcony will be outside a person’s normally viewing cone (25 degrees from horizontal). This does not mean no view is available; just that it would be peripheral. However it is clear from the resident’s evidence that the perception of overlooking, particularly from a closer distance, will impact her enjoyment of the private open space. The architect’s design of a deep balustrade seeks to discourage observers from occupying the edge of the balcony, which concurrent with the location of the balcony off a bedroom reduces the likely impact. The angle of view is oblique and I am satisfied that a proportion of private open space adjacent the boundary fence will remain.

Findings regarding privacy impact to 35 Hopewell St

95. My finding is that the proposed balcony is reasonable in its dimension and proposed use and, in compliance with Control C5 & C7, has been designed with regard to the privacy and amenity of the adjoining property. A balcony of compliant width (Control C6(b) of Section C1.5.4 of WDCP) would not provide a material improvement in outcome for privacy. Following and assessment of the impact, the objectives and provisions of the development controls and the planning principles I am satisfied that the impact of the view from this first floor balcony is acceptable as proposed in relation to impacts to 35 Hopewell St. The balconet provides little difference in impact, over the existing balcony, in relation to views to the private open space of 35 Hopewell St.

96. I concur with the planning experts assessment that the privacy impacts to 39 Hopewell st have recently been exacerbated by the removal of the Ailanthus altissma tree from the rear yard of 60 Glenmore rd. As a result there is a current direct visual impact to the rear balcony of this property from the existing rear balconies at 58 Glenmore Rd. I agree with the planning experts that the proposal will increase impact the visual privacy to this balcony due to its increased proximity.

97. It is clear from the evidence that given the orientation of the properties, the proposal provides a minor increase in impact, over the existing impact to the balcony. However this is ameliorated by the reduction in overall area of rear balconies from the existing, and the relocation of the balcony to adjacent a bedroom, which will applying the planning principals, may be utilised less.

Findings regarding privacy impact to 39 Hopewell St

98. Given the overall reduction in rear balcony area and the changed usage of the room adjacent the balcony to a bedroom my finding is that the impact is acceptable.

Impact on the visual and acoustic amenity is acceptable

99. I concur with the planning expert’s evidence that, applying WDCP, a holistic approach the consideration of privacy is the appropriate approach. Having reviewed each of the adjoining and adjacent properties in relation to the impact of the proposal on acoustic and visual privacy I find that: the proposal balances the aims of the WLEP; ensures a adequate degree of privacy in building design and has sought to minimise the acoustic and visual privacy of existing development on neighbouring lands.

Development Consent Conditions

100. S80 of the EP&A Act provides that the consent authority, if granting consent, can do so unconditionally or subject to conditions. Conditions may be imposed, of relevance to this proposal, if they relate to a matter in s79C(1) or modifies details of the development the subject of the development application.

101. In contention between the parties is condition D2, which states as follows:

Dilapidation Reports for existing buildings

Dilapidation surveys must be conducted and dilapidation reports prepared by a professional engineer (structural) of all buildings on land whose title boundary abuts the site and of such further buildings located within the likely “zone of influence” of any excavation, dewatering and/or construction induced vibration.

These properties must include (but is not limited to)

No. 56 Glenmore Road, Paddington.

The dilapidation reports must be completed and submitted to Council with the Notice of Commencement prior to the commencement of any development work.

Where excavation of the site will extend below the level of any immediately adjoining building the principal contractor or owner builder must give the adjoining building owner(s) a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s81A(2) of the Act not less than two (2) days prior to the commencement of any work.

Note:    The reasons for this condition are:

To provide a record of the condition of buildings prior to development being carried out

To encourage developers and its contractors to use construction techniques that will minimise the risk of damage to buildings on neighbouring land

Note:    Also refer to the Dilapidation Report Advising for more information regarding this condition

102. The Council argues that the appropriate person to undertake the Dilapidation Report is a structural engineer. The Applicant is seeking that the condition is reworded to allow this work to be undertaken by a licensed builder. I accept the submission of the Council in this case given the extent of the works (significant works to rear elevation fabric) and the fact that the site adjoins the structure of 58 Glenmore Rd. The above wording of condition D2 is retained.

103. The respondent has also argued that the current advisory note to the conditions, K.12 (below)be added to the operational condition D2:

In the event that access for undertaking the dilapidation survey is denied the applicant is to demonstrate in writing to the satisfaction of the PCA that all reasonable steps were taken to obtain access to the adjoining property. The dilapidation report will need to be based on a survey of what can be observed externally.

I accept this is reasonable and appropriate in the circumstances of the case.

104. As noted in 79, in response to public submissions [s79c(1) (b)(e)] I propose to include an additional condition to further reduce the potential privacy impacts to 60 Glenmore Rd as a result of the development.

Conclusion

105. On the evidence before me and after considering the relevant matters under s 79C(1) of the EPA Act, the amended plans, the expert reports, the proposed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.

Orders

106. The orders of the court are:

1. The appeal is upheld.

2. Development Application 436/2015 for alterations and additions to existing dwelling at 58 Glenmore Rd Paddington, is approved subject to the conditions in Annexure A, including the addition of new condition A2 .1

A2.1: The Northern Brick veneer Balustrade to the first floor balcony at RL 48.310 (shown on DA14, Issue B) is to extent to a height of 1.5m on the common boundary with 60 Glenmore Rd.

3. The exhibits, except exhibits 2 and B, are returned.

…………….

D M Dickson

Commissioner

155414.16 Dickson (C) - Amended on 21 October 2016 (230 KB, pdf)

Decision last updated: 31 October 2016