Rose v Woollahra Municipal Council
[2008] NSWLEC 1313
•28 July 2008
Land and Environment Court
of New South Wales
CITATION: Rose v Woollahra Municipal Council [2008] NSWLEC 1313 PARTIES: APPLICANT
RESPONDENT
Sean Rose
Woollahra Municipal CouncilFILE NUMBER(S): 10439 of 2008 CORAM: Hoffman C KEY ISSUES: Development Consent - Section 96 Modification :- roof deck, overlooking, loss of acoustic and visual amenity, privacy LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Control Plan 1993DATES OF HEARING: 28 /07/2008 EX TEMPORE JUDGMENT DATE: 28 July 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr S. Griffiths, solicitor,
of Pike Pike & FenwickRESPONDENT
Mr P. Rigg, solicitor,
of Deacons Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
28 July 2008
This decision was given extemporaneously.
It has been revised and edited prior to publication.
1 This is an appeal between Sean Rose and Woollahra Council in regard to No. 5 Latimer Road, Bellevue Hill. The proposal is to amend existing consents for a house that is nearing completion to enable three doors, one on the south side and two on the north side, to provide access from bedrooms onto the existing roof areas on the existing first floor level to provide decks with new glass balustrades.
2 This site has an area of about 687 sq metres and on the north side boundary with No. 3 Latimer Road there is a block of four flats two storeys in height, adjacent to the proposal; and apparently with a unit of the ground floor and a unit open the top floor adjacent to the proposal. On the southern boundary there is No. 7 Latimer Road which is a two storey dwelling house.
3 The statutory controls applicable are the Woollahra Local Environmental Plan 1995, and the Woollahra Residential Control Plan 1993. The parties agreed that the applicable concerns in relation to this appeal, are those on the acoustic and visual privacy in the Development Control Plan, particularly performance Criterion C.5.8.6 upon pages 131 and 132 of the document.
The reasons for refusal of the proposal were:
1. The proposed terraces look into the habitable room windows of adjoining houses to the north at 3 Latimer Road, and to the south of 7 Latimer Road, and
2. That the proposed terraces do not include privacy screens to prevent visual or acoustic privacy interference with adjoining properties.
3. The proposed terraces are separated by approximately 5.3 m to No. 3 Latimer Road, and approximately 3.3 m to No. 7 Latimer Road, which is considered to be unsatisfactory separation in terms of visual and acoustic privacy.
4 Since the refusal by Council, the applicant has prepared amended plans which were tendered at the on-site hearing and have been notified to the adjoining neighbours. The drawings were No. 05-08-DA 03, DA 04 and DA 05 all Revision F.
6 On the northern side balcony, the applicant had added obscured glass and privacy screens to most of the northern side and the western end to prevent overlooking into the neighbours properties, however at the eastern end of the north side the balustrade is low to enable views towards the street and to the park beyond across the front setback. The two doors from the bedrooms onto the balcony on the north side are similar to that on the south side.5 What they showed was that the proposal for the south side balcony has been deleted, however the door which originally had been a window, is sought to be retained to provide access for maintenance purposes. The door is in the form of an adjustable louvre frame which can only be opened with an allen key, not with a conventional key and handle.
7 Attending the hearing on-site for the respondent was:
- Mr P.Rigg, solicitor, and
- Ms L. McMahon, town planning officer at Council
- Mr and Mrs Aroney, of No. 7 Latimer Road,
- Mr S. Aroney, solicitor, and
- Mr M. Bartels. representing No. 7 Latimer.
8 There was advice from Ms McMahon that a Mrs Zenna, the owner of a unit in No. 3 Latimer had inspected the property with Ms McMahon last Friday, and had voiced concerns about visual and acoustic privacy. There were letters in support of the proposal from two other owners/occupants of the units adjoining property No. 3 Latimer Road, Mr Kostic, in Unit 1, and Mr McMahon in Unit 2. However, the supporters did not attend the hearing although they provided letters.
9 During the course of the hearing the applicant agreed to further conditions put forward by the respondent, which in effect said:
- Condition 54, the roof area RL11.55 on the first floor on the southern side of the dwelling can only be used for maintenance purposes.
- Condition 55: the door to the area described in Condition 54 shall be kept locked at all times except when maintenance work is being undertaken.
- Condition 56: the key to the door described in the Conditions 54 and 55 above shall be stored at a height of at least 1.8 m off the floor so it is not accessible by children for safety reasons. Alternatively the key shall be locked in a cabinet inaccessible to children.
- Condition 57: the 1.6 m high privacy screen over the northern area of Deck 1 shall be extended one metre at that height to the east.
- There is also amendments to Condition 1 to incorporate amended plans to referred to as Issue F.
10 In considering these draft conditions and the neighbours concerns, at No. 7, for aural and visual privacy of their northern facing windows, Mrs Aroney said they are mainly the bedroom windows at the upper level and she is concerned about activity on the roof areas. The applicant had conceded that it might perhaps be a problem and had therefore deleted any requirement for the use of that southern side roof area as a balcony.
11 The Aroneys were still concerned that having the doorway to the roof area would invite activity or perhaps invite later reversion to its use as a balcony. The door is in the nature of the adjustable louvres, and they are solid aluminium louvres not glazed. The door is in the form of a framed opening, similar to the window that was originally approved in that position. The window was a conventional one with a sill height of about 600 mm above the floor and the door just extends that down to the floor level. One could say from observation, that it is not a conventional door, and only opened with an allen key. It occurred to me that it is still in the nature of a window frame that can be used for access.
12 In consideration of the Aroney’s concerns it seems to me that the deletion of any proposal to use that southern roof area, should resolve their concerns. It would mean with the conditions that the applicant has agreed to prevent any use other than for maintenance purposes. Any reversion to use of it other than for maintenance purposes would be a breach of those conditions, and any reversion to use it as a balcony could not be done without a further application to Council and its approval. I note also, that the roof deck is off a bedroom and is quite narrow, and therefore its occupation for entertainment or long-term periods that might cause nuisance is not applicable.
13 On the northern side, similar considerations apply since the area is off two bedrooms. However it does face north and provides much better amenity than the south facing deck might have done. The concerns of one of neighbours about overlooking, seems to have been appropriately dealt with by the addition of a privacy screen with frosted glass at a height that would prevent overlooking from the deck.
14 The respondent was concerned that from the point where the privacy screen steps down, there would be an 8 m separation distance to the nearest bedroom window on the adjoining block of flats. In the Development Control Plan (DCP) it requires a 9 m separation. The applicant put that in fact the DCP only requires the 9 m separation when the view is directly across, and the DCP provides less distance when the windows are offset. Notwithstanding that, the applicant is prepared to extend the privacy screen sufficiently to the east so that there is a full 9 m separation. With that the angle of view would be at such an angle, that I doubt any serious privacy concerns could arise.
15 One matter arising is that the north balcony access doors are the same framed louvre type as the south balcony door and the same allen key was used to open all of them. It occurs to me that the south door off Bedroom 3 must have a different key or a separate lock to the other two so children cannot adventure out onto the south roof deck and I add that to the conditions.
16 Overall, therefore I find no reason sufficient for refusal of the proposal as now amended, and the orders of the Court are:
1. The appeal is upheld.
2. The s.96 application to amend existing consents DA 216/2006/1 and DA 216/2006/2 in regard to No. 5 Latimer Road, Bellevue Hill, is granted to enable the north side first floor roof outside bedrooms 1 and 2 to be used as a balcony subject to conditions in Annexure ‘A’ hereto.
Note: The conditions require the south side first floor roof space outside Bedroom 3, not to be used as a balcony and to be accessed for maintenance only.
3. The exhibits are to be returned to the parties, except Exhibits A, 2 and 3.
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