Scoufis v Sutherland Shire Council

[2012] NSWLEC 1163

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scoufis v Sutherland Shire Council [2012] NSWLEC 1163

Hearing dates:

13 June 2012

Decision date:

15 June 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is allowed.

(2)The s 96 application to modify development consent MA11/0205 for a dwelling house at 36 Sylvania Road Sylvania is approved subject to the conditions in Annexure A.

(3)The exhibits may be returned except 3, 4, A and B.

Catchwords:

Development modification - Dwelling house, extent of upper level terrace, privacy, amenity impacts.

Legislation Cited:

Sutherland Shire Local Environmental Plan 2006

Cases Cited:

Pafburn v North Sydney Council [2005] NSWLEC 444
Progress and Securities Pty Limited v North Sydney Municipal Council [1988] NSWLEC 55
Super Studio v Waverley Council [2004] NSWLEC 91

Category:

Principal judgment

Parties:

William and Christine Scoufis (Applicants)

Sutherland Shire Council (Respondent)

Representation:

Mr R O'Gorman Hughes (Applicant)

Ms J Amy (Respondent)

File Number(s):

10211 of 2012

Judgment

Background

1. This appeal was lodged against council's refusal of a s 96 application to modify a development consent granted for a large 2/3 storey dwelling house located at 36 Sylvania Road, Sylvania.

1. The appeal was set for a s 34AA hearing and during the conciliation phase, the parties reached agreement on many detailing issues. However, as no agreement was reached on the substantive issue of the rooftop terrace, the s 34 conference was terminated and the matter proceeded for determination.

1. Since the original consent was granted in April 2004, a number of modifications have been approved and the dwelling house substantially completed. However, the construction of several aspects has led to the subject s96 application to regularise some unapproved works.

1. According to the statement of facts, the scope of this s 96 application is summarised as follows:

• Delete conditions relating to windows on the first floor family room, additional vehicle manoeuvring area, non-trafficable ground floor roof and restriction on the use of the eastern part of the basement garage for accommodation of vehicles and not for any entertainment or habitable use.
• Re-allocate the lift motor and plant rooms to a gym and laundry respectively (works as executed and in-situ). Therefore increasing the gross floor area by 26 sq m;
• Replacing motorised louvres to the lift and plant room (now proposed as a gymnasium and laundry) with clear glazing (works as executed and in-situ);
• Increase the height of privacy screen to the southern side of the ground floor verandah at the rear of the dwelling with full height clear glass to function as privacy screen (works as executed and in-situ);
• Reduced width of stair well to form powder room on ground floor and storeroom on first floor (works as executed and in-situ);
• Sky-light deleted from above first floor storage room (works as executed).
• Increasing the internal length of the building by 1 m and 1.51 m on the northern and southern halves of the dwelling respectively (works as executed and in-situ). Therefore increasing the gross floor area by 23.78 sq m as habitable floor area;
• First floor family room contains a full kitchen (works as executed and in-situ). Plans show no kitchen;
• Ground floor FFL lowered from RL49.0 m to RL48.7 m and therefore increasing overall internal ceiling height by 300 mm and internal ceiling height of the lower ground floor from 2.4 m to 2.5 m (works as executed and in-situ); and
• Doors to stairwell on both ground and first floor levels (works as executed and in-situ) remains deleted from all plans.

The contentions

1. For the appeal, council identified the following contentions:

• Adequacy of information; in terms of the accuracy and specificity of the proposed modified having regard to the past modifications and works undertaken during the extended construction period.

• Privacy, overlooking and visual intrusion: The development is unacceptable as it fails to minimise the extent of additional overlooking from the roof terrace and visual intrusion into adjoining and nearby properties including internal living spaces, first floor balconies, private open space or minimise noise from an elevated third storey entertaining terrace.

• Bulk and Scale

The proposed modified development exceeds the maximum permissible floor space ratio (FSR) for the site as prescribed under cl 35(7)(b) of the Sutherland Shire Local Environmental Plan 2006.

The proposal results in an intensity of development that is contrary to the objectives of the development standard and also results in a three storey development.

• Landscaped Area

The proposal does not comply with the minimum landscaped area development standard. The proposal is an overdevelopment of the property. There are no site constraints that would serve to support a variation to the standard. Notwithstanding numerical compliance, the proposal also fails to satisfy the objectives of the standard and does not provide the quality of landscaping to balance the extent of hard surfaces and built form.

• Public Interest matters;

1. Following the conferencing process, it is apparent that the main contention concerns the proposed conversion of part of the ground floor roof structure, to permit the construction and use of a terrace area with an effective area of approximately 11m x 10m (including landscaping) adjacent to the first floor family room.

Planning controls

1. The following controls are relevant:

• Sutherland Shire Local Environmental Plan 2006

The site is affected by the provisions of Sutherland Shire Local Environmental Plan 2006 (SSLEP 2006). SSLEP 2006 zones the site of the proposed development as Zone 4 - Local Housing. The proposed development is permissible with development consent.

Relevant clauses are:

• Clause 3 - aims of the SSLEP 2006
• Clause 11 - land use table
• Clause 33 - building height
• Clause 35 - building density
• Clause 36 - landscaped area
• Clause 48 - urban design general
• Clause 49 - urban design residential buildings

Sutherland Shire Local Environmental Plan Amendment 8 was gazetted on 30 July 2010. Relevant to this application are the definitions of "ground level", "basement" and "gross floor area".

• Sutherland Shire Development Control Plan 2006

The applicable development control plan is the Sutherland Shire Development Control Plan 2006. Relevant sections are:

• Chapter 3 - Urban Design

The evidence

1. Detailed evidence in the form of a joint expert town planning report was tendered by:

• Ms D Pinfold: Council's Town Planner
• Mr L Winnacott: Applicant's consulting planner

1. As noted, this modification application covered a range of building elements that have been constructed in variance to the approved development consent. The subsequent conferencing between the parties has resulted in most of these elements being agreed to be covered by modified conditions of consent.

1. This agreement was facilitated by the clarification on-site of the extent of construction of various elements and the resultant dimensions and levels. Importantly, these items include:

• The restoration of the southern side setback area to backfill the over-excavation area;
• The imposition of conditions that prevent the retention and use of the eastern section of the basement garage as a habitable area. Otherwise there is an exceedence of the FSR provisions;
• The removal of the kitchen facility in the first floor family room adjacent to the proposed terrace;
• The provision of additional landscaping to offset any deficiency in landscape area;

1. Having considered the details in the joint report and undertaken a view, I am satisfied to rely on the parties' agreed conditions in respect of the aforementioned elements.

Rooftop terrace

1. Consequently, the remaining issue concerns the construction and use of the proposed rooftop terrace. The proposed terrace is adjacent to the first floor family room and located on the extended ground floor roof slab. It is to be accessed via sliding doors from the family room and has an effective width of 6.6 m and depth of 7.2 m, plus perimeter landscaping area.

1. The perimeter planter box is 600 mm high and varies in width from 1.34 m on the northern side to 2.21 m on the southern side. The proposal also includes the installation of a 400 mm glass panel atop the planter box to act as a barrier as required by the BCA.

1. Insofar as council is not satisfied with this rooftop terrace, the neighbours from No 34 Sylvania Road also lodged objections. These objections concern the extent of the terrace and its proximity to their family/dining room window, which they consider will compromise their privacy, outlook and environmental amenity.

1. In support of the modification application, Mr Winnacott says that the intention of the modified design is to create an area of private open space to take advantage of the outlook and views from one of the principal rooms of the dwelling house. Accordingly, in designing the new balcony consideration has also been given to ensuring that visual privacy of others is not compromised, as required by the DCP objective.

1. Mr Winnacott says that:

The proposed new balcony will be setback approximately 6.34 metres from the dwelling house on the adjoining property to the north, 7.2 metres from the dwelling house on the property to the south and 16.7 metres from the rear site boundary. It is proposed to incorporate a landscape screen planter around the new balcony having a width of 1.34 m to the north, 2.215 m to the north and 3.69-4.7 m to the east. Landscape planting will be carried out to provide a privacy screen between the balcony and the adjoining properties as well as provide for a view corridor from the balcony to the east. The landscape concept plan prepared on Monaco Designs dated 27 May 2011 proposes a row of shrubs up to 1.8 m high along the northern and southern sides of the proposed balcony. This will provide a screen buffer with the kitchen and meals room window, and other windows in the dwelling house to the north at No 34. It will also provide a visual buffer for the dwelling house to the south at No 38 where the windows and balconies are situated at a level lower than the proposed balcony. In order to address council's concerns regarding safety a light weight balustrade may be installed around the external wall of the planter, in accordance with the requirements of the Building Code of Australia, as an alternative to the balustrade around the perimeter of the new balcony. It is also noted that the windows on the adjoining dwelling to the north at No 34 are fitted with vertical blinds which when adjusted will minimise any overlooking into the rooms of the dwelling from the proposed balcony. Any overlooking of the third floor east facing balcony of the adjoining property to the north from the proposed balcony is of a minor nature when considered within the context of the character of the area.

1. Mr Winnacott also noted that if the proposed landscaping is not considered adequate to address the privacy impacts on the neighbouring property, then there could be a requirement for the installation of a light weight privacy screen on top of the outside wall of the planter box on its northern side and extending for the length of the proposed new balcony. To achieve an overall height of 1.8 m the screen would be 1.2 m above the existing 600 mm high wall. If it was considered necessary such a screen could also be installed on the outside of the planter on the southern side of the proposed balcony. Such screens would be in accordance with Clause 13.b.7.2 of the DCP and would not exceed the maximum building height control of the DCP

1. Consequently, Mr Winnacott supports the terrace on the basis that:

It is to be expected that the new balcony will be used as an area of private open space for the passive outdoor activities of the family occupying the dwelling house. There is no indication that it will be used for high intensity activities as contended by the Council. Any noise associated with use of the balcony is likely to be minimal and consistent with that normally experience in an urban residential area. Having regard to the distance of separation between the proposed new balcony and the dwelling houses on the adjoining properties there is no indication that the proposed new balcony will result in unreasonable acoustic impacts on the neighbours.

1. Against this, Ms Pinfold says that:

The proposal involves a further modification of the approved development and the history is relevant to the consideration of the current proposal. The initial development application approved a first floor balcony on the northern side of the dwelling, but which extended no further east than the eastern wall of the dwelling as built. The area which is now proposed for use as a terrace, was to be a metal deck roof, and non trafficable area. In previously approved modification applications, the current applicant applied first to modify the ground floor roof upon which the roof terrace is situated to a concrete slab with metal deck roof over; and cover the first floor balcony; then in a later modification application, to remove the first floor balcony entirely by incorporating the approved balcony space within the internal walls of the dwelling. The modification application plans for which approval was sought and granted, provided for a non trafficable metal deck roof over concrete slab, in the location of the now proposed terrace; and did not provide any door access from the living area to the roof. Condition 26 of the consent (added on 5 March 2008) requires that the ground floor roof structure, which is now proposed to be used as a first floor roof terrace, remained non trafficable at all times other than for period [sic] maintenance.

1. Consequently she says that:

The dwelling has other outdoor areas available to it, which substantially exceed the required minimum 6 m x 6 m of private open space required for a dwelling house under SSLEP 2006. These are:

a level lower ground level terrace and rear yard with an area of 203 m2. As a result of the unauthorised conversion of the garage area, the lower ground floor terrace and rear yard also have direct access from the dwelling.

an elevated ground floor balcony of 31.68m2 which is accessed directly from the primary living area and kitchen of the dwelling.

The elevated ground floor deck also provides for expansive views over the district, including views to the Georges River/Botany Bay. Such views are also available from within the first floor living area.

1. Ms Pinfold does not consider the proposed terrace satisfactory because the proposed roof top terrace results in a significant privacy intrusion upon the adjoining dwellings at 34 and 38 Sylvania Road, enabling views into the interior of these dwellings which were otherwise unavailable. In the case of No 34 Sylvania Road, the roof top terrace enables views into the dining/family room of the property, immediately adjoining the kitchen. The window is located approximately 6.5 m from the proposed northern edge of the trafficable area of the terrace. Her inspection of this dwelling indicates that this area is heavily utilised by the occupants of this dwelling, with the computer station used by the occupant's child is located between the kitchen and the dining/family room window.

1. Insofar as the application relies on perimeter landscaping 1.8 m high to mitigate privacy/overlooking impacts on the residents at No 34, Ms Pinfold is concerned that having regard to the planning principle established in Super Studio v WaverleyCouncil [2004] NSWLEC 91, reliance on this landscaping solution should be given little weight.

1. In this regard, she is not satisfied with the viability of the landscaping solution due to the suitability of the planting species in the exposed location. Further, the planter box as shown on the Monaco Designs schedule shows a soil depth of only 400 mm, whereas Council's controls require a minimum soil depth of 600 mm. Also, while the design shows a 'typical planter box' with drainage, an inspection of the roof shows no drainage points for the planter boxes to connect into. It is therefore unclear how the plants will survive within the planter boxes.

1. In reaching her conclusion that the proposed terrace will create unsatisfactory amenity impacts, Ms Pinfold refers to the planning principles in relation to general amenity established in Pafburn v North Sydney Council [2005] NSWLEC 444 and Super Studio, the proposed development is considered to result in an unacceptable impact on the amenity of the adjoining properties because:

• The roof terrace would be one of three outdoor areas at the subject site. The remaining two terraces are of more than adequate size for the range of uses associated with a dwelling house and directly accessible from living areas. Further, expansive views are available from the elevated ground floor terrace and the first floor living area. A third terrace of such a size, accessed from a secondary living area is not considered reasonable or necessary in the circumstances of this case.
• The applicant has, through a series of modification applications, deliberately abandoned the original plan to provide a smaller first floor balcony. The originally proposed balcony resulted in none of the privacy impacts arising from the current proposal. It is unreasonable for the adjoining property owners to bear the amenity impact of the proposed terrace, when the applicant has already taken the benefit from the removal of the original balcony, in the form of additional floor space in the north east corner of the first floor of the living room. The burden arising from provision of additional first floor space is the loss of outdoor space at first floor level.
• The impact arises from the conversion of a roof area to a terrace. Such terraces are not common in the Council's low density residential zones. Given the availability of other outdoor areas, the adjoining owners have a reasonable expectation that this area will be maintained as a roof as originally approved, and that the level of visual and acoustic privacy anticipated by the approved development will be maintained.
• Further, the proposal arises from an unauthorised conversion of a roof structure to a roof top terrace. While the application now seeks to regularise the use, people affected by the proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime. The planning regime, in this case two modification applications, to the ground floor slab and first floor balcony enclosure respectively, were approved only on the basis that the area now proposed as a roof top terrace as to remain non trafficable.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view, I am satisfied that the modifications agreed to the various building elements by the parties are reasonable and can be covered by modified conditions.

1. With regard to the contentious terrace, I note that the modified conditions require the complete removal of the kitchen from the family room adjacent to this proposed terrace. Accordingly, I have considered the amenity impacts of this terrace on the basis that controls provided in SSLEP 2006 wherein cl 49(b) requires that the consent authority must not consent to development of residential buildings unless it has considered "the extent to which any adverse impacts of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised."

1. Furthermore, cl 3.13 of chapter 3 of the DCP relates to privacy and contains objectives and controls as outlined in the council's particulars for contention 1 to provide a high level of amenity by protecting the acoustic and visual privacy of occupants within all built development and in private open spaces. It contains controls requiring the use of building design elements including balcony screens and planter boxes in walls or balustrades to minimise privacy impacts.

1. The DCP contains additional controls for decks, verandahs and balconies requiring them to be designed to prevent overlooking of more than a reasonable area of the private open space of adjoining dwellings. It encourages a variety of balcony types and sizes and states that privacy screens and planter boxes may be required to be constructed at the edge of a deck, verandah or balcony to ensure privacy. The DCP incorporates the Court's planning principle that where landscaping is the main safeguard against overlooking it will be given minor weight.

1. It is then apparent to me that the proposed terrace is relatively large, with an effective paved area of approximately 47 sqm, in the context of other east facing terraces or balconies at adjoining and nearby residences. As such it will permit a considerable number of people to use it so as to experience the attractive district and water views, as stated by Mr Winnacott.

1. Considering the significant attraction/benefits of these views, I am unable to accept Mr Winnacott's opinion that the use of the terrace and associated impacts will be minimal. Instead I consider Ms pinfold's assessment is a more likely outcome. This would result in material adverse amenity impacts on the neighbouring property owners and I do not consider it would be consistent with the minimisation provisions of cl 49(b) of the LEP.

1. I have also considered the submissions made regarding the planning principle in Super Studio wherein Senior Commissioner Roseth said:

5 Several planning principles are relevant to the determination of this appeal. The first 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.

6 The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens.

1. Applying the first principle, the Court was informed that the main circumstance for requiring the large terrace was to take advantage of the attractive district and water views. But it is apparent to me that the dwelling does have other access to these views, particularly from the large balcony at the elevated ground level.

1. Furthermore it is also apparent that as the kitchen facility is not allowed on the first floor level, this upper level terrace would be of a secondary outdoor area and should therefore be smaller, if allowed at all.

1. For my overall assessment of the merits of the proposed terrace, a reasonable balance is required between the private benefits to the subject property owner and the public interest considerations expressed in the relevant planning controls of minimising impacts on neighbouring properties. In the circumstances I consider the proposed terrace is of excessive size in the context of the relatively large dwelling with other available balconies and its likely usage will cause adverse visual and privacy amenity impacts on the residents of No 34 Sylvania Road. Therefore I do not consider the necessity for such balcony has been reasonably established.

1. Submissions were also made regarding the authority in Progress and Securities Pty Limited v North Sydney Municipal Council [1988] NSWLEC 55 where Bignold J said:

In the present case it is neither necessary nor proper to hold, nor do I hold, that the power conferred by s 102(1) is limited to situations involving changed circumstances from those existing at the time that development consent was granted. What however, I do hold, is that the absence of any changed circumstances or the absence of any new or additional material relevant to the respondent's determination granting the relevant development consent (but overlooked by the respondent) is a relevant consideration in the exercise of the statutory discretion.

1. In this regard, I note from the lengthy history of this application that the original consent allowed for a smaller, somewhat recessed roof top terrace with an area of approximately 28 sq m. The consent then restricted the open slab area to be a non-trafficable roof. But subsequent applications modified this to permit its enclosure, thereby removing such open terrace, which indicates to me that any need for the terrace was secondary.

1. The subsequent modification to now re-install a considerably larger, more exposed open terrace in closer proximity to the neighbouring properties' main family/dining room window, would in my assessment likely cause adverse amenity and result in a significant incremental enhancement and benefit for the use for the subject application, whilst exacerbating adverse amenity impacts, rather than minimising them, to the detriment of the neighbours.

1. In summary then, I rely on Ms Pinfold's opinion that the proposed terrace is of excessive size and unacceptable and I am satisfied the proposed terrace would result in an unacceptable balance of amenity for the neighbouring properties as indicated by the relevant controls.

1. However, I accept that the controls permit a suitable roof top terrace. In the circumstances, I consider that a smaller terrace area, which is consistent with the secondary location of the terrace (i.e. it is not adjacent to the main kitchen/dining room) could be acceptable. Such smaller terrace would still enable the views to be experienced in conjunction with the family room usage, on the basis that the extent of the usage should be restricted to a similar level of the neighbouring properties.

1. The maximum size of such terrace would be an effective paved area with a width of the glass area of 6 m and with a depth of 2.5 m and include adjacent perimeter planter boxes with appropriate screening plants and watering system. A nontrafficable metal roof - to council's specification, should cover the remainder of the slab area. Modified conditions can cover this.

Court Orders

1. The Court orders are:

(1)   The appeal is allowed.

(2)   The s 96 application to modify development consent MA11/0205 for a dwelling house at 36 Sylvania Road Sylvania is approved subject to the conditions in Annexure A.

(3)   The exhibits may be returned except 3, 4, A and B.

R Hussey

Commissioner of the Court

Decision last updated: 19 June 2012