Semyon Pinchuk v Woollahra Municipal Council

Case •

[2004] NSWLEC 11

•

01/16/2004

Land and Environment Court


of New South Wales


CITATION: Semyon Pinchuk v Woollahra Municipal Council [2004] NSWLEC 11
PARTIES:

APPLICANT
Semyon Pinchuk

RESPONDENT
Woollahra Municipal Council
FILE NUMBER(S): 11234 of 2003
CORAM: Watts C
KEY ISSUES:

Development Application :- Whether the design
siting and size of the proposed roof terrace would adversely impact on the visual and acoustic privacy of residents of nearby and adjoining properties
LEGISLATION CITED: Woollahra Local Environmental Plan 1895, (WLEP)
Woolahra Development Control Plan 1999, (WRDCP)
Environmental Planning and Assessment Act 1979, ss 79C and 97
State Environmental Planning Policy No 1-Development Standard, (SEPP1)
CASES CITED:
DATES OF HEARING: 12/01/04
DATE OF JUDGMENT: 01/16/2004
LEGAL REPRESENTATIVES:


APPLICANT
Mr B Bilinsky, solicitor with
Mr C Bilinsky, solicitor
instructed by
Horowitz and Bilinsky

RESPONDENT
Ms R Mohr, solicitor
instructed by
Deacons



JUDGMENT:


IN THE LAND AND


ENVIRONMENT COURT


OF NEW SOUTH WALES

11234 of 2003

Watts C

16 January 2004

Semyon Pinchuk


Applicant


v

Woollahra Municipal Council


Respondent

Judgment


1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Woollahra Municipal Council, (the council) of a development application to erect an access stair to the roof, a terrace, screen, balustrade, and safety hooks for maintenance, at Lot 7 DP 25379, being No 2 Fernleigh Gardens, Rose Bay.

2. The hearing was held on site and at Woollahra Council Chambers.

3. I have concluded that the application should fail as the proposed new roof terrace would add to the bulk of the building presently under construction, unreasonably impact on the visual, aural privacy and views of nearby neighbours.


The land
4. The land is situated on the eastern side of Fernleigh Gardens near its intersection with New South Head Road. It has a curved frontage to Fernleigh Gardens of around 54m, an eastern boundary of 44.75m, a northern boundary around 25m and an area roughly scaled off the drawings in Exhibit 7 of over 800m2.

5. A new three-storey dwelling house and swimming pool is under construction on the land. The car parking level and one habitable floor above that has been already constructed. The floor for the second of the three habitable levels was being poured on the site visit.

6. Development application No 1154/2000 for the dwelling and pool was approved by the council on 29 January 2002, [Note: Exhibit 6 Notice of determination]. Condition No 58 of that consent stated:


        To ensure the residential amenity of adjoining properties is maintained the roof terrace is to be deleted from the plans. In this regard the access stair to the roof terrace is also to be deleted and the area of the deleted roof terrace is to be reinstated with roofing material to match the proposed development. Details of such are to be indicated on the plans submitted with the Construction Certificate application.

7. The construction certificate plans were not tendered so I was unable to ascertain whether this condition has been fully complied with. However, the applicant still seeks consent for new stairs to the roof and a new roof terrace of around 40m2. Many of the nearby residents knew of the council’s determination and of the existence of Condition No 58, so were anticipating any roof terrace would be deleted.


Relevant planning controls

Woollahra Local Environmental Plan 1995, (WLEP)
8. Under the provisions of the WLEP the land is zoned Residential ‘A’, 2(a), and the proposal to erect portion of a dwelling house is permissible with consent.

9. The relevant aims and objectives of the WLEP are:


        • Clause 2(1)(h) to protect the amenity and natural environment of the area of Woollahra;

        • Clause 2(2)(a)(i) in relation to residential development to promote the development of land to which this plan applies as a comprehensively planned residential community...

10. The relevant objective of Zone No (2)(a) (Residential “A” Zone) of the WLEP is:


        • Objective (a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses.

11. Under cl 8.5 of the WLEP:


        Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to he carried out as apply to that development.

12. Under cl 12 of the WLEP:


        (1) A building shall not be erected on land within a height zone to a height greater than the maximum height shown on the height map as applicable to land within that height zone.

13. The parties are agreed that the maximum height of development on the land would be 9.5m, where ‘height’ is:


        ...the greatest distance measured vertically from any point on the building to the existing ground level immediately below that point.
        ‘Existing ground level’ means the surveyed level of the ground surface immediately prior to the proposed development and prior to any associated excavation, development or site works.

14 The objectives of the height standard under cl 12AA of the WLEP are:


        (a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City Skyline,

        (b) to provide compatibility with the adjoining residential neighbourhood,

        (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings,

        (d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing,

        (e) to maintain the amenity of public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes.

        Note: The maximum permissible building height is not ‘as of right’. To achieve maximum permissible building height, development must satisfy other relevant controls applicable to the land concerned.

Woollahra Development Control Plan 1999, (WRDCP)

15. In adopting the WRDCP the council has provided more detailed planning provisions than those contained in the WLEP.

16. An objective of the WRDCP is to "ensure adequate acoustic and visual privacy for occupants and neighbours," (cl 5.8.1 of the WRDCP). Outlook from terraces must be obscured or screened "...where a direct view is available into the private open space of an existing dwelling." (Performance Criteria 9 in cl 5.8.3 of the WRDCP).


The proposal and its history
17. Development application No 106/2003 was lodged with the respondent council on 19 February 2003, to erect an access stair from the second floor to a new roof terrace with screen, balustrade and safety harness hooks for maintenance on the land. The proposal is described in A4 size plans prepared by Mr M Sgammotta, architect, and attached to the Class 1 application on the Court’s file. The application was accompanied by a statement of environmental effects, (SEE), prepared by Max Sgammotta Architects, that came to the Court as Exhibit C.

18. The proposed 40m2 roof terrace would be situated above the approved Bedrooms No 2 and 3 at the northern side of the dwelling under construction. The original development application plans had showed the roof terrace as being around 57m2. Before the application came to the Court, the applicant, by increasing the setback by 1.2m from the western edge of the building and increasing the setbacks on the northeastern corner of the building, had reduced the size of this terrace.

19. The architect has proposed that frameless clear glass balustrading to a height of 1m would enclose the western and northern sides of the terrace and a frameless decorative translucent glass screen, 1.5m high and about 5m wide would enclose the eastern side of the terrace. The proposed roof terrace would be enclosed on the southern side by the proposed skillion roof covering the Master Bedroom and Bedroom No 1. The SEE states that reflective glazing shall not be used.

20. The northern setback of the proposed terrace to the common boundary with Mr Gottlieb’s property at No 1 Fernleigh Gardens, Rose Bay, would be between 9.2m and 9.5m, [Note: Exhibit C p 2]. The proposed setback to the east and Mr and Mrs Marchant’s property at No 20 Rawson Road, Rose Bay, would be 5.5m to 9.0m. It was agreed on the site inspection that the proposed frameless decorative translucent glass screen, 1.5m high on the eastern side, of the proposed roof terrace, would increase the loss of Rose Bay water views from No 20 Rawson Road, by around 800mm over the length of the screen of around 5m.

21. During the hearing it was discovered that the proposed 1m high balustrade on the western edge of the proposed roof terrace would exceed the 9.5m height limit under the WLEP and thus the application before the Court would require a State Environmental Planning Policy No 1-Development Standard, (SEPP1) objection to that height limit. The level of the top of the 1m high balustrade would be 45.5m AHD and the top of the 1.5m high glazed screen would be 46m AHD, [Note: Exhibit 7 North Elevation]. As the previous swimming pool terrace was at a level of 34.9m the 1.5m high screen would exceed the maximum height by 1.6m and the balustrade by 1.1m, [Note: SEPP1 objection received by facsimile 4.15pm 13 January 2004].

22. Despite it being around 1m over the 9.5m maximum height limit, the council had approved the dwelling house itself by upholding a previous SEPP1 objection. Mr Sgammotta, for the applicant, at the on-site hearing maintained that the proposed roof terrace was not proposed over a part of the dwelling that had exceeded the height limit. From the SEPP1 objection it would seem that part of the terrace floor would also exceed the height limit when measured from the pool surround of 34.9m AHD and if taken from a lower point on the ‘ground line at pool terrace area’ would be more excessive of height, [Note: Exhibit 7 North Elevation].

23. As no survey information was tendered so the Court was unable to confirm any of the information contained in the SEPP1 objection. However, inferences that the floor of the proposed roof terrace would exceed the height limit may be drawn from the architectural drawings in Exhibit 7 and from the site inspection.

Notification

24. The application for the stairs and roof terrace was notified to nearby owners and occupants and the council received five (4) objections to the development application during the advertising period and one (1) later objection. These objections raise issue with the proposal on the basis of the unreasonable impacts on the aural and visual privacy of neighbouring residents.


The council’s decision

25. Although the appeal was made as a deemed refusal, the respondent issued its notice of determination refusing consent to the development application on 25 November 2003. The reasons for refusal are reflected in the issues before the Court in this hearing.


The hearing
26. The appeal was filed on 10 October 2003 and hence a deemed refusal.

27. At the on-site hearing the court heard evidence on behalf of the respondent council from:


        • Mrs K Marano, resident of No 869 New South Head Road, Rose Bay, who was not an original objector however her objection is found in Exhibit 1 Tab 2.11. Not originally notified;
        • Mrs J Marchant, resident of No 20 Rawson Road, Rose Bay, who had objected originally in Exhibit 1 Tab 2.4;
        • Mr M Gottlieb, resident of No 1 Fernleigh Gardens, Rose Bay, and who had originally objected, and whose objection is found in Exhibit 1 Tab 2.9 from Tony Findlay;
        • Mr G Leonard (with Mr John Bush) resident of No 4 Fernleigh Gardens, Rose Bay, who had originally objected and whose objection if found in Exhibit 1 Tab 2.8;
        • Ms S McGrath, resident of No 4A Fernleigh Gardens, Rose Bay who had not originally objected but now objected on the basis of noise;
        • Mr G Adams, resident of No 3 Fernleigh Gardens, Rose Bay, who did not originally object and was concerned to maintain harbour views from his dwelling;
        • Mr and Mrs Horsky, residents of No 10 Fernleigh Gardens, Rose Bay, who had not originally objected;
        • Ms M Clark, on behalf of the Rose Bay Residents’ Association Inc.; and
        • Mr D Booth, town planner of Woollahra Municipal Council.

28. On behalf of the applicant evidence was given by:


        • Mr T P Byrnes, town planning consultant;
        • Ms T Gowen, acoustic consultant;
        • Mr Sgammotta, architect; and
        • Mr S Pinchuk, owner and applicant.

The issues

29. On 17 December 2003 the council filed an amended statement of issues.

Visual and Acoustic Impact

        1. Whether the siting and size of the roof terrace would adversely impact on the visual and acoustic privacy of adjoining properties in the locality and would be inconsistent with Objective 1 and Performance Criteria 9 of section 5.8 of the Woollahra Residential Development Control Plan 1999.

        2. Whether the proposed development would adversely impact on the amenity and existing characteristics of the locality, which is predominantly characterised by dwelling houses, and whether the proposed development is unsatisfactory under clause 8 5 of the Woollahra Local Environmental Plan 1995 (the WLEP) in being inconsistent with the aims and objectives of clauses 2(1)(h) and 2(2)(a)(i) of the WLEP and in being inconsistent with objective (a) of Zone No (2)(a) (Residential "A" Zone).

        3. Whether the proposed development is in the public interest having regard to the submissions of objectors and section 79C of the Environmental Planning and Environment Act 1979.

30. The salient issue crystallised out as whether the design, siting and size of the proposed roof terrace would adversely impact on the visual and acoustic privacy of residents of nearby and adjoining properties.


The evidence and findings

Whether the design, siting and size of the roof terrace would adversely impact on the visual and acoustic privacy of residents of nearby and adjoining properties
31. Mrs Marano expressed concern about potential overlooking of her kitchen and two bedroom windows from the proposed roof terrace. She commented that the tenants living in the previous house had entertained on a number of occasions and this generated a lot of noise. She commented that music from those parties could be heard in her property. She indicated that the noise had continued for eighteen months. She said that she would be able to look onto people on the proposed terrace.

32. Mrs Marchant was concerned about noise from the proposed terrace and the reflection of sun from the glass balustrading. She said that she and her husband used the front western terrace for entertaining and no other similar area was available within their property. She said she was concerned also about the impact on the living room at the western front of the property given the likely future use of the proposed terrace.

33. While the hearing was being conducted on Mr and Mrs Marchant’s property there had been some discussion about the height of the proposed roof terrace when viewed from the terrace of No 20 Rawson Road. It was agreed between the parties that the likely top level of the 1.5m high-glazed screen around the proposed terrace would be at about the level of the No 20 Rawson Road terrace floor. A rough diagram prepared by Mr Sgammotta indicated that around 800mm of the top of the proposed 1.5m high screen would additionally block the view towards the waters of Rose Bay, through the foliage. It was also noted that the existing approved height of the building on the subject land was in excess of that permissible under the WLEP by around 1m.

34. It was noted that Condition No 58 of the original consent for the dwelling house on the land had required the proposed roof terrace is to be deleted from the plans and reinstated with roofing material.

35. Mr Gottlieb indicated that the privacy that he presently enjoys would be lost. He was concerned about the potential loss of trees and minimal shielding of views and this was against the backdrop of the large size of the building being erected next door. Importantly, he was concerned that others might unreasonably use the property and the terrace in the event that it was on-sold. He stated that if the terrace were used for entertainment that would be a "problem for him". He was concerned about noise, and recalled the use of the previous dwelling on the land for "party after party" and he was concerned that new owners might throw frequent parties as well. He conceded that there were some properties that overlooked his back garden but it would make it "less perfect" if further overlooking allowed. Having in mind the height of the roof terrace, agreed between Mr Sgammotta and the Commissioner as being at the level of the southern branch of the Camphor Laurel, he stated that if the Camphor Laurel and other tree were removed there would be less shielding. He noted that if one or two trees were removed there would be a higher impact. He noted that there was an application in place to remove the second tree. He stated that complaints made by him to the local police concerning noise impacts received an unsatisfactory response. He pointed out there is nothing to prevent any new owner from removing the glass around the proposed terrace installed to reduce noise. He was also concerned about reflection of sun off the proposed glass balustrades.

36. Mr Leonard, supported by his advisor Mr Bush, said that the study and dressing area within his dwelling would be an impact upon by sunlight reflected from the glass balustrades. He commented that people on the proposed roof terrace could look right into his study. His architect had estimated that the height of the proposed terrace would be in line with the pink chimney pots on the house beyond. Mr Sgammotta largely agreed with this estimate.

37. Mr Leonard was concerned that noise would be experienced and views lost from his main bedroom. As an example of noise impacts experienced in his dwelling he said that when parties are held in the castle noise comes straight into that room. If the roof terrace were 40m2 there would be likely to be functions held there and the noise would impact on his property. He was also concerned that people on the proposed roof terrace might be able to look into a childrens’ room on the northern side of his dwelling. He was also concerned that a glass railing would add to the height of the existing structure.

38. He pointed out that the council approved the original application with the roof terrace omitted. He said that the council did not support trafficable roof areas and when the present application was lodged, no new material accompanied it on which to base a change.

39. Ms McGrath objected on the basis of noise. She noted when parties and been held in nearby homes any noise bounces off the driveway and she has difficulty in sleeping. She pointed to the open nature of the area and that noise would be likely to be ‘aggravated’ if there were a new roof terrace. She confirmed that usually a party was held every year in ‘the castle’ but there was not one this year.

40. Mr Adams was concerned about possible loss of harbour views from his lounge room. He said that if he lost the Harbour Bridge view the house would be devalued by $2mill. He made no mention of the impacts of the proposed new terrace.

41. Mr and Mrs Horsky were concerned about the impact of the proposed terrace on the amenity of their dwelling at No 10 Fernleigh Gardens, especially when they occupied the front living room, pool and terrace area of. In particular they were concerned about the height of the terrace and the noise generated by those using the proposed roof terrace. They also expressed concern for the height of the dwelling under construction and likened it to a residential flat building.

42. Mr Booth, for the council, maintained in his position paper in Exhibit 9, that the proposal would be inconsistent with the aims and objectives of the WLEP, for reasons that it would facilitate the transmission of noise to adjoining properties and the neighbourhood generally, to the detriment of the existing aural privacy of the residential neighbourhood.

43. He said this would be due to:


        (a) the elevation of the proposed roof terrace (approximately 10.5m above existing ground level);
        (b) the absence of adequate built structures for containing noise; and
        (c) the size of the proposed roof terrace (about 40m2 in size), and that that the proposed terrace would be capable of accommodating large numbers of people.

44. He also considered the proposal would be inconsistent with the objectives of WRDCP for similar reasons but largely due to the height and size of the proposed roof terrace, and the detrimental impact on the acoustic and visual privacy of the following properties:


        • No 4 Fernleigh Gardens, Rose Bay;
        • No 1 Fernleigh Gardens, Rose Bay;
        • No 20 Rawson Road, Rose Bay; and
        • No 869 New South Head Road, Rose Bay.

45. In oral evidence he stated that there would be limited overlooking to No 1 Fernleigh Gardens. The terrace, per se, would not be objectionable however, the use would be likely to impact on "...noise and lines of sight".

46. He agreed with Mr Bilinsky that if the use of the proposed terrace by the dwelling’s residents were infrequent, then that objection in relation to noise impacts would be reduced considerably.

47. He agreed that, in isolation, he would not have any objection to the stairway leading to the roof as a physical structure.

48. He agreed that although the physical size of the proposed terrace would not be objectionable, essentially his objection to the proposed terrace would be to its overuse by a large number of persons.

49. He agreed that substantially high balustrades to 1.5m in height would address overlooking but he was not certain that noise would be ameliorated. He added that although "...noise impacts [might be] governed by legislation, the council officers can’t enforce noise breaches" since such breaches usually occur outside council’s operational hours.

50. Mr Byrnes, for the applicant, supported the application before the Court and stated:


        The characterisation of the roof terrace as a source of nuisance ignores the opportunities within the subject site for garden party entertainment as well as the existing facilities spread around the curtilage of the building. This consideration diminishes the relevance of the proposed terrace as a singular source of entertainment and potentially undue adverse impact.

        The visual and acoustic privacy are confined to matters of adjoining privacy. The proposed alterations are therefore not seen to diminish the proposed dwelling character and therefore do not adversely impact on the existing characteristics of the locality, being predominantly dwelling houses which remain unaltered.

51. He concluded that the proposed roof terrace might well "...be used for entertainment just as any resident might expect to. This is neither unreasonable nor of itself uncharacteristic of a residential area." [Note: Exhibit A p 6].

52. He was of the opinion that given that there would be other entertainment areas within the curtilage of the proposed dwelling, the proposed roof terrace could be seen as "an alternative area", and its use should not be "exaggerated".

53. He maintained that the elevation of the proposed roof terrace above ground level might be ‘an acoustic advantage’ relative to similar terraces at lower and ground levels on the land.

54. Ms Gowen, for the applicant, stated that the "... proposed 1.5m high acoustic glazed screen around the perimeter of the terrace addresses any concerns regarding potentially unacceptable noise transmission resulting from the elevation of the terrace." [Note: Exhibit B p 5]

55. In cross-examination, Ms Gowen agreed that the height of the proposed acoustic glazed screen would vary and on the north and west the balustrade is proposed to be only 1m in height. On the northern side, with people standing talking against the 1m high balustrade, she agreed that the only sound reduction would be that obtained through distance and direction attenuation and the balustrade would be of little effect. Thus this evidence suggests limited physical acoustic screening of noise towards Mr Gottlieb’s back yard and pool.

56. Towards the east and the Marchant’s property Ms Gowen also agreed that acoustic screening would not be complete as there would be a gap between the 1.5m high screen on the eastern side of the deck and the 1m high handrail to the stairs leading.

57. I am satisfied that the proposed roof terrace might accommodate a number of persons talking and making noise sufficient to adversely impact on the enjoyment of the Gottlieb’s rear yard and pool area at No 1 Fernleigh Gardens, Rose Bay. Also it is likely that persons accessing the roof via the stair might create sufficient noise in transit to adversely impact on the enjoyment of the outdoor areas of the Marchant property at No 20 Rawson Road, Rose Bay.

58. In coming to this conclusion, I have taken into account the evidence of Ms Gowen that with limited acoustic screening only direction and distance attenuation of noise would be available. Mr Gottlieb’s pool and garden area would be around 20m distant and to the Marchant’s terrace the distance would be around 32m, [Note: Exhibit 7 scaled off the shadow diagrams at 1:200 scale]. These distances would attenuate the noise to some extent. There was no evidence as to the benefit of such distances in attenuating sound. However, on relatively quite nights, I am satisfied based on the evidence of residents and Ms Gowen, the noise impacts likely to emanate from gatherings on the proposed roof terrace, would be sufficient to warrant refusal of the application. This was reinforced on the site inspection when the perched nature of the proposed roof terrace became evidence. Directional attenuation is a matter of chance and depends on people when talking facing away from the receiving properties.

59. The applicant suggests that conditions might be imposed requiring screens be erected to attenuate the likely noise from the northern side of the proposed roof terrace. To do this would add to the already great bulk of the existing approved dwelling and would bring the proposed roof terrace, further into breach of the 9.5m height limit. The extent of that further breach I am unable to determine, as Mr Sgammotta at the hearing, was unable to calculate the breach without further height calculations and reference to the survey plans.

60. On the site inspection it was seen that persons using the proposed roof terrace would be in the line-of-sight of those using the garden and pool area of No 1 Fernleigh Gardens and the side windows of No 869 New South Head Road. Thus I am satisfied that the outlook from the proposed roof terrace would not be sufficiently obscured or screened to avoid a direct view into the private open space of No 1 Fernleigh Gardens as required by Performance Criteria 9 in cl 5.8.3 of the WRDCP.

61. Also I am satisfied, on the evidence of Mr Booth, Ms Gowen and the nearby residents that the proposal would be inconsistent with the objective of the WRDCP to "ensure adequate acoustic and visual privacy for occupants and neighbours," as required by cl 5.8.1 of the WRDCP.

62. For the above reasons, the appeal is dismissed on merit.


SEPP1 objection

63. After the hearing concluded, the applicant, with the consent of the respondent, submitted a SEPP1 objection to height of the proposed balustrade on the western side of the proposed roof terrace. The applicant sought to justify the variation in the maximum permissible height on the grounds that, [Note: SEPP1 objection received by facsimile 4.15pm 13 January 2004].


        • The points of height exceedance relate to minor projections only and do not apply to the building bulk;
        • Provision of the control to limit height is not a control that limits the use of the area but only the building form. To date no objection has been put forward to the form the building takes, but rather to its usage as a terrace enabled by the provision of the balustrade in question;
        • Insofar as the balustrade is a clear frameless glass balustrade and to the extent that it is observable at all, it leaves the question of existing views virtually unaltered. To the extent that it is textured glass and therefore translucent it does not intrude upon views other tan for the deliberate purpose of privacy screening. Otherwise the screening does not materially affect the consequences for the existing views of the harbour or the public domain at large and the operative limit remains largely the roof itself as approved;
        • Compatibility with the adjoining residential neighbourhood is unaltered by the exceedance of the height limit standard and its consequent visual impact. Mitigated not only by the translucent or otherwise clear nature of the proposed material but also because the view lines from adjoining areas to the north or the west are diminished by the extension of the sun control projections as a permanent awning and otherwise the roof extension;
        • It should be noted that although the standard is exceeded, the level of the balustrade does not exceed the maximum height of the building already permitted governed by the previously approved skillion roof adjoining to the south;
        • The visual privacy safeguards, where the material is obscure glass are nevertheless a minor element and not intrusive within the building form which, as has been noted, is not objectionable to date in its own right;
        • There are no adverse consequences due to overshadowing;
        • Insofar as the height exceedance has to be measured above the existing excavated levels beneath the point of measurement, as per the definition of building height, that measure reflects an excavated level within the building (as indicated on the north elevation). The reality of the measure of the exceedance above 9.5 limit line (shown dotted on the north elevation) is therefore at variance between heights of 400mm and 700mm only and for that reason could be said to be necessary as a control limit, given the minimised impacts identified as above.

64. In the SEPP1 objection the applicant stated:


        The proposal meets the objectives to the zone... with no impact to the foreshore arising from the proposal.
        The proposal is consistent with the planning objectives to the standard and for the locality and is compatible with adjacent developments notwithstanding the minor no-compliance with the height standard.
        Accordingly, in this case it is considered both unreasonable and unnecessary for the proposed development to wholly comply with the provisions of cl 12.

65. Addressing each of the points raised in support of the objection:

66. The applicant maintained, that the breach of the 9.5m height standard is ‘minor’ however, on the evidence given on-site by the architect, Mr Sgammotta, the proposed roof terrace would be over that part of the existing building that is already in breach by around 1m. Both the floor of the proposed roof terrace and the balustrades and screen surrounding it would exceed the height. I am satisfied that the breach in building height by the proposal cannot be dismissed as ‘minor’.

67. On the site inspection I noted that there were no other similar roof terraces on buildings nearby. The proposal to use the roof as an accessible terrace would bring people to the roof level of the already approved excessively high building unlike any other nearby building in Fernleigh Gardens.

68. The council, in its wisdom, gave approval to the erection of the dwelling house on the land, with the express proviso that the proposed roof terrace was to be deleted. It is wrong to say there was "...no objection... put forward to the form the building takes" if that form includes a roof terrace. Certainly, there was objection to a roof terrace and as a result Condition 58 was imposed requiring its deletion from the plans. In order to delete, in effect, that condition one might expect that a modification application under s 96 of the Environmental Planning and Assessment Act 1979 should be first favourably considered and none was sought.

69. On the site inspection, when standing and sitting on the Marchant’s terrace, it was ascertained that the top section of the translucent privacy screen would add to the bulk of the building and cut off about 800mm x 5m of the view through the foliage of the waters of Rose Bay. There is also the possibility, should the roof terrace be approved, that night lighting of the proposed roof terrace might intrude into the Sydney City skyline views from the Marchant’s terrace and western front room.

70. I accept that the form of the proposed dwelling under construction would not be markedly changed by the clear glass balustrading enclosing the roof terrace, as from most viewpoints in the street it would not be visible. However, the use of the proposed roof deck would be likely to intrude on the amenity of neighbours.

71. The applicant argues in support of the SEPP1 objection that the level of the proposed balustrade would not exceed the maximum height of the building already permitted, however, the level on which recreational activities could take place would be raised a further floor in height if the proposal were successful. That activity would take place in the open as opposed to activities within the enclosed level 2bedrooms.

72. I accept that there was no evidence of any adverse consequences due to overshadowing caused by the proposal either by the balustrade or screen.

73. The maximum height of the top of the proposed terrace balustrade or screen must be measured to the existing ground level under the WLEP. If that level included the "...existing excavated levels beneath the point of measurement, as per the definition of building height, that measure reflects an excavated level within the building (as indicated on the north elevation)" so be it. The parties are in agreement that both the exiting approved dwelling and the proposed balustrade and screen exceed the maximum height of 9.5m under the WLEP.

74. I have considered the SEPP1 objection to the 9.5m height standard of the WLEP in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 - 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):


        ...it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

75. Taking each question posed by his Honour Lloyd J and answering it:


        1. The 9.5m height limit is a development standard;
        2. The underlying purpose of the standard is as set out in para 14 above and relevantly to ensure that buildings do not cause adverse environmental impacts, dominate and that a fair viewing of views result;
        3. Compliance with the development standard [of 9.5m] would be consistent with the aims of the Policy, and in particular compliance with the development standard would not tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act;
        4. Compliance with the height standard would not be unreasonable or unnecessary in the circumstances of the case;
        5. The objection is not well founded.

76. I am satisfied that the proposed roof terrace would unreasonably add to the height of an already excessively high dwelling presently under construction, would block views towards the waters of Rose Bay from the Marchant’s terrace and dwelling at No 20 Rawson Road, would be likely to adversely interfere with the views of the City skyline from those same viewpoints at night, would have an adverse visual and acoustic impact on nearby residents, in particular on Mr Gottlieb and his family at No 1 Fernleigh and the Marchants at No 20 Rawson Road. As a result I am satisfied that it would not comply with the objectives of the zone or of the Act and would not be orderly use of land.

77. Thus I am satisfied that the SEPP1 objection is not well founded and compliance with the height standard would not be unreasonable or unnecessary in the particular circumstances of this case.


Orders

78. My orders are:


        1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
        2. The State Environmental Planning Policy No 1 objection to the height standard in the Woollahra Local Environmental Plan 1995 is not well founded.
        3. Development application No 106/2003 lodged with the respondent council on 19 February 2003, to erect an access stair to the roof terrace, with screen, balustrade and safety hooks for maintenance at Lot 7 DP 25379, being No 2 Fernleigh Gardens, Rose Bay, is refused consent.
        4. The exhibits with the exception of Exhibits 10 and C are returned.

S J Watts


sw

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

4