Super Studio v Waverley Council

[2004] NSWLEC 91

Land and Environment Court

of New South Wales

CITATION:	Super Studio v Waverley [2004] NSWLEC 91
PARTIES:	The Super Studio/Eva Marie Prineas Applicant Waverley Council Respondent
FILE NUMBER(S):	10004 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- s96 application value of precedent
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	03/03/2004
DATE OF JUDGMENT:	03/16/2004
LEGAL REPRESENTATIVES:	Mr A Pickles, barrister Mr M Staunton, solicitor

JUDGMENT:

-

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10004 of 2004

Roseth SC

16 March 2004

Applicant

v

Respondent

Judgment

The application

1 This is an appeal against the deemed refusal by Waverley Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 to amend development consent 156/01 by varying certain windows and adding a new roof terrace, plunge pool and privacy screen. The council has no objection to the variation of windows and the plunge pool. It objects to the new roof terrace and privacy screen.

2 The address of the property is 441 Bronte Road, Bronte. It is the eastern half of a semi-detached pair of dwellings that have been designed and are being constructed in unison. However, the s96 application for the roof terrace is only for the eastern half. The terrace is on a flat section of the roof. There is a similar flat roof on the western half of the pair, though there is no proposal for a roof terrace on it. An external flight of stairs leads to the roof terrace. The terrace has a planting bed around the trafficable part, so as to reduce overlooking. Planting is proposed to 1m high.

3 The Court heard the evidence of six objectors. Mr D Maxwell, who lives at 43 Gardyne Street to the rear of the site, is concerned about noise and erosion. Mr E Ellison, who lives at 435 Bronte Road to the west of the site, is concerned about overlooking, noise and the precedent effect of an approval for a roof terrace. In his opinion, roof terraces are out of character with the area. Mr M McKenzie, who lives at 437 Bronte Road to the west of the site, is concerned about overlooking, noise and precedent. Mr P Craig, who lives at 443 Bronte Road to the east of the site, is concerned about overlooking of bedrooms, bathroom and rear yard. Mrs S Bruns, who lives at 445 Bronte Road to the east of the site, is concerned about overlooking. Mr S Vesper, who lives at 447 Bronte Road, is concerned about overlooking of his rear yard and bedrooms as well as about noise.

4 The applicant’s planning expert was Mr P Sarlos, an architect planner, while the council’s was Mr P Anzelotti, a planner with the council. Their reports were tendered, though they were not required to give oral evidence. The major difference between them was that Mr Anzelotti considered the objectors’ concern about privacy valid, while Mr Sarlos thought that the extent of overlooking due to the roof terrace was a minor addition to the extent to which overlooking occurred already. Mr Anzelotti had an additional criticism, namely the appearance of the roof terrace to Gardyne Street. I do not think that this is a serious concern, as the roof terrace would be hidden from most of Gardyne Street by existing vegetation.

Planning principles

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.

7 The third principle relates to the extent to which an approval for this application would be used as a precedent in favour of approving other applications for roof terraces. The possibility that an approval may constitute a precedent has not been a factor in my decision. Other roof terraces would have different impacts from those of the current proposal.

Findings

8 Mr Pickles, the applicant’s counsel submitted that the noise emanating from this residence would be the same, whether or not there is a roof terrace. I do not accept that this is entirely correct. The addition of another location with potential for socialising and without walls and a roof to stop noise is likely to increase noise disturbance. However, I do not think that the potential for more noise is a sufficient reason to refuse the application.

9 It is a different matter with overlooking. Most (though not all) of the properties of the objectors would experience additional overlooking. The worst affected property is No 447, whose outdoor living area in the rear yard is within clear view from the proposed roof terrace. While there is some distance between the properties, when I stood in the relevant location during the site visit, I could see the rear yard of No 447 with complete clarity. In addition, two bedroom windows of No 447 can also be seen from the roof terrace.

10 In my opinion, the combination of overlooking and the added potential for noise disturbance makes the impact of the proposed roof terrace unacceptable. The approved and partially constructed building already appears higher and bulkier than its neighbours. The objectors perceive it as having considerable impact on them. It would not be reasonable to compound the approved impact by adding another disturbing element. The roof terrace is therefore excluded from the approved proposal.

11 During the hearing the applicant amended the application by adding an external screen to a landscaped area other than the roof terrace. The purpose was to reduce the overlooking on the western adjoining property. The council and the property’s owner, Mr Craig objected to the screen. In the circumstances there seems little purpose to the screen, so it is excluded from the approval.

Orders

1. The appeal is allowed in part.

2. The application under s96 of the Environmental Planning and Assessment Act 1979 to amend development consent 156/01 is given consent with the exclusion of the roof terrace and privacy screen and subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 2 and A.

_________________
Dr John Roseth
Senior Commissioner