Szann v Council of the City of Sydney

[2012] NSWLEC 1168

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Szann v Council of the City of Sydney [2012] NSWLEC 1168

Hearing dates:

18 June 2012

Decision date:

21 June 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is dismissed.

2. The application to modify conditions 2(b)(i), 2(b)(iii) and 2(d) of development consent D/2011/ 574/A is refused.

3. The exhibits, other than 2 and A, are returned.

Catchwords:

DEVELOPMENT CONSENT: appeal against condition imposed on development consent to delete two security cameras and to require the approved cameras to be the fixed lens type cameras.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Mr Aleksander Szann and Mrs Lesley Szann (Applicants)
Council of the City of Sydney (Respondent)

Representation:

Mr Aleksander Szann and Mrs Lesley Szann (Litigants in Person) (Applicants)
Mr Alex Singh (Solicitor) (Respondent)
Solicitors
Council of the City of Sydney (Respondent)

File Number(s):

10350 of 2012

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against a conditions of consent, 2(b)(i) and (iii) and 2(d), of Development Consent no D/2011/574, granted by the Council of the City of Sydney (the Council), requiring the deletion of two security cameras of a total of six cameras and for the approved cameras to be the fixed lens type cameras.

1. The appeal was subject to mandatory conciliation on 18 June 2012 in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. Soon after the commencement of the conciliation conference, the parties advised that there was no prospect of an agreement being reached and so the conciliation conference was terminated and a hearing held forthwith pursuant to s 34AA(2)(b).

1. The development consent is for the installation of four security cameras, planter screens in the rear courtyard, modifications to the northern boundary fence and alterations and maintenance works to the terrace house at 522 Bourke Street, Surry Hills (the site). Two of the four security cameras approved are located under the front balcony facing towards Bourke Street and two are located on the rear boundary wall, which has a roller door opening, facing towards Olivia Lane.

1. The development consent did not approve the following cameras, identified by condition 2(b) of the development consent:

(i)The existing camera located on the third storey of the rear wall and the proposed new location slightly to the south.

(ii)The existing camera located under the front balcony facing south (Bourke Street).

(iii)The proposed camera located on the centre of the rear roller door facing the rear yard.

1. Condition 2(d) states:

Details of the approved cameras, their precise location and field of vision shall be submitted and be approved by Council prior to their installation. The type of camera to be used and their positioning shall be such as to minimise the view of the public domain and adjacent properties. The cameras shall be of a fixed lens type (ie no zoom or ability to pan from side to side/up/down).

Issues and the proposal

1. The applicant seeks to have conditions 2(b)(i) and 2(b)(iii) deleted and condition 2(d) amended to delete the last sentence, 'the cameras shall be of a fixed lens type (ie no zoom or ability to pan from side to side/up/down)' in order to install a dome style camera on the third floor rear wall of the terrace and above the roller door facing the rear yard and to allow the approved cameras to be the dome style of camera (the proposal).

1. The Council contends that the proposed camera on the third floor rear wall of the terrace will have a detrimental impact on the heritage significance of the terrace house; and that the proposed camera fixed to the wall on the rear boundary, above the roller door and facing the rear yard, together with the rear wall camera, will have a detrimental impact on the neighbour's privacy and amenity.

1. The Council further contends that the dome style of the cameras proposed, with the ability to pan from side to side and up and down and to zoom, is not appropriate, due to the perception it gives neighbours of being remotely surveiled and the consequent amenity impacts on privacy.

The site and its context

1. No. 522 Bourke Street is located on the eastern side of Bourke Street, between Nobbs and Arthur Streets. The property backs onto Olivia Lane.

1. The site contains a Victorian terrace house consisting of four floors, with a basement level (first floor) at the rear courtyard level, the entry level from Bourke Street (second floor) and two upper levels, the third and fourth floors. The rear wing of the terrace house is located on the southern side of the site and is three storeys high.

1. No. 524 Bourke Street is to the south of the site and also contains a four storey terrace house with a three storey rear wing.

1. The area consists of a dense pattern of development, with terrace houses, houses, former warehouses and commercial premises.

Planning framework

1. The Council contends that the installation of security cameras is development that is permissible with consent; as security cameras are not addressed by the provisions of the State Environmental Planning Policy(Exempt and Complying Development Codes) 2008, nor by clause 10A of the South Sydney Local Environment Plan 1998 (LEP 1998), 'What is exempt and complying development'.

1. The site forms part of a heritage item, 'four storey Victorian Terrace House Group', 520-534 Bourke Street, Surry Hills included in Schedule 2 Heritage Items of LEP 1998.

1. The principal objectives of LEP 1998, at clause 7, include:

(b) to enhance the quality of life and well being of the local community.

1. The heritage aims of LEP 1998, at clause 22, include:

(e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting.

1. The amenity objectives of the South Sydney Development Control Plan 1997 (DCP 1997) includes, at Part E, clause 4.1:

To ensure that development minimises noise and overlooking to adjacent development.

1. The security and design objectives of DCP 1997 includes, at Part F, clause 1.3:

That a balance between surveillance, safety, security, acoustic and visual privacy, building appearance and other environmental criteria is achieved.

1. The City of Sydney Heritage Development Control Plan 2006 (DCP 2006) includes, at 3.1 Objectives, that the objectives of the provisions are to ensure that development to heritage items does the following:

(v) maintains the setting of the heritage item including the relationship between the item and its surroundings.

(vi) encourages the removal of inappropriate alterations and additions and the reinstatement of significant missing details and building elements.

Evidence

1. The Court, in the company of the parties, heard from the two occupants at 524 Bourke Street and viewed the site from the rear courtyard of 524 Bourke Street.

1. There is an existing dome style camera mounted on the third floor rear wall of the terrace house, without development consent. It is mounted projecting out from an opening in the wall, which is intended to be used for an exhaust fan. The existing dome style camera is a half sphere, with the flat surface facing upwards, so that the camera appears to have 360 degree view in the horizontal plane and a 180 degree view in the vertical plane. It is not possible to detect, by looking at the apparatus, which direction the camera view is recording. The proposed camera will be located to the south of the existing camera, closer to the shared boundary with 524 Bourke Street.

1. The neighbours at 524 Bourke Street object to the proposal on the basis that it will compromise their privacy and therefore their amenity, in their rear courtyard. The existing dome style camera lens is clearly visible from their rear deck and courtyard and is located on the rear wall of 522 Bourke Street, in close proximity shared boundary. The objecting neighbours state that the proposed dome style camera on the rear boundary wall facing the courtyard will allow the applicant to remotely view their rear elevation, including windows, doors and deck.

1. No expert evidence was provided.

Submissions

1. The applicant submits that the cameras are necessary for their defence, in order to document anti-social behaviour and intruders and that the view from the existing camera located on the third floor rear wall is limited to their own rear courtyard and shared boundary with 524 Bourke Street. The cameras are mounted in pairs so as to monitor any tampering of the opposite camera. The applicant is willing to have 'privacy masks' settings on the dome style cameras, which enable the masking of unwanted zones, such as the rear courtyard of 524 Bourke Street.

1. The applicant submits that the development consent granted to 524 Bourke Street for alterations and additions, includes a rear dormer window and the neighbour will be able to overlook the applicant's property, including his bathroom skylights from the rear dormer. The applicant submits that the windows, doors and rear decks of the terrace row permit overlooking of neighbours' properties.

1. The applicant tendered a letter (Exhibit D), dated 14/12/10, from the resident of 530 Bourke Street, informing their neighbours of a break-in and theft on the morning of 14/12/10.

1. The Council submits that their contention regarding the impact of the camera on the heritage significance of the heritage item is a minor concern and that the impact of the camera on the privacy and amenity of neighbours is their primary concern.

1. The Council submits that overlooking from windows or decks can be ameliorated by conditions requiring screening and furthermore, someone standing at a window or on a deck is visible and therefore the neighbour would be aware of their presence. In contrast, a dome style camera has a greater impact on privacy and amenity, as it can zoom and refocus and the neighbour may not realise they are being remotely observed and recorded.

1. The Council submits that a fixed lens style camera located on the ground floor rear elevation, with its view of neighbouring properties obscured by the boundary fences, would be acceptable. The applicant's response is that the camera must be at the third level in order to adequately view the shared boundary with no. 524 Bourke Street.

Findings

Heritage impact

1. I am satisfied that the camera, mounted on the rear elevation of the terrace house, at the third level, will have no impact on the identified heritage significance of the heritage item, being the terrace row, 520-534 Bourke Street. The camera is a similar size to an external light fitting or an external siren of an alarm system, both contemporary fittings common on external facades of dwellings, including heritage items.

Privacy and amenity impact

1. The two positions of the proposed dome style cameras, on the third floor wall of the rear wing and on the rear boundary wall above the roller door and facing the courtyard, will have the potential to record the private courtyards and rear elevations of neighbours' properties.

1. The presence of the dome camera, high on the rear elevation immediately adjacent to the shared boundary, is a menacing panoptic mechanism, positioned to give the neighbours the impression of being constantly observed in their own, private rear courtyard. Any camera, where the lens is visible from an adjoining property or the public domain, gives the perception that you are under surveillance, regardless of whether 'privacy masks' are enabled to veil unwanted zones, because you cannot see whether a privacy mask is enabled by looking at the camera. The barrel camera body of the fixed lens camera provides an assurance than when you are not in front of the cone view of the lens, you are not under surveillance.

1. I accept that it is possible to overlook the neighbours' rear courtyards from rear window and decks in the terrace row, due to the density and form of the development. There is a difference, however, between being able to observe neighbours from a rear window or deck, where the observer is present and visible and the constant presence of a dome camera, with the ability to zoom, focus, record and remotely surveil.

1. The imposition of privacy masks on a dome camera system by condition would be impossible to enforce, as the privacy mask can be removed at any time. The Council has imposed condition 2(d), requiring that the four approved cameras are a fixed type lens, to ensure that they are physically restricted to surveillance of the site and public domain immediately adjacent to the site.

1. I agree with Council's position, that a fixed lens camera, positioned on the rear elevation at ground floor level, at a height that the lens is not visible from both of the neighbours' properties, would provide adequate surveillance of the rear courtyard.

Conclusion

1. I am satisfied that the proposed cameras, on the third level rear elevation and on the rear wall above the roller shutter facing the courtyard, would have a detrimental impact on the neighbours' privacy and amenity. For the above reasons, the appeal is dismissed.

Orders

1. The orders of the Court are:

1.   The appeal is dismissed.

2.   The application to modify conditions 2(b)(i), 2(b)(iii) and 2(d) of development consent D/2011/ 574/A is refused.

3.   The exhibits, other than exhibits 1 and A are returned.

Susan O'Neill

Commissioner of the Court

Amendments

22 June 2012 - typo - the words "both of" added

Amended paragraphs: 35

Decision last updated: 22 June 2012