Tom Engel and Ann H Kocek v Blue Mountains City Council

[2003] NSWLEC 402

>

Land and Environment Court

of New South Wales

CITATION:

Tom Engel and Ann H Kocek v Blue Mountains City Council [2003] NSWLEC 402

PARTIES:

APPLICANT
Tom Engel and Ann H Kocek

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):

10590 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Refusal of s96 application to amend consent No. X/955/2000 for a twin geodesic domed house
exceedance of height limit
visual impact
privacy.

LEGISLATION CITED:

Blue Mountains Local Environmental Plan 1991
State Environmental Planning Policy No. 1
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

12/12/03

EX TEMPORE
JUDGMENT DATE :

12/12/2003

LEGAL REPRESENTATIVES:

APPLICANT
Ms M-L Taylor, solicitor
of Taylor Kelso

RESPONDENT
Mr A Seton, solicitor
of Marsdens

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10590 of 2003

Hoffman C

12 December 2003

Applicant

v

Respondent

Judgment

1. This was a class 1 appeal, No. 10590 of 2003 between T Englel, A Kocek and Blue Mountains City Council in regards to the refusal of the s 96 application to amend consent No. X/955/2000 for a twin geodesic domed house at Lot 29 DP1007065 being No. 37 Kingfisher Crescent, Bullaburra.

2. Council had approved the house on 30 August 2000 and had approved an amendment on 4 April 2003 with consent No. B/955/2000/C.

3. The conditions of that amendment consent required deletion of some proposed windows and other features. The respondent put that the amended consent was actually ultra vires as the applicant had not agreed to those changes and therefore the Court should consider this appeal as a s 96 to the original consent only.

4. The Court agrees with this submission under the precedent case put by the respondent, Bennelup v Lismore 1993 81 LGERA.

5. The subject proposal related to changes to the internal layout and position and shape of windows in the geodesic domes. Two domes were erected and the smaller one was habitable. The large one was at lockup stage in that the exterior was weatherproofed.

6. The applicant wanted to add a lantern roof light to the top of this dome to provide additional light and ventilation and to match a similar structure on the smaller dome.

7. The site was at the end of a cul-de-sac in a new subdivision. It was an irregular shape allotment with an area of 2219 square metres and a 23.5 metre frontage to Kingfisher Crescent.

8. Most allotments were built upon with one and two storey houses of conventional brick and tile design.

9. There was substantial objection by the neighbours to the s 96 amendment proposal whereas they had supported the original approval by council of the twin geodesic domed house.

10. The large dome was in about the centre of the site. The smaller dome was a little north set back about five metres from the boundary with No. 35 Kingfisher.

11. On the other side of the site was No. 46 Kingfisher Crescent. The subject land was slightly uphill of both properties. There were existing trees on the site in the front setback, and at the rear was a bushland reserve.

12. The domes sat in a flat area excavated for that purpose between the two sets of trees. There was a flat roofed link building connecting the two domes, and this would form the entry lobby, guest bathroom and laundry of the house.

13. The small dome had a games room and a bar currently used as a kitchen. There was also a study and a bathroom on the ground floor and upstairs a studio. The floor of the studio occupied about half the area of the dome on the opposite side to the link building, which meant it was on the same side as No. 35 Kingfisher.

14. The rest of the upper level was a void overlooking the games room.

15. The original approval had this upper floor on the opposite side of the dome near the link building and away from No. 35. There were windows on this upper floor, as built, that now overlook No. 35. Also the stairs to the upper level were built in a different position to the approval, such that at the top of the stairs one looked out of the large pentagonal window at No. 46.

16. In the main dome the proposed amendment placed a study and bedroom on the ground floor level in an area that had been part of a large living room.

17. The kitchen was redesigned but generally in the same position. A garage in the original proposal was deleted. Terraces and French doors were to be placed in two locations, one of which was where the garage had previously been.

18. The main changes were upstairs where the bedrooms that had originally looked towards No. 46 were relocated to the opposite side of the dome. There was now to be a living room facing towards No. 46 with a large octagonal window looking that way.

19. There was another large octagonal window to that upper living area generally looking towards the smaller dome, and past it towards Kingfisher Crescent, and perhaps the front yard of No. 35. This particular window was notated as PW3 on the plans in exhibit D. The other pentagonal window in the large dome was designated PW1 and the existing octagonal window was called PW2.

20. There were now also to be a No. of dormer windows at the upper level of the large dome. At the ground floor level, some trapezoidal windows fitted into the triangular modules of the dome framing. These were to replace rectangular windows in the original approval.

21. When the hearing first started it was found the drawings in exhibit C did not represent either the buildings as built in many respects, nor what was said orally to be the s 96 application.

22. The respondent did not oppose an adjournment to have accurate plans prepared. On resumption of the hearing these updated plans were in exhibit D. There were still some inaccuracies.

23. For example, the roofs over the terraces were not shown, but the applicant sought them as shown on the first application for amendment and in exhibit C. The western verandah roof was not shown and was sought as approved in the original consent with minor extensions as in the first application for amendment.

24. The proposed detached garage in the first amendment application was not intended to be part of the matter before the Court in this appeal.

25. Dormer windows W19, 21, 24 and 25 were not shown correctly in the way they would have to sit on the structure.

26. The respondent refrained from saying to the Court that it could not determine the matter on the basis of exhibit D, but did stress if approval was contemplated then a condition should have to be included that complete and accurate plans be submitted; and in view of the test case Bennelup, if the Court considers any of the amendments unacceptable, then the application must be refused as there was no power to determine other than what was applied for.

27. The issues were:

1. The addition of the cupola to the top of the large dome is unacceptable in that:
(i) it will increase the height of the building beyond the height restriction contained in cl 10.6 of the Blue Mountains Local Environmental Plan (1991) , the State Environmental Planning Policy No. 1 objection lodged in respect of the non-compliance that 10.6 is not fully founded,
(ii) it will have an adverse impact on the visual amenity in the locality and
(iii) it fails to maintain reasonable neighbour amenity and appropriate residential character by adopting a building height that is not compatible in scale with the adjacent development.

2. The proposed modification to the No. and location of windows in both domes is unacceptable in that:
(i) they will have an adverse impact on the amenity of the adjoining development in terms of light spillage, glare and loss of privacy,
(ii) they are not compatible with maintaining the residential character of the neighbourhood.

28. The Court heard the respondent’s evidence from:

• Ms K Knight, objector and resident of 33 Kingfisher Crescent,
• Mrs J Gill, objector and resident of 42-44 Kingfisher Crescent,
• Mrs J Egan, objector and resident of 35 Kingfisher Crescent and
• Mr J J Sargent, objector and resident of 46 Kingfisher Crescent.

29. The applicant’s evidence was heard from:

• Mr R P Marjinac, builder and designer,
• Mr K Berzins, town planner and
• there were night time photographs taken of the house in exhibit B by Mr Charles Fulsham of 316 New South Head Road, Double Bay, but he was not required for cross-examination.

30. None of the neighbours objected to the dormer windows in the proposal. They thought they would bring some architectural features that could make the domes more attractive. The main objections were to the internal reorientation of rooms and the change in windows and potential overlooking they created.

31. They all said the original internal layout was better for them, as the large octagonal windows in it looked away from the neighbours. They all disliked the proposed lantern skylight on top of the main dome as it would raise the height of the building above the 8 metre limit under the council statutes and controls, and add to the visual bulk of the building.

32. It was thought the lantern cupola would take the structure above the treeline of the bush behind as seen from the street, and that would make it unacceptably prominent.

33. They were also concerned about the change in the external cladding, but it was shown that it had arisen from council’s concern about the bushfire prone nature of the area and the hazard of the original shingles proposed as cladding.

34. Mrs Knight lived two doors from the proposal on the northern side, and had additional concerns that window PW3 on exhibit D would allow viewing down into her yard and FG1 allowed overlooking that was not in the original consent. She did not like the shape of the windows W1, 2, 3, 4 or 5 on the ground level of the big dome. The trapezoidal shapes were unattractive in her opinion.

35. Mrs Knight agreed in cross-examination that it was only her front yard that could be seen from the dome house and her front yard was already overlooked by the neighbours uphill, namely the Egans, who had an outdoor table setting adjacent, and, the front yard was also obviously overlooked directly from the street.

36. She said she had seen people looking at her in her front yard from the window FG1 in exhibit D and it was a strange shape that would be difficult to put blinds on. She agreed that window PW3 was not such a big problem as it was further away and people on the inside could only look through it across a void space at the first floor level of the large dome, above the ground floor living room. Persons would therefore be some distance back from the window.

37. Mrs Gill lived two doors away from the dome house on the eastern side and was concerned about shoddy construction of the house, as she saw it. She said the main dome was already too big and the lantern cupola would only add to that. She said that in her opinion the ventilating louvres proposed in it would be a bushfire risk as they could not be sealed shut. The relocated windows necessitated by the change of the internal layout would affect her privacy.

38. In particular windows PW1 and PW2 in exhibit D were her concerns. The first was a large pentagonal window proposed in the big dome and the second was the existing pentagonal window in the little dome. Mrs Gill was concerned that No. 37 could look into her en suite, her front yard and master bedroom windows.

39. The trapezoidal and triangular windows W3, 4, 5 and 10 she thought should be returned to the rectangular shape originally approved in order to look more like other houses in the street.

40. It was put to Mrs Gill there were fifty to sixty metres separation between the windows she was concerned about, and her house and her en suite had frosted glass windows and a heavy gauze mesh required for bushfire ember attack.

41. She replied that she had seen persons looking at her in the en suite when the window was open for ventilation. It was put to her the next door neighbour’s house at No. 46 was only about ten metres away and uphill two or three metres and had a window facing down towards her en suite. It would be a much greater concern for privacy. Mrs Gill said No. 46 kept the curtains shut on that window.

42. The master bedroom of Mrs Gill faced the front yard and street. Mrs Gill said she had to keep the curtains shut because of No. 37. She would prefer, when having her breakfast in bed on Sundays, to be able to open the curtains.

43. Mrs Egan was next door to the dome house on the downhill northern side. She said her own house was about fifteen metres from the closest part of the building to the side boundary. The large dome was about nineteen metres in from the same side boundary, giving about thirty-four metres between buildings. The small dome was about five metres from the same side boundary giving about twenty metres between buildings.

44. She had objected to the detached garage that had been deleted from the application, so it was no longer a concern. She also objected to the No., size and shape of windows, but in particular PW2 and FG1. FG1 enabled direct overlooking into her front and side yard and across it to her house.

45. In the original consent there had been a two storey void space at that point of the small dome. Now there was a studio at the first floor level. W11 and W12 to the office on the ground floor in exhibit D also looked directly across from the small dome at the ground floor level. They were triangular in shape and looked like eyes she said. When lit at night they scared her young children. The original consent had rectangular windows in different locations. These windows did not comply with the bushfire code and there was no external mesh. She thought they should be returned to be rectangular windows.

46. In regard to PW3, a large pentagonal window in the big dome, she thought the small dome between it and her home would prevent overlooking. However, she had a general objection to the way these large windows had been moved down in the structure to become picture windows, when in the original consent they had been higher up in the dome, more or less as skylights. They were so large she thought they could not have curtains placed in them because of their size and shape. Therefore they would give clear views from inside to outside by day, and outside to inside by night.

47. She made the observation that the exhibit D plans did not show the awnings or verandah said to be wanted in the s 96 application as shown in exhibit C. But the exhibit C plans were inaccurate having eighteen panels around the circumference of the big dome at the floor level when there were only fifteen panels in exhibit D.

48. She noted the remaining inaccuracies in exhibit D on the detailed location and orientation of the dormer windows. However she did like the dormer windows.

49. The lantern cupola she thought would be ugly and a bushfire risk for ember attack. She accepted that the change of the exterior finish to a coated cement render was to reduce bushfire risk as requested by the council.

50. She also accepted that the dome house was still under construction and the quality of workmanship may be acceptable upon completion, and curtains of some kind, and mesh screens could be installed on the windows.

51. She agreed, her yard, upon which she sought to have no overlooking, was already overlooked by two other neighbours uphill and from the street and from No. 46 across the cul-de-sac. She agreed the outdoor table setting adjoining the Knights was also in full public view. It was put to her that by measurement it was actually twenty-three metres from the nearest part of the small dome to the nearest part of her home. She was not sure of the distance.

52. Mr Sargent was next door to the dome house on the east side downhill. His house was two storey with the garage closest to the common boundary on the ground floor and a second bedroom above it. But the small dome was more or less across the cul-de-sac from his house, so the windows of his master bedroom and living room that also faced the street, looked that way. PW2, the pentagonal window in the small dome looked back across the cul-de-sac and he had seen people looking at him from there.

53. He said he supported the original development application, but totally withdrew that support now. He thought the dormers may be acceptable, but he was not aware which rooms, W24, 25 and 26 were into.

54. PW1, the pentagonal window in the big dome was his particular concern as it was now oriented towards the side of his house and rear yard, where in the original consent it faced the bush. He felt it looked towards his rear kitchen and family room and back yard.

55. The trees on No. 37 were tall, so only tree trunks stood as possible screen vegetation. He said he would lose his privacy.

56. In his original application for his own house at No. 46 he had moved windows to accommodate neighbours’ concerns and had to lower his ceilings and roof to meet the height limit. He felt there was no reason to grant a height exceedance.

57. His wife was semi-invalid from time to time and needed bed rest. It was pleasant to be able to open the curtains of the master bedroom during those periods. With the dome house as existing and proposed that was not practical as his bed was in view of pentagonal window PW2 and probably the new PW1.

58. It was put to Mr Sargent in cross-examination that from anywhere a person stood on No. 37, except behind the dome house, there were views over his house and land. He agreed. And it was put, he could see the front and side yard of the Egans across the cul-de-sac. He agreed to this.

59. It was put to him that Mrs Gill in her back yard and from her rear windows could see most of Mr Sargent’s back yard and house including the dining room windows at quite close quarters. He agreed with this. He agreed the north window of his dining room faced the Gills’ en suite and house and back yard, but he and his wife kept curtains on that window. Nevertheless he agree he enjoyed northern sun through that window.

60. He agreed the closest corner of his house, the garage, was 5.3 metres from the common boundary with the Engels. He did not know the distances of his house from the dome house.

61. According to the site plans in evidence the separation between his house and the small dome across the cul-de-sac by measurement was about twenty-eight metres and to the big dome across the two allotments about thirty metres.

62. Mr Marjinac explained how the dormer windows would be installed. In order to get an even spacing around the dome and to orient them at ninety degrees to radius of the dome they would have to have different offsets on the side spandrels. He had checked this with his structural engineer. The dormer roofs and spandrel framing would form part of the structural members.

63. He had never built geodesic domes before. He had obtained his building certificate in 1981 and progressively became a foreman and then a builder. His structural engineer was Peter Andreasson on Kneebone Beretta Pty Limited who Mr Marjinac said specialised in geodesics.

64. He agreed the exhibit D drawings were not computer generated, and he had them hand drawn, and there were some inaccuracies.

65. He agreed he was not the builder for Messrs Engel and Kocek, he was only the designer.

66. Mr Berzins was a qualified town planner with a master’s degree in environmental planning and twenty-five years’ experience. He said the total height of the large dome with the lantern cupola would be 8.56 metres and that could be set as a condition. He said the bushfire requirements for the house were included in the council’s conditions, No.s 19 and 20, but had not been installed yet as the building was still under construction.

67. In his professional opinion the separation distance to the Gill house from the dome house was about fifty to sixty metres between the windows. The normally accepted separation distance under the Amcord standard for a reasonable suburban privacy was nine metres. The separation distance to the Gills was about 6 times the standard. Also the master bedroom of the Gills faced the front yard, and the front yard faced the street, and had only the normal front setback distance. Any real privacy concerns would be generated from the proximity of persons on the street.

68. In regard to the shape of windows W11 and W12 facing the Egans, he thought the perception of them as “eyes” was a matter of personal opinion. He thought the shape of the windows was suitable given the unusual structure of the geodesic dome and its triangular panels.

69. In regard to window FG1 at the first floor level, he said any two storey house on the subject lot could have windows facing in a similar direction to get the sun. The Egans’ front and side yard was already overlooked from the street by the Sargents’ and two other neighbours uphill. The separation distance to the Egan house by measurement was about twenty-three metres. So the window to window separation for reasonable suburban privacy was two-and-a-half times the Amcord standard.

70. In addition, the Egan house, because of the splay around the cul-de-sac was not set parallel to the common boundary with the subject property. It splayed away as the house went towards the rear and therefore the separation distance would be greater towards the back.

71. He could not agree there was unacceptable privacy loss for the Egans. When pressed he agreed that FG1 could have both fixed panels in frosted glass. They did not open and they were only there for good north light he said.

72. The applicant also volunteered that screen vegetation could be added to the landscape condition to reduce the visibility of W11 and W12 from the Egans.

73. It was put to him the lantern cupola to the large dome was unnecessary for extra light because PW1 and PW3 provided ample light. Ventilation that might be achieved through the lantern cupola could be achieved otherwise.

74. In regard to the State Environmental Planning Police No. 1 objection to the height limit he said the Local Environmental Plan did not state objectives for the standard. In his experience with the Blue Mountains Local Environmental Plan 1991, the height limit had the purposes of preventing large, bulky buildings, preventing unreasonable overshadowing, retaining reasonable privacy and to control streetscape impacts.

75. He said the only matters which applied to the lantern were bulk and streetscape. He had walked Kingfisher Crescent and said the visual impact of the twin domed house had been accepted by council at the time of approving it. That was the principle streetscape impact of the existing building. The lantern would add less than eight per cent to the height and was a fairly small structure on top of the large dome.

76. From in front of Mrs Knight’s house the lantern would not be above the canopy of the trees behind the house. The domed house did not come into view in the street until one came around the corner at the knight house about sixty metres from the site. Being a cul-de-sac the house could only be seen from one direction in the street. From both the streetscape and the bulk, the lantern would create minimal and acceptable change.

77. It had the advantage of making the small and the large dome consistent in their architectural treatment and provided good, natural ventilation. It would not create any precedent as any height exceedance must be assessed separately on any different application. It was unreasonable to require compliance in this case as there was no adverse affect on the objectives of the Environmental Planning and Assessment Act or the relevant considerations under s 79C or the council’s Local Environmental Plan.

78. When questioned about the original approval he said the site plan in folio 37 of exhibit 1 applied and the proposed driveway was intended to remain as part of the consent although the garage was deleted.

79. He referred to the night time photos of the small dome, exhibit B and said they showed that from the street one looked up through PW2 and only saw the timber domed ceiling above the void to the ground floor games room.

80. Mr Fulsham’s evidence was not cross-examined, that the street light out at the front of the subject property created much more light than came from the house, and the night time appearance was reasonable given the dome and window construction.

81. Mr Berzins agreed that the draft conditions in folio 106 and 107 of exhibit 1 needed to be updated. Some of those, condition 1, needed to be updated to refer to the drawings in exhibit D; and exhibit 1 folio 37, condition 11 needed to be upgraded to refer to the maximum height of 8.56 metres.

82. In submissions the applicant pointed out that in the first application for amendment, the council had approved it, even though it was now held as ultra vires. The same revised interior layout was presented then as in exhibit D. The revised window placements in the subject application for amendment came from that interior layout.

83. Overall the Court has concluded that although there has been much angst amongst the neighbours and the applicants for reasons that the Court need not go into, the facts upon which the Court must decide this appeal are whether or not the changes the applicant seeks are reasonable based on the Environmental Planning and Assessment Act, State Environmental Planning Policy No. 1 and the Blue Mountains Local Environmental Plan 1991.

84. Given the considerable separation distances between the dome house and its neighbours and the current lack of privacy amongst all the neighbouring houses that are much closer to each other than to the domed house, one finds it difficult to justify reasons why the dome house is such a threat to privacy.

85. Separation distances alone, except perhaps for overlooking of the yard of Mrs Egan’s from FG1 and W11 and W12 are more than sufficient.

86. It is perhaps antagonism between the neighbours that has given cause to the concerns more than anything else.

87. The Court believes that the screened vegetation of advanced dense plantings should occur on the subject land on the northern boundary to screen W11 and W12 from the Egans and that FG1 both panes shall remain fixed and be in obscured or frosted glass.

88. In respect of the Sargents, the Court is of the opinion that screen planting along the eastern boundary should also occur, to generate as quickly as possible, a visual buffer between the properties.

89. Mr Berzins’ expert evidence was the only expert on planning matters and his evidence must carry significant weight. His State Environmental Planning Policy No. 1 objection is proven worthy of support due to the reasons he gave. The revised window locations other than those referred to, being FG1 and W11 and W12, are in positions that any two storey house, set back as far from its neighbours as the proposal, would have a reasonable expectation of approval.

90. The shapes of the windows although unusual, do fit in with the structure and triangular panels of this most unusual domed house that the council has already approved.

91. The Court agrees with Mr Berzins’ opinion that they suit the design of the house better than the original small rectangular windows.

92. The s 96 application should be approved.

93. The conditions of the original consent in exhibit 1, folios 31-36 should be amended generally as set out in the draft conditions on folios 106 and 107, but altered as referred to herein, including that accurate drawings be provided to council within sixty days hereof and before any further works are undertaken.

94. The update of the drawings should include the correct positioning and dimensions of all structural panels and windows, the updating of the site plan to show the driveway as on folio 106, and the deletion of the garage, and the inclusion of the awning roofs to the terraces and the western verandah to suit exhibit D drawings but having no further extent than shown on exhibit C.

95. Therefore the orders of the Court are:

1. The appeal is upheld.
2. The s96 application is granted to amend Consent No. X00/0995 2000 issued by Blue Mountains City Council on 30 August 2000 for a house on No. 37 Kingfisher Crescent, Bullaburra. The amendments to the plan shall be as contained in exhibit D drawings Nos. 618/1, 2, 3 and 4 dated September 2003 by Marjanac Project Management, all as amended by and in accordance with the conditions in Annexure “A”.
3. The exhibits be returned to the parties except exhibits, 1, 3, A, B, C, D, E and F.

___________

Commissioner of the Court

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