Tovir Investments Pty Ltd v Waverley Council
[2011] NSWLEC 1165
•24 June 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Tovir Investments Pty Ltd v Waverley Council [2011] NSWLEC 1165 Hearing dates: 23 June 2011 Decision date: 24 June 2011 Jurisdiction: Class 1 Before: Morris C Decision: (1)The appeal is upheld in part.
(2)Development consent No DA-111/2010 which authorised alterations and additions to an existing dual occupancy including an attic storage room and a roof terrace above the existing garage at No 6 Kent Street, Waverley, is modified by:
(a)The deletion of conditions 2(c), (d), (f) and (g).
(b)The deletion of conditions 2(a), (b) and (h) and replacement of those conditions in accordance with those conditions agreed between the parties, in accordance with Annexure A.
(3)That part of the application, which seeks deletion of condition 2(e), is refused.
(4) The exhibits, other than exhibit A, B and C are returned.
Catchwords: CONSENT CONDITIONS - visual and acoustic privacy - amenity. Legislation Cited: Land and Environment Court Act 1979
Waverley Local Environmental Plan 1996Cases Cited: Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 Texts Cited: Waverley Development Control Plan 2006 Category: Principal judgment Parties: Tovir Investments Pty Ltd (Applicant)
Waverley Council (Respondent)Representation: Mr G Hartley (Applicant)
Ms C Morton (Respondent)
Gadens Lawyers
Sparke Helmore
File Number(s): 10327 of 2011
Judgment
This is a determination of proceedings pursuant to the provisions of s34AA(2)(b)(i) of the Land and Environment Court Act 1979 in relation to the conditions of consent imposed by Waverley Council (the council) to development consent No. DA-111/2010 (the consent) which authorised alterations and additions to an existing dual occupancy including an attic room and a roof terrace above the existing garage.
The site and its locality
Number 6 Kent Street Waverley (the site) is located on the northern side of the street and has a frontage of 15.39m, depth of 21.33m and site area of 328.2sq m. A two storey dual occupancy dwelling currently stands on the site and, from the evidence available, was erected some time prior to 1938. Each floor contains a separate dwelling.
Kent Street is a narrow street primarily comprising single dwelling houses of varying age and size, many of which are built close to the front property boundary. There are also a number of residential flat buildings in the vicinity of the site including one immediately to the east. Development to the north comprises a small mixed-use centre.
Background
The council issued the consent on 7 December 2010. The works approved involve the construction of a two storey addition to the north-eastern corner of the building to each dwelling for use as a kitchen, internal alterations including the provision of a second bathroom within each dwelling and removal of walls to provide larger rooms, provision of a ground level patio area off the new kitchen to the lower dwelling, Dwelling No 1, two Juliet balconies at the front of the upper dwelling, Dwelling No 2 and a second balcony off the proposed family room and new entry to that dwelling. The resultant development would comprise the existing garage; Dwelling 1- three bedrooms, living, dining, kitchen/laundry and two bathrooms and rear patio with access to the rear and side yard areas; Dwelling 2 - two bedrooms, living, dining, kitchen/laundry and family room, two small front balconies and the rear balcony.
Condition 2 of the consent required modification of the plans submitted prior to issue of a construction certificate. It reads:
2. General Modifications
The proposal shall be amended as follows:
(a) The attic level is not approved as the dwelling will be over FSR by 85sq m and the overlooking and impacts of this third level are unacceptable.
(b) Dwelling No 2 - The roof terrace over the garage is not approved and the roof is to be non-trafficable and there is to be no door or window access to the garage roof.
(c) Dwelling No 2 - Window 10 is to be fixed and the lower half frosted.
(d) The balcony off the kitchen and family room is to be reduced in size to a small Juliet balcony no more than 1m in depth, pulled in from the east.
(e) Window number 8 adjacent to the semi detached dwelling at 8 Kent Street is to be fixed and the lower half frosted.
(f) Dwelling No 1 - Window Number 4 adjacent to the residential flat building is to be fixed and the lower half frosted.
(g) The surface of the patio off the kitchen and laundry is to be made of soft fall sound absorbing material.
(h) The access stairs to Dwelling No 1 to have a translucent glass privacy screen to door height for the total extent of the access on the western boundary.
The applicant is seeking the deletion of these conditions.
The matter commenced on site as a conciliation conference and in the course of that conference, which resumed in Court, the parties agreed to amendments to conditions 2(a), 2(b) and 2(h). Therefore these issues were not pressed and it is agreed that it is appropriate to modify those conditions to reflect the agreement reached. No agreement was reached in relation to the remaining conditions and the conference was terminated and the matter proceeded to hearing the remaining contentions.
The issues
The matters that I must determine can be grouped into two categories:
(1) Window treatment
(2) Balcony and terrace treatment
Windows
Conditions 2(c), (e) and (f) require certain windows to be fixed with the lower half frosted. These are:
- Condition (c) W10, the proposed new kitchen window in the eastern elevation of Dwelling 2. This is an upper floor window, 1.8m wide and 1.2m high that would be setback 4.65m from the eastern side property boundary. It adjoins the proposed kitchen benches;
- Condition (e) W8, the proposed new window to replace the existing window in the western elevation of the living room to dwelling 2. It is setback approximately 1.2m from the western side property boundary and has dimensions of 1.4m x 1.2m, the same as the current window in this wall;
- Condition (f) W4, the proposed new kitchen window in the eastern elevation of Dwelling 1. This is identical in size to and is below W10;
Patios
Condition (d) requires the reduction in area of the proposed upper level balcony to Dwelling 2. The plans submitted provide for a balcony with dimensions of 3.24m x 2.1m and area of 6.804sq m. Compliance with condition (d) would reduce the size of the balcony to 1m x 2.1m or 2.1sq m.
Condition (g) relates to the materials used to construct the patio area at the rear of dwelling 1. That patio is located off the proposed new kitchen/laundry room and would be 4.63m from the eastern and 7.5m from the western side property boundaries.
The evidence
On site evidence was heard from a number of residents of Kent Street. It is clear from the verbal evidence provided to the Court and from a review of the written submissions made to the council in response to notification of the application that the site has a history of use as "backpackers accommodation". It is apparent from the evidence that this use has resulted in severe amenity impacts, particularly in relation to noise and anti-social behaviour. The council has obtained orders from this Court that prevent the use on the site as both a boarding house and as backpackers' accommodation.
The applicant is now seeking to upgrade the building so that it provides an improved external and internal amenity, which they say, will attract more appropriate tenants.
In addition to the general concerns regarding use, acoustic and visual privacy associated with the prior use, the evidence provided by the residents included concerns in relation to the matters of visual and acoustic privacy associated with the works proposed by this application. Specific concerns were raised by the owners of adjacent properties to the east and west of the site and a managing agent on behalf of the owner of an adjoining unit to the east.
The Court viewed the adjacent dwelling house to the west in the company of the owners and representatives of the parties. The owners provided background of the problems they had experienced due to the past use of the site, particularly in relation to noise impacts associated with the number of persons living at the premises, the congregation of people late at night utilising external areas of the site, noise emanating from the premises throughout the night, particularly through open windows and anti-social conduct.
They expressed a desire for solid fencing along the common boundary adjacent to the entry to dwelling 1, that entry corridor being adjacent to their entry and the retention of condition 2(e) to provide both visual and acoustic privacy to their upper level bedrooms and front deck area.
The owner of the western, lower level unit within the residential flat building to the immediate east of the site invited the Court and parties to inspect his premises. During the view he advised of his experiences in relation to the use of the garage roof by previous occupants of the premises, the noise disturbance associated with the use of the yard areas late at night and the general anti-social behaviour that he had experienced, particularly during the past year, which he described as the 'worst of his life'. He was seeking the provision of acoustic and vegetative screening of the proposed garage rooftop terrace in the event that this was to be approved. I note the parties have agreed to alternate works in relation to the roof terrace and accordingly, I do not intend to further consider that issue. He also sought retention of those conditions that applied to the window treatment of those windows which face his unit, W4 and W10 and the reduction in size of the upper level patio as proposed by condition 2(d).
The Court was assisted by expert town planning evidence provided by Mr Harding at the view. Mr Harding highlighted the setbacks available from all windows and the fact that W8 is an existing window. He also spoke of the need to provide natural light and ventilation to rooms within the dwellings.
The planning controls
The site is zoned Residential 2(a) pursuant to the provisions of Waverley Local Environmental Plan 1996 (the LEP). Clause 10(2) of the LEP states that the Council shall not consent to the carrying out of any development within a zone unless it is satisfied that the development meets one of more of the objectives of the zone. The objectives of the 2(a) zone are:
(a) to allow for housing only in the form of dwelling-houses and boarding houses,
(b) to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling-houses, and
(c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of low density housing.
Dual occupancies are permitted with consent in the 2(a) zone.
Waverley Development Control Plan 2006 (the DCP) applies and in particular the provisions of Part D Residential, clause 5.6, privacy and noise controls. The objectives of this clause are:
(a) Minimise the extent of overlooking from development to internal
areas and open spaces of other dwelling-house development;
(b) Ensure development minimises overlooking impacts upon the
existing dwelling from other buildings; and
(c) Ensure development minimises noise impacts to an acceptable
level.
These objectives are said to be achieved through compliance with strategies and controls included in a table to that clause. Strategies relevant to the application are to ensure that people in dwellings cannot easily look into other dwellings or the useable open space of other dwellings and that noise generation and loss of privacy arising from the use of terraces is minimised. Particular controls in relation to windows include the offsetting of windows in opposing dwellings or the use of translucent or obscured glass or windows with a sill height of 1500mm where this cannot be achieved.
With regard to decks, privacy screening, landscaping and vegetation is to be used in combination however landscaping is not be relied upon exclusively for screening. Elevated external decks are generally to be less than 10sq m and have a depth not greater than 1.5m so as to minimise privacy and noise impacts and noisy walking surfaces such as external metal decks should be avoided.
It is these controls on which the council relies to impose the conditions in dispute.
Conclusions and findings
My consideration of the matter is based on the fact that the consent authorises the use of the site as a dual occupancy and that those two dwellings will be legally used for the purposes of dwellings. Whilst I accept the concerns of residents that past use of the site is a suggestion that similar use may occur in the future, I cannot proceed on that basis. I note the making of Orders by this Court that prevent the use of the site for the purposes of backpackers' accommodation or a boarding house and therefore must assess this application on its merits.
Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 at [35-38] provides guidance on the weight to be given to existing illegal operations. His Honour states:
In undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. ... The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however that past use - without any consideration of its unlawfulness cannot ever be relevant. For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant.
Ms Morton, for the council, argues that the treatment of windows W4, S8 and W10 as detailed in condition 2 ensures compliance with the DCP provisions and that the reduction in size of the rear terrace and the requirement for the use of soft fall sound absorbing material for the lower terrace area is consistent with those requirements. She argues that the rooms have alternate windows and doors available to provide light and ventilation and in the case of the kitchen to Dwelling 2, two skylights provide further light source.
Mr Harding and Mr Hartley for the applicant consider the conditions are unreasonable in the circumstances of the case. They consider the 4.65m setback provided between the two kitchen windows, W10 and W4, the existing screen planting along the side boundary, the layout of benches and the use of the rooms as kitchens, which are not normally an area in which people congregate, provides adequate protection to ensure no adverse impacts arise to the units to the east in terms of visual and acoustic privacy. For this reason they say that conditions 2(c) and 2(f) should be deleted.
In this regard I prefer the submissions of Mr Hartley and do not consider it to be necessary that these two windows are fixed and frosted and that conditions 2(c) and (f) should be deleted.
In the case of W8, this is a smaller, west-facing window to the upper floor living area. The proposed Juliet balcony along the front, southern wall of this room approved by the consent includes a large opening enclosed with bi-fold doors. Based on the observation of the adjoining property to the west, the proximity of the two dwellings and the evidence of residents of that dwelling in relation to acoustics, I support the council's position that W8 should be fixed and frosted as detailed in condition 2(e).
Turning to the upper level balcony. It is located 4.65m from the eastern and 3.6m from the northern boundary. Existing landscaping along both boundaries provides a degree of screening to the adjoining properties. I note that the area of the balcony is less than that allowed by the DCP provisions however its depth exceeds the 1.5m maximum by 600mm.
Having regard to the objectives of the DCP, the setback of that balcony to the boundaries, the landscaping along those boundaries and observing similar decks approved by the council on adjoining sites closer to side boundaries, I am satisfied that there is no reason that the size of the deck should be reduced. Accordingly, it is appropriate to delete condition 2(d).
Finally, there is the issue of the materials to be used for the construction of the lower level patio. The applicant proposes that this area be constructed using concrete pavers. Whilst it was argued the costs of constructing the patio in accordance with the council's requirements would be prohibitive, I have no evidence that supports this claim. Mr Harding however stated that the proposed materials are appropriate and consistent with the DCP provisions. I note the patio is not proposed to be metal decking and having again considered the DCP objectives, I concur with Mr Harding that the requirements of condition 2(g) are unreasonable for a small patio located within the centre of the site. Accordingly, condition 2(g) should be deleted.
Orders
The Orders of the Court are:
1. The appeal is upheld in part.
2. Development consent No DA-111/2010 which authorised alterations and additions to an existing dual occupancy including an attic storage room and a roof terrace above the existing garage at No 6 Kent Street, Waverley, is modified by:
a. The deletion of conditions 2(c), (d), (f) and (g).
b. The deletion of conditions 2(a), (b) and (h) and replacement of those conditions in accordance with those conditions agreed between the parties, in accordance with Annexure A.
3. That part of the application, which seeks deletion of condition 2(e), is refused.
4. The exhibits, other than exhibit A, B and C are returned.
Sue Morris
Commissioner of the Court
Decision last updated: 28 June 2011
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