Turner v Camden C
[2006] NSWLEC 560
•11/08/2006
Land and Environment Court
of New South Wales
CITATION: Turner v Camden C [2006] NSWLEC 560 PARTIES: APPLICANT
RESPONDENT
Maryann Turner
Camden CouncilFILE NUMBER(S): 10210 of 2006 CORAM: Murrell C KEY ISSUES: Appeal :- s 96 modification application, privacy and overlooking, adjoining properties, drainage. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Development Control Plan No. 58CASES CITED: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 DATES OF HEARING: 08/08/2006 and 11/08/2006 EX TEMPORE JUDGMENT DATE: 08/11/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Tomasetti, barristerRESPONDENT
Mr A. J. J. Thompson, barrister
Instructed by
Ritchie and Castellan
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
11 August 2006
JUDGMENT10210 of 2006 Maryann Turner v Camden Council
This determination was given extemporaneously
and it has been edited prior to publication
1 This is an extempore judgment for the matter that has come before me to modify a consent issued by the council. The appeal is under s 96(6) of the Environmental Planning and Assessment Act (the Act) against Camden Council’s partial refusal of an application to modify a consent issued by the council in April 2004.
2 The history of the matter is that there was a dwelling house was approved on the subject site known as 26 River Road, Elderslie, and it transpired that the building was erected some 460 mm above the approved level. As such, a stop work notice was issued and the applicant submitted a s 96 modification application containing a number of matters.
3 The council approved various amendments however, it did not approve of matters that are currently the subject of this appeal, in particular, that relate to conditions 9 and 10. Condition 9 requires the western boundary fence to be erected on a 460 mm masonry base with a 1.8 m fence above, to protect the privacy of adjoining properties to the west. Condition 10 imposed by the council is the requirement to reduce the floor to ceiling height of the upper floor to 2.4 m, whereas the proposal provides for a 2.7 m floor to ceiling height.
4 The Court met on site initially some months ago and heard the evidence of the experts and also the resident objectors. As a 96 application it could not be considered as an on-site hearing and the council did not give delegation for a binding s 34 conference. As such, the Court then proceeded to have a second site inspection because of matters that were discussed at the first site view and then proceeded to Campbelltown Court this week to complete the hearing.
5 The parties had the benefit of provided experts in respect of their cases. For the respondent, Mr Cary McIntyre, who is the development manager at Camden Council, provided evidence for the council in the capacity of an engineer and a town planner. For the applicant Mr Laurie Winacott, town planner, Mr Turner, engineer, Mrs Turner, landscape architect all provided evidence to the Court, as did Mr King on solar access. The council’s landscape officer also provided evidence to the Court.
6 Following the first meeting on site, a number of amendments were undertaken. In response to the Court giving some preliminary views on-site relating to what the ground levels and the levels of the deck are and the relationship with adjoining properties. The amended plans now before the Court show the finished ground level of the backyard area to be re-contoured to be significantly lower than what the ground level is at the present time, bearing in mind that the house is currently under construction.
7 In considering the evidence the Court has had regard to the cumulative impacts, it is not just the additional impacts of the proposed amendments that must be taken into consideration in an assessment of a s 96 application. The respondent does not dispute that a s 96 modification can be retrospective and the authority for this is Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, a judgment of his Honour Talbot J in this Court.
8 Section 96 is facultative and provides for amendments to development applications approved. These proceedings are to look at the merits of the s 96 applications as opposed to punitive proceedings. The Court, at the end of the day, must be satisfied that the impacts of the proposed development are reasonable in terms of an assessment under s79C of the Act.
9 Development Control Plan No. 58 contains a number of provisions with respect to the height of proposed residential dwellings within the residential zone and at page 52 provides for a height limit to dwellings. It is noted that the height limit is “the maximum height at any point which shall be measured from natural ground level to the ceiling of the top most storey and the ridge of the roof. This height shall not be more than 7 m to the ceiling of the top most storey, or 9.5 m to the roof ridge line and the height shall not exceed two floors.”
10 In determining whether to grant consent to a two-storey development, council will have regard to the likely impact of the proposed development on access to sunlight for adjoining dwellings and their private open space areas; access to sunlight for private courtyard areas and the privacy of adjoining residents. In terms of the development control guidelines the subject development is within the guidelines in terms of the height this does not necessarily mean that there is an automatic approval if it falls within the guidelines and each application must be assessed on its merits.
11 The proposal is 6.7 m to the ceiling and the overall development is some 8.2 m as proposed in the modification application. As I stated, the council is of the opinion that the dwelling be reduced by some 300 mm; that is the upper floor ceiling reduced from 2.7 to 2.4 m.
12 In my assessment the central issue in these proceedings is to ensure that the privacy of adjoining properties is maintained and the amenity of the adjoining properties is not unreasonably impacted. While the DCP contains a number of provisions with respect to maintaining or providing high residential amenity and pleasant living environments, my assessment of the application to modify the consent falls under s79C of the Act.
13 Mr McIntyre is of the opinion that the proposed development should not be allowed to proceed in terms of the upper most height and that it should be reduced by some 300 mm. In his initial statement to the Court he said “this is to ensure that it is no higher than the approved development.” Similarly, he stated in one of his earlier statements to the Court that “the 460 mm wall with the 1.8 m timber fence would offset the difference between the as constructed floor level and the approved floor level.”
14 However, the role of the Court is to assess the merits of the modification application and what the impacts are on the adjoining properties and not what was approved as the benchmark. The second site inspection was most instructive because it allowed the Court and the parties to understand the relationship of the finished rear deck level with the proposed re-contouring of the backyard area and the relationship with the adjoining properties.
15 Mr McIntyre considers that a masonry fence is no longer required for the common boundary with No. 28 River Road. However, he is of the opinion that the masonry base of 460 mm and the 1.8 m fence is required on the common boundary with the property known as 2 Feld Avenue.
16 The Court, in its overall assessment, has had regard to the objections that have been received in respect of the s 96 application. Mr O’Brien from No. 28 River Road provided evidence to the Court on both occasions and Mr Richard-Evans of No. 4 Hynes Place provided evidence to the Court on the first site inspection. Mr Richard-Evans is concerned about the height of the finished yard level and has privacy concerns relating to the relationship between the different levels of his backyard and the subject lot. He also expressed concern about water or run off from the subject site to his property.
17 The Court, also on the view, could understand the relationship between the subject site and No. 6 Hynes Place where currently there is a relatively low back fence erected between those properties and the applicant has stated that there is no objection with respect to that fence remaining. For the fence for any future landowners of No. 6 and for the subject site, this is a matter for the future in terms of whether a higher fence is required as a rear boundary dividing fence. The Court was advised the current owner is satisfied and raised no objection.
18 With respect to the application, when adjoining owners were initially advised, it is noted that the owners of No. 2 Feld Avenue objected to the proposed s 96 application on the basis of: the increase in the ground floor height by some 465 mm; the proposed increase of height of the rear facing balconies and the level of the rear yard; and the deletion of the retaining wall and drainage system along the boundary.
19 By way of background, the original development application when it was submitted to the council provided for a tennis court in the rear yard with a retaining wall and a fence constructed on top of that retaining wall. Prior to council approving the development application, the tennis court was deleted from the application but not the retaining wall. The plans approved by council showed a retaining wall on the western boundary.
20 It is important to understand the engineers’ evidence to the Court. Whilst the owner of No. 28 complained of water damage and water flows from the subject property when construction commenced on-site, it is important to note that the engineers have agreed that the masonry retaining wall is not required for the purpose of containing run off and that the natural flow should be allowed, in terms of the natural run off of the area.
21 It is also pointed out in Mr Turner’s statement that the relocation of the current driveway will improve the drainage situation for No. 28 in that the flow from the road onto the subject property and perhaps finding its way then to No. 28 will be redirected as the driveway in the current location would be reinstated. And while the engineers agreed that the masonry wall is not required for drainage purposes however they differ, in that Mr Turner is of the opinion that the construction of a masonry wall could in fact lead to the properties further to the south and west being impacted by drainage that is concentrated by the building of a wall if in fact the drainage weep holes do not function effectively and become blocked.
22 The Court, in its assessment of the application, given that the masonry wall is not required for drainage purposes considers that the important thing is to have regard to what the privacy impacts are between the properties and how any adverse impacts could be ameliorated as opposed to the position of starting with a 460 mm masonry wall with a fence.
23 For No. 28, it was agreed between the expert planners that a 1.8 m fence would provide the necessary privacy for that property. And the Court had the opportunity of viewing No. 28 from No. 26 from both the rooms and the doorway that would lead to the deck and I conclude over looking from the dwelling to No. 28 is not of concern. It was agreed between the experts that a privacy screen at the end of the deck provided the deck is some 3 m from the boundary with no access from the laundry, would provide for the necessary privacy, to No. 28. Furthermore the landscape plan provides extensive intervening vegetation. While the Court notes that one cannot rely wholly on vegetation to provide screening (although it may contribute and assist to increase privacy) but in my assessment the separation distances and the sight-lines persuade me that the opportunities for overlooking are limited and therefore I am satisfied privacy for the occupancy of No. 28 is maintained by a lapped and capped fence.
24 With respect to No. 2 Feld Avenue, for this dwelling the concern is in terms of its rear yard area with a swimming pool at a significantly lower level located directly adjacent to the western boundary of the subject site. With the benefirt of the view and the concurrent evidence of the experts I have determined that the appropriate way to ensure reasonable privacy is for the deck to be further lowered such that the deck be some 340 mm lower than the ground floor of the dwelling. In this regard, the Court has considered the impacts of a masonry wall and fence the height proposed by council’s officer of a 2.26 m fence on top of the existing retained wall adjacent to the swimming pool and above the coping of the pool. The Court in its assessment considers that a higher wall and fence would impact unreasonably on the amenity of No. 2.
25 The backyard area has been lowered and re-contoured as shown in the amended landscape plan and this is a benefit to No. 2 and in the Court’s assessment the deck that adjoins the house at a lower level will ameliorate overlooking to No. 2. While I understand the applicant’s preference not to further lower the deck in the circumstances I am satisfied this will achieve a reasonable relationship with No. 2. It will also provide a better relationship with the re-contoured backyard area. To achieve this the deck is to be lowered where it adjoins the dwelling on the southern elevation and the 3m maximum width of the deck may exclude both steps from the dwelling and steps to the rear garden area.
26 Therefore, the masonry wall is not required for the length of the boundary and I am also persuaded by Mr Turner’s evidence that the masonry wall could have the effect of greater concentrations of water further downstream which would be inappropriate to interfere with the natural drainage flow for the adjoining allotments towards the rear.
27 With respect to the issue of over-shadowing, the Court heard evidence from Mr King on site and cannot be disputed that there will be some minor increase in over-shadowing but I agree that the increase is not material and that the height of the dwelling, that is the lowering of the upper floor level, is not required. Furthermore, in terms of the context of the street, the dwelling is set back between 15 and 20 m from the front boundary and I accept the evidence on behalf of the applicant that a 300 mm reduction is not warranted in terms it will not increase overshadowing to a material extent or present as an unreasonable bulk on No. 28.
28 In terms of the western garden courtyard area, the Court, I do not consider it is necessary to provide doors to this courtyard area that is to remain at a lower level than the floor. I have there decided that floor to ceiling windows be provided with the lower half of the windows to be fixed glazing and this would satisfy both the requirement for light and ventilation as well as ensuring that the privacy to the side courtyard area of No. 28 is reasonably maintained. I am satisfied that there is not unreasonable overlooking in terms of standing in the rooms adjacent the courtyard and viewing the provided there is no access from those rooms.
29 The issue of the water tanks at the rear of the subject site. While the water tanks were approved by the council an appropriate outcome in the circumstances is to maintain amenity to adjoining properties. In terms of the height of the water tanks, it is noted that the applicant wishes to construct timber platforms above the water tanks and this is not opposed to by the council. It is also noted that there is landscaping proposed in the rear yard, that is to the south and to the west of the rear yard. However, I consider in terms of the relationship of the finished level of the tanks and the ground level of the adjoining properties being significantly lower, (that is the property immediately to the south and the property at No. 4 where the Court originally stood on the first occasion) that there should be lattice screens 1.8 m above the finished level of the tank decking for the one tank located more to the the south western corner. The lattice is to be on the southern side and the western side of that tank. The relationship of the tank in terms of the ground level of the property known as No. 6 is not as high and this difference could be overcome by a higher fence if, No. 6 required same but as stated this it is not a matter that the Court needs to concern itself with in these proceedings.
30 As such, in summary, the Court determines that a lapped and capped fence 1.8 m fence with a free board of say 100 mm as proposed by the engineers for the property adjoining at No. 28, be provided on this common boundary. A lapped and capped fence with the 100 mm below may in fact raise that fence to 2 m although 2 m is not required in terms of overlooking but that may be the finished level of such a fence. The existing fence between No. 2 Feld and the subject property, the applicant has advised that this fence is only a few years old and was erected subsequent to the purchase of the land and I am satisfied that the height of that fence is not required to be increased but rather the critical element is to bring down the deck level that adjoins the rear of the dwelling house and also to provide for some screening on the south-western tank at their finished level to maintain reasonable privacy and amenity for No. 2.
31 Therefore, in my final assessment, I am satisfied the proposed s 96 application with the conditions as I have determined above should be approved. The Court will issue the formal orders and condition to refer to the approved plans as shown in revision F. The consolidated set of conditions at 9 will require a 1.8 m lapped and capped fence and 100 mm above the ground be erected between No. 28 and No. 26; the condition concerning the height of the dwelling is to be deleted. The decking over the tanks is agreed to by the applicant and that the courtyard of the western wall of the dwelling shall be at natural ground level which is shown on the plans with no decking provided, that is as shown and the sliding doors, D9 and D10, to be replaced with full length windows, the lower half being fixed glazing and the level of the deck at the rear to the south of the dwelling shall be a minimum of 340 mm lower than the ground floor level of the house (approximately two or three steps) with a 3 metre maximum width that may exclude steps. The timber lattice screen shall be placed on the most south-western side of this water tank, that is the one in the south-western corner and the screen shall be a maximum of 1.6 m above the finished level of the deck for this tank only.
32 The other conditions that the council has provided include that the landscaping be as per the landscape plan and that there be containers of 25 litre minimum size for certain plantings and that the approved landscaping to be retained and protected to ensure ongoing screening and privacy to adjoining properties and any shrubs, trees or gardens, damaged or disturbed, are to be restored to ensure there is privacy screen planting between properties.
33 Therefore, on the basis of my assessment, the Court orders:
1. The appeal under s96(6) of the Environmental Planning and Assessment Act for the property known as 26 River Road Elderslie is upheld in part
2. The application to modify the consent granted by Camden Council 27 April 2004 is approved in accordance with the consolidated conditions contained at annexure ‘A’.
3. The exhibits except for Exhibits 4, 7 A, B, E and K are returned to the parties.
___________________
J S Murrell
Commissioner of the Court
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