Vigor Master Pty Ltd v Ku-ring-gai Council

[2005] NSWLEC 65

Land and Environment Court

of New South Wales

CITATION:

Vigor Master Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 65

PARTIES:

APPLICANT
Vigor Master Pty Ltd

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11491 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Section 96 modification - conversion of 4 window panes from opaque to clear glass

DATES OF HEARING:

16/02/2005

EX TEMPORE JUDGMENT DATE:

02/16/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr H Yu, solicitor

RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

16 February 2004

11491 of 2004 Vigor Master Pty Ltd v Ku-ring-gai Council

JUDGMENT

1 This is appeal 11491 of 2004 and the parties agreed this morning that it be determined by way of On-Site Hearing (OSH). I clarify that the appeal relates to a s 96 modification in Unit 10 at 279-281 Bobbin Head Road and the modification is for the alteration of the bedroom windows from an opaque to a clear glass, in order to improve solar access and internal amenities so as to achieve a more attractive environment for the bedroom.

2 There have been a number of objections received and they mainly relate to the loss of privacy to their rear yards and the bedrooms and their study areas. Those most affected are No. 63 and No. 65, which have been inspected today. There have been other objections raised about some other aspects of the building and it has been established that these are outside the scope of this morning’s appeal.

3 In considering the competing positions, I note the applicant’s submission that the modification sought is to achieve privacy for all neighbours and also to obtain adequate solar access and reasonable ventilation in accordance with the BCA requirements.

4 In determining the matter I note that there has been no expert report on the privacy issues filed. However, having viewed the subject property and the neighbouring properties it seems to me that appropriate and reasonable evaluation criteria is as follows:

(i) Plans Status : I note that there have been a number of changes to the plans and some of those are by way of s 96 modifications. Then the plans were approved by a private certifier but nevertheless, the Construction Certificate plan seems to indicate that the two subject windows have been approved. So using this as a starting point that they are approved, and I also note that the occupation certificate has been issued, therefore final acceptance of the project has been given.

The modification then relates to whether these two panes should remain the way they are, or allowed to be modified to clear panes because the applicant has made submissions that they are not appropriate.
(ii) Source of Nuisance : The source in this case is this upstairs bedroom and its one of three bedrooms within this approved unit. In accordance with accepted practice, overlooking from a bedroom window is often devalued because the overlooking is considered to be much less frequent than from the living area or family room area. Also its usually considered that bedrooms are curtained or screened to some extent, which again restricts overlooking. Therefore I consider that the overlooking from this bedroom source can be devalued to some extent in the circumstances of this case.

(iii) Separation Distances : The third consideration is separation instances and in this regard I take into account the type of development, whereby the prevailing controls allow a change in density for this type of development. Medium density controls prescribe certain setbacks from boundaries, which are obviously reduced from the setbacks of the existing low density areas and the level of privacy that has been experienced by the residents. But there is the Development Control Plan and other controls as previously referred to and in that regard there is AMCORD, which is the usual standard that specifies that in development areas separation distance between bedroom windows or living room windows of about 12 m is acceptable. I note that it was pointed out to me that in the DCP, separation distances of 9 m is considered reasonable in the prevailing DCP. When I look at this development, I consider the separation distances to No. 63 is the least critical in this regard, with the separation distances adequately satisfying those provided in the DCP. I think that the most critical impact is with No. 65, but there is a 4 m separation from the fence to the subject window and at least 10 m to the rear of the verandah, plus about another 2 m to the wall of living areas and the bedroom and the study. In my view this separation distance is satisfactory with those normally accepted and with the DCP control.

(iv) Landscaping : I think that in terms of the overlooking concerns, one has to take into account the landscaping. In this regard there were conditions of consent requiring appropriate landscaping along the common boundary and that landscaping has incorporated the retention of some existing mature vegetation. So that from the subject windows, providing the landscaping is maintained, that does help filter the overlooking into the rear yard of No. 65 and I think that should be taken into account and steps taken to ensure that landscaping is maintained, as per the conditions of development consent.

(v) Design : The next point I take into consideration is the design. As I have said previously, it has been established that these two windows have been finally approved (i.e. occupation certificate issued). There has been a number of different options discussed (i e. alternatively highlight windows), but nevertheless these two windows have been approved. I accept that the occupation certificate has been issued on that basis, so that when I look around this subject building, it is apparent there are other upstairs bedroom windows, which predominantly have clear panes in this development. There are some along the side pathway and it seems to me it is a fairly common feature here and also to be generally a reasonably common feature in low density residential areas that two storey dwellings are allowed. In this situation bedrooms are common upstairs and it is also common to have glass panes in those windows providing there is not undue loss of privacy.

5 Therefore taking into account the separation and the intervening landscaping, I am satisfied that the overlooking of opportunities in this particular case are not sufficient to warrant rejection of this particular s 96 modification particularly considering that it is in a upstairs bedroom, with restricted overlooking opportunities.

6 I note that the applicant does not intend to make any other modification so that the application I have is either to approve the modification or to reject it. Therefore, for those reasons given in my assessment relative to the foregoing evaluation criteria, I consider that the overlooking is not sufficient to warrant rejection and therefore make the orders as follows:

1. The appeal is upheld.

2. The s 96 modification to convert the four (4) window panes in Bedroom 1 (Unit 10), at 279-281 Bobbin Head Road, North Turramurra, from opaque to clear glass is approved.

___________________
R Hussey
Commissioner of the Court
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