Wang v Sydney City Council
[2007] NSWLEC 518
•7 August 2007
Land and Environment Court
of New South Wales
CITATION: Wang v Sydney City Council [2007] NSWLEC 518 PARTIES: APPLICANT
RESPONDENT
Kia Hong Wang
Sydney City CouncilFILE NUMBER(S): 10526 of 2007 CORAM: Tuor C KEY ISSUES: Development Application :- dividing fence,
impact of height, bulk and scale of the fence on adjoining property, whether the fence is required to mitigate the impacts of development arising from the adjoining property.LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Dividing Fences Act
Leichhardt Local Environmental Plan 2000DATES OF HEARING: 06/08/07 EX TEMPORE JUDGMENT DATE: 7 August 2007 LEGAL REPRESENTATIVES: APPLICANT
Dr D. Doyle, solicitor
of IECAA, (Import Export Customs Attorney Australasia Pty Ltd)RESPONDENT
Mr S. Kondilios, solicitor
of Maddocks
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
7 August 2007
JUDGMENT10526 of 2007 Kia Hong Wang v City of Sydney Council
1 This is an appeal under the Environmental Planning and Assessment Act 1979 against the refusal by the City of Sydney Council (the council) of a development application (D/2006/00391) to construct a dividing fence at 70 Glebe Point Road, Glebe (the site).
Site and locality
2 The site and its locality are described in the Statement of Facts and Contentions, however, the applicant disputes detail in this document. As I understand, the site consists of a four-level commercial/residential building. The street level fronting Glebe Point Road contains an art gallery. The upper levels are residential. There is an outdoor terrace off the first floor residential level, which adjoins the rear garden area that fronts Derwent Lane.
3 To the west, the site adjoins a two-storey commercial building (72 Glebe Point Road). The ground floor is used as a café and the upper floor as offices. The café has a rear courtyard with outdoor seating.
4 There is a significant difference in the ground levels of 70 and 72 Glebe Point Road. The rear of 70 Glebe Point Road is at a higher level than 72 Glebe Point Road. Based on the survey (Exhibit A), the ground level of 72 Glebe Point Road at the side doorstep, which provides access to the courtyard, is RL19.08. Adjoining this access-way is a retaining wall between the properties, which is about 1.3 metres high. Behind the retaining wall, on 70 Glebe Point Road, there is a landscaped area about 1.5 metres to 4.5 metres wide. There is also a void adjoining the rear window of the art gallery that is set down below ground level. Behind the landscaped area is a patio at RL21.92 with a lattice balustrade at RL23.14.
5 The land on 72 Glebe Point Road steps up towards Derwent Lane. The seating for the outdoor café is provided on two terrace areas at RL19.73 and RL20.39. There is a concrete parking area that adjoins Derwent Lane at RL21.83.
6 The land at the rear of 70 Glebe Point Road remains generally the same level between the patio, the garden and Derwent Lane at about RL21.79. The rear of 70 and 72 Glebe Point Road are therefore at roughly the same level and are separated by about a 2.4 metre high lattice fence.
7 Between the courtyard terraces and the steps on 72 Glebe Point Road and the land on 70 Glebe Point Road, there is a lattice fence on a brick retaining wall.
8 A survey of the boundary was not undertaken and there is no evidence to confirm whether the retaining wall and the fence are on the boundary between 70 and 72 Glebe Point Road.
The proposal
9 The proposal shown on the plans in Exhibit C is to construct a brick fence above the existing retaining wall to a height of RL23.92, about 5.3 metres above the ground level of the access-way.
10 At the conclusion of the hearing, Dr Doyle for the applicant, indicated that the height of the fence could be reduced to be a maximum height of 4.2 metres above the level of the access-way on 72 Glebe Point Road. The parties agreed that the structural adequacy of the retaining wall and any works required to support the additional fence could be dealt with by a condition.
11 The site is zoned Business under the Leichhardt Local Environmental Plan 2000 (the LEP). The proposal is permissible with consent. Leichhardt Development Control Plan 2000 (the DCP) is also relevant. Part B1.2 of the DCP would require a minimum side setback of 3 metres for a 5.4 metre high development. The control allows buildings to side boundaries where:
- the pattern of development is not compromised;
- higher portions of buildings are set back in accordance with the above control;
- the bulk and scale of development is minimised by reduced floor to ceiling heights;
- the potential impacts on amenity of adjoining properties, in terms of sunlight and privacy and bulk and scale, are minimised;
- reasonable access is retained for necessary maintenance of adjoining properties.
12 The Principle of the control states that:
- Plan and design new housing and additions and alterations to existing housing to maintain and enhance the established scale and character of the streetscape. Match and complement existing building forms, private open space and landscaped areas.
13 The Rationale for the control provides that:
- It is important that new development and extensions relate to the established setting and character of neighbouring buildings and the wider locality. This character is determined by the scale, massing, siting, size, height, spacing, form, intensity and use of surrounding buildings. Apart from establishing the character of an area, design that addresses these issues serves to minimise visual impacts, preserve outlooks and protect privacy.
14 The construction of a fence is also controlled by the Dividing Fences Act 1991.
Background
15 The application was lodged on 15 March 2006 and notified to adjoining and nearby properties. Two objections were received from Ms L Olsen, the owner of 72 Glebe Point Road, and Mr C McCleary, the lessee and operator of the café at 72 Glebe Point Road.
16 Council refused the application on 5 June 2006.
17 On 21 December 2005, council had approved a development application (D/2005/1423), which included outdoor seating for the café at 72 Glebe Point Road. The development consent included the following relevant conditions:
Rear outdoor seating restrictions
3. The numbers of seats in the rear courtyard are restricted to no more than 10 at any one time.
Hours of operation
4. The hours of internal operation must be restricted to between 8:00am and 7:00pm Mondays to Sundays inclusive.
Noise5. The external seating in the rear courtyard is restricted to between 9:00am and 3:30pm Mondays to Saturdays, inclusive, and 10:00am to 3:00pm on Sundays, inclusive.
21. That the use of the premises including music and other activities must not give rise to any one or more of the following:
- (i) Transmission of vibration to any place of different occupancy greater than specified in AS 2670.
(ii) An indoor sound pressure level in any place of different occupancy (and/or public place) greater than 3dB above the L90 background level or greater than 5dB at the boundary of any affected property in any octave band from 31.5 Hz to 8,000 Hz centre frequencies inclusive between the hours of 7.00 a.m. to midnight daily and 0dB above the L90 background between 12 midnight and 7.00 a.m. the following morning. However, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this subclause does not apply to any such frequencies.
(iii) During the period 12 midnight to 7.00 a.m. the use shall be inaudible in any habitable room of any residential premises.
(iv) The emission of an "offensive noise" as defined under the` Protection of the Environment (Operations) Act 1997.
The contentions
18 The Statement of Facts and Contentions included six matters in contention. The applicant’s response to the contentions included a number of additional matters, some of which related to the operation of the outdoor café and whether its impacts necessitated the fence.
19 In summary, the key issue is whether the proposed fence will have an unacceptable impact on 72 Glebe Point Road, particularly in relation to its height, bulk and scale.
The evidence
20 With the agreement of the parties, the Registrar had directed that there be no expert evidence. During the hearing Dr Doyle sought leave to cross-examine Mr C Schulman, council planner, on matters in his planning report, the Statement of Facts and Contentions and other documents he prepared contained in council’s bundle (Exhibit 1). I granted this leave.
21 The Court visited the site and, with the agreement of the parties, I heard objections from Ms L Olsen and Mr C McCleary. The main concern of the objectors were that the height of the fence would have an overbearing effect on the access-way and courtyard at the rear of 72 Glebe Point Road.
22 Ms Olsen was concerned that the fence would reduce air flow and exacerbate the existing drainage and dampness problems.
23 Mr McCleary stated that the landscaping of 70 Glebe Point Road provided amenity and he was concerned that it would be obscured by the proposal. He acknowledged that council had fined him for having more seats in the courtyard than allowed by the café consent. However, he stated that since this had occurred he ensured that the consent conditions were complied with by providing signage that stated the number of chairs, having staff seat patrons and providing only the permitted number of chairs in the courtyard.
24 Both objectors considered the alternate proposal in council’s conditions to be an appropriate solution for the fence. The alternate proposal is set out in conditions 1 and 2 of the draft conditions of consent (Exhibit 2) which state:
(1) Design Modifications
The design of the fence must be modified as follows:
(a) The fence must be setback from the boundary and built upon or adjacent to the existing patio (RL 21.92) and retaining wall (RL 22.47) as per the existing lattice fence.
(b) The height of the fence must be no higher than 1.8m from the base of the patio and retaining wall referred to in Condition 1(a).
The amendments are to be submitted for the approval of Council prior to a Construction Certificate being issued.
The materials of the fence are to consist of a lapped and capped treated pine fence.(2) Treatment of Proposed Fence
25 The applicant did not agree to these conditions.
The submissions
26 The submissions of Dr Doyle were that the proposal was necessitated by the approval of the outdoor café at 72 Glebe Point Road which adversely impacted on the residential amenity of 70 Glebe Point Road. These included noise and privacy impacts and concerns about passive smoking.
27 The noise impacts were generated by people using the outdoor courtyard, the access-way and through the café windows adjoining the access-way. The noise impacts were primarily heard in 70 Glebe Point Road from the patio and garden area and from the kitchen and bedroom with windows open. The noise impacts were exacerbated by the use of the courtyard in contravention of the conditions of consent.
28 Dr Doyle submitted that the height of the proposal resulted from the topography of the site, particularly because the ground level of 72 Glebe Point Road had been excavated in the past and was below natural ground level. In his submission, a 1.8 metre fence could be placed above the retaining wall as of right under the Dividing Fences Act and there was little difference in impact between a 3.1 metre high wall and a 4.2 metre high wall.
29 Dr Doyle submitted that the height was necessary to mitigate the noise impacts and did not agree that a brick fence, two metres from the side wall of 72 Glebe Point Road, would create a canyon effect for noise thereby exacerbating the problem. He saw no reason to use a lapped and capped fence for acoustic reasons.
30 Dr Doyle further submitted that many fences in the area were in excess of 3 metres and that the area was characterised by walls of buildings built to the side boundary in excess of 5.3 metres. He stated that the proposal met the criteria for nil side setbacks in Part B1.2 of the DCP in that “the pattern of development is not compromised.” Further, the fence was not visible from anywhere except the adjoining property. He submitted that compliance with a 3 metre side setback control for a 5.4 metre high wall on a 6 metre wide site is unrealistic given the context.
31 Mr Kondilios, for the council, submitted that the fence was more akin to a structure on the boundary and its height, whether 5.3 or 4.2 metres, did not meet either the numerical control in the DCP for side setbacks or the Principles or Rationale for the control. In particular, a fence of this height was uncharacteristic of the area.
32 Mr Kondilios submitted that the noise impacts of the outdoor café were addressed at the time of approval by the imposition of conditions that limited the number of seats and hours of operation and provided noise criteria. The implementation of these conditions would achieve acceptable noise impacts in a mixed use area between a cafe and an adjoining residential use.
33 In Mr Kondilios’ submission, if the applicant had concerns about noise, these could be addressed by the provision of a solid (lapped and capped) fence around the patio area and the replacement of the lattice boundary fence with a lapped and capped fence, as proposed in council’s conditions. This would satisfy any noise or privacy issues perceived by the applicant without adversely impacting on the amenity of 72 Glebe Point Road. Mr Kondilios did not agree that the retaining wall would not be included as part of the fence under the Dividing Fences Act.
Findings
34 I accept Mr Kondilios’s submission; the height of the proposed fence is uncharacteristic of the area. While fences in excess of 3 metres may exist in the locality, a fence of 5.3 or 4.2 metres would not be the norm. The area is characterised by terrace development. While this forms a continuous street frontage the rear of terraces are generally set back from one side boundary and the rear of the properties are generally free of structures, except for garages, sheds and studio type buildings. These are either built boundary to boundary or set back from at least one side boundary.
35 While it can be argued that there are nil setbacks in the area of the height proposed, these are for the walls of a building, not for a structure the purpose of which is to provide a dividing fence.
36 The merits of any application for a building along the boundary, as suggested by the applicant, would need to be assessed at the time of that application and would clearly need to consider issues such as rear and side setback, height, floor space ratio and landscaping.
37 The height of the proposed fence is excessive and will result in unacceptable impacts of bulk and scale on the outdoor area of 72 Glebe Point Road. The proposal does not meet the numerical controls in Part B1.2 of the DCP, nor does it satisfy the criteria that allow buildings to side boundaries as it would clearly compromise the pattern of development by the mere fact that it is a fence of excessive height and not the wall of a building on the boundary. In particular, the proposal does not meet the principle in Part B1.2 to match and complement existing building forms, private open space and landscaped areas.
38 The need to mitigate the acoustic and visual privacy impacts of the outdoor café perceived by the applicant, is not sufficient justification for the height of the fence given its bulk and scale impacts, particularly as alternate solutions exist.
39 While there is evidence that the café has operated in the past not in accordance with the conditions of approval for the number of seats, there is no evidence that this is now the case. Even if this were the situation, any non-compliance would need to be dealt with in a different forum to this appeal. It would not be appropriate for me to approve a fence, which does not meet the controls in the DCP and has unacceptable impacts of bulk and scale to mitigate impacts resulting from an unapproved use for an adjoining property.
40 I must assume that the impacts are consistent with the operation of the outdoor café in accordance with its approval. The conditions include noise criteria, which is a standard condition that would achieve acceptable noise impacts between different uses in a Business zone.
41 I note that the applicant has not requested council to monitor whether the noise criteria in the condition are not complied with, nor has the applicant undertaken its own acoustic assessment.
42 While I acknowledge that people’s sensitivity to noise may be different, I do not accept that the need for the provision of the fence of the height proposed has been demonstrated by any objective criteria. Further, as any noise impact is mainly heard from the patio and rear garden of 70 Glebe Point Road, a fence suggested by council around these areas would mitigate any noise impacts as well as any visual privacy impacts.
43 In relation to the applicant’s submission that a lower fence can be constructed along the boundary under the Dividing Fences Act, this is not a proposal before me or a proposal upon which I can adjudicate.
44 The applicant has not accepted the alternate proposal in council’s conditions therefore the application must fail.
45 The orders of the Court are:
- 1. The appeal is dismissed.
2. The development application (D2006/00391) to construct a dividing fence at 70 Glebe Point Road, Glebe, is refused.
3. The Exhibits are retained.
__________________________
- Annelise Tuor
Commissioner of the Court
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