Ware v Waverley Council
[2012] NSWLEC 1343
•06 September 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Ware v Waverley Council [2012] NSWLEC 1343 Hearing dates: 6 September 2012 Decision date: 06 September 2012 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld,
2. The application under s 96 of the Environmental Planning and Assessment Act to modify development consent (DA 721/2009) is approved. The consent is modified as set out in Annexure A.
3. The exhibits, except exhibits 1 and A may be returned.
Catchwords: DEVELOPMENT CONSENT - application to amend development consent to delete or change conditions. Height and impact of proposed glass balustrade on views. Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environmental Plan 1996Category: Principal judgment Parties: Merle Ware (Applicant)
Waverley Council (Respondent)Representation: Solicitors
Mr S Patterson of
Mr R Bennett of
Pikes and Verekers Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 10635 of 2012
Judgment
This determination was given extemporaneously and has been edited prior to publication
COMMISSIONER: This is an appeal against the refusal by Waverley Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to delete condition 21 and modify conditions 23 and 24 of a development consent (DA 244/2011) for alternations and additions at 16 Wallangra Road, Dover Heights (site).
Site and locality
The site is located on the eastern side of Wallangra Road at its corner with Lyons Street. A two-storey detached dwelling with a double garage is located on the site. The dwelling has a roof terrace which contains a spa and balustrade extension which have been constructed without development consent.
The locality is predominantly detached houses, some of which include roof terraces with balustrades.
Planning controls
The site is zoned 2(a) Residential - low density under Waverley Local Environmental Plan 1996 (LEP). The proposal is permissible with consent. Waverley Development Control Plan (DCP) applies to the site. Clause 5.1 of Part D of the DCP provides a height control of 7.5 m for dwellings with a flat roof. The existing house exceeds the height control and the balustrade extension will further exceed this control. Council contends that the balustrade extension is contrary to the objectives of the control as it "will be a visual anomaly in the character of the neighbourhood as viewed from surrounding properties".
Council also raised contentions in relation to the proposal's non-compliance with the BCA but these have been resolved through an alternate balustrade extension and a horizontal balustrade over the stairs.
Background
The development consent was approved on 11 June 2009 for alterations and additions to the dwelling including balcony extension, rear pergola and new windows. An application under s 96(1) of the EPA Act (DA244/2009-A) was submitted seeking retrospective approval to increase the height of the roof terrace balustrade associated with the spa bath (first s96).
The first s 96 application was notified and council received two objections from the adjoining properties to the rear of the site (174 and 176 Military Road). The owners of 176 raised objections to that proposal being of excessive height, inconsistent with the character of the streetscape, exceeding the height control and adversely impacting on views. The owners of 174 raised concerns about the work being carried out without consent, building height and bulk and reflection.
The first s 96 application did not seek approval for the spa and was subsequently withdrawn.
On 20 June 2011, s 96 (1A) (DA 244/2009-B) was submitted seeking retrospective approval for the spa and associated balustrade to the roof terrace (second s96).
On 6 September 2011, the second s 96 application was approved by council subject to new conditions requiring the demolition of the additional balustrade to the spa, relocation of the spa and engineering details. These conditions are:
21. GENERAL MODIFICATIONS
The proposal shall be amended as follows:
(a) The additional balustrading to the south side of the roof terrace is to be demolished and the spa bath relocated to a central position on the roof terrace so as not to require any additional balustrading.
The amendments shall be submitted for the approval of Council's Director of Planning and Environment Services.
22. ENGINEERING DETAILS - CERTIFICATE OF ADEQUACY FOR SPA TO ROOF TERRACE
A certificate of Adequacy prepared by a practicing Structural Engineer, certifying the adequacy of the existing building structure to carry the extra load of spa bath to the roof terrace is to be submitted to Council
23. SPA BATH AND ROOF TERRACE BALUSTRADING TO COMPLY WITH THE BUILDING CODE OF AUSTRALIA
The relocation of the spa bath and demolition of the additional balustrading to the roof terrace is to comply with the requirements of the Building Code of Australia.
24. UNDERTAKING OF WORKS
The general modification detailed in condition 21 and engineering details in condition 2 are to be satisfied within ninety (90) days from the date of this letter. If the matter is not satisfied within the allotted timeframe then the matter will be referred to Council Compliance Division for further action.
On 9 January 2012, the current modification application was submitted seeking deletion of condition 21 and modification of conditions 23 and 24. During the hearing the applicant also sought to delete condition 22. The plans accompanying the current s 96 application indicated that the balustrade extension would fold down. No details of when the balustrade would be in an upright position or in a down position were provided. The current s 96 application was notified and no objections were received. It was refused by Council on 16 February 2012 for the following reasons:
1. The proposed modifications are contrary to the Waverley Development Control Plan 2010 in respect to following provisions:
(a) The modified balustrade is contrary to section 5.1 Building Height Objectives (b), (e), (f) and (g) of Part D1; and
(b) The modified balustrade is contrary to section 5.1.1 Dwelling House maximum roof height control of Part D1.
2. The proposal fails to meet the provisions of the performance standards detailed in the Building Code of Australia.
3. The proposed modifications are not in the public interest having regard to section 79C(1)(e) of the Environmental Planning and Assessment Act 1979.
4. The spa bath if relocated to a central position on the roof terrace would not require any additional balustrading.
The contentions in the appeal reflect the reasons for refusal by Council.
Prior to the hearing, the applicant provided a plan for a fixed balustrade to address the contentions particularly the BCA issues. The plan was provided to the objectors to the second s 96 application. Comments from the owner of 176 Military Road were received, which indicated that he was unable to attend the hearing and that the plans were unclear, however he would not object to a frameless balustrade.
Mr Patterson, for the council, sought an adjournment for the matter to be re-notified. Mr Bennett, for the applicant, opposed re-notification on the basis that the application was not being amended as the changes would be imposed by conditions. There was no requirement under the DCP for renotification as the changes would have less impact than the hinged balustrade, which had been notified and no objections had been received. I accepted Mr Bennett's submissions.
The matter commenced on site at a conciliation conference under s 34AA of the Land and Environment Court Act 1979. The parties did not reach agreement and the conference was terminated and proceeded to a hearing. The parties agreed that the evidence during the s 34 conciliation conference was to be evidence in the hearing. The Court heard expert planning evidence from Mr Boston, for the applicant, and Mr Kosnetter, for the council. Mr Brentnall, for the applicant, and Mr Featherstone, for the council, provided expert BCA evidence.
The BCA experts agreed that the provision of a fixed screen that was a metre above the height of the spa would address their concerns about BCA compliance and safety. They further agreed that the provision of a horizontal screen over the stairs would also address their safety concerns. Although, Mr Featherstone indicated that he would prefer the spa to be moved away from the perimeter of the roof terrace and the stairs.
The key disagreement between Mr Boston and Mr Kosnetter was whether the proposal met the objectives of the height control. In particular, whether it had an unacceptable visual impact when viewed from the public domain and adjoining properties.
Mr Kosnetter indicated that his principal concern was whether the proposal would impact on the views from the properties to the rear. In his opinion, the balustrade extension, even if it were of frameless glass as currently proposed, would be a visual obstruction to these views and was uncharacteristic of the area. He acknowledged that there were roof terraces with balustrades in the immediate vicinity but that none had a balustrade in the order of two metres in height. He considered that the spa should be re-located, although he accepted that this would impact on the usability of the terrace area. He considered that this was a secondary consideration to his concerns about the impacts of the proposal.
Mr Boston reviewed the proposal against the objectives of the height control. He considered that although the proposal exceeded the numerical control, it met the objectives of the control in that it does not contribute to the bulk of the existing dwelling or result in unacceptable amenity impacts to adjoining properties in terms of views, privacy, solar access or visual bulk. In his opinion, the proposal is consistent with the height, bulk, and scale of surrounding buildings and the character of the area.
In particular, Mr Boston considered that the proposal for a frameless glass balustrade would have minimal impact on views as it is clear and is orientated east-west and therefore does not cross or obscure the views to the city or the harbour. Mr Boston considered that relocation of the spa would impact on the usefulness of the terrace, given that it would need to be located a metre from the external balustrade. He considered relocation was unnecessary given the impacts of the proposal.
Findings
The proposal is to remove the existing balustrade and construct a frameless glass balustrade 4.2 m in length and 1950 mm above the floor level of the existing terrace. The proposal is necessary to meet the safety requirements as a result of the spa in this location. The existing terrace has a masonry balustrade around its exterior about 600 mm high with a 400 mm framed glass balustrade above.
The proposal would therefore increase the overall height of part of the balustrade by 950 mm.
The key dispute between the parties is whether the additional height will meet the objectives of the height control in s 5.1 of Part D of the DCP. The objectives are:
(a) Ensure the height and scale of development relates to the
topography with minimal cut and fill;
(b) Minimise loss of views from other dwellings;
(c) Minimise loss of privacy to other dwellings;
(d) Maintain acceptable solar access to dwellings and adjoining
open-space;
(e) Minimise bulk-related impacts of dwelling-house and dual
occupancy development;
(f) Ensure buildings enhance the predominant neighbourhood and
street character; and
(g) Ensure visual impacts of the scale of dwelling-house and dual
occupancy development are acceptable.
I accept Mr Boston's evidence that the additional 950 mm in height for a length of 4.2 m in frameless glass would not increase the overall bulk of the building, be inconsistent with the character of the area or result in adverse visual impacts. The proposal will also not result in amenity impacts such as loss of privacy or solar access.
The building already exceeds the height control and provides a roof terrace with a glass balustrade above a perimeter parapet. Other dwellings are of a similar height and also provide roof terraces and glass balustrades. There are no examples in the vicinity of balustrades of the height proposed. However, the proposal extends only for a small section of the balustrade around the roof terrace and is consistent with the change in height that occurs in response to the topography of the land. The proposal is therefore not uncharacteristic of the area.
In relation to the impacts on views, I accept Mr Boston's opinion that there would be a minimal impact due to the orientation of the balustrade in relation to the views and the transparent nature of the frameless screens.
For these reasons, I accept that the balustrade extension meets the objectives of the height control.
I accept that there no other suitable location for the spa on the terrace that would not, either necessitate additional balustrades or reduce the usefulness of the terrace. This would not be a reason to approve the proposed extension of the balustrade or the spa if the impacts of the balustrade were unacceptable, however for the above reasons, I find that it is not.
The application also sought deletion of condition 22, which requires certification of the roof. I accept council's submissions that such certification is required. Condition 22 is therefore retained.
Orders
The orders of the Court therefore are:
(1) 1. The appeal is upheld,
(2) 2. The application under s 96 of the Environmental Planning and Assessment Act to modify development consent (DA 244/2009) is approved. The consent is modified as set out in Annexure A.
(3) The exhibits, except exhibits 1 and A may be returned.
Annelise Tuor
Commissioner of the Court
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Decision last updated: 18 December 2012
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