Yazbek v Council of the City of Sydney
[2010] NSWLEC 1210
•3 August 2010
Land and Environment Court
of New South Wales
CITATION: Yazbek v Council of the City of Sydney [2010] NSWLEC 1210 PARTIES: APPLICANT
RESPONDENT
Alan Yazbek
Council of the City of SydneyFILE NUMBER(S): 10422 of 2010 CORAM: Tuor C KEY ISSUES: DEVELOPMENT CONSENT :- s 96 application to modify a condition requiring deletion of roof terrace.
Aural and visual privacy impacts on adjoining residentsLEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997DATES OF HEARING: 3 August 2010 EX TEMPORE JUDGMENT DATE: 3 August 2010 LEGAL REPRESENTATIVES: APPLICANT
Mr M Baird, barristerRESPONDENT
Mr A Hawkes, solicitor
Council of the City of Sydney
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
10422 of 2010 Yazbek v Council of the City of Sydney3 August 2010
This determination was given extemporaneously
and has been edited prior to publication
JUDGMENT
1 Commissioner: This is an appeal against the refusal by the Council of the City of Sydney (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent (D2009/2109) for alterations and additions to convert an existing substation into a three-storey single dwelling at 2 Printers Lane, Darlinghurst (the site).
2 The s 96 application seeks to delete condition 2(a) of the development consent which requires the trafficable roof, including plunge pool, balustrades and stair access to be removed from the consent.
3 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions.
4 The Court visited the site and surrounding area and heard evidence from adjoining residents in Unit 5/1 Printers Lane. Their principal concern was the potential aural and visual privacy impacts from the proposal. Two residents who live nearby supported the proposal.
5 The Court heard expert planning evidence from Ms C Elek, for the council, and Mr A Darroch, for the applicant. The key disagreement between the planners was whether the proposal would result in adverse privacy impacts to 1 Printers Lane.
6 Mr Darroch stated that the roof terrace was designed to minimise privacy impacts, while providing an outdoor area for the occupants of the dwelling. The plunge pool has sloping sides and could be comfortably used by no more than two people. The plunge pool also separated the roof terrace from 1 Printers Lane by about 8 metres. Landscaping to a height of 1.6 metres and an obscure glass balustrade is provided around the roof, which prevents people accessing the edge of the roof and therefore prevents overlooking.
7 Mr Darroch recognised that there was the potential to look into Unit 7/1 Printers Lane, but considered the separation distance and the landscaping would achieve an acceptable level of privacy. He accepted that an increase in the northern balustrade to 1.8 metres would eliminate this overlooking.
8 Mr Darroch considered that the potential noise impacts were consistent with what is to be expected from a single dwelling and not unreasonable in the context of an inner-city location. He did not consider a condition limiting the use of the terrace or illumination to be necessary.
9 Further, Mr Darroch referred to the previous approval of a roof terrace on the site and to other examples of roof terraces and elevated decks in the vicinity of the site. He considered the proposal to be reasonable within this context.
10 Ms Elek was principally concerned about the potential acoustic privacy impacts of the proposal. She accepted that the increase in the height to 1.8 metres of the obscure glass balustrade at the northern end, in combination with the landscaping, if maintained, might limit visual privacy impacts to an acceptable level. However, she considered that the deck, (about 12sqm) and the plunge pool, could be used by a number of people and result in unacceptable acoustic impacts.
11 Ms Elek noted that Printers Lane is narrow, being approximately 3.6 metres wide, and that the units in 1 Printers Lane are directly opposite. Further, she stated that she had not been able to confirm development approvals for a number of the roof terraces and decks referred to by Mr Darroch and therefore these, in her opinion, were not characteristic of the area.
- Findings
12 Clause 10 of South Sydney Local Environmental Plan 1998 (LEP 1998) provides:
- Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located.
13 The site is within the 2(b) Residential (Medium Density) Zone. The relevant objectives referred to by the parties are:
- (a) to enhance the amenity of existing medium-density residential areas, and
…..
(c) to ensure that building form, including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment.
14 Mr Hawkes, for the council, submits that objective (c) refers only to the amenity of the existing residents and that it is not a question of balancing these against the amenity to be provided to the residents of the development through the provision of open space. In his submission, to be consistent with this objective, the Court must find that the proposal does not detract from the amenity of the residents in 1 Printers Lane.
15 I accept that this is the key task before the Court, but this does not mean that there can be no change to the amenity of existing residents. Clearly, the approval of the development application by the Council, by increasing the height of the existing building, has changed the amenity to the residents of 1 Printers Lane. The question before the Court is whether the amenity impacts detract to the extent that they are unacceptable. A consideration of the reasonableness of the proposal is relevant as part of the consideration of the reasonableness of the impacts and whether they detract from the existing amenity. The amenity of the proposal as well as the impact on the amenity of nearby residents is a consideration in objective (c) as well as (a).
16 The development approved by council is to convert a disused electricity substation into three-storey single dwelling. The development consent increases the overall height of the building. As approved, there is no open space provided. As the existing building occupies the entire site it is not feasible to provide open space at ground level to meet the requirements of clause 1.1.2 of South Sydney Development Control Plan 1997 (the DCP).
17 The controls in clause 1.1.2 include the requirement that:
- Where open space cannot be provided at ground level, useable open space may be provided by roof decks, balconies or terraces, but only where it can be demonstrated that there will be no detrimental impact on the amenity of adjoining properties.
18 Clause 1.2.5 of the DCP provides controls for upper level decks to the rear and sides of dwellings. There are no provisions in the DCP that relate specifically to roof-top terraces or that provide separation distances or specific privacy controls for residential development, other than for residential flat buildings.
19 Clause 4.1 of the DCP provides objectives and performance criteria for visual and acoustic privacy.
- To site and design buildings to meet projected user requirements for visual and acoustic privacy.
- To ensure development minimises noise and overlooking to adjacent development.
- Objectives
Visual privacy
The main habitable areas and private open space are designed to be protected from direct overlooking, by building layout, location and design of windows and balconies, screening devices, distance or landscaping.
Acoustic privacy
Site layout, building design and construction protect internal living and sleeping areas from high levels of external noise and minimises the transmission of sound through the building structure.
20 I accept the evidence of Mr Darroch that the proposal will not detract from the residential amenity of 1 Printers Lane to the extent that it is unreasonable. The 1.8 metre balustrade, vegetation and setback will ensure that there is not direct overlooking of this property. The useable area of the terrace is not large, being approximately 12sqm, and the size and design of the plunge pool will restrict its use. The noise likely to be generated from this area is not beyond that to be anticipated from a single dwelling and, in the context of other residential developments, is not unreasonable.
21 However, due to the proximity of the area, particularly the plunge pool, to the windows in 1 Printers Lane, which are likely to remain open during summer months as the building is not air-conditioned, I have accepted council’s condition which restricts the use of the area after 10pm. I have not imposed the condition in relation to illumination as if the area is not used after 10pm, there is unlikely to be an unacceptable impact, particularly given the street lighting that already exists in the laneway.
22 I therefore find that the proposal is consistent with the objectives of LEP 1998 for the 2(b) Residential (Medium Density) Zone and meets the objectives and performance criteria in clause 4.1 of the DCP as well as providing open space, consistent with the requirements of clause 1.1.2 of the DCP.
23 The Orders of the Court are therefore;
- 1. The appeal is upheld.
2. The application under s96 of the Environment Planning and Assessment Act 1979 Act to amend development consent (D/2009/2109) for alterations and additions to convert an existing substation into a three storey single dwelling at 2 Printers Lane, Darlinghurst is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibit A, may be returned
___________________
- Annelise Tuor
Commissioner of the Court
DJ
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